Long v. Noland, Jr. et al
ORDER DISMISSING COMPLAINT IN PART WITH LEAVE TO AMEND re: 1 - Signed by SENIOR JUDGE HELEN GILLMOR on 6/4/2021. (1) Long's free exercise claim in Count IV against COS Antonio may proceed. (2) Long's remaining claims are DISMISSED with leave granted to amend. (3) If he chooses, Long may file an amended complaint that addresses the noted deficiencies in his claims on or before Monday, July 12, 2021. (4) IN THE ALTERNATIVE to filing an amended complaint, Long may notify the Court in writing on or before Monday, July 12, 2021 that he elects to proceed solely with his free exercise claim in Count IV against COS Antonio. If Long fails to file either a further amended complaint or a notice of election by Monday, July 12, 2021, the Court will direct the Complaint to be served, as limited by this O rder. (5) The Clerk is DIRECTED to send Long a prisoner civil rights complaint form so that he may comply with the directions of this Order, if he elects to file an amended complaint. (jo)COURT'S CERTIFICATE OF SERVICE - De Witt Lamar Long will be served by First Class Mail to the address of record listed on the Notice of Electronic Filing (NEF) on June 4, 2021.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
DE WITT LAMAR LONG,
CIVIL NO. 21-00205 HG-RT
ORDER DISMISSING COMPLAINT
IN PART WITH LEAVE TO AMEND
CHAPLAIN CHARLES NOLAND, JR.;
LEAIALAIMATAFAO; CHIEF OF
SECURITY LYLE ANTONIO;
WARDEN SCOTT O. HARRINGTON,
ORDER DISMISSING COMPLAINT IN PART
WITH LEAVE TO AMEND
Before the Court is Plaintiff De Witt Lamar Long’s (“Long”) prisoner civil
rights complaint (“Complaint”) brought pursuant to 42 U.S.C. § 1983. ECF No. 1.
Long is a practicing Muslim who alleges that prison officials 1 at the Halawa
Long names in their individual capacities Chaplain Charles Noland, Jr.,
Correctional Officer (“CO”) Hamada, Sergeant (“Sgt.”) Leaialaimatafao, Chief of
Security (“COS”) Lyle Antonio, and Warden Scott O. Harrington. ECF No. 1 at
Correctional Facility (“HCF”) 2 violated his First Amendment right to free exercise
of religion and his Fourteenth Amendment right to equal protection in 2019. Id. at
7–35. Long claims that Defendants did not purchase and provide him with
religious items, denied him religious meals on two occasions, and cancelled
Islamic services on Fridays during Ramadan. Id. For the following reasons, the
Complaint is DISMISSED in part with leave granted to amend pursuant to
28 U.S.C. §§ 1915(e) and 1915A(a). Long may file an amended pleading on or
before Monday, July 12, 2021. In the alternative, Long may inform the Court on
or before Monday, July 12, 2021, that he will proceed with his First Amendment
claim in Count IV against COS Antonio.
I. STATUTORY SCREENING
The Court is required to conduct a pre-Answer screening of any case in
which a prisoner seeks redress from a governmental entity, or officer or employee
of a governmental entity, or in which a plaintiff proceeds in forma pauperis.
28 U.S.C. §§ 1915(e)(2), 1915A(a). During this screening, the Court must dismiss
any complaint or portion thereof that is frivolous, malicious, fails to state a claim
on which relief may be granted, or seeks damages from defendants who are
immune from suit. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b); Andrews v.
Long is currently incarcerated at the Saguaro Correctional Center (“SCC”) in
Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007) (noting that 28 U.S.C.
§§ 1915(e)(2)(B) and 1915A(b) “are directed at screening out meritless suits early
on”); see also Harris v. Harris, 935 F.3d 670, 675 (9th Cir. 2019) (describing
screening under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(a)–(b)).
