# (PC) Love v. Perry

> District Court, E.D. California · May 11, 2020

URL: https://www.frixlaw.com/law-library/cases/10019074

## Case

- **Court:** District Court, E.D. California
- **Decided:** May 11, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 ANGELO M. LOVE, No. 2:20-cv-0385 JAM DB P
12 Plaintiff,
13 ORDER
14 SUSAN PERRY, et al.
15 Defendants.
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17 Plaintiff is a state prisoner proceeding pro se with a civil rights action under 42 U.S.C. §
18 1983. Plaintiff alleges a violation of his First Amendment right to practice his religion. Before
19 the court is plaintiff’s first amended complaint (“FAC”) for screening. For the reasons set forth
20 below, this court finds plaintiff has stated one potentially cognizable claim under § 1983.
21 Plaintiff will be given the choice of either proceeding with that one claim or filing a second
22 amended complaint.
23 BACKGROUND
24 Plaintiff is incarcerated at the California Correctional Center (“CCC”). He filed his original
25 complaint here on February 21, 2020. (ECF No. 1.) On screening, this court found plaintiff
26 failed to state a cognizable claim for a violation of his First Amendment right to practice his
27 religion. (ECF No. 8.) Plaintiff was given sixty days to file an amended complaint.
28 ////
1 On April 24, 2020, plaintiff filed his FAC. (ECF No. 11.) He again alleges a violation of his
2 right to practice his religion and also discrimination based on his race and his religion. This court
3 considers the FAC below.
4 SCREENING
5 As described in this court’s prior screening order, the court is required to screen complaints
6 brought by prisoners to determine whether they sufficiently state claims under 42 U.S.C. § 1983.
7 28 U.S.C. § 1915A(a). The prisoner must plead an arguable legal and factual basis for each claim
8 in order to survive dismissal. Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). In
9 addition, the prisoner must demonstrate a link between the actions of each defendant and the
10 deprivation of his rights. Monell v. Dept. of Social Servs., 436 U.S. 658 (1978). “A person
11 ‘subjects’ another to the deprivation of a constitutional right, within the meaning of § 1983, if he
12 does an affirmative act, participates in another’s affirmative acts or omits to perform an act which
13 he is legally required to do that causes the deprivation of which complaint is made.” Johnson v.
14 Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
15 I. Allegations of the First Amended Complaint
16 Plaintiff identifies the following defendants: (1) Lieutenant Griffith; (2) Correctional Officer
17 (“CO”) Cox; (3) CO Brewer; and (4) CCC.
18 Plaintiff states that he is a “Falasha Jew.” He alleges that on November 2, 2019, he had a
19 ducat to attend religious services. However, defendant Brewer denied plaintiff the right to attend
20 those services, while allowing Native American prisoners to attend their services. Plaintiff
21 alleges Brewer said he had “never seen a Black Jew.” Plaintiff further states that he had
22 “primary” legal user status but when he asked Brewer if he could go to the library, Brewer
23 refused.
24 In his second claim, plaintiff alleges that starting on November 7, 2019, all prison staff, with
25 the exception of two correctional officers, have refused to allow him to send legal mail
26 confidentially. Staff have also referred to him as “the Black Jew.” Plaintiff alleges he is being
27 singled out based on his ethnicity.
28 ////
1 In his third claim, plaintiff contends that defendant Griffith has on several occasions thrown
2 plaintiff’s meals to the ground and instructed staff to open and search plaintiff’s Kosher meals.
3 He also alleges that, apparently on one occasion, defendant Cox forced all prisoners with Kosher
4 diets to dispose of their food. Cox also refused to permit plaintiff to fast and eat after sundown
5 during Passover.
6 Plaintiff further claims that his religion requires that he wash before eating and say prayers
7 over his food. While the prison had permitted those with Kosher diets to eat outside the chow
8 hall, Cox told plaintiff the warden required plaintiff to eat in the chow hall. According to
9 plaintiff, that posed several problems. First, the eating areas are not cleaned appropriately.
10 Second, he is unable to finish eating before the chow hall closes. Plaintiff explains that he does
11 not receive pre-packaged Kosher meals. Instead, an inmate specially prepares the Kosher meals,
12 which is time-consuming and plaintiff is frequently unable to obtain his meals in time to finish
13 them.
14 Plaintiff alleges that because he has complained about the treatment of Jewish inmates and
15 the problems with Kosher meals, he has suffered retaliation in the form of the destruction of
16 religious books and other items, pictures, and legal work.
17 For relief, plaintiff seeks compensatory and punitive damages and declaratory and injunctive
