Allen v. Diaz et al

Filing 16

ORDER Dismissing First Amended Complaint For Failure To State A Claim. Signed by Judge Larry Alan Burns on 11/17/2021.* Blank copy of complaint form Civil Rights Act, 42 U.S.C. § 1983 mailed to pro se. (All non-registered users served via U.S. Mail Service)(dxf)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CHARLES EDWARD ALLEN,
CDCR # D-76353

Case No.: 21cv0602-LAB (RBM)
ORDER DISMISSING FIRST
AMENDED COMPLAINT FOR
FAILURE TO STATE A CLAIM

Plaintiff,
v.
RALPH DIAZ, et al.,
Defendants.

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On April 6, 2021, Plaintiff Charles Edward Allen, a state prisoner incarcerated

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at Calipatria State Prison (“Calipatria”) and proceeding pro se, filed this civil rights

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action pursuant to 42 U.S.C. § 1983. (Dkt. No. 1). Allen alleged he was approved

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for a religious vegan diet but was not provided the diet for three weeks, and he

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wasn’t fed for those three weeks because no vegan meal option was available. (Id.

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at 7). He claimed he was denied his First Amendment right to a religious diet and

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his Eighth Amendment right to an adequately nutritious diet, and named as

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Defendants Calipatria Warden Montgomery, former California Department of

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Corrections and Rehabilitation (“CDCR”) Secretary Diaz, Calipatria Food Manager

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Martinez, Calipatria Supervising Cook Travis, and Calipatria Food Supervisor J.
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Lyon. (Id. at 5–16).

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On September 3, 2021, the Court granted Allen leave to proceed in forma

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pauperis and screened the Complaint pursuant to the provisions of 28 U.S.C.

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§§ 1915(e)(2) & 1915A(b), which require the Court to sua sponte dismiss

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complaints by prisoners proceeding pro se which are “frivolous, malicious, fail to

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state a claim, or which seek damages from defendants who are immune.” (Dkt.

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No. 10 at 4 (quoting Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en

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banc))). The Court found that the Complaint failed to state a First Amendment

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claim for deprivation of a religious diet because Allen did not allege a sincerely-

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held religious belief requiring a vegan diet. (Dkt. No. 10 at 8). The Court also found

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that the Complaint didn’t state an Eighth Amendment claim for deprivation of an

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adequately nutritious diet because Allen failed to identify a defendant responsible

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for providing his meals who knew of and deliberately disregarded a substantial risk

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to his health or safety arising from his refusal to accept a non-vegan diet for the

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three-week delay in providing him a vegan diet. (Id. at 9–10). Allen was notified of

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those pleading deficiencies and of the requirements for stating a 42 U.S.C. § 1983

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claim, was provided with a blank copy of this Court’s 42 U.S.C. § 1983 amended

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complaint form for use in amending, and was instructed that any unnamed

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defendants and any claims not re-alleged in the amended complaint would be

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considered waived. (Id. at 8–11).

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Allen has now filed a First Amended Complaint (“FAC”) naming only

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Defendants Martinez, Travis, and Lyons (collectively, “Defendants”). (Dkt. No. 15).

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Allen didn’t utilize the Court’s amended complaint form and his FAC merely recites

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the legal requirements for providing adequate prisoner and religious diets under

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the Eighth and First Amendments, respectively, contending that the factual

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allegations in his original Complaint are adequate to state a claim because these

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Defendants are responsible for providing him an adequate diet under CDCR
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regulations. (See id. at 3–12).

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The FAC is subject to dismissal for two reasons. First, Allen may not rely on

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the factual allegations in the original Complaint to state a claim in the FAC, but

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must include his factual allegations in the FAC. See Hal Roach Studios, Inc. v.

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Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended

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pleading supersedes the original.”); Lacey v. Maricopa County, 693 F.3d 896, 927

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(9th Cir. 2012) (“[A]n amended complaint supersedes the original complaint and

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renders it without legal effect.”); CivLR 15.1 (“Every pleading to which an

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amendment is permitted as a matter of right or has been allowed by court order,

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must be complete in itself without reference to the superseded pleading.”).

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Second, even liberally construing the FAC as alleging that Defendants

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Martinez, Travis, and Lyons are responsible under CDCR regulations for providing

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prisoners with approved religious or adequately nutritious diets, Allen has failed to

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follow this Court’s instructions in the prior order of dismissal that “[t]hreadbare

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recitals of the elements of a cause of action, supported by mere conclusory

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statements, do not suffice.” (Dkt. No. 10 at 4 (quoting Ashcroft v. Iqbal, 556 U.S.

