(PC) White v. Krantz

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8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

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11 CORY JAMES WHITE, 1:20-cv-00892-NONE-GSA-PC

12 Plaintiff, SCREENING ORDER

13 vs. ORDER DISMISSING COMPLAINT FOR

FAILURE TO STATE A CLAIM, WITH

14 KRANTZ, et al., LEAVE TO AMEND

15 Defendants. (ECF No. 1.)

16 THIRTY DAYS TO FILE FIRST

AMENDED COMPLAINT

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21 I. BACKGROUND

22 Cory James White (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

23 with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint

24 commencing this action on June 29, 2020. (ECF No. 1.) The Complaint is now before the court

25 for screening. 28 U.S.C. § 1915.

26 II. SCREENING REQUIREMENT

27 The Court is required to screen complaints brought by prisoners seeking relief against a

28 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

1 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

2 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

3 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

4 “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall

5 dismiss the case at any time if the court determines that the action or appeal fails to state a claim

6 upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

7 A complaint is required to contain “a short and plain statement of the claim showing that

8 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

9 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

10 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

11 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken

12 as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores,

13 Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). To state

14 a viable claim, Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim

15 to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service,

16 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as true, legal

17 conclusions are not. Id. The mere possibility of misconduct falls short of meeting this

18 plausibility standard. Id.

19 III. SUMMARY OF COMPLAINT

20 Plaintiff is presently incarcerated at California State Prison-Los Angeles County in

21 Lancaster, California. The events at issue in the Complaint allegedly occurred at Kern Valley

22 State Prison (KVSP) in Delano, California, when Plaintiff was incarcerated there in the custody

23 of the California Department of Corrections and Rehabilitation (CDCR). Plaintiff names as

24 defendants Ron Kranz (Chaplain), Maurice Howard (Chaplain), Randy Lindsey (Community

25 Resource Manager), and Paul Gonzales (Community Resource Manager) (collectively,

26 “Defendants”).

27 A summary of Plaintiff’s allegations follows:

28 Plaintiff is Jewish by heritage, ethnic descent, and religious affiliation. On May 31, 2018,

1 Plaintiff was transferred to KVSP where upon arrival (from June 1, 2018 through July 16, 2018)

2 he was denied Kashrut, known commonly as Kosher meals and KDP within the CDCR. Plaintiff

3 had been preapproved to receive the KDP meals from the transferring institution. On June 1,

4 2018, when he was denied a Kosher meal, Plaintiff commenced a hunger strike. Due to his

5 indigence and hunger Plaintiff was compelled to begin eating the general population meals which

6 are “Treif” (torn – not Kosher), thus placing Plaintiff in a state of uncleanliness. (ECF No. 1 at

7 5:14.) Plaintiff was denied KDP meals for about fifty days.

8 Claim #1. Plaintiff submitted a CDCR 22 Request for Interview form on June 11, 2018,

9 to defendant Ron Kranz. Defendant Kranz deliberately waited until July 16, 2018 to provide the

10 interview.

11 Claim #2. On September 19, 2018, Jews observed the holiday of Yom Kippur. Jewish

12 holy days begin the evening prior to the actual day of observance. As per CDCR policy, Plaintiff

13 submitted a CDCR 22 form requesting a sack lunch. Yom Kippur is a day of fasting in Judaism.

14 Due to a policy instituted by defendant Ron Kranz, which denied Plaintiff’s right under DOM §

15 54080.14, Plaintiff was required to maintain a fast on meals from the previous day, going without

16 a meal for over twenty-four hours. This was cruel and unusual punishment without any legitimate

17 penological purpose. Plaintiff submitted a CDCR 602 appeal on the issue but it was screened

18 out.

19 Claim #3. On December 18, 2018, Plaintiff submitted a CDCR 602 form grieving the

20 denial of a sack lunch for a fasting day, per policy. Plaintiff was interviewed by defendant

21 Maurice Howard for an appeal and defendant Howard attempted to qualify that the sun had set

22 at an appropriate time for Plaintiff to break his fast. Plaintiff did without three meals prior to the

23 time to break his fast.

24 Claim #4. The fast of Esther (Purim) took place on March 20, 2020, and Jews are

25 required to fast the day before. Plaintiff submitted a CDCR 22 form requesting a sack lunch.

26 On April 10, 2019, Plaintiff was interviewed for his 602 appeal by defendant Maurice

27 Howard who stated in the first level review that Plaintiff needed to fill out a CDCR Form 3030

28 to request a religious meal. Plaintiff disagrees and states that a CDCR Form 3030 is used to

1 request a special diet, and that DOM § 54080.14 states that one must submit a CDCR 22 form to

2 request a sack lunch for a fasting day. Defendant denied Plaintiff’s CDCR 602 at the first level

3 of review allowing Plaintiff’s rights to be circumvented. In the second level review, defendant

4 Paul Gonzales stated, “No sack lunch is required for Jewish holy day end of fasting, nor was a

5 request received by the Chaplain.” (ECF No. 1 at 10:1-3.) Plaintiff submitted CDCR 22 forms

6 on March 10, 2019, one to Food Service and the other sent to the RRC. Defendant Paul Gonzales

7 chairs the RRC and failed in his assigned duties.

