Brian T. Hill v. Ralph Diaz

Case 2:19-cv-08989-MWF-JC Document 30 Filed 04/07/22 Page 1 of 15 Page ID #:224

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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BRIAN T. HILL, Case No. 2:19-cv-08989-MWF-JC

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12 Plaintiff, ORDER DISMISSING FIRST

AMENDED COMPLAINT WITH LEAVE

13 v. TO AMEND AND DIRECTING

PLAINTIFF TO RESPOND TO ORDER

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RALPH DIAZ, et al.,

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16 Defendants.

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I. INTRODUCTION

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On October 18, 2019, plaintiff Brian T. Hill, who is in custody at the

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California Men’s Colony (“CMC”), is proceeding pro se, and has been granted leave

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to proceed without prepayment of the full filing fee (“IFP”), filed a Civil Rights

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Complaint (“Original Complaint”) pursuant to 42 U.S.C. § 1983 (“Section 1983”).

22 On September 17, 2020, the Court screened and dismissed the Original Complaint

23 for violation of Rules 10(a) and 11(a) of the Federal Rules of Civil Procedure and

24 failure to state a viable claim for relief. (Docket No. 16).

25 On November 18, 2020, plaintiff filed a First Amended Complaint (“First

26 Amended Complaint” or “FAC”) against the following seven employees of the

27 California Department of Corrections and Rehabilitation (“CDCR”), who are sued in

28 their individual capacities only: (1) Jim Bonnifield, CMC Community Resources

Case 2:19-cv-08989-MWF-JC Document 30 Filed 04/07/22 Page 2 of 15 Page ID #:225

1 Manager; (2) R. Layes, CMC Office Technician; (3) Josie Gastelo, CMC Warden;

2 (4) Captain L. Warren, Appeals Examiner; (5) M. Voong, Chief of the CDCR’s

3 Office of Appeals; (6) Ralph Diaz, Secretary of the CDCR; and (7) K.J. Allen,

4 Appeals Examiner. (FAC at 3-6).1 Plaintiff claims defendants violated his First

5 Amendment right to a religious diet and seeks a total of $35,000 in damages. (FAC

at 7, 18).

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As the First Amended Complaint is deficient in multiple respects, including

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those detailed below, it is dismissed with leave to amend.

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II. FIRST AMENDED COMPLAINT

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The First Amended Complaint, construed liberally, alleges the following:

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On February 16, 2018, defendant Bonnifield, CMC Community Resource

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Manager, issued plaintiff a CDC 128-B “chrono,” stating plaintiff violated the

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Religious Meat Alternative (“RMA”) diet program – also referred to as the

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Religious Diet Program – by purchasing non-RMA food items from the Canteen on

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four occasions.2 (FAC at 7). Despite this notice, however, plaintiff had been

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adhering to his own Christian religious diet by purchasing white meat and fish

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products from the Canteen, whereas the food that prison officials were serving

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purportedly for the RMA diet actually consisted of halal chicken patties, turkey hot

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dogs, and other meat products that were undercooked and served by non-religious

19 staff who contaminated the food by serving it without using serving utensils. (FAC

20 at 7-8). The February 16 “chrono” effectively required plaintiff to forgo the

21 purchase of Canteen food items that he needed for his health, digestion, and

22 personal religious diet – or else to risk being removed from the RMA program for

23 six months. (FAC at 8). The “chrono” had added pressure because such notices are

24 viewed unfavorably by CDCR agencies such as the Board of Parole Hearings

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26 1The Court refers to the First Amended Complaint as it is paginated on the Court’s

electronic docket. (Docket No. 22).

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2See 15 C.C.R. § 3054.5 (“Any alleged compliance violation of the Religious Diet

28 Program Agreement shall be reported using CDC Form 128-B, General Chron. . . .”).

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1 (“BPH”), which considers them when deciding whether to grant parole. (FAC at 8).

2 Defendant Bonnifield is aware of this consequence and assertedly intended to

3 pressure plaintiff to withdraw from the RMA program. (FAC at 8).

