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MAYWEATHERS v. WOODFORD

United States District Court, S.D. California


December 20, 2005.

KARLUK KHAN MAYWEATHERS, CDC #D-32829, Plaintiff,
v.
J. WOODFORD, et al., Defendants.

The opinion of the court was delivered by: WILLIAM HAYES, District Judge

ORDER:

(1)DENYING FIFTH MOTION FOR APPOINTMENT OF COUNSEL; AND,
(2) DISMISSING SECOND AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM PURSUANT TO 28 U.S.C. §§ 1915(e)(2) AND 1915A(b)
On April 7, 2005, Plaintiff, an inmate incarcerated at Calipatria State Prison in Imperial, California and proceeding pro se, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983, accompanied by a Motion to proceed in forma pauperis. (Doc. Nos. 1-2.) In the Complaint, Plaintiff claimed that the Defendants, the Director of the California Department of Corrections and eight Calipatria prison officials, violated his rights to due process, of access to the courts, to equal protection, to the free exercise of his religious beliefs, and to be free from cruel and unusual punishment, when they delayed responding to his inmate grievances and responded in an unsatisfactory manner, failed to provide sanitary or adequately nutritious food, denied him access to the recreational library, retaliated against him for filing a lawsuit, and failed to accommodate his religious dietary needs. (Compl. at 4-7.) Plaintiff sought monetary damages as well as declaratory and injunctive relief preventing Defendants from continuing to violate his rights and ordering his transfer to a prison with a lower custody level. (Id. at 9.)

On May 4, 2005, the Court granted Plaintiff leave to proceed in forma pauperis and dismissed the Complaint without prejudice for failure to state a claim upon which relief may be granted. (See 5/4/05 Order at 2-11.) Plaintiff was notified of the pleading defects of his Complaint and was granted leave to file an amended complaint. (Id.) On May 13, 2005, Plaintiff filed a Motion for appointment of counsel, which the Court denied without prejudice. (Doc. Nos. 4-5.)

  On May 27, 2005, Plaintiff filed a First Amended Complaint which named twenty-three Defendants. (Doc. No. 7.) Plaintiff submitted exhibits in support of the First Amended Complaint on June 14, 2005. (Doc. No. 11.) On July 1, 2005, Plaintiff submitted a second set of exhibits in support of the First Amended Complaint, and filed a second Motion for appointment of counsel. (Doc. Nos. 14, 16.) Plaintiff submitted a third set of exhibits in support of the First Amended Complaint on July 22, 2005. (Doc. No. 18.) On August 3, 2005, the Court denied Plaintiff's second Motion for appointment of counsel and dismissed the First Amended Complaint sua sponte for failure to state a claim. (Doc. No. 19.) The Court once again notified Plaintiff of the defects of his pleading and once again provided him the opportunity to amend his complaint in an attempt to cure those defects.

  On September 13, 2005, Plaintiff filed a Second Amended Complaint which names forty-three Defendants. (Doc. No. 22.) He thereafter filed a set of exhibits in support of the Second Amended Complaint. (Doc. No. 23.) Plaintiff filed a second set of exhibits on October 3, 2005, and a third set of exhibits on November 15, 2005. (Doc. Nos. 24, 33.) Plaintiff filed his third and fourth Motions for appointment of counsel on October 14 and 27, 2005 respectively, accompanied by a declaration in support thereof. (Doc. Nos. 26-28.) Plaintiff filed a Motion to Add Additional Defendants on November 7, 2005, seeking to add five additional Defendants to this action. (Doc. No. 30.) Plaintiff's third and fourth Motions for appointment of counsel were denied on November 16, 2005. (Doc. No. 31.) Plaintiff filed a fifth Motion for appointment of counsel on December 1, 2005. (Doc. No. 34.) For the following reasons, the Court DENIES Plaintiff's fifth Motion for appointment of counsel and DISMISSES the Second Amended Complaint, as supplemented by the Motion to Add Defendants, sua sponte for failure to state a claim upon which relief may be granted. With respect to Plaintiff's due process, access to courts, Eighth Amendment, retaliation and conspiracy claims, it is now absolutely clear Plaintiff is unable to further amend his complaint to state a claim upon which relief may be granted, and those claims are dismissed without further leave to amend. With respect to the remaining First Amendment/RLUIPA claim, and Plaintiff's claim that his equal protection rights were violated by a race-based policy regarding the assignment of cell mates, the Court will once again notify Plaintiff of the defects of his pleading and will provide Plaintiff one final opportunity to amend his complaint in an attempt to cure those defects. Plaintiff is cautioned that if the Third Amended Complaint once again fails to cure the pleading defects identified in this and the other Orders of dismissal, it will be subject to dismissal without further leave to amend.

  I. Sua Sponte Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A

  Under the provisions of 28 U.S.C. §§ 1915A and 1915(e)(2), the Court is obligated to review complaints filed by all persons "incarcerated or detained in any facility who is accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary program," "as soon as practicable after docketing." 28 U.S.C. §§ 1915A & 1915(e)(2). The Court must sua sponte dismiss such complaints, or any portions thereof, which are frivolous, malicious, or fail to state a claim upon which relief may be granted. 28 U.S.C. § 1915A(b); Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc); Resnick v. Hayes, 213 F.3d 443, 446-47 (9th Cir. 2000).

  "[W]hen determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff." Resnick, 213 F.3d at 447; see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (§ 1915(e)(2) "parallels the language of Federal Rule of Civil Procedure 12(b)(6)."). However, while liberal construction is "particularly important in civil rights cases," Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992), the Court may not "supply essential elements of the claim that were not initially pled." Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Leave to amend should be granted, however, unless "the pleading could not possibly be cured by the allegation of other facts" and if it appears "at all possible that the plaintiff can correct the defect." Lopez, 203 F.3d at 1130-31.