18 relief.
19 II. Does Plaintiff State Cognizable Claims for Relief?
20 Plaintiff identifies his claims as violations of his First Amendment right to practice his
21 religion, the Due Process Clause, the Equal Protection Clause, and the Eighth Amendment’s ban
22 on cruel and unusual punishment. Plaintiff also appears to be alleging a claim for retaliation.
23 A. Claims Against Defendant Brewer
24 Plaintiff alleges defendant Brewer refused to allow him to attend religious services and to use
25 the library on one occasion because he is a “Black Jew.” In order to state a First Amendment
26 claim, plaintiff must show a defendant’s actions placed a “substantial burden” on his ability to
27 practice his religion. Jones v. Williams, 791 F.3d 1023, 1031 (9th Cir. 2015). A one-time
28 incident is not sufficient to meet that standard. See Brown v. Washington, 752 F. App’x 402, 405
1 (9th Cir. 2018) (noting that a “one time set of circumstances” or an “isolated incident” is
2 insufficient to constitute a “substantial burden of plaintiff’s religious beliefs” under the First
3 Amendment); Canell v. Lightner, 143 F.3d 1210, 1215 (9th Cir. 1998) (intrusions which are
4 “relatively short-term and sporadic” do not constitute a substantial burdens under the First
5 Amendment). Therefore, plaintiff fails to state a cognizable First Amendment claim against
6 defendant Brewer.
7 This court finds plaintiff has, however, stated a claim under the Equal Protection Clause.
8 Plaintiff alleges Brewer intentionally treated him differently than other similarly situated inmates
9 based on both his race and his religion. This is sufficient to state an Equal Protection claim
10 against Brewer. See City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985);
11 Hartmann v. Calif. Dept. of Corrs. and Rehab., 707 F.3d 1114, 1123 (9th Cir. 2013).
12 B. Claim Against Defendant Griffith
13 Plaintiff alleges Griffith on “several” occasions threw his food to the ground and instructed
14 staff to search his meals. Again, plaintiff allegations are not sufficient to show Griffith
15 “substantially burdened” his religious beliefs. Sporadic intrusions on his religious practices are
16 insufficient under the First Amendment. See Canell, 143 F.3d at 1215. Plaintiff fails to allege a
17 cognizable First Amendment claim against Griffith.
18 C. Claims Against Defendant Cox
19 Plaintiff’s allegation that on one occasion Cox forced all prisoners with Kosher diets to
20 dispose of their food is insufficient to state a claim for the same reason. And the same is true for
21 plaintiff’s contention that Cox refused to permit plaintiff to fast and eat after sundown on the first
22 day of Passover.
23 Plaintiff also alleges that Cox informed him that the warden changed the prison’s policy and
24 required inmates with Kosher diets to eat in the chow hall. As a result, plaintiff is forced to eat in
25 an area that does not meet his religion’s standards of cleanliness and is unable to complete his
26 meals because he does not receive his food in sufficient time to do so. Plaintiff’s allegations
27 indicate this situation is long-term, in which case he may be able to state a cognizable claim.
28 ////
1 However, plaintiff describes this policy change as coming from the warden, not from
2 defendant Cox. Plaintiff has not included the warden as a defendant in his FAC. If he wishes to
3 state a claim regarding prison policy about where Kosher meals are eaten, he must identify the
4 warden as a defendant, show the warden’s responsibility for that change, and describe how eating
5 in the chow hall burdens his religion or discriminates against him based on his religious beliefs.
6 D. CCC is Improper Defendant
7 Plaintiff adds CCC as a defendant. However, as plaintiff was instructed previously, a § 1983
8 action is only appropriate against a “person.” Accordingly, CCC is not an appropriate defendant
9 in this action.
10 E. Remaining Claims
11 There are several problems with plaintiff’s remaining allegations. First, plaintiff fails to
12 identify which defendant is responsible. Plaintiff complains that “staff” have refused to allow
13 him to send legal mail confidentially. He appears to be alleging that they are doing so based on
14 his race. Plaintiff may be able to state a claim under the Equal Protection Clause if he can show
15 he was intentionally treated differently than other, similarly situated inmates, because he is Black.
16 However, plaintiff must identify specific people who are responsible for that discrimination.
17 Plaintiff also claims he has suffered retaliation for complaining about the treatment of Jewish
18 inmates but does not explain who has destroyed his property or how the destruction of his
19 property is connected to the exercise of his First Amendment rights. Plaintiff may be able to
20 make out a claim for retaliation under the First Amendment. To do so, he must allege facts which
