Quintero v. Hill

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 DANIEL R. QUINTERO, Case No.: 24cv1141-AJB (KSC)

CDCR #BN-3161,

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ORDER:

Plaintiff,

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vs. (1) GRANTING MOTION TO

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PROCEED IN FORMA PAUPERIS;

J. HILL, Warden, et al.,

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Defendants. (2) DENYING REQUEST TO

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REMOVE CASE, AND

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(3) DISMISSING COMPLAINT

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PURSUANT TO 28 U.S.C.

19 §§ 1915(e)(2) & 1915A(b)

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21 On June 28, 2024, Plaintiff Daniel R. Quintero, a state inmate proceeding pro se,

22 filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1.) Plaintiff also

23 filed a motion to proceed in forma pauperis (“IFP”) and a request to remove this case to

24 the Eastern District of California to consolidate it with several cases he has pending in that

25 District. (ECF Nos. 2, 4.) On October 2, 2024, the Court denied the IFP motion because

26 it was not supported with the required prison trust account certificate and dismissed this

27 action without prejudice. (ECF No. 5.) Plaintiff has now filed a renewed IFP motion.

28 (ECF No. 6.)

1 I. Motion to Proceed IFP

2 All parties instituting any civil action, suit or proceeding in a district court of the

3 United States, except an application for writ of habeas corpus, must pay a filing fee of

4 $405, consisting of a $350 statutory fee plus an additional administrative fee of $55,

5 although the administrative fee does not apply to persons granted leave to proceed IFP.

6 See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee

7 Schedule, § 14 (eff. Dec. 1, 2023)). The action may proceed despite a plaintiff’s failure to

8 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.

9 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). A prisoner

10 seeking leave to proceed IFP must submit a “certified copy of the trust fund account

11 statement (or institutional equivalent) for . . . the 6-month period immediately preceding

12 the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113,

13 1119 (9th Cir. 2005). From the certified trust account statement, the Court assesses an

14 initial payment of 20% of (a) the average monthly deposits in the account for the past six

15 months, or (b) the average monthly balance in the account for the past six months,

16 whichever is greater, unless the prisoner has insufficient assets. See 28 U.S.C.

17 § 1915(b)(1)&(4); Bruce v. Samuels, 577 U.S. 82, 84 (2016). Prisoners who proceed IFP

18 must pay any remaining balance in “increments” or “installments,” regardless of whether

19 their action is ultimately dismissed. 28 U.S.C. § 1915(b)(1)&(2); Bruce, 577 U.S. at 84.

20 In support of his IFP motion, Plaintiff has submitted a copy of his California

21 Department of Corrections and Rehabilitation (“CDCR”) Inmate Statement Report and

22 Prison Certificate. (ECF No. 6 at 4.) The document shows he had an average monthly

23 balance of $8.75 and average monthly deposits of $4.16, with an available balance of $0.00.

24 Id. Plaintiff’s Motion to Proceed IFP is GRANTED and the Court assesses no initial

25 partial filing fee. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner

26 be prohibited from bringing a civil action or appealing a civil action or criminal judgment

27 for the reason that the prisoner has no assets and no means by which to pay the initial partial

28 filing fee.”)

1 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b)

2 A. Standard of Review

3 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre-

4 Answer screening pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). The Court must sua

5 sponte dismiss a prisoner’s IFP complaint, or any portion of it, which is frivolous,

6 malicious, fails to state a claim, or seeks damages from defendants who are immune. Lopez

7 v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (28 U.S.C. § 1915(e)(2));

8 Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (28 U.S.C. § 1915A(b)).

9 “The standard for determining whether a plaintiff has failed to state a claim upon

10 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of

11 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d

12 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.

13 2012) (noting that § 1915A screening “incorporates the familiar standard applied in the

14 context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).”) Rule

15 12(b)(6) requires a complaint to “contain sufficient factual matter, accepted as true, to ‘state

16 a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009),

17 quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “Determining whether

18 a complaint states a plausible claim for relief [is] . . . a context-specific task that requires

19 the reviewing court to draw on its judicial experience and common sense.” Id.

