Pies-Lonsdale v. Lemus

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GABRIEL PIES-LONSDALE, Case No.: 22-CV-309 TWR (JLB) INMATE # 64770-298, 12 ORDER (1) GRANTING IN PART Plaintiff, 13 AND DENYING IN PART v. DEFENDANT’S MOTION TO 14 DISMISS PURSUANT TO FED. R. LEMUS, Chaplain, GEO Western Region 15 CIV. P. 12(b)(6), AND Detention Facility, (2) DIRECTING PLAINTIFF TO 16 Defendant. SHOW CAUSE WHY THIS ACTION 17 SHOULD NOT BE DISMISSED FOR FAILURE TO PROSECUTE 18

19 (ECF No. 13) 20 21 Plaintiff Gabriel Pies-Lonsdale, a person detained at the GEO Western Region 22 Detention Facility in San Diego, California, at the time of the underlying events but since 23 released from custody, is proceeding pro se with a civil rights Complaint. (See generally 24 ECF No. 1 (“Compl.”).) The only remaining claim in the Complaint alleges that Defendant 25 Chaplain Lemus, the sole remaining Defendant, violated Plaintiff’s right to the free 26 exercise of religion as protected by the Religious Freedom Restoration Act of 1993 27 (“RFRA”), 42 U.S.C. §§ 2000bb et seq., by denying his request for “Haitian Voodoo 28 prayers” on the basis that it “is not a religion.” (See id. at 3–4; ECF No. 8 at 6–10.) 1 Presently before the Court is Defendant’s Motion to Dismiss (“Mot.,” ECF No. 13) 2 pursuant to Federal Rule of Civil Procedure 12(b)(6).1 Plaintiff’s Opposition was initially 3 due on September 20, 2022. (See ECF No. 14.) On November 3, 2022, Plaintiff filed a 4 notice of change of address that included a request for an extension of time to file an 5 Opposition and for copies of all documents filed in this case. (See ECF No. 15.) On 6 November 8, 2022, the Court extended Plaintiff’s deadline to file an Opposition until 7 December 6, 2022, and directed the Clerk of Court to send him copies of his Complaint, 8 the Defendant’s Motion to Dismiss, and the Court’s prior Orders in this case. (See ECF 9 No. 16.) That Order was returned to the Court by the United States Post Office marked: 10 “return to sender/not deliverable as addressed/unable to forward.” (See ECF No. 17.) 11 For the following reasons, the Court GRANTS IN PART and DENIES IN PART 12 Defendant’s Motion to Dismiss. Further, because Plaintiff has not kept the Court apprised 13 of his current address, he is directed to SHOW CAUSE why this action should not be 14 dismissed for failure to prosecute pursuant to this Court’s local rules. See S.D. Cal. CivLR 15 83.11(b) (“If mail directed to a pro se plaintiff by the Clerk at plaintiff’s last designated 16 address is returned by the Post Office, and if such plaintiff fails to notify the Court and 17 opposing parties within 60 days thereafter of the plaintiff’s current address, the Court may 18 dismiss the action without prejudice for failure to prosecute.”). 19 BACKGROUND 20 Plaintiff initiated this action on March 4, 2022, by filing a 42 U.S.C. § 1983 civil 21 rights Complaint naming as Defendants GEO Western Region Detention Facility Chaplain 22 Lemus and GEO Western Region Detention Facility Case Manager Hartley. (See generally 23 ECF No. 1.) He alleged he was not allowed to practice his religion by praying and claimed 24 violations of the First and Eighth Amendments and the Religious Land Use and 25 26 27 1 Although this matter was randomly referred to United States Magistrate Judge Jill L. Burkhardt pursuant to 28 U.S.C. § 636(b)(1)(B), the Court has determined that neither a Report and Recommendation nor oral 28 1 Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. §§ 2000cc, et seq. (See 2 Compl. at 3–4.) 3 Specifically, in count one of the Complaint, Plaintiff claims a violation of his rights 4 to “freedom of religion and freedom from cruel and unusual punishment.” (See Compl. at 5 3.) He alleges that, while incarcerated at the Western Region Detention Facility: 6 On 2.17.22 I put in a detainee request form to Chaplain Lemus stating the following. “I would like Haitian voodoo prayers so I can find salvation thru 7 my religion as I am documented thru the b.o.p. Thank you for allowing me to 8 practice my First Amendment right.” Chaplain Lemus responded on 2.24.22 stating “voodoo practices are all about rituals that we do not allow in this 9 facility for security and safety reasons, therefore your request is denied.” 10 When Chaplain Lemus did her rounds on 2.26.22 I asked her Chaplain Lemus why she denied my religion request there is nothing in my request that is 11 threatening to the safety and security to the facility. Chaplain Lemus stated 12 “because your religion is not a religion.” 13 (Id.) 14 In count two of the Complaint, Plaintiff claims violations of his rights to “freedom 15 of religion and freedom from cruel and unusual punishment” and alleges that: 16 On 2.24.22 at 5pm I turn in a detainee grievance I stated “I requested voodoo prayers on 2.17.22 so I can seek salvation thru my religion which is voodoo. 