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Brian Ellis Porter v. Matthew Cate

September 25, 2012


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




On December 21, 2011, Plaintiff Brian Ellis Porter, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1.) Plaintiff consented to Magistrate Judge jurisdiction. (ECF No. 4.) Plaintiff's Complaint is now before the Court for screening.


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).


The Complaint names the following individuals as Defendants: (1) Matthew Cate, Secretary, California Department of Corrections and Rehabilitation (CDCR); (2) M.D. Biter, Warden, Kern Valley State Prison (KVSP); (3) S. Lopez, Chief Medical Officer, KVSP; (4) Cherylee Wegman, Community Resource Manager, KVSP; (5) J. Castro, Associate Warden, KVSP; (6) E. Lunsford, Registered Nurse, KVSP; (7) Grewal, Licensed Vocational Nurse, KVSP; and (8) John Does 1-100.

Plaintiff alleges the following:

Plaintiff is a practicing member of The House of Yahweh (HOY), a religion that observes tenets found in the first five books of the bible. Plaintiff's beliefs require, among other things, that he consume a kosher diet and observe holy feast days such as Yahweh's Passover Feast of Unleavened Bread. (Compl. at 6.) In 2008 Plaintiff applied to participate in the kosher meal program at KVSP. The Jewish Chaplain determined that the dietary strictures of HOY would be satisfied with a kosher diet and approved Plaintiff's request. (Id. at 8.) Plaintiff did not receive kosher meals; he reapplied in 2009 and received no response. (Id. at 9.)

In January 2010, Plaintiff and fellow HOY parishioners formally requested reasonable accommodation for the HOY Passover that was to take place on March 30 through April 6, 2010. (Id. at 9, 10.) KVSP accommodated the Jewish Passover and the kosher meal program would have satisfied the requirements of the HOY Passover. (Id. at 9.) Defendant Wegman signed an authorization for Plaintiff to receive a vegetarian diet. (Id. at 10.) A vegetarian diet is not sufficient for various reasons. For example, Plaintiff's faith requires that he eat particular meat on the first night of HOY Passover. (Id. at 11.) Plaintiff received no further response regarding his request for accommodation. (Id. at 11, 12.)

On March 30, 2010, Plaintiff was summoned to the chapel at 9:00AM rather than sunset, as requested. A meal was served and Plaintiff refused it as the food did not satisfy the HOY Passover requirements. The formal request submitted in January 2010 clearly delineated the dietary requirements for HOY Passover. Defendant Wegman had provided Plaintiff with compliant meals for the last three days of the Passover in 2009 after complaints were made on Plaintiff's behalf. (Id. at 12.) Plaintiff was denied a religious meal each day of Passover and did not take regular meals.

Each day Plaintiff told custody and medical staff that he was not being provided with food he could eat. Unspecified KVSP staff members recorded the fact that Plaintiff was not eating, but provided no immediate medical care. (Id. at 13.) On April 6, 2010, personnel were notified that Plaintiff had passed out in his cell, but they took no action. Plaintiff passed out a second time that day and this time struck his head. Plaintiff was discovered unconscious and was taken to the medical clinic. Defendant Grewal authored a medical care request on Plaintiff's behalf and checked his blood pressure. Grewal "said that there was nothing more she could do because there was no RN or doctor available." (Id. at 14, 15.) Defendant Grewal instructed Plaintiff to return to his cell when he had regained his strength. During subsequent regularly scheduled health care visits Plaintiff complained to medical personnel of symptoms related to his head ...

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