Troupe v. Friedman

          ORDER OF SERVICE

          SALLIE KIM UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, a state prisoner at the Correctional Training Facility (CTF) in Soledad, California, has filed a pro se civil rights complaint under 42 U.S.C. § 1983 alleging that CTF Chaplain Y. Friedman improperly denied his request for food to celebrate the “Passover, Feast of Unleavened Bread” and that CTF Community Resource Manager A. Tamayo and Appeals Coordinator J. Truett improperly refused to correct the matter. Compl. (ECF No. 1) at 3. Plaintiff seeks damages and injunctive relief, namely to “be supplied with food for the ‘Event.'” Id.

         The complaint is properly before the undersigned for preliminary screening because plaintiff has consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c).

         DISCUSSION

         A. Standard of Review

         Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which relief may be granted, ” or “seeks monetary relief from a defendant who is immune from such relief.” Id. § 1915A(b). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

         To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two 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. West v. Atkins, 487 U.S. 42, 48 (1988).

         B. Legal Claims

         Prisoners retain the protections afforded by the First Amendment, “including its directive that no law shall prohibit the free exercise of religion.” O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987) (citation omitted). But incarceration “brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.” Id. (citation and internal quotation marks omitted). In order for a prisoner to establish a free exercise violation, he must show that a prison regulation or official burdened the practice of his religion without any justification reasonably related to legitimate penological interests. See Shakur v. Schriro, 514 F.3d 878, 883-84 (9th Cir. 2008).

         Liberally construed, plaintiff's allegations that CTF Chaplain Y. Friedman improperly denied his request for food to celebrate a religious feast, and that CTF Community Resource Manager A. Tamayo and Appeals Coordinator J. Truett improperly refused to correct the matter, appear to state an arguably cognizable free exercise claim under § 1983 against these three defendants and will be ordered served on them.

         CONCLUSION

         For the foregoing reasons and for good cause shown, 1. The clerk shall issue summons and the United States Marshal shall serve, without prepayment of fees, (1) a copy of the operative complaint in this matter and all attachments thereto, (2) a notice of assignment of prisoner case to a United States magistrate judge and accompanying magistrate judge jurisdiction consent or declination to consent form (requesting that each defendant consent or decline to consent within 28 days of receipt of service), and (3) a copy of this order on the following defendants at CTF: Chaplain Y. Friedman, Community Resource Manager A. Tamayo and Appeals Coordinator J. Truett. The clerk also shall serve a copy of this order on plaintiff.

         2. In order to expedite the resolution of this case, the court orders as follows:

a. No later than 90 days from the date of this order, defendants shall serve and file a motion for summary judgment or other dispositive motion. A motion for summary judgment must be supported by adequate factual documentation and must conform in all respects to Federal Rule of Civil Procedure 56, and must include as exhibits all records and incident reports stemming from the events at issue. A motion for summary judgment also must be accompanied by a Rand notice so that plaintiff will have fair, timely and adequate notice of what is required of him in order to oppose the motion. Woods v. Carey, 684 F.3d 934, 935 (9th Cir. 2012) (notice requirement set out in Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), must be served concurrently with motion for summary judgment). A motion to dismiss for failure to exhaust available administrative remedies (where such a motion, rather than a motion for summary judgment for failure to exhaust, is appropriate) must be accompanied by a similar notice. Stratton v. Buck, 697 F.3d 1004, 1008 (9th Cir. 2012); Woods, 684 F.3d at 935 (notice ...