White v. Baker et al

Filing 14

ORDER deferring decision on ECF No. 5 IFP Application; permitting Counts I-IV, X, and XIII to proceed; dismissing Counts V-IX, XI, and XII. Signed by Judge Robert C. Jones on 8/19/2016. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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______________________________________
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MATTHEW SCOTT WHITE,
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Plaintiff,
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vs.
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RENE BAKER et al.,
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Defendants.
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3:15-cv-00262-RCJ-VPC
ORDER

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This is a prisoner civil rights complaint under 42 U.S.C. § 1983. Plaintiff Matthew White

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is a prisoner in the custody of the Nevada Department of Corrections at Ely State Prison in Ely,

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Nevada. He has sued several Defendants in this Court for various constitutional and statutory

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violations. The Court dismissed the Complaint under 28 U.S.C. § 1915A in part, with leave to

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amend. The Court now screens the First Amended Complaint (“FAC”).

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I.

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LEGAL STANDARDS
Federal courts must conduct a preliminary screening in any case in which a prisoner

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seeks redress from a governmental entity or officer or employee of a governmental entity. See 28

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U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any

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claims that are frivolous, malicious, fail to state a claim upon which relief may be granted, or

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seek monetary relief from a defendant who is immune from such relief. See id. § 1915A(b)(1)–

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(2). Dismissal of a complaint for failure to state a claim upon which relief can be granted is

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provided for in Federal Rule 12(b)(6), and the court applies the same standard under § 1915A.

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Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012). When a court dismisses a complaint

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upon screening, the plaintiff should be given leave to amend the complaint with directions as to

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curing its deficiencies, unless it is clear from the face of the complaint that the deficiencies could

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not be cured by amendment. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

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Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the

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claim showing that the pleader is entitled to relief” in order to “give the defendant fair notice of

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what the . . . claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47

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(1957). Federal Rule of Civil Procedure 12(b)(6) mandates that a court dismiss a cause of action

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that fails to state a claim upon which relief can be granted. A motion to dismiss under Rule

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12(b)(6) tests the complaint’s sufficiency. See N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578,

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581 (9th Cir. 1983). When considering a motion to dismiss under Rule 12(b)(6) for failure to

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state a claim, dismissal is appropriate only when the complaint does not give the defendant fair

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notice of a legally cognizable claim and the grounds on which it rests. See Bell Atl. Corp. v.

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Twombly, 550 U.S. 544, 555 (2007). In considering whether the complaint is sufficient to state a

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claim, the court will take all material allegations as true and construe them in the light most

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favorable to the plaintiff. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). The

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court, however, is not required to accept as true allegations that are merely conclusory,

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unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden State

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Warriors, 266 F.3d 979, 988 (9th Cir. 2001).

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A formulaic recitation of a cause of action with conclusory allegations is not sufficient; a

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plaintiff must plead facts pertaining to his own case making a violation “plausible,” not just

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“possible.” Ashcroft v. Iqbal, 556 U.S. 662, 677–79 (2009) (citing Twombly, 550 U.S. at 556)

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(“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to

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draw the reasonable inference that the defendant is liable for the misconduct alleged.”). That is,

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under the modern interpretation of Rule 8(a), a plaintiff must not only specify or imply a

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cognizable legal theory (Conley review), but also must allege the facts of his case so that the

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court can determine whether the plaintiff has any basis for relief under the legal theory he has

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specified or implied, assuming the facts are as he alleges (Twombly-Iqbal review). Put

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differently, Conley only required a plaintiff to identify a major premise (a legal theory) and

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conclude liability therefrom, but Twombly-Iqbal requires a plaintiff additionally to allege minor

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premises (facts of the plaintiff’s case) such that the syllogism showing liability is logically

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complete and that liability necessarily, not only possibly, follows (assuming the allegations are

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true).
“Generally, a district court may not consider any material beyond the pleadings in ruling

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on a Rule 12(b)(6) motion. However, material which is properly submitted as part of the

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complaint may be considered on a motion to dismiss.” Hal Roach Studios, Inc. v. Richard Feiner

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& Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citation omitted). Similarly, “documents

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whose contents are alleged in a complaint and whose authenticity no party questions, but which

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are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6)

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motion to dismiss” without converting the motion to dismiss into a motion for summary

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judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). Moreover, under Federal Rule of

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Evidence 201, a court may take judicial notice of “matters of public record.” Mack v. S. Bay Beer

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Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if the district court considers

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materials outside of the pleadings, the motion to dismiss is converted into a motion for summary

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judgment. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001).

