United States District Court, S.D. California
October 4, 2005.
BRIAN DEVERICK LEWIS, Plaintiff,
JOHN MITCHELL, et al., Defendants.
The opinion of the court was delivered by: DANA SABRAW, District Judge
ORDER: (1) ADOPTING IN PART AND REJECTING IN PART MAGISTRATE
JUDGE'S REPORT AND RECOMMENDATION; (2) GRANTING DEFENDANT JONES'
MOTION TO DISMISS; (3) GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION TO DISMISS.
[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.
FACTUAL & PROCEDURAL SUMMARY
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 to
dismiss the Eighth Amendment claim against him because his actions do not amount to
"deliberate indifference" to Plaintiff's serious medical needs.
State Defendants assert the Plaintiff failed in several
respects to properly exhaust his administrative remedies, and
that Plaintiff's entire complaint should be dismissed without
prejudice because it contains unexhausted claims.
Ordinarily, a plaintiff bringing § 1983 claims is not required
to exhaust administrative remedies as a prerequisite to filing
suit. See Patsy v. Bd. of Regents, 457 U.S. 496, 516 (1982).
However, the PLRA imposes an exhaustion requirement on prisoners
bringing such claims. See 42 U.S.C. § 1997e(a). Defendants
maintain that strict adherence to this exhaustion requirement
mandates an inmate plaintiff exhaust all the claims he seeks to
litigate before commencing the action. According to Defendants,
the Court must dismiss a "mixed" complaint in its entirety.
Although the Ninth Circuit has not addressed the issue, this
Court has held that the PLRA requires total exhaustion before
filing suit. Therefore, this Court has held that a "mixed"
complaint containing both exhausted and unexhausted claims must
be dismissed in its entirety without prejudice. Mubarak v.
Calif. Dep't of Corr., 315 F.Supp.2d 1057-1060 (S.D. Cal 2004).
In so holding, this Court joined the Eighth and Tenth Circuits in
requiring total exhaustion. See Ross v. County of Bernalillo,
365 F.3d 1181, 1189-90 (10th Cir. 2004) (presence of
unexhausted claims in the complaint required district court to
dismiss action in entirety without prejudice); Graves v.
Norris, 218 F.3d 884 (8th Cir. 2000) (plain language of PLRA
requires all available prison grievance remedies be exhausted as
to all of the claims). Accordingly, if the State Defendants are
correct that Plaintiff's complaint is "mixed," the entire
complaint should be dismissed without prejudice.
The administrative appeals process for California inmates is
set forth in Title 15 of the California Code of Regulations,
which provides, "Any inmate . . . may appeal any departmental
decision, action, condition, or policy perceived by those
individuals as adversely affecting their welfare." Cal. Code
Regs., tit. 15 § 3084.1(a). The process consists of four steps.
The first is to attempt to informally resolve his or her problem
with the staff member involved. Id. at § 3084.5(a). If
unsuccessful, the inmate may submit an appeal on the CDC 602
inmate appeal form. Id. at § 3084.5(b). If denied at that level, the inmate may appeal to the
second formal review conducted by the head of the institution or
his/her designee. Id. at § 3084.5(c). The third and final level
of formal review is conducted by the Director of the CDC or
his/her designee. Id. at § 3084.5(e)(2); see also Nichols v.
Logan, 355 F.Supp.2d 1155, 1161 (S.D. Cal. 2004).
Defendants argue that with respect to Plaintiff's
First Amendment claim, Plaintiff failed to name any Defendants in his
administrative grievance other than Mitchell and Vorise,
therefore he failed to exhaust his claim as to the other
Defendants. Since the claim is therefore "mixed," Defendants
argue that it should be dismissed in its entirety. State
Defendants also argue that Plaintiff failed to exhaust his
Eighth Amendment claim against Defendant Levin by failing to name him in
his grievances about the prison's alleged failure to provide
mental health treatment.