In determining whether a complaint or any portion thereof should be
dismissed for failure to state a claim under 28 U.S.C. §§ 1915(e)(2)(B) or
1915A(b), the Court applies the same standard as that under Federal Rule of Civil
Procedure 12(b)(6) (“Rule 12”). See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th
Cir. 2015) (per curiam). Under this standard, a complaint must “contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and
citation omitted); Byrd v. Phoenix Police Dep’t, 885 F.3d 639, 642 (9th Cir. 2018)
(per curiam). A claim is “plausible” when the facts alleged support a reasonable
inference that the plaintiff is entitled to relief from a specific defendant for specific
misconduct. See Iqbal, 556 U.S. at 678. Although this plausibility standard does
not equate to a “probability requirement,” “it asks for more than sheer possibility
that a defendant has acted unlawfully.” Id.; see also Dent v. Nat’l Football
League, 968 F.3d 1126, 1130 (9th Cir. 2020) (same).
Rule 12 is read in conjunction with Federal Rule of Civil Procedure 8(a)
(“Rule 8”). Rule 8 “requires only ‘a short and plain statement of the claim
showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair
notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S.
41, 47 (1957)). Although Rule 8 does not require detailed factual allegations, “it
demands more than an unadorned the-defendant-unlawfully-harmed-me
accusation.” Iqbal, 556 U.S. at 678 (citation omitted). “A pleading that offers
‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of
action will not do.’” Id. (citation omitted). “Nor does a complaint suffice if it
tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (citation
omitted) (brackets in original); see also Woods v. U.S. Bank N.A., 831 F.3d 1159,
1162 (9th Cir. 2016) (same).
The Court construes pro se litigants’ pleadings liberally and affords them the
benefit of any doubt. See Byrd v. Phoenix Police Dep’t, 885 F.3d 639, 642 (9th
Cir. 2018) (per curiam). Liberal construction of a pro se civil rights complaint,
however, “may not supply essential elements of the claim that were not initially
pled.” Litmon v. Harris, 768 F.3d 1237, 1241 (9th Cir. 2014) (internal quotation
marks and citation omitted). Nor do district court judges have an “obligation to act
as counsel or paralegal to pro se litigants.” Pliler v. Ford, 42 U.S. 225, 231
(2004); see also Eblacas v. Agbulos, Civ. No. 18-00376 DKW-RLP, 2018 WL
5621954, at *2 (D. Haw. Oct. 30, 2018) (“While the court construes [the
plaintiff’s] allegations liberally and affords him the benefit of any doubt, it will not
speculate about [the plaintiff’s] claims, and has no obligation to act as counsel or
paralegal to pro se litigants.” (internal quotation marks and citation omitted)).
The Court cannot dismiss a pro se litigant’s pleading without leave to amend
unless it is absolutely clear that the deficiencies of the complaint cannot be cured
by amendment. Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (per
curiam). Before dismissing a pro se complaint, the Court must provide the litigant
with notice of the deficiencies in his complaint “to ensure that the litigant uses the
opportunity to amend effectively.” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir.
2012) (internal quotation marks and citations omitted).
II. LONG’S CLAIMS 3
After arriving at the HCF in March 2019, ECF No. 1 at 12, Long asked
Chaplain Noland to add his name to three lists of prisoners who (1) “observe the
Islamic, Muslim faith,” id. at 10; (2) are permitted to attend “Jum’ah” 4 services, id.
Long’s factual allegations are accepted as true for purposes of screening. See
Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014).
“Jum’ah” is “Friday of the Muslim week and the special noon service on Friday
that all adult, male, free Muslims are obliged to attend.” Britannica, Jum’ah,
https://www.britannica.com/topic/jumah (last visited June 3, 2021).
at 11; and (3) are provided a “Halal/Kosher” 5 diet, id. at 11, 16. Long’s name was
added to the three lists. Id. at 16, 26. Long also asked Chaplain Noland to provide
him with the “Holy Qur’an,” 6 a prayer rug, a kufi, 7 and prayer oils. Id. at 11.
