Sessing v. Beard

NATHAN SESSING, Plaintiff, v. JEFFREY BEARD, et al., Defendants.

Case No. 1:13-cv-01684-LJO-MJS (PC)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

March 30, 2015

FINDINGS AND RECOMMENDATION TO DISMISS PLAINTIFF'S THIRD AMENDED COMPLAINT WITH PREJUDICE

(ECF No. 18)

OBJECTIONS DUE WITHIN FOURTEEN (14) DAYS

Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. He has declined Magistrate Judge jurisdiction. (ECF No. 5.) The First Amended Complaint was dismissed for failure to state a claim. (ECF No. 13.) Plaintiff's motion to amend his Second Amended Complaint was granted before that complaint was screened. His Third Amended Complaint is now before the Court for screening. (ECF No. 18.)

I. PLEADING STANDARD

Section 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).

To 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).

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). Plaintiff must set forth "sufficient factual matter, accepted as true, to state a claim that is plausible on its face." Id. Facial plausibility demands more than the mere possibility that a defendant committed misconduct and, while factual allegations are accepted as true, legal conclusions are not. Id. at 667-68.

II. PLAINTIFF'S ALLEGATIONS

Plaintiff, a prisoner housed at the California Substance Abuse and Treatment Facility in Corcoran, California ("CSATF"), is a practitioner of Asatru/Odinism, an "earth-based," polytheistic religion originating in Northern Europe several thousand years ago. Plaintiff claims that Defendants' denial of his request to construct an outdoor worship area for the exclusive use of Asatruar, or Odinists, violates his Free Exercise rights under the First Amendment, his right to Equal Protection under the Fourteenth Amendment, and substantially burdens his religious practice under the Religious Land Use and Institutionalized Persons Act (RLUIPA).

Plaintiff names as Defendants (1) Beard, California Department of Corrections and Rehabilitation ("CDCR") Director, (2) Stainer, CDCR Division of Adult Institutions Director, (3) Sherman, CSATF Warden, and (4) Smith, CSATF Community Partnership Manager.

Plaintiff does not dispute that CSATF already has "pagan grounds" available for his outdoor worship needs. (ECF No. 18, at 25.) Pursuant to a 2010 memorandum entitled "Pagan Grounds," signed by Defendant Sherman's predecessor, Ralph Diaz, outdoor worship areas were designated on each yard. (Id.) These areas are not permanently fenced off or separated from the rest of the yard, but are "zoned off by using orange cones" during times of worship. (Id.) The pagan grounds are available for use by "other religious groups," including Asatruar/Odinists. (ECF No. 18, at 15, 16).

Plaintiff filed a grievance outlining his dissatisfaction with the existing pagan grounds, as well as with a 2012 memorandum signed by Defendant Stainer's predecessor, Kathleen Dickinson, which states that "establishing new Outdoor Worship areas [is] not authorized." (ECF No. 18, at 23.) Plaintiff objects to the amenities of the pagan grounds, claiming that "setting up cones in the yard is not acceptable," and that he needs a fire pit, altar, and circle of stones. He claims that Native Americans are allowed to have a fire pit. He does not specify whether this fire pit is located on the pagan grounds or in a separate area, or whether Odinists are able to make use of it, too.

In any case, Plaintiff objects to sharing an outdoor worship space with other faiths, specifically Native Americans, because "that would transgress against their deities and his deities." (ECF No. 18, at 4). He includes background materials on Asatru which elaborate on the importance of having "sacred land" for outdoor worship that is "secure from trespassers." (ECF No. 18, at 29). The materials claim it is "imperative to Asatru worship that such sacred places be used only by the Asatru worshippers" because "by sharing land, we are creating an environment of confusion and loss of focus for not only ourselves, but those spirits that we are calling upon to partake in the ritual with us." (ECF No. 18, at 37.)

Plaintiff argues that proceeds from inmate fund drives could be used to offsetconstruction of the new Asatru worship grounds.

