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Jones v. Burk

March 26, 2009

FRED JONES, PLAINTIFF,
v.
JOHN BURK, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge

ORDER DENYING IN PART AND GRANTING IN PART MOTION TO DISMISS

Plaintiff is an inmate at the Merced County Jail proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 72-302 pursuant to 28 U.S.C. § 636(b)(1). Pending before the Court is Defendants' motion to dismiss. Plaintiff has opposed the motion.

This action proceeds on the September 8, 2006, second amended complaint. Plaintiff, an inmate in the custody of the Merced County Sheriff's Department at the Merced County Jail, brings this civil rights action against defendant John Burk, former Commander of the Merced County Jail, as well as Sergeant Carbonaro and Ricci Thorenson, Commander of the Merced County Jail. .

Plaintiff's allegations relate to his placement in Administrative Segregation as a result of a physical altercation. Plaintiff was involved in the altercation on April 30, 2006. In addition to his placement in Administrative Segregation, Plaintiff lost certain privileges for thirty days: visiting, television, yard and canteen. Plaintiff alleges that the privileges were removed without any type of hearing.

The specific allegations of the second amended complaint follow. Plaintiff was involved in a "physical altercation" at the Merced County Jail on April 30, 2006. Am. Compl. ¶ 9. As a result, Plaintiff was placed in Administrative Segregation on May 1, 2006.Id. Plaintiff alleges that he lost the privileges of yard, television and canteen for 30 days without any type of notification or hearing. Plaintiff submitted a grievance to Defendant Burk, but it "was never responded to." Id.

Plaintiff alleges that on April 27 or 26, 2006, he arrived that the jail and was "forced to abandon certain strict practices in the religion of Islam. Am. Compl. ¶ 10. Plaintiff attempted to exhaust his "grievances procedures" with staff and to Defendant Burk. Plaintiff does not specifically allege how he appealed to Defendant Burk. Plaintiff spoke to the Chaplain regarding his requests. The Chaplain advised Plaintiff that it was up to staff to determine whether Plaintiff could receive the items. Plaintiff requested prayer oils, a prayer cap, clay, prayer bead and prayer rugs. Id. Plaintiff was advised by Sgt. Carbonaro that "this department don't allow that stuff, and you will not be able to receive it neither." Id. Defendant Burk also denied Plaintiff's request. Sgt. Carbonaro, acting in Burk's capacity after Burk retired, stated that "plaintiff don't need the artifacts to practice Islam." Id.

Plaintiff sought advice from the Jail Chaplain. Plaintiff was referred to an outside cleric. Plaintiff alleges that the outside cleric brought the following items: educational books, prayer beads, prayer oil, cap and rug. Plaintiff was allowed to keep the rug and books (with the exception of a hard-bound Qur'an." Plaintiff spoke to the Jail Chaplain about the other items, and was advised that "staff an jail policy would not allow it." Id.

Defendant Burk retired and was replaced by Defendant Thorenson. Plaintiff presented the issue of denial of religious artifacts to Defendant Thorenson through the inmate grievance process. The appeal was denied on security grounds. Id., ¶ 11. Plaintiff was interviewed by Defendant Thorenson on August 23, 2006. Plaintiff explained his religious concerns. Plaintiff specifically explained that the prayer oil was not flammable, that the prayer beads were made of plastic, and the skull cap was made of cotton. Plaintiff explained that the prayer clay was made of dirt and clay. Plaintiff indicated his willingness to receive the items subject to inspection .

This action was initiated by the filing of a civil complaint filed by Plaintiff and two other inmates. The court severed the other two Plaintiffs. The court also entered an order dismissing the first amended complaint and granting Plaintiff leave to file a second amended complaint.

LOSS OF PRIVILEGES

In the order dismissing the first amended complaint, Plaintiff was advised of the following . While the Fifth and Fourteenth Amendments prohibit a state from depriving "any person of life, liberty, or property without due process of law," it is well settled that only a limited range of interests fall within this provision. A due process claim is cognizable only if there is a recognized liberty or property interest at issue. Rizzo v. Dawson, 778 F.2d 527, 530 (9th Cir. 1985). Liberty and property interests protected by the Fifth and Fourteenth Amendments may arise from only two sources, the Due Process Clause itself and the laws of the states. Board of Pardons v. Allen, 482 U.S. 369, 373 (1987); Wolff v. McDonell, 418 U.S. 539, 556-558 (1974). The first step in examining a procedural due process question is to determine whether the state's procedures attending the deprivation were constitutionally sufficient. If there is no protected interest, then the procedural protections of the Due Process Clause do not attach. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 571 (1972); Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 460 (1989); Olim v. Wakinekona, 461 U.S. 238, 250 (1983).

In Sandin v. Conner, 515 U.S. 472 (1995), the United States Supreme Court changed the manner in which courts are to determine whether a state created liberty interest exists. Under Sandin, procedural due process does not attach unless the state subjects an inmate to restraint which "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. at 479.

Plaintiff was advised that in the first amended complaint, Plaintiff alleged at most a temporary deprivation of certain privileges. There is no authority for the proposition that such a deprivation constitutes a due process violation. The court found that the allegations in Plaintiff's complaint failed to state a claim for relief. Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). In the second amended complaint, Plaintiff restates the allegations of the first amended complaint, adding that the loss of privileges were for thirty days. Plaintiff has alleged, at most, a temporary ...


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