noting that screening pursuant to § 1915A “incorporates the familiar standard 23 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 24 12(b)(6)”
How later courts described this case
- noting that screening pursuant to § 1915A “incorporates the familiar standard 23 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 24 12(b)(6)”
- “Within the prison context, a viable claim of First 24 Amendment retaliation entails five basic elements: (1) An assertion that a state actor took 25 some adverse action against an inmate (2) because of (3) that prisoner’s protected 26 conduct, and that such action (4
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 BRIAN LEWIS, Case No.: 3:19-cv-1254-WQH-AHG
CDCR #J-49028,
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ORDER:
Plaintiff,
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vs. (1) DISMISSING CLAIMS AS
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DUPLICATIVE; AND
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ALAN KHAN, (2) DIRECTING U.S. MARSHAL TO
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Defendant. EFFECT SERVICE OF FIRST
17 AMENDED COMPLAINT
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20 I. Procedural History
21 On July 5, 2019, Brian Lewis (“Plaintiff”), an inmate currently incarcerated at
22 Corcoran State Prison, filed a civil rights action (“Compl.”) pursuant to 42 U.S.C. § 1983.
23 (ECF No. 1.) Plaintiff also filed two Motions to Proceed In Forma Pauperis (“IFP”)
24 pursuant to 28 U.S.C. § 1915(a). (ECF Nos. 2, 4.) Plaintiff claimed that his constitutional
25 rights were violated when he was previously housed at the Richard J. Donovan
26 Correctional Facility (“RJD”) in 2015. (ECF No. 1 at 1.)
27 On August 20, 2019, Plaintiff was granted IFP status but the Court simultaneously
28 dismissed his Complaint for failing to state a claim upon which § 1983 relief may be
1 granted and for raising duplicative claims pursuant to 28 U.S.C. § 1915(e)(2) &
2 § 1915A(b). (ECF No. 6 at 5-10.) Plaintiff was granted leave to file an amended
3 complaint in order to correct the deficiencies of pleading found in the Court’s Order. (Id.
4 at 10.) On October 10, 2019, Plaintiff filed his First Amended Complaint (“FAC”).
5 (ECF No. 7.)
6 II. Sua Sponte Screening per 28 U.S.C. § 1915(e)(2) and § 1915A
7 A. Standard of Review
8 As the Court previously informed Plaintiff, because he is a prisoner and is
9 proceeding IFP, his FAC requires a pre-answer screening pursuant to 28 U.S.C.
10 § 1915(e)(2) and § 1915A(b). Under these statutes, the Court must sua sponte dismiss a
11 prisoner's IFP complaint, or any portion of it, which is frivolous, malicious, fails to state a
12 claim, or seeks damages from defendants who are immune. See Lopez v. Smith, 203 F.3d
13 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v.
14 Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The
15 purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits need
16 not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir.
17 2014) (citations omitted).
18 “The standard for determining whether a plaintiff has failed to state a claim upon
19 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of
20 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668
21 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th
22 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard
23 applied in the context of failure to state a claim under Federal Rule of Civil Procedure
24 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted
25 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
26 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.
27 Detailed factual allegations are not required, but “[t]hreadbare recitals of the
28 elements of a cause of action, supported by mere conclusory statements, do not suffice.”
1 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for
2 relief [is] ... a context-specific task that requires the reviewing court to draw on its
3 judicial experience and common sense.” Id. The “mere possibility of misconduct” or
4 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting
5 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969
6 (9th Cir. 2009).
7 B. Plaintiff’s factual allegations1
8 In 2015, Plaintiff was “housed at Richard J. Donovan Correctional Facility
9 (“RJD”).” (FAC at 3.) Defendant Khan is the “State Chaplain at RJD.” (Id.) Khan was
10 “appointed by Daniel Paramo, Warden of RJD, to be the staff head of the RJD Religious
11 Meat Alternate Program (“RMA”).” (Id.) In 2014, Plaintiff was “elected to the RJD
12 Men’s Advisory Council (“MAC”). (Id.)
13 Plaintiff alleges that in 2015, “RJD Facility A was experiencing food shortages in
14 the culinary.” (Id.) At the same time, “RJD MAC was receiving an abundance of
15 complaints concerning the RJD RMA program.” (Id.) Plaintiff claims that the “MAC
16 executive body” determined that the “root of the food problems” was due to Khan
17 purportedly “abdicat[ing] part of his duties as the RMA head to CDCR inmates.” (Id.)