Long alleges in Count I that Chaplain Noland did not provide him with a
Qur’an, a prayer rug, a kufi, prayer oils, or “any other Islamic, Muslim literature or
materials[.]” Id. Chaplain Noland told Long that he did not have these items. Id.
at 12. Long claims that there was no other way for him to obtain the items. Id.
Long alleges in Count II that CO Hamada refused to provide him with a
“Halal/Kosher” meal on May 2, 2019. Id. at 15–19. On that day, Long noticed
that his food tray was “not as [it] should be,” and he asked CO Hamada to “resolve
the issue.” 8 Id. at 17. CO Hamada allegedly became “hostile and dismissive” and
told Long to “take it or leave it.” Id. When Long asked to speak with the duty
cook, as he had been previously told to do if there was an issue with his food, CO
“Halal” foods are those sanctioned by Islamic law. Merriam-Webster, Halal,
https://www.merriam-webster.com/dictionary/halal (last visited June 3, 2021).
The Qur’an is the sacred scripture of Islam. Britannica, Qur’an,
https://www.britannica.com/topic/Quran (last visited June 3, 2021).
A “kufi” is a “close-fitting brimless cylindrical or round hat.” Merriam-Webster
Dictionary, Kufi, https://www.merriam-webster.com/dictionary/kufi (last visited
June 3, 2021).
Long does not say what was allegedly wrong with his tray of food or what he
asked CO Hamada to do to fix it.
Hamada allegedly refused Long’s request. Id. at 17–18. According to Long, he
was forced to wait approximately thirteen hours between meals. Id. at 18.
Long alleges in Count III that Sgt. Leaialaimatafao failed to provide him
with his “Ramadan, Halal/Kosher” meal on May 7, 2019. 9 Id. at 20–24. During
Ramadan, Long’s meals were ordinarily labeled with his name and “Ramadan
Kosher,” and they were sealed in plastic wrap. Id. at 21. Because Long could not
eat between dawn and dusk during Ramadan, prison officials usually gave him a
double portion of food. Id. On May 7, 2019, however, Long received a single
portion of food, that was not labeled with his name or “Ramadan Kosher,” and that
was not sealed in plastic wrap. Id. When Long spoke to Sgt. Leaialaimatafao
about his food, she allegedly said “that there was nothing she could do about it.”
Id. at 22. Long asked Sgt. Leaialaimatafao to call the kitchen, but she refused. Id.
When Long asked Sgt. Leaialaimatafao to call the lieutenant on duty, as he had
been previously instructed to do, Sgt. Leaialaimatafao allegedly said that “she
wasn’t gonna bother him with this.” Id. at 23. As a result, Long had to wait
approximately twenty-four hours between meals. Id.
Ramadan is “the ninth month of the Islamic year observed as sacred with fasting
practiced daily from dawn to sunset.” Merriam-Webster Dictionary, Ramadan,
https://www.merriam-webster.com/dictionary/Ramadan (last visited June 3, 2021).
In 2019, Ramadan began the evening of May 5, and it ended the evening of June 3.
Long alleges in Count IV that Jum’ah services were not available at the HCF
during the month of Ramadan in 2019. Id. at 25–29. When Long inquired why the
services were unavailable, a correctional officer directed Long’s attention to a
memorandum on the wall from COS Antonio stating that no Jum’ah services were
being held. Id. at 27. Long claims that, during the same period, Christian services
were held. Id. at 27-28.
Long alleges in Count V that he was “denied the opportunity to practice and
observe many of his religious requirements.” Id. at 33. Long claims that Warden
Harrington was aware of the alleged violations, because he had responded to
Long’s “numerous grievances,” but he “failed to remedy the wrongs and
Long seeks “[c]ompensatory, consequential, special,” and special damages,
attorney’s fees and costs, and interest. Id. at 36.