20 Title 42 U.S.C. § 1983 “creates a private right of action against individuals who,

21 acting under color of state law, violate federal constitutional or statutory rights.”

22 Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). “To establish § 1983 liability,

23 a plaintiff must show both (1) deprivation of a right secured by the Constitution and laws

24 of the United States, and (2) that the deprivation was committed by a person acting under

25 color of state law.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).

26 B. Allegations in the Complaint

27 Plaintiff alleges that on April 13-14, 2024, while housed at the Richard J. Donovan

28 Correctional Facility (“RJD”), he refused to be transferred from the segregation unit to a

1 level two dormitory because he wanted to complete his Ramadan obligations. (ECF No. 1

2 at 2-3.) Plaintiff clearly informed Defendant correctional officer Lieutenant Poladian of

3 the reason he was refusing the transfer. (Id. at 3.) Poladian made several comments to the

4 effect that he had Muslim family members and was familiar with the requirements of

5 observing Ramadan, that Plaintiff “was not Muslim” but was “a bitch,” that Poladian

6 intended to laugh when giving the order to forcibly remove Plaintiff from his cell, and

7 would make sure he did not receive water in order to ruin his Ramadan observation. (Id.)

8 Plaintiff was fasting and could not observe Ramadan without water, which he needed to

9 drink, to clean himself, and for ablution, but Poladian ordered Defendants transportation

10 officers Gose and Salagubang to not provide him water. (Id.) After ten hours Plaintiff

11 requested water but was denied and went more than 20 hours without water. (Id.) He was

12 transferred from RJD to Mule Creek State Prison “with no lay overs or any bathroom stops.

13 ‘This was done maliciously and sadistically for the purpose of causing harm.’” (Id.) He

14 alleges Defendant Warden Hill failed to create a policy of ensuring inmates transferred to

15 and from RJD receive water. (Id. at 2.)

16 Plaintiff claims the Defendants interfered with his right to the free exercise of his

17 religion under the First Amendment and the Religious Land Use and Institutionalized

18 Persons Act (“RLUIPA”), and subjected him to cruel and unusual punishment in violation

19 of the Eighth Amendment. (Id. at 3-4.)

20 C. Discussion

21 a) Eighth Amendment Cruel and Unusual Punishment Claim

22 Plaintiff alleges his transportation from RJD to Mule Creek State Prison “with no

23 lay overs or any bathroom stops,” and the refusal to provide water for over 20 hours,

24 violated the Eighth Amendment. (ECF No. 1 at 3.) “[A] prison official violates the Eighth

25 Amendment when two requirements are met. First, the deprivation alleged must be,

26 objectively, ‘sufficiently serious.’” Farmer v. Brennan, 511 U.S. 825, 834 (1994), quoting

27 Wilson v. Seiter, 501 U.S. 294, 298 (1991). Second, Plaintiff must allege the prison official

28 he seeks to hold liable had a “sufficiently culpable state of mind,” that is, “one of ‘deliberate

1 indifference’ to” his constitutional rights. Id., quoting Wilson, 501 U.S. at 302-03. An

2 objectively serious deprivation is a denial of “the minimal civilized measures of life’s

3 necessities.” Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996), quoting Rhodes v.

4 Chapman, 452 U.S. 337, 346 (1981).

5 The allegations in the Complaint are insufficient to plausibly allege that any

6 Defendant deprived Plaintiff of “the minimal civilized measures of life’s necessities” by

7 not permitting water or bathroom breaks during his transportation, as there are no

8 allegations regarding how long the transportation lasted. Although Plaintiff alleges he went

9 over 20 hours without water, temporary deprivations do not state an Eighth Amendment

10 claim. “[E]xtreme deprivations are required to make out a conditions-of-confinement

11 claim. Because routine discomfort is part of the penalty that criminal offenders pay for

12 their offenses against society, only those deprivations denying the minimal civilized

13 measure of life’s necessities are sufficiently grave to form the basis of an Eighth

14 Amendment violation.” Hudson v. McMillian, 503 U.S. 1, 9 (1992) (internal quote marks

15 and citation omitted); see Anderson v. County of Kern, 45 F.3d 1310, 1312-13 (9th Cir.