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Finally, all or part of a complaint filed by a prisoner may be dismissed sua sponte if the

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prisoner’s claims lack an arguable basis in law or in fact. This includes claims based on legal

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conclusions that are untenable, e.g., claims against defendants who are immune from suit or

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claims of infringement of a legal interest which clearly does not exist, as well as claims based on

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fanciful factual allegations, e.g., fantastic or delusional scenarios. See Neitzke v. Williams, 490

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U.S. 319, 327–28 (1989); see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991).

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II.

ANALYSIS

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A.

Counts I and II

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Plaintiff previously alleged Defendants violated his rights under the Free Exercise Clause

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of the Constitution and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”)

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by denying his requests for a diet consistent with his religious beliefs. The Court dismissed the

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claims, with leave to amend, noting that Plaintiff must allege the specific accommodations he

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requested, how Defendants denied his request, and how the denial constituted a substantial

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burden on his religious exercise. Without such allegations, the Court could not find that Plaintiff

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had sufficiently alleged that the denial was not within the scope of prison officials’ discretion for

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purposes of the First Amendment, see Thornburgh v. Abbott, 490 U.S. 401, 414–18 (1989);

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Turner v. Safley, 482 U.S. 78 (1987), or that it was a substantial burden on his religious exercise

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and not the least restrictive means of furthering a compelling state interest under RLUIPA, see

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42 U.S.C. § 2000cc-1(a)(1)–(2).

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Plaintiff now alleges that as a Heraklean, he requires a “‘sacred Heraklean diet’

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(consisting of high protein natural and organic cuisine only) (natural and organic are defined as

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the same).” He alleges that when he submitted requests for such a diet, Byrne and Sandoval

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verbally denied his requests because his religion was not recognized, but that they would look

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into the request. Byrne, Sandoval, and Mallinger failed to respond to subsequent written

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requests. Drain and Baker responded to separate requests in writing that Plaintiff’s faith was not

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recognized. The Court will not dismiss either the Free Exercise claim or the RLUIPA claim at

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this time. The Court cannot say that the applicable least restrictive means test or even the more

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lenient Turner test is satisfied in the context of a religious diet claim without any evidence from

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Defendants. See, e.g., Shakur v. Shapiro, 514 F.3d 878, 885–891 (9th Cir. 2008).

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B.

Counts III and IV

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Plaintiff previously alleged Defendants violated his rights under the Free Exercise Clause

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and RLUIPA by denying him possession of religious artifacts. The Court dismissed the claims,

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with leave to amend noting that Plaintiff must allege what religious artifacts he requested, how

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Defendants denied his request, and how the denial constituted a substantial burden on his

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religious exercise.

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Plaintiff now alleges that the artifacts consist of two metallic rings and one necklace, and

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that the requests for these items were denied because his religion was not recognized. The Court

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will not dismiss either the Free Exercise claim or the RLUIPA claim at this time. These items do

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not on their face appear to implicate significant safety concerns, and the allegation is that they

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were denied because Plaintiff’s religion was not recognized.

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C.

Counts V and VI

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Plaintiff previously alleged Defendants violated his rights under the Free Exercise Clause

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and RLUIPA by denying him the right to participate in group worship. The Court dismissed the

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claims, with leave to amend, noting that Plaintiff must allege what kind of group worship he

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requested, how Defendants denied his request, and how the denial constituted a substantial

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burden on his religious exercise. Plaintiff has failed to make the required allegations in the FAC.

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The Court therefore dismisses these claims, without leave to amend.

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D.

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Plaintiff previously alleged Defendants violated his rights under the Free Exercise Clause

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Counts VII and VIII

and RLUIPA by failing to recognize his religion. The Court dismissed the claims, with leave to

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amend, noting that Plaintiff must allege the nature of his request to have his religion

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“recognized,” how Defendants denied his request, and how the denial constituted a substantial

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burden on his religious exercise.

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Plaintiff now alleges that he submitted required forms under NDOC Administrative

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Regulation 810 to have his religion recognized, but that his request was denied. The Court

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dismisses these claims, without leave to amend. There is no constitutional or statutory right to

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have one’s religion recognized. Indeed, a state may not recognize particular religions or

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condition religious rights on state recognition. Plaintiff’s particular grievances as to diet,

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artifacts, etc., have been appropriately made elsewhere. The Free Exercise Clause and RLUIPA

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govern Plaintiff’s substantive rights.

