The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
ORDER DISMISSING PLAINTIFF'S COMPLAINT WITH LEAVE TO AMEND (ECF NO. 1) AMENDED COMPLAINT DUE WITHIN THIRTY (30) DAYS SCREENING ORDER
Plaintiff Juan Sousa is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed October 21, 2011 pursuant to 42 U.S.C. § 1983. (Compl., ECF No. 1.)
The Complaint is now before the Court for screening.
II. 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, malicious," or 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).
Section 1983 "provides a cause of action for the 'deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393--94 (1989).
III. SUMMARY OF COMPLAINT
Plaintiff is a practitioner of a Mexican Indian (Aztec/Mayan/Toltec) religion (Compl. at 3.) Defendant correction staff members at Kern Valley State Prison (KVSP), applying California Department of Corrections and Rehabilitation (CDCR) religious accommodation policy*fn1 , determined that Plaintiff failed to make a showing of religious structure and doctrine sufficient for recognition of a Mexican Indian religious program at KVSP. They required Plaintiff instead use an existing Native American religious services program.
Plaintiff contends his religion is distinct from Native American religion. He claims Defendants have violated his rights under the Free Exercise Clause, Equal Protection Clause, and the Religious Land Use and Institutionalized Persons Act (RLUIPA). (Id. at 3-13, 39-40.)
He names as Defendants (1) C. Wegman, KVSP Community Resource Manager, (2) M.D. Biter, KVSP Warden. (Id. at 3.)
He seeks injunctive relief ordering that Mexican Indian religion be recognized as a religion and allowed to use the prison sweat lodge. (Id. at 3-4.)
A. Pleading Requirements Generally
To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated and (2) that the alleged violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987).
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, 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.'" Id. 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.
B. Personal Participation
To state a claim under § 1983, Plaintiff must demonstrate that each individually named defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). The Supreme Court has emphasized that the term "supervisory liability," loosely and commonly used by both courts and litigants alike, is a misnomer. Iqbal, 129 S.Ct. at 1949. Plaintiff must demonstrate that each defendant, through his or her own individual actions, violated Plaintiff's constitutional rights. Id. at 1948--49.
Plaintiff fails to allege any facts linking any individual Defendant to the decision by the KVSP Religious Review Committee denying accommodation of Plaintiff's Mexican Indian religion.*fn2
As noted Defendants can not be held liable under § 1983 solely because of supervisory capacity. Moreover, Defendants can not be held liable for their involvement in review of prison appeals. "Inmates lack a separate constitutional entitlement to a specific prison grievance procedure." Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988); see also Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (Actions in reviewing a prisoner's administrative appeal can not serve as the basis for liability under § 1983).
Plaintiff may not proceed against Defendants for alleged rights violation by the KVSP Religious Review Committee unless he alleges facts plausibly showing how each Defendant personally violated, or knowingly directed a ...