The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER DISMISSING CERTAIN CLAIMS ECF No. 23
Plaintiff Luis Valenzuela Rodriguez ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se in this civil action pursuant to 42 U.S.C. § 1983. On May 5, 2010, Plaintiff filed his complaint in the Sacramento Division of the Eastern District of California. On May 14, 2010, the case was transferred to the Fresno Division. On August 19, 2010, Plaintiff filed his First Amended Complaint. On March 18, 2011, the Court issued an order for Plaintiff either to amend his complaint or notify the Court that he wished to proceed only on the claims found to be cognizable. On June 9, 2011, Plaintiff filed his Second Amended Complaint. On December 19, 2011, the Court dismissed the Second Amended Complaint for failure to comply with the Court's prior order. On February 29, 2012, Plaintiff filed his Third Amended Complaint. ECF No. 23.
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).
A complaint must contain "a short and plain statement of the claim showing that the pleader 2 is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 3 "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 4 do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 5 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a 6 claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). While factual 7 allegations are accepted as true, legal conclusions are not. Id. 8
II. Summary of Third Amended Complaint 9
Plaintiff was previously incarcerated at Kern Valley State Prison ("KVSP") in Delano, California, where the events giving rise to this action occurred. Plaintiff names as Defendants former director of CDCR Susan Hubbard; secretary of CDCR Matthew Cate; K. Harrington, former warden of KVSP; M. Biter, acting warden of KVSP; R. Davis and D. Foster, chiefs of the inmate appeals branch for the Director's level of CDCR; R. Grissom, associate warden at KVSP; B. Daveiga, appeals coordinator at KVSP; Soto, correctional captain; M. Phillips and R. Speidell, lieutenants at KVSP; F. Ozaeta, S. Gregory, and M. Betzinger, correctional sergeants at KVSP; J. Garza, correctional officer at KVSP; C. Wegman, community partnership manager at KVSP; Ron Alic, Native American chaplain at KVSP; and Freir and Rankin, psychologists at KVSP.
Plaintiff's complaint is composed of three claims, which the Court will discuss below.
Plaintiff arrived at KVSP on February 11, 2009. Pl.'s Third Am. Compl. ¶ 1. Plaintiff has been a participant in the enhanced outpatient program ("EOP") for mental health care. Since 1994, Plaintiff has been recognized as a sacred "pipe holder" in CDCR. Id. ¶ 4. Plaintiff used tobacco as an essential herb in his daily smoking for sacred prayer. Id. ¶ 5. Plaintiff owned his own sacred prayer pipe within the CDCR since May of 2001. Id. ¶ 6. Plaintiff provided Defendants with documents of documents dated since 2001 through 2009 verifying possession and ownership and possession of prayer pipe, pipe bags, hawk wings, and owl wings. . Id. ¶ 7.
Defendants refused to enforce state and federal laws which established rights protecting Native American religious practices and sacred religious artifacts from February 11, 2009 to February 11, 2012. Id. ¶¶ 8, 9. Plaintiff submitted 602 inmate grievances complaining of sweat 2 lodge access, sacred pipe ceremonies, ceremonial tobacco use, lack of access to a Native American 3 spiritual advisor/chaplain, and not providing Native American religious services for KVSP 4 administrative segregation. Id. ¶¶ 9, 10. Plaintiff resubmitted his grievance on March 2, 2009. 5 Defendant Garza threatened Plaintiff with removal from the EOP program for the filing of the 602 6 grievances. Id. ¶ 11. 7
On March 24, 2009, Defendant Garza confiscated Plaintiff's sacred pipe, sacred pipe bag, 8 enclosed medicine bundle, two sacred hawk wings, two sacred owl wings, loose eagle feathers and a 9 few spiritual necklaces. Id. ¶ 12. Plaintiff complains that Defendant Garza mishandled and wrongfully confiscated sacred religious artifacts. Id. Defendant Garza informed Plaintiff that all his religious artifacts would be discarded unless Plaintiff signed a statement that he authorized withdrawal from his prison account to send his items. Id. ¶ 22. Plaintiff complied with the demand rather than have the religious items discarded. Id. ¶ 25.
