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Brian Ellis Porter v. Cherylee Wegman

May 9, 2013

BRIAN ELLIS PORTER,
PLAINTIFF,
v.
CHERYLEE WEGMAN, ET AL., DEFENDANTS.



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

FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS ECF No. 61 OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS

I. Background

Plaintiff Brian Ellis Porter ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. On September 25, 2012, this case was consolidated with Porter v. Wegman, et al., Case No. 1:11-cv-02106-MJS (E.D. Cal.). On October 18, 2012, the Court ordered Plaintiff to file a Third Amended Complaint, incorporating all the pleadings in both actions. ECF No. 59. On December 17, 2012, Plaintiff filed his Third Amended Complaint.*fn1 ECF No. 61.

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 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 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 Third Amended Complaint

Plaintiff was incarcerated at Kern Valley State Prison ("KVSP") in Delano, California, where the events giving rise to this action occurred. Plaintiff names as Defendants: community resource/partnership manager Cherylee Wegman; secretary of CDCR Matthew Cate; warden of KVSP M. D. Biter; chief medical officer S. Lopez; associate warden J. Castro; registered nurse E. Lunsford; licensed vocational nurse Grewal; and Does 1 through 100.

Plaintiff alleges the following. Plaintiff is a member of the religion called House of Yahweh ("HOY"). Plaintiff believes that living by the 613 laws of Yahweh, which are derived from the first five books of the Hebrew Bible, is necessary for salvation. In adherence with those laws, Plaintiff is required to keep all Sabbath days, eat only clean/kosher foods, and observe all Holy Feast Days, which includes Yahweh's Passover Feast of Unleavened Bread ("HOY Passover"). Second Am. Compl. ("TAC") ¶ 13. Plaintiff is also mandated to eat only a kosher diet according to the scriptures. TAC ¶ 16.

The HOY Passover lasts eight days, requires HOY practitioners to destroy all leavened foods in their possession, and not to eat foods containing leaven, or come in contact with food that has been contaminated with leaven. TAC ¶ 17. During the HOY Passover, HOY observers must eat some amount of unleavened bread on each day, and eat some portion of meat from a Passover 2 sacrifice the night beginning this religious event. TAC ¶ 18. 3

In 2008, Plaintiff applied for and received kosher meals as part of his religious diet. TAC ¶ 19. Plaintiff was granted kosher meal diet because the Jewish Chaplain determined that Plaintiff's 5 doctrines are the same as the Jewish doctrine regarding dietary needs. TAC ¶ 19. On November 21, 6 2008, Defendant Wegman circulated a memo that referred to the HOY as a religious hate group. 7

Plaintiff subsequently never received kosher meals. TAC ¶ 20. 8

During Passover, the Jewish Kosher Diet Program provided meals that adhered to all the laws of the HOY governing the HOY Passover. TAC ¶ 21. Plaintiff and other HOY members submitted a religious event package specifically to receive reasonable accommodations for observance of the HOY Passover, taking place from April 10, 2009 to April 17, 2009. TAC ¶ 21. Despite submitting all necessary forms and information, the HOY did not receive any response concerning the religious event. TAC ¶ 23.

On April 7, 2009, Plaintiff received a religious diet card for a vegetarian diet, which was authorized by Defendant Wegman. TAC ¶ 24. The vegetarian diet does not meet Plaintiff's religious dietary needs, namely: that he must eat the meat of the sacrifice on Passover night; eating unleavened bread during the HOY Passover; heated meals on Sabbath; and insured that it was kosher. TAC ¶ 25. When Plaintiff did not receive the expected religious meals for the HOY Passover, Plaintiff believed it to be complications from the previous year, but eventually expected to receive them. TAC ¶ 27. Plaintiff was aware that prison policy dictates that if a regular meal is taken by the inmate, the inmate is removed from the religious event list and subject to possible discipline for manipulation of staff. TAC ¶ 27.

On April 15, 2009, Plaintiff, having starved for five days, was contacted by Defendant Wegman as a result of Plaintiff's family contacting Defendant Wegman's supervisors. TAC ¶ 28. Plaintiff told Defendant Wegman the necessity of the requested religious meals and/or a kosher diet and explained the significance of the HOY Passover. TAC ¶ 28. Defendant Wegman admitted that Plaintiff and the HOY inmates' rights were being violated and she promised to provide Plaintiff with proper food. TAC ¶ 28. On April 15, 2009, in the evening, Plaintiff received a meager kosher meal.

TAC ¶ 29. On April 16, 2009, Plaintiff received the same meager kosher meal. TAC ¶ 30. 2

On April 17, 2009, Plaintiff participated in a special event in the Facility B chapel. TAC ¶ 31. The food provided, however, did not meet the religious specifications as requested by the HOY 4 inmates in the Event Package. TAC ¶ 31. No HOY inmates were willing to eat the food. TAC ¶ 31. 5

The food was brought by prison staff at approximately 6:30 p.m., during the Sabbath services. TAC 6 ¶ 32. The HOY inmates refused to eat the food, and staff then ended the service immediately and 7 ordered all inmates back to their housing units. TAC ¶ 32. Plaintiff and other HOY inmates were 8 able to get the ...


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