8 At the third level of review, defendants Maurice Howard and Paul Gonzales deprived

9 Plaintiff of rights under DOM, Title 15, and the constitutions of both state and federal

10 governments, and their actions had no legitimate penological interest.

11 Claim #5. On July 21, 2019, the Jewish fast of Tammuz took place requiring Jews to

12 fast. Per policy, Plaintiff submitted a CDCR 22 form requesting a sack lunch. On July 7, 2019

13 Plaintiff submitted two CDCR 22 forms, one to defendant P. Gonzales and one to Ron Kranz,

14 RRC. Defendant Gonzales did not respond and so is not named in this particular claim.

15 Defendant Ron Kranz responded on July 12, 2019, misrepresenting Plaintiff’s religious beliefs

16 and the meaning behind the fast day.

17 Plaintiff filed a 602 appeal. At the second level of review, defendant Randy Lindsey

18 denied the 602 appeal stating that defendant Kranz was justified. But defendant Lindsey never

19 dealt with the issue Plaintiff grieved -- that DOM § 54080.14 did state that a Jewish prisoner was

20 allowed a sack lunch upon request for a fasting day.

21 Claim #6. On August 11, 2019, the fast of Tish’a B’av occurred, which is a fasting day.

22 Per policy, Plaintiff submitted a CDCR 22 form to request a sack lunch. On July 22, 2019, and

23 August 1, 2019, Plaintiff sent CDCR 22 forms to defendant Ron Kranz. Defendant Kranz failed

24 to respond.

25 On September 11, 2019, Plaintiff submitted another CDCR 22 form about the continual

26 denial of sack lunches on August 11, 2019, and all the previous fasting days throughout the year.

27 On October 21, 2019, at the first level of review, defendant Randy Lindsey stated,

28 “Neither policy nor precedence requires that an individual sack lunch be provided to an inmate

1 who chooses to observe a religious holy day.” (ECF No. 1 at 12:21-23.) On December 9, 2019,

2 Plaintiff’s appeal was partly granted but failed to ensure adequate remedies. On April 30, 2020,

3 the Office of Appeals decided not to provide a third level review and let the second level review

4 stand finally recognizing that Plaintiff was due a sack lunch for a fasting day per policy.

5 Plaintiff seeks as relief compensatory damages, special damages in the amount of

6 $250,000.00 for the intentional infliction of emotional and spiritual distress, punitive damages,

7 litigation fees and costs, and appointment of counsel.

8 IV. PLAINTIFF’S CLAIMS

9 The Civil Rights Act under which this action was filed provides:

10 Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District of Columbia, subjects, or causes to

11 be subjected, any citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights, privileges, or immunities

12 secured by the Constitution and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceeding for redress . . . .

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14 42 U.S.C. § 1983.

15 “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a

16 method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 U.S. 386,

17 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also Chapman v.

18 Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles, 697 F.3d

19 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 2012); Anderson v.

20 Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). “To the extent that the violation of a state law

21 amounts to the deprivation of a state-created interest that reaches beyond that guaranteed by the

22 federal Constitution, Section 1983 offers no redress.” Id.

23 To state a claim under § 1983, a plaintiff must allege that (1) the defendant acted under

24 color of state law and (2) the defendant deprived him or her of rights secured by the Constitution

25 or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see also

26 Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color of

27 state law”). A person deprives another of a constitutional right, “within the meaning of § 1983,

28 ‘if he does an affirmative act, participates in another’s affirmative act, or omits to perform an act

1 which he is legally required to do that causes the deprivation of which complaint is made.’”

2 Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting

3 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite causal connection may be

4 established when an official sets in motion a ‘series of acts by others which the actor knows or

5 reasonably should know would cause others to inflict’ constitutional harms.” Preschooler II, 479

6 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of causation “closely resembles

7 the standard ‘foreseeability’ formulation of proximate cause.” Arnold v. Int’l Bus. Mach. Corp.,

8 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City of Los Angeles, 533 F.3d 1010,

9 1026 (9th Cir. 2008).

10 A. Plaintiff’s Exhibits

11 Plaintiff has attached approximately 190 pages of exhibits (Exhibits A-M) to the

12 Complaint, with a table of contents. The exhibits are well organized and Plaintiff refers to them

13 in the Complaint. However, while exhibits are permissible, Fed. R. Civ. P. 10(c), they are not

14 necessary in the federal system of notice pleading, Fed. R. Civ. P. 8(a). The Court strongly

15 suggests to Plaintiff that they should not be submitted where (1) they serve only to confuse the

16 record and burden the Court, or (2) they are intended as future evidence. If this action reaches a

17 juncture at which the submission of evidence is appropriate and necessary (e.g., summary

18 judgment or trial), Plaintiff will have the opportunity at that time to submit his evidence.

