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Higgins v. Rodriguez

United States District Court, E.D. California

March 21, 2017

JONATHAN ELLIOTT HIGGINS, Plaintiff,
v.
LOUIS RODRIGUEZ,, Defendants.

          FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF THE ACTION FOR FAILURE TO STATE A COGNIZABLE CLAIM FOR RELIEF [ECF NO. 28]

         Plaintiff Jonathan Elliott Higgins is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

         Currently before the Court is Plaintiff's third amended complaint, filed March 13, 2017.

         I. RELEVANT HISTORY

         Plaintiff filed the instant action on June 10, 2016.

         On August 3, 2016, Plaintiff filed a motion to dismiss Case No. 1:16-cv-00819-DAD-EPG (PC), as duplicative of the instant action. (ECF No. 7.) The Court denied Plaintiff's motion on August 23, 2016, finding that the motion was moot given that a Findings and Recommendation issued in that case recommendation the case be dismissed as duplicative. (ECF No. 10.)

         Pursuant to the Court's September 14, 2016, order in Case No. 1:16-cv-00819-DAD-EPG (PC), the first amended complaint from that action was filed in this action. (ECF No. 18.)

         Then, on October 31, 2016, Plaintiff submitted a second amended complaint in this action, which was lodged by the Court. (ECF No. 20.)

         On February 17, 2017, the Court directed the Clerk to file the second amended complaint, and it was dismissed with leave to amend.

         As previously stated, Plaintiff filed a third amended complaint on March 13, 2017, which is pending before the Court for screening.

         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 “fails to state a claim on which relief may be granted, ” or that “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). 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, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must demonstrate that each named defendant personally participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-677; Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-1021 (9th Cir. 2010).

         Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, but the pleading standard is now higher, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted), and to survive screening, Plaintiff's claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with' a defendant's liability” falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.

         III. COMPLAINT ALLEGATIONS

         Plaintiff is a practicing Sunnah Muslin and his relief belief is Al-Islam. In order for Plaintiff to adhere to the strict Al-Islamic tenants of his faith he is forbidden to eat “dead animals, cattle-beast non slaughtered, blood, the flesh of swine, and the meat of that which has been slaughtered as a sacrifice for others than Allah, or has been slaughtered for Idols, or which Allah's name has not been mentioned while slaughtering, or by a violent blow, or by a head long fall, or by the goring of horns, and that which has been (partly) eaten by wild animals unless you are able to slaughter it (before its death) and that which is sacrificed (slaughtered) on stone alters.”

         On March 5, 2016, Plaintiff submitted a CDCR Form 22 to the correctional food manager which stated, “lately for the past month or two months the food portions have been inadequate.” Correctional cook S. Rolin responded stating “thank you for bringing this to our attention, we will monitor and supervise the ...


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