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Brian Porter v. Cherylee Wegman

September 23, 2011

BRIAN 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 CERTAIN CLAIMS (DOC. 12)

Screening Order

I. Background

Plaintiff Brian 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. On April 22, 2011, the Court dismissed Plaintiff's complaint for failure to state a claim, with leave to amend. Doc.11. On June 3, 2011, Plaintiff filed his first amended complaint. Doc. 12.

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 Amended 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.

Plaintiff alleges the following. Plaintiff is a practicing member of the House of Yahweh religion. Am Compl. ¶ 5. Plaintiff is required to keep all Sabbath days holy, and thus eat only kosher foods. Id. Plaintiff is also required to observe all holy days, including observing for 8 days the Passover and Feast of Unleavened Bread. Id. Plaintiff cannot eat food that contains or has come in contact with leaven/yeast during this time. Id. ¶ 7. In 2008, Plaintiff applied to receive Kosher meals and was approved by Jewish Chaplain Mehlman and Defendant Wegman. Id. ¶ 9. On November 21, 2008, Defendant Wegman circulated a memo to several KVSP staff, including chaplain Mehlman, which stated that the House of Yahweh was a religious hate group. Id. ¶ 10.

The Jewish Kosher diet program ("JKDP") provides meals that adhere te the requirements for Yahweh's Passover Feast of Unleavened Bread, also known as Passover. Id. ¶

11. 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, in order to receive reasonable accommodations for this religious observance. Id. The event package included information of the required ceremonial foods for each meal and day of the religious feast, and the laws governing it. Id. ¶ 12. Plaintiff did not receive any communication regarding this feast. Id.

On April 7, 2009,*fn1 Plaintiff received a religious diet card for a vegetarian diet, signed and authorized by Defendant Wegman. Id. ¶ 14. Authorization for diet cards requires approval by a chaplain. Plaintiff did not request a vegetarian diet, but to be placed on the JKDP. Id. Plaintiff was not interviewed by Defendant Wegman prior to his placement on the vegetarian diet. Id. The vegetarian diet does not meet Plaintiff's religious dietary needs. Id. ¶ 15. Plaintiff is required to eat the meat of the Passover sacrifice, and unleavened bread on Passover night. Id. Plaintiff is required to eat meats that have not been heated during the Sabbath, and is required to eat Kosher foods, including the vegetables. Id. The vegetarian diet does not meet any of these religious requirements. Id.

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. Id. ¶ 16. Plaintiff was not provided Kosher meals until April 15. Id. Plaintiff was aware of the prison's policy that forfeiture of meals may result in disciplinary action, and that taking regular meals may forfeit receiving religious meals. Id. Plaintiff thus took the regular meals but did not eat them, thus starving for several days. Id.

Defendant Wegman contacted Plaintiff on April 15, 2009. Id. ΒΆ 18. Plaintiff's parents had called the institution concerning Plaintiff being starved. Id. Plaintiff informed Defendant of his religious dietary requirements for the religious feast. Id. Defendant Wegman admitted that his rights were being violated. Id. The religious event package had apparently been misplaced. Id. Defendant Wegman blamed the lack of communication on her ...


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