19 The court has reviewed Plaintiff’s exhibits to the Complaint for clarification of the events.

20 However, Plaintiff is cautioned that it is not the duty of the court to look through all 190 pages

21 of his exhibits to determine whether or not he has claims cognizable under § 1983. Rather, the

22 court looks to the factual allegations contained in Plaintiff’s Complaint to determine whether or

23 not Plaintiff has stated a cognizable claim for relief under § 1983.

24 B. Prison Appeals Process

25 Most of Plaintiff’s allegations against the named Defendants pertain to their review and

26 handling of Plaintiff’s 602 inmate appeals. These allegations, without more, do not state a

27 cognizable claim.

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1 The Due Process Clause protects prisoners from being deprived of liberty without due

2 process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to state a cause of

3 action for deprivation of due process, a plaintiff must first establish the existence of a liberty

4 interest for which the protection is sought. “States may under certain circumstances create liberty

5 interests which are protected by the Due Process Clause.” Sandin v. Conner, 515 U.S. 472, 483-

6 84 (1995). Liberty interests created by state law are generally limited to freedom from restraint

7 which “imposes atypical and significant hardship on the inmate in relation to the ordinary

8 incidents of prison life.” Id.

9 “[I]nmates lack a separate constitutional entitlement to a specific prison grievance

10 procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (no liberty interest in

11 processing of appeals because no entitlement to a specific grievance procedure), citing Mann v.

12 Adams, 855 F.2d 639, 640 (9th Cir. 1988). “[A prison] grievance procedure is a procedural right

13 only, it does not confer any substantive right upon the inmates.” Azeez v. DeRobertis, 568 F.

14 Supp. 8, 10 (N.D. Ill. 1982) accord Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993); see

15 also Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001) (existence of grievance procedure

16 confers no liberty interest on prisoner). “Hence, it does not give rise to a protected liberty interest

17 requiring the procedural protections envisioned by the Fourteenth Amendment.” Azeez, 568 F.

18 Supp. at 10; Spencer v. Moore, 638 F. Supp. 315, 316 (E.D. Mo. 1986).

19 Actions in reviewing prisoner’s administrative appeal generally cannot serve as the basis

20 for liability in a section 1983 action. Buckley, 997 F.2d at 495. The argument that anyone who

21 knows about a violation of the Constitution, and fails to cure it, has violated the Constitution

22 himself is not correct. “Only persons who cause or participate in the violations are responsible.

23 Ruling against a prisoner on an administrative complaint does not cause or contribute to the

24 violation.” Greeno v. Daley, 414 F.3d 645, 656-57 (7th Cir. 2005) accord George v. Smith, 507

25 F.3d 605, 609-10 (7th Cir. 2007); Reed v. McBride, 178 F.3d 849, 851-52 (7th Cir. 1999); Vance

26 v. Peters, 97 F.3d 987, 992-93 (7th Cir. 1996).; Haney v. Htay, No. 1:16-CV-00310-AWI-SKO-

27 PC, 2017 WL 698318, at *4–5 (E.D. Cal. Feb. 21, 2017).

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1 Thus, Plaintiff’s allegations that Defendants failed to properly process Plaintiff’s appeals

2 fail to state a cognizable claim.

3 C. Free Exercise of Religion – First Amendment Claim

4 The First Amendment is made applicable to state action by incorporation through the

5 Fourteenth Amendment. Everson v. Bd. of Educ. of Ewing Twp., 330 U.S. 1, 8 (1947). In order

6 to establish a free exercise violation, a prisoner must show that a defendant substantially

7 burdened the practice of his religion without any justification reasonably related to legitimate

8 penological interests. See Shakur v. Schriro, 514 F.3d 878, 883-84 (9th Cir. 2008); see, e.g.,

9 Bolds v. Cavazos, No. 14-15176, 599 Fed. Appx. 307 (9th Cir. March 20, 2015) (unpublished

10 memorandum disposition) (dismissing Free Exercise Clause claim because inmate failed to show

11 that confiscation of television “substantially burdened” the practice of religion). “A substantial

12 burden . . . place[s] more than an inconvenience on religious exercise; it must have a tendency to

13 coerce individuals into acting contrary to their religious beliefs or exert substantial pressure on

14 an adherent to modify his behavior and to violate his beliefs.” Jones v. Williams, 791 F.3d 1023,

15 1031-32 (9th Cir. 2015). De minimis or minor-burdens on the free exercise of religion are not of

16 a constitutional dimension, even if the belief upon which the exercise is based is sincerely held

17 and rooted in religious belief. See e.g., Rapier v. Harris, 172 F.3d 999, 1006 n. 4 (7th Cir. 1999)

18 (the unavailability of a non-pork tray for inmate at 3 meals out of 810 does not constitute more

19 than a de minimis burden on inmate’s free exercise of religion).

