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Hassan Abpikar v. Martin

April 6, 2013

HASSAN ABPIKAR,
PLAINTIFF,
v.
MARTIN, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER DISMISSING CERTAIN CLAIMS AND DEFENDANTS ECF No. 17

I. Background

Plaintiff Hassan Abpikar ("Plaintiff") is a prisoner in the custody of the Federal Bureau of Prisons ("BOP"). Plaintiff is proceeding pro se and in forma pauperis in this civil action pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). On October 27, 2011, Plaintiff filed his complaint. On August 27, 2012, Plaintiff filed his First Amended Complaint. ECF No. 17. On October 10, 2012, the Court screened Plaintiff's First Amended Complaint and found that it stated a cognizable First Amendment claim against Defendant Benov, but failed to state any other claims against any other Defendants. Plaintiff was provided the opportunity to file a second amended complaint to cure the deficiencies identified. On April 1, 2013, Plaintiff notified the Court that he wished to proceed only against Defendant Benov on the cognizable claim. The Court thus issues the following order.

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 8 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 2 monetary relief from a defendant who is immune from such relief. Id. § 1915A(b)(1),(2). 3

"Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall 4 dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a 5 claim upon which relief may be granted." Id. § 1915(e)(2)(B)(ii). 6

A complaint must contain "a short and plain statement of the claim showing that the pleader 7 is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 8 "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 9 do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). While factual allegations are accepted as true, legal conclusions are not. Id.

II. Summary of First Amended Complaint

Plaintiff was incarcerated at Taft Correctional Institution ("TCI") in Taft, California, where the events giving rise to this action occurred. Plaintiff names as Defendants: sergeant Martin, officer in charge of the Security Housing Unit; sergeant Barba, chief of security; lieutenant K. Sy., the special investigation service ("SIS") officer in charge of phone monitoring; sergeant Logan, disciplinary hearing officer ("DHO"); Moss, case manager; Dela Cruz, unit manager; Dale Patrick, administrative remedy coordinator; and Michael L. Benov, warden of TCI.

Plaintiff alleges the following. On July 18, 2011, Plaintiff notified Defendant Martin, Barba, K. Sy, Logan, and Patrick via copout (an inmate request to staff) that he was being deprived from joining other Muslims in group prayer. First Am. Compl. ("FAC") ¶ 9. Plaintiff contends that he wanted to pray with other Muslim inmates in group prayer, which is done daily from Monday through Friday, in the designated area, but was denied. Id.

On July 18, 2011, Plaintiff also notified Defendant Moss via copout that he wanted to pray with other Muslim inmates. FAC ¶ 10. Plaintiff stated that allowing him to join the group worship would not breach the security of the prison. Id. On July 21, 2011, Defendant Moss responded and 8 informed Plaintiff that his concerns can be addressed to chaplain Maurseth, and that she had notified the chaplain of his issue. FAC ¶ 11. 2

On July 18, 2011, Plaintiff also notified Defendant Dela Cruz regarding being allowed to join 3 in the Muslim group prayer. FAC ¶ 12. On July 21, 2011, Defendant Dela Cruz responded that 4 Plaintiff would need to contact the chaplain regarding his religion issues, and that Plaintiff was 5 pending a DHO hearing. FAC ¶ 13. 6 On July 20, 2011, Plaintiff notified Defendants Barba and K. Sy by copout that he was being 7 denied group worship with other Muslim inmates daily. FAC ¶ 14. On July 20, 2011, Plaintiff 8 notified Defendant Benov that he was being denied group worship with other Muslim inmates daily. 9

FAC ¶ 15. Defendant Benov responded by stating that if a Muslim inmate is in administrative segregation, and does not have a Muslim cell mate, he is prevented by circumstances beyond his control from attending the congregational prayer, and thus the obligation is lifted. FAC ¶ 16.

On July 24, 2011, Plaintiff notified, by copout through the chaplain, Defendants Barba, Logan, Martin, and K. Sy, and stated that he was being denied his religious freedom to participate in group worship with other Muslims on a daily basis. FAC ¶ 17. None of the previously Defendants responded. FAC ¶ 18. On July 26, 2011, Plaintiff again notified Defendant Moss of the deprivation of his group worship. FAC ¶ 19. On July 29, 2011, Defendant Moss responded by stating that this issue was addressed by associate warden Puentes on July 20 and July 23 of 2011. FAC ¶ 20.

Beginning in August of 2011, the holy month of Ramadan started. FAC ¶ 23. Plaintiff, via copout, through his counselor Lopez, notified Defendants Martin, K. Sy, Logan, Dale Patrick, Moss, Dela Cruz, Barba, and Benov that he must participate in the sacred ceremony of Ramadan with other Muslims, to break his fast and perform congressional prayer. FAC ¶ 23. On August 9, 2011, Lopez told Plaintiff to send a copout to the appropriate staff member. FAC ¶ 24. On August 9, 2011, Plaintiff again sent a copout through his counselor to Defendants Logan, K. Sy, Barba, Puentes, and Benov, contending that he was being denied group worship with other Muslims and being denied participation in the month of Ramadan. FAC ¶ 25. None of the previously listed Defendants responded. FAC ¶ 26.

On August 18, 2011, Plaintiff via copout notified Defendants Patrick, Martin, and Logan, 8 stating that he had not receive a response to his BP-9 (inmate grievance) regarding the deprivation of the practice of his religion. FAC ΒΆ 27. Plaintiff also contends that Defendants are discriminating 2 against him on the basis of his ...


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