1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 JOHNDELL HENDERSON, 11 Case No. 22-cv-02166 EJD (PR) Plaintiff, 12 ORDER OF SERVICE; DISMISSING v. EQUAL PROTECTION CLAIM; 13 DIRECTING DEFENDANTS TO FILE DISPOSITIVE MOTION OR 14 MICHAEL THOMAS, et al., NOTICE REGARDING SUCH MOTION; INSTRUCTIONS TO 15 Defendants. CLERK
17 18 Plaintiff, a state inmate, filed the instant pro se civil rights action pursuant to 42 19 U.S.C. § 1983 against officers at the Salinas Valley State Prison (“SVSP”) for 20 unconstitutional acts. Dkt. No. 1. On August 4, 2022, the Court screened the complaint 21 and found it stated cognizable claims under the First Amendment and due process. Dkt. 22 No. 4 at 2-3. The Court dismissed a claim for damages under RLUIPA for failure to state 23 a claim for relief and dismissed with leave to amend an equal protection claim. Id. at 3-4. 24 Plaintiff was advised that failure to file an amended complaint in the time provided would 25 result in the dismissal of the equal protection claim for failure to state a claim, and this 26 action would proceed on the cognizable claims. Id. at 5. Plaintiff has not responded in the 27 time provided. Accordingly, this action shall proceed on the cognizable claims. 1 DISCUSSION 2 A. Standard of Review 3 A federal court must conduct a preliminary screening in any case in which a 4 prisoner seeks redress from a governmental entity or officer or employee of a 5 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 6 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 7 upon which relief may be granted or seek monetary relief from a defendant who is immune 8 from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must, however, be liberally 9 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 10 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 11 elements: (1) that a right secured by the Constitution or laws of the United States was 12 violated, and (2) that the alleged violation was committed by a person acting under the 13 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 14 B. Plaintiff’s Claims 15 In the screening order, the Court found the following cognizable claims:
16 Plaintiff claims that his First Amendment rights were violated based 17 on the denial of his right to assemble and practice his Muslim religion. Dkt. No. 1 at 5. Plaintiff claims that he, along with other Muslims in 18 Facility B of SVSP, were only allowed to assemble 21 weeks out of 128 weeks during 2019, as well as denied religious meals during Ramadan. Id. 19 These violations began in May 2019, when Plaintiff was denied Halal 20 meals, which prevented him from being able to fast for multiple days during Ramadan. Id. at 11. Plaintiff also claims he was denied the right to 21 assemble for prayer several times during that Holy month. Id. Specifically, 22 Plaintiff claims that during October and November 2019, Defendants did not allow Muslims to assemble for religious service on the yard, and 23 “systematically” gave excuses. Id. at 14. Plaintiff claims Defendants’ refusal to allow him “and those similarly situated to assemble for the 24 congregational prayer/service is an act of discriminating against a specific 25 class of people based on race and religion since 99 % of Facility B Muslims are black.” Id. Plaintiff claims he has been harmed “spiritually, 26 emotionally, mentally [and] physically by staff” by the denial of his First 27 Amendment rights. Id. at 15. Plaintiff claims the following: (1) violation of his right to assemble under the First Amendment, (2) violation of his Act), and (3) violation of due process and/or equal protection. Id. at 15-16. 1 Plaintiff seeks declaratory relief and damages. Id. at 16-17. 2 Liberally construed, the complaint states cognizable claims under the 3 First Amendment for the denial of his right to peaceably assemble and the free exercise of his religion. See Moorish Science Temple, Inc. v. Smith, 4 693 F.2d 987, 990 (2d Cir. 1982) (Muslim inmate claiming denial of proper 5 religious diet). The complaint also states a cognizable due process claim based on the arbitrary denial of religious gatherings. See Sandin v. Conner, 6 515 U.S. 472, 484 (1995). 7 Dkt. No. 4 at 2-3. The Court dismissed claim (2) under RLUIPA for failure to state a 8 claim for relief, id. at 3, and the equal protection claim under (3) with leave to amend, id. 9 at 4. Because Plaintiff has failed to file an amended complaint to correct the deficiency of 10 the equal protection claim, that claim shall be dismissed with prejudice for failure to state a 11 claim for relief. 12