17 Chaplain Lemus has imposed a substantial burden on my religious exercise. 18 A clear violation of the First Amendment and (RLUIPA). See Cutter v. Wilkinson, 544 U.S. 709 (2005). Plz allow me to practice my religion without 19 discrimination, [there is] no need for this hate crime to continue.” 20 21 (Id. at 4.) 22 In addition to demanding compensatory and punitive damages, the Complaint seeks 23 an injunction preventing Defendants from denying him “religious document(s) for and of 24 prayer(s),” “religious physical items for pray(s) ritual(s)” and “all rights to my religious 25 freedom(s) without prejudice(s).” (See id. at 6.) 26 On May 4, 2022, the Court granted Plaintiff leave to proceed in forma pauperis and 27 screened the Complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), which 28 require sua sponte dismissal of complaints, or any portions thereof, filed by persons, such 1 as Plaintiff, who are proceeding in forma pauperis and detained for violations of conditions 2 of supervised release, that are frivolous, malicious, fail to state a claim, or that seek 3 damages from defendants who are immune. (See generally ECF No. 8.) Because Plaintiff 4 was presenting claims arising from actions that took place in a private detention facility 5 housing federal detainees and there were no allegations of state action, the Court liberally 6 construed the Complaint as brought pursuant to Bivens v. Six Unknown Named Agents of 7 the Federal Bureau of Narcotics, 403 U.S. 388 (1971), rather than 42 U.S.C. § 1983. (See 8 ECF No. 8 at 6–7.) The Court found Plaintiff could not state a First Amendment free 9 exercise claim under Bivens because an alternative remedial scheme with all appropriate 10 relief for free exercise claims was available under the RFRA and because Bivens does not 11 allow a cause of action against employees of a private detention facility operated by the 12 GEO Group under a contract with the United States Marshals Service. (See ECF No. 8 at 13 7.) The Court further found Plaintiff could not state a claim under RLUIPA because that 14 statute applies only to state governments; nonetheless, the Court liberally construed 15 Plaintiff’s RLUIPA claim as a RFRA claim. (See ECF No. 8 at 8.) The Court dismissed 16 as moot Plaintiff’s claim for injunctive relief because he had been released from custody. 17 (Id. at 9.) The Court dismissed the RFRA claim against Defendant Hartley because there 18 were no allegations regarding any actions he had taken or had failed to take and directed 19 service of the summons and Complaint on Defendant Chaplain Lemus after finding the 20 Complaint plausibly stated a RFRA claim against him. (See ECF No. 8 at 8–10.) 21 Defendant Chaplain Lemus moved to dismiss on August 30, 2022. (See generally 22 ECF No. 13.) 23 MOTION TO DISMISS 24 I. Legal Standard 25 Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss 26 on the grounds that a complaint “fail[s] to state a claim upon which relief can be granted.” 27 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal 28 sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “To survive 1 a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 2 ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 3 (2009), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially 4 plausible “when the plaintiff pleads factual content that allows the court to draw the 5 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 6 U.S. at 678. Plausibility requires pleading facts, as opposed to conclusory allegations or 7 the “formulaic recitation of the elements of a cause of action,” Twombly, 550 U.S. at 555, 8 which rise above the mere conceivability or possibility of unlawful conduct. Iqbal, 556 9 U.S. at 678-79. “Threadbare recitals of the elements of a cause of action, supported by 10 mere conclusory statements, do not suffice.” Id. at 678. “In sum, for a complaint to survive 11 a motion to dismiss, the non-conclusory ‘factual content,’ and reasonable inferences 12 [drawn] from that content, must be plausibly suggestive of a claim entitling the plaintiff to 13 relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009), quoting Iqbal, 556 14 U.S. at 678. 15 II. Analysis 16 Defendant Chaplain Lemus moves to dismiss: (1) the Complaint in its entirety 17 because Plaintiff has not exhausted his administrative remedies, (2) the Eighth Amendment 18 cruel and unusual punishment claim for failure to state a claim, and (3) the injunctive relief 19 claim as overly broad and lacking specificity. (See generally Mot.) Pursuant to Section 20 III.A.2 of the undersigned’s Standing Order for Civil Cases, Plaintiff’s “failure timely to 21 file an opposition . . . may be construed as consent to the granting of the motion pursuant 22 to Civil Local Rule 7.1(f)(3)(c).” Nonetheless, the Court will consider each of the grounds 23 raised in Defendant’s Motion on the merits. 