20 The “sincerity test,” and not the centrality test, applies to prisoners’ free-exercise claims.

21 Penwell v. Holtgeerts, 386 F. App’x 665, 667 (9th Cir. 2010) (citing see Shakur, 514 F.3d at

22 884–85). Under the sincerity test, a prisoner’s religious concern implicates the free exercise

23 clause if it is (1) “sincerely held” and (2) “rooted in religious belief,” rather than in secular

24 philosophical concerns. Id. (citing Malik v. Brown, 16 F.3d 330, 333 (9th Cir. 1994) (quotations

25 omitted); see also Shakur, 514 F.3d at 885 (adopting Malik’s formulation of the sincerity test)).

26 A prison regulation that impinges on an inmate’s First Amendment rights is valid if it is

27 reasonably related to legitimate penological interests. See O’Lone v. Estate of Shabazz, 482 U.S.

28 342, 349 (1987) (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)). Allegations of a denial of

1 an opportunity to practice religion “must be found reasonable in light of four factors: (1) whether

2 there is a ‘valid, rational connection’ between the regulation and a legitimate government interest

3 put forward to justify it; (2) ‘whether there are alternative means of exercising the right that

4 remain open to prison inmates’; (3) whether accommodation of the asserted constitutional right

5 would have a significant impact on guards and other inmates; and (4) whether ready alternatives

6 are absent (bearing on the reasonableness of the regulation).” Pierce v. County of Orange, 526

7 F.3d 1190, 1209 (9th Cir. 2008) (citing Turner, 482 U.S. at 89-90); see Beard v. Banks, 548 U.S.

8 521, 532-33 (2006) (noting that application of the Turner factors does not turn on balancing the

9 factors, but on determining whether the defendants show a reasonable relation, as opposed to

10 merely a logical relation).

11 Here, Plaintiff has established that he is Jewish by heritage, ethnic descent, and religious

12 affiliation. Plaintiff first alleges that he was denied Kosher meals for approximately 50 days,

13 after he arrived at KVSP, from June 1, 2018 until July 16, 2018. Plaintiff alleges that he had

14 been preapproved by his transferring institution to receive Kosher meals and when his request

15 for Kosher meals was denied at KVSP, he went on a hunger strike. However, because of his

16 hunger and indigence, he was compelled to begin eating the general population meals which are

17 Treif (torn – not Kosher), thus placing Plaintiff in a state of uncleanliness.

18 Plaintiff may be able to state a free exercise claim for the denial of a Kosher diet.

19 However, Plaintiff must first name the individual defendant(s) who denied him a Kosher diet,

20 explain what exactly that particular individual defendant did, or did not do, regarding the

21 requested Kosher diet, and why Plaintiff was denied a Kosher diet. These allegations should

22 include what happened when he arrived at KVSP and requested a Kosher diet, not what was

23 decided later based on the 602 appeals he filed. More specificity is required here.

24 Next, Plaintiff alleges that on numerous occasions, in violation of DOM § 54080.14, he

25 was denied sack lunches to eat before or after a religious fast, and the lack of a sack lunch caused

26 him to miss more than 24-hours-worth of meals during each fast. Plaintiff cannot state a claim

27 concerning the denial of sack lunches until he names as defendants the individuals who denied

28 him the sack lunches. Plaintiff must set for detailed facts supporting each incident, and detail

1 what each defendant did or did not do. Further, Plaintiff must allege facts showing what

2 alternatives he had, other than obtaining sack lunches, to avoid missing 24 hours of meals during

3 religious fasts, and what alternatives he was provided, if any, to practice his religion in general.

4 Plaintiff should address whether he was able to participate in religious services, group prayer,

5 discussion, and holidays, even though he was denied sack meals. Without more factual

6 allegations the court cannot determine whether Plaintiff states a cognizable claim for the denial

7 of his requests for sack meals.

8 Plaintiff shall be granted leave to amend his Free Exercise claim to address the

9 deficiencies in this claim found by the court.

10 D. RLUIPA – Right to Practice Religion

11 The Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”) provides:

12 No government shall impose a substantial burden on the religious

exercise1 of a person residing in or confined to an institution . . .,

13 even if the burden results from a rule of general applicability,

unless the government demonstrates that imposition of the burden

14 on that person:

15 (1) is in furtherance of a compelling government interest; and

16 (2) is the least restrictive means of furthering that compelling

government interest.

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18 42 U.S.C. § 2000cc-1.

19 “RLUIPA is to be construed broadly in favor of protecting an inmate’s right to exercise

20 his religious beliefs.” Warsoldier v. Woodford, 418 F.3d 989, 995 (9th Cir. 2005). “RLUIPA

21 disallows policies that impose ‘a substantial burden on . . . religious exercise’ unless the burden

22 ‘furthers “a compelling governmental interest,” and does so by “the least restrictive means.”’”

