The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT THE DISTRICT COURT GRANT DEFENDANT'S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Doc. 24) OBJECTIONS DUE WITHIN THIRTY DAYS
Findings and Recommendations on Defendant's Motion to Dismiss
I. Procedural and Factual Background
Plaintiff Darryl Wakefield, a state prisoner in the Security Housing Unit ("SHU") of California State Prison Corcoran ("CSPC"), is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff alleges that by denying plaintiff's request for daily showers, defendant Richard Indermill, the Protestant chaplain at CSPC, violated plaintiff's constitutional right to free exercise of his religious beliefs.*fn1 Indermill is the sole remaining defendant in this action following screening pursuant to 28 U.S.C. § 1915A.
According to the allegations in plaintiff's complaint, SHU Residents at CSPC are provided with an opportunity to shower three times each week. Because of the high security requirements in the SHU, which houses inmates presenting disciplinary or security concerns, five correctional officers are required to provide inmate showers: four officers "on the floor" to cuff and escort inmates from their cells to the shower, and one officer in the control booth to open and close cell doors. Conducted during the third watch (2:00 p.m. to 10:00 p.m.), showers are provided to each of the two tiers of cells on alternate days from 2:30 p.m. to 9:00 p.m., with no showers being provided on Sundays.
Plaintiff incorporates excerpts and articles indicating that a Seventh Day Adventist ought to wash his or her body regularly. Because plaintiff finds bathing in his cell's sink (in prison parlance, a "bird bath") to be messy and inconvenient, plaintiff maintains that a bird bath does not satisfy his personal need to wash daily. In his complaint, plaintiff candidly states that he concluded that daily showers were required after reading and studying various church publications and that the church hierarchy does not necessarily agree with his interpretation of those sources. Curiously, however, plaintiff states in his motion brief:
I Plaintiff have never asserted daily showers is based on my own individual interpretation of the Seventh-Day Adventist religion and is not shared by the District representatives of the Seventh-Day Adventist church (hereafter SDA), as Defendant claims.
My interpretation is based on SDA teachings by Ellen G. White..... These are SDA church teachings which we members follow.
Consistent with the results of defendant's inquiries to Seventh Day Adventist leaders, all of whom denied the existence of any requirement that SDA members shower daily, plaintiff's supporting materials, incorporated into his complaint by reference, do not mention a requirement of daily showers for practicing Seventh Day Adventists. For the most part, the various religious tracts included as exhibits and incorporated into plaintiff's complaint and motion brief generally advocate various aspects of a healthy lifestyle that includes regular bodily hygiene. None set forth a requirement for a daily tub bath or shower. For example, one source reads, "Persons in health should on no account neglect bathing. They should by all means bathe as often as twice a week." Trustees of Ellen G. White Publications, Counsels on Health at 1031 (Ellen G. White Publications 1957), quoting Ellen G. White, Testimonies for the Church, vol. 3, pp. 70-71 (1871). Advising parents in another treatise, Ms. White stated, "Most persons would benefit from a cool or tepid bath every day." Trustees of Ellen G. White Publications, Child Guidance (Ellen G. White Publications, date unknown), quoting Ellen G. White, Ministry of Healing at 276 (1905).
Believing that the recipients of certain mental health services are entitled to daily showers, plaintiff initially sought daily showers as a recipient of such services. His request was denied since daily showers are provided only to mental health recipients housed in a location other than the SHU. After his prison grievance was denied at the first level of appeal, plaintiff added a claim at the second level of appeal that his religious beliefs mandated daily showers. The appeals coordinator then referred the religion-based request to CSPC's Religious Review Committee, which is charged with resolving inmate requests for accommodation of religious beliefs. (The request based on mental health services was ultimately denied at the director's level but is no longer at issue in this case.) Defendant denied plaintiff's appeal for religious accommodation:
This memo is in regards to your appeal in which you are requesting to take daily showers as part of your religious faith group. Your appeal is denied at this level.
I consulted with three different District Representatives of your faith group, Seventh Day Adventist, and all three said that showering daily is not a requirement for their faith group. This was also reviewed by this institution's Religious Review Committee and your appeal is denied.
Plaintiff filed a § 1983 action appealing both decisions on December 12, 2007 (Doc. 1). After the court screened the complaint pursuant to 28 U.S.C. 1915A, plaintiff agreed to dismiss his other claims and defendants. Despite plaintiff's later attempt to reinstate the dismissed claims and defendants through objections to the Magistrate's Findings and Recommendations, the Order Adopting Findings and Recommendations, and Dismissing Certain Claims and Defendants from Action dismissed the claims and parties according to plaintiff's original agreement (Doc. 16).
On February 18, 2009, defendant filed the pending motion to dismiss for failure to state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6) (Doc. 24). Plaintiff filed an opposition on March 12, 2009 (Doc.27), and defendant filed a reply on March 25, 2009 (Doc.29).
In considering a motion to dismiss for failure to state a claim, a court must accept as true the allegations of the complaint in question, construe the pleading in the light most favorable to the party opposing the motion, and resolve all doubts in the pleader's favor. Hospital Bldg. Co. v. Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969). "Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief...." Fed. R. Civ. P. 8(a). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937, 1949 (2009), citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949, quoting Twombly, 550 U.S. at 555.
While factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S.Ct. at 1949. The statement must "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Id. at 514.
"'The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test.'" Jackson v. Carey, 353 F.3d 750, 755 (9th Cir. 2003), quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). See also Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004), quoting Fontana v. Haskin, 262 F.3d 871, 977 (9th Cir. 2001) ("'Pleadings need suffice only to put the opposing party on notice of the claim....'").
The court has a statutory duty to screen complaints in cases brought by inmates proceeding pro se and to dismiss prior to service on the defendant(s) any claims that fail to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A. The court did so here, entering a screening order on August 26, 2008, which concluded that plaintiff's complaint stated a cognizable free exercise claim against defendant under the First Amendment to the United States Constitution (Doc. 9). In light of its legal analysis and conclusion, as set forth in the screening order, the court is reluctant to now grant defendant's motion to dismiss for failure to state a claim. Nonetheless, having carefully reviewed plaintiff's complaint and both parties' motion briefs, this court is compelled to change its initial opinion and conclude that the complaint fails to state a valid claim against defendant. In addition, because a right to daily showers is not clearly established, this court must conclude that defendant Indermill is protected by qualified immunity from this lawsuit.
III. First Amendment -- Free Exercise Claim
Plaintiff contends that denying him daily showers violates his First Amendment right to free exercise of his religious beliefs. Defendant moves for dismissal, arguing that, although plaintiff establishes a religious need to wash daily, his alleged facts do not support a ...