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Kevin Iloff v. C. Herrera

March 28, 2012

KEVIN ILOFF,
PLAINTIFF,
v.
C. HERRERA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

ORDER DISMISSING PLAINTIFF'S FIRST AMENDED COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM (ECF No. 20) SECOND AMENDED COMPLAINT DUE WITHIN THIRTY DAYS

Plaintiff Kevin Iloff ("Plaintiff") is a state prisoner proceeding pro se in and forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

The Court previously screened Plaintiff's initial Complaint and dismissed it for failure to state a claim. (Order, ECF No. 15.) Plaintiff filed a First Amended Complaint on November 23, 2011. (Am. Compl., ECF No. 20.) That Amended Complaint is now before the Court for screening. Plaintiff again fails to state a claim. Plaintiff will be given one more opportunity to amend.

I. SCREENING REQUIREMENT

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, ___ U.S. ___, ___, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic 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.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). Facial plausibility demands more than the mere possibility that a defendant committed misconduct and, while factual allegations are accepted as true, legal conclusions are not. Id. at 1949-50.

II. PLAINTIFF'S FIRST AMENDED COMPLAINT

Plaintiff is a prisoner currently housed at Pleasant Valley State Prison ("PVSP"), where all of the events alleged in his Amended Complaint occurred. Plaintiff brings a claim for violation of his First Amendment rights and also appears to be alleging violations of his rights under the Equal Protection Clause of the Fourteenth Amendment and the Religious and Land Use and Institutionalized Persons Action ("RLUIPA"). Plaintiff brings this action against the following individuals: 1) James Yates, Warden of PVSP, 2) Wendy Myers, Community Partnership Manager, 3) C. Herrera, an appeals coordinator at PVSP, 4) E.H. Bells, Associate Warden of Central Services at PVSP, 5) K. Nash, a member of the Religious Review Committee at PVSP, 6) B. Farkas, a member of the Religious Review Committee at PVSP, 7) D. Stone, a member of the Religious Review Committee at PVSP, 8) J. Benavidez, a member of the Religious Review Committee at PVSP, 9) D. McGee, a member of the Religious Review Committee at PVSP, and Does 1-10, who were employed at PVSP or California Department of Corrections and Rehabilitation ("CDCR") who had the authority to make decisions regarding Plaintiff's ability to practice his religious beliefs.

Plaintiff's allegations are somewhat disorganized but can be outlined as follows: Plaintiff is a practicing Odinist/Asatru. (Am. Compl. at 3.) This an earth/nature based religion recognizing the gods and goddesses of northern and western Europe. (Id.) Plaintiff explains beliefs associated with his religion, including, but not limited to, the following: his religion requires a striving for certain qualities such as courage, fidelity, truth; believers must honor their ancestors; and believers must learn two commandments. (Id. at 3-4.) The religion requires use of religious artifacts such as the Hallowing Hammer, Gandr the Runic Wand, the Oath Ring, the Sacred Runes, the Mead Horn and Mead, incense, oils, herbs, Thor's Hammer, candles, and the Sacred Fire. (Id. at 5-6.)

Plaintiff was previously housed at California State Prison at Sacramento. ("CSP/SAC"). (Am. Compl. at 7.) While there, he was allowed to order all of the religious items he needed. (Id.)*fn1 Even though PVSP has a lower custody and security level than CSP/SAC, religious artifacts permitted at CSP/SAC are not allowed at PVSP. (Id. at 8.)

Plaintiff specifically alleges that his orders for religious artifacts were often denied. (Am. Compl. at 8.) Even some items approved and ordered at PVSP were sent back without a given reason. (Id.) Plaintiff sent Defendant Myers a request for a Hallowing Hammer, and both Defendant Myers and her supervisor approved the order. (Id.) When Plaintiff ordered the hammer and it arrived, it was detained by an R&R officer, and Defendant Myers denied Plaintiff's request to have it returned to him. (Id.) Plaintiff had to send the hammer home at his own expense. (Id.) Even though the hammer had the dimensions shown in the catalog, Plaintiff was told that there were concerns about the decorative studs and the weight of the hammer. (Id. at 9.) To allay these concerns, Plaintiff offered to remove the studs and drill holes in the wood to lighten it. (Id.) Plaintiff's offers to compromise were rejected. (Id.)