While Plaintiff did not list all of the State Defendants by
name, the Magistrate Judge nonetheless concluded in her R&R that
a plaintiff need not identify or name each defendant in an
administrative grievance form to properly exhaust his claim. See
Butler v. Adams, 397 F.3d 1181, 1183 (9th Cir. 2005). The
form used in Butler to initiate a grievance under the Americans
with Disabilities Act ("ADA") (CDC Form 1824) did not require
identification of any specific person. Id. The form used to
initiate a CDC grievance (CDC Form 602), as in this case, also
does not require an inmate to name or identify specific persons.
See Cal. Code Regs., tit. 15 § 3084.2(a)(1). Thus, the
Magistrate Judge concluded the holding in Butler is applicable
to the facts in this case.
Defendants argue that the R&R improperly extended the Butler
ruling for claims under the ADA to general CDC claims.
Specifically, Defendants note that the CDC grievance process,
unlike the ADA process, requires an informal attempt to resolve
the grievance with the involved staff. A provision requiring an
attempt to resolve a grievance with involved staff does not
negate the reasoning in Butler, however. A prisoner submitting
a grievance is merely required to follow the administrative
procedures available to him. See Butler, 397 F.3d at 1183; see
also Cal. Code Regs., tit. 15 § 3084.2(a)(1) (requiring
California prisoner to use the Form 602 "to describe the problem
and the action requested"). There are also provisions for waiving
the informal attempt requirement when impractical, not
applicable, or in emergency situations. See Cal. Code Regs.,
tit. 15, § 3084.5(a)(3) and 3084.7. The state of California,
therefore, does not require an informal attempt to resolve a
grievance with the involved staff in every circumstance. Thus, Defendants'
distinction between the ADA and CDC processes does not render
Butler inapplicable to the facts of this case.
Defendants also argue that there are separate processes for an
ADA grievance and for a CDC grievance, therefore Butler should
not apply. However, the procedures for a CDC grievance and an ADA
grievance are not entirely separate. For instance, a prisoner
dissatisfied with his initial ADA grievance must attach the CDC
1824 form to a CDC Form 602 in the same manner as any other
prisoner filing his first formal grievance. Thereafter, the
appeal process for ADA claims and other claims is the same. See
Cal. Code Regs., tit. 15, § 3085(b)-(c).
State Defendants argue further that the PLRA was enacted to
reduce the quantity and improve the quality of prisoner suits.
Porter v. Nussle, 534 U.S. 516, 524 (2002). However, the PLRA
does not dictate or require that a plaintiff identify specific
parties; it only requires that the administrative remedies be
exhausted. See 42 U.S.C. § 1997e(a). The Magistrate Judge
concluded that State Defendants did not meet their burden to show
that Plaintiff failed to exhaust his administrative remedies
prior to filing suit. This Court agrees, and therefore denies the
State Defendants' motion to dismiss on this basis.
2. First Amendment Claim Predicated by a Negligent Act
Defendants also move to dismiss Plaintiff's First Amendment
claim based on a theory that it cannot be predicated on a
defendant's negligence. The Supreme Court has made clear that a §
1983 claim contains no independent state of mind requirement; the
inquiry is based on whether the plaintiff can establish a
violation of the underlying constitutional right. See Daniels v.
Williams, 474 U.S. 327, 329-30 (1986). Here, Plaintiff alleges a
violation of his First Amendment right to the free exercise of
religion. His claims must therefore be analyzed under the
First Amendment. See Albright v. Oliver, 510 U.S. 266, 273 (1994)
("Where a particular Amendment provides an explicit textual
source of constitutional protection against a particular sort of
government behavior, that Amendment, not the more generalized
notion of `substantive due process,' must be the guide for
analyzing these claims.") (internal quotations omitted). To state
a claim under the First Amendment, Plaintiff must show the State
Defendants "burdened the practice of religion by preventing him
from engaging in conduct mandated by his faith without any
justification reasonably related to legitimate penological
interests." Freeman v. Arpaio, 125 F.3d 732, 736 (9th Cir. 1997). The
question before this Court is whether the State Defendants may
negligently "burden the practice" of Plaintiff's religion.