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662, 678 (2009)). Allen was also instructed that while the court has an “obligation

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. . . where the petitioner is pro se, particularly in civil rights cases, to construe the

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pleadings liberally and to afford the petitioner the benefit of any doubt,” Hebbe v.

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Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026,

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1027 n.1 (9th Cir. 1985)) (en banc), it may not, in so doing, “supply essential

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elements of the claim that were not initially pled,” Ivey v. Board of Regents of the

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University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). (Dkt. No. 10 at 5). For the

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following reasons, the FAC doesn’t contain sufficient factual allegations to

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plausibly allege essential elements of a First or Eighth Amendment claim.

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I.

ANALYSIS
A. Eighth Amendment Claim

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The FAC begins with a recitation of case law providing that sustained

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deprivation of food can result in an Eighth Amendment violation. The FAC then

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states in a conclusory manner that: “Plaintiff avers that defendants Martinez,

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Travis, and Lyons did cause plaintiff to be subjected to the deprivation alleged in

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the complaint, whereby, said defendant [sic] did directly, implicitly approve and

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knowingly acquiesce in the unconstitutional conduct, thus, liable under 42 U.S.C.

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§ 1983.” (Dkt. No. 15 at 4). Allen argues that because CDCR regulations provide

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that Defendants are responsible for making sure prisoners have an adequate diet,

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they are liable under the Eighth Amendment for him not receiving an adequate

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diet. (Id. at 4–9).

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In ruling on Allen’s original Complaint, the Court found that even if

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Defendants were aware through Allen’s inmate grievance that he was not being

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provided a vegan diet, his Complaint nevertheless failed to allege facts which

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plausibly alleged that they were personally involved in the alleged deprivation of

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his constitutional rights because there were no allegations that they were

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responsible for ensuring he received a vegan diet. (Dkt. No. 10 at 9–10). The Court

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noted that a prisoner claiming an Eighth Amendment violation must plausibly

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allege that prison officials acted with deliberate indifference to a serious risk to his

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health or safety in allowing that deprivation to take place. (Id. at 9 (citing Farmer v.

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Brennan, 511 U.S. 825, 834 (1994)). Facts must be alleged showing the prison

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official had a “sufficiently culpable state of mind,” that is, “one of ‘deliberate

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indifference’ to inmate health or safety.” Farmer, 511 U.S. at 834. A prison official

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can be held liable only if he “knows of and disregards an excessive risk to inmate

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health or safety; the official must both be aware of facts from which the inference

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could be drawn that a substantial risk of serious harm exists, and he must also
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draw the inference.” Id. at 837.

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Allen now alleges in his FAC that CDCR regulations provide that Defendants

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are responsible for making sure prisoners have an adequate diet, and that they

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are liable under the Eighth Amendment because they became aware he wasn’t

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receiving an adequate diet through his inmate grievance. (Dkt. No. 15 at 4–9). But

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in order to state an Eighth Amendment claim, Allen must allege facts showing not

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only that they knew he was not receiving an adequate diet, but that they drew an

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inference that he faced a substantial risk of serious harm. There are no factual

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allegations which plausibly suggest these Defendants actually drew any inference

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that Allen faced a serious or substantial risk of harm by the three-week delay in

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providing him a vegan diet. Allen does not indicate what, if anything, he ate for

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those three weeks. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979)

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(holding that a defendant is liable under § 1983 when he or she personally

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participates in the constitutional deprivation); Iqbal, 556 U.S. at 676 (“[A] plaintiff

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must plead that each Government-official defendant, through the official’s own

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individual actions, has violated the Constitution.”).

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Even assuming Defendants became aware that Allen had been approved for

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a religious vegan diet but didn’t receive it for another three weeks, Allen still fails

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to plausibly allege that they even had the authority to act on his grievance or

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provide him with a vegan diet during those three weeks. Allen also fails to plausibly

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allege that Defendants were aware that what he was receiving to eat was

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insufficient and given in conscious disregard to a threat to Allen’s health or safety,

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and they refused to act anyway. In other words, even where the Court finds that

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Allen is correct that these Defendants are required under CDCR regulations to

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provide prisoners adequate or approved diets, and assuming they were aware

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through his inmate grievance that he been approved for a vegan diet but was not

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provided one for three weeks, Allen’s FAC nevertheless fails to plausibly suggest
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that Defendants actually drew an inference that Allen faced a serious or substantial

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risk of harm from that delay. Although the original Complaint identified the contents

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of the inmate grievance and alleged which Defendants were aware of its contents,

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the FAC contains no such allegations. In any case, Allen was instructed in the

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Court’s prior order of dismissal that merely being aware of a grievance without

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some decision-making authority or ability to resolve the underlying issue is

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insufficient to establish personal participation in an alleged constitutional violation.