18 Plaintiff alleges that Khan “was allowing inmates to add and delete inmates from the
19 RMA.” (Id.) The MAC chairman “sent a formal request to Warden Paramo to meet with
20 the food manager concerning the RMA issues.” (Id. at 4.)
21 On March 1, 2015, Plaintiff “wrote a ‘formal complaint’ concerning Khan’s
22 handling of the RMA program.” (Id.) Plaintiff included in the complaint claims that
23 “inmates were waiting for their RMA ID for over 90 days and that the RMA count was
24 inconsistent with the amount of religious meats received into the Facility A
25 kitchen/culinary.” (Id.)
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1 On March 9, 2015, Plaintiff “reported to the RJD Facility A culinary to pick up his
2 religious meal.” (Id. at 5.) However, Plaintiff was “informed by the Food Service
3 Supervisor that Khan had called to the culinary and said Plaintiff was to be removed from
4 the list immediately.” (Id.) Plaintiff “immediately filled out a CDCR Form 22 request
5 for interview” seeking to find out “why he had been removed from the RMA list.” (Id.)
6 Two days later, Plaintiff “received a CDCR 3030-C Religious Diet Program Agreement
7 Notice of Non Compliance from Khan.” (Id.) Khan “removed Plaintiff from RMA for 6
8 months because Plaintiff had violated the terms of the contract that affords him a
9 religious meal.” (Id.) However, Plaintiff claims “he never violated the terms of the
10 RMA agreement.” (Id.)
11 Plaintiff filed a “staff complaint” against Khan due to this decision. (Id. at 5-6.)
12 Plaintiff alleged that “Khan’s allegations were false.” (Id. at 6.) On May 2, 2015, R.
13 Brown interviewed Plaintiff regarding his staff complaint and “told Plaintiff that Khan
14 had removed Plaintiff from the RMA program without cause.” (Id.) Brown
15 “immediately” placed “Plaintiff back on the RMA list.” (Id.)
16 Plaintiff seeks unspecified declaratory relief. (Id. at 9.)
17 C. Statute of Limitations
18 In the Court’s August 20, 2019 Order, the Court determined that the claims
19 Plaintiff has raised in this action were barred by the applicable statute of limitations. (See
20 ECF No. 6 at 8.) Moreover, the Court found that Plaintiff had “failed to plead any facts
21 which, if proved, would support a plausible claim for equitable tolling.” (Id. citing
22 Cervantes v. City of San Diego, 5 F.3d 1273, 1277 (9th Cir. 1993).
23 However, Plaintiff may be entitled to additional tolling because the limitations
24 period for prisoners is tolled while the “prisoner completes the mandatory exhaustion
25 process.” Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005). Plaintiff claims that he
26 exhausted his administrative grievances relating to the claims that arose in this action in
27 July of 2015. (See FAC at 10.) While this matter is in the screening stage, these factual
28 allegations are enough to survive the sua sponte screening process as it relates to any
1 statute of limitations concerns or the exhaustion requirement. However, this preliminary
2 determination does not prevent the Defendant from raising either affirmative defense at a
3 later stage.
4 D. Dismissal of RLUIPA claims
5 The Court also found that to the extent Plaintiff was bringing claims pursuant to
6 the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), these claims were
7 duplicative of an action that he had filed previously in Lewis v. Cates, et al., S.D. Cal.
8 Civ. No. 3:15-cv-00791 DMS (MDD) (“Lewis I”). (ECF No. 6 at 8.) However, in
9 Plaintiff’s FAC, he claims the current action only contains a “claim for retaliation.”
10 (FAC at 8.)
11 However, in both the original Complaint, as well as the FAC, Plaintiff indicates
12 that he wishes to “assert jurisdiction” in this matter under the “Religious Land Use and
13 Institutionalized Persons Act.” (Compl. at 1; FAC at 1.) Plaintiff has not addressed in
14 his FAC how those claims are different from the claims he raised in Lewis I.
