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Wolcott v. Board of Rabbis of No.

United States District Court, E.D. California

May 3, 2017

BRANDON LEE WOLCOTT, Plaintiff,
v.
BOARD OF RABBIS OF NO. & SO. CALIFORNIA, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS TO DISMISS FOR FAILURE TO STATE A COGNIZABLE CLAIM (DOC. 30) 30-DAY DEADLINE

          JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE.

         I. Background

         The Court screened Plaintiff's Second Amended Complaint and, since it did not to state any cognizable claims, it issued findings and recommendation on November 9, 2015 to dismiss the action. (Doc. 18.) Plaintiff obtained an extension of time and thereafter filed timely objections. (Doc. 21.) In his objections, Plaintiff requested to be allowed to proceed on the claims found cognizable in the First Amended Complaint (“FAC”). (Doc. 22.) However, once filed, the SAC superceded the FAC. See Lacey v. Maricopa County, Nos. 09-15806, 09-15703, 2012 WL 3711591, at *1 n.1 (9th Cir. Aug. 29, 2012) (en banc). Thus, on April 28, 2016, the Court withdrew the November 9, 2015 findings and recommendation and granted Plaintiff leave to file a third amended complaint to restate claims from the FAC, but leave to amend was not granted as to any of Plaintiff's claims on his inability to convert to Judaism. (Doc. 23.) Rather, the Court issued findings and recommendations the next day to dismiss with prejudice Plaintiff's claims based on his inability to convert to Judaism. (Doc. 24.) The findings and recommendations on Plaintiff's claims of inability to convert to Judaism await review by District Judge, but Plaintiff's Third Amended Complaint (“TAC”) is before the Court for screening. (Doc. 30.) As discussed below, Plaintiff fails to state any cognizable claims and the action should be DISMISSED with prejudice.

         A. 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, malicious, 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); 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). If an action is dismissed on one of these three bases, a strike is imposed per 28 U.S.C. § 1915(g). An inmate who has had three or more prior actions or appeals dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted, and has not alleged imminent danger of serious physical injury does not qualify to proceed in forma pauperis. See 28 U.S.C. § 1915(g); Richey v. Dahne, 807 F.3d 1201, 1208 (9th Cir. 2015).

         Section 1983 “provides a cause of action for the deprivation of any rights, privileges, or immunities secured by the Constitution and laws of the United States.” Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).

         To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated and (2) that the alleged violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987).

         B. Plaintiff's Allegations

         In the TAC, Plaintiff alleges that, since August of 2008, CSATF staff have variously approved and denied the possession and utilization of non-ceremonial artifacts required for the Jewish faith. (Doc. 30, p. 6.) Before 2008, Plaintiff alleges that Tefillin were approved for inmate possession but were thereafter disapproved for unknown reasons. (Id.) Chaplain Sharon spoke with the Warden about their importance. (Id.) On December 10, 2009, Warden Allison issued a memorandum allowing Jewish inmates to wear their Kippahs at all times, but possession of the Tzittzit (Tallit Katan) and Tefilin were still not permitted. (Id.)

         Plaintiff further alleges that on November 14, 2010, he filed an inmate appeal about not being allowed to possess non-ceremonial religious artifacts. (Id.) Associate Warden Reynoso partially granted Plaintiff's appeal, indicating that Tefillin and Tzittzit (Tallit Katan) were now authorized for inmate possession under “the new equipment list, ” which approved Tefillin for chapel use, but not for individual inmate possession. (Id., pp. 6-7.) Plaintiff alleges that this prevented him from fulfilling the “commandment to don Tefillin” during morning prayers each day since chapel was held only one day a week and well after morning prayers are to be completed. (Id., p. 7.)

         On November 5, 2011, Plaintiff was informed that the DOM had been revised to allow inmate possession of Tefillin. (Id.) However, Associate Warden Reynoso prevented Plaintiff from possessing Tefillin as he disapproved the only previously approved vendor that would sell it to Plaintiff. (Id.) On December 19, 2012, Director M. Stainer issued a memorandum under which inmates are no longer allowed to individually possess Tefillin. (Id.) Plaintiff alleges that these incidents violated his rights under the First Amendment and the RLUIPA. (Id.)

         The majority of Plaintiff's allegations, which he now identifies by date, are barred by the statute of limitations. And, the last paragraph of allegations involve Director M. Stainer, whom Plaintiff does not name, or otherwise identify as a defendant in this action. Thus, Plaintiff's only allegations which are not time barred against a named defendant occurred in November of 2011 when Associate Warden Reynoso disapproved the only previously approved vendor that would sell Tefillin to Plaintiff.

         C. Statute of Limitations

         The applicable statute of limitations starts to run upon accrual of the plaintiff's claim, i.e. when he knows or has reason to know of the injury that is the basis of his action, Douglas v. Noelle, 567 F.3d 1103, 1109 (9th Cir. 2009), which is normally on the date of injury, Ward v. Westinghouse Canada, Inc., 32 F.3d 1405, 1407 (9th Cir.1994). Actions under section 1983 fall under the limitations period from the forum state's statute of limitations for personal injury torts, see Wallace v. Kato, 549 U.S. 384, 387, 127 S.Ct. 1091 (2007), which is two years in California, see Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004); Cal. Civ. Proc. Code § 335.1.

         The two-year statute of limitations period is tolled for two years if the plaintiff is a prisoner serving a term of less than life which gives such prisoners effectively four years to file a federal suit. See Cal. Civ. Proc. Code § 352.1(a); Azer v. Connell, 306 F.3d 930, 936 (9th Cir. 2002) (federal courts borrow the state's California's equitable tolling rules if they are not inconsistent with federal law). Though the term of Plaintiff's sentence is not known, the limitations period for his claims would not differ if he were serving a term of life with the possibility of parole, as that is considered a term of less than life. Martinez v. Gomez, 137 F.3d 1124, 1126 (9th Cir. 1998). Further, in California “[l]imitations are tolled during period of imprisonment of persons sentenced to life imprisonment.” Cal. Civ. Proc. Code § 352.1, note (West Ann. 2017) (2. Construction and application) (citing Grasso v. McDonough Power Equip., 264 Cal.App.2d 597, 601, 70 Cal.Rptr. 458 (1968) (reversed ...


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