24 A. Exhaustion of Administrative Remedies 25 Defendant Chaplain Lemus, the only Defendant remaining in this action, first moves 26 to dismiss the Complaint in its entirety without prejudice for failure to exhaust 27 administrative remedies. (See Mot. at 4–6 (citing 42 U.S.C. § 1997e(a) (“No action shall 28 be brought with respect to prison conditions under section 1983 of this title, or any other 1 Federal law, by a prisoner confined in a jail, prison, or other correctional facility until such 2 administrative remedies as are available are exhausted.”)).) Defendant argues that although 3 Plaintiff states in the Complaint that he filed a detainee grievance on February 24, 2022, 4 he does not indicate how it was resolved. (See Mot. at 3–4.) And although Plaintiff 5 checked the box on his form Complaint answering “Yes” when asked whether he had 6 “previously sought and exhausted all forms of available relief from the proper 7 administrative officials regarding the acts alleged,” (see Compl. at 5), he left blank the 8 following question: “If your answer is “Yes”, briefly describe how relief was sought and 9 the results. If you answer is “No”, briefly explain why administrative relief was not 10 exhausted.” (See id.) Defendant therefore contends that Plaintiff “did not describe how 11 relief was sought and the results, as the instructions dictate.” (See Mot. at 4.) 12 “The Prison Litigation Reform Act of 1995 (PLRA) mandates that an inmate exhaust 13 ‘such administrative remedies as are available’ before bringing suit to challenge prison 14 conditions.” Ross v. Blake, 578 U.S. 632, 635 (2016) (quoting 42 U.S.C. § 1997e(a)). 15 “[T]he PLRA’s exhaustion requirement does not allow a prisoner to file a complaint 16 addressing non-exhausted claims.” Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 17 2010). “[P]risoners are obligated to navigate all a prison’s administrative review process 18 ‘regardless of the fit between a prisoner’s prayer for relief and the administrative remedies 19 possible.’” Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005) (quoting Booth v. Churner, 20 532 U.S. 731, 739 (2001)) Inmates are not required to exhaust administrative remedies, 21 however, when circumstances render administrative remedies effectively unavailable. See 22 Nunez v. Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010); see also Ross, 578 U.S. at 648 23 (“The only limit to § 1997e(a)’s mandate is the one baked into its text: An inmate need 24 exhaust only such administrative remedies as are ‘available.’”) 25 “Failure to exhaust under the PLRA is ‘an affirmative defense the defendant must 26 plead and prove.’” Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014) (en banc) (quoting 27 Jones v. Bock, 549 U.S. 199, 204, 216 (2007)). The Ninth Circuit stated in Albino that “an 28 unenumerated motion under Rule 12(b) is not the appropriate procedural device for pretrial 1 determination of whether administrative remedies have been exhausted under the PLRA.” 2 Id. at 1168. “In the rare event that a failure to exhaust is clear on the face of the complaint, 3 a defendant may move for dismissal under Rule 12(b)(6). Otherwise, defendants must 4 produce evidence proving failure to exhaust in order to carry their burden.” Id. at 1166. 5 Once a defendant carries that burden by showing “there was an available administrative 6 remedy, and that the prisoner did not exhaust that available remedy . . . the burden shifts to 7 the prisoner to come forward with evidence showing that there is something in his 8 particular case that made the existing and generally available administrative remedies 9 effectively unavailable to him.” Id. at 1172. 10 It is not clear in this case from the face of the Complaint that Plaintiff has failed to 11 exhaust his available administrative remedies. Rather, Plaintiff states he has exhausted his 12 administrative remedies. (See Compl. at 5.) He also describes the contents of the grievance 13 he used to exhaust, which contains the same allegations against Defendant Chaplain Lemus 14 as contained in the Complaint. (Id. at 4.) Because this is not a “rare event that a failure to 15 exhaust is clear on the face of the complaint,” Defendant Lemus may not move for 16 dismissal under Rule 12(b)(6). See Albino, 747 F.3d at 1166; see also id. at 1168 17 (“Otherwise, defendants must produce evidence proving failure to exhaust in order to carry 18 their burden.”). The Court therefore DENIES WITHOUT PREJUDICE the Motion to 19 dismiss Plaintiff’s Complaint for failure to exhaust administrative remedies. 