Plaintiff was not allowed to order natural oils such as those Muslim inmates were allowed. (Am. Compl. at 9.) This issue was raised in the Rouser case, and the Court in that case eventually allowed inmates to order four different oils. (Id.) However, none of these permissible oils can be used for Plaintiff's religious practices. (Id.) Plaintiff needs natural oils because the oils are used to draw the spiritual essence of the gods and goddesses into his sacred space. (Id.) Each oil has a vibration that corresponds to the energies and essences of the gods and goddesses, as do the crystals, stones and other natural products required by Plaintiff's religion. (Id. at 9-10.) Plaintiff was denied the ability to order these natural, required items without any valid penological reason. (Id.) Plaintiff was allowed to order his required herbs, oils, and crystals while at CSP/SAC. (Id.)

Inmates at PVSP are only allowed one special religious purchase per quarter. (Am. Compl. at 10.) As a result, every quarter, Plaintiff has to preplan for the following quarter and account for the different group rituals, group ceremonies, and personal rituals. (Id.) Plaintiff ordered the items needed each quarter, but the items were returned by PVSP without reason and without notice to Plaintiff. (Id. at 11.) He learned of the returns only when the supplying company credited his account. (Id.) These actions denied Plaintiff religious artifacts necessary to the practice of his religion. (Id.) Plaintiff's inquiries to R&R and Defendant Myers regarding his packages were not answered. (Id.)

Religious artifacts actually received were confiscated from inmates' cells, desecrated and destroyed without any penological purpose. (Am. Compl. at 11.)*fn2 (Id.) Items were removed from cells because inmates did not have receipts for them. (Id. at 12.) They did not have the receipts for them because R&R would not give the receipts to them. (Id.) After discussing the matter with inmates and R&R, Defendant Myers advised that inmates would be getting copies of the receipts. (Id.) They are still not getting receipts and prison officials are still confiscating artifacts because of lack of receipts. (Id.) Items confiscated are destroyed, not held pending appeal as required. (Id. at 16.) Appeals coordinators at PVSP refuse to process Odinist/Asatru inmates' appeals properly. (Id.)

Prison officials also count religious books toward a ten book limit, but Plaintiff's religion requires twenty books. (Am. Compl. at 12.) Prison officials have provided Odinist/Asatru inmates with only one small shared locker to store their books and artifacts. (Id.) Other faiths have entire libraries stored in the chapel. (Id.) Odinist/Asatru adherents have their materials and books confiscated as fire hazards if they keep them in their cells. (Id.) Prison officials will not allow inmates to order Kindles so books can be stored electronically. (Id. at 12-13.)

Prison officials only allow inmates to wear Thor's Hammers on their way to and from chapel; Christian inmates are allowed to wear "theirs" all of the time. (Am. Compl. at 13.)

PVSP has shown favoritism to the five faiths by hiring chaplains for them. (Am. Compl. at 13.) All five, except for Native American, are based on the Bible. (Id.) Officials at PVSP refuse to work with religions based on pagan beliefs. (Id.) The only chaplain left at PVSP, Chaplain McGee, refuses to help inmates with pagan beliefs. (Id.) This denies Plaintiff and similarly situated inmates equal protection and equal treatment. (Id.)

Because several appeals relating to these issues have been filed, PVSP has created a Religious Review committee. (Am. Compl. at 14.) None of the committee members is of a pagan faith. (Id.) Plaintiff and other pagan inmates have no voice on the committee. (Id.) As a result, most of their issues and requests are denied. (Id.)

PVSP denies Plaintiff and others the ability to light candles or incense or have lighters. PVSP allows Odinist/Asatru inmates to have a lighter in the central control room for use when escorted to the Nature Base Religious Area. (Id. at 14.) However, this lighter is used by other pagan groups, and it takes weeks or months for it to be replaced when it runs out of fluid. (Id.) During such time ...


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