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October 4, 2005.

JOHN MITCHELL, et al., Defendants.

The opinion of the court was delivered by: DANA SABRAW, District Judge

[Doc. Nos. 6, 11]
Pending before this Court are a motion by Defendant Jones to dismiss Plaintiff's complaint pursuant to Fed.R.Civ.P. 12(b)(6), and another motion by the remaining state Defendants to dismiss Plaintiff's complaint based on various legal grounds. Plaintiff has filed an opposition to both motions. State Defendants filed a reply to Plaintiff's opposition. The motion was referred to a United States Magistrate Judge, pursuant to 28 U.S.C § 636(b)(1)(B) and Civ. L.R. 72.3, for a Report and Recommendation ("R&R"). The Magistrate Judge found the issues appropriate for decision on the papers and without oral argument pursuant to Civ. L.R. 7.1(d)(1). On July 11, 2005, the Magistrate Judge issued her R&R. The State Defendants filed objections to the R&R on August 5, 2005; Plaintiff filed objections to the R&R on August 9, 2005; and Defendant Jones filed a reply to Plaintiff's objections on August 19, 2005. Plaintiff filed a reply to Defendant Jones objections on August 26, 2005.

Based on this Court's de novo review of the R&R, Defendants' objections and Plaintiff's replies, the Court adopts in part and rejects in part the Magistrate Judge's R&R.



  Plaintiff is an inmate committed to the custody of the California Department of Corrections ("CDC"), and the events giving rise to the causes of action herein occurred when Plaintiff was housed at Calipatria State Prison ("Calipatria"). Plaintiff is a follower of Islam, and in accordance with the tenets of his faith, he does not eat pork. He alleges that in May 2002, he began to suspect that the prison was serving foods containing pork without labeling them with a "P" on the menu as required by prison regulations. He was referred to a prison psychologist, who diagnosed him with depression. He was transferred to a mental health facility, and was placed on suicide watch, but was eventually transferred back to Calipatria.

  In October 2003, the Calipatria prison cafeteria began serving "turkey ham" for breakfast. It was not labeled with a "P" on the menu, but Plaintiff was nonetheless suspicious that it contained pork. Plaintiff alleges that his own investigation revealed that the turkey ham did in fact contain pork, despite the affirmative verbal assurances to the contrary by Defendant Vorise.

  Plaintiff filed an administrative appeal complaining that his First Amendment right to the free exercise of religion had been infringed by the prison's failure to alert him to the presence of pork in the cafeteria food. Plaintiff filed two additional appeals complaining that the prison refused to let him be seen by medical staff for the mental health problems he was experiencing as a result.

  In December 2004, Plaintiff, proceeding pro se and in forma pauperis, filed this suit alleging claims under 42 U.S.C. § 1983 and the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C § 2000bb-2000bb-4. He names as Defendants the Director of the CDC, Jeanne Woodford; the Calipatria warden, Stuart Ryan; the Calipatria food service manager, John Mitchell; two Calipatria cooks, Hector Lopez and M. Vorise; and Sysco's Regional Sales Manager, Stan Jones. Plaintiff claims that he was led to consume pork by the actions and omissions of these Defendants, in violation of his First Amendment rights to free exercise of religion. Plaintiff also contends that Defendant M. Levin, the chief medical officer of Calipatria, violated his Eighth Amendment rights by ignoring his repeated requests for mental health treatment.



  On April 7, 2005, Defendant Stan Jones filed a motion to dismiss, arguing that he is not a state actor and therefore cannot be sued for the alleged First Amendment violations. On May 16, 2005, State Defendants Levin, Lopez, Mitchell, Ryan, Vorise and Woodford also filed a motion to dismiss on various legal grounds. Plaintiff opposes both motions.

  A. RFRA Claims

  As an initial matter, the Court adopts the Magistrate Judge's recommendation and dismisses Plaintiff's RFRA claims in light of the Supreme Court's ruling in City of Boerne v. Flores, 521 U.S. 507 (1997). See Guam v. Guerrero, 290 F.3d 1210, 1219 (9th Cir. 2002) (recognizing in light of Boerne that state and local government actors cannot be sued for violations of RFRA). Although none of the Defendants moved for dismissal of this claim, the Court dismisses this claim sua sponte pursuant to 28 U.S.C. § 1915(e)(2). See also Neitzke v. Williams, 490 U.S. 319, 327 (1989) (dismissal under 28 U.S.C. § 1915 proper when claim is based on "indisputably meritless legal theory"). Because amendment of Plaintiff's RFRA claim would be futile in light of Boerne, the Court dismisses the claim with prejudice.

  B. State Defendants' Motion

  State Defendants move to dismiss based on several legal theories. Defendants claim that Plaintiff failed to exhaust his administrative remedies, as required by the Prison Litigation Reform Act ("PLRA"). Defendants also move to dismiss the First Amendment claims against them on grounds that negligence cannot be the basis of an alleged Constitutional violation. Defendants Ryan and Woodford move to dismiss on grounds that they were not alleged to have been personally involved in the violation of Plaintiff's Constitutional rights. Defendant Levin also moves ...

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