15 Accordingly, any claims brought under RLUIPA are DISMISSED as duplicative and
16 without leave to amend.
17 E. Remaining Retaliation claim
18 As for the remaining retaliation claim, the Court finds Plaintiff’s FAC contains
19 “sufficient factual matter, accepted as true,” to state a First Amendment claim for relief
20 that are “plausible on its face,” Iqbal, 556 U.S. at 678, and therefore, sufficient to survive
21 the “low threshold” set for sua sponte screening pursuant to 28 U.S.C. §§ 1915(e)(2) and
22 1915A(b). See Wilhelm, 680 F.3d at 1123; Iqbal, 556 U.S. at 678; Rhodes v. Robinson,
23 408 F.3d 559, 567-68 (9th Cir. 2005) (“Within the prison context, a viable claim of First
24 Amendment retaliation entails five basic elements: (1) An assertion that a state actor took
25 some adverse action against an inmate (2) because of (3) that prisoner’s protected
26 conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment
27 rights, and (5) the action did not reasonably advance a legitimate correctional goal.”)
28 Therefore, the Court will direct the U.S. Marshal to effect service of summons and
1 Plaintiff’s Complaint upon Defendants on his behalf. See 28 U.S.C. § 1915(d) (“The
2 officers of the court shall issue and serve all process, and perform all duties in [IFP]
3 cases.”); Fed. R. Civ. P. 4(c)(3) (“[T]he court may order that service be made by a United
4 States marshal or deputy marshal ... if the plaintiff is authorized to proceed in forma
5 pauperis under 28 U.S.C. § 1915.”).
6 III. Conclusion and Order
7 For the reasons explained, the Court:
8 1. DISMISSES Plaintiff’s RLUIPA claims as duplicative and without leave to
9 amend pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b).
10 2. DIRECTS the Clerk to issue a summons as to Plaintiff’s FAC (ECF No. 7)
11 and forward it to Plaintiff counsel along with a blank U.S. Marshal Form 285 for
12 Defendant. In addition, the Clerk will provide Plaintiff with a certified copy of the
13 August 20, 2019 Order granting IFP status, certified copies of his FAC, and the summons
14 so that he may serve Defendant. Upon receipt of this “IFP Package,” Plaintiff must
15 complete the USM Form 285s as completely and accurately as possible, include an
16 address where Defendant may be found and/or subject to service pursuant to S.D. Cal.
17 CivLR 4.1c., and return them to the United States Marshal according to the instructions
18 the Clerk provides in the letter accompanying his IFP Package.
19 3. ORDERS the U.S. Marshal to serve a copy of the FAC and summons upon
20 Defendant as directed by Plaintiff on the USM Form 285s provided to him. All costs of
21 that service will be advanced by the United States. See 28 U.S.C. § 1915(d); Fed. R. Civ.
22 P. 4(c)(3).
23 4. ORDERS Defendant, once he has been served, to reply to Plaintiff’s FAC
24 within the time provided by the applicable provisions of Federal Rule of Civil Procedure
25 12(a). See 42 U.S.C. § 1997e(g)(2) (while Defendants may occasionally be permitted to
26 “waive the right to reply to any action brought by a prisoner confined in any jail, prison,
27 or other correctional facility under section 1983,” once the Court has conducted its sua
28 sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made
1 || a preliminary determination based on the face on the pleading alone that Plaintiff has a
2 || “reasonable opportunity to prevail on the merits,” the Defendant is required to respond).
3 5. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to
4 ||serve upon Defendant, or if appearance has been entered by counsel, upon Defendant’s
5 counsel, a copy of every further pleading, motion, or other document submitted for the
6 || Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must include with every
7 || original document he seeks to file with the Clerk, a certificate stating the manner in
8 || which a true and correct copy of that document has been was served on Defendants or
9 counsel, and the date of that service. See S.D. Cal. CivLR 5.2. Any document
10 || received by the Court which has not been properly filed with the Clerk or which fails to
11 |/include a Certificate of Service upon the Defendant, or his counsel, may be disregarded.
12 IT IS SO ORDERED.
13 || Dated: October 30, 2019 BE: te Z. A a
14 Hon, William Q. Hayes
15 United States District Court
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