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Allen v. Tilton

April 2, 2009

DANNY P. ALLEN, PLAINTIFF,
v.
JAMES E. TILTON, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Margaret A. Nagle United States Magistrate Judge

MEMORANDUM AND ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND

On October 23, 2007, plaintiff, a state prisoner proceeding pro se and in forma pauperis, filed a civil rights complaint, pursuant to 42 U.S.C. § 1983, in the United States District Court for the Eastern District of California. On December 28, 2007, plaintiff filed a First Amended Complaint. On March 2, 2009, the case was transferred to and received in this judicial district.

Congress has mandated that courts perform an initial screening of prisoner civil rights actions. This Court may dismiss a prisoner civil rights action before service of process if it concludes that the complaint is frivolous, fails to state a claim, or seeks relief against a defendant who is immune from suit. 28 U.S.C. § 1915A(b); 42 U.S.C. § 1997e(c)(1).

In screening a pro se complaint, the Court must construe it liberally and must afford the plaintiff the benefit of any doubt. Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). Leave to amend should be granted if it appears that the plaintiff can correct the defects of his complaint. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); see also Karim-Panahi, 839 F. 2d at 623 (pro se litigant must be given leave to amend complaint unless it is absolutely clear that its deficiencies cannot be cured by amendment); Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)(same).

ALLEGATIONS OF THE FIRST AMENDED COMPLAINT

Plaintiff is incarcerated at the California Men's Colony at San Luis Obispo ("CMC"). (First Amended Complaint at 1.) Defendants are: Lou Moskowitz, the Jewish Chaplain at CMC; and James E. Tilton, the former Secretary of the California Department of Corrections and Rehabilitation ("CDCR").*fn1 (Id. at 2.)

Plaintiff is a Muslim. (First Amended Complaint at 2.) Chaplain Moskowitz is in charge of the religious diet program at CMC. (Id.) In September 2007, plaintiff requested that Chaplain Moskowitz ensure that plaintiff and other Muslim inmates would receive three halal meals a day.*fn2 (Id.) Chaplain Moskowitz told plaintiff that it would be too expensive, and "Muslim inmates can get a veg[e]tarian diet or just eat what other inmates have to eat." (Id.) Plaintiff protested that Jewish inmates receive kosher meals. (Id.)

Plaintiff then attempted to join other Muslim inmates in a systemwide administrative appeal regarding this issue, but the administrative appeal was "met with the same prejudicial standards." (First Amended Complaint at 2.) He alleges that defendant Tilton had an opportunity to "stop the prejudicial standard" applied by his subordinates, but did not do so. (Id.)

Plaintiff asserts two claims: (1) a First Amendment free exercise of religion claim; and (2) a due process claim.*fn3 He seeks damages and injunctive relief providing him with three halal meals a day "until compliance is consistently applied for all Muslim inmates." (First Amended Complaint at 2.)

DISCUSSION

I. PLAINTIFF'S FIRST AMENDMENT CLAIM WITHSTANDS SCREENING

At this early stage of the action, the Court finds that Claim One, which asserts a claim for violation of plaintiff's First Amendment right to the free exercise of religion, withstands screening. See Shakur, 514 F.3d at 883-88.

II. PLAINTIFF FAILS TO STATE A DUE PROCESS CLAIM

In Claim Two, plaintiff contends that defendants' denial of his request for a halal diet violated his fundamental rights under the Due Process Clause of the Fourteenth ...


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