The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
ORDER REQUIRING PLAINTIFF TO NOTIFY THE COURT OF HIS WILLINGNESS TO PROCEED ON HIS COGNIZABLE CLAIMS OR FILE A SECOND AMENDED COMPLAINT (Doc. 11)
Plaintiff, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on July 21, 2011. Before the Court is Plaintiff's first amended complaint filed on November 21, 2011. (Doc. 11)
The Court is required to review a case in which a prisoner seeks redress from a governmental entity or officer. 28 U.S.C. § 1915A(a). The Court must review the complaint and dismiss any portion thereof that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915A(b). If the Court determines the complaint fails to state a claim, leave to amend should be granted to the extent that the deficiencies in the pleading can be cured by amendment. Lopez v. Smith, 203 F.3d 1122, 1127-28 (9th Cir. 2000) (en banc).
The Civil Rights Act under which this action was filed provides a cause of action against any "person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws [of the United States.]" 42 U.S.C. § 1983. To prove a violation of § 1983, a plaintiff must establish that (1) the defendant deprived him of a constitutional or federal right, and (2) the defendant acted under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Collins v. Womancare, 878 F.2d 1145, 1147 (9th Cir. 1989). "A person deprives another of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation of which [the plaintiff complains]." Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1993) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). In other words, there must be an actual causal connection between the actions of each defendant and the alleged deprivation. See Rizzo v. Goode, 423 U.S. 362, 370-71 (1976).
"Federal Rule of Civil Procedure 8(a)(2) requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests[.]'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Nevertheless, a plaintiff's obligation to provide the grounds of entitlement to relief under Rule 8(a)(2) requires more than "naked assertions," "labels and conclusions," or "formulaic recitation[s] of the elements of a cause of action." Twombly, 550 U.S. at 555-57. The complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868, 883 (2009) (quoting Twombly, 550 U.S. at 570). Vague and conclusory allegations are insufficient to state a claim. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).
Plaintiff is a state prisoner who is a "sincere Muslim." (Doc. 11 at 5) Plaintiff alleges that while he was housed at Solano State Prison, from 2005 through 2007, he was given a religious diet chrono to provide him a Halal meal. Id. Plaintiff was transferred to CSP-Corcoran on October 25, 2009 and soon thereafter, requested a copy of his religious diet chrono so he could receive Halal meals at Corcoran. (Doc. 11 at 5) The counselor told him that he had to write to the Muslim chaplain to be placed on the religious diet. Id. Plaintiff wrote to the chaplain but did not receive a response and did not receive a copy of his previously issued diet chrono from his counselor. Id.
On August 7, 2010, Plaintiff made additional requests to receive religious meals given the approach of Ramadan, which was due to begin on August 11, 2010. (Doc. 11 at 5) Because there was no Imam at Corcoran, Plaintiff was told to write to Chaplain, R. Indermill about receiving the religious diet. Id. He wrote to R. Indermill on August 8, 2010 and received a "CDCR 30/30 religious diet request form" which he completed and returned via institutional mail on the same day. Id. On August 11, 2010, Plaintiff's psychologist told Plaintiff that he would be put on the list to receive the appropriate religious meals during the period of Ramadan. Id. Nevertheless, on this first day of Ramadan, he was served "regular non Halal foods." Id. at 6. When he still had not received the religious meal by August 12, 2010, Plaintiff again submitted a request to R. Indermill and a few days later, received another blank "CDCR 30/30 religious diet request form" and he again returned this form on the same date it was received. Id. Throughout the entire period of Ramadan, Plaintiff was not provided a Halal meal though on one day he was provided a vegetarian meal. Id.
On August 23, 2010, Plaintiff filed a 602 grievance but, when he did not receive a response, he filed another one on October 20, 2010 and on November 8, 2010. (Doc. 11 at 6-7) The first two, Plaintiff sent to T. Cano, the appeals coordinator but he sent the final one to the warden, R. Lopez. Id. On November 21, 2012, Plaintiff alleges he sent another "CDCR 30/30 religious diet request form" but this time sent it to the Native American spiritual advisor, B. Albitre. (Doc. 11 at 7) On December 8, 2010, B. Albitre interviewed Plaintiff and told him that he had to fill out a "CDCR 30/30 religious diet request form." Id. Nevertheless, the religious meal request--dated August 10, 2010-- was approved by B. Albitre on December 9, 2010.*fn1 (Doc. 1 at 27-29)
A. Interference with the practice of Plaintiff's religion
Plaintiff raises his claims under the First Amendment and under the Religious Land Use and Institutionalized Persons Act ("RLUIPA"). 42 U.S.C. § 2000cc-1.
"Inmates clearly retain protections afforded by the First Amendment . . . including its directive that no law shall prohibit the free exercise of religion." O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987) (citations omitted). However, "[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system." Id. (citation and internal quotation marks omitted). A prison regulation may therefore impinge upon an inmate's right to exercise his religion if the ...