The opinion of the court was delivered by: MAXINE CHESNEY, District Judge
ORDER OF DISMISSAL WITH LEAVE TO AMEND
Plaintiff, proceeding pro se and currently incarcerated in
Pelican Bay State Prison ("PBSP"), filed the above-titled civil
rights action under 42 U.S.C. § 1983. He alleges that defendants,
various PBSP officials, have denied his requests for a "religious
diet" of only uncooked foods.
In a separate order filed concurrently herewith, plaintiff has
been granted leave to proceed in forma pauperis.
A federal court must conduct a preliminary screening in any
case in which a prisoner seeks redress from a governmental entity
or officer or employee of a governmental entity. See
28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable
claims and dismiss any claims that are frivolous, malicious, fail
to state a claim upon which relief may be granted or seek
monetary relief from a defendant who is immune from such relief.
See id. § 1915A(b)(1), (2). Pro se pleadings, however, must be
liberally construed. See Balistreri v. Pacifica Police Dep't,
901 F.2d 696, 699 (9th Cir. 1988). To state a claim under
42 U.S.C. § 1983, a plaintiff must allege two essential elements:
(1) that a right secured by the Constitution or laws of the
United States was violated and (2) that the alleged violation was committed by a person acting under the color of state law. See
West v. Atkins, 487 U.S. 42, 48 (1988).
Inmates "have the right to be provided with food sufficient to
sustain them in good health that satisfies the dietary laws of
their religion." McElyea v. Babbitt, 833 F.2d 196, 198 (9th
Cir. 1987). Allegations that prison officials refuse to provide a
healthy diet conforming to sincere religious beliefs states a
cognizable claim under § 1983 of denial of the right to exercise
religious practices and beliefs. See Ward v. Walsh,
1 F.3d 873, 877 (9th Cir. 1993) (discussing factors to be considered
where Jewish inmate claimed denial of kosher diet). In order to
establish such violation, a prisoner must show the defendant
burdened the practice of the prisoner's religion, by preventing
him from engaging in conduct mandated by his faith, without any
justification reasonably related to legitimate penological
interests. See Freeman v. Arpaio, 125 F.3d 732, 736 (9th Cir.
1997). To reach the level of a constitutional violation, "the
interference with one's practice of religion `must be more than
an inconvenience; the burden must be substantial and an
interference with a tenet or belief that is central to religious
doctrine.'" Id. at 737. A prisoner may be inconvenienced in the
practice of his or her faith, provided such practices do not
prohibit the prisoner from "participating in the mandates of his
religion." See id.
Here, plaintiff only states he wants a "religious diet." He
does not allege the name or nature of that religion,*fn1 let
alone that he has a sincerely held belief in that religion or
that the religion mandates the raw-foods diet he seeks. See
Africa v. Pennsylvania, 662 F.2d 1025 (3d Cir. 1981) (holding
no constitutional violation where prison denied prisoner's
request for diet of only raw foods; finding prisoner's beliefs, although sincerely
held, did not constitute "religion" within First Amendment);
see also McElyea v. Babbitt, 833 F.2d 196, 198 (9th Cir.
1987) (finding it appropriate for prison authorities to deny
special religious diet if inmate not sincere in his religious
beliefs). Accordingly, plaintiff will be given leave to amend to
allege the religion, the sincerity of his beliefs, and whether or
not the requested raw-foods diet is mandated by his religion.
1. Plaintiff's complaint is DISMISSED WITH LEAVE TO AMEND.
Within thirty (30) days of the date this order is filed,
plaintiff may file an AMENDED COMPLAINT correcting the
deficiencies outlined above. Plaintiff shall include in the
caption both the case number of this action (No. C 05-2887 MMC
(PR)), and the phrase "AMENDED COMPLAINT."
2. The amended complaint supersedes the initial complaint and
may not incorporate by reference any parts of the original
complaint; plaintiff must include in the amended complaint all
the allegations and claims he wishes to present. If plaintiff
fails to timely file an amended complaint in conformity with this
order, the complaint will be dismissed.
3. It is plaintiffs' responsibility to prosecute this case.
Plaintiff must keep the Court informed of any change of address
and must comply with the court's orders in a timely fashion.
Failure to do so may result in the dismissal of this action,