23 Alvarez v. Hill, 518 F.3d 1152 (9th Cir. 2008) (quoting id. at 994 quoting 42 U.S.C. § 2000cc–

24 1(a)). A “substantial burden” is one that imposes a significantly great restriction or onus on

25

26 1 “Congress defined ‘religious exercise’ to include ‘any exercise of religion, whether or not

compelled by, or central to, a system of religious belief.’” Holt v. Hobbs, 135 S.Ct. 853, 860, 190 L.Ed.2d 747

27 (2015). (quoting § 2000cc-5(7)(A)). In fact, RLUIPA bars inquiry into whether a particular belief or practice is

‘central’ to a prisoner’s religion.” Cutter v. Wilkinson, 544 U.S. 709, 725 n.13, 125 S.Ct. 2113, 161 L.Ed. 1020

28 (2005) (overruling Establishment Clause to RLUIPA).

1 religious exercise. San Jose Christian College v. City of Morgan Hill, 360 F.3d 1024, 1034–35

2 (9th Cir. 2004). The Supreme Court has found a substantial burden “where the state denies an

3 important benefit because of conduct mandated by religious belief, thereby putting substantial

4 pressure on an adherent to modify his behavior and to violate his beliefs.” Warsoldier, 418 F.3d

5 at 995 (quoting Thomas v. Review Bd. of the Ind. Employment Sec. Div., 450 U.S. 707, 717–18

6 (1981)). In any RLUIPA claim, one must first identify the “religious exercise” allegedly

7 impinged upon, and then must ask whether the prison regulation at issue “substantially burdens”

8 that religious exercise. Greene v. Solano County Jail, 513 F.3d 982, 987 (9th Cir. 2008). “Courts

9 are expected to apply RLUIPA’s standard with due deference to the experience and expertise of

10 prison and jail administrators in establishing necessary regulations and procedures to maintain

11 good order, security and discipline, consistent with consideration of costs and limited resources.”

12 Hartmann v. California Dep’t of Corr. & Rehab., 707 F.3d 1114, 1124-25 (9th Cir. 2013) (citing

13 Cutter v. Wilkinson, 544 U.S. 709, 723, 125 S.Ct. 2325 (2003)) (internal quotation marks

14 omitted).

15 Money damages are not available under RLUIPA against the state or state officials sued

16 in their official capacities, Sossamon v. Texas, 563 U.S. 277, 279, 131 S.Ct. 1651, 1655 (2011),

17 and RLUIPA does not contemplate liability of government employees in their individual

18 capacity. Wood v. Yordy, 753 F.3d 899, 904 (9th Cir. 2014). Thus, a RLUIPA claim may

19 proceed only for declaratory or injunctive relief against defendants acting within their official

20 capacities.

21 Here, Plaintiff fails to state a claim for violation of RLUIPA. He has not requested

22 declaratory or injunctive relief against any defendant acting in his or her official capacity.

23 Plaintiff has requested as relief monetary damages, which are not available in a RLUIPA claim.

24 Plaintiff shall be granted leave to amend this claim to correct the deficiencies in his RLUIPA

25 claim identified by the court.

26 E. Conditions of Confinement – Eighth Amendment Claim

27 The Eighth Amendment’s prohibition against cruel and unusual punishment protects

28 prisoners not only from inhumane methods of punishment but also from inhumane conditions of

1 confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006) (citing Farmer v.

2 Brennan, 511 U.S. 825, 847, 114 S.Ct. 1970 (1994) and Rhodes v. Chapman, 452 U.S. 337, 347,

3 101 S.Ct. 2392 (1981)) (quotation marks omitted). While conditions of confinement may be, and

4 often are, restrictive and harsh, they must not involve the wanton and unnecessary infliction of

5 pain. Morgan, 465 F.3d at 1045 (citing Rhodes, 452 U.S. at 347) (quotation marks omitted).

6 Thus, conditions which are devoid of legitimate penological purpose or contrary to evolving

7 standards of decency that mark the progress of a maturing society violate the Eighth Amendment.

8 Morgan, 465 F.3d at 1045 (quotation marks and citations omitted); Hope v. Pelzer, 536 U.S. 730,

9 737, 122 S.Ct. 2508 (2002); Rhodes, 452 U.S. at 346. Prison officials have a duty to ensure that

10 prisoners are provided adequate shelter, food, clothing, sanitation, medical care, and personal

11 safety, Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000) (quotation marks and citations

12 omitted), but not every injury that a prisoner sustains while in prison represents a constitutional

13 violation, Morgan, 465 F.3d at 1045 (quotation marks omitted).

