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Fairwell v. Cates

August 2, 2010


The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge


Plaintiff is a state prisoner proceeding pro se. He seeks relief pursuant to 42 U.S.C. § 1983 and has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). Plaintiff was originally part of a group of prisoners who filed a joint action in case CIV S-10-0719 GGH. The claims were severed and each plaintiff was instructed to file an individual complaint. Plaintiff has filed the instant first amended complaint (FAC).

Plaintiff has submitted a declaration that makes 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). No initial filing fee will be assessed at this time. 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 trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for 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).

A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.

A complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S.Ct. 1848 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843 (1969).

Plaintiff names approximately 19 defendants and alleges many instances where the ability to practice his religion, Asatru/Odinism, was infringed upon. Plaintiff also sets forth claims of retaliation, violations of the American with Disabilities Act (ADA) and improper handling of inmate appeals. Plaintiff's first amended complaint will be dismissed with leave to file a second amended complaint within twenty-eight days of service of this order. Failure to file a second amended complaint will result in a recommendation that this action be dismissed.

Plaintiff's retaliation claims are based on another prisoner who practices Asatru/Odinism and filed a staff complaint against several defendants. Plaintiff then alleges that defendants retaliated against plaintiff. It is not clear what the staff complaint consisted of, or if it involved plaintiff. Plaintiff has not engaged in any protected conduct, though he says it has resulted in a 'chilling' effect for any future litigation he may file. Plaintiff also has additional claims of retaliation against other defendants that involve verbal harassment or in other instances plaintiff has failed to provide sufficient facts to identify the retaliation. All these claims are insufficient and dismissed with leave to amend.

With respect to the ADA claims, plaintiff alleges that defendants have not provided adequate seating with back support for him and other elderly or disabled people. Plaintiff states that he is disabled and has trouble walking and sitting for long periods of time. However it is difficult to discern what plaintiff requires for his alleged disability as opposed to what he wants for other practitioners of his religion that are not a party to this action. Plaintiff must provide additional information concerning his disability to show that he is a qualified individual and not discuss other prisoners who may be disabled.

Plaintiff's allegations regarding the ability to practice his religion are quite numerous. In the majority of the individual alleged violations in the complaint, plaintiff describes an example where his religious practices were infringed, but then attributes the violation to various defendants without describing how anyone was involved. For example, plaintiff alleges that defendants Martel, Long, Jackson, Lackner, Minnick, Petersen and Kaplan using their authority have obstructed plaintiff's access to religious property. FAP at 15. These types of allegations against multiple defendants with no specificity are repeated throughout the complaint. While this claim, with more specific information, may state a viable claim, plaintiff fails to identify which defendant obstructed his ability to access religious property or how. Simply saying that seven defendants prevented him from accessing religious property is insufficient. The court will not order service on nearly 20 defendants if there may be only allegations against a few of them. It is plaintiff's responsibility to identify how the individual defendants are connected to the alleged constitutional deprivation. Simply listing perceived violations and numerous defendants will not suffice. In addition, the majority of plaintiff's claims involve highlighting discrepancies of how he perceives that other religions are treated better than his religion.

Plaintiff has brought numerous claims under The Religious Land Use and Institutionalized Persons Act (RLUIPA) and the First Amendment right to the free exercise of religion.

Plaintiff is informed that defendants are not responsible for duplicating every religious benefit provided to other religions so that all religions are treated exactly the same. As the Supreme Court stated in Cruz v. Beto, 405 ...

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