4 On March 6, 2018, Bonnifield sent plaintiff another CDCR notice which

5 threatened to terminate plaintiff from the RMA program if he continued to purchase

Canteen foods. The notice also directed plaintiff to the form he could use to

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withdraw from the program. (FAC at 9). The next day, plaintiff sent Bonnifield an

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inmate request for the 128-B “chrono” to be “retracted” because it violated

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plaintiff’s religious rights. (FAC at 9). On March 10, 2018, plaintiff was

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interviewed by Farao, the Catholic Chaplain (not a defendant). (FAC at 9). Plaintiff

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told Farao about his sincerely held religious beliefs, his charity work, and “the basis

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of these Dietary Laws,” among other things, while Farao tried to pressure plaintiff to

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withdraw from the RMA program, to no avail. (FAC at 9). After this, defendant

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Layes, a CMC Office Technician, denied plaintiff’s requested relief, on behalf of

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defendant Bonnifield, stating that CDCR policy required the action. (FAC at 10).

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On March 13, 2018, plaintiff submitted a form appealing the decision to a

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supervisor, but it was never answered. (FAC at 10).

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On March 25, 2018, plaintiff filed a grievance against Bonnifield for the 128-

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B “chrono.” (FAC at 10). On April 16, Bonnifield interviewed plaintiff about the

19 grievance, which assertedly violated California regulations. (FAC at 10).

20 Defendants Bonnifield and Warden Gastelo denied plaintiff’s grievance on April 18,

21 based on CDCR policy, and defendants Warren, Diaz, and Voong approved that

22 decision on appeal. (FAC at 11, 15, 16).

23 On May 24, 2018, Bonnifield issued plaintiff a memorandum “describing the

24 purchase and consumption of other Religious Dietary Food Products[] and meal

25 pick up,” and threatening plaintiff’s termination from the RMA program if he

26 bought or consumed foods that were not halal or kosher. (FAC at 11-12). This

27 memorandum thus pressured plaintiff to forgo his own religious diet and consume

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1 only halal and kosher food even though plaintiff is not Muslim or Jewish. (FAC at

2 11).

3 In October 2018, order forms for institutional food sales were passed out in

4 which (under the direction of Bonnifield and other Religious Review Committee

5 members) some non-halal and non-kosher foods – such as pulled pork sandwich,

fried chicken, chicken wings, and tri-tip steak sandwich – were underlined and

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marked with an asterisk to indicate that they were not approved for the RMA

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program, with a notice threatening that program participants who purchased or

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consumed these products would receive a written warning or termination from the

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program. (FAC at 11). However, plaintiff’s own religious diet permits chicken, and

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prison officials even serve chicken patties as part of the RMA diet program. (FAC

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at 11).

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On May 29, 2019, plaintiff received a memorandum from defendant

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Bonnifield and the Religious Review Committee that required plaintiff to possess

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and consume only RMA program (i.e., halal and kosher) foods – except when no

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RMA foods were being served, in which case plaintiff was permitted to eat the non-

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RMA foods being served. (FAC at 12). The memorandum also stated that all

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Canteen and quarterly package purchases would be monitored; he must consistently

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pick up his meals, and a record would be kept indicating whether he had done so;

19 and he could not give away, trade, or sell any portion of the religious meals he

20 received – a restriction that went against plaintiff’s own religious belief in being

21 charitable toward the less fortunate. (FAC at 12-13). In addition, the memorandum

22 stated that two violations within a six-month period would result in removal from

23 the program. (FAC at 13).

24 On June 20, 2019, plaintiff was interviewed by Reverend M. Williams (not a

25 defendant), a Religious Review Committee member, who tried persuading plaintiff

26 to withdraw from the RMA program by discussing plaintiff’s Canteen purchases and

27 requiring plaintiff to eat only the RMA halal and kosher foods. (FAC at 13). When

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1 plaintiff explained his own religious diet, the reverend threatened plaintiff with

2 termination from the program. (FAC at 13).