  A. Due Process and Access to Courts Claims

  In his original Complaint, Plaintiff claimed that Defendants Bourland, Grannis, Ochoa and Ryan violated his Fourteenth Amendment due process rights by "intentionally allowing unreasonable delays" of inmate grievances. (Compl. at 4.) Plaintiff alleged that the grievance procedures at Calipatria denied him "meaningful court access" due to the unreasonable delays and failure to properly address or identify issues, which in turn hampered his ability to properly exhaust issues before presenting them to the courts. (Id.)

  The Court informed Plaintiff that to the extent he challenged the procedural adequacy of CDC inmate grievance procedures, his Complaint failed to state a due process claim because the Ninth Circuit has held that prisoners have no protected property interest in an inmate grievance procedure arising directly from the Due Process Clause. (See 5/4/05 Order at 5, citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) (finding that the due process clause of the Fourteenth Amendment creates "no legitimate claim of entitlement to a [prison] grievance procedure").) The Court also informed Plaintiff that he had failed to plead facts sufficient to show that any named Calipatria official had deprived him of a protected liberty interest by allegedly failing to respond to his prison grievances in a satisfactory manner because he had not alleged facts sufficient to show that Defendants: (1) restrained his freedom in a manner not expected from his sentence, and (2) "impose[d] atypical and significant hardship on [him] in relation to the ordinary incidents of prison life." (See 5/4/05 Order at 6, citing Sandin v. Conner, 515 U.S. 472, 484 (1995).) The Court also informed Plaintiff that to the extent he was attempting to state a claim for damages regarding the loss of custody credits as a result of the manner in which his inmate grievances were processed, such a claim was not cognizable under Heck v. Humphrey, 512 U.S. 477 (1994) unless and until Plaintiff could allege that the proceedings which resulted in the loss of his custody credits had been declared invalid. (See 5/4/05 Order at 6, n. 3.) Further, the Court informed Plaintiff that to the extent he claims that his inability to effectively use the grievance procedures has denied him access to the courts, his allegations fell short of the pleading standards necessary to state such a claim because he had not alleged facts sufficient to show that: (1) a nonfrivolous legal attack on his conviction, sentence, or conditions of confinement has been frustrated or impeded, and (2) he has suffered an actual injury as a result. (See 5/4/05 Order at 6-7, citing Lewis v. Casey, 518 U.S. 343, 353-55 (1996).) Plaintiff was informed that an "actual injury" is defined as "actual prejudice with respect to contemplated or existing litigation, such as the inability to meet a filing deadline or to present a claim." (Id.)

  In the First Amended Complaint, Plaintiff alleged that the Defendants' actions have "created an overall atmosphere that is antithetical" to his First Amendment rights. (First Amended Complaint "FAC" at 3.) Plaintiff alleged the Defendants avoided dealing with his grievances in an effort to avoid litigation regarding those grievances, have caused an unnaturally long delay "in processing his timely appeal" regarding restoration of his custody credits, which Plaintiff contends is the reason he has not been assigned to a lower custody level prison; he also contended the delay prevents him from succeeding on a Board of Control claim for the destruction of his personal property, and that appeals concerning the conditions of confinement are lost or screened out, and even when granted are not enforced, and that his access to the law library and the contents of the library itself were inadequate. (Id. at 3, 7-9, 11-12.)

  The Court found that Plaintiff had failed to cure the pleading defects with respect to his access to courts claim because he had once again failed to allege actual injury as required by Lewis. (See 8/3/05 Order at 4.) In addition, with respect to the allegation that the grievance which he contends will restore his custody credits and thereby permit him to be housed at a lower-level institution has been unnecessarily delayed, the Court found this claim as alleged was barred by Heck v. Humphrey for the same reasons set forth in the previous Order of dismissal. (Id. at 4-5.) In order for Plaintiff to succeed on a claim for damages based on the failure to restore his custody credits, he must first demonstrate that the judgment which resulted in the forfeiture of his credits has been declared invalid. Heck, 512 U.S. at 486-87. To the extent Plaintiff sought injunctive or declaratory relief which would result in the restoration of his custody credits (see Compl. at 26-27), he was informed that such relief is only available in a habeas corpus action. See Preiser v. Rodriguez, 411 U.S. 475, 488-500 (1973) (challenges to the fact or duration of confinement are appropriately brought by petition for a writ of habeas corpus, but challenges to conditions of confinement are appropriately brought pursuant to § 1983). The Court noted that it would not convert the present action into a habeas petition due to the implications of the abuse of the writ doctrine. See Blueford v. Prunty, 108 F.3d 251, 255 (9th Cir. 1997) (holding that district court should not treat defective section 1983 action seeking restoration of custody credits as a habeas petition). However, because Plaintiff made a cryptic reference to the Defendants' refusal to process his grievance in the face of a court decision which requires restoration of his custody credits (see FAC at 7; Compl. at 7), the Court permitted Plaintiff the opportunity to amend the complaint in an attempt to cure this defect of pleading.

  Plaintiff has once again alleged that he has been denied access to the courts based on the delay in processing his inmate grievances, the failure to process the grievances to their highest levels, and the temporary dispossession of his legal papers and materials. (Second Amended Complaint "SAC" at iii, 16, 20.) Plaintiff now alleges that each and every disciplinary infraction he was charged with which could have resulted in the forfeiture of custody credits has been dismissed and thus presents no Heck problem. (Id. at 6.) However, Plaintiff does not allege an actual injury as required by Lewis, but merely alleges his grievances "might no longer be remediable" due to the Defendants' failure to properly process the appeals, and that civil lawsuits regarding the conditions of his confinement "have been impeded," and that he missed a filing deadline on one occasion. (Id. at iii, v, 6.) For the reasons set forth in the Court's previous Orders of dismissal, Plaintiff has failed to state an access to the courts claim because he has not, and it is now clear he cannot, allege an actual injury as required under Lewis.

