1 JL 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Calvin Clinton Ward, No. CV-24-02468-PHX-JAT (JZB) 10 Plaintiff, 11 v. ORDER 12 Thomas Arbaugh, et al., 13 Defendants.
15 Plaintiff Calvin Clinton Ward, who is confined in the Arizona State Prison Complex 16 (ASPC)-Lewis, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. 17 § 1983 (Doc. 1) and an Application to Proceed In Forma Pauperis (Doc. 2). The Court will 18 join Ryan Thornell, in his official capacity only, as a Defendant; order Defendants Thomas, 19 O’Brien, McKone, and Gulley to answer portions of Counts One and Two of the 20 Complaint; order Defendant Thornell, in his official capacity only, to answer Plaintiff’s 21 claims for injunctive relief; and will dismiss Count Three and the remaining Defendants 22 without prejudice. 23 I. Application to Proceed In Forma Pauperis and Filing Fee 24 The Court will grant Plaintiff’s Application to Proceed In Forma Pauperis. 28 25 U.S.C. § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. 26 § 1915(b)(1). The Court will assess an initial partial filing fee of $25.85. The remainder 27 of the fee will be collected monthly in payments of 20% of the previous month’s income 28 credited to Plaintiff’s trust account each time the amount in the account exceeds $10.00. 1 28 U.S.C. § 1915(b)(2). The Court will enter a separate Order requiring the appropriate 2 government agency to collect and forward the fees according to the statutory formula. 3 II. Statutory Screening of Prisoner Complaints 4 The Court is required to screen complaints brought by prisoners seeking relief 5 against a governmental entity or an officer or an employee of a governmental entity. 28 6 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 7 has raised claims that are legally frivolous or malicious, that fail to state a claim upon which 8 relief may be granted, or that seek monetary relief from a defendant who is immune from 9 such relief. 28 U.S.C. § 1915A(b)(1)–(2). 10 A pleading must contain a “short and plain statement of the claim showing that the 11 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 12 not demand detailed factual allegations, “it demands more than an unadorned, the- 13 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 14 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 15 conclusory statements, do not suffice.” Id. 16 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 17 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 18 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 19 that allows the court to draw the reasonable inference that the defendant is liable for the 20 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 21 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 22 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 23 allegations may be consistent with a constitutional claim, a court must assess whether there 24 are other “more likely explanations” for a defendant’s conduct. Id. at 681. 25 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 26 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 27 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent 28 standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 1 U.S. 89, 94 (2007) (per curiam)). 2 III. Background 3 Plaintiff has another civil rights case relating to the exercise of his religion pending 4 in this Court. Ward v. Shinn, CV-22-00998-PHX-JAT (D. Ariz. 2022). In that case, 5 Plaintiff alleges that Defendants violated his right to exercise his religion and his right to 6 equal protection with respect to requests for religious accommodations to grow a full- 7 length beard and possess various religious items for his personal practice, including, as 8 relevant here, a Hlath. A bench trial is scheduled for February 25, 2025. 9 IV. Complaint 10 In his three-count Complaint, Plaintiff sues Arizona Department of Corrections, 11 Rehabilitation and Reentry (ADCRR) Deputy Assistant Director Rod McKone, Deputy 12 General Counsel Haley Brown, Director of Chaplaincy Services Thomas Arbaugh, 13 Appeals Administrator Julie Bowers, ASPC-Lewis Senior Chaplain William Thomas, 14 Chaplain Dale Gulley, Deputy Warden Joshua Suckle, Assistant Deputy Wardens 15 Raymond O’Brien and Joshua Wilson, and Grievance Coordinator Crystal Pomerantz. 16 Plaintiff asserts claims regarding the exercise of his religion and equal protection under the 17 First and Fourteenth Amendments, the Religious Land Use and Institutionalized Persons 18 Act (RLUIPA), 42 U.S.C. §§ 2000cc-2000cc-5, and 42 U.S.C. § 1985(3). Plaintiff names 19 each Defendant in his or her official and individual capacities. He seeks declaratory, 20 monetary, and injunctive relief, as well as his fees and expenses for this case. 21 Plaintiff alleges the following: 22 Plaintiff began studying Odinism approximately 40 years ago. In 1998 or 1999, he 23 became a devout adherent of Odinism. Odinism, which is sometimes called Asatru, 24 Wotanism, or Heathenism, is an established religion that is officially recognized 25 throughout the federal and state penal systems in the United States. Plaintiff is an official 26 member of the Asatru Religious Community and a recognized member of the Might of 27 Mjollinir Kindred. 28 Plaintiff claims Defendants violated his rights with respect to five requests for 1 religious accommodations. 2 Request for Sacred Land 3 On February 18, 2024, Plaintiff submitted an inmate letter to the ADCRR 4 Chaplaincy asking what procedure needed to be followed to seek approval for sacred land 5 for the Odinist/Asatru faith community to use for group ceremonies. Plaintiff also asked 6 what “information/documentation needed to be provided to get this done.” On March 6, 7 2024, Defendant Thomas responded to Plaintiff’s Inmate Letter, stating that there was no 8 sacred land area for the Odin faith. 