3 On July 21, 2019, plaintiff submitted a grievance challenging the efforts of

4 Bonnifield and other Religious Review Committee members to force plaintiff to

5 consume only halal and kosher foods and thus to conform to the diets of other

religions. (FAC at 13-14). On August 9, 2019, Bonnifield interviewed plaintiff and

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explained that plaintiff’s purchases of non-RMA foods on April 9 and May 21, 2019

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violated CDCR policies, even though plaintiff is not Jewish or Muslim. (FAC at

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14). Bonnifield threatened to terminate plaintiff from the RMA program. Plaintiff’s

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grievance was subsequently denied by Bonnifield and Warden Gastelo, and

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defendants Allen, Diaz, and Voong approved that decision on appeal. (FAC at 14,

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15, 16).

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Bonnifield ultimately did terminate plaintiff from the program – a decision

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which Defendants Warden Gastelo, CDCR Secretary Diaz, and others assertedly

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approved. (FAC at 14). When plaintiff went to the dining hall on the morning of

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October 8, 2019, and asked for an RMA breakfast, a correctional officer (not a

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defendant) said plaintiff was no longer approved for RMA meals. (FAC at 14).

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III. PERTINENT LAW

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A. The Screening Requirement

19 As plaintiff is a prisoner proceeding IFP on a civil rights complaint against

20 governmental defendants, the Court must screen the Complaint, and is required to

21 dismiss the case at any time it concludes the action is frivolous or malicious, fails to

22 state a claim on which relief may be granted, or seeks monetary relief against a

23 defendant who is immune from such relief. See 28 U.S.C. §§ 1915(e)(2)(B),

24 1915A; 42 U.S.C. § 1997e(c); Byrd v. Phoenix Police Dep’t, 885 F.3d 639, 641 (9th

25 Cir. 2018) (citations omitted).

26 When screening a complaint to determine whether it states any claim that is

27 viable, the Court applies the same standard as it would when evaluating a motion to

28 dismiss under Federal Rule of Civil Procedure 12(b)(6). See Rosati v. Igbinoso, 791

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1 || F.3d 1037, 1039 (9th Cir. 2015) (citation omitted). Rule 12(b)(6), in turn, is read in

2 || conjunction with Rule 8(a) of the Federal Rules of Civil Procedure. Zixiang Li v.

3 || Kerry, 710 F.3d 995, 998-99 (9th Cir. 2013). Under Rule 8, each complaint filed in

4 || federal court must contain a “short and plain statement of the claim showing that the

5 || pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While Rule 8 does not require

6 || detailed factual allegations, at a minimum a complaint must allege enough specific

7 facts to provide both “fair notice” of the particular claim being asserted and “the

8 grounds upon which [that claim] rests.” Bell Atlantic Corp. v. Twombly, 550 U.S.

9 544, 555 & n.3 (2007) (citation and quotation marks omitted); see also Ashcroft v.

10 Iqbal, 556 U.S. 662, 678 (2009) (Rule 8 pleading standard “demands more than an

1 unadorned, the-defendant-unlawfully-harmed-me accusation’) (citing Twombly,

D 550 U.S. at 555).

To avoid dismissal on screening, a complaint must “contain sufficient factual

8 matter, accepted as true, to state a claim to relief that is plausible on its face.” Byrd,

4 885 F.3d at 642 (citations omitted); see also Johnson v. City of Shelby, Mississippi,

IS 574 U.S. 10, 12 (2014) (per curiam) (Twombly and Iqbal instruct that plaintiff

16 “must plead facts sufficient to show that [plaintiff's] claim has substantive

M7 plausibility”). A claim is “plausible” when the facts alleged in the complaint would

18 support a reasonable inference that the plaintiff is entitled to relief from a specific

19 | defendant for specific misconduct. Iqbal, 556 U.S. at 678 (citation omitted); see

20 also Keates v. Koile, 883 F.3d 1228, 1242 (9th Cir. 2018) (“[A] [Section 1983]

21 | plaintiff must plead that each Government-official defendant, through the official’s

22 || own individual actions, has violated the Constitution.”) (quoting Iqbal, 556 U.S. at

23 || 676); Gauvin v. Trombatore, 682 F. Supp. 1067, 1071 (N.D. Cal. 1988) (complaint

24 || “must allege the basis of [plaintiff's] claim against each defendant” to satisfy Rule 8

25 || requirements) (emphasis added). Allegations that are “merely consistent with” a

26 || defendant’s liability, or reflect only “the mere possibility of misconduct” do not

97 || “show[] that the pleader is entitled to relief’ (as required by Fed. R. Civ. P. 8(a)(2)),

28 | ///

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1 || and thus are insufficient to state a claim that is “plausible on its face.” Iqbal, 556

2 || U.S. at 678-79 (citations and quotation marks omitted).