Legal Framework for Claims Under 42 U.S.C. § 1983
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege: (1) that a
right secured by the Constitution or laws of the United States was violated, and
(2) that the alleged violation was committed by a person acting under color of state
law. See West v. Atkins, 487 U.S. 42, 48 (1988); Park v. City & County of
Honolulu, 952 F.3d 1136, 1140 (9th Cir. 2020). Section 1983 requires a
connection or link between a defendant’s actions and the plaintiff’s alleged
deprivation. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 692 (1978); Harper
v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008) (“In a § 1983 action,
the plaintiff must also demonstrate that the defendant’s conduct was the actionable
cause of the claimed injury.” (citation omitted)). “‘A person “subjects” another to
the deprivation of a constitutional right, within the meaning of section 1983, if he
does an affirmative act, participates in another’s affirmative acts, or omits to
perform an act which he is legally required to do that causes the deprivation of
which complaint is made.’” Lacey v. Maricopa County, 693 F.3d 896, 915 (9th
Cir. 2012) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)).
“Inmates retain the protections afforded by the First Amendment, ‘including
its directive that no law shall prohibit the free exercise of religion.’” Shakur v
Schriro, 514 F.3d 878, 883–84 (9th Cir. 2008) (quoting O’Lone v. Estate of
Shabazz, 482 U.S. 342, 348 (1987)). To implicate the Free Exercise Clause, a
prisoner must allege that the belief at issue is both “sincerely held” and “rooted in
religious belief.” Walker v. Beard, 789 F.3d 1125, 1138 (9th Cir. 2015) (internal
quotation marks and citation omitted). Additionally, a prisoner must allege that
prison officials substantially burdened the practice of his religion. Jones v.
Williams, 791 F.3d 1023, 1031 (9th Cir. 2015). “A substantial burden ... place[s]
more than an inconvenience on religious exercise; it must have a tendency to
coerce individuals into acting contrary to their religious beliefs or exert substantial
pressure on an adherent to modify his behavior and to violate his beliefs.” Id. at
1031–32 (citation omitted).
A regulation or practice that burdens an inmate’s First Amendment rights
may be upheld if it is reasonably related to a legitimate penological interest.
Turner v. Safley, 482 U.S. 78, 89 (1987). This determination requires courts to
consider: (1) whether there is a valid, rational connection between the regulation
and the legitimate governmental interest; (2) whether there are alternative means of
exercising the right that remain open to inmates; (3) the impact accommodation of
the right will have on guards and other inmates, and on the allocation of prison
resources; and (4) the absence of ready alternatives. Id. at 90.
1. Religious items
Long alleges in Count I that Chaplain Noland violated the First Amendment
because he did not provide Long with a Qur’an, a prayer rug, a kufi, prayer oils, or
“any other Islamic, Muslim literature or materials[.]” ECF No. 1 at 11.
Long fails to state a plausible claim for relief because the First Amendment
does not require prison officials to purchase religious items for inmates. See Frank
v. Terrell, 858 F.2d 1090, 1090 (5th Cir. 1988) (per curiam) (“‘[T]here cannot
possibly be any constitutional or legal requirement that the government provide
materials for every religion and sect practiced in this diverse country[.]” (quoting
Cruz v. Beto, 405 U.S. 319, 323 (1972) (Burger, C.J., concurring)); see also Ward
v. Walsh, 1 F.3d 873, 880 (9th Cir. 1993) (concluding that prison officials did not
have an affirmative obligation to provide inmate with clothing made with only one
fiber); Indreland v. Yellowstone Cnty. Bd. of Comm’rs, 693 F. Supp. 2d 1230, 1242
(D. Mont. 2010) (“The Detention Facility was not required to purchase religious
materials . . . at their own expense.”); Florer v. Peck, No. CV-05-5039-EFS, 2007
WL 9717443, at *4 (E.D. Wash. July 31, 2007) (“Plaintiff has not cited to any
authority creating an affirmative obligation on [prison officials] to provide
Although Long claims that he had “no way” to obtain the items himself, he
does not allege that the items were banned at the HCF. Nor does he allege that
Chaplain Noland prohibited him from obtaining the items. Cf. Cooper v. Pate, 378
U.S. 546, 546 (1964) (per curiam) (concluding that complaint stated a claim where
prisoner alleged that he was denied permission to purchase certain religious
publications). Long’s claim in Count I against Chaplain Noland is DISMISSED
with leave to amend.