  Plaintiff also alleged in the First Amended Complaint that the delays in the inmate grievance procedures and the refusal of the prison to allow the grievances to proceed to the Director's Level of appeal, prevented him from resolving a claim regarding the destruction of his personal property with the Board of Control, which will not process a claim until a decision has been reached at the Director's Level of appeal. (FAC at 8.) The Court informed Plaintiff that the existence of an adequate post-deprivation state remedy for the negligent or unauthorized deprivation, retention or destruction of a prisoner's personal property precludes a federal cause of action under section 1983. Hudson v. Palmer, 468 U.S. 517, 533 (1984). The California Tort Claims Act ("CTCA") provides an adequate post-deprivation state remedy for the random and unauthorized taking of property. Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994).

  The Court informed Plaintiff in the previous Order of dismissal that he had not set forth specific factual allegations demonstrating that the delay in processing his grievances or the refusal to issue a Director's Level decision renders the CTCA an inadequate post-deprivation remedy. (See 8/3/05 Order at 5.) Plaintiff was instructed that he must set forth specific allegations regarding the Board of Control's refusal to process claims even after he has brought to their attention the prison's alleged failure to process his inmate grievances, and that his allegation that he had to wait up to a year for a Director's Level decision was inadequate because he did not allege the delay rendered the remedy unavailable. (Id. at 5-6.)

  In the Second Amended Complaint, Plaintiff once again alleges in a conclusory manner that the CTCA is rendered ineffective by the failure to properly or timely process his grievances, resulting in his inability to effectively receive compensation for his personal property taken by the Defendants. (SAC at iii, 15-17, 19-20.) Plaintiff once again fails to allege any specific facts which, if proven true, would demonstrate that the CTCA is an inadequate post-deprivation remedy for the loss or destruction of his personal property.

  Because it is now clear Plaintiff cannot cure the foregoing pleading defects, the Court sua sponte DISMISSES without further leave to amend Plaintiff's due process and access to courts claims regarding the alleged inadequacy of the prison grievance procedures and law library.

  B. Eighth Amendment Cruel and Unusual Punishment Claims

  In his original Complaint, Plaintiff alleged that the Defendants violated his Eighth Amendment right to be free from cruel and unusual punishment when they served him meals which were "filthy" and without adequate nutritional value, denied him access to the recreational library and the books and materials therein, retaliated against him for litigating a civil lawsuit, and failed to accommodate his religious dietary needs. (Compl. at 5-7.) i) recreational library

  With respect to Plaintiff's claim that he was denied access to the recreational library, the Court found that Plaintiff's allegations regarding the inability to have regular access to the recreational library or the materials contained therein were insufficient to show that he was denied a basic human need, and therefore did not satisfy the objective component of a "cruel and unusual punishment" claim. (See 5/4/05 Order at 9-10, citing Hudson v. McMillian, 503 U.S. 1, 8-9 (1992) (holding that "[b]ecause routine discomfort is `part of the penalty that criminal offenders pay for their offenses against society,' . . . `only those deprivations denying "the minimal civilized measure of life's necessities" are sufficiently grave to form the basis of an Eighth Amendment violation.'") and Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982) (holding that the Eighth Amendment "does not require that prisons be comfortable nor that they provide every amenity that one might find desirable.")) In the First Amended Complaint, Plaintiff once again alleged that the materials kept in the recreational library have been unavailable to him at various times, and that "other prisoners have recreational library access in this prison, which is why Plaintiff has invoked an equal protection violation." (FAC at 9.)

  The Court found that the First Amended Complaint failed to allege an Eighth Amendment violation regarding access to the recreational library for the same reasons set forth in the Court's previous Order of dismissal, namely, because he has failed to allege that denial of access to the recreational library deprived him of a basic necessity of life, as opposed to being a mere inconvenience. (See 8/3/05 Order at 6-7.) Plaintiff alleges in the Second Amended Complaint that the denial of access to the recreational library "is akin to sensory deprivation for someone who prefers good wholesome literature as opposed to radio, tv or other media with its explicit lyrics, ungodly content and counter-cultural bias." (SAC at 5.) These allegations fail to state a claim for the same reasons set forth in the Court's previous Orders of dismissal, and it is now clear that Plaintiff is unable to cure this defect of pleading an Eighth Amendment claim with respect to inadequate access to the prison's recreational library. See May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997) (finding no federal constitutional right of access to prison recreational library). ii) inadequate nutrition

  With respect to his inadequate nutrition claim, the Court informed Plaintiff in its previous Order of dismissal that although the Complaint survived the screening provisions with respect to the objective prong of an Eighth Amendment claim (see 5/4/05 Order at 8-9, citing Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982) (holding that prisons are required to provide adequate nutrition)), the Court found that Plaintiff had failed to set forth allegations satisfying the subjective prong of an Eighth Amendment violation (see 5/4/05 Order at 8-9, citing Farmer v. Brennan, 511 U.S. 825, 834 (1994) (holding that the subjective component requires the plaintiff to demonstrate that the prison officials acted wantonly, with deliberate indifference to the plaintiff's serious needs)).