16 1995) (holding that short term or temporary deprivations of basic needs such as food,

17 clothing, shelter and sanitation do not plausibly allege an Eighth Amendment violation);

18 Wilson, 501 U.S. at 298 (“[O]nly those deprivations denying the minimal civilized measure

19 of life’s necessities are sufficiently grave to form the basis of an Eighth Amendment

20 violation.”) (internal citation and quote marks omitted).

21 The allegation that Warden Hill failed to create a policy of ensuring inmates

22 transferred to and from RJD receive water also fails to state an Eighth Amendment claim.

23 “In a section 1983 claim, a supervisor is liable for the acts of his subordinates if the

24 supervisor participated in or directed the violations, or knew of the violations of

25 subordinates and failed to act to prevent them.” Corales v. Bennett, 567 F.3d 554, 570 (9th

26 Cir. 2009) (internal quote marks omitted). There are no allegations that Warden Hill knew

27 Plaintiff was deprived of water and failed to prevent that deprivation.

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1 Plaintiff’s Eighth Amendment claim is dismissed sua sponte pursuant to 28 U.S.C.

2 §§ 1915(e)(2) & 1915A(b) for failure to state a claim. Watison, 668 F.3d at 1112; Wilhelm,

3 680 F.3d at 1121.

4 b) First Amendment Freedom of Religion Claim

5 Plaintiff claims the Defendants denied him his right to the free exercise of religion

6 under the First Amendment when they deprived him of water he needed to drink, to clean

7 himself and for ablution, as necessary to observe Ramadan. (ECF No. 1 at 3-4.) To bring

8 a First Amendment claim for interference with religious activities, Plaintiff must plausibly

9 allege that an official took an action which: (a) “substantially burdens the person’s practice

10 of her religion” and (b) was not “reasonably related to legitimate penological interests.”

11 Jones v. Williams, 791 F.3d 1023, 1031-33 (9th Cir. 2015), quoting O’Lone v. Estate of

12 Shabazz, 482 U.S. 432, 248 (1987). “[G]overnment action places a substantial burden on

13 an individual’s right to free exercise of religion when it tends to coerce the individual to

14 forego her sincerely held religious beliefs or to engage in conduct that violates those

15 beliefs.” Id. at 1033. Intrusions on the practice of religion which are “relatively short-term

16 and sporadic” do not constitute substantial burdens under the First Amendment. Canell v.

17 Lightner, 143 F.3d 1210, 1215 (9th Cir. 1998).

18 Plaintiff alleges he was unable to continue his observation of Ramadan for twenty

19 hours when he was deprived of water he needed to drink, to clean himself and for ablution

20 arising from his refusal to be transferred from segregation to a dormitory. Although he

21 alleges Defendant Poladian knew Plaintiff needed water to properly observe Ramadan, and

22 deliberately deprived him of water in an attempt to interfere with his observation of

23 Ramadan, there are no factual allegations that the “short-term and sporadic” denial of water

24 actually constituted a substantial burden on Plaintiff’s sincerely held religious beliefs, as

25 there are no factual allegations that Plaintiff was, for example, unable to complete his

26 observation of Ramadan after the 20 hour deprivation of water or that the delay otherwise

27 prevented him from observing Ramadan. See Brown v. Washington, 752 Fed. Appx. 402,

28 405 (9th Cir. 2018) (noting that a “one time set of circumstances” or an “isolated incident”

1 is insufficient to constitute a “substantial burden of plaintiff’s religious beliefs” under the

2 First Amendment); see e.g. Howard v. Skolnik, 372 F. App’x 781, 782 (9th Cir. 2010)

3 (finding two incidents where prison staff interfered with prisoner’s fasting did not amount

4 to a substantial burden).

5 Plaintiff’s First Amendment claim based on interference with the free exercise of his

6 religion is dismissed sua sponte pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) for

7 failure to state a claim. Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d at 1121.

