Fowler v. CDCR, 1:13cv00957 DLB PC

KENNETH FOWLER, Plaintiff, v. CDCR, et al., Defendants.

1:13cv00957 DLB PC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

February 3, 2014

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND

THIRTY DAY DEADLINE

Plaintiff Kenneth Fowler ("Plaintiff") is a prisoner proceeding pro se and in forma pauperis in this civil rights action.¹ Plaintiff filed his complaint on June 24, 2013. He names California Department of Corrections and Rehabilitation Secretary Jeffrey Beard, Sierra Conservation Center ("SCC") Wardens Heidi Lackner and Frank Chavez, SCC Community Resource Manager Margo Wilkerson, Appeals Coordinator M. Baldwin, Chaplain Littlejohns, Director of Adult Institutions Kathleen Dickenson, Mailroom Supervisor Doe 1 and Religious Review Committee Doe 2 as Defendants.

A. LEGAL STANDARD

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 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).

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, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.

Section 1983 provides a cause of action for the violation of Plaintiff's constitutional or other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Plaintiff's allegations must link the actions or omissions of each named defendant to a violation of his rights; there is no respondeat superior liability under section 1983. Iqbal, 556 U.S. at 676-77; Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones, 297 F.3d at 934. Plaintiff must present factual allegations sufficient to state a plausible claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.

B. SUMMARY OF PLAINTIFF'S ALLEGATIONS

Plaintiff is currently incarcerated at SCC, where the events at issue occurred. Plaintiff's allegations relate to his contention that Defendants, at least since 2008, have hindered the practice of his Asatru/Odinic faith.

The specific allegations of Plaintiff's complaint begin in December 2008, when a chaplain did not show up to allow Plaintiff to practice his religion. On December 29, 2008, Defendant Littlejohns received a 602 for delivery to the appropriate party, but he refused to accept the documents and told Plaintiff to address the issue to Defendant Wilkerson.

On January 6, 2009, members of the Asatru/Odinic faith met with Defendant Wilkerson to discuss chapel times, calendar dates and the failure to issue priority ducats for special functions. However, Plaintiff contends that Defendant Wilkerson either denied the requests and/or did not take further action.

Also on January 6, 2009, Asatru/Odinic practitioners requested the use of outdoor land from Defendant Wilkerson. Defendant Wilkerson said that she would research the issue. On February 9, 2009, the request for an outdoor worship area was denied due to institutional safety and security.

Plaintiff alleges that a book order was submitted, but the books were "ordered twice because of the discriminatory practices of Defendants towards non-traditional faiths..." Compl. 16. Plaintiff contends that other faiths do not experience such inconveniences.

On April 11, 2009, Defendants Wilkerson and Littlejohns interviewed members in connection with a 602 filed for outdoor land use for religious purposes. The religion was not granted use of an outdoor worship area.

On May 11, 2009, horns were taken from the members and Defendant Wilkerson refused to return one. Plaintiff contends that this horn is mandatory for offering to deities.

Also on May 11, 2009, Plaintiff states that a book order arrived. "[T]he order was sent to the lower yard and Inmates on C-facility (Tuolumne) received used books from the lower yard, level I and II." Compl. 17. Plaintiff contends that this is the type of discrimination that he is forced to endure from Defendants Littlejohn and Wilkerson.

On June 1, 2009, Defendant Littlejohns indicated that there would not be a meeting on June 8, 2009, or a banquet on June 21, 2009, because there was no sponsor. Plaintiff contends that custody could have been assigned to oversee the banquet, and the faith does not require a church sanctioned person to oversee their functions.

In October 2009, Plaintiff had a discussion with Defendant Littlejohns about the use of a lighter to burn sage. Defendant Littlejohns denied the request.

In March 2010, Defendant Littlejohns escorted members of the Asatru/Odinic faith to the visiting room for "BLOT." However, they were denied an outdoor ceremony.

On April 3, 2010, staff refused to allow Asatru/Odinic members to attend service.

On April 5, 2010, Defendant Littlejohns threatened that if members continued to curse during service, he would no longer sponsor services. Members agreed, but Plaintiff contends that this denied him his freedom of expression and placed an unreasonable burden on the practice of his religion.

On April 17, 2010, CDCR issued a change to the regulations that required custody and staff to allow Practitioners excused time off. However, SCC does not allow excused time off and practitioners do not leave work for fear of losing their jobs.

On April 18, 2010, Defendant Lackner, while working at Mule Creek State Prison, received a request for creation of a job position. Plaintiff alleges that Defendant Lackner "hadknowledge of the needs of non-traditional faiths from her previous place of employment," yet she denied Plaintiff the opportunity to practice his religion.

On April 19, 2010, members requested religious supplies from Defendant Littlejohns. No supplies were issued.

In June 2010, SCC issued a supplement to the Operations Manual concerning religious programs. However, the procedure excluded many Asatru/Odinic requirements, was overbroad in denying vendors and denied outdoor areas for Asatru/Odinic services.

Plaintiff alleges that Defendant Chavez limited inmate property, but is unqualified to suggest what items are, or are not, sacred.

On November 22, 2010, a proposal was submitted to Defendant Wilkerson concerning guidelines for ordering spiritual packages. The proposal was denied, and special purchase orders for religious orders are denied for frivolous reasons. Plaintiff contends that other faiths do not have problems.

On December 20, 2010, Defendant Littlejohns issued a memorandum about oils, but Plaintiff contends that it is so ambiguous that it could be used to deny receipt of products. Plaintiff contends that this was designed to cause undue confusion and discourage practitioners of the Asatru/Odinic faith from placing orders.

On June 6, 2011, Defendant Baldwin refused or failed to process a grievance concerning Asatru/Odinic religious rights. Defendant Baldwin screened out the appeal in part because it was not signed, but he refused to allow an exhibit that explained the necessity of an outdoor area.

On July 20, 2011, Defendant Wilkerson responded to a grievance related to prisoners' rights to practice religion. Defendant Wilkerson indicated that an outdoor area on "C" facility accommodates various groups that require outdoor activity. An inmate requested a fire pit, but Defendant Wilkerson refused, citing safety and security concerns.

In September 2011, Defendant Lackner responded to a grievance, but the response was misleading because it suggested that the first level appeal was conducted properly. Plaintiff contends that Defendant Lackner had the authority to remedy the religious issues.

On October 25, 2012, Defendant Dickinson issued a memorandum related to inmate property and religious items. Plaintiff contends that the memo violates equal protection because it prohibits "establishing new outdoor worship areas." Compl. 25. It also forces practitioners to give up religious items that are not listed in the property matrix.

On January 31, 2013, Doe 1, mailroom supervisors, refused to process legal mail addressed to Defendant Wilkerson and requesting religious items.

On February 5 and 11, 2013, Defendant Baldwin refused to process grievances. This impeded Plaintiff's right to redress grievances and exercise his religious beliefs.

On March 4, 2013, Defendant Wilkerson refused and/or failed to process a request for religious items that were allowed for Asatru/Odinic practitioners. The denial indicated that the items were not allowed, though Plaintiff contends that the items were previously approved. The denial of herbs and oils deprived Plaintiff of items necessary for...