  The Court noted that it appeared from a review of the First Amended Complaint that Plaintiff no longer intended to pursue an independent Eighth Amendment claim for denial of adequately nutritious food, but instead alleged that he is unable to eat some of the food offered him due to his religious beliefs, and that the substitutions he is provided by the prison in an attempt to accommodate his religious dietary needs have inadequate nutritional value. (See 8/3/05 Order at 7; FAC at 20.) Although the Court addressed these allegations in connection to Plaintiff's religious diet claim, the Court also found that to the extent Plaintiff intended to maintain an Eighth Amendment claim based on the failure to provide sufficiently nutritious meals, he had consistently failed to satisfy the subjective prong of such a claim. (See 8/3/05 Order at 7; 5/4/05 Order at 8-9.) The allegations in the Second Amended Complaint regarding inadequate nutrition are addressed below with respect to Plaintiff's religious diet claim. However, for the same reasons set forth in the Court's previous Orders of dismissal, to the extent Plaintiff intends to bring an Eighth Amendment claim based on the quality or quantity of food, the Second Amended Complaint fails to state a claim for the reasons set forth in the previous Orders of dismissal, and it is now clear that Plaintiff is unable to cure this pleading defect.

  iii) miscellaneous allegations

  Plaintiff also set forth non-specific and conclusory allegations in the First Amended Complaint that his allergy and pain medication was withheld from him while he was in Administrative Segregation and that his toothpaste was confiscated. (FAC at 13, 15.) The Court noted that such allegations fail to satisfy the subjective prong of an Eighth Amendment violation for the reasons set forth in the original Order of dismissal, namely, because Plaintiff has consistently failed to identify any individual Defendant who, knowing Plaintiff needed the medicine and toothpaste, intentionally withheld these items. (See 5/4/05 Order at 9.) The Court noted that Plaintiff had also failed to satisfy the objective prong of an Eighth Amendment violation because he has failed to allege that he did not obtain these items from other sources or that he suffered any injury as a result of his deprivation of these items. (Id.) The allegations in the Second Amended Complaint this regard are equally devoid of specific facts which satisfy the subjective prong of an Eighth Amendment claim (see SAC at vi), including the new allegation that Plaintiff contracted hepatitis from unsanitary drinking water (id. at 22-23). Although Plaintiff alleges a report on the quality of the drinking water was posted and available to be viewed by the guards (id.), there are no allegations that any Defendant was aware of a possible risk of contracting hepatitis from the prison's drinking water, and insufficient factual allegations supporting Plaintiff's speculation (id. at 23) that it must have been either the drinking water or the food service which caused him to test positive for hepatitis.

  Thus, the Court finds the Second Amended Complaint fails to state an Eighth Amendment claim upon which relief may be granted for the same reasons set forth in the Court's previous Orders of dismissal, and is therefore subject to dismissal pursuant to 28 U.S.C. §§ 1915(e)(2)(b) & 1915A(b). Because it is now clear that Plaintiff is unable to cure the pleading defects with respect to such a claim, Plaintiff's Eighth Amendment claim is DISMISSED without further leave to amend. However, the Court will consider Plaintiff's allegations regarding interference with and denial of his religious dietary needs, and the allegations of retaliation and conspiracy, as separate claims addressed below.

  C. Religious Diet Claims

  Plaintiff claimed in the First Amended Complaint that he has been provided a diet which requires him to choose between adequate nutrition and his sincerely held religious beliefs, and contends that the Defendants' failure to provide him with a religiously prescribed diet violates his rights under the First Amendment and the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc-1 et. seq. (FAC at 17-23.) Specifically, Plaintiff alleged that on February 22, 2005, he informed Defendant Correctional Officer Butler that he had not received his special religious diet by the Administrative Segregation staff for the last two days, and pointed out to Butler that he was the ranking officer present, but Butler said "he didn't give a damn," even though Butler was aware that Plaintiff is a practicing Muslim. (Id. at 17.) Plaintiff alleged that Defendants Mitchell and Lopez, the Head Food Manager and Assistant Food Manager at Calipatria respectively, were responsible for providing special religious diets to the inmates and that he has submitted numerous grievances against these Defendants over a span of three to four years. (Id. at 18.) Plaintiff alleged that he has in the past received assurances from Defendant Lopez that the gelatin served to the prisoners contains no animal products when in fact it did, which Lopez found amusing. (Id. at 18-19.) Plaintiff stated that regardless of his complaints about the gelatin, which was backed up by an outside expert, the "Defendants" continue to "allow gelatin to be slopped on the trays — covering the main meal so as to render it and everything else it comes in contact with ritually inedible." (Id. at 19.) Plaintiff alleged that for all practical purposes he is denied a meal whenever this happens because he cannot consume the meal without violating his religious beliefs. (Id.) Plaintiff did not name as Defendants the individuals who are preparing the meal trays, but alleged that the food service workers do not wear name tags or have them covered with their clothing, and that the correctional officers have refused to divulge their names. (Id. at 22.)

  Plaintiff also alleged the Defendants decided to deprive his meals of essential nutrients in order to accommodate his religious dietary needs rather than provide a ready alternative, and that his health has declined as a result. (Id. at 20-21.) Instead of substituting vegetables or potatoes for the meat entree, the prison provides cheese, peanut butter or eggs, but Plaintiff states that he cannot consume poultry products, and that on one occasion he received french fries.*fn1 (Id. at 21.) As the Court noted in its previous Order of dismissal, "[i]nmates . . . 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). "In order to establish a free exercise violation, [Plaintiff] must show the defendants burdened the practice of his 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) (footnote omitted).

  In addition to these generalized First Amendment protections, RLUIPA, 42 U.S.C. § 2000cc-1, "affords prisoners engaged in religious conduct federal statutory protections above and beyond those embodied in the First Amendment," Charles v. Verhagen, 220 F. Supp. 2d 937, 943 (W.D. Wis. 2002), and as such, "provides rights similar to those [previously] delineated in [the Religious Freedom Restoration Act] RFRA." Wyatt v. Terhune, 315 F.3d 1108, 1115 (9th Cir. 2002). Specifically, RLUIPA provides:

No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution . . . even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person — [¶] (1) is in furtherance of a compelling governmental interest; and [¶] (2) is the least restrictive means of furthering that compelling governmental interest.
42 U.S.C. § 2000cc-1(a) (emphasis added).

