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Tamayo v. Fisher

United States District Court, E.D. California

April 9, 2015

ANGEL TAMAYO, Plaintiff,
v.
R. FISHER, et al., Defendants.

FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE PROCEED WITH THE FIRST AMENDED COMPLAINT, ON PLAINTIFF'S CLAIMS AGAINST DEFENDANTS FISHER, REVEES, MYERS, AND DUKE FOR VIOLATION OF PLANTIFF'S RELIGIOUS RIGHTS UNDER RLUIPA AND THE FIRST AMENDMENT, AND THAT ALL OTHER CLAIMS AND DEFENDANTS BE DISMISSED FROM THIS ACTION FOR FAILURE TO STATE A CLAIM (Doc. 12.)

GARY S. AUSTIN, Magistrate Judge.

I. BACKGROUND

Angel Tamayo ("Plaintiff") is a former state prisoner proceeding pro se with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on March 8, 2012. (Doc. 1.) The court screened the Complaint under 28 U.S.C. § 1915A and entered an order on May 19, 2014, requiring Plaintiff to either file an amended complaint or notify the court of his willingness to proceed on the claims found cognizable by the court. (Doc. 11.) On June 25, 2014, Plaintiff filed the First Amended Complaint, which is now before the court for screening. (Doc. 12.)

II. SCREENING REQUIREMENT

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 is required to 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, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)). While a plaintiff's allegations are taken as true, courts "are not required to indulge unwarranted inferences." Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). Plaintiff must set forth "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678. While factual allegations are accepted as true, legal conclusions are not. Id.

To state a viable claim for relief, Plaintiff must set forth sufficient factual allegations to state a plausible claim for relief. Id. 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. Id.

III. SUMMARY OF FIRST AMENDED COMPLAINT

The events at issue in the First Amended Complaint allegedly occurred at Pleasant Valley State Prison (PVSP) in Coalinga, California, when Plaintiff was incarcerated there. Plaintiff names as defendants Fisher, Jr. (Associate Warden), Sergeant D. Revees, W. K. Myers (Community Resource Manager), B. Farkas (Food Service Manager), and Duke (Ad-Seg Officer) (collectively, "Defendants"). Defendants were all employed by the California Department of Corrections and Rehabilitation (CDCR) at PVSP at the time of the events at issue. Plaintiff's factual allegations follow.

In 2007, during Ramadan, [1] Plaintiff was transferred from the Richard C. Donovan Correctional Facility in San Diego to PVSP. Since Plaintiff was in Orientation and was unable to attend chapel, he let the officer who brought food to his cell know that he was a Muslim, and the prison made the proper arrangements for Plaintiff's meals to be served to him at the proper times required by his religion and pursuant to prison regulations and medical forms.

Around June 2010, Plaintiff sent request forms to defendant W. K. Myers to be added to the list of inmates fasting during the month of Ramadan. When he received no response, Plaintiff asked Officers Duke and Revees to assist him. When Plaintiff appeared before a committee, he asked defendant Fisher, Jr., to help him, and Fisher told him to talk to the Imam (religious leader). However, PVSP did not have an Imam at that time, as Brother Michael Salaam was no longer working there. So Plaintiff and his request were ignored. Plaintiff tried to save his food on writing paper in his cell, but when he left the cell for yard time or showers, prison officers would promptly remove it, to prevent growth of bacteria. Since Plaintiff was not able to save his food, and was not receiving food at times allowed by his religion, Plaintiff stopped taking any food for two and a half weeks in a hunger strike. Defendant Sergeant Revees ordered Plaintiff to be taken to a management cell for a few months. Finally, when Plaintiff was given food, defendant Farkas would not "substitute anny ( sic ) ice treats." (First Amd. Cmp. at 4 ¶1.)

Plaintiff requests monetary damages and injunctive relief.

IV. PLAINTIFF'S CLAIMS

The Civil Rights Act under which this action was ...


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