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Larry William Cortinas v. Timothy Lockwood

November 8, 2011

LARRY WILLIAM CORTINAS,
PLAINTIFF,
v.
TIMOTHY LOCKWOOD, ET AL., DEFENDANTS.



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

(DOC. 11)

FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION FOR FAILURE TO STATE A CLAIM OBJECTIONS DUE WITHIN THIRTY DAYS

Findings And Recommendations

I. Background

Plaintiff Larry William Cortinas ("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. Plaintiff initiated this action by filing his complaint on December 7, 2010. Doc. 1. On June 3, 2011, the Court screened Plaintiff's complaint. The Court found that Plaintiff stated a cognizable claim against Defendant Mora for violation of the Eighth Amendment and the Equal Protection Clause of the Fourteenth Amendment, but failed to state any other claims against any other Defendants. The Court ordered Plaintiff either to file a second amended complaint or to notify the Court of his willingness to proceed only on the claims found to be cognizable. Doc. 8. On July 7, 2011, Plaintiff filed an amended complaint. Doc. 11.

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 incarcerated at the California Substance Abuse Treatment Facility in Corcoran, California. The events giving rise to this action occurred while Plaintiff was incarcerated at Pleasant Valley State Prison ("PVSP") in Coalinga, California. Plaintiff names as Defendants: Timothy Lockwood, chief of regulation and policy of CDCR; Scott Kernan, undersecretary of operations for CDCR; James Yates, warden of PVSP; correctional officers Nash, Walker, and Herrera; J. Walker, health care services chief of CDCR; correctional lieutenant W. Meyers; B. Phillips, catholic chaplain at PVSP; appeals examiner D. Artis of CDCR; D. Foston, chief appeals examiner of CDCR; medical custodial officer Catlett of PVSP; licensed vocational nurse ("LVN") Mora; medical doctors Mardian, Rohrdanz, Brown, Dudarewicz; chief medical officer Duenas; medical doctor and healthcare manager F. Igbinosa. Plaintiff alleges violations of the Free Exercise Clause of the First Amendment, the Eighth Amendment, and the Fourteenth Amendment. Plaintiff requests as relief: declaratory judgment; monetary damages; costs of suit; and appointment of counsel.

Plaintiff's amended complaint reiterates allegations of his original complaint. Although Plaintiff omitted several defendants and several causes of action, the bulk of his allegations remain unchanged.

A. First Cause of Action

Plaintiff is a Muslim. On December 1, 2009, Defendants Brian Phillips denied Plaintiff's request for a Halal diet. Pl.'s Amend. Compl. 4:6-10. On January 13, 2010, Defendants W. Meyers and K. Nash denied Plaintiff's appeal. On March 10, 2010, Defendant James Yates denied Plaintiff's requested religious diet. Plaintiff cited to a California court case, in which three Muslim inmates received access to the Jewish kosher diet. On June 16, 2010, Defendants D. Artis and D. Foston denied Plaintiff's appeal at the director's level. Plaintiff contends a violation of the First Amendment, presumably the Free Exercise Clause.

"The right to exercise religious practices and beliefs does not terminate at the prison door. The free exercise right, however, is necessarily limited by the fact of incarceration, and may be curtailed in order to achieve legitimate correctional goals or to maintain prison security." McElyea v. Babbitt, 833 F.2d 196, 197 (9th Cir. 1987) (citing O'Lone v. Shabazz, 482 U.S. 342 (1987)); see Bell v. Wolfish, 441 U.S. 520, 545 (1979). Only beliefs which are both sincerely held and rooted in religious beliefs trigger the Free Exercise Clause. Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008) (citing Malik v. Brown, 16 F.3d 330, 333 (9th Cir. 1994)); Callahan v. Woods, 658 F.2d 679, 683 (9th Cir. 1981)). Under this standard, "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Turner v. Safley, 482 U.S. 78, 89 (1987). First, "there must be a valid, rational connection between the prison regulation and the legitimate government interest put forward to justify it," and "the governmental objective must itself be a legitimate and neutral one." Id. A second consideration is "whether there are alternative means of exercising the right that remain open to prison inmates." Id. at 90 (internal quotations and citation omitted). A third consideration is "the impact accommodation of the asserted right will have on guards and other inmates, and on the allocation of prison resources generally." Id. "Finally, the absence of ready alternatives is evidence of the reasonableness of a prison regulation." Id.

Plaintiff incorporates his inmate appeal regarding this issue, which was filed with his original complaint. Pl.'s Compl., Ex. 1, Grievance No. PVSP-09-02238. As before, Plaintiff appears to contend that because other Muslim inmates in a separate action were able to participate in the Jewish kosher diet, Plaintiff too should be allowed. Plaintiff's grievance was ...


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