  While RLUIPA does not define what constitutes a "substantial burden" on religious exercise, the Ninth Circuit has defined the term according to its plain language. In San Jose Christian College, 360 F.3d at 1034, the Court resorted to dictionary definitions describing a "burden" as "something that is oppressive," and "substantial" as "`considerable in quantity' or `significantly great.'" Id. Thus, a substantial burden on religious exercise must impose a "significantly great restriction or onus upon such exercise." Id.

  The party alleging a RLUIPA violation carries the initial burden of demonstrating that a governmental practice constitutes a substantial burden on his religious exercise. See 42 U.S.C. §§ 2000cc-1(a); 2000cc-2(b) ("[T]he plaintiff shall bear the burden of persuasion on whether the law (including a regulation) or government practice that is challenged by the claim substantially burdens the plaintiff's exercise of religion."). Accordingly, as the Court previously informed Plaintiff, only if he successfully alleges that the Defendants' actions imposed a substantial burden on his exercise of his religion has he stated a claim either under RLUIPA or the First Amendment. (See 8/3/05 Order at 8-11.)

  Although Plaintiff alleged in the First Amended Complaint that he must choose between obeying his religious tenets and eating his meal whenever gelatin is slopped on the tray over the other food, he identified only two instances when this occurred, and identified only six instances when his protein substitute was missing from a meal. (FAC at 21-23.) In the third set of exhibits submitted in support of the First Amended Complaint, Plaintiff attached a response to an appeal dated January 22, 2004, indicating that Plaintiff's request to remove the gelatin from his meals had been granted, that staff will be trained regarding the proper manner of placing the gelatin on the trays, and that the staff member who served him gelatin on one occasion had been identified and was scheduled to receive religious diet training. (See Doc. No. 18 at 12-14.) In addition, Plaintiff alleged only in general terms that the diet choices he has been given in the past to accommodate his religious beliefs were insufficiently nutritious, and in any case states that the procedures and menus were changed by Sacramento in 2002, but he did not specifically allege why the choices he is now given do not accommodate his religious beliefs while also providing sufficiently nutritious meals. (FAC at 20.)

  The Court informed Plaintiff that the allegations in the First Amended Complaint in this regard were simply too vague to support a finding that any individual Defendants' actions imposed a substantial burden on the free exercise of Plaintiff's religious beliefs. (See 8/3/05 Order at 11-12.) The Court informed Plaintiff that if he wished to proceed with a First Amendment/RLUIPA claim, he must set forth specific factual allegations demonstrating that an individual Defendant or Defendants have placed a substantial burden on the free exercise of his religion. (Id. at 12.) Plaintiff was informed that allegations regarding several isolated instances of inedible meals or inadequate entree substitutions are insufficient to satisfy this pleading standard, particularly in light of the absence of allegations that he asked for and was refused a replacement meal on those occasions, and the documents indicating that his concerns were addressed by the prison authorities. (Id.) The Court noted in addition that although Plaintiff alleged he was unable to get the attention of food servers to complain on several of the occasions when he received an unacceptable meal, Plaintiff had not alleged that he requested a replacement meal on those occasions and was refused, did not clearly allege he was unable to make such a request, and did not allege it happened so often as to be "`considerable in quantity or significantly great'" so as to place a substantial burden on the exercise of his religious beliefs. San Jose Christian College, 360 F.3d at 1034.

  The allegations in the Second Amended Complaint, including those in Plaintiff's Motion to Add Defendants, once again identify isolated instances where Plaintiff alleges he was required by his religious beliefs to forego a meal because it was not served in strict compliance with his religious dietary requirements.*fn2 (See SAC at 26-27; Motion to Add Defendants at 3-4.) Plaintiff has therefore failed to state a First Amendment/RLUIPA claim regarding the instances where he did not receive a replacement meal after complaining of the way his meal was prepared or served for the same reasons set forth in the Court's previous Order of dismissal. Although Plaintiff contends the incidents were not "isolated" but were in fact part of a pattern of activity (see SAC at 27, Ex. Q), as discussed below in regard to the retaliation and conspiracy claims, he sets forth no facts supporting such a contention, and instead merely states that it is his perception that the Defendants treat him with disrespect because he is African-American and Muslim. Most importantly, as discussed immediately below, Plaintiff has once again failed to identify any Defendant or Defendants who are involved in the alleged systematic deprivation of adequate nutritional alternatives to the standard prison menu.

  Although unclear, it appeared that Plaintiff attempted in the First Amended Complaint to allege a systematic failure to provide him with adequate nutritional choices with respect to the type of food substitutes he is receiving. Plaintiff was instructed that if he wished to present such a claim, he must set forth specific factual allegations regarding what food choices he is currently receiving, why they are inadequate to accommodate his religious and nutritional needs, and must identify an individual Defendant he contends is responsible for the current meals he is being served. (See 8/3/05 Order at 12-13.) Plaintiff was informed that although he names Jeanne Woodford, the Director of the Department of Corrections, as a Defendant in the caption of the First Amended Complaint, there are no allegations regarding this Defendant in the body of the First Amended Complaint other than that she should be aware by now of the effects of the policy. (FAC at 25.) Plaintiff was instructed that there is no respondeat superior liability under 42 U.S.C. § 1983. Palmer v. Sanderson, 9 F.3d 1433, 1437-38 (9th Cir. 1993). Instead, "[t]he inquiry into causation must be individualized and focus on the duties and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a constitutional deprivation." Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988), citing Rizzo v. Goode, 423 U.S. 362, 370-71 (1976). In order to avoid the respondeat superior bar, Plaintiff must allege personal acts by each individual Defendant which have a direct causal connection to the constitutional violation at issue. See Sanders v. Kennedy, 794 F.2d 478, 483 (9th Cir. 1986); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).