Plaintiff provided Defendant Garza with a 602 inmate grievance on March 25, 2009. Id. ¶ 27. Defendant Garza told Plaintiff that he did not accept 602 inmate grievances, and told Plaintiff to set it down on the chair in the C-8 block's captain's office. Id. ¶ 28. Defendant Garza later told Plaintiff that he could not get his stuff because he kept filing complaints. Id. ¶ 30. Defendant Garza stated that he would talk to Defendant Freir and have Plaintiff removed from EOP. Id. ¶ 31. Plaintiff informed other Native American inmates, who would contact Defendants Phillips and Soto. Id. ¶ 34.
Plaintiff spoke to Defendant Ozaeta and informed him of the problem; he stated that he had already been informed by Defendant Garza and had told Defendant Garza that he could do whatever he wanted to do with the Indian stuff. Id. ¶ 35. Defendants Captain Soto and Lieutenant Phillips acquired possession of Plaintiff's religious artifacts, and told Plaintiff that they would hold the items while they looked into the problem. Id. ¶ 36.
Plaintiff was finally able to get a 602 grievance accepted and processed on January 17, 2010, which was denied by Defendant Betzinger on March 24, 2010; submitted on April 15, 2010, and partially granted by Defendants Gregory and Grissom on May 19, 2010; submitted on May 25, 2010, and denied at the second level by Defendant M. Biter on June 18, 2010; and submitted June 25, 2 2010, and denied at the third level by Defendants Davis and Foster on October 8, 2010, specifically 3 concerning the wrongful confiscation and deprivation of the religious artifacts. Id. ¶ 40. 4
On August 27, 2010, Defendnts Wegman and Alic required Plaintiff to provide them an 5 address to mail his sacred pipe, hawk and owl wings, and a few loose feathers, or the items would be 6 destroyed. Id. ¶ 45. Defendants Wegman and Alic refused to provide Plaintiff with a reason for 7 refusing to return the artifacts to Plaintiff, or allow him periodic access or use of the artifacts. Id. ¶ 8
46. Plaintiff was continually told by Defendants Garza, Betzinger, Gregory, Speidell, Wegman, and 9 Alic that Plaintiff brought on the confiscation and total deprivation because of his filing on March 2, 2009. Id. ¶ 47.
Plaintiff further alleges that Defendants Hubbard, Cate, Harrington, Biter, Soto, Phillips, Da Veiga, Ozaeta, Betzinger, Gregory, Garza, Wegman, Alic, Grissom, Speidell, Davis, and Foster were informed of and knew that their actions deprived Plaintiff of the use of sacred prayer pipe, weekly sweat lodge ceremonies, and possession of the wings/feathers. Id. ¶ 74. Plaintiff was denied Native American religious services between December 12, 2009 and February 1, 2012. Id. Plaintiff received only one sweat lodge service between February 2009 and October 2009, and no sweat lodge services from November 2009 to February 2012. Id. Plaintiff also complains that the Defendants denied him access to a spiritual advisor, with access once between February 2009 to June 2009 and no access from December 2009 to February 2012. Id. Plaintiff complains that other religious groups, such as Catholics and Protestants who have weekly services, Native American religious groups were denied regular, established practices of weekly sweat lodge services or sacred pipe ceremonies. Id. ¶ 76.
Plaintiff's grievance, KVSP-0-09-00980, first submitted on March 2, 2009, had to be submitted multiple times because it was continuously rejected by Defendant B. Da Veiga, who used exaggerated excuses to prevent process and exhaustion. Id. ¶ 48. Defendant Da Veiga rejected the grievance seven times, and the grievance disappeared after Plaintiff re-submitted it for the eighth time. Id. ¶ 49. Plaintiff submitted an administrative notice on October 25, 2009 directly to Defendant Harrington concerning the conduct of ...