United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS TO DISMISS FOR FAILURE
TO STATE A COGNIZABLE CLAIM (DOC. 30) 30-DAY
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE.
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superceded the FAC.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.
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.
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).
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).
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.)
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.)
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.)
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.
Statute of Limitations
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
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 ...