8 e) RLUIPA Claim

9 Plaintiff claims Defendants violated his statutory rights under RLUIPA to practice

10 his religion based on the same allegations supporting his First Amendment claim. (ECF

11 No. 1 at 3.) RLUIPA provides that “[n]o government shall impose a substantial burden on

12 the religious exercise of a person residing in or confined to an institution . . . even if the

13 burden results from a rule of general applicability,” unless the government demonstrates

14 the burden is “in furtherance of a compelling government interest” and “is the least

15 restrictive means of furthering that compelling governmental interest.” Walker v. Beard,

16 789 F.3d 1125, 1134 (9th Cir. 2015), quoting 42 U.S.C. § 2000cc–1(a). “To state a claim

17 under RLUIPA, a prisoner must show that: (1) he takes part in a ‘religious exercise,’ and

18 (2) the State’s actions have substantially burdened that exercise.” Id., quoting Shakur v.

19 Schriro, 514 F.3d 878, 888-89 (9th Cir. 2008). “If the prisoner satisfies those elements,

20 then the State must prove its actions were the least restrictive means of furthering a

21 compelling governmental interest.” Id., citing Warsoldier v. Woodford, 418 F.3d 989, 995

22 (9th Cir. 2005).

23 To constitute a substantial burden, the alleged limitation on religious practice must

24 impose “a ‘significantly great’ restriction or onus upon such exercise.” San Jose Christian

25 Coll. v. City of Morgan Hill, 360 F.3d 1024, 1034 (9th Cir. 2004); Walker, 789 F.3d at

26 1135. A substantial burden need not actually force a litigant to change his practices; a

27 violation may occur “where the state . . . denies [an important benefit] because of conduct

28 mandated by religious belief, thereby putting substantial pressure on an adherent to modify

1 his behavior and to violate his beliefs.” Warsoldier, 418 F.3d at 995, quoting Thomas v.

2 Review Bd. of the Ind. Emp’t Sec. Div., 450 U.S. 707, 717-18 (1981). Plaintiff must allege

3 in a nonconclusory manner how his religious observation was denied by the Defendants’

4 actions. Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of action,

5 supported by mere conclusory statements, do not suffice” to state a § 1983 claim).

6 As noted above, Plaintiff claims he needed water to observe Ramadan but alleges

7 only in a conclusory manner how the 20 hours he went without water substantially

8 burdened his observation of Ramadan. See e.g. Skolnik, 372 F. App’x at 782 (finding two

9 incidents where prison staff interfered with prisoner’s fasting did not amount to a

10 substantial burden); Canell, 143 F.3d at 1215 (“relatively short-term and sporadic”

11 interference with religious exercise was not a substantial burden). Plaintiff’s allegations

12 regarding the interference with his Ramadan observation, without more, and in particular

13 without factual allegations regarding how that interference impacted his ability to complete

14 his religious observation of Ramadan for example, or the significance to the exercise of his

15 religious faith Defendants’ actions caused, fail to state a RLUIPA claim because he has not

16 alleged the imposition of “a significantly great restriction or onus” on the exercise of his

17 faith, nor plausibly alleged any Defendant put “substantial pressure on [him] to modify his

18 behavior and to violate his beliefs.” Warsoldier, 418 F.3d at 995.

19 Plaintiff’s interference with religion claim under RLUIPA is dismissed for failure to

20 state a claim upon which § 1983 relief can be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii);

21 § 1915A(b)(1); Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d at 1004.

22 D. Leave to Amend

23 In light of his pro se status, the Court grants Plaintiff leave to amend his Complaint

24 in order to attempt to address the pleading deficiencies identified in this Order. See Rosati

25 v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not dismiss a pro

26 se complaint without leave to amend unless it is absolutely clear that the deficiencies of

27 the complaint could not be cured by amendment.”) (internal quote marks omitted).

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1 III. Request for Removal

2 Plaintiff requests this case be removed to the Eastern District of California in order

3 to consolidate it with Quintero v. Lemon, Eastern Dist.Ca. Civil Case No. 23cv1196-BAM,

4 Quintero v. Lemon, et al., Eastern Dist.Ca. Civil Case No. 23cv1233-KES (SAB), and

5 Quintero v. Mike, Eastern Dist.Ca. Civil Case No. 23cv1737-EPG. (ECF No. 4.) He

6 identifies those cases as claiming (1) a warden ordered him to be locked down for 14 days

7 in retaliation during which he was unable to practice his religion, (2) video evidence was

8 destroyed which would have supported a claim for excessive force, and (3) retaliatory

9 physical abuse and destruction of personal property. (Id. at 2.) He argues it would be more

10 convenient for him to have all his cases in the Eastern District where he is currently

11 confined, and it would not be a burden for the defendants who all are, or will be, represented

12 by the California Attorney General. (Id. at 4-5.)

