The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING CERTAIN CLAIMS AND DEFENDANTS (ECF No. 60) OBJECTIONS DUE WITHIN THIRTY DAYS
Plaintiff Michael Mootry ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On December 20, 2011, an order issued adopting findings and recommendations, granting Defendants' motion to dismiss, and granting Plaintiff thirty days in which to file a second amended complaint. (ECF No. 50.) Following the grant of several motions for an extension of time, Plaintiff filed a second amended complaint on May 1, 2012. (ECF No. 60.)
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 "fails to state a claim on which relief may be granted," or that "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).
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, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964-65 (2007)).
Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, but the pleading standard is now higher, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted), and to survive screening, Plaintiff's claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at , 129 S. Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The "sheer possibility that a has defendant acted unlawfully" is not sufficient, and "facts that are 'merely consistent with' a defendant's liability" falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949; Moss, 572 F.3d at 969.
Further, under section 1983, Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955).
II. Second Amended Complaint Allegations
Plaintiff is in the custody of the California Department of Corrections and Rehabilitation and is incarcerated at California State Prison, Los Angeles County. Plaintiff's claims in this action arose out of his confinement at Kern Valley Staet Prison from June 2006 though July 2010.
Plaintiff alleges after a prison chaplain was let go for discriminatory and retaliatory purposes, Muslim inmates were without a chaplain from October 2007 through April 2009. (Sec. Am. Compl. 3, ECF No. 60.) In December 2007, Defendant Hedgpeth enforced a Department of Operations policy that did not allow Muslim inmates to purchase or possess prayer oil and forbade inmate ministers from leading inmate religious services without a chaplain or volunteer. (Id. at 3-4.) These policies, which were implemented and enforced by Defendants Hedgpeth and Flores officially abolished Jumu'ah prayer services in March 2008. Plaintiff filed an administrative appeal regarding the denial of Jumu'ah services and a Muslim chaplain or inmate minister on March 28, 2008. (Id. at 4.)
Plaintiff's appeal was improperly screened out several times by Defendant Billings as a request for an interview. (Id. at 4-5.) After prison officials were ordered to let his appeal proceed, Defendant Tarnoff ordered Plaintiff to resubmit his request on an inmate appeal form. On September 23, 2008, Defendant Wegman interviewed Plaintiff for the appeal and Defendant Cabrera was present. Defendant Wegman partially granted Plaintiff's appeal stating that Jumu'ah services are scheduled on Fridays at noon. (Id. at 6.)
Plaintiff responded that Jumu'ah services were not being conducted and Defendant Wegman did not address the issue of an inmate minister being allowed to conduct Jumu'ah services. (Id. at 6-7.) Defendant Lewis partially granted Plaintiff, appeal and informed Plaintiff that the prison only had a Jewish Rabbi, who did not work on Fridays due to his religious beliefs, that sometimes volunteers are available, and when it is determined that a chaplain cannot be obtained the prison will accommodate Plaintiff's religious needs. (Id. at 7.) Plaintiff's Director's Level appeal was denied stating that a Muslim chaplain should be hired in the near future, and the individuals that had been volunteering had discontinued for personal reasons. (Id. 8.)
Plaintiff alleges that Defendant Billings failed to process his administrative appeals for pretextual reasons in violation of the First Amendment. (Id. at 9-10.) Defendants Hegpeth, Flores, Wegman, Lewis, and Cabrera violated his rights under the Free Exercise Clause of the First Amendment by denying him access to Jumu'ah prayer services and a Muslim chaplain or inmate ministers. (Id. at 11-12.) Defendant Cabrera maintained an underground anti-Muslim policy because he would refuse to sign the sheet to allow Muslim inmates to the be released to attend Jumu'ah or Ta'aleem services and allowed officers under his authority to delay releasing Muslim inmates for services. (Id. at 14.) Instead of searching Muslim inmates when they exited their cells, Defendant Cabrera and other officers would sit around drinking soda and would ignore the inmates. On occasion, Defendant Cabrera would forbid Muslim services from being conducted, sometimes because the guards were celebrating a birthday or other event. (Id. at 15.)
Defendant Wegman did not address Plaintiff's grievance that the Jewish Rabbi did not work on Fridays, and therefore Jumu'ah services were not being conducted. (Id. at 17.) Defendant Lewis responded to Plaintiff's inmate appeal and failed to grant a reasonable accommodation when he had the authority to do so. (Id. at 20.)
Defendants Hegdpeth, Flores, Wegman, Lewis, and Cabrera violated Plaintiff's right to equal protection under the Fourteenth Amendment by failing to hire a Muslim Chaplain for well over a year. The Muslim inmates were not allowed to be lead by an inmate chaplain, while the Men's Advisory Counsel was allowed to be lead by inmate representatives. (Id. at 25.) Members of other faiths had access to chaplains, but ...