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See Stewart v. Warner, No. C15-5243 RBL-KLS, 2016 WL 1104893, at *5 (W.D.

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Wash. Feb. 29, 2016), report and recommendation adopted, No. C15-5243 RBL-

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KLS, 2016 WL 1089974 (W.D. Wash. Mar. 21, 2016) (holding that nurses who had

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reviewed and denied the plaintiff’s grievances did not personally participate in

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alleged Eighth Amendment violations because they did not have decision-making

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authority over the plaintiff’s care); see also May v. Williams, No. 2:10cv576–GMN–

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LRL, 2012 WL 1155390, at *3 (D. Nev. Apr. 4, 2012) (finding that merely denying

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grievances is not enough to establish personal participation under section 1983).

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Although Allen attempts to allege in the FAC that CDCR regulations delegate such

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decision-making authority to Defendants, he has not alleged facts in the FAC which

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plausibly allege Defendants Martinez, Travis and Lyon caused the three-week

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delay in implementing his vegan diet or deliberately ignored a substantial risk to

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his health or safety during that time.

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B. First Amendment Claim

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To state a claim for deprivation of a religious diet in violation of the First

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Amendment, Allen must allege that his religious belief is “sincerely held” and that

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his request for a vegan diet is “rooted in religious belief, not in purely secular

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philosophical concerns.” Malik v. Brown, 16 F.3d 330, 333 (9th Cir. 1994). The

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original Complaint included no allegations regarding Allen’s religious beliefs or

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religious need for a vegan diet, and the documents attached to it, which Allen
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contended put the Defendants on notice of the alleged constitutional violation,

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similarly mentioned nothing regarding his religious need for a vegan diet. (See Dkt.

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No. 1 at 20–39). This Court, therefore, held that the Complaint failed to plausibly

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allege the Defendants were put on notice of a First Amendment violation.

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Allen now contends in his FAC that he holds a sincere religious belief that

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requires a vegan diet. (See Dkt. No. 15 at 10–11.) However, in order to

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substantially burden the free exercise of religious beliefs, the interference must be

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more than an isolated or short-term occurrence. Canell v. Lightner, 143 F.3d 1210,

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1215 (9th Cir. 1998). There are no allegations in the FAC regarding how long Allen

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was waiting to receive approval for a vegan diet before it was approved; how he

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accommodated his religious need for a vegan diet prior to his approval or during

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the approval process; why he was unable to continue that accommodation for the

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three-week period during which he was waiting to receive his approved diet; or

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how it burdened the free exercise of his religious beliefs. Id.; see also Thomas v.

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Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 717–18 (1981) (finding a

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substantial burden exists where the state puts “substantial pressure on an

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adherent to modify his behavior and to violate his beliefs”).

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In sum, Allen’s FAC, like his original Complaint, fails to plausibly allege a

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First Amendment violation against Defendants Martinez, Travis and Lyon arising

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from a failure to provide a religious vegan diet for three weeks after it was

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approved, and fails to plausibly allege an Eighth Amendment violation against

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these Defendants from that delay.

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C. Leave to Amend

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In light of Allen’s pro se status, the Court grants him one final opportunity to

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amend his pleading to sufficiently allege a § 1983 claim against the dismissed

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Defendants. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A

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district court should not dismiss a pro se complaint without leave to amend
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[pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the

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deficiencies of the complaint could not be cured by amendment.’”) (quoting Akhtar

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v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)).

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II.

CONCLUSION

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Good cause appearing, the Court:

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1.

DISMISSES all claims against all Defendants in the FAC without

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prejudice and with leave to amend pursuant to 28 U.S.C. §§ 1915(e)(2) and

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1915A(b).

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2.

GRANTS Allen forty-five (45) days leave from the date of this Order to

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file a Second Amended Complaint which cures the pleading deficiencies noted in

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this Order with respect to any or all other Defendants. Allen’s Second Amended

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Complaint must be clearly entitled “Second Amended Complaint,” include Civil

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Case No. 21cv0602-LAB (RBM) in its caption, and must be complete by itself

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without reference to his original Complaint. Defendants not named and any claims

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not re-alleged in the First Amended Complaint will be considered waived. See

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CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542,

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1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”); Lacey v.

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Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed

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with leave to amend which are not re-alleged in an amended pleading may be

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“considered waived if not repled”).

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3.

DIRECTS the Clerk of the Court to provide Allen with a blank copy of

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its form Complaint under the Civil Rights Act, 42 U.S.C. § 1983 for use in amending

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and instructs Allen to utilize the Court’s form in amending.

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IT IS SO ORDERED.

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Dated: November 17, 2021

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Honorable Larry Alan Burns
United States District Judge

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