Defendants argue that negligence may not be the basis of a
First Amendment claim, but the legal authority cited to support
this argument does not discuss First Amendment Free Exercise
claims. Defendants cite Daniels, 474 U.S. 327, which holds the
Due Process clause cannot be violated by a negligent act. Id.
at 328. Defendants also cite to Estelle v. Gamble, 429 U.S. 97,
106 (1976) and Wilson v. Seiter, 501 U.S. 294, 297 (1991), both
of which require more than negligence to advance a violation of
the Eighth Amendment. Defendants further cite Brower v. County
of Inyo, 489 U.S. 593 (1989), which requires a showing of
intentional conduct to support a claim for a Fourth Amendment
violation. While these cases are somewhat related in that they
involve alleged constitutional violations brought under § 1983,
none of the cases holds that a Free Exercise claim cannot be
based on negligence.
Defendants also discuss a Seventh Circuit case, Kincaid v.
Vail, 969 F.2d 594 (7th Cir. 1992), as closely analogous to
this case. That case involved a claim by inmates against state
court clerks for violation of the inmates' constitutional right
of access to the courts. The Seventh Circuit held that a "mere
isolated incident of negligence" did not rise to the level of a
constitutional violation. Id. at 602. Kincaid, however,
involved the constitutional right of access to the courts, and
not, as here, a claim based in the right to free exercise of
religion. See id. at n. 10. (citing Crawford-El v. Britton,
951 F.2d 1314, 1318 (D.C. Cir. 1991)) (intentional interference
with access to court violates constitution); Bailey v. Andrews,
811 F.2d 366, 371 (7th Cir. 1987) ("in any given § 1983 suit,
the plaintiff must still prove a violation of the underlying
constitutional right; and depending on the right, merely
negligent conduct may not be enough to state a claim").
The Fourth Circuit has similarly held that a prisoner's claim
of negligent denial of access to the courts does not give rise to
a § 1983 cause of action. Pink v. Lester, 52 F.3d 73 (4th
Cir. 1995). Plaintiff prisoner in Pink attempted to distinguish
Daniels, which disallows negligence as the basis of a Due
Process claim, by attempting to ground the right of access to the
courts in the First Amendment, specifically, the prohibition
against abridging the "right to petition the government for
redress of grievances." Id. at 76. The court, however, did not
agree with the argument. "[I]t matters not . . . whether the right of access is catalogued under the First or
Fourteenth Amendment. . . . However [Plaintiff's] claim is
labeled, the rationale of Daniels controls." Id. Further, the
court explained, "[j]ust as a `deprivation' suggests an
intentional denial, . . . an `abridgement' connotes a conscious
While Daniels only went so far as to deny negligence as a
basis for a Due Process claim under § 1983, 474 U.S. at 330-31,
the rationale is relevant to the alleged constitutional
violations at issue in this case. The Supreme Court relied on the
word "deprive" in the Fourteenth Amendment as connoting something
more than a negligent act. Id. at 330. "Historically, this
guarantee of due process has been applied to deliberate
decisions of government officials to deprive a person of life,
liberty, or property." Id. at 331 (emphasis added).
Additionally, the Supreme Court cautioned against opening the
federal courts to lawsuits where there is no affirmative abuse
of power. Id. at 330. The operative language in the
First Amendment, "abridge," similarly connotes a conscious act, rather
than one of negligence. Pink, 52 F.3d at 76. "Notably, the
words deprive and abridge originally shared the same meaning, . . .
and thus should both be read to imply the same degree of
intent." Id. at 76-77.
The only court to squarely address the issue in this case is
the United States District Court for the Eastern District of
Virginia. See Shaheed v. Winston, 885 F.Supp. 861 (E.D. Va.
1995), aff'd, 161 F.3d 3 (4th Cir. 1998). In Shaheed, the
district court held that negligence did not give rise to a Free
Exercise § 1983 claim. 885 F.Supp. at 868. In that case,
defendant prison officials were alleged to have violated
plaintiff's constitutional right to the free exercise of religion
by failing to accommodate the observance of a religious holiday.
