United States District Court, E.D. California
HERB L. GADBURY, Plaintiff,
STATE OF CALIFORNIA,, Defendants.
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE
a state prisoner proceeding pro se and in forma pauperis,
seeks relief pursuant to 42 U.S.C. § 1983. Plaintiff has
consented to the jurisdiction of a magistrate judge.
plaintiff's complaint was dismissed on July 5, 2016, with
leave to amend for failure to state a claim, plaintiff filed
a letter responding to certain deficiencies identified in the
screening order. This letter was construed as a first amended
complaint and also dismissed with leave to amend for failure
to state a claim. Plaintiff has now resubmitted his original
court is required to screen complaints brought by individuals
proceeding in forma pauperis seeking relief against a
governmental entity or an officer or employee of a
governmental entity. 28 U.S.C. § 1915A(a). The court
must dismiss a complaint or portion thereof if the complaint
contains 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. §
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)),
and 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). While factual allegations are accepted
as true, legal conclusions are not. Iqbal, 556 U.S.
section 1983, plaintiff must demonstrate that each defendant
personally participated in the deprivation of his rights.
Jones v. Williams, 297 F.3d 930, 934 (9th Cir.
2002). This requires the presentation of factual allegations
sufficient to state a plausible claim for relief.
Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret
Service, 572 F.3d 962, 969 (9th Cir. 2009). Prisoners
proceeding pro se in civil rights actions are entitled to
have their pleadings liberally construed and to have any
doubt resolved in their favor, Hebbe v. Pliler, 627
F.3d 338, 342 (9th Cir. 2010) (citations omitted), but
nevertheless, the mere possibility of misconduct falls short
of meeting the plausibility standard, Iqbal, 556
U.S. at 678; Moss, 572 F.3d at 969.
times relevant to this action, plaintiff was housed at
California Health Care Facility (“CHCF”) in
Stockton, California. Plaintiff names as defendants the State
of California, Appeals Examiner K.J. Allen, and CHCF Warden
specific allegations are minimal. He contends only that he
has been unable to consume any milk or cheese since the age
of 6 due to health reasons, and he has been a vegetarian
since the age of 10 for religious beliefs. When plaintiff
entered the California prison system at the age of 40, he
received a doctor's order for a dairy-free vegetarian
diet. Recently, he was given only a standard vegetarian diet
with milk, cheese and fish when it appeared on the menu. This
causes him health issues and violates his religious rights.
following details are gleaned from the grievances attached to
Following CHCF's refusal to provide plaintiff with a
modified vegetarian diet, plaintiff filed an appeal with Health
Care Services. On March 5, 2014, his appeal was granted at
the second level of review, and he received a doctor's
order for a lacto-ovo vegetarian diet excluding dairy
products and substituting peanut butter for cheese.
Despite this doctor's order, plaintiff was again not
provided a modified vegetarian diet. On July 18, 2014,
plaintiff filed a grievance concerning this issue, and on
December 11, 2014, defendant Warden Duffy denied the
grievance at the second level of review. Warden Duffy
explained that diets can be modified for medical and
religious reasons. While plaintiff was receiving a vegetarian
diet per ...