21 show the following five basic elements: “(1) An assertion that a state actor took some adverse
22 action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action
23 (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not
24 reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567–68
25 (9th Cir. 2005) (footnote and citations omitted).
26 Finally, while plaintiff contends he is stating claims under the Due Process Clause and the
27 Eighth Amendment, none of his allegations make out claims under those provisions.
28 ////
1 CONCLUSION
2 This court finds plaintiff has stated only one potentially cognizable claim – a claim that
3 defendant Brewer violated his rights to equal protection of the laws when he discriminated
4 against plaintiff on November 2, 2019. This court further finds plaintiff’s allegations are
5 insufficient to state any other claims under § 1983. Plaintiff may choose to proceed on his one
6 cognizable claim or to amend his complaint. If he chooses to proceed on his one cognizable
7 claim, the remaining claims and defendants will be dismissed from this action.
8 If plaintiff choses to amend his complaint, he must adhere to the following legal standards for
9 stating claims for relief under § 1983.
10 • Plaintiff must clearly identify each defendant and describe just what that defendant
11 did that violated his constitutional rights.
12 • Plaintiff must identify as a defendant only persons who personally participated in a
13 substantial way in depriving plaintiff of a federal constitutional right. Johnson v.
14 Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the
15 deprivation of a constitutional right if he does an act, participates in another’s act
16 or omits to perform an act he is legally required to do that causes the alleged
17 deprivation). “Vague and conclusory allegations of official participation in civil
18 rights violations are not sufficient.” Ivey v. Bd. of Regents, 673 F.2d 266, 268
19 (9th Cir. 1982) (citations omitted).
20 • Plaintiff must make a short, plain statement of the facts supporting each claim.
21 See Fed. R. Civ. P. 8(a).
22 • Plaintiff may allege multiple claims against a single defendant. Fed. R. Civ. P.
23 18(a). However, he may not bring a claim against one defendant in the same case
24 as an unrelated claim against another defendant. Unrelated claims against
25 different defendants belong in different suits.” George v. Smith, 507 F.3d 605, 607
26 (7th Cir. 2007) (citing 28 U.S.C. § 1915(g)).
27 ////
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1 • Any amended complaint must show the federal court has jurisdiction, the action is
2 brought in the right place, and plaintiff is entitled to relief if plaintiff’s allegations
3 are true. It must contain a request for particular relief.
4 • An amended complaint must be complete in itself without reference to any prior
5 pleading. E.D. Cal. R. 220. Once plaintiff files an amended complaint, the
6 original pleadings are superseded.
7 • Plaintiff must exhaust his administrative remedies before filing suit. 42 U.S.C. §
8 1997e(a).
9 Finally, plaintiff is advised that by signing an amended complaint, he certifies he has made
10 reasonable inquiry and has evidentiary support for his allegations, and for violation of this rule
11 the court may impose sanctions sufficient to deter repetition by plaintiff or others. Fed. R. Civ. P.
12 11.
13 For the foregoing reasons, and good cause appearing, IT IS HEREBY ORDERED as
14 follows:
15 1. Plaintiff has stated a potentially cognizable Equal Protection claim against defendant
16 Brewer. If he chooses to proceed on that claim in his FAC, within 60 days he shall so inform the
17 court. The court will then order service of the FAC on defendant Brewer and will recommend
18 dismissal of plaintiff’s remaining claims and the other defendants.
19 2. Plaintiff may also choose to amend his complaint. Plaintiff is granted sixty days from the
20 date of service of this order to file an amended complaint that complies with the requirements of
21 the Civil Rights Act, the Federal Rules of Civil Procedure, and the Local Rules of Practice; the
22 amended complaint must bear the docket number assigned this case and must be labeled “Second
23 Amended Complaint.” Failure to file an amended complaint in accordance with this order will
24 result in this case proceeding on plaintiff’s Equal Protection claim against defendant Brewer in
25 the FAC and dismissal of the remaining claims.
26 ////
27 ////
28 ////
wOAOe 2 CUVEE MMU te PI ee YY UO

1 3. The Clerk of the Court is directed to send plaintiff a copy of the prisoner complaint form
2 | used in this district.
3 | Dated: May 8, 2020
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6 ORAH BARNES
UNITED STATES MAGISTRATE JUDGE
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21 | DLB:9/DLB1/prisoner-civil rights/love0385.FAC scrn
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10019074. Public record. Not legal advice.