13 “A civil action may be brought in – (1) a judicial district in which any defendant

14 resides, if all defendants are residents of the State in which the district is located; [or] (2) a

15 judicial district in which a substantial part of the events or omissions giving rise to the

16 claim occurred, or a substantial part of property that is the subject of the action is

17 situated . . . .” 28 U.S.C. § 1391(b); Costlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir.

18 1986). “The district court of a district in which is filed a case laying venue in the wrong

19 division or district shall dismiss, or if it be in the interests of justice, transfer such case to

20 any district or division in which it could have been brought.” 28 U.S.C. § 1406(a); see also

21 Fed.R.Civ.P. 20(a)(2)(A-B) (providing that defendants may be joined in one action if “any

22 right to relief is asserted against them jointly, severally, or in the alternative with respect

23 to or arising out of the same transaction, occurrence, or series of transactions or

24 occurrences” and “any question of law or fact common to all defendants will arise in the

25 action.”)

26 Plaintiff has failed to show that any of the events or omissions giving rise to his

27 claims in his Eastern District cases are alleged to have occurred in either San Diego or

28 Imperial County, nor that any Defendant in those cases is alleged to reside here, or that any

1 events are common to all of Plaintiff’s cases. See 28 U.S.C. § 84(d) (“The Southern District

2 of California comprises the counties of Imperial and San Diego.”) Plaintiff has failed to

3 show any basis for transferring this case to the Eastern District or that the interests of justice

4 counsel in favor of a transfer. Therefore, Plaintiff’s request to remove or transfer this case

5 to the Eastern District is DENIED.

6 IV. Conclusion and Orders

7 Accordingly, good cause appearing, the Court:

8 1) GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 6).

9 2) DIRECTS the Secretary of the CDCR, or his designee, to collect from

10 Plaintiff’s prison trust account the $350 filing fee owed in this case by collecting monthly

11 payments from the account in an amount equal to twenty percent (20%) of the preceding

12 month’s income and forward payments to the Clerk of the Court each time the amount in

13 the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2).

14 3) DIRECTS the Clerk of the Court to serve a copy of this Order by U.S. Mail

15 on Jeff Macomber, Secretary, California Department of Corrections and Rehabilitation,

16 P.O. Box 942883, Sacramento, California, 94283-0001.

17 4) DENIES Plaintiff’s request for removal (ECF No. 4).

18 5) DISMISSES Plaintiff’s Complaint for failing to state a claim upon which

19 relief may be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) & 1915A(b)(1) and

20 GRANTS Plaintiff forty-five (45) days leave from the date of this Order in which to file

21 an Amended Complaint which cures all the deficiencies of pleading noted. Plaintiff’s

22 Amended Complaint must be complete by itself without reference to his original pleading.

23 Defendants not named and any claim not re-alleged in his Amended Complaint will be

24 considered waived. See S.D. CAL. CIVLR 15.1; Hal Roach Studios, Inc., 896 F.2d at 1546

25 (“[A]n amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d

26 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not

27 re-alleged in an amended pleading may be “considered waived if not repled.”)

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1 If Plaintiff fails to file an Amended Complaint within the time provided, the Court

2 || will enter a final Order dismissing this civil action based both on Plaintiff’s failure to state

3 |}a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i1) &

4 1915A(b)(1), and his failure to prosecute in compliance with a court order requiring

5 |}amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does

6 || not take advantage of the opportunity to fix his complaint, a district court may convert the

7 || dismissal of the complaint into dismissal of the entire action.”’)

8 IT IS SO ORDERED.

9 || Dated: October 28, 2024 © ¢

10 Hon. Anthony J. attaglia

1] United States District Judge

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