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Sherman-Bey v. Marshall

July 22, 2010


The opinion of the court was delivered by: Ralph Zarefsky United States Magistrate Judge


For the following reasons, the Court GRANTS Defendants' motion to dismiss the complaint but will grant leave to amend.

Plaintiff, Darren Eugene Sherman-Bey, is a state inmate. He claims that the defendant prison officials, citing rules, prevented him from engaging in the following three activities that he considers important to his religious observances: wearing a maroon fez, being supplied with services customized to his religious beliefs, and purchasing certain specially-scented oils not among the five oils permitted by the prison.


A. Parties

The pro se and in forma pauperis plaintiff in this civil rights action under 42 U.S.C. § 1983 is housed at California Men's Colony (CMC). The several defendants were all state prison employees at the time of the underlying events. With one exception, Plaintiff sues them as individuals and as officials. They include M. Cates, head of the entire state prison system, whom Plaintiff sues only in his official capacity; John Marshall, CMC's warden; E. Valenzuela (sued as Valenzula), a CMC associate warden; D. Connor, another associate warden; Ahmad Aladarbeh, a Muslim chaplain; H.W. Alderson, a Protestant chaplain; L. Moskowitz, a Jewish chaplain; Marty Cantu, a Native American spiritual leader; John Farao, a Catholic chaplain; and Abdul-Wahab Omeira, another Muslim chaplain.

Plaintiff initially wrote the names of several additional persons as defendants but pointedly struck out their names in the complaint. He helpfully explained that he was "blacking out the named defendants who cannot be held liable under section 1983 because they were only involved in the administrative grievance process." Comp. at 3. Due to an oversight, one of those non-defendants, T. Gonzalez, was listed on the Summons and was served with process. Because Plaintiff clearly indicated, in the complaint itself, his affirmative intent not to sue Gonzalez, the Court should dismiss Gonzalez from the action as a non-party who was served in error. (In his opposition, Plaintiff seeks to reverse himself again as to Gonzalez, explaining that he misunderstood what "personal involvement" meant. Opp. at 18. But it is the complaint that controls, not an opposition brief. Gonzalez simply is not a named defendant. Plaintiff may not use his opposition to a dismissal motion to amend his pleading.)

B. General Allegations

The following summary assumes the truth of the allegations in the complaint to the extent those allegations are well pleaded.

1. Red Fez

Plaintiff is a member of a religious group called the Moorish Science Temple of America (MST), and members wear red or maroon fezzes. Defendants rejected Plaintiff's request to purchase such a fez, citing prison regulations barring clothing in shades of red or blue, and would only permit him a white or gray fez. Plaintiff believes that the enforcement of this rule, as to him, is discriminatory. He notes that other inmates engaged in "sports activities do in fact wear and possess red and other colored clothing allegedly strictly prohibited (i.e., Red, Blue, Black, and Green jersey[s] and baseball caps)." See Comp. at 9-10, 12, 27. He cites no other examples of inmates being allowed to wear red clothing.

Plaintiff also was only permitted to wear a fez inside his cell and during religious services, although the prison did not similarly restrict prisoners with Muslim or Jewish headwear. Comp. at 10.

2. Religious Services

Defendants did not offer a prison religious service exactly matching MST's tenets. They offered various other services, including several Christian variants and Jewish and Muslim observances. The one closest to MST doctrine was a "non-sectarian" Islamic service. Although MST shares some fundamental beliefs with Islam, the two faiths have important differences. Plaintiff complained administratively. He also sent a proposal to the prison's Religious Review Committee to establish an MST group at CMC, including a list of MST members there. The administrative response was that Plaintiff's religious rights were being accommodated adequately through the availability of the Islamic services at CMC. See Comp. at 11-13.

3. Scented Oils

Finally, Defendants denied Plaintiff's request to order certain scented oils, intended for his use in religious observances, on the grounds that the desired oils were not among the five kinds allowed by CMC. Plaintiff admits that the oils he wanted are not required as a tenet of MST but says they are required by his individual beliefs. Comp. at 14-16.

C. Claims

Plaintiff asserts three legal claims for each of the above three alleged denials of religious matters, for a total of nine counts. Each such denial, he argues, violated his religious rights under the First Amendment, the Religious Land Use and Institutionalized Persons Act (RLUIPA),42 U.S.C.§ 2000cc-1 et seq., and the Fourteenth Amendment.

D. Dismissal Arguments

Defendants assert the following arguments for dismissal:

1. Plaintiff's allegations are insufficient to state a valid claim under any of his asserted theories.

2. Plaintiff failed to exhaust his administrative remedies as to the portion of his fez claim asserting that he improperly was restricted to wearing his fez in his cell and during religious observances.

3. Plaintiff improperly seeks vicarious liability against Defendants Cate, the head of the state prison system, and Marshall, the prison's warden.

4. Plaintiff cannot recover damages -- as opposed to other forms of relief -- on his RLUIPA claims or against any defendant in his or her official capacity.

5. Defendants in their individual capacity enjoy qualified immunity from damages. This Memorandum will discuss these arguments in a slightly different order for efficiency's sake, commencing with numbers 2, 3 and 4, before turning to the issues of qualified immunity and adequacy of the complaint's allegations.


The final part of Plaintiff's first (fez-related) claim is that Defendants wrongfully restricted his fez-wearing to inside his cell and during religious services. Defendants argue that Plaintiff failed to exhaust prison administrative remedies as to that subclaim. Defendants are correct.

A. Applicable Law

Under the Prison Litigation Reform Act (PLRA), a prisoner generally may not proceed with a civil rights action until he has exhausted all available administrative remedies. 42 U.S.C. § 1997e(a) ("No action shall be brought with respect to prison conditions under section 1983 of this title, or any other federal law, by a prisoner . . . until such administrative remedies as are available have been exhausted."). This rule governs all claims relating to "prison conditions," a term that includes not only general, ongoing conditions but also individual acts of alleged misconduct or neglect. See Porter v. Nussle, 534 U.S. 516, 524, 526-32, 122 S.Ct. 983, 152 L.Ed. 2d 12 (2002). Moreover, the rule applies even when a ...

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