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Ivory v. Tilton

January 8, 2010

NORMAN IVORY, PLAINTIFF,
v.
JAMES E. TILTON, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

SCREENING ORDER REQUIRING PLAINTIFF TO EITHER FILE AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON CLAIMS FOUND TO BE COGNIZABLE (Doc. 1) THIRTY-DAY DEADLINE

Screening Order

I. Screening Requirement

Plaintiff Norman Ivory, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 2000cc-1 (Religious Land Use and Institutionalized Persons Act of 2000) on July 20, 2009.

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

II. Legal Standard

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)(2). 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, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). "[P]laintiffs [now] face a higher burden of pleadings facts . . ," Al-Kidd v. Ashcroft, 580 F.3d 949, 977 (9th Cir. 2009), and while a plaintiff's allegations are taken as true, courts "are not required to indulge unwarranted inferences," Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).

To state a viable claim for relief, Plaintiff must set forth sufficient factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S.Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Id.

III. Plaintiff's Claims

A. Summary of Complaint*fn1

At the time of the filing of this action, Plaintiff was housed at California State Prison-Corcoran. Plaintiff is currently housed at the Los Angeles County Jail, and brings this suit against California Department of Corrections and Rehabilitation Director James E. Tilton, Warden James Hartley, Associate Warden Rosemary Ndoh, Correctional Captain M. V. Sexton, Correctional Lieutenant A. Valdez, Correctional Officers M. D. Foucht and S. Meraz, and Does 1-9 for the violation of his rights while he was housed at Avenal State Prison (ASP) in 2008 and 2009.

Plaintiff alleges that he requires a Kosher diet for religious reasons, and was harassed, abused, and persecuted while at ASP following his submission of a group appeal in which he addressed the failure of prison officials to meet the minimum standards for the Jewish Kosher Meal Program and complained of the hostility he experienced when he tried to address the issue informally. Immediately following the submission of the group appeal, Plaintiff was transferred from Facility 1 to Facility 5, and the next month he was transferred to Facility 6, where he faced harsh treatment.

Plaintiff alleges that following his transfer to Facility 6, he was called "Kosher boy" in front of the general population inmates, leading to the perception that Plaintiff was a problem amongst staff and inmates. (Doc. 1, Comp., court record p. 5, ¶12.) Plaintiff's food was both under heated and burned, and his meals were withheld on several occasions between December 2008 and January 2009, purportedly because his name was not on the list of inmates approved to receive Kosher meals. During the same time period, Plaintiff did not receive the eating utensils to which he was entitled under the meal program, including a disposable tray, bowl, spoon, and cup. When Plaintiff wrote to Defendant Ndoh to complain about the treatment, he was told to file an appeal.

On January 19, 2009, Plaintiff was standing in line for breakfast when Defendant Valdez ordered him out of line and back to his housing unit without any breakfast. Plaintiff's appeal of that incident was partially granted.

On January 27, 2009 Plaintiff went to the dining hall and received his breakfast. When he complained to Defendant Foucht that he did not receive a cup for his beverage, Foucht said, "I'm not giving you nothing[,] Kosher boy." (Comp., p. 6, ¶14.) Plaintiff told Foucht that it was not his position, as a correctional officer, to grant or deny Plaintiff a cup, and that Plaintiff needed to speak to a cook. Defendant Valdez then said, "That[']s it[.] [Y]ou[']re done[.] [G]et out of the chow hall." (Id.) Plaintiff exited the chow hall in compliance with the order, and was then placed in mechanical restraints and a holding cage for an hour on Defendant Valdez's order.

When Plaintiff was released from the holding cage and his restraints were being removed by Defendant Foucht, Foucht attempted to provoke Plaintiff by jerking Plaintiff violently and verbally taunting him. Plaintiff kept silent and was ordered to return to his housing unit without breakfast.

Upon arrival at his housing unit, Defendant Meraz opened the door to release other inmates for work but refused to let Plaintiff in and slammed the door in Plaintiff's face. Plaintiff said, "[H]ey[,] it[']s cold out here," and Defendant Meraz burst through the door, charged Plaintiff, and struck Plaintiff in the chest hard enough to make Plaintiff's head to hit the concrete wall, which caused Plaintiff to lose his breath in pain, become dizzy, and almost lose consciousness. (Id., p. 7, ¶16.) Defendant Meraz pointed his pepper spray canister at Plaintiff's face the whole time, and taunted him. Meraz then placed Plaintiff in mechanical restraints and told Plaintiff he was going to take care of Plaintiff. Defendant Meraz filed a false report stating that Plaintiff threatened to assault him; and stole, destroyed, or otherwise disposed of Plaintiff's property while Plaintiff was being transported to administrative segregation. Prior to Plaintiff's transport to administrative segregation, he heard Defendant Sexton state to others, including Defendants Valdez and Foucht, that this ought to teach Plaintiff about challenging them with his inmate appeals and that Plaintiff was lucky they did not kick his teeth in.

B. Free Exercise of Religion and RLUIPA Claims

Plaintiff alleges that, prior to his transfer to Facility 6, he was not provided with a Kosher diet as required by his religion, in violation of his rights under the Free Exercise Clause of the First Amendment and the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA).

"Inmates . . . retain protections afforded by the First Amendment, including its directive that no law shall prohibit the free exercise of religion." O'Lone v. Estate of Shabazz, 482 U.S. 342, 348, 107 S.Ct. 2400 (1987) (internal quotations and citations omitted). The protections of the Free Exercise Clause are triggered when prison officials substantially burden the practice of an inmate's religion by preventing him from engaging in conduct which he sincerely believes is consistent with his faith. Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008); Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir. 1997), overruled in part by Shakur, 514 F.3d at 884-85. Further, RLUIPA precludes the government from imposing a substantial burden on the religious exercise of inmates, unless that burden is in the furtherance of a compelling government interest, and is the least restrictive means of furthering that interest. 42 U.S.C. § 2000cc-1.

Plaintiff alleges that prison officials failed to meet the minimum requirements of the Jewish Kosher Meal Program, but it is not clear what their failings entailed and how they burdened the practice of Plaintiff's religion (e.g., was Plaintiff forced to either eat foods in violation of his religious beliefs or go hungry, was Plaintiff given an incomplete meal, etc.?). Further, Plaintiff has not linked this issue to any particular defendant. Therefore, Plaintiff fails to state a claim for violation of the Free Exercise Clause or RLUIPA arising from the alleged failure to provide Jewish inmates with an appropriate Kosher diet as mandated by the meal program. In addition, although Plaintiff alleges that following his transfer to Facility 6, he was not provided a meal or appropriate eating utensils on several occasions, it is not clear whether this was a failing of the general ...


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