13 CONCLUSION 14 For the reasons state above, the Court orders as follows: 15 1. The following claims are DISMISSED with prejudice for failure to state a 16 claim: (1) the RLUIPA claim for damages against the named Defendants in their 17 individual capacities, and (2) the equal protection claim. 18 2. This action shall proceed on the claims under the First Amendment, i.e., the 19 denial of Plaintiff’s rights to peaceably assemble and the free exercise of his religion, and 20 violation of due process for the arbitrary denial of religious gatherings. 21 3. The following defendants at SVSP shall be served: 22 a. Captain Michael Thomas 23 b. Lieutenant Herman Clavijo 24 c. Sergeant Pedro Soto 25 d. Captain Lenard M. Pennisi, Jr. 26 e. Lieutenant Sandeep Bangar 27 1 g. Sergeant Christian Cole 2 h. Sergeant Hector Lomeli 3 i. Sergeant Elisa Macay 4 j. Lieutenant Robert Poodry 5 k. Lieutenant Christy Tange 6 l. Alma Tamayo, Community Resource Manager 7 m. Tammie Frost, former Community Resource Manager 8 n. Tina Lopez, Correctional Officer 9 4. Service on the listed defendant(s) shall proceed under the California 10 Department of Corrections and Rehabilitation’s (CDCR) e-service program for civil rights 11 cases from prisoners in CDCR custody. In accordance with the program, the clerk is 12 directed to serve on CDCR via email the following documents: the operative complaint 13 and any attachments thereto, (Dkt. No. 1), this order of service, a CDCR Report of E- 14 Service Waiver form and a summons. The clerk also shall serve a copy of this order on the 15 plaintiff. 16 5. No later than 40 days after service of this order via email on CDCR, CDCR 17 shall provide the court a completed CDCR Report of E-Service Waiver advising the court 18 which defendant(s) listed in this order will be waiving service of process without the need 19 for service by the United States Marshal Service (USMS) and which defendant(s) decline 20 to waive service or could not be reached. CDCR also shall provide a copy of the CDCR 21 Report of E-Service Waiver to the California Attorney General’s Office which, within 21 22 days, shall file with the court a waiver of service of process for the defendant(s) who are 23 waiving service. 24 6. Upon receipt of the CDCR Report of E-Service Waiver, the clerk shall 25 prepare for each defendant who has not waived service according to the CDCR Report of 26 E-Service Waiver a USM-205 Form.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 JOHNDELL HENDERSON, 11 Case No. 22-cv-02166 EJD (PR) Plaintiff, 12 ORDER OF SERVICE; DISMISSING v. EQUAL PROTECTION CLAIM; 13 DIRECTING DEFENDANTS TO FILE DISPOSITIVE MOTION OR 14 MICHAEL THOMAS, et al., NOTICE REGARDING SUCH MOTION; INSTRUCTIONS TO 15 Defendants. CLERK
17 18 Plaintiff, a state inmate, filed the instant pro se civil rights action pursuant to 42 19 U.S.C. § 1983 against officers at the Salinas Valley State Prison (“SVSP”) for 20 unconstitutional acts. Dkt. No. 1. On August 4, 2022, the Court screened the complaint 21 and found it stated cognizable claims under the First Amendment and due process. Dkt. 22 No. 4 at 2-3. The Court dismissed a claim for damages under RLUIPA for failure to state 23 a claim for relief and dismissed with leave to amend an equal protection claim. Id. at 3-4. 24 Plaintiff was advised that failure to file an amended complaint in the time provided would 25 result in the dismissal of the equal protection claim for failure to state a claim, and this 26 action would proceed on the cognizable claims. Id. at 5. Plaintiff has not responded in the 27 time provided. Accordingly, this action shall proceed on the cognizable claims. 1 DISCUSSION 2 A. Standard of Review 3 A federal court must conduct a preliminary screening in any case in which a 4 prisoner seeks redress from a governmental entity or officer or employee of a 5 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 6 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 7 upon which relief may be granted or seek monetary relief from a defendant who is immune 8 from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must, however, be liberally 9 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 10 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 11 elements: (1) that a right secured by the Constitution or laws of the United States was 12 violated, and (2) that the alleged violation was committed by a person acting under the 13 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 14 B. Plaintiff’s Claims 15 In the screening order, the Court found the following cognizable claims:
