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Gadbury v. State

United States District Court, E.D. California

June 7, 2017

HERB L. GADBURY, Plaintiff,
v.
STATE OF CALIFORNIA,, Defendants.

          ORDER

          DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE

         Plaintiff, 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.

         After 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 complaint.

         I. Screening Requirement

         The 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. § 1915(e)(2)(B)(ii).

         II. Pleading Standard

         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)), 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. at 678.

         Under 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.

         III. Plaintiff's Allegations

         At all 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 Brian Duffy.

         Plaintiff's 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.

         The following details are gleaned from the grievances attached to the complaint:

Following CHCF's refusal to provide plaintiff with a modified vegetarian diet[1], 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 ...

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