9 On March 12, 2024, Plaintiff submitted an informal complaint requesting approval 10 for sacred land for the Odinist/Asatru faith community, similar to what the Native 11 American faith community is provided, to be used for group ceremonies. Plaintiff stated 12 that he had been seeking approval for sacred land for almost two decades. He outlined the 13 details of his sacred land request, including the size and specifics “of what was needed,” 14 and he explained why sacred land was required and attached documentation to support his 15 request. On March 22, 2024, Defendant Thomas denied Plaintiff’s request, stating that he 16 was unable to accommodate the request because “the designation of sacred land within the 17 correctional facility is not a practice that aligns with the tenets of Odinism or the policies 18 outlined in Department Order (DO) 904.” Defendant Thomas also stated that the 19 designation of specific sacred sites within a correctional setting is not a fundamental 20 requirement for practicing Odinism/Asatru and advised Plaintiff to find alternative ways to 21 practice his faith. 22 On March 26, 2024, Plaintiff submitted a grievance. Plaintiff wrote that he sincerely 23 believes that sacred land is essential to perform Odinist/Asatru group ceremonies and 24 complained that the documentation he had submitted to support his request was “clearly 25 being ignored.” Plaintiff pointed out that DO 904 recognized the designation of specific 26 sacred sites within the ADCRR correctional setting for the Native American community, 27 which had sacred land on almost every unit within ADCRR. Plaintiff explained that the 28 Odinist/Asatru faith community had tried alternative ways to perform their group 1 ceremonies but none of the alternatives had worked because they were “constantly 2 inter[r]upted by intruders” and they were still being required to worship with other groups 3 that have “completely different beliefs.” Plaintiff also pointed out that the documentation 4 he had submitted demonstrated that tradition required that Odinists/Asatruars perform their 5 sacred rituals in a group setting on their own sacred land. 6 On April 11, 2024, Defendant O’Brien, through Defendant Pomerantz, denied 7 Plaintiff’s grievance. Defendants stated that the designation of sacred sites within a 8 correctional setting is not a fundamental requirement for practicing Odinism/Asatru and 9 that the lack of a sacred site for the practice of the Odinist faith does not impose a 10 substantial burden on Plaintiff’s religious practice. Plaintiff again was advised to find 11 alternative ways to practice his faith. 12 On April 12, 2024, Plaintiff submitted a first-level grievance appeal. Plaintiff wrote 13 that DO 904 included provisions for sacred land for the Native American community in 14 Arizona prison and that almost every unit in ADCRR had sacred land for Native 15 Americans. Plaintiff stated that he sincerely believes that sacred land is required to perform 16 Odinist/Asatru sacred rituals in a group setting and that he had provided documentation to 17 demonstrate this belief, but the documentation was still being ignored. 18 On May 13, 2024, Defendant Bowers, through Defendant McKone, denied 19 Plaintiff’s grievance appeal. Defendants again stated that the designation of sacred land 20 within the correctional facility is not a practice that aligns with the tenets of Odinism or the 21 policies outlined in DO 904 and that the designation of sacred sites within a correctional 22 setting is not a fundamental requirement for practicing this faith. 23 On May 14, 2024, Plaintiff submitted a second-level grievance appeal. Plaintiff 24 asserted that all the responses he had received throughout the grievance process had been 25 “just cut-and-paste responses,” no one had conducted a “full and fair” investigation, and 26 all decisionmakers had completely ignored the documentation Plaintiff had submitted to 27 support his request. Plaintiff also reiterated the assertions from his previous grievances. 28 On June 13, 2024, Defendant Brown denied Plaintiff’s second-level grievance appeal. 1 On June 22, 2024, Plaintiff and the rest of the Odinist/Asatru faith community at 2 Barchey Unit tried to perform one of their sacred rituals (summer finding) in a group setting 3 on the yard, but they were harassed, photographed, and videotaped by staff. 4 Request to Fast and Vow Silence 5 On January 11, 2024, Plaintiff submitted an inmate letter requesting a religious 6 accommodation to abstain from food and speaking for nine days and nights. Plaintiff 7 outlined the reasons for his request “in complete detail” and stated that the request was 8 “critical to his study and practice of Odinism.” On January 25, 2024, Defendant Gulley 9 responded to Plaintiff’s request, asking Plaintiff to provide “authoritative text that 10 mandates” Plaintiff’s request to abstain from food. Defendant Gulley did not address 11 Plaintiff’s request to vow silence. 12 On January 30, 2024, Plaintiff submitted an informal complaint requesting to fast 13 and vow silence for nine days and nights, four times per year. Plaintiff stated there was no 14 authoritative text in Odinism demonstrating that his request was “mandated” because 15 Odinism “lacked the concept of ‘religious compulsion.’” Plaintiff explained that Odinism 16 emphasized inward spiritual maturity rather than obedience to religious mandates and that 17 it was impossible for him to demonstrate that his request was “required.” Plaintiff stated 18 that it was his “personal belief” that abstaining from food and speaking for nine days and 19 nights would help him in his personal regimen and show his dedication and commitment 20 to Allfather Odinn. Plaintiff also pointed out that DO 904.4.0 supported his request, and 21 nothing in DO 904 required a prisoner to provide an authoritative text demonstrating that 22 a requested religious accommodation is “mandated” to obtain approval for the 23 accommodation. Plaintiff did not receive a response to the informal complaint. 