  The allegations in the Second Amended Complaint fail to cure the pleading deficiencies identified above and in the Court's previous Order of dismissal. Although Plaintiff attaches as Exhibit Q to the Second Amended Complaint what appears to be a list of menus with annotations as to why he believes inadequate nutritional value was provided regarding the food substitutes he received during those meals (see SAC at 27, Ex. Q), Plaintiff continues to fail to identify individual Defendants who are responsible for forcing him to choose between his sincerely held religious beliefs and eating adequately nutritious meals on a systematic basis, as opposed to isolated instances of allegedly improperly prepared trays. Once again the allegations regarding individual Defendants involve isolated instances regarding improperly preparing his tray, and substituting vegetables for meat resulting in insufficient amounts of protein. (SAC at 26-27; Motion to Add Defendants at 3-4.) Although Plaintiff attempts to overcome this pleading defect by stating that the incidents are not isolated but are part of a systematic conspiracy or atmosphere of racial and religious intolerance (see SAC at 27; Motion to Add Defendants at 4), his allegations in this regard are based on his own unsupported perception rather than specific factual allegations. Plaintiff alleges that the substitutes for chicken and beef "normally" do not contain sufficient protein, and that his grievances in this regard have been granted, but maintains that on occasions he still does not receive sufficient protein. (SAC at 24.) Plaintiff also alleges that he received trays with gelatin slopped over other food items, rendering the entire meal inedible, approximately twice a month over a three-year period. (Id. at 26.) These allegations simply do not rise to the level of demonstrating that Plaintiff has been systematically denied a choice between an adequately nutritious meal and a meal which satisfies his religious dietary needs. Although Plaintiff alleges several Defendants "appear to take a satanic delight in splashing gelatin over all the food on the tray" (id.), as noted in the previous order of dismissal, the availability of replacement trays on those few occasions renders Plaintiff's allegations insufficient to demonstrate that any of the Defendants' actions imposed a substantial burden on the free exercise of his religious beliefs. In addition, the lack of allegations regarding who is responsible for the alleged systematic lack of adequate protein substitutes, and why Plaintiff alleges they are responsible, is a pleading defect with respect to Plaintiff's claim that he has been systematically denied adequate protein in his religious diet.

  Thus, the Court finds that the Second Amended Complaint fails to state a First Amendment or RLUIPA claim upon which relief may be granted, and is therefore subject to dismissal pursuant to 28 U.S.C. §§ 1915(e)(2)(b) & 1915A(b). The Court will provide Plaintiff with one final opportunity to amend his pleading to cure the defects identified in this Order. Plaintiff must identify a Defendant or Defendants who are responsible for making the decision regarding what food choices he is presented with, and allege facts which demonstrate that the Defendant or Defendants' actions imposed a substantial burden on the free exercise of his religious beliefs.

  D. Equal Protection Claim

  In addition to his First Amendment and RLUIPA claims, Plaintiff alleged in the First Amended Complaint that the Defendants discriminated against him by failing to accommodate his religious dietary needs, and have refused to restore his custody credits or house him in at a lower custody level, both because he is Black and because he is Muslim. (FAC at 12, 15.) The Court informed Plaintiff that the Equal Protection Clause of the Fourteenth Amendment protects prisoners from intentional discrimination based on their religious beliefs. Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir. 1997). "Prisons must afford an inmate of a minority religion `a reasonable opportunity of pursuing his faith comparable to the opportunity afforded fellow prisoners who adhere to conventional religious precepts.'" Id., quoting Cruz v. Beto, 405 U.S. 319, 322 (1972) (per curiam). Prisons are required to "make good faith accommodation of the (prisoner's) rights in light of practical considerations." Freeman, 125 F.3d at 737.

  The Court previously informed Plaintiff that in order to support an equal protection claim, he is required to demonstrate that prison officials intentionally acted in a discriminatory manner. Freeman, 125 F.3d at 737, citing FDIC v. Henderson, 940 F.2d 465, 471 (9th Cir. 1991). The court previously found that the allegations regarding discriminatory intent set forth in the First Amended Complaint are entirely conclusory and as such are insufficient to state a claim pursuant to section 1983. (See 8/3/05 Order at 14-15, citing Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982) ("Vague and conclusory allegations of official participation in civil rights violations are not sufficient" to state a claim upon which relief may be granted).) Plaintiff was informed that if he wishes to proceed with an equal protection claim, he must set forth specific factual allegations demonstrating that the Defendants acted with a discriminatory animus, must not continue his practice of referring to "the Defendants" when attempting to state a claim which requires specific factual allegations against specific individual Defendants, and must identify which Defendants took which actions which he contends violated his constitutional rights.

  The allegations in the Second Amended Complaint suffer from the same defects of pleading as identified in the Court's previous Orders of dismissal. Plaintiff alleges once again sets forth entirely conslusory allegations that the Defendants' actions were taken as a result of his religious or racial identity. (See SAC at 17-18.) Plaintiff has once again failed to set forth specific factual allegations which, if proven, would support a finding of discriminatory animus by any individual Defendant. In addition, Plaintiff made a vague reference in the First Amended Complaint to Defendants's racially discriminatory "forced segregation" housing policy. (See FAC at 16.) Plaintiff alleged that Defendants "intentionally conspired collectively to employ racial ancestry as the main determining factor when assigning cell-partners on facility C." (Id. at 4.) Plaintiff stated Defendants attempted to move a Black inmate who was a former gang member into his cell despite the fact that Plaintiff requested a mixed-racial cell relationship, that Plaintiff refused to live in the cell with that particular inmate due apparently to his history as a gang member, and that Plaintiff received a disciplinary write-up for refusing a direct order despite the fact that it was an illegal order he disobeyed. (Id. at 4-5.)

