-MEA Gause v. Vicklund et al, No. 2:2011cv00714 - Document 5 (D. Ariz. 2011)

Court Description: ORDER granting 2 Motion for Leave to Proceed in forma pauperis. Defendant Ryan is dismissed without prejudice. Defendant Vicklund must answer the Complaint. The Clerk of Court must send Plaintiff a service packet including the Complaint (Doc. 1), this Order, and both summons and request for waiver forms for Defendant Vicklund. Plaintiff must complete and return the service packet to the Clerk of Court within 21 days of the date of filing of this Order. This matter is referred to Magistrate Judge Mark E. Aspey for all pretrial proceedings as authorized under 28 U.S.C. § 636(b)(1). Signed by Judge Robert C Broomfield on 4/14/11.(DMT)

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-MEA Gause v. Vicklund et al 1 Doc. 5 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Richard LeGrand Gause, Plaintiff, 10 11 vs. 12 J. Vicklund, et al., 13 Defendants. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV 11-714-PHX-RCB (MEA) ORDER 15 16 Plaintiff Richard LeGrand Gause, who is confined in the Arizona State Prison 17 Complex-Eyman in Florence, Arizona, has filed a pro se civil rights Complaint pursuant to 18 42 U.S.C. § 1983 (Doc. 1) and an Application to Proceed In Forma Pauperis (Doc. 2). The 19 Court will order Defendant Vicklund to answer the Complaint and will dismiss Defendant 20 Ryan without prejudice. 21 I. Application to Proceed In Forma Pauperis and Filing Fee 22 Plaintiff’s Application to Proceed In Forma Pauperis will be granted. 28 U.S.C. 23 § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. § 1915(b)(1). 24 The Court will assess an initial partial filing fee of $16.06. The remainder of the fee will be 25 collected monthly in payments of 20% of the previous month’s income each time the amount 26 in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2). The Court will enter a separate 27 Order requiring the appropriate government agency to collect and forward the fees according 28 to the statutory formula. TERMPSREF Dockets.Justia.com 1 II. Statutory Screening of Prisoner Complaints 2 The Court is required to screen complaints brought by prisoners seeking relief against 3 a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. 4 § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised 5 claims that are legally frivolous or malicious, that fail to state a claim upon which relief may 6 be granted, or that seek monetary relief from a defendant who is immune from such relief. 7 28 U.S.C. § 1915A(b)(1), (2). 8 A pleading must contain a “short and plain statement of the claim showing that the 9 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does not 10 demand detailed factual allegations, “it demands more than an unadorned, the-defendant- 11 unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). 12 “Threadbare recitals of the elements of a cause of action, supported by mere conclusory 13 statements, do not suffice.” Id. 14 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 15 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 16 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 17 that allows the court to draw the reasonable inference that the defendant is liable for the 18 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 19 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 20 experience and common sense.” Id. at 1950. Thus, although a plaintiff’s specific factual 21 allegations may be consistent with a constitutional claim, a court must assess whether there 22 are other “more likely explanations” for a defendant’s conduct. Id. at 1951. 23 24 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th 25 Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent standards 26 than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 U.S. 89, 27 94 (2007) (per curiam)). 28 TERMPSREF But as the United States Court of Appeals for the Ninth Circuit has instructed, courts .... -2- 1 III. 2 3 Complaint In his one-count Complaint, Plaintiff sues Defendants Arizona Department of Corrections (ADOC) Senior Chaplain J. Vicklund and ADOC Director Chuck Ryan. 4 Plaintiff alleges a violation of his First Amendment right to the free exercise of his 5 religion. He claims that he is recognized by the ADOC as being an Orthodox Jew, but 6 Defendant Vicklund denied Plaintiff’s request to follow the recognized dietary observances 7 of his religion—a kosher diet. Plaintiff contends that providing him with a kosher diet does 8 not burden the ADOC because the ADOC already provides a kosher diet to recognized 9 “Jewish prefer[e]nce” inmates. 10 11 In his Request for Relief, Plaintiff seeks a kosher diet and monetary damages. IV. Claims for Which an Answer Will be Required 12 Liberally construed, Plaintiff has stated a First Amendment free-exercise claim against 13 Defendant Vicklund. The Court will require Defendant Vicklund to answer the Complaint. 14 V. Failure to State a Claim 15 To the extent Plaintiff’s claim against Defendant Ryan is predicated on Defendant 16 Ryan’s denial of Plaintiff’s grievance regarding Plaintiff’s request for a kosher diet, this is 17 insufficient to state a claim against Defendant Ryan. See Shehee v. Luttrell, 199 F.3d 295, 18 300 (6th Cir. 1999) (defendants did not commit constitutional violations when they denied 19 administrative grievances, failed to intervene on plaintiff’s behalf, and failed to remedy 20 allegedly unconstitutional behavior). 