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E.

Count IX

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Plaintiff alleges that Matusek, Jones, and Kirchen retaliated against him by transferring

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him from the general population to “death row” because Plaintiff intended to file a grievance.

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He previously alleged Defendants moved him from the general population to “death row” on

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September 14, 2014 because Plaintiff intended to file a grievance. Specifically, Matousek told

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Plaintiff to control his cellmate when the cellmate told Matousek that he could not control his

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own anxiety and could not be housed with another inmate. Plaintiff told Matousek that it was

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not his job to police other inmates and requested an emergency grievance form. Matousek told

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Plaintiff that he could not have a grievance form and that if he wanted to file a grievance he

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could do it from “the hole, because that’s where you[‘]r[e] going.” Jones and Kirchen then had

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Plaintiff moved to “death row,” which is part of administrative segregation.

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Prisoners have a First Amendment right to file prison grievances and to pursue civil

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rights litigation in the courts. Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2004). “[P]urely

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retaliatory actions taken against a prisoner for having exercised those rights . . . violate the

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Constitution quite apart from any underlying misconduct they are designed to shield.” Id. To

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state a viable First Amendment retaliation claim in the prison context, a plaintiff must allege:

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“(1) . . . that a state actor took some adverse action against an inmate (2) because of (3) that

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prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First

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Amendment rights [or resulted in separate harm], and (5) the action did not reasonably advance a

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legitimate correctional goal.” Id. at 567–68 & n.11 (footnote omitted).

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The Court previously dismissed the claim, with leave to amend. Plaintiff did not allege

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either that the action chilled his filing of a grievance or that it resulted in separate harm. Housing

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in segregation does not constitute constitutionally cognizable harm unless the conditions are

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sufficient to constitute an “atypical and significant hardship on the inmate in relation to the

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ordinary incidents of prison life.” See Hernandez v. Cox, 989 F. Supp. 2d 1062, 1068–69 (D.

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Nev. 2013) (Jones, J.) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)). Plaintiff had made

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such allegations. The Court noted that Plaintiff must allege either that his speech was chilled or

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the conditions and length of time spent on “death row.” Plaintiff has not cured these defects, and

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the Court dismisses this claim, without leave to amend.

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F.

Counts X and XIII

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Plaintiff alleges Defendants violated his right to petition the government for redress of

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grievances under the First Amendment by retaliating against him for filing grievances. He

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alleges that when he was moved to “death row,” Matousek threw out Plaintiff’s personal

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property (eight photo albums, drawings, office supplies, CDs, mail such as letters and greeting

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cards, and legal papers) because of Plaintiff’s stated intention to file a grievance against

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Matousek. Kerner also held Plaintiff’s remaining property in the property room from Plainitff

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improperly. Even assuming Plaintiff’s rights were not actually chilled, prisoners have a

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protected interest in their personal property. Hansen v. May, 502 F.2d 728, 730 (9th Cir. 1974).

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The Court previously permitted these claims to proceed.

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G.

Counts XI and XII

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Plaintiff previously alleged Defendants were deliberately indifferent to his health and

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safety in violation of the Eighth Amendment when they deprived him of a mattress for seven

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days while housed on “death row” (during which time he slept on a cold, metal bed) and

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permitted him only a tank top shirt, one pair of boxer shorts, one pair of socks, and one pair of

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shoes. They also denied him clean clothing, a towel, and a laundry bag. The Court dismissed

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the claim, with leave to amend. Plaintiff now brings the claims as First Amendment retaliation

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claims. The claims fail, however, for the same reason Count IX fails. The conditions described

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are not austere enough to implicate a liberty interest in a convicted inmate, and there is no

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allegation that Plaintiff’s petitions for redress were chilled.

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CONCLUSION

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IT IS HEREBY ORDERED that a decision on the Application to Proceed in Forma

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Pauperis (ECF No. 5) is DEFERRED.

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IT IS FURTHER ORDERED that Counts I–IV, X, and XIII may PROCEED.

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IT IS FURTHER ORDERED that Counts V–IX, XI, and XII are DISMISSED.

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Dated this 9th day ofof August, 2016.
19th day August, 2016.

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_____________________________________
ROBERT C. JONES
United States District Judge

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