(PC) Rivera v. Davey et al, No. 1:2016cv01817 - Document 19 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS recommending that this action be Dismissed, with prejudice, for the failure to state a claim upon which relief may be granted re 1 Prisoner Civil Rights Complaint filed by Ricky Rivera ; referred to Judge Ishii,signed by Magistrate Judge Barbara A. McAuliffe on 03/21/18. Objections to F&R due 14-Day Deadline (Martin-Gill, S)
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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 12 RICKY RIVERA, 13 Plaintiff, 14 15 Case No.: 1:16-cv-01817-AWI-BAM (PC) v. DAVE DAVEY, et al., (ECF No. 1) 16 Defendants. FOURTEEN (14) DAY DEADLINE 17 18 19 20 FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION FOR THE FAILURE TO STATE A COGNIZABLE CLAIM FOR RELIEF I. Introduction Plaintiff Ricky Rivera is a state prisoner proceeding pro se and in forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. 21 On November 22, 2017, the undersigned screened Plaintiff’s complaint, found that he had 22 failed to state any cognizable claim, and granted him leave to amend within thirty (30) days. 23 (ECF No. 14.) Plaintiff failed to file any amended complaint or otherwise respond within the time 24 permitted. 25 On January 11, 2018, the undersigned issued findings and recommendations 26 recommending dismissal of this action, with objections due within fourteen (14) days. (ECF No. 27 15.) On January 12, 2018, Plaintiff filed a motion seeking additional time to file an amended 28 complaint on the basis of holiday law library closures. (ECF No. 16.) 1 On January 16, 2018, the undersigned vacated the prior findings and recommendations, 2 and granted Plaintiff’s request for an extension of time to file an amended complaint. (ECF No. 3 17.) Plaintiff was granted an additional thirty days to file an amended complaint from the date of 4 that order. (ECF No. 16.) 5 More than thirty days have passed since Plaintiff’s extension of time was granted, but no 6 amended complaint has been filed. However, on February 9, 2018, Plaintiff filed objections to the 7 January 11, 2018 Findings and Recommendations. In the objections, Plaintiff asserts that his First 8 Amendment right to freely practice his religion was violated, that the Defendants’ actions were 9 committed under the color of law, and that he has standing to sue. Plaintiff also makes some 10 arguments regarding improper prison regulations, citing Turner v. Safely, 482 U.S. 78 (1987). 11 Although not entirely clear, it appears Plaintiff does not intend to amend his complaint, and 12 instead asserts that he has sufficiently stated a claim for relief. 13 The Court has considered Plaintiff’s objections, but nevertheless finds that his complaint 14 fails to state a cognizable claim for relief. Accordingly, the Court recommends dismissal of 15 Plaintiff’s complaint, for the reasons explained below. 16 I. Failure to State a Claim 17 A. Screening Requirement 18 The Court is required to screen complaints brought by prisoners seeking relief against a 19 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. § 20 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous or 21 malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 22 relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28 U.S.C. 23 § 1915(e)(2)(B)(ii). 24 A complaint must contain “a short and plain statement of the claim showing that the 25 pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 26 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 27 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 28 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964-65 2 1 (2007)). While a plaintiff’s allegations are taken as true, courts “are not required to indulge 2 unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) 3 (internal quotation marks and citation omitted). 4 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings 5 liberally construed and to have any doubt resolved in their favor. Hebbe v. Pliler, 627 F.3d 338, 6 342 (9th Cir. 2010) (citations omitted). To survive screening, Plaintiff’s claims must be facially 7 plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each 8 named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949 9 (quotation marks omitted); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 10 2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere 11 consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 12 129 S. Ct. at 1949 (quotation marks omitted); Moss, 572 F.3d at 969. 13 B. Summary of Complaint Allegations 14 Plaintiff is currently housed at California State Prison – Corcoran (“Corcoran”) where the 15 events in the complaint are alleged to have occurred. Plaintiff names the following defendants: 16 (1) Warden Dave Davey; (2) Community Resource Manager M. Robicheaux; (3) Christian 17 Chaplain Ed Crain; and (4) S.M.V. Chapoleun, Catholic Priests. Plaintiff contends that defendants 18 violated his First Amendment rights to practice the Jewish obligatory prayers and holiday events 19 during 2014 through 2016. 20 Plaintiff alleges that he arrived at Corcoran on June 23, 2014, from Wasco State Prison 21 (“WSP”). While at WSP, Plaintiff was able to practice all requested religious prayers and rituals 22 under the Jewish faith. Upon Plaintiff’s arrival at Corcoran, however, the requested prayers and 23 holiday events have been repeatedly denied by Defendants Robicheaux, Crain, Chapoleun and 24 Davey since July 2014. 