2. Religious meals
Long alleges in Count II that CO Hamada violated the First Amendment by
denying him a “Halal/Kosher” meal on May 2, 2019. 10 ECF No. 1 at 15–19. In
Count III, Long alleges that Sgt. Leaialaimatafao violated the First Amendment by
separately denying him a “Halal/Kosher” meal on May 7, 2019. Id. at 20–24.
Inmates “have the right to be provided with food sufficient to sustain them in
good health that satisfies the dietary laws of their religion.” McElyea v. Babbitt,
833 F.2d 196, 198 (9th Cir. 1987); see also Thomas v. Baca, 827 F. App’x 777,
778 (9th Cir. 2020) (same). As the Ninth Circuit has explained, however,
“relatively short-term and sporadic” intrusions do not substantially burden the free
exercise of religion. Canell v. Lightner, 143 F.3d 1210, 1215 (9th Cir. 1998).
Long fails to state a plausible claim for relief against either CO Hamada or
Sgt. Leaialaimatafao because he does not plausibly allege that missing a meal on
two separate days substantially burdened his practice of religion. To the extent
Long claims that CO Hamada denied him a religious meal on May 2, 2019, “the
denial of . . . a religious meal, on a single isolated occasion does not constitute a
‘substantial burden’ and thus does not violate the First Amendment.” Johnson v.
While Long claims that he previously experienced “issues” with his food being
served with utensils that had touched pork, he does not allege that CO Hamada was
involved with or even aware of these earlier incidents. ECF No. 1 at 17.
Scott, No. CV 21-2543-AB(E), 2021 WL 1664175, at *3 (C.D. Cal. Apr. 28,
2021); see also Combs v. Washington, 660 F. App’x 515, 517 (9th Cir. 2016)
(concluding that “sporadic mistakes in . . . food preparation . . . did not rise to the
level of a constitutional violation”). Likewise, Long fails to state a claim against
Sgt. Leaialaimatafao based on a separate incident during Ramadan, on May 7,
2019. See Pouncil v. Sherman, No. 1:17-cv-00547-AWI-BAM (PC), 2018 WL
646105, at *3 (E.D. Cal. Jan. 31, 2018) (concluding prisoner failed to state a claim
based on alleged denial of meals on one night of Ramadan); see also Moore v.
Katavich, No. 1:15-cv-01317-BAM-PC, 2015 WL 13237071, at *2 (E.D. Cal. Dec.
18, 2015) (“Brief, sporadic food-delivery problems are insufficient to establish a
substantial burden on plaintiff’s free exercise of religion.”).
Long does not allege that he was denied meals as a matter of course. Nor
does he allege that Sgt. Leaialaimatafao was aware of the May 2, 2019 incident
involving CO Hamada. Long’s claims against CO Hamada in Count II and Sgt.
Leaialaimatafao in Count III are DISMISSED with leave to amend.
3. Religious services
Long alleges in Count IV that COS Antonio violated the First Amendment
by cancelling Jum’ah services during Ramadan. ECF No. 1 at 25–29.
The Supreme Court has said that “the ‘exercise of religion’ often involves
not only belief and profession but the performance of . . . physical acts[,] [for
example,] assembling with others for a worship service[.]” Employment Div.,
Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 877 (1990).
According to Long, “Friday (Jum’ah) is the most important day of worship
in Islam.” ECF No. 1 at 25. Long describes Jum’ah as “the weekly occasion
earmarked by God for Muslims to express their collective devotion.” Id. Long
says that Jum’ah “is obligatory for all Muslim inmates[.]” Id. at 9.
