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Mayweathers v. Swarthout

March 1, 2010


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


Plaintiff is a state prisoner proceeding without counsel who seeks relief pursuant to 42 U.S.C. § 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This action was reassigned to the undersigned on February 9, 2010.*fn1

On December 18, 2009, this court directed plaintiff to submit, within thirty days, a completed in forma pauperis application that included a certified copy of his prison trust account. (Dkt. No. 7.) Plaintiff thereafter submitted a further trust account statement (Dkt. No. 9), and then inquired whether a more complete document had been forwarded by prison officials (Dkt. No. 11).

Although the court has not received the full document referenced in plaintiff's inquiry, review of plaintiff's initial in forma pauperis application and his further trust fund statement provides adequate information to assess plaintiff's eligibility. The court finds that plaintiff has made the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.

Plaintiff is required to pay the statutory filing fee of $350.00 for this action.

28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's prison trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).

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).

The court has reviewed plaintiff's Amended Complaint filed December 22, 2009 (Dkt. No. 8) and, for the limited purposes of § 1915A screening, finds that it states cognizable claims against defendants Abdul R. Nasir, Leah Sudran, and Gary Swarthout.*fn2 See 28 U.S.C. § 1915A. Plaintiff, a Muslim incarcerated at California State Prison--Solano ("CSP--Solano"), alleges that he is being denied a Halal (or alternatively, Kosher) diet in accordance with his religious beliefs, in violation of the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"), 42 U.S.C. § 2000cc, et seq. (thus implicating plaintiff's First Amendment right to free exercise of his religion), and in violation of his Fourteenth Amendment right to equal protection. Plaintiff alleges that the vegetarian diet offered him fails to provide the ritually-slaughtered meats that he is required by his religion to consume. Plaintiff alleges that defendants Muslim Chaplain Abdul R. Nasir and Jewish Chaplain Leah Sudran improperly refused to approve plaintiff's diet requests, and that defendant Warden Gary Swarthout failed to require adherence to administrative regulations.

Plaintiff also names, in the text of his Amended Complaint, defendant Barry Smith, who "works at Sacramento Office of Community Partnerships for the CDCR" (Dkt. No. 8, at 2). However, plaintiff fails to identify any conduct by Smith, who is apparently associated with parole services, relative to the challenged conduct at CSP--Solano. There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a defendant's actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362, 371 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

The court finds, therefore, that the Amended Complaint does not state a cognizable claim against defendant Barry Smith. Accordingly, the claims against him will be dismissed with leave to amend. If plaintiff elects to attempt to further amend his complaint to state a cognizable claim against Smith, he has thirty days so to do. However, plaintiff is not obligated to further amend his complaint.

If plaintiff elects to proceed forthwith against defendants Nasir, Sudran, and Swarthout, against whom he has stated cognizable claims for relief, then within thirty days he must return the materials for service of process enclosed herewith. In this event the court will construe plaintiff's election as consent to dismissal, without prejudice, of all claims against defendant Smith.

Any further amended complaint must show that the federal court has jurisdiction, the action is brought in the right place, and plaintiff is entitled to relief if his allegations are proven. It must contain a request for particular relief. Plaintiff must identify as defendants only persons who personally participated in a substantial way in depriving plaintiff of a federal constitutional right. Johnson v. Duffy, supra, 588 F.2d at 743 (a person subjects another to the deprivation of a constitutional right if he does an act, participates in another's act or omits to perform an act he is legally required to do that causes the alleged deprivation). If plaintiff contends he was the victim of a conspiracy, he must identify the participants and allege their agreement to deprive him of a specific federal constitutional right.

In a further amended complaint, the allegations must be set forth in numbered paragraphs. Fed. R. Civ. P. 10(b). Plaintiff may join multiple claims if they are all against a single defendant. Fed. R. Civ. P. 18(a). If plaintiff has more than one claim based upon separate transactions or ...

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