  The Court found the allegations that Defendants are acting pursuant to an unconstitutional policy regarding cell assignments failed to state a claim for damages because Plaintiff had not alleged that the disciplinary proceedings which he seeks to invalidate based on the illegality of the policy did not result in the forfeiture of custody credits. (8/3/05 Order at 14-15.) Plaintiff was instructed that he must satisfy the Heck favorable termination requirement before presenting a claim for damages based on allegations which, if proven true, would invalidate the forfeiture of custody credits. (Id.) To the extent Plaintiff is seeking prospective injunctive relief regarding the housing policy, he was instructed that he must allege that the policy is not narrowly tailored to achieve the compelling interest of prison safety. (Id., citing Johnson v. California, 543 U.S. ___, 125 S.Ct. 1141, 1150-51 (2005).) Because Plaintiff alleged only that he objected to the one particular inmate based on his known gang affiliation, it was unclear if he intended to allege that the policy of Calipatria prevents him from being housed in a mixed-racial cell. (Id.) Plaintiff was instructed that if he intends to state a claim based on the policy of Calipatria regarding housing assignments, he must set forth specific allegations regarding the alleged policy. (Id.) Plaintiff's allegations in this regard were also considered with respect to his claims for conspiracy to violate his equal protection rights.

  In the Second Amended Complaint, Plaintiff has alleged a housing policy based on racial classification, but once again fails to identify a Defendant or Defendants who are responsible for enforcing the alleged policy. (SAC at iiii, 1, 6-20.) Although Plaintiff alleges several Defendants "participated directly" in the enforcement of the policy (id. at 6-7), there are no factual allegations regarding what actions these Defendants took which violated Plaintiff's equal protection rights. Plaintiff contends that he was disciplined only once as a result of refusing to be celled with a particular inmate, that that was the only time he had refused a cell assignment, and that although he has requested to be celled with an inmate of another race on other occasions, he has always been assigned a cell mate of the same race. (Id.) Plaintiff is granted leave to amend the Complaint as to this claim, but must identify as a Defendant a person or persons who are or were responsible for enforcing the policy against him and allege when the Defendant(s) actions were taken.

  Plaintiff's equal protection claims are DISMISSED without prejudice for failing to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2); Lopez, 203 F.3d at 1126-27. Plaintiff is granted leave to include an equal protection claim in the Third Amended Complaint which is based on the alleged racially segregated housing policy regarding the assignment of cell mates.

  E. Retaliation Claim

  Plaintiff claimed in the First Amended Complaint that the "Defendants have retaliated by overt and covert means by `misplacing' Plaintiff's remaining property and refusing to process his current appeal, repeatedly delaying essential medication and intentionally withholding allergy medication and refusing to consistently provide him with the special religious diet mandated by the Department's own directives." (FAC at 2.) Plaintiff was instructed in the previous Order of dismissal that: "A plaintiff suing detention facility officials for retaliation must allege: (1) that he was retaliated against for exercising his constitutional rights, i.e., that his conduct was constitutionally protected and was a `substantial' or `motivating' factor in the defendant's decision to act, Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989); Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); and (2) that the retaliatory action `does not advance legitimate penological goals, such as preserving institutional order and discipline.' Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994)." (8/3/05 Order at 15-16.) The Court found that to the extent Plaintiff alleged he was retaliated against for filing grievances or pursuing his civil rights action, he had adequately alleged that he engaged in activities protected by the First Amendment. A prisoner's right of meaningful access to the courts, along with his broader right to petition the government for the redress of grievances under the First Amendment, precludes prison authorities from penalizing a prisoner for exercising those rights. Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995).

  The Court previously found that the First Amended Complaint failed to state a retaliation claim because it failed to set forth specific factual allegations that any individual Defendant took any action on the basis of Plaintiff's grievance or litigation activities. (See 8/3/05 Order at 16, citing Soranno's Gasco, 874 F.2d at 1314 and Pratt, 65 F.3d at 806.) As with many of his other claims, Plaintiff referred to "the Defendants" in his allegations without reference to specific individuals. Plaintiff was instructed that if he wishes to proceed with a retaliation claim, he must identify individual Defendants, rather than merely referring to "the Defendants," and allege facts sufficient to demonstrate that his protected activities were a "substantial" or "motivating" factor in each Defendant's decision to act, and that such actions lacked a legitimate penological justification, as conclusory allegations in this regard are insufficient to state a claim. Ivey, 673 F.2d at 268.

  In the Second Amended Complaint, Plaintiff identifies a number of Defendants against whom he sets forth conclusory allegations of retaliatory motives behind their actions. (SAC at 12-19.) Plaintiff once again fails to set forth specific factual allegations which, if proven, would establish that any individual Defendant took any action as a result of Plaintiff's protected activities. Rather, Plaintiff alleges it would be "unlikely" that the Defendants' actions would have been taken but for a retaliatory motive. (Id. at 14.)