Long claims that COS Antonio cancelled Jum’ah services during the entire
month of Ramadan, and that this prevented him “from engaging in a sincerely held
religious practice in accordance with his sincerely held religious beliefs.” Id. at
26–28. Long states a plausible free exercise claim in Count IV against COS
Antonio that may proceed. See Henderson v. Muniz, No. 14-cv-01857-JST, 2017
WL 6885393, at *9–10 (N.D. Cal. Nov. 28, 2017) (denying summary judgment on
First Amendment claim where prisoner alleged that he was denied “Jumu’ah
4. Supervisory liability
Long alleges in Count V that Warden Harrington violated the First
Amendment. ECF No. 1 at 30 –35.
There is no respondeat superior liability under 42 U.S.C. § 1983. Vazquez
v. County of Kern, 949 F.3d 1153, 1166 (9th Cir. 2020). “Because vicarious
liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each
Government-official defendant, through the official’s own individual actions, has
violated the Constitution.” Iqbal, 556 U.S. at 676. “A supervisory official may be
held liable under § 1983 only if there exists either (1) his or her personal
involvement in the constitutional deprivation, or (2) a sufficient causal connection
between the supervisor’s wrongful conduct and the constitutional violation.”
Keates v. Koile, 883 F.3d 1228, 1242–43 (9th Cir. 2018) (internal quotation marks
and citations omitted).
“The requisite causal connection can be established by setting in motion a
series of acts by others, or by knowingly refusing to terminate a series of acts by
others, which the supervisor knew or reasonably should have known would cause
others to inflict a constitutional injury.” Felarca v. Birgeneau, 891 F.3d 809, 820
(9th Cir. 2018) (internal quotation marks and citations omitted). “Thus, a
supervisor may be liable in his individual capacity for his own culpable action or
inaction in the training, supervision, or control of his subordinates; for his
acquiescence in the constitutional deprivation; or for conduct that showed a
reckless or callous indifference to the rights of others.” Rodriguez v. County of Los
Angeles, 891 F.3d 776, 798 (9th Cir. 2018) (internal quotation marks and citation
omitted). A “claim that a supervisory official knew of unconstitutional conditions
and culpable actions of his subordinates but failed to act amounts to acquiescence
in the unconstitutional conduct of his subordinates and is sufficient to state a claim
of supervisory liability.” Keates, 883 F.3d at 1243 (internal quotation marks and
Long fails to state a claim against Warden Harrington. Long does not allege
that Warden Harrington was personally involved in a constitutional deprivation.
Nor has he sufficiently alleged a causal connection between any conduct by
Warden Harrington and a constitutional violation.
To the extent Long claims that he was denied Jum’ah services during
Ramadan, he does not say when he allegedly brought this to Warden Harrington’s
attention. Long also does not say how long Jum’ah services were suspended. If
the services resumed soon after Long complained to Warden Harrington, this
would contradict Long’s claim that Warden Harrington violated his rights.
Regarding Long’s claims that CO Hamada and Sgt. Leaialaimatafao
separately denied him religious meals on two distinct occasions, Long does not say
when he complained to Warden Harrington about these two incidents. Nor does
Long allege that he was denied religious meals after he voiced his concerns to
Finally, to the extent Long claims that he was not provided with “religious
literature,” the First Amendment does not require prison officials to purchase
religious items for inmates. See Frank, 858 F.2d at 1090. Long’s claim in Count
V against Warden Harrington is therefore DISMISSED with leave granted to
C. Fourteenth Amendment
Long alleges in Count IV that COS Antonio also violated the Equal
Protection Clause of the Fourteenth Amendment by canceling Jum’ah services.
ECF No. 1 at 25.
The Equal Protection Clause of the Fourteenth Amendment prohibits states
from denying any person the equal protection of the laws, with the general
objective “that all persons similarly situated should be treated alike.” City of
Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). “To prevail on an
Equal Protection claim brought under § 1983, [a plaintiff] must allege facts
plausibly showing that the defendants acted with an intent or purpose to
discriminate against [them] based upon membership in a protected class.”
Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1123 (9th Cir. 2013)
(internal quotation marks and citations omitted). The “intent” component of a
discrimination claim requires the prisoner to demonstrate that “the defendant acted
at least in part because of [the prisoner]’s protected status.” Serrano v. Francis,
345 F.3d 1071, 1082 (9th Cir. 2003).
Long fails to state an equal protection claim against COS Antonio, because
he does not allege that COS Antonio cancelled the Jum’ah services with an intent
to discriminate against Muslims. See Rushdan v. Gear, 744 F. App’x 510, 511 (9th
Cir. 2018) (“The district court properly dismissed [the plaintiff’s] equal protection
claim because [the plaintiff] failed to allege facts sufficient to show that any
defendant discriminated against him on the basis of his religion.”); Warren v.
Dupnik, 585 F. App’x 354, 355 (9th Cir. 2014) (“Dismissal of [prisoner’s] equal
protection claim was proper because [prisoner] failed to allege facts sufficient to
show that defendants intentionally discriminated against him based on his religion
by not offering Friday religious services.”); McKenzie v. Ellis, 541 F. App’x 784,
785 (9th Cir. 2013) (“The district court properly dismissed [the plaintiff’s] equal
protection claim because [the plaintiff] failed to allege that defendants intentionally
discriminated against him based on his religion[.]”).
Although Long alleges that Friday Jum’ah services were cancelled for one
month, while Christian services were able to continue during the same period, he
does not allege that the Jum’ah services were cancelled because they were Islamic.
Nor does Long allege that the Jum’ah services did not resume after this temporary
interruption. See Butler v. Cal. Dep’t of Corr., No. 17-cv-02399-PJH, 2018 WL
5312203, at *3 (N.D. Cal. Oct. 26, 2018) (“Although prisoners are entitled to equal
protection, it does not follow that a prison must duplicate every religious benefit it
provides so that all religions are treated exactly the same.”). Long also does not
allege that he was otherwise deprived of a reasonable opportunity to pursue his
faith. Long’s equal protection claim against COS Antonio in Count IV is
DISMISSED with leave to amend.
IV. LEAVE TO AMEND
The Complaint is DISMISSED IN PART with leave to amend, consistent
with the directions in this Order on or before Monday, July 12, 2021. Long may
not expand his claims beyond those already alleged herein or add new claims,
without explaining how those new claims relate to the claims already alleged.
Claims that do not properly relate to his Complaint are subject to dismissal.
If he elects to file an amended pleading, Long must comply with the Federal
Rules of Civil Procedure and the Local Rules for the District of Hawaii,
particularly LR10.4, which require an amended complaint to be complete itself,
without reference to any prior pleading. An amended complaint must be short and
plain, comply with Rule 8 of the Federal Rules of Civil Procedure, and be
submitted on the court’s prisoner civil rights complaint form. An amended
complaint will supersede the preceding complaint. See Ramirez v. County of San
Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015); LR10.4. Claims not realleged in
an amended complaint may be deemed voluntarily dismissed. See Lacey v.
Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012).
IN THE ALTERNATIVE:
In writing on or before Monday, July 12, 2021, Long may state that he elects
to proceed solely on his free exercise claim in Count IV against COS Antonio. On
receipt of such written notification, or if Long fails to submit a timely amended
complaint, the Court will order the Complaint, as limited by this Order, served on
COS Antonio without further notice.
(1) Long’s free exercise claim in Count IV against COS Antonio may
(2) Long’s remaining claims are DISMISSED with leave granted to amend.
(3) If he chooses, Long may file an amended complaint that addresses the
noted deficiencies in his claims on or before Monday, July 12, 2021.
(4) IN THE ALTERNATIVE to filing an amended complaint, Long may
notify the Court in writing on or before Monday, July 12, 2021 that he elects to
proceed solely with his free exercise claim in Count IV against COS Antonio.
If Long fails to file either a further amended complaint or a notice of
election by Monday, July 12, 2021, the Court will direct the Complaint to be
served, as limited by this Order.
(5) The Clerk is DIRECTED to send Long a prisoner civil rights complaint
form so that he may comply with the directions of this Order, if he elects to file an
IT IS SO ORDERED.
DATED: June 4, 2021 at Honolulu, Hawaii.
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