Dameon Daley v. United States of America et al
Filing
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MEMORANDUM AND ORDER DISMISSING THIRD AMENDED COMPLAINT WITH LEAVE TO AMEND by Magistrate Judge Suzanne H. Segal; If Plaintiff still wishes to pursue this action, he is granted thirty (30) days from the date of this Memorandum and Order within which to file a Fourth Amended Complaint, curing the defects in the ThirdAmended Complaint described above. See order for further details. (Attachments: # 1 Civil Rights Complaint, # 2 Notice of Dismissal) (jy)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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DAMEON DALEY,
)
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Plaintiff,
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v.
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UNITED STATES OF AMERICA, et al.,)
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Defendants.
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NO. CV 10-1203 SJO (SS)
MEMORANDUM AND ORDER DISMISSING
THIRD AMENDED COMPLAINT WITH
LEAVE TO AMEND
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Plaintiff, a federal prisoner proceeding pro se, filed his Third
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Amended
Complaint
alleging
violations
of
the
Religious
Freedom
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Restoration Act of 1993 pursuant to Bivens v. Six Unknown Agents, 403
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U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971) (the “Third Amended
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Complaint” or “TAC”) on August 11, 2011, against eleven named employees
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at the Federal Correctional Complex (“FCC”) Victorville.1
For the
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The Victorville Federal Correctional Complex (FCC) consists of
three main facilities: FCI Victorville Medium I, FCI Victorville Medium
II, and USP Victorville. The Court will refer to all three facilities
as the FCC.
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reasons stated below, the Third Amended Complaint is dismissed with
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leave to amend.2
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Congress has mandated that district courts perform an initial
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screening of complaints in civil actions where a prisoner seeks redress
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from a governmental entity or employee.
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Court may dismiss such a complaint, or any portions thereof, before
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service of process if it concludes that the complaint (1) is frivolous
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or malicious, (2) fails to state a claim upon which relief can be
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granted, or (3) seeks monetary relief from a defendant who is immune
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from such relief.
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F.3d 1122, 1126 & n.7 (9th Cir. 2000) (en banc).
28 U.S.C. § 1915A(a).
This
28 U.S.C. § 1915A(b); see also Lopez v. Smith, 203
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ALLEGATIONS OF THE COMPLAINT
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Plaintiff sues the following defendants: 1) J.L. Norwood, “Regional
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Director” and “Warden” at FCC; 2) Johnson, “former Assistant Food
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Service Administrator” at FCC; 3) S. Bentley, “Assistant Food Service
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Administrator” at FCC; 4) R. Cortez, a “Food Service Administrator”
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acting as a “law enforcement official” at FCC; 5) J. Hess, “Asst. Food
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Service Administrator” acting as a “law enforcement official” at FCC; 6)
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Fornsworth, “Cooks Supervisor” at FCC; 7) Cosby, “Cooks Supervisor” at
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FCC; 8) Aguilar, “Cooks Supervisor” at FCC; 9) Vega, “Cooks Supervisor”
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at FCC; 10) Navaro, “Cooks Supervisor” at FCC; and 11) Gibbs, “Associate
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Warden” at FCC.
(TAC at 3-6).
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Magistrate judges may dismiss a complaint with leave to amend
without approval of the district judge. McKeever v. Block, 932 F.2d
795, 798 (9th Cir. 1991).
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Plaintiff
asserts
that
all
the
individually-named
defendants
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(collectively, the “Defendants”) were deliberately indifferent to his
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religious dietary needs. (TAC at 8-13). Specifically, Plaintiff claims
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that the FCC Defendants served or authorized others to serve non-kosher
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foods to Plaintiff even though he is a “Certified Religious Diet”
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participant
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Amendment rights and his statutory rights under the RFRA [Religious
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Freedom Restoration Act].” (Id.). All FCC Defendants are sued in their
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individual capacity.
in
violation
of
“[P]laintiff’s
First
and
Eight
(sic)
(Id. at 3-6).
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DISCUSSION
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Under 28 U.S.C. § 1915A(b), the Court must dismiss Plaintiff’s
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Third Amended Complaint due to defects in pleading. Pro se litigants in
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civil
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complaints unless it is absolutely clear that the deficiencies cannot be
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cured by amendment. Lopez, 203 F.3d at 1127-29. Accordingly, the Court
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grants Plaintiff leave to amend, as indicated below.
rights
cases,
however,
must
be
given
leave
to
amend
their
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A.
To The Extent Plaintiff Is Suing Defendants For Their Decisions
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Regarding Plaintiff’s Administrative Grievance, Plaintiff Fails To
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State A Claim
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Plaintiff alleges claims against Defendants Hess, Johnson, Cortez,
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Gibbs, and Norwood for denying his Internal Resolution Attempt Forms
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(BP-8) and “Inmate to Staff Requests.”
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Plaintiff asserts that Food Service Administration Unit Manager, S.
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Merlack, issued a response “upholding the food service department’s CRD
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(TAC at 11).
Additionally,
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practice.”
(Id. at 12).
Plaintiff further claims that he filed an
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Administrative Remedy Request (BP-9), and “[D]efendant Norwood upheld
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the food service department’s CRD practice.”
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Plaintiff’s allegations liberally, it appears he is attempting to sue
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these defendants, in part, based upon his dissatisfaction with their
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resolution of various administrative grievances.