14 To maintain an Eighth Amendment claim, a prisoner must show that prison officials were

15 deliberately indifferent to a substantial risk of harm to his health or safety. E.g., Farmer, 511

16 U.S. at 847; Thomas v. Ponder, 611 F.3d 1144, 1150-51 (9th Cir. 2010); Foster v. Runnels, 554

17 F.3d 807, 812-14 (9th Cir. 2009); Morgan, 465 F.3d at 1045; Johnson, 217 F.3d at 731; Frost v.

18 Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). The deliberate indifference standard involves an

19 objective and a subjective prong. First, the alleged deprivation must be, in objective terms,

20 “sufficiently serious . . . .” Farmer, 511 U.S. at 834. “[R]outine discomfort inherent in the prison

21 setting” does not rise to the level of a constitutional violation. Johnson, 217 F.3d at 731. Rather,

22 extreme deprivations are required to make out a conditions of confinement claim, and only those

23 deprivations denying the minimal civilized measure of life’s necessities are sufficiently grave to

24 form the basis of an Eighth Amendment violation. Farmer, 511 U.S. at 834; Hudson v.

25 McMillian, 503 U.S. 1, 9, 112 S.Ct. 995 (1992). The circumstances, nature, and duration of the

26 deprivations are critical in determining whether the conditions complained of are grave enough

27 to form the basis of a viable Eighth Amendment claim. Johnson, 217 F.3d at 731. Second, the

28 prison official must “know[] of and disregard[] an excessive risk to inmate health or safety . . . .”

1 Farmer, 511 U.S. at 837. Thus, a prison official may be held liable under the Eighth Amendment

2 for denying humane conditions of confinement only if he knows that inmates face a substantial

3 risk of harm and disregards that risk by failing to take reasonable measures to abate it. Id. at 837-

4 45. Mere negligence on the part of the prison official is not sufficient to establish liability, but

5 rather, the official’s conduct must have been wanton. Id. at 835; Frost, 152 F.3d at 1128.

6 Adequate food is a basic human need protected by the Eighth Amendment. See Keenan

7 v. Hall, 83 F.3d 1083, 1091 (9th Cir.1996), amended, 135 F.3d 1318 (9th Cir.1998). The Eighth

8 Amendment requires only that prisoners receive food that is adequate to maintain health. See

9 LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. 1993). However, “[s]ome conditions of

10 confinement may establish an Eighth Amendment violation “in combination” when each would

11 not do so alone, but only when they have a mutually enforcing effect that produces the

12 deprivation of a single, identifiable human need such as food, warmth, or exercise -- for example,

13 a low cell temperature at night combined with a failure to issue blankets.” Wilson v. Seiter, 501

14 U.S. 294, 304, 115 L. Ed. 2d 271, 111 S. Ct. 2321 (1991). The circumstances, nature, and duration

15 of a deprivation of these necessities must be considered in determining whether a constitutional

16 violation has occurred. “The more basic the need, the shorter the time it can be withheld.”

17 Hoptowit v. Ray, 682 F.2d 1237, 1259 (9th Cir. 1982).

18 Plaintiff alleges that he was denied a Kosher diet for 50 days, and on other occasions his

19 requests for sack lunches to eat before or after a religious fast were denied. These acts against

20 Plaintiff, without more, do not rise to the level of an Eighth Amendment violation.

21 Even though Plaintiff was denied Kosher meals for 50 days, he was able to eat meals

22 served to the general population during that time. Plaintiff has not described an extreme

23 deprivation from the denial of (seven) sack meals over time. There are no allegations that

24 Plaintiff lost weight or otherwise physically suffered from an inadequate diet because he was

25 denied sack meals. Moreover, Plaintiff has not alleged facts showing that any defendant knew

26 about a substantial risk of serious harm to Plaintiff if he were denied Kosher foods or sack lunches

27 and yet acted against him while deliberately ignoring the risk, causing Plaintiff harm. Therefore,

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1 Plaintiff fails to state an Eighth Amendment claim. Plaintiff shall be granted leave to amend the

2 Complaint to address the deficiencies in his Eighth Amendment claim.

3 F. Damages for Emotional Distress

4 Plaintiff has requested special damages in the amount of $250,000.00 for the intentional

5 infliction of emotional and spiritual distress. Plaintiff is advised that the Prison Litigation Reform

6 Act provides that “[n]o Federal civil action may be brought by a prisoner confined in jail, prison,

7 or other correctional facility, for mental and emotional injury suffered while in custody without

8 a prior showing of physical injury.” 42 U.S.C. § 1997e(e). The physical injury “need not be

9 significant but must be more than de minimis.” Oliver v. Keller, 289 F.3d 623, 627 (9th Cir.

10 2002) ) (back and leg pain and canker sore de minimis); see also Pierce v. County of orange, 526

11 F.3d 1211, 1211-13 (bladder infections and bed sores, which pose significant pain and health

12 risks to paraplegics such as the plaintiff, were not de minimis). The physical injury requirement

13 applies only to claims for mental or emotional injuries and does not bar claims for compensatory,

14 nominal, or punitive damages. Id. at 630. Therefore, Plaintiff is not entitled to monetary

15 damages in this case for emotional distress unless he also shows a physical injury.