3 At this preliminary stage, “well-pleaded factual allegations” in a complaint

4 || are assumed true, while “[t]hreadbare recitals of the elements of a cause of action”

5 || and “legal conclusion|s] couched as a factual allegation” are not. Id. (citation and

6 || quotation marks omitted); Jackson v. Barnes, 749 F.3d 755, 763 (9th Cir. 2014)

7 (“mere legal conclusions ‘are not entitled to the assumption of truth’”’) (quoting

8 Iqbal, 556 U.S. at 678-79), cert. denied, 574 U.S. 1077 (2015). In addition, the

9 Court is “not required to accept as true conclusory allegations which are

10 contradicted by documents referred to in the complaint,” Steckman v. Hart Brewing,

1 Inc., 143 F.3d 1293, 1295-96 (9th Cir. 1998) (citation omitted), and “need not []

D accept as true allegations that contradict matters properly subject to judicial notice

or by exhibit,” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.),

° amended on denial of reh’g, 275 F.3d 1187 (9th Cir. 2001) (citation omitted).

4 In general, civil rights complaints are interpreted liberally in order to give pro

IS se plaintiffs “the benefit of any doubt.” Byrd, 885 F.3d at 642 (citations and internal

16 quotation marks omitted). Nonetheless, a pro se plaintiff must still follow the rules

M7 of procedure that govern all litigants in federal court, including the

18} Rule 8 requirement that a complaint minimally state a short and plain statement of a

19 | claim that is plausible on its face. See Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir.

20 1995) (per curiam) (“Although we construe pleadings liberally in their favor, pro se

21 | litigants are bound by the rules of procedure.”) (citation omitted), cert. denied, 516

22 || U.S. 838 (1995); see also Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 954

23 || (9th Cir. 2011) (en banc) (“[A] liberal interpretation of a... civil rights complaint

24 || may not supply essential elements of [a] claim that were not initially pled.”)

25 || (quoting Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992)) (quotation marks

26 || omitted; ellipses in original).

27 If a pro se complaint is dismissed because it does not state a viable claim, the

2g || court must freely grant “leave to amend” (that is, give the plaintiff a chance to file a

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1 || new, corrected complaint) if it is “at all possible” that the plaintiff could fix the

2 || identified pleading errors by alleging different or new facts. Cafasso, U.S. ex rel. v.

3 || Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir. 2011) (citation

4 || omitted); Lopez v. Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000) (en banc)

5 || (citations and internal quotation marks omitted).

6 B. — Section 1983 Claims

7 To state a Section 1983 claim, a complaint must allege that a defendant, while

8 acting under color of state law, caused a deprivation of the plaintiff's federal rights.

9 42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48 (1988) (citations omitted); Taylor

10 v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (citation omitted). There is no

1 vicarious liability in Section 1983 lawsuits. Iqbal, 556 U.S. at 676. (citing, inter

D alia, Monell v. Dep’t of Soc. Servs. of the City of New York, 436 U.S. 658, 691

(1978)). Hence, a government official may not be held liable under Section 1983

° unless the particular official’s own actions caused the alleged constitutional

4 deprivation. OSU Student Alliance v. Ray, 699 F.3d 1053, 1069 (9th Cir. 2012)

15 (citing Iqbal, 556 U.S. at 676), cert. denied, 571 U.S. 819 (2013). A Section 1983

16 plaintiff must establish both causation-in-fact and proximate (i.e., legal) causation.

M7 See Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008).

18 Allegations regarding Section 1983 causation “must be individualized and focus on

19 |! the duties and responsibilities of each individual defendant whose acts or omissions

20 Il are alleged to have caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d

21 | 628, 633 (9th Cir. 1988) (citations omitted). “Sweeping conclusory allegations

22 || [regarding causation] will not suffice... .” Id. (citation omitted).