25 Plaintiff contends that he followed all instructional procedures and guidelines after his 26 arrival by submitted numerous CDCR-22 Inmate Request Forms to Facility 3A staff members, 27 including Defendants Davey, Robicheaux, Crain and Chapoleun to provide him with the facility 28 chapel to practice obligatory Jewish prayers and holy day events. At the time of his requests in 3 1 2014 and 2015, all other inmates of the Christian, Islamic, Catholic, Buddhist, and Kemectic 2 Services were afforded their obligatory religious services at the facility chapel. 3 Plaintiff made personal requests to Defendants Crain and Chapoleun that went without 4 accommodations and resulted in intentional denial of religious services for the Jewish faith. 5 Plaintiff alleges that Defendants Crain and Chapoleun intentionally violated his First Amendment 6 rights to practice and observe Jewish prayers and holy day events by repeatedly denying services. 7 On August 17 and 24, 2015, and November 21, 2015, Plaintiff sent several CDCR-22 8 inmate request forms to Defendant Robicheaux (Defendants Crain and Chapoleun’s supervisor) 9 requesting her immediate assistance to rectify the continued denial and deprivation of Plaintiff’s 10 requested obligatory Jewish prayers and holy day events that were occurring at the facility. 11 Defendant Robicheaux did not respond to Plaintiff’s CDCR-22 requests. Plaintiff contends that 12 her failure to rectify the violations committed by Defendants Crain and Chapoleun violated 13 Plaintiff’s First Amendment rights. 14 On November 15, 2015, Plaintiff submitted a CDCR-602 grievance to Defendant Davey, 15 objecting to Defendants Crain, Chapoleun and Robicheaux’s continued failure to comply with 16 policies to afford the Plaintiff his equal opportunity to perform obligatory Jewish prayer services 17 and holy day events that were afformed to all other religious inmates for Catholic, Christian, 18 Islamic, Buddhist and Kemectic services. Plaintiff alleges that Defendant Davey’s failure to 19 timely intervene and rectify the violations committed by Defendants Crain, Robicheaux and 20 Chapoleun violated Plaintiff’s First Amendment rights to practice the obligatory Jewish prayers 21 and holy day events in Facility 3A in 2014 and 2015. Plaintiff further alleges that Defendants 22 Davey, Robicheaux, Crain and Chapoleun intentionally violated Plaintiff’s Fourteenth 23 Amendment right to Equal Protection under the law by failing to provide Plaintiff with equal 24 access to the 3A Facility Chapel religious services that were afforded to all other inmates of 25 Christian, Islamic, Catholic, Buddhist and Kemectic faiths from 2014 through 2016. 26 As relief, Plaintiff seeks compensatory and punitive damages, along with declaratory and 27 injunctive relief. 28 /// 4 1 2 C. Discussion 1. Federal Rule of Civil Procedure 8 3 Pursuant to Federal Rule of Civil Procedure 8, a complaint must contain “a short and plain 4 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). As noted 5 above, detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a 6 cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 7 (citation omitted). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a 8 claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 9 555). While factual allegations are accepted as true, legal conclusions are not. Id.; see also 10 Twombly, 550 U.S. at 556–557; Moss, 572 F.3d at 969. 11 Although Plaintiff’s complaint is short, it is not a plain statement of his claims 12 demonstrating that he is entitled to relief. Plaintiff’s complaint fails to include sufficient factual 13 allegations to state a claim, including his religious affiliation or beliefs, what he requested by way 14 of religious services and holy day events, when he requested it and why his requests were denied. 15 Absent these basic facts, the Court cannot determine whether Plaintiff has stated a plausible claim 16 on the face of his complaint. 17 2. Supervisory Liability 18 Plaintiff seeks to hold Defendant Davey liable for the failure of his subordinates to ensure 19 that Plaintiff’s religious services and holy day needs were properly met. To the extent Plaintiff 20 seeks to bring suit against Warden Davey based on his role as supervisor, Plaintiff may not do so. 21 Supervisory personnel may not be held liable under section 1983 for the actions of 22 subordinate employees based on respondeat superior or vicarious liability. Crowley v. Bannister, 23 734 F.3d 967, 977 (9th Cir. 2013); accord Lemire v. California Dep’t of Corr. and Rehab., 726 24 F.3d 1062, 1074–75 (9th Cir. 2013); Lacey v. Maricopa Cty., 693 F.3d 896, 915–16 (9th Cir. 25 2012) (en banc). “A supervisor may be liable only if (1) he or she is personally involved in the 26 constitutional deprivation, or (2) there is a sufficient causal connection between the supervisor’s 27 wrongful conduct and the constitutional violation.” Crowley, 734 F.3d at 977 (internal quotation 28 marks omitted); accord Lemire, 726 F.3d at 1074–75; Lacey, 693 F.3d at 915–16. “Under the 5 1 latter theory, supervisory liability exists even without overt personal participation in the offensive 2 act if supervisory officials implement a policy so deficient that the policy itself is a repudiation of 3 constitutional rights and is the moving force of a constitutional violation.” Crowley, 734 F.3d at 4 977 (citing Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)) (internal quotation marks 5 omitted). 