  Because the Second Amended Complaint suffers from the same deficiencies of pleading with respect to a retaliation claim as was identified in the Court's previous Order of dismissal, and because it is now clear that Plaintiff is unable to cure these defects, Plaintiff's retaliation claim is DISMISSED without prejudice and without leave to amend for failing to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2); Lopez, 203 F.3d at 1126-27. F. Conspiracy Claims

  Plaintiff alleged in the First Amended Complaint that the Defendants conspired to violate his rights based on his status as a protected minority. (FAC at 12.) The Court informed Plaintiff in the previous Order of dismissal that in order to state a claim for conspiracy, he must allege facts demonstrating that the Defendants reached an agreement to deprive him of his civil rights. (8/3/05 Order at 16-17, citing Margolis v. Ryan, 140 F.3d 850, 853 (9th Cir. 1998) and Woodrum v. Woodward County, 866 F.2d 1121, 1126 (9th Cir. 1989).) Plaintiff was informed that conclusory allegations of a conspiracy are insufficient to support a claim. (8/3/05 Order at 17, citing Margolis, 140 F.3d at 853 and Woodrum, 866 F.2d at 1126.) The Court found Plaintiff had failed to state a claim for conspiracy because he failed to allege facts demonstrating that any Defendant reached an agreement with anyone to deprive Plaintiff of his civil rights. (8/3/05 Order at 17.)

  Plaintiff also alleged in the First Amended Complaint that his equal protection rights were violated because the Defendants' actions were racially motivated because Plaintiff is Black. (FAC at 12.) In the previous Order of dismissal, Plaintiff was instructed that in order to state a claim for conspiracy to violate his equal protection rights, the allegations must be sufficient to show: (1) a conspiracy to deprive him, as a member of a protected class, equal protection of the laws, (2) an act by one of the conspirators in furtherance of the conspiracy, and (3) a personal injury, property damage or deprivation of a right or privilege guaranteed to him as a citizen of the United States. (8/3/05 Order at 17, citing Gillespie v. Civiletti, 629 F.2d 637, 641 (9th Cir. 1980).) With respect to the equal protection claim, Plaintiff must allege racial or "perhaps otherwise class-based" discriminatory animus behind the conspirator's actions. See Griffin v. Breckenridge, 403 U.S. 88, 102 (1971). Moreover, Plaintiff's complaint must contain facts describing the overt acts that Defendants committed in furtherance of the conspiracy. Id. at 102-03; Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 626 (9th Cir. 1988). Mere allegations that Defendants engaged in a conspiracy is insufficient to state a claim; Plaintiff must allege overt acts taken by the Defendants in furtherance of the conspiracy. Karim-Panahi, 839 F.2d at 626; Sanchez v. City of Santa Ana, 936 F.2d 1027, 1039 (9th Cir. 1990). The Court previously found that Plaintiff's claim for conspiracy to violate his equal protection rights failed for the same reason as his other conspiracy claim, because he failed to allege the Defendants reached an agreement to violate his rights. In addition, the Court found the First Amended Complaint lacked specific factual allegations which, if proven true, would demonstrate that any individual Defendants acted with a discriminatory animus. Plaintiff was informed that if he wishes to proceed with a conspiracy claim, he must allege facts demonstrating that Defendants reached an agreement to deprive him of his civil rights, and must allege overt acts taken with a discriminatory animus in furtherance of the conspiracy.

  In the Second Amended Complaint, Plaintiff once again either sets forth entirely conclusory allegations of an agreement between the Defendants to deprive him of his civil rights, or contends the Court should deduce a meeting of the minds by the Defendants merely by the pervasiveness of their actions or the "unlikeliness" they were taken without a tacit agreement. (SAC at vi, 2, 14, 16, 32.) Plaintiff's allegations fail to state a conspiracy claim for the same reasons set forth in the Court's previous Order of dismissal and it is now clear that Plaintiff is unable to cure this pleading defect.

  Accordingly, Plaintiff's conspiracy claims are DISMISSED without further leave to amend for failing to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2); Lopez, 203 F.3d at 1126-27.

  II. Motion of Appointment of Counsel

  The Court denied Plaintiff's first Motion for appointment of counsel without prejudice because it appeared that Plaintiff was able to sufficiently articulate the factual basis of his claims and had failed to adequately allege a section 1983 claim. (See 5/20/05 Order denying Motion for Appointment of Counsel at 3-4.) The denial was without prejudice to Plaintiff to renew his motion after he amended his complaint. (Id. at 4.)

  The Court has now reviewed the Second Amended Complaint and for the reasons set forth above finds that it fails to state a claim upon which relief may be granted. Thus, for the same reasons set forth in the Court's May 20, 2005 Order denying Plaintiff's first Motion for appointment of counsel, Plaintiff' fifth Motion for appointment of counsel is DENIED. III. Conclusion and Order

  1. Plaintiff's fifth Motion for Appointment of Counsel [Doc. No. 34] is DENIED without prejudice;

  2. Plaintiff's Second Amended Complaint is DISMISSED without prejudice for failing to state a claim upon which relief may be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(b)(ii) & 1915A(b)(1). Plaintiff's claims for denial of due process in connection to the prison's administrative grievance procedures, for denial of access to the courts, for cruel and unusual punishment in violation of the Eighth Amendment, and for conspiracy and retaliation are DISMISSED without further leave to amend.

  However, Plaintiff is GRANTED thirty (30) days leave from the date this Order is stamped "Filed" in which to file a Third Amended Complaint which cures all the deficiencies of pleading noted above with respect to Plaintiff's First Amendment/RLUIPA claim, and his equal protection claim regarding the alleged policy of race-based assignment of cell mates. Plaintiff's Third Amended Complaint must be complete in itself without reference to the superseded pleadings. S.D. CAL. CIV. L.R. 15.1. A blank Third Amended Petition form is included with this Order for Plaintiff's use. Plaintiff is cautioned that Southern District Local Rule 8.2(a) provides that Plaintiff shall use the complaint form included with this Order, that the complaint shall contain a short and plain statement of his claim, that each averment shall be simple, concise and direct, and that additional pages not to exceed fifteen (15) in number may be included with the form complaint, provided the form is completely filled in to the extent applicable. S.D. CAL. CIV. L.R. 8.2(a).

  IT IS SO ORDERED.

20051220

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