16 G. State Law Claims

17 Plaintiff brings claims for negligence, intentional infliction of emotional distress, and

18 violations of the CDCR’s Department Operations Manual, Title 15 regulations, and the

19 California state constitution. These are state law claims. Plaintiff is informed that violation of

20 state tort law, state regulations, rules and policies of the CDCR, or other state law is not sufficient

21 to state a claim for relief under § 1983. Section 1983 does not provide a cause of action for

22 violations of state law. See Galen v. Cnty. of Los Angeles, 477 F.3d 652, 662 (9th Cir. 2007).

23 To state a claim under § 1983, there must be a deprivation of federal constitutional or statutory

24 rights. See Paul v. Davis, 424 U.S. 693 (1976); also see Buckley v. City of Redding, 66 F.3d

25 188, 190 (9th Cir. 1995); Gonzaga University v. Doe, 536 U.S. 273, 279 (2002). Although the

26 court may exercise supplemental jurisdiction over state law claims, Plaintiff must first have a

27 cognizable claim for relief under federal law. See 28 U.S.C. § 1367. In this instance, the Court

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1 fails to find any cognizable federal claims in the Complaint. Therefore, Plaintiff’s state claims

2 fail.

3 “California’s Government Claims Act requires that a tort claim against a [state] public

4 entity or its employees for money or damages be presented to the [Department of General

5 Services] 2 no more than six months after the cause of action accrues.” Lopez v. Cate, No. 1:10-

6 cv-01773-AWI, 2015 WL 1293450, at *13 (E.D. Cal. 2015) (citing Cal. Gov’t Code §§ 905.2,

7 910, 911.2, 945.4, 950-950.2). “Timely claim presentation is not merely a procedural

8 requirement, but is . . . a condition precedent to plaintiff’s maintaining an action against defendant

9 and thus an element of the plaintiff’s cause of action.” Id. (internal quotation marks and citations

10 omitted). The “obligation to comply with the Government Claims Act” is independent of the

11 obligation to exhaust administrative remedies pursuant to the Prison Litigation Reform Act.

12 McCoy v. Torres, No. 119CV01023NONEJLTPC, 2020 WL 5257842, at *2 (E.D. Cal. Sept. 3,

13 2020), report and recommendation adopted, No. 119CV01023NONEJLTPC, 2021 WL 111748

14 (E.D. Cal. Jan. 12, 2021) (citing McPherson v. Alamo, No. 3:15-cv-03145-EMC, 2016 WL

15 7157634, at *6 (N.D. Cal. 2016) (citing Parthemore v. Col, 221 Cal. App. 4th 1372, 1376 (2013)).

16 Plaintiff submits documentary evidence that he filed a claim with the California

17 Department of General Services on May 19, 2020, approximately a month before he filed the

18 Complaint for this case. (Complaint, ECF No. 1, Exh. B.) This exhibit -- a copy of Plaintiff’s

19 claim -- is insufficient to show compliance with California’s Government Claims Act. See

20 Cardenas v. Cty. of Tehama, No. 218CV03021TLNDMC, 2020 WL 4475188, at *10 (E.D. Cal.

21 Aug. 4, 2020).

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26 2 The Department of General Services was formerly the Victim Compensation and

Government Claims Board. McCoy v. Torres, No. 119CV01023NONEJLTPC, 2020 WL 5257842, at *2

27 (E.D. Cal. Sept. 3, 2020), report and recommendation adopted, No. 119CV01023NONEJLTPC, 2021 WL

111748 (E.D. Cal. Jan. 12, 2021).

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1 California’s Government Claims Act requires that a claim against the State3 or its

2 employees “relating to a cause of action for death or for injury to person” be presented to the

3 Department of General Services’ Government Claims Program no more than six months after the

4 cause of action accrues. Cal. Gov’t Code §§ 905.2, 910, 911.2, 945.4, 950-950.2. Presentation

5 of a written claim, and action on or rejection of the claim, are conditions precedent to suit. State

6 v. Superior Court of Kings County (Bodde), 32 Cal.4th 1234, 1245 (Cal. 2004) (emphasis added);

7 Mangold v. California Pub. Utils. Comm’n, 67 F.3d 1470, 1477 (9th Cir. 1995). To state a tort

8 claim against a public entity or employee, a plaintiff must allege compliance with the

9 Government Claims Act. Bodde, 32 Cal.4th at 1245; Mangold, 67 F.3d at 1477; Karim-Panahi

10 v. Los Angeles Police Dept., 839 F.2d 621, 627 (9th Cir. 1988). Plaintiff has not done so and

11 therefore he fails to state any state law claims.

12 H. Policy

13 Plaintiff alleges that defendant Kranz instituted a policy that denied Plaintiff’s right under

14 DOM § 54080.14. Plaintiff has not identified this policy or alleged how the policy denied his

15 rights. While the creation or enforcement of, or acquiescence in, an unconstitutional policy, as

16 alleged here, may support a claim, the policy must have been the moving force behind the

17 violation. Starr v. Baca, 652 F.3d 1202, 1205 (9th Cir. 2011); Jeffers v. Gomez, 267 F.3d 895,

18 914-15 (9th Cir. 2001); Redman v. County of San Diego, 942 F.2d 1435, 1446-47 (9th Cir. 1991).