23 An individual “causes” a constitutional deprivation basically when he or she

24 || (1) “does an affirmative act, participates in another’s affirmative acts, or omits to

25 || perform an act which he 1s legally required to do that causes the deprivation”; or (2)

26 || “set[s] in motion a series of acts by others which the [defendant] knows or

97 || reasonably should know would cause others to inflict the constitutional injury.”

28 | ///

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1 || Lacey v. Maricopa County, 693 F.3d 896, 915 (9th Cir. 2012) (en banc) (quoting

2 || Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978)) (quotation marks omitted).

3 Similarly, a government official acting in a supervisory capacity “causes” a

4 || deprivation to the extent he or she (1) personally participates in or directs a

5 || subordinate’s constitutional violation; or (2) was not “physically present when the

6 || [plaintiffs] injury occurred,” but the constitutional deprivation can, nonetheless, be

7 “directly attributed” to the supervisor’s own wrongful conduct. Starr v. Baca, 652

8 F.3d 1202, 1207 (9th Cir. 2011), cert. denied 566 U.S. 982 (2012); see also OSU

9 Student Alliance, 699 F.3d at 1069 (citing Iqbal, 556 U.S. at 676). Under the latter

10 theory, even absent “overt personal participation,” a supervisor may be liable under

1 Section 1983 if he or she created, promulgated, implemented, advanced, or was

D otherwise responsible for the continued operation of a policy that “requires

subordinates to commit constitutional violations,” and enforcement of the policy

° (either by the defendant-supervisor or his or her subordinates) proximately caused

4 the plaintiff's constitutional injury. OSU Student Alliance, 699 F.3d at 1076 (citing

IS Dodds v. Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010), cert. denied, 563 U.S.

16 | 960 (2011)); see also Crowley v. Bannister, 734 F.3d 967, 977 (9th Cir. 2013)

7 (supervisory officials may be held liable “even without overt personal participation

18 I in the offensive act if supervisory officials implement a policy so deficient that the

19 policy ‘itself is a repudiation of constitutional rights’ and 1s ‘the moving force of a

20 | constitutional violation’”) (citation and internal quotation marks omitted).

21 C. First Amendment — Free Exercise of Religion

22 Prisoners “retain protections afforded by the First Amendment” including the

23 || right to “the free exercise of religion.” O’Lone v. Estate of Shabazz, 482 U.S. 342,

24 || 348 (1987) (citations omitted), superseded by statute on other grounds, 42 U.S.C. §§

25 |} 2000cc, et seq. However, as a consequence of incarceration, a prisoner’s First

26 || Amendment rights are necessarily “more limited in scope than the constitutional

97 || rights held by individuals in society at large.” Shaw v. Murphy, 532 U.S. 223, 229

2g || (2001). An inmate retains only “those First Amendment rights that are not

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1 || inconsistent with his status as a prisoner or with the legitimate penological

2 || objectives of the corrections system.” Pell v. Procunier, 417 U.S. 817, 822 (1974).

3 To state a First Amendment free exercise claim, an inmate must allege that a

4 || prison official’s actions (1) “substantially burden[ed]” the inmate’s exercise of a

5 || sincerely held religious belief; and (2) did so in an unreasonable manner — i.e., the

6 || official’s actions were not “rationally related to legitimate penological interests.”

7 See O’Lone, 482 US. at 348-50; Jones v. Williams, 791 F.3d 1023, 1031, 1033 (9th

8 Cir. 2015) (citation omitted); Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir.

9 2008) (citations omitted). “[G]overnment action places a substantial burden on an

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

1 to forego [his or] her sincerely held religious beliefs or to engage in conduct that

D violates those beliefs.” Jones v. Williams, 791 F.3d at 1031-33 (citations omitted).

IV. DISCUSSION

° As explained below, the First Amended Complaint fails to state a claim for

4 relief and is dismissed with leave to amend.

IS A. Plaintiff Fails to State a First Amendment Claim

16 Plaintiff claims that defendants violated his First Amendment right to a

M7 religious diet. “Inmates . . . have the right to be provided with food sufficient to

18 | sustain them in good health that satisfies the dietary laws of their religion.”

