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Nellum v. Stiltner

United States District Court, Ninth Circuit

August 12, 2013

DASHAUN NELLUM, Plaintiff,
v.
C STILTNER, et al., Defendants.

FINDINGS AND RECOMMENDATIONS

ALLISON CLAIRE, Magistrate Judge.

Plaintiff, a state prisoner proceeding pro se and in forma pauperis, seeks relief pursuant to 42 U.S.C. § 1983. In his original complaint filed on May 23, 2012, plaintiff alleged that defendants improperly confiscated his personal property and then interfered with his small claims state court action. See ECF No. 1. On August 14, 2012, this court dismissed plaintiff's original complaint with leave to amend for failure to state a cognizable constitutional violation. ECF No. 15. Plaintiff filed an amended complaint alleging additional facts regarding his intended claims for the loss of personal property and interference with his small claims court case; however, on February 26, 2013, the amended complaint was likewise dismissed for failure to state a claim. Plaintiff was again granted leave to amend but also cautioned that no further amendments would be allowed. ECF No. 25 at 2. Plaintiff's second amended complaint is before the court. ECF No. 32.

I. Screening Standards

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 claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams , 490 U.S. 319, 325 (1989); Franklin v. Murphy , 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke , 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona , 885 F.2d 639, 640 (9th Cir. 1989); Franklin , 745 F.2d at 1227.

A complaint, or portion thereof, should only be dismissed for failure to state a claim upon which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding , 467 U.S. 69, 73 (1984) (citing Conley v. Gibson , 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt Lake Log Owners Ass'n , 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees , 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor, Jenkins v. McKeithen , 395 U.S. 411, 421 (1969).

II. Screening of Plaintiff's Second Amended Complaint

A. Missing Personal Property

Plaintiff continues to allege in his second amended complaint that several items of personal property were missing following a cell search by defendants Stiltner and Kiehlmeier. ECF No. 32 at 8. As the court previously advised plaintiff, an unauthorized intentional deprivation of property by a state employee does not constitute a violation of the Fourteenth Amendment if a meaningful post-deprivation remedy for the loss is available. ECF No. 15 at 3 (citing Hudson v. Palmer , 468 U.S. 517, 533 (1984)). The California Legislature has provided a remedy for tort claims against public officials in California Government Code §§ 900, et seq. For these reasons, plaintiff's allegations about the deprivation of his personal property fail to state a cognizable constitutional claim.

B. Missing Bible

Among the missing items was plaintiff's Bible. ECF No. 32 at 8. Plaintiff alleges that "[t]his was a personal attack on [his] faith, " which interfered with his "right to practice religion." Id . at 8, 11. Petitioner pleads no additional facts regarding his missing Bible.

"Inmates clearly retain protections afforded by the First Amendment... including its directive that no law shall prohibit the free exercise of religion." O'Lone v. Estate of Shabazz , 482 U.S. 342, 348 (1987) (internal citations omitted). However, "[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system." Id . Thus, in order to establish a free exercise violation, plaintiff must show defendants burdened the practice of his religion, without justification reasonably related to legitimate penological interests, by preventing him from engaging in conduct that is (1) based on a "sincerely held" religious concern and (2) "rooted in religious belief, " rather than in secular philosophical concerns. Shakur v. Schriro , 514 F.3d 878, 884-85 (9th Cir. 2008) (quoting Malik v. Brown , 16 F.3d 330, 333 (9th Cir. 1994)).

"In order to reach the level of a constitutional violation, the interference with one's practice of religion must be more than an inconvenience; the burden must be substantial...." Freeman v. Arpaio , 125 F.3d 732, 736 (9th Cir. 1997) (internal quotation marks and citation omitted), overruled in part on other grounds by Shakur , 514 F.3d at 884-85. Here, plaintiff's conclusory allegation that the missing Bible "interfered with his right to practice religion" does not adequately allege that his religious practice was substantially burdened or in any way deterred. In addition, no factual allegations support an inference that defendants took the Bible in an intentional or conscious act to burden the free exercise of plaintiff's religion. See Lewis v. Mitchell , 416 F.Supp.2d 935, 944 (S.D.Cal. 2005) ("Plaintiff must allege conscious or intentional acts that burden his free exercise of religion."). Plaintiff's conclusory allegation that the act "was a personal attack on his faith" does not suffice. See Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555-57 (2007) (holding that a pro se complaint must contain more than "naked assertions, " "labels and conclusions, " or "a formulaic recitation of the elements of a cause of action."); see also ...


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