21 To the extent Plaintiff’s claim is predicated on Defendant Ryan’s position as the 22 Director of the ADOC, this too is insufficient to state a claim against Defendant Ryan. There 23 is no respondeat superior liability under § 1983, and therefore, a defendant’s position as the 24 supervisor of persons who allegedly violated Plaintiff’s constitutional rights does not impose 25 liability. Monell v. New York City Department of Social Services, 436 U.S. 658, 691-92 26 (1978); Hamilton v. Endell, 981 F.2d 1062, 1067 (9th Cir. 1992); Taylor v. List, 880 F.2d 27 1040, 1045 (9th Cir. 1989). “Because vicarious liability is inapplicable to Bivens and § 1983 28 TERMPSREF -3- 1 suits, a plaintiff must plead that each Government-official defendant, through the official’s 2 own individual actions, has violated the Constitution.” Iqbal, 129 S. Ct. at 1948. Therefore, the Court will dismiss without prejudice Defendant Ryan. 3 4 VI. Warnings 5 A. Release 6 Plaintiff must pay the unpaid balance of the filing fee within 120 days of his release. 7 Also, within 30 days of his release, he must either (1) notify the Court that he intends to pay 8 the balance or (2) show good cause, in writing, why he cannot. Failure to comply may result 9 in dismissal of this action. 10 B. Address Changes 11 Plaintiff must file and serve a notice of a change of address in accordance with Rule 12 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 13 relief with a notice of change of address. Failure to comply may result in dismissal of this 14 action. 15 C. Copies 16 Plaintiff must serve Defendant, or counsel if an appearance has been entered, a copy 17 of every document that he files. Fed. R. Civ. P. 5(a). Each filing must include a certificate 18 stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also, Plaintiff must submit 19 an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure to comply 20 may result in the filing being stricken without further notice to Plaintiff. 21 D. 22 If Plaintiff fails to timely comply with every provision of this Order, including these 23 warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 24 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to 25 comply with any order of the Court). 26 IT IS ORDERED: 27 (1) Possible Dismissal Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 2) is granted. 28 TERMPSREF -4- 1 2 (2) As required by the accompanying Order to the appropriate government agency, Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing fee of $16.06. 3 (3) Defendant Ryan is dismissed without prejudice. 4 (4) Defendant Vicklund must answer the Complaint. 5 (5) The Clerk of Court must send Plaintiff a service packet including the 6 Complaint (Doc. 1), this Order, and both summons and request for waiver forms for 7 Defendant Vicklund. 8 9 10 11 (6) Plaintiff must complete1 and return the service packet to the Clerk of Court within 21 days of the date of filing of this Order. The United States Marshal will not provide service of process if Plaintiff fails to comply with this Order. (7) If Plaintiff does not either obtain a waiver of service of the summons or 12 complete service of the Summons and Complaint on Defendant within 120 days of the filing 13 of the Complaint or within 60 days of the filing of this Order, whichever is later, the action 14 may be dismissed. Fed. R. Civ. P. 4(m); LRCiv 16.2(b)(2)(B)(I). 15 16 17 (8) The United States Marshal must retain the Summons, a copy of the Complaint, and a copy of this Order for future use. (9) The United States Marshal must notify Defendant of the commencement of this 18 action and request waiver of service of the summons pursuant to Rule 4(d) of the Federal 19 Rules of Civil Procedure. The notice to Defendant must include a copy of this Order. The 20 Marshal must immediately file signed waivers of service of the summons. If a waiver 21 of service of summons is returned as undeliverable or is not returned by Defendant 22 within 30 days from the date the request for waiver was sent by the Marshal, the 23 Marshal must: 24 25 26 27 28 TERMPSREF 1 If a Defendant is an officer or employee of the Arizona Department of Corrections, Plaintiff must list the address of the specific institution where the officer or employee works. Service cannot be effected on an officer or employee at the Central Office of the Arizona Department of Corrections unless the officer or employee works there. -5- 1 2 (a) personally serve copies of the Summons, Complaint, and this Order upon Defendant pursuant to Rule 4(e)(2) of the Federal Rules of Civil Procedure; and 3 (b) within 10 days after personal service is effected, file the return of service 4 for Defendant, along with evidence of the attempt to secure a waiver of service of the 5 summons and of the costs subsequently incurred in effecting service upon Defendant. 6 The costs of service must be enumerated on the return of service form (USM-285) and 7 must include the costs incurred by the Marshal for photocopying additional copies of 8 the Summons, Complaint, or this Order and for preparing new process receipt and 9 return forms (USM-285), if required. Costs of service will be taxed against the 10 personally served Defendant pursuant to Rule 4(d)(2) of the Federal Rules of Civil 11 Procedure, unless otherwise ordered by the Court. 12 (10) 13 14 If Defendant agrees to waive service of the Summons and Complaint, he must return the signed waiver forms to the United States Marshal, not the Plaintiff. (11) Defendant Vicklund must answer the Complaint or otherwise respond by 15 appropriate motion within the time provided by the applicable provisions of Rule 12(a) of 16 the Federal Rules of Civil Procedure. 17 (12) This matter is referred to Magistrate Judge Mark E. Aspey pursuant to Rules 18 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as authorized 19 under 28 U.S.C. § 636(b)(1). 20 DATED this 14th day of April, 2011. 21 22 23 24 25 26 27 28 TERMPSREF -6-

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