Id. The court, relying in part on the rationale of Pink, held
that "prohibiting" within the Free Exercise clause, "suggests a
conscious act," rather than mere negligence. Id. ("Since the
failure to accommodate [plaintiffs' free exercise of religion]
resulted from a misunderstanding . . ., the defendants actions
were negligent, not intentional, and the plaintiffs may not rely
on § 1983 as a basis for this claim.") The court further reasoned
that "expansion of § 1983 to instances of mere negligence
foreshadows further interference with the operations of state
penal institutions. The significant costs that would be imposed
by such suits, without the benefit of remedying federal wrongs,
are unjustifiable." Id. (quoting Pink, 52 F.3d at 77). This Court is persuaded by the case law discussed above,
especially the decision in Shaheed. The reasoning of these
cases leads this Court to conclude that Plaintiff must assert
more than negligence to state a valid § 1983 claim for the
violation of his Free Exercise rights. Instead, Plaintiff must
allege conscious or intentional acts that burden his free
exercise of religion.
Plaintiff alleges generally that Defendants "consciously chose
to obstruct and prohibit the plaintiff's right to free exercise
of his religion by deceptively serving pork and disguising it as
turkey." (Compl. at 7). Plaintiff more specifically alleges
Defendant Vorise misled him to consume pork by stating to
Plaintiff that he checked the food himself and that it did not
contain pork. Plaintiff alleges that he asked Defendant Vorise
three times to determine if the turkey ham in question contained
pork. Defendant Vorise is alleged to have told Plaintiff that he
checked the product and that it did not contain pork. (Id. at
7-8). Plaintiff also contends that Defendant Mitchell read the
product labels and consciously chose to serve the pork,
disguising it as turkey. (Id. at 10). These allegations
sufficiently allege conscious or intentional conduct and thus,
state a First Amendment claim against Defendants Vorise and
Plaintiff's allegations against Defendant Lopez, however, are
insufficient. Unlike the allegations against Defendants Vorise
and Mitchell, there are no specific allegations of a conscious
act on the part of Defendant Lopez to burden Plaintiff's free
exercise of religion. Accordingly, the Court grants the motion to
dismiss Plaintiff's First Amendment claim against Defendant
Lopez. Plaintiff is given leave to amend his complaint to allege
specific facts that assert conscious or intentional acts by
Defendant Lopez that burdened his free exercise of religion.
3. Respondeat Superior
State Defendants argue that the claims against Defendants Ryan
and Woodford should be dismissed because Plaintiff has failed to
allege that either of these Defendants was personally involved in
the violation of his constitutional rights. In his complaint,
Plaintiff alleges essentially that Defendants Ryan and Woodford
are liable under § 1983 because of the acts and omissions of
their subordinates, Defendants Mitchell, Vorise, and Lopez. He
does not allege any facts showing personal involvement in the
alleged violation of his rights by either of these Defendants. A person deprives another "of a constitutional right, within
the meaning of § 1983, if he does an affirmative act,
participates in another's affirmative acts, or omits to perform
an act which he is legally required to do that causes the
deprivation of which [the plaintiff complains]." Johnson v.
Duffy, 588 F.2d 740, 743 (9th Cir. 1978). There is no
respondeat superior liability under 42 U.S.C. § 1983. Palmer
v. Sanderson, 9 F.3d 1433, 1437-38 (9th Cir. 1993). Thus, to
avoid the respondeat superior bar, the plaintiff must allege
personal acts by the defendants which have a direct causal
connection to the constitutional violation at issue. See Sanders
v. Kennedy, 794 F.2d 478, 483 (9th Cir. 1986); Paine v. City of
Lompoc, 265 F.3d 975, 984 (9th Cir. 2001) (whether or not each
defendant "is a participant in the incidents that could give rise
to liability" is a necessary element of the § 1983 claim).