20 B. Eighth Amendment Cruel and Unusual Punishment Claim 21 Defendant moves to dismiss the Eighth Amendment cruel and unusual punishment 22 claim from the Complaint on the basis that the Eighth Amendment is not implicated by an 23 alleged denial of the free exercise of religion. (See Mot. at 6–7.) Defendant therefore 24 requests the words “cruel and unusual punishment” be dismissed or stricken from the 25 Complaint. (See id. at 7.) 26 To plausibly allege an Eighth Amendment cruel and unusual punishment claim, a 27 prisoner must allege facts sufficient to plausibly show that officials acted with deliberate 28 indifference to a substantial risk of harm to their health or safety. See Farmer v. Brennan, 1 511 U.S. 825, 847 (1994). There are no such allegations in the Complaint. (See generally 2 Compl.) Rather, Plaintiff merely alleges Defendant Chaplain Lemus denied him his right 3 to engage in prayerful worship of his religious beliefs. Accordingly, Plaintiff has not 4 plausibly alleged an Eighth Amendment cruel and unusual punishment violation, and the 5 Court GRANTS Defendant’s Motion to dismiss the Eighth Amendment claim. 6 C. Injunctive Relief 7 Finally, Defendant seeks dismissal of Plaintiff’s claim for injunctive relief as overly 8 broad and not sufficiently narrowly drawn as required by 18 U.S.C. § 3626(a)(1)(A). (See 9 Mot. at 7.) Plaintiff seeks an injunction preventing Defendants from denying him 10 “religious document(s) for and of prayer(s),” “religious physical items for pray(s) ritual(s)” 11 and “all rights to my religious freedom(s) without prejudice(s).” (See Compl. at 6.) The 12 Court previously dismissed as moot Plaintiff’s claim for injunctive relief in the Court’s 13 screening order. (See ECF No. 8 at 9.) Accordingly, the Court DENIES AS MOOT 14 Defendant’s Motion to dismiss Plaintiff’s claim for injunctive relief. 15 ORDER TO SHOW CAUSE 16 Southern District of California Civil Local Rule 83.11(b) requires parties proceeding 17 pro se to keep both the Court and opposing parties advised as to their current address and 18 provides that “[i]f mail directed to a pro se plaintiff by the Clerk at plaintiff’s last 19 designated address is returned by the Post Office, and if such plaintiff fails to notify the 20 Court and opposing parties within 60 days thereafter of the plaintiff’s current address, the 21 Court may dismiss the action without prejudice for failure to prosecute.” See id.; see also, 22 e.g., Nunez-Martinez v. United States, No. 19-CV-514 DMG (KK), 2020 WL 42457, at *1 23 n.1 (C.D. Cal., Jan. 2, 2020) (holding that plaintiff’s failure to keep the court apprised of 24 his current address in violation of local rules amounted to lack of prosecution). 25 On November 8, 2022, in response to a request from Plaintiff that accompanied his 26 notice of change of address, the Court issued an Order extending Plaintiff’s deadline to file 27 an Opposition until December 6, 2022, and directed the Clerk of Court to send Plaintiff 28 copies of his Complaint, the Defendant’s Motion to Dismiss, and the Court’s prior Orders 1 this case. (See ECF No. 16.) That Order was returned to the Court by the Post Office 2 ||on November 16, 2022, marked: “return to sender/not deliverable as addressed/ unable to 3 || forward.” (See ECF No. 17.) Plaintiff's sixty days under Local Civil Rule 83.11(b) expired 4 January 17, 2023. 5 As of the date of this Order, the Court has received no notice of Plaintiffs current 6 |}address. Accordingly, the Court ORDERS Plaintiff TO SHOW CAUSE within twenty- 7 || one (21) days of the date of this Order why this action should not be dismissed for failure 8 prosecute pursuant to Local Civil Rule 83.11(b). 9 CONCLUSION 10 Based on the foregoing, the Court GRANTS IN PART and DENIES IN PART 11 ||Defendant Chaplain Lemus’ Motion to Dismiss pursuant to Federal Rule of Civil 12 |}Procedure 12(b)(6). Specifically, the Court DENIES WITHOUT PREJUDICE 13 ||Defendant’s Motion to dismiss the Complaint for failure to allege exhaustion of 14 ||administrative remedies, GRANTS Defendant’s Motion to dismiss Plaintiffs Eighth 15 || Amendment cruel and unusual punishment claim, and DENIES AS MOOT Defendant’s 16 || Motion to dismiss Plaintiff's claim for injunctive relief. This action SHALL PROCEED 17 || as to the only remaining claim in the Complaint against the only remaining Defendant to 18 || this action, namely, Plaintiff's RFRA claim against Defendant Chaplain Lemus. 19 The Court also ORDERS Plaintiff TO SHOW CAUSE within twenty-one (21) 20 ||days of the date of this Order why this action should not be dismissed for failure to 21 || prosecute by keeping the Court and Defendant apprised of his current address as required 22 Southern District of California Civil Local Rule 83.11(b). Should Plaintiff fail timely 23 || to respond to this Order, the Court will dismiss this action without prejudice. 24 IT IS SO ORDERED. 25 Dated: January 18, 2023 — 26 [ Od) (2 re 17 Honorable Todd W. Robinson United States District Judge 28