Construing
(Id.).
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The
Ninth
Circuit
has
held
that
“inmates
lack
a
separate
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constitutional entitlement to a specific prison grievance procedure.”
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Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (citing Mann v.
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Adams, 855 F.2d 639, 640 (9th Cir. 1988)); see also Geiger v. Jowers,
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404 F.3d 371, 374 (5th Cir. 2005) (holding that an inmate “does not have
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a federally protected liberty interest in having . . . grievances
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resolved to his satisfaction”); Antonelli v. Sheahan, 81 F.3d 1422, 1430
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(7th Cir. 1996) (“With respect to the Due Process Clause, any right to
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a grievance procedure is a procedural right, not a substantive one.
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Accordingly, a state’s inmate grievance procedures do not give rise to
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a liberty interest protected by the Due Process Clause.”).
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Consequently, Plaintiff has no due process right to have the
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officials
involved
in
his
administrative
appeal
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decision or follow specific procedures. Plaintiff’s allegations against
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Defendants arising out of their role in adjudicating his grievances fail
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to state a claim.
These claims must be dismissed.
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reach
a
specific
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B.
To The Extent Plaintiff Sues Gibbs Or Norwood Simply Because They
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Are The Warden And Assistant Warden, Plaintiff Fails To State A
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Claim
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According to Plaintiff, Gibbs and Norwood “deprived him from
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adhering to the mandated dietary laws and practice of his Rastafarian
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belief by knowingly and intentionally authorizing and or allowing the
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food service departments at [FCC] to violate the BOP’s CRD policy, and
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routinely serv[ing] Plaintiff non-kosher rotten, and pork contaminated
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foods.”
(TAC at 10).
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Plaintiff must establish that Defendants had personal involvement
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in the civil rights violation or that their action or inaction caused
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the harm suffered.
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(9th Cir. July 25, 2011) (finding supervisor deliberately indifferent
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because
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intervening when informed of numerous violations of inmate’s civil
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rights) id. at *14; see also Arnett v. Webster, ___ F.3d ___, 2011 WL
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4014343 at *12 (9th Cir. Sept. 12, 2011) (finding that supervisor must
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know about wrongful conduct and facilitate or condone it).
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liable, a defendant has to personally take some action against the
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plaintiff or “set in motion a series of acts by others . . . which he
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knew or reasonably should have known, would cause others to inflict the
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constitutional injury” on the plaintiff.
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946 F.2d 630, 646 (9th Cir. 1991) (internal quotations omitted).
there
was
Starr v. Baca, ___ F.3d ___, 2011 WL 2988827 at *2
no
“obvious
alternative
explanation”
for
not
To be held
Larez v. City of Los Angeles,
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Plaintiff fails to allege facts that show that the Warden and
Assistant
Warden
personally
participated
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in
the
constitutional
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violations. Instead, it appears that employees of the food service were
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more
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Accordingly, the Warden and Assistant Warden do not appear to be proper
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defendants in this action.
directly
involved,
based
upon
Plaintiff's
allegations.
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CONCLUSION
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If Plaintiff still wishes to pursue this action, he is granted
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thirty (30) days from the date of this Memorandum and Order within which
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to file a Fourth Amended Complaint, curing the defects in the Third
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Amended Complaint described above.
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any, shall be complete in itself and shall bear both the designation
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“Fourth Amended Complaint” and the case number assigned to this action.
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It shall not refer in any manner to the previously filed complaints.
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The caption of any Amended Complaint must identify all parties that
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Plaintiff is suing.
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consecutively numbered.
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to allege a short and concise statement of his claims.
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advised Plaintiff of defects in certain claims, he shall either correct
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those defects or, if they are not correctable, he shall not again allege
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defective claims.
The Fourth Amended Complaint, if
Each page of the Fourth Amended Complaint must be
Plaintiff is advised that he is only required
If the Court has
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In any amended complaint, Plaintiff should confine his allegations
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to those operative facts supporting each of his claims.
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advised that pursuant to Federal Rule of Civil Procedure 8(a), all that
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is required is a “short and plain statement of the claim showing that
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the pleader is entitled to relief.”
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some defendants in the Third Amended Complaint do not always clearly
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Plaintiff is
Further, the allegations against
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state a claim.
Additionally, individuals who have not engaged in any
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alleged misconduct in their personal capacity should not be named as
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defendants.
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Plaintiff is explicitly cautioned that failure to timely file a
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Fourth
Amended
Complaint,
or
failure
to
correct
the
deficiencies
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described above, will result in a recommendation that this action be
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dismissed for failure to prosecute pursuant to Federal Rule of Civil
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Procedure 41(b).
Plaintiff is further advised that, if he does not wish
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to pursue this action, he may voluntarily dismiss it by filing a notice
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of
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41(a)(1).
dismissal
in
accordance
with
Federal
Rule
of
Civil
Procedure
A sample notice is attached to this order as well.
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DATED:
September 28, 2011
/S/
SUZANNE H. SEGAL
UNITED STATES MAGISTRATE JUDGE
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THIS MEMORANDUM IS NOT INTENDED FOR PUBLICATION NOR IS IT INTENDED
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TO BE INCLUDED IN OR SUBMITTED TO ANY ONLINE SERVICE SUCH AS WESTLAW OR
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LEXIS.
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