19 Without additional alleged facts the court cannot find that Plaintiff states a cognizable claim

20 pertaining to a policy. Plaintiff shall be granted leave to amend the Complaint to add further

21 alleged facts to this claim.

22 I. Request for Appointment of Counsel

23 Plaintiff requests appointment of counsel. Plaintiff does not have a constitutional right

24 to appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and

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3 “‘State’ means the State and any office, officer, department, division, bureau, board,

27 commission or agency of the State claims against which are paid by warrants drawn by the

Controller.” Cal. Gov’t Code § 900.6.

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1 the Court cannot require an attorney to represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1).

2 Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 298

3 (1989). However, in certain exceptional circumstances the Court may request the voluntary

4 assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525.

5 Without a reasonable method of securing and compensating counsel, the Court will seek

6 volunteer counsel only in the most serious and exceptional cases. In determining whether

7 “exceptional circumstances exist, the district court must evaluate both the likelihood of success

8 of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the

9 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted).

10 In the present case, the court does not find the required exceptional circumstances. At

11 this early stage in the proceedings the court cannot make a determination that plaintiff is likely

12 to succeed on the merits. Plaintiff’s Complaint is presently being screened by the court. Until

13 the Complaint is screened and the court finds that Plaintiff states cognizable claims, service of

14 process shall not be initiated upon the Defendants. Plaintiff’s Free Exercise claims, RLUIPA

15 claims, and Eighth Amendment claims are not complex. Moreover, based on a review of the

16 record in this case the court finds that Plaintiff can adequately articulate his claims. Therefore,

17 Plaintiff’s motion shall be denied without prejudice to renewal of the motion at a later stage of

18 the proceedings.

19 V. CONCLUSION

20 For the reasons set forth above, the court finds that Plaintiff fails to state any cognizable

21 claims in the Complaint against any of the individual Defendants. Under Rule 15(a) of the

22 Federal Rules of Civil Procedure, “[t]he court should freely give leave to amend when justice so

23 requires.” Plaintiff shall be granted leave file a First Amended Complaint within thirty days.

24 Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987).

25 The amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state what each

26 named defendant did that led to the deprivation of Plaintiff’s constitutional or other federal rights.

27 Iqbal, 556 U.S. at 678; Jones, 297 F.3d. at 934. Plaintiff must set forth “sufficient factual matter

28 . . . to ‘state a claim that is plausible on its face.’” Iqbal at 678 (quoting Twombly, 550 U.S. at

1 555). There is no respondeat superior liability, and each defendant is only liable for his or her

2 own misconduct. Iqbal, 556 U.S. at 677. Plaintiff must demonstrate that each defendant

3 personally participated in the deprivation of his rights. Jones, 297 F.3d at 934 (emphasis added).

4 Plaintiff should note that although he has been given the opportunity to amend, it is not for the

5 purpose of adding new defendants for unrelated issues. Plaintiff should also note that he has not

6 been granted leave to add allegations of events occurring after the initiation of this suit on June

7 20, 2020.

8 Plaintiff is advised that an amended complaint supersedes the original complaint, Lacey

9 v. Maricopa County, 693 F.3d 896, 907 n.1 (9th Cir. 2012), and it must be complete in itself

10 without reference to the prior or superseded pleading. Local Rule 220. Once an amended

11 complaint is filed, the original complaint no longer serves any function in the case. Therefore,

12 in an amended complaint, as in an original complaint, each claim and the involvement of each

13 defendant must be sufficiently alleged. The amended complaint should be clearly and boldly

14 titled “First Amended Complaint,” refer to the appropriate case number, and be an original signed

15 under penalty of perjury.

16 Accordingly, IT IS HEREBY ORDERED that:

17 1. Based on the foregoing, the court finds that Plaintiff fails to state any cognizable

18 claims in the Complaint against any of the Defendants upon which relief may be

19 granted under § 1983;

20 2. Plaintiff’s request for appointment of counsel is denied without prejudice;

21 3. Plaintiff’s Complaint is dismissed for failure to state a claim, with leave to amend

22 within thirty (30) days from the date of service of this order;

23 4. The Clerk’s Office shall send Plaintiff a civil rights complaint form;

24 5. Plaintiff shall caption the amended complaint “First Amended Complaint” and

25 refer to the case number 1:20-cv-00892-NONE-GSA-PC; and

26 6. Plaintiff’s failure to comply with this order shall result in a recommendation that

27 this case be dismissed.

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IT IS SO ORDERED.

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2 Dated: September 15, 2021 /s/ Gary S. Austin

UNITED STATES MAGISTRATE JUDGE

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