19 || McElyea v. Babbitt, 833 F.2d 196, 198 (9th Cir. 1987) (per curiam); Ashelman v.

20 | Wawrzaszek, 111 F.3d 674, 677 (9th Cir. 1997). However, plaintiff does not

21 || plausibly allege that his First Amendment rights have been denied. To the contrary,

22 | plaintiff was admitted into the RMA program, which limited him to program-

23 || approved foods that complied with plaintiff’s own religious diet restrictions.

24 || Plaintiff does not allege that he was induced to consume foods that violated his

25 | religious beliefs. Rather, plaintiff complains that the program excluded some other

26 || foods, such as chicken, that were permitted by plaintiff's own religious beliefs.

97 || (See FAC at 7-14). Because plaintiff does not plead facts plausibly showing that

2g || any non-program foods were mandated by plaintiff's sincerely held religious beliefs,

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1 || he fails to demonstrate that the program’s exclusion of certain foods substantially

2 || burdened those beliefs.’ See, e.g., Sefeldeen v. Alameida, 238 F. App’x 204, 206

3 || (9th Cir. 2007) (Muslim inmate’s religious exercise was not substantially burdened

4 || when he did not allege that eating vegetarian meals violated his religious beliefs);

Johnson v. Horn, 150 F.3d 276 (3d Cir. 1998) (service to Jewish inmate of cold food

5 || 2ZQRUSOn VOR

6 || that complied with kosher requirements satisfied First Amendment rights despite

7 inmate’s desire for hot meals), overruled on other grounds, DeHart v. Horn, 227

8 F.3d 47 (3d Cir. 2000); Gumienny v. McDowell, 2018 WL 6113084, at *5 (C.D.

9 Cal. 2018) (“Plaintiffs free exercise claims appear to be based on Defendants’

10 refusal to allow Plaintiff flexibility with the Vegetarian Diet Program so that he can

1 occasionally opt out of receiving the vegetarian meal and receive the regular chicken

D entrée instead. However, Plaintiff has not alleged that a wholly vegetarian diet, for

3 which he was approved under the Religious Diet Program, substantially burdens his

religious beliefs.’’) (citations omitted). The First Amendment does not guarantee

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plaintiffs right to obtain any desired food that fits his beliefs. See Gumienny, 2018

15 wo.

WL 6113084, at *5 (“Although Plaintiff states that he can eat chicken under his

16 religious tenets and sometimes chooses to do so, he has not demonstrated that

M7 consuming a diet that lacks chicken forces him to violate his sincerely held religious

18 beliefs.”); Moore v. Cucchi, 2011 WL 4594907, *4 (D. N.J. 2011) (“It can be

19 || inferred from Plaintiff's allegations that he was not satisfied with the non-meat diet

20 Il he received at [the prison]. However, an inmate has no constitutional right to a diet

21 | based on personal preference.”).

22 | ///

23

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*Plaintiff does assert that the program pressured him to either “forgo the purchase of these

25 Religiously Mandated Food Products,” or risk removal from the program. (FAC at 8) (emphasis

2% added). However, he fails to plead any non-conclusory facts showing that any non-program foods

were required by his religious beliefs. See Iqbal, 556 U.S. at 678, 686. Moreover, his allegations

27 || on this point are ambiguous, at best. He asserts, for example, that officials prohibited him from

purchasing chicken “even though chicken is a Religiously Mandated Product that the Plaintiff can

28 || consume... .” (FAC at 12) (emphasis added).

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1 Although plaintiff also alleges that the RMA program sometimes served

2 || meals that were undercooked or otherwise unsuitable (see FAC at 5-6), he does not

3 || allege facts showing that this substantially burdened his religious practice. For

4 || example, plaintiff does not indicate how often such foods were served, and to what

5 || extent the program-approved diet may have posed a harm to his health or conflicted

6 || with his religious beliefs. Moreover, while plaintiff suggests that the poor quality of

7 the meals being served induced him to purchase foods from the Canteen, he does not

8 allege that he was unable to find suitable program-approved foods in the Canteen, or

9 that only non-approved foods were available there. Plaintiff thus fails to show that

10 the terms of the program were inadequate to provide him with a healthy diet that

1 complied with his own religious beliefs, such that he was effectively pressured to

D violate his religious beliefs or be excluded from the program. See Shakur v.

