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Avery v. Walker

January 14, 2009


The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge


Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff's complaint (Doc. 1).

The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover, the Federal Rules of Civil Procedure require that complaints contain a ". . . short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). This means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the complaint gives the defendant fair notice of the plaintiff's claim and the grounds upon which it rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must allege with at least some degree of particularity overt acts by specific defendants which support the claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is impossible for the court to conduct the screening required by law when the allegations are vague and conclusory.


Plaintiff*fn1 names the following as defendants: Walker, Elia, Vance, and Jackson. Plaintiff, who practices the Wiccan/Pagan religion, states that since his arrival at prison he has been "trying to re-vamp the Wiccan/Pagan religious program." He describes "ongoing administrative problems" relating to access to religious packages from outside vendors. Plaintiff states that he was asked by defendant Vance whether he would be willing to "take a leadership position for Pagans." Plaintiff agreed to act as an spokesperson for Wiccan/Pagan inmates. According to plaintiff, in this capacity he attempted to obtain an outside area at the prison which could be designated as a Pagan lodge. Plaintiff states that he made this request to defendants Vance and Elia.

According to plaintiff, defendant Vance suggested that part of an area set aside for the Native American sweat lodge be designated for use by Wiccan/Pagan inmates. Plaintiff states that he told defendant Vance he felt this was a bad idea because it would "create problems and animosity" with Native American inmates. He states that "to allow another faith group to move in and desecrate that area" would represent an impediment to the practice of the Native American religion. Plaintiff stated that he felt the Wiccan/Pagan inmates had an "equal right to land use. . ." and a "right to equal space away from another group and to deny this is a violation of our . . . rights. . . ."

Plaintiff states that, despite his conversation with defendant Vance, prison officials nonetheless carved space out of the Native American area for the Wiccan/Pagan inmates and "ordered the Native Americans to dig out of their consecrated land." According to plaintiff, plans exist to build a fence dividing the area into two sections. Plaintiff states that, not only does this create animosity among the Native American inmates, the area sectioned off for the Wiccan/Pagan inmates is not sufficient for their needs "because it is so small a 9 man circle cannot be made in it and the necessary space outside a circle." Plaintiff states on information and belief that"[t]his was done . . . to be a disencurragement [sic] tactic to get Pagans to refuse exceptence [sic] of the area so that the institution will not be liable if Pagans to defuse it." Plaintiff states on information and belief that prison officials acted with the intention of creating tension between the Native American and Wiccan/Pagan inmate groups. Plaintiff alleges that prison officials' conduct "has caused almost the full Pagan population to remove themselves as part of the group to avoid the problems it has created and how it made them appear as invaders and thieves."

Plaintiff states that "it became apparent that the [Wiccan/Pagan inmates] had to start setting the foundation for litigation in attempt to not only get what we as a Pagan group have coming legally but to protect ourselves from discrimination and other administrative disencurragement [sic] tactics." Plaintiff states that "[i]n the study of the situation" he discovered an old inmate grievance that had been filed in 2003 by inmate William Rouser and which had been partially granted by defendant Jackson. According to plaintiff, this prior grievance was a "Wiccan class action appeal" and that "[t]he evaluation of the land dimensions specified in this appeal had never been done as the disposition stated it would." Plaintiff asserts this as the basis for liability as to defendant Jackson.

Plaintiff states that, in September 2008, he submitted a "group action" inmate grievance "to enforce the 2003 disposition already granted." According to plaintiff, this appeal was screened out as untimely. Plaintiff sees this as further obstruction of his religious practice. Plaintiff states that, when he approached defendant Vance demanding that the 2003 disposition be put into effect, defendant Vance "became verbally aggressive as if I've ruined his plans." Plaintiff states that defendant Vance threw the appeal across his desk and said: "This is written by Rouser and holds no authority and I don't care if this appeal was granted in 2003." Plaintiff states that defendant Vance then ordered plaintiff to get out of his office. Plaintiff asserts this shows that defendant Vance was "willfully disregarding the appeal and disposition of it and do what he wants regardless of the rights it violates otherwise." Plaintiff claims that defendants Elia and Walker were aware of the situation outlined in the complaint and did nothing to rectify it.

Plaintiff asserts that defendants' alleged conduct placed a substantial burden on the practice of his religion. He also states that, as a Wiccan/Pagan, he is being treated differently than Native American inmates even though both groups have a religious need for access to land outside for their rituals and ceremonies. He claims a violation of due process in that religious rights were deprived without any hearing. Plaintiff seeks injunctive relief and monetary damages.


The gravamen of plaintiff's complaint is that defendants' conduct violated his statutory and/or constitutional rights to practice his religion. The United States Supreme Court has held that prisoners retain their First Amendment rights, including the right to free exercise of religion. See O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987); see also Pell v. Procunier, 417 U.S. 817, 822 (1974). Thus, for example, prisoners have a right to be provided with food sufficient to sustain them in good health and which satisfies the dietary laws of their religion. See McElyea v. Babbit, 833 F.2d 196, 198 (9th Cir. 1987). In addition, prison officials are required to provide prisoners facilities where they can worship and access to clergy or spiritual leaders. See Glittlemacker v. Prasse, 428 F.2d 1, 4 (3rd Cir. 1970). Officials are not, however, required to supply clergy at state expense. See id. Inmates also must be given a "reasonable opportunity" to pursue their faith comparable to that afforded fellow prisoners who adhere to conventional religious precepts. See Cruz v. Beto, 405 U.S. 319, 322 (1972).

However, the court has also recognized that limitations on a prisoner's free exercise rights arise from both the fact of incarceration and valid penological objectives. See McElyea, 833 F.2d at 197. For instance, under the First Amendment, the penological interest in a simplified food service has been held sufficient to allow a prison to provide orthodox Jewish inmates with a pork-free diet instead of a completely kosher diet. See Ward v. Walsh, 1 F.3d 873, 877-79 (9th Cir. 1993). Similarly, prison officials have a legitimate penological interest in getting inmates to their work and educational assignments. See Mayweathers v. Newland, 258 F.3d 930, 38 (9th Cir. 2001) (analyzing Muslim inmates' First Amendment challenge to prison work rule).

While free exercise of religion claims originally arose under the First Amendment, Congress has enacted various statutes in an effort to provide prisoners with heightened religious protection. See Warsoldier v. Woodford, 418 F.3d 989, 994 (9th Cir. 2005). Prior to these congressional efforts, prison free exercise claims were analyzed under the "reasonableness test" set forth in Turner v. Safley, 482 U.S. 78, 89-91 (1987); see e.g. O'Lone, 382 U.S. at 349. The first effort to provide heightened protection was the Religious Freedom Restoration Act ("RFRA") of 1993. However, the Supreme Court invalidated that act and restored the "reasonableness test." See City of Boerne v. P.F. Flores, 521 U.S. 507 (1997); see also Freeman v. Arpaio, 125 F.3d 732, 736 (9th Cir. 1997) (recognizing that ...

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