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Keith Ross v. A. Hedgepeth

January 26, 2011

KEITH ROSS,
PLAINTIFF,
v.
A. HEDGEPETH, ET AL.,
DEFENDANTS.



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

FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF CERTAIN CLAIMS, WITH LEAVE TO FILE AMENDED COMPLAINT THIRTY-DAY OBJECTION PERIOD

(Doc. 1)

Findings and Recommendations Following Screening of Complaint

I. Screening Requirement

Plaintiff Keith Ross, a state prisoner proceeding pro se and in forma pauperis, filed this civil action on January 12, 2009, pursuant to 42 U.S.C. § 1983, 42 U.S.C. § 2000cc-1 (the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA")), and 18 U.S.C. § 1962 (Racketeer Influenced and Corrupt Organizations Act ("RICO")). Plaintiff seeks to impose liability on Kern Valley State Prison Warden A. Hedgpeth; Captain E. Flores; Chief Inmate Appeals Coordinator N. Grannis; Appeals Coordinators B. Gricewhich, C. Pfeiffer, and T. Billings; Receiving and Release Sergeant A. Marta; and Lieutenant D. Lee for violating his rights under the First and Fourteenth Amendments of the United States Constitution, RLUIPA, and RICO.

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).

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 (2007)), 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). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S.Ct. at 1949.

Under section 1983, Plaintiff must demonstrate that each defendantpersonally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of 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. Iqbal, 129 S.Ct. at 1949-50; Moss, 572 F.3d at 969.

II. Plaintiff's Claims

A. Summary of Allegations

Plaintiff is confined at Kern Valley State Prison in Delano, California. On or around October 15, 2007, ten bottles of prayer oil which Plaintiff had ordered from an authorized vendor arrived at the prison. Plaintiff was not informed that his package arrived and on October 23, 2007, he submitted an inmate appeal inquiring about the package. That appeal did not receive any response, but shortly thereafter, Plaintiff was summoned to the chapel by Muslim chaplain Bilal Mustafa, who informed him that his package had arrived.

Chaplain Mustafa opened the package in front of Plaintiff and another inmate, and handed Plaintiff the miswak from the package.*fn1 Upon finding the prayer oil, Chaplain Mustafa told Plaintiff he had been instructed to send all prayer oil to the security squad for testing to confirm the contents were oil rather than liquid narcotics. After completion of the testing, the oil would be given to Defendant Marta, the receiving and release officer, and returned to Chaplain Mustafa for distribution.

When Plaintiff urged Chaplain Mustafa to let him have the prayer oil, Chaplain Mustafa said he was under investigation because he had been complaining that religious items ordered by inmates kept disappearing from the warehouse. Chaplain Mustafa said that because of his complaints, Muslim inmates were being denied Halaal foods on a daily basis and were being denied their religious celebrations, so he had to follow all the rules set by prison officials.

At some point thereafter, Chaplain Mustafa was escorted off the prison grounds and fired, purportedly for being in possession of contraband unrelated to Plaintiff's religious package. As of November 2008, when Plaintiff filed this action, his package had not been ...


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