16 Plaintiff claims that his First Amendment rights were violated based 17 on the denial of his right to assemble and practice his Muslim religion. Dkt. No. 1 at 5. Plaintiff claims that he, along with other Muslims in 18 Facility B of SVSP, were only allowed to assemble 21 weeks out of 128 weeks during 2019, as well as denied religious meals during Ramadan. Id. 19 These violations began in May 2019, when Plaintiff was denied Halal 20 meals, which prevented him from being able to fast for multiple days during Ramadan. Id. at 11. Plaintiff also claims he was denied the right to 21 assemble for prayer several times during that Holy month. Id. Specifically, 22 Plaintiff claims that during October and November 2019, Defendants did not allow Muslims to assemble for religious service on the yard, and 23 “systematically” gave excuses. Id. at 14. Plaintiff claims Defendants’ refusal to allow him “and those similarly situated to assemble for the 24 congregational prayer/service is an act of discriminating against a specific 25 class of people based on race and religion since 99 % of Facility B Muslims are black.” Id. Plaintiff claims he has been harmed “spiritually, 26 emotionally, mentally [and] physically by staff” by the denial of his First 27 Amendment rights. Id. at 15. Plaintiff claims the following: (1) violation of his right to assemble under the First Amendment, (2) violation of his Act), and (3) violation of due process and/or equal protection. Id. at 15-16. 1 Plaintiff seeks declaratory relief and damages. Id. at 16-17. 2 Liberally construed, the complaint states cognizable claims under the 3 First Amendment for the denial of his right to peaceably assemble and the free exercise of his religion. See Moorish Science Temple, Inc. v. Smith, 4 693 F.2d 987, 990 (2d Cir. 1982) (Muslim inmate claiming denial of proper 5 religious diet). The complaint also states a cognizable due process claim based on the arbitrary denial of religious gatherings. See Sandin v. Conner, 6 515 U.S. 472, 484 (1995). 7 Dkt. No. 4 at 2-3. The Court dismissed claim (2) under RLUIPA for failure to state a 8 claim for relief, id. at 3, and the equal protection claim under (3) with leave to amend, id. 9 at 4. Because Plaintiff has failed to file an amended complaint to correct the deficiency of 10 the equal protection claim, that claim shall be dismissed with prejudice for failure to state a 11 claim for relief. 12
13 CONCLUSION 14 For the reasons state above, the Court orders as follows: 15 1. The following claims are DISMISSED with prejudice for failure to state a 16 claim: (1) the RLUIPA claim for damages against the named Defendants in their 17 individual capacities, and (2) the equal protection claim. 18 2. This action shall proceed on the claims under the First Amendment, i.e., the 19 denial of Plaintiff’s rights to peaceably assemble and the free exercise of his religion, and 20 violation of due process for the arbitrary denial of religious gatherings. 21 3. The following defendants at SVSP shall be served: 22 a. Captain Michael Thomas 23 b. Lieutenant Herman Clavijo 24 c. Sergeant Pedro Soto 25 d. Captain Lenard M. Pennisi, Jr. 26 e. Lieutenant Sandeep Bangar 27 1 g. Sergeant Christian Cole 2 h. Sergeant Hector Lomeli 3 i. Sergeant Elisa Macay 4 j. Lieutenant Robert Poodry 5 k. Lieutenant Christy Tange 6 l. Alma Tamayo, Community Resource Manager 7 m. Tammie Frost, former Community Resource Manager 8 n. Tina Lopez, Correctional Officer 9 4. Service on the listed defendant(s) shall proceed under the California 10 Department of Corrections and Rehabilitation’s (CDCR) e-service program for civil rights 11 cases from prisoners in CDCR custody. In accordance with the program, the clerk is 12 directed to serve on CDCR via email the following documents: the operative complaint 13 and any attachments thereto, (Dkt. No. 1), this order of service, a CDCR Report of E- 14 Service Waiver form and a summons. The clerk also shall serve a copy of this order on the 15 plaintiff. 