6 Although Plaintiff alleges that he submitted a CDCR-602 grievance to Warden Davey, 7 there is no indication in the complaint that Warden Davey received the grievance or that the 8 grievance was not processed through the ordinary channels of review. There also is no indication 9 that Defendant Davey otherwise knew of Plaintiff’s requests for religious services or holy day 10 events and that those requests allegedly were denied. To state a claim against any supervisory 11 defendant, Plaintiff must allege facts showing that the defendant participated in or directed 12 conduct that violated Plaintiff’s constitutionally protected rights. Plaintiff has not alleged such 13 facts in his complaint. 14 3. First Amendment – Free Exercise of Religion 15 “Inmates ... retain protections afforded by the First Amendment, including its directive 16 that no law shall prohibit the free exercise of religion.” O’Lone v. Estate of Shabazz, 482 U.S. 17 342, 348, 107 S. Ct. 2400, 96 L. Ed. 2d 282 (1987) (internal quotations and citations omitted). 18 However, “a prisoner’s right to free exercise of religion ‘is necessarily limited by the fact of 19 incarceration.’” Jones v. Williams, 791 F.3d 1023, 1032 (9th Cir. 2015) (citation omitted). “‘To 20 ensure that courts afford appropriate deference to prison officials,’ the Supreme Court has 21 directed that alleged infringements of prisoners’ free exercise rights be ‘judged under a 22 ‘reasonableness’ test less restrictive than that ordinarily applied to alleged infringements of 23 fundamental constitutional rights.’” Id. (quoting O’Lone, 482 U.S. at 349, 107 S. Ct. 2400.) “The 24 challenged conduct ‘is valid if it is reasonably related to legitimate penological interests.’” Id. 25 (quoting O’Lone, 482 U.S. at 349, 107 S. Ct. 2400). “A person asserting a free exercise claim 26 must show that the government action in question substantially burdens the person’s practice of 27 [his] religion.” Jones, 791 F.3d at 1031; Shakur v. Schriro, 514 F.3d 878, 884–85 (9th Cir. 2008). 28 “[T]he availability of alternative means of practicing religion is a relevant consideration” for 6 1 claims under the First Amendment. Holt v. Hobbs, –––U.S. ––––, 135 S. Ct. 853, 862 (2015). 2 Plaintiff’s conclusory allegations fail to state a cognizable claim. Plaintiff fails to set forth 3 facts alleging his sincerely held religious beliefs. He also fails to set forth facts alleging that any 4 denial substantially burdened the practice of his religion, that any denial was not reasonably 5 related to legitimate penological interests or that he did not have alternative means of practicing 6 his religion. 4. Fourteenth Amendment – Equal Protection 7 8 The Equal Protection Clause requires that all persons who are similarly situated should be 9 treated alike. Lee v. City of Los Angeles, 250 F.3d 668, 686 (2001); City of Cleburne v. Cleburne 10 Living Center, 473 U.S. 432, 439, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985). “The Equal 11 Protection Clause entitles each prisoner to ‘a reasonable opportunity of pursuing his faith 12 comparable to the opportunity afforded fellow prisoners who adhere to conventional religious 13 precepts.’ ” Shakur, 514 F.3d at 891 (quoting Cruz v. Beto, 405 U.S. 319, 321-22 (1972) (per 14 curiam)). 15 To state a claim, Plaintiff must allege facts sufficient to support a claim that prison 16 officials intentionally discriminated against him on the basis of his religion by failing to provide 17 him a reasonable opportunity to pursue his faith compared to other similarly situated religious 18 groups. Cruz, 405 U.S. at 321-22; Shakur, 514 F.3d at 891. 19 Here, Plaintiff alleges that other religions have not been denied the same access to 20 religious services and holy day events. However, Plaintiff's assertions regarding other religions 21 are conclusory at best and lack supporting factual allegations. Plaintiff also fails to allege 22 sufficient facts to demonstrate that he was denied the same opportunities because of his religious 23 beliefs. Plaintiff therefore fails to state an Equal Protection Clause claim. 24 III. 25 26 Conclusion and Recommendation For the reasons explained above, the Court HEREBY RECOMMENDS that this action be dismissed, with prejudice, for the failure to state a claim upon which relief may be granted. 27 These Findings and Recommendation will be submitted to the United States District Judge 28 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 7 1 (14) days after being served with these Findings and Recommendation, Plaintiff may file written 2 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 3 Findings and Recommendation.” Plaintiff is advised that failure to file objections within the 4 specified time may result in the waiver of the “right to challenge the magistrate’s factual 5 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 6 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 7 8 9 IT IS SO ORDERED. Dated: /s/ Barbara March 21, 2018 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8