Plaintiff's grievance was partially granted at the first level by Defendant Smith's predecessor, Cote, noting that "an outdoor area has previously been designated for religious faith groups to worship outdoors," and that if Plaintiff wished to use "the outside worship area already in place, [he could] do so by making arrangements" with the chaplain. (ECF No. 18, at 11.) At the second and third level of review, reviewers cited the 2012 memorandum prohibiting construction of new religious grounds, and denied Plaintiff's request for a separate worship area. The denials noted that monies from inmate drives cannot be used for religious purposes.

Plaintiff specifies that he is suing Defendants in their official capacities and requests a permanent injunction ordering Defendants to construct an Asatru worship enclosure that includes a fire pit, altar, and circle of stones. He also seeks costs and appointment of counsel.

III. ANALYSIS

Plaintiff argues that denial of his request to construct a new outdoor worship area, made in reliance on the CSATF policy outlined in the 2012 memorandum, violates his rights under the First and Fourteenth Amendments, as well as RLUIPA. Plaintiff fails, however, to establish that the denial of separate outdoor grounds (1) substantially burdens his free exercise, (2) results in unconstitutional disparate treatment, or (3) substantially burdens his religious exercise under RLUIPA. To the extent that Plaintiff argues Defendants have denied him use of a fire pit while allowing Native Americans to use it, the Court finds that he has not pleaded sufficient facts to support an Equal Protection claim. The court will recommend dismissal of his third amended complaint. Because the court recommends dismissal, plaintiff's request for appointment of counsel is moot.

A. Free Exercise - First Amendment

Under the Constitution, "reasonable opportunities must be afforded to all prisoners to exercise the religious freedom guaranteed by the First and Fourteenth Amendments." Cruz v. Beto, 405 U.S. 319, 322 n.2 (1972); see also O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987) ("Inmates . . . retain protections afforded by the First Amendment, including its directive that no law shall prohibit the free exercise of religion."). However, as with other First Amendment rights in the inmate context, prisoners' rights may be limited or retracted if required to maintain institutional security and preserve internal order and discipline. Bell v. Wolfish, 441 U.S. 520, 546 (1979).

The protections of the Free Exercise Clause are triggered when prison officials substantially burden the practice of an inmate's religion by preventing him from engaging in conduct which he sincerely believes is consistent with his faith. Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008); Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir. 1997), overruled in part by Shakur, 514 F.3d at 884-85; see also Lau v. Harrington, 2012 WL 3143869, *8 (E.D. Cal. August 1, 2012).

Restrictions on access to religious opportunities must be found reasonable in light of four factors: (1) whether there is a "valid, rational connection" between the regulation and a legitimate government interest put forward to justify it; (2) "whether there are alternative means of exercising the right that remain open to prison inmates"; (3) whether accommodation of the asserted constitutional right would have a significant impact on guards and other inmates; and (4) whether ready alternatives are absent (bearing on the reasonableness of the regulation). Turner v. Safley, 482 U.S. 78, 89-90 (1987); Mauro v. Arpaio, 188 F.3d 1054, 1058-59 (9th Cir. 1999). Accordingly, prison regulations and operating procedures require reasonable efforts to provide for the religious and spiritualwelfare of inmates.¹

Here, the Court does not question the sincerity of Plaintiff's belief in the importance of practicing Asatru in a separate, sacred, outdoor place of worship. However, the court declines to find that Plaintiff's exercise has been substantially burdened. Plaintiff has certainly not been denied "all means of religious expression." Ward v. Walsh, 1 F.3d 873, 877 (9th Cir. 1993), citing O'Lone, 482 U.S. at 351-52; see Pierce v. County of Orange, 526 F.3d 1190, 1209 (9th Cir. 2008) (denial of all access to religious worship opportunities can violate the First Amendment). Prison officials have expressly indicated that both the chapel and the pagan grounds are available for his use. Thus Plaintiff retains adequate avenues of religious expression.

Because Plaintiff has failed to establish that his free exercise was...