Schriro, 514 F.3d 878, 885 (9th Cir. 2008) (Free Exercise Clause was implicated by

° prison’s refusal to provide a kosher meat diet to Muslim plaintiff because the

4 vegetarian diet provided for Muslim inmates caused him gastrointestinal distress

IS that interfered with his religious activities as a Muslim, and plaintiff sincerely

16 believed kosher meat was personally necessary to maintain his spirituality); see also

7 Patterson v. Ryan, 2012 WL 1956425, at *6 (D. Ariz. May 31, 2012) (“Unlike the

18 prisoner-plaintiff in Shakur, Plaintiff does not allege that the vegetarian diet

19 provided by the prison caused him gastrointestinal problems or any other health

20 problems that in turn substantially burdened his religious activities.”), aff'd sub

21 | nom., Patterson v. Moore, 591 F. App’x 622 (9th Cir. 2015).

22 Finally, while plaintiff alleges that he was ultimately removed from the

23 || program, this occurred only after he continued to violate the terms of the program

24 || despite receiving multiple warnings of the consequences of these violations.

25 || (See FAC at 7-14). Because plaintiff fails to show that he was induced or pressured

26 || to violate the program’s terms or his own beliefs, he cannot demonstrate that his

27 || subsequent removal infringed on his First Amendment rights. Accordingly, plaintiff

2g || fails to state a First Amendment claim against any defendant.

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1 B. Plaintiff Fails to State a First Amendment Claim Against

2 Defendants Who Reviewed Administrative Appeals

3 Plaintiff asserts a First Amendment claim against several defendants — Layes,

4 || Warren, Voong, Allen, and Diaz — who had no alleged role in deciding plaintiffs

5 || meal provisions and restrictions. Rather, such defendants are alleged only to have

6 || teviewed plaintiff's administrative grievances or appeals challenging such

7 restrictions. (See FAC at 3-5, 16-17). However, a prison official’s processing of an

8 inmate’s appeals, without more, cannot serve as a basis for Section 1983 liability.’

9 See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (Prisoners do not have a

10 “separate constitutional entitlement to a specific prison grievance procedure.”’)

1 (citation omitted), cert. denied, 541 U.S. 1063 (2004); Mann v. Adams, 855 F.2d

D 639, 640 (9th Cir.) (due process not violated simply because defendant fails properly

3 to process grievances submitted for consideration), cert. denied, 488 U.S. 898

(1988); Shallowhorn v. Molina, 572 F. App’x 545, 547 (9th Cir. 2014) (district

14 i.

court properly dismissed Section 1983 claims against defendants who “were only

IS]. □□

involved in the appeals process’’) (citing Ramirez, 334 F.3d at 860). Moreover, it is

16 implausible that defendant Diaz, who was responsible for overseeing all California

M7 prisons as Secretary of the CDCR, had any personal knowledge of plaintiff's request

18 for relief, nor any personal role in denying such relief or otherwise setting the

19 religious diet policies from which plaintiff sought relief. See Starr v. Baca, 652 F.3d

20 | at 1207 (government official acting in a supervisory capacity may be held personally

21

22 |

03 “While a prison official’s alleged failure to process an inmate grievance may implicate a

prisoner’s First Amendment right of access to the courts, the First Amended Complaint fails to

24 || state such a claim because plaintiff does not plausibly allege that any defendant actually failed to

process his grievances, that an actual injury resulted from any failure to process plaintiff's

25 grievances or that any such conduct actually “hindered his efforts to pursue a [nonfrivolous] legal

2% claim.” Lewis v. Casey, 518 U.S. 343, 351-53, 354-55 (1996) (To establish any denial of access

claim, a plaintiff must show that he suffered an “actual injury” as a result of the defendants’

27 || actions.); see generally Bounds v. Smith, 430 U.S. 817, 821 (1977) (well-established that

prisoners have a constitutional right of access to the courts), abrogated in part on other grounds

28 |I by, Lewis, 518 U.S. at 354.

