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Brian Ellis Porter v. Cherylee Wegman

April 22, 2011

BRIAN ELLIS PORTER,
PLAINTIFF,
v.
CHERYLEE WEGMAN, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER DISMISSING COMPLAINT FOR FAILURE TO STATE A CLAIM WITH LEAVE TO FILE AMENDED COMPLAINT (DOC. 1) RESPONSE DUE WITHIN 30 DAYS

Screening Order

I. Background

Plaintiff Brian Ellis Porter ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"). Plaintiff initiated this action by filing his complaint on August 19, 2010. Doc. 1.

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 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.

II. Summary Of Complaint

Plaintiff is currently incarcerated at Kern Valley State Prison ("KVSP") in Delano, California, where the events giving rise to this action occurred. Plaintiff names as Defendants: Cherylee Wegman, Community Resource/Partnership Manager of KVSP; Matthew Cate, Secretary of CDCR; Ben Rice, Secretary of Legal Affairs of CDCR; Bruce Slavin, General Counsel of CDCR; Barry Smith, Community Resource Manager of CDCR; Kelly Harrington, Warden of KVSP; Reba Grissom, Associate Warden of KVSP; Tom Arlitz, Associate Warden of KVSP; Mark Howard, Food Manager of KVSP; Whitehead, lieutenant of KVSP; Francisco Diaz, Chaplain of KVSP; Daniel Mehlman, former Jewish Chaplain of KVSP; and Jessica Avery, Vocational Instructor of KVSP.

Plaintiff alleges the following. Plaintiff is a practicing member of the House of Yahweh religion. Plaintiff is required to observe for 8 days the Passover and Feast of Unleavened Bread. Plaintiff cannot eat food that contains or has come in contact with leaven/yeast during this time. In 2008, Plaintiff applied to receive Kosher meals and was approved by Defendants Mehlman and Wegman. On November 21, 2008, Defendant Wegman circulated a memo to Defendants Arlitz, Diaz, and Mehlman, which stated that the House of Yahweh was a religious hate group.

In February 10, 2009, Plaintiff and other House of Yahweh inmates in KVSP submitted a religious event package for April 10 through April 17 of 2009. This was after Defendant Wegman had denied Plaintiff's first religious event package for failure to reference a legitimate religious holiday. Plaintiff did not hear from Defendant Wegman for over two months.

Plaintiff and other House of Yahweh members attempted to contact Defendant Wegman by mail with a letter and copy circulated through Defendant Diaz, in order to arrange a meeting. Defendant Diaz did not schedule any meeting and did not relay any messages to Defendant Wegman.

Because neither Defendant Diaz nor Defendant Wegman responded, Plaintiff and other House of Yahweh inmates wrote letters to Defendant Mehlman as the Jewish Chaplain regarding the religious event package. Defendant Mehlman failed to relay these messages to Defendant Wegman, and failed to report Defendant Wegman. Defendant Mehlman knew that Plaintiff and House of Yahweh inmates would not be fed their religiously required meals.

Plaintiff and other House of Yahweh inmates then wrote letters to Defendant Matthew Cate, and circulated copies to Defendants Ben Rice, Bruce Slavin, Baary Smith, Kelly Harrington, and Tom Arlitz complaining of Defendant Wegman's religious discrimination and failure to provide a response regarding the religious event package. Plaintiff received no direct response from these Defendants. However, Defendant Reba Grissom responded to Plaintiff's letter by stating that Plaintiff should file this issue as a 602 inmate appeal.

On April 7, 2009, Plaintiff received a religious diet card for a vegetarian diet, signed and authorized by Defendant Wegman. Plaintiff had applied only for, and previously received, the Jewish Kosher diet program.

On April 9, 2009, Plaintiff contacted Defendant Mark Howard regarding the religious event package and Plaintiff's dietary requests. Defendant Howard told Plaintiff that he would see what he could do. Plaintiff did not hear from Defendant Howard until April 13, 2009.

On April 10, 2009, at sunset, the religious holiday of Yahweh's Passover and Feast of Unleavened Bread began, lasting until sunset of April 17, 2009. Plaintiff was starved by KVSP staff, receiving only two meals that were extremely inadequate for proper nourishment. Plaintiff contacted Defendant Howard on April 13, 2009 and informed him that Plaintiff had gone without food for three consecutive days and that he would continue to be starved unless the religious event package or Plaintiff's Jewish Kosher diet program is honored. Defendant Howard informed Plaintiff that Defendant Wegman had removed Plaintiff from the diet and that Defendant Wegman had provided him with the Religious Event Package that indicated House of Yahweh members were only to receive one meal for one day on April 17, 2009. Defendant Howard then produced the memorandum and event package and ...


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