Section 1983 provides for relief only against those who, through
their personal involvement as evidenced by affirmative acts,
participation in another's affirmative acts, or failure to
perform legally required duties, cause the deprivation of the
plaintiff's constitutionally protected rights. Johnson,
588 F.2d at 743.
Because Plaintiff cannot recover against Defendants Ryan and
Woodford based on a respondeat superior theory, the Court
dismisses the claim against these Defendants. The Court
recognizes, however, that "[l]eave to amend should be granted
unless the pleading could not possibly be cured by the allegation
of other facts, and should be granted more liberally to pro se
plaintiffs." McQuillon v. Schwarzenegger, 369 F.3d 1091, 1099
(9th Cir. 2004). Because Plaintiff could possibly cure the
deficiencies in his complaint by pleading additional facts
showing that Defendants Ryan and Woodford had some personal
involvement in the alleged violation of his rights, the Court
grants Plaintiff leave to amend his claims against these
4. Eighth Amendment Claim against Defendant Levin
Plaintiff alleges Defendant Levin's failure to provide
requested medical services violated his Eighth Amendment right to
be free from cruel and unusual punishment. To establish a
violation of the Eighth Amendment based on failure to provide
medical treatment, the prisoner must show that prison officials
engaged in acts or omissions amounting to "deliberate
indifference" to a serious medical need. Estelle,
429 U.S. at 106. Under the deliberate indifference standard, liability may be
imposed only if the prison official "knows of and disregards an
excessive risk to inmate health and safety; the official must both be aware of facts from which the
inference could be drawn that a substantial risk of harm exists,
and he must also draw the inference." Farmer v. Brennan,
511 U.S. 825, 837 (1994).
While Plaintiff alleges a serious medical need, he must also
show that Defendant Levin was deliberately indifferent to his
need for medical treatment for that need. To do so he must
establish substantial indifference to his medical needs; a prison
official's inadvertent failure to treat, malpractice, or even
gross negligence are all insufficient to establish an
Eighth Amendment violation. Estelle, 429 U.S. at 106; McGuckin v.
Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on
other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133
(9th Cir. 1997). In other words, a prison official is not
liable for failure to alleviate a risk of harm that he should
have perceived but did not. Farmer, 511 U.S. at 838.
Here, Plaintiff has not alleged any facts indicating that
Defendant Levin had actual knowledge of his mental distress and
consciously disregarded his need for treatment. It is not clear
from the record that Defendant Levin had any knowledge of
Plaintiff's requests during the time that he made requests to be
seen and was actually seen. Plaintiff has failed to allege
deliberate indifference on the part of Defendant Levin.
Accordingly, the Court adopts the Magistrate Judge's
recommendation and dismisses the claims against Defendant Levin.
Because Plaintiff could possibly cure these defects by pleading
additional facts showing that Defendant Levin knew of and
consciously disregarded his need for medical treatment, the Court
grants Plaintiff leave to amend his Eighth Amendment claim.
C. Motion by Stan Jones
Defendant Jones seeks dismissal under Fed.R.Civ.P. 12(b)(6)
arguing that he is not a state actor and thus cannot be sued
under 42 U.S.C. § 1983. To state a claim under § 1983, the
"plaintiff must allege the violation of a right secured by the
Constitution and the laws of the United States, and must show
that the alleged deprivation was committed by a person acting
under color of state law." West v. Atkins, 487 U.S. 42, 48
(1988). Individuals and private entities are not normally liable
for violations of most rights secured by the United States
Constitution. Lugar v. Edmonson Oil Co., 457 U.S. 922, 936
(1982). In order to maintain a cause of action based on an
allegation of constitutional violations, a plaintiff must show
that the actions complained of are "fairly attributable" to the government. Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982);
see also Vincent v. Trend Western Technical Corp.,
828 F.2d 563, 567 (9th Cir. 1987).
"Action taken by private individuals may be `under color of
state law' where there is `significant' state involvement in the
action." Howerton v. Gabica, 708 F.2d 380, 382 (9th Cir. 1983).