Case 2:19-cv-08989-MWF-JC Document 30 Filed 04/07/22 Page 14 of 15 Page ID #:237

1 liable only if the official personally participated in or directed the violation or the

2 violation otherwise can be “directly attributed” to the supervisor’s own wrongful

3 conduct).

4 Accordingly, even if plaintiff had sufficiently alleged a violation of his First

5 Amendment rights based on his religious diet – which, as explained above, he has

not – he still would fail to state a claim against defendants Layes, Warren, Allen,

6

Voong, and Diaz because he does not allege facts showing that these defendants had

7

a personal role in determining the available RMA program diets, or the authority to

8

change the restrictions with respect to plaintiff.

9

V. ORDERS5

10

In light of the foregoing, IT IS HEREBY ORDERED that the First Amended

11

Complaint is dismissed with leave to amend.

12

IT IS FURTHER ORDERED that within twenty (20) days of the date of this

13

Order, plaintiff must do one of the following:

14

1. File a Second Amended Complaint which cures the pleading defects set

15

forth herein;6 or

16

17

5The Court’s orders herein constitute non-dispositive rulings on pretrial matters. To the

18 extent a party disagrees with such non-dispositive rulings, such party may file a motion for review

by the assigned District Judge within fourteen (14) days. See Local Rule 72-2.1. To the extent a

19

party believes the rulings to be dispositive, rather than non-dispositive, such party has the right to

20 object to this Court’s determination that the rulings are non-dispositive within fourteen (14) days.

A party will be foreclosed from challenging the rulings herein if such party does not seek review

21 thereof, or object thereto.

22 6The Clerk is directed to provide plaintiff with a Central District of California Civil Rights

Complaint Form, CV-66, to facilitate plaintiff’s filing of a Second Amended Complaint if he

23

elects to proceed in that fashion. Any Second Amended Complaint must: (a) be labeled “Second

24 Amended Complaint”; (b) be complete in and of itself and not refer in any manner to prior

pleadings – i.e., it must include all claims on which plaintiff seeks to proceed (Local Rule 15-2);

25 (c) contain a “short and plain” statement of each of the claim(s) for relief (Fed. R. Civ. P. 8(a));

(d) make each allegation “simple, concise and direct” (Fed. R. Civ. P. 8(d)(1)); (e) set forth clearly

26

the sequence of events giving rise to the claim(s) in sequentially “numbered paragraphs, each

27 limited as far as practicable to a single set of circumstances” (Fed. R. Civ. P. 10(b));

(f) allege specifically what the defendant did and how that individual’s conduct specifically

28 violated plaintiff’s civil rights; (g) state the names of all defendants in the caption and not include

Case 2:19-cv-08989-MWF-JC Document 30 Filed 04/07/22 Page 15 of 15 Page ID #:238

1 2. Sign and file the attached Notice of Dismissal which will result in

2 the voluntary dismissal of this action without prejudice; or

3 3. File a Notice of Intent to Stand on First Amended Complaint,

4 indicating plaintiff’s intent to stand on the First Amended Complaint despite the

5 pleading defects set forth herein, which may result in the dismissal of this action in

its entirety based upon such defects.

6

Plaintiff is cautioned that plaintiff’s failure timely to file a Second

7

Amended Complaint, a Notice of Dismissal, or a Notice of Intent to Stand on

8

First Amended Complaint may be deemed plaintiff’s admission that

9

amendment is futile, and may result in the dismissal of this action with or

10

without prejudice on the grounds set forth above, on the ground that

11

amendment is futile, for failure diligently to prosecute and/or for failure to

12

comply with this Order.

13

IT IS SO ORDERED.

14

15

DATED: April 7, 2022

16

________________/s/______________________

17

Honorable Jacqueline Chooljian

UNITED STATES MAGISTRATE JUDGE

18

19

20

21

22

23

24

25

26

27 in the body of the Second Amended Complaint defendants who are not also named in the caption

(Fed. R. Civ. P. 10(a)); and (h) not add defendants or claims that are not reasonably related to the

28 claim asserted in prior pleadings in this action.