16 5. No later than 40 days after service of this order via email on CDCR, CDCR 17 shall provide the court a completed CDCR Report of E-Service Waiver advising the court 18 which defendant(s) listed in this order will be waiving service of process without the need 19 for service by the United States Marshal Service (USMS) and which defendant(s) decline 20 to waive service or could not be reached. CDCR also shall provide a copy of the CDCR 21 Report of E-Service Waiver to the California Attorney General’s Office which, within 21 22 days, shall file with the court a waiver of service of process for the defendant(s) who are 23 waiving service. 24 6. Upon receipt of the CDCR Report of E-Service Waiver, the clerk shall 25 prepare for each defendant who has not waived service according to the CDCR Report of 26 E-Service Waiver a USM-205 Form. The clerk shall provide to the USMS the completed 27 USM-205 forms and copies of this order, the summons and the operative complaint for 1 the USMS a copy of the CDCR Report of E-Service Waiver. 2 7. No later than ninety-one (91) days from the date this order is filed, 3 Defendants shall file a motion for summary judgment or other dispositive motion with 4 respect to the claims in the complaint found to be cognizable above. 5 a. Any motion for summary judgment shall be supported by adequate 6 factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of 7 Civil Procedure. Defendants are advised that summary judgment cannot be granted, nor 8 qualified immunity found, if material facts are in dispute. If any Defendant is of the 9 opinion that this case cannot be resolved by summary judgment, he shall so inform the 10 Court prior to the date the summary judgment motion is due. 11 b. In the event Defendants file a motion for summary judgment, the 12 Ninth Circuit has held that Plaintiff must be concurrently provided the appropriate 13 warnings under Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc). See 14 Woods v. Carey, 684 F.3d 934, 940 (9th Cir. 2012). 15 8. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 16 and served on Defendants no later than twenty-eight (28) days from the date Defendants’ 17 motion is filed. 18 Plaintiff is also advised to read Rule 56 of the Federal Rules of Civil Procedure and 19 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment 20 must come forward with evidence showing triable issues of material fact on every essential 21 element of his claim). Plaintiff is cautioned that failure to file an opposition to 22 Defendants’ motion for summary judgment may be deemed to be a consent by Plaintiff to 23 the granting of the motion, and granting of judgment against Plaintiff without a trial. See 24 Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir. 1995) (per curiam); Brydges v. Lewis, 18 25 F.3d 651, 653 (9th Cir. 1994). 26 9. Defendants shall file a reply brief no later than fourteen (14) days after 27 Plaintiff’s opposition is filed. 1 No hearing will be held on the motion unless the Court so orders at a later date. 2 11. All communications by the Plaintiff with the Court must be served on 3 || Defendants, or Defendants’ counsel once counsel has been designated, by mailing a true 4 || copy of the document to Defendants or Defendants’ counsel. 5 12. | Discovery may be taken in accordance with the Federal Rules of Civil 6 || Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local 7 || Rule 16-1 is required before the parties may conduct discovery. 8 13. It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the g || court informed of any change of address and must comply with the court’s orders in a 10 || timely fashion. Failure to do so may result in the dismissal of this action for failure to 11 || prosecute pursuant to Federal Rule of Civil Procedure 41(b). 2 14. Extensions of time must be filed no later than the deadline sought to be E 13. || extended and must be accompanied by a showing of good cause. S 14 IT IS SO ORDERED. 3 15 || Dated: November 22, 2022 □□□ EDWARD J. DAVILA 16 United States District Judge
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