Although § 1983's under-color-of-state-law requirement is
technically separate from the Fourteenth Amendment's state-action
requirement, the two inquiries are closely related. Collins v.
Womancare, 878 F.2d 1145, 1148 (9th Cir. 1989). The Supreme
Court has articulated four distinct tests for determining when
the actions of a private individual amount to state action: (1)
the public function test; (2) the joint action test; (3) the
state compulsion test; and (4) the governmental nexus test. Id.
at 1148-49; see also George v. Pacific-CSC Work Furlough,
91 F.3d 1227, 1231 (9th Cir. 1996).
The Supreme Court has concluded, in the prison context, that
private individuals who contract with the state to provide
services to inmates can, in some circumstances, be considered
state actors. For example, a physician under contract to provide
medical services to inmates was a state actor for purposes of §
1983. West, 487 U.S. at 55-56. The court found determinative
the fact that the state had a duty to provide adequate medical
care to prisoners a duty it had delegated to a private
Just as the state has a responsibility to provide medical care
to its inmates, so must it provide adequate food to them, as
well. Farmer, 511 U.S. at 832. Thus, a private company to whom
the state has delegated its obligation to provide food services
to inmates would likely be considered a state actor for the
purposes of § 1983. See McCullum v. City of Philadelphia, No.
98-5858, 1999 WL 493696 (E.D. Pa. July 13, 1999) (unpublished)
(private contractor operating prison cafeteria considered a state
actor). Here, however, the Calipatria State Prison has not
delegated its duty to provide food to inmates. It has simply
contracted with Defendant Jones to provide food to the prison,
which the prison employees use to prepare meals for inmates. As
such, Jones is less like the doctor in West, and more like a
vendor who supplies band-aids or other medical supplies to be
used by the doctor, a relationship with the state that is far
more tenuous. That Jones' company does business with the state is
also not sufficient to implicate him as a state actor. See
Rendell, 457 U.S. at 843 (private contractors do not become
state actors "by reason of their significant or even total
engagement in performing public contracts"); see also Vincent, 828 F.2d at 567-68 ("standard
government contractor" is not a state actor).
In his objections, Plaintiff asserts generally that he has
raised a proper claim against Defendant Jones. However, he fails
to point to any allegations in the complaint that would overcome
these deficiencies. The Court therefore adopts the Magistrate
Judge's recommendation, and dismisses Defendant Jones from this
CONCLUSION AND ORDER
For the reasons discussed above, the Court hereby orders as
1. Defendant Jones' motion to dismiss is GRANTED with
2. The State Defendants' motion to dismiss is GRANTED in part
and DENIED in part. Specifically, the Court denies Defendants'
motion to dismiss Plaintiff's First Amendment claim against
Defendants Vorise and Mitchell. The Court grants Defendants'
motion to dismiss Plaintiff's First Amendment claim against
Defendants Lopez, Ryan, and Woodford, but grants Plaintiff leave
to amend the claims against those Defendants. The Court also
grants the motion to dismiss Plaintiff's Eighth Amendment claim
against Defendant Levin, but grants Plaintiff leave to amend that
claim. Finally, the Court sua sponte dismisses Plaintiff's RFRA
claims with prejudice.
Plaintiff is granted leave to file a First Amended Complaint
within thirty (30) days from the date this Order is stamped
"Filed" that addresses the deficiencies of pleading set forth in
this Order. Plaintiff is cautioned that his First Amended
Complaint must be clearly captioned as such, and that it will
supersede his previous pleading. Hal Roach Studios, Inc. v.
Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). Thus,
Defendants not named or served and all claims not re-alleged in
the First Amended Complaint will be deemed to have been waived.
See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Should
Plaintiff's First Amended Complaint fail to comply with these
general rules of pleading, he is cautioned that this action may
be dismissed with prejudice and that such a dismissal may hereafter constitute a "prior occasion" or "strike" under
28 U.S.C. § 1915(g).*fn1
IT IS SO ORDERED.
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