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Steven Strother v. W.K. Myers

April 24, 2013

STEVEN STROTHER, PLAINTIFF,
v.
W.K. MYERS, ET AL.,
DEFENDANTS.



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

FINDINGS AND RECOMMENDATION REGARDING DISMISSAL OF ACTION THIRTY-DAY OBJECTION DEADLINE

Plaintiff Steven Strother ("Plaintiff") is a prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 28 U.S.C. § 1983. Plaintiff filed this action on July 8, 2011. Pursuant to the Court's order, he filed a First Amended Complaint ("FAC") on October 26, 2012. Plaintiff names Pleasant Valley State Prison ("PVSP") Warden P. D. Brazelton,*fn1 Facility C-Yard Captain R. J. Shannon and Community Partnership Manager W. K. Myers as Defendants.

A. LEGAL STANDARD

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). "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).

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, 129 S. Ct. 1937, 1949 (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 that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.

Section 1983 provides a cause of action for the violation of Plaintiff's constitutional or other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Plaintiff's allegations must link the actions or omissions of each named defendant to a violation of his rights; there is no respondeat superior liability under section 1983. Iqbal, 556 U.S. at 676-77; Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones, 297 F.3d at 934. Plaintiff must present factual allegations sufficient to state a plausible claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.

B. SUMMARY OF PLAINTIFF'S ALLEGATIONS

Plaintiff is incarnated at PVSP, where the events at issue occurred.

Plaintiff alleges that on August 3, 2010, Defendant Myers circulated a memorandum stating that (1) prayer oil would now be allowed only in two ounce bottles; and (2) the Kufi prayer cap could be worn only to and from services.

Plaintiff states that the Department of Operations Manual ("DOM") allows four ounces of prayer oil. He questioned the warden on the issue and Plaintiff alleges that the warden "passed the issue off" to Defendant Myers. Defendant Myers responded to Plaintiff's request for interview by explaining that the changes are being incorporated into the next revision of the DOM. Plaintiff alleges that restrictions were not placed on baby oil or olive oil, which are used in rituals of other religions. Plaintiff then cites a Fresno County Superior Court Case in which he raised the issue. The Superior Court ruled that the oil was flammable and therefore posed a security threat. The Superior Court also ruled that Plaintiff was allowed to have two ounces of oil and he did not need an alternative means to exercise the right at issue.

As to the Kufi restriction, Plaintiff contends that he filed a 602 appeal and won the right to wear it inside his cell. However, W. Tucker told Plaintiff that if he did not have a chrono signed by the Muslim Chaplain, he could not wear it anywhere in the prison. Plaintiff raised the issue in Superior Court, where the Court held that the restrictions are reasonably related to legitimate penological interests due to cleanliness, safety and security concerns.

Finally, Plaintiff alleges that Muslims at PVSP are prohibited from holding services in the chapel without the presence of a staff member. This policy was instituted by Defendant Shannon. Plaintiff states that he was denied access to the chapel from July 2010 through July 2012, with the exception of six times. Plaintiff contends that Catholics and Christians had access to the chapel because they had chaplains. Plaintiff raised this issue in Superior Court, where the Court ruled that the restriction applied to all religions.

Plaintiff states that he cannot smell his best at every prayer due to the restriction on oils and that it is respectful ...


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