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Louis Oliverez, Jr v. Ben Albitre

December 6, 2010

LOUIS OLIVEREZ, JR., PLAINTIFF,
v.
BEN ALBITRE, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANTS' MOTION TO DISMISS BE DENIED THIRTY-DAY OBJECTION PERIOD

(Doc. 14)

Findings and Recommendations Addressing Motion to Dismiss

I. Procedural History

Plaintiff Louis Oliverez, Jr., a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on February 26, 2009. This action is proceeding on Plaintiff's amended complaint, filed May 7, 2009, against Defendants Albitre and Adams for violation of the Free Exercise Clause of the First Amendment. Plaintiff's claim arises out of his inability to gain access to his prayer oil for prayer and worship.

On April 23, 2010, Defendants filed a motion to dismiss the claim against Defendant Adams for failure to state a claim and to dismiss the action for failure to exhaust. Fed. R. Civ. P. 12(b). On June 16, 2010, after obtaining an extension of time, Plaintiff filed an opposition, and on June 17, 2010, Defendants filed a reply.*fn1 Plaintiff filed a surreply on July 6, 2010. Although there is no right to file a surreply, the Court elects to consider it in this case.

II. Motion to Dismiss Defendant Adams for Failure to State a Claim

A. Legal Standard

"The focus of any Rule 12(b)(6) dismissal . . . is the complaint," Schneider v. California Dept. of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998), which 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). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)); 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. Iqbal, 129 S.Ct. at 1949-50; Moss, 572 F.3d at 969.

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," Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 555), and 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). However, although the pleading standard is now higher, prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings liberally construed and to have any doubt resolved in their favor. Hebbe v. Pliler, No. 07-17265, 2010 WL 4673711, at *3 (9th Cir. Nov. 19, 2010) (citations omitted).

B. Plaintiff's Allegations

Plaintiff is an inmate at California State Prison-Corcoran (CSP-Corcoran). Defendant Adams is the warden of CSP-Corcoran and Defendant Albitre is the Native American spiritual leader at CSP-Corcoran.

In September 2008, Plaintiff ordered a book and a sixteen-ounce container of prayer oil from an approved outside vendor. (Doc. 7, Amend. Comp., court record p. 3.) Pursuant to prison policy, a representative of the chaplain's office keeps inmates' prayer oil and distributes it two ounces at a time for prayer and worship. (Id., p. 4.) Defendant Albitre is the representative for the pagan/earth-based religious groups, including Native Americans, Odinists, and Wiccans. (Id.) Plaintiff, a Wiccan, requested two ounces of prayer oil from Defendant Albitre, but received no response. (Id.) Plaintiff then requested a copy of his order receipt, but the request was denied by Defendant Albitre. (Id.)

On November 10, 2008, Plaintiff submitted an inmate appeal, but received no response. (Id.) On December 13, 2008, Plaintiff submitted a second inmate appeal requesting that his first appeal be addressed, but he again received no response.*fn2 (Id.) On January 30, 2009, Plaintiff wrote a letter to Defendant Adams complaining about Defendant Albitre's failure to respond to his requests for the issuance of his prayer oil ...


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