United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL
OF THE ACTION FOR FAILURE TO STATE A COGNIZABLE CLAIM FOR
RELIEF [ECF NO. 28]
Jonathan Elliott Higgins is appearing pro se and in forma
pauperis in this civil rights action pursuant to 42 U.S.C.
before the Court is Plaintiff's third amended complaint,
filed March 13, 2017.
filed the instant action on June 10, 2016.
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.
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.)
on October 31, 2016, Plaintiff submitted a second amended
complaint in this action, which was lodged by the Court. (ECF
February 17, 2017, the Court directed the Clerk to file the
second amended complaint, and it was dismissed with leave to
previously stated, Plaintiff filed a third amended complaint
on March 13, 2017, which is pending before the Court for
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).
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.
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.”
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 ...