24 On February 21, 2024, Plaintiff submitted a grievance. Plaintiff pointed out that he 25 had never been interviewed by anyone from the ADCRR Chaplaincy to determine his 26 beliefs were sincerely held and rooted in a religious belief, and that he had offered to 27 provide Defendant Gulley with religious documentation that explained the reasons and 28 purpose for his request, but Gulley “had never taken [P]laintiff up on this offer.” 1 On February 23, 2024, Defendant O’Brien, through Defendants Pomerantz and 2 Thomas, denied Plaintiff’s grievance. Defendants stated that all religious accommodations 3 had to be supported by a religious text supporting the accommodation that Plaintiff wished 4 to observe. 5 On February 29, 2024, Plaintiff submitted a first-level grievance appeal. Plaintiff 6 reiterated the assertions in his informal complaint and grievance. On March 24, 2024, 7 Defendant Bowers, through Defendant McKone, denied the grievance appeal. Defendants 8 stated that all religious accommodations had to be supported by religious text and that 9 Plaintiff had failed to meet these standards. Defendants “acknowledged the importance 10 and significance” of Plaintiff’s request to fast and vow silence, but they denied his request 11 because there were no “strict requirements for fasting or vowing silence for 9 days in 12 mainstream Odinism.” Defendants also denied the request “for reasons of inmate health, 13 facility security, communication, and dietary standards.” 14 On March 26, 2024, Plaintiff submitted a second-level grievance appeal. Plaintiff 15 reiterated his reasons for appealing the denial of his request and “offered to have medical 16 monitor his condition as much as they liked.” Plaintiff stated that he could still 17 communicate with ADCRR administration, staff, and medical staff with pen and paper 18 and/or through his tablet. On May 9, 2024, Defendant Brown denied Plaintiff’s request to 19 fast for reasons of inmate health, safety, facility security, and dietary standards. Defendant 20 Brown did not address Plaintiff’s request to vow silence. 21 Request for Traditional Food and Drink 22 On April 8, 2024, Plaintiff submitted an inmate letter seeking to make arrangements 23 for the Odinist/Asatru faith community to purchase traditional food and drink from an 24 approved ADCRR vendor for their four major feast days: Ostara, Midyear, Winter Finding, 25 and Yule. Plaintiff attached a religious calendar to support his request. On April 29, 2024, 26 Defendant Gulley responded to Plaintiff’s inmate letter, stating that if Plaintiff wished to 27 purchase religious items outside of what was approved for a group ceremony, he had to 28 follow the property request procedure. 1 On April 29, 2024, Plaintiff submitted an informal complaint making the same 2 request to purchase traditional food and drink. Plaintiff pointed out that the Jewish and 3 Muslim faith communities were provided with traditional food and drink for their major 4 holy days. Plaintiff stated that he was “open to the idea of having the ADCRR kitchen 5 cooking and providing food” for the four major Odinist/Asatru feast days, as long as the 6 food provided was “traditional.” On May 13, 2024, Defendant Thomas responded to 7 Plaintiff’s informal complaint, stating that the informal complaint was being reviewed at 8 the Central Office by the faith services administrator. 9 On May 20, 2024, Plaintiff submitted a grievance again requesting to make 10 arrangements to purchase traditional food and drink for feast days and listed the food and 11 drink he sought to purchase. On June 1, 2024, Defendant Wilson, through Defendant 12 Pomerantz, responded to Plaintiff’s grievance, stating that Plaintiff’s request had been 13 forwarded to the faith services administrator for review and that a response would be 14 provided once a decision had been made. 15 On June 13, 2024, Plaintiff submitted a first-level grievance appeal. On July 9, 16 2024, Defendant Bowers denied the grievance appeal because, “per Defendant Arbaugh,” 17 the matter was currently being litigated. Defendant Bowers quoted Defendant Arbaugh as 18 saying that Plaintiff had declined a meeting with Arbaugh and ADCRR legal 19 representatives when they sought a resolution outside of court on May 16, and that Arbaugh 20 could speak with their attorney and “see where [they were] in the process,” but Arbaugh 21 was “not prepared to offer anything new at this time.” 22 On July 10, 2024, Plaintiff submitted a second-level grievance appeal. Plaintiff 23 wrote that Defendant Arbaugh’s statement that Plaintiff had declined a meeting with him 24 was untrue and that he had declined to meet with Arbaugh and ADCRR’s attorney to try 25 to resolve matters that were pending in federal court that had nothing to do with the issue 26 at hand, that is, making arrangements to purchase traditional food and drink. On August 27 13, 2024, Defendant Brown denied Plaintiff’s grievance appeal because Plaintiff declined 28 to participate in a meeting with Defendant Arbaugh, and Plaintiff’s proposed resolution 1 was “currently being litigated.” 2 Request for Group Ceremonial Religious Items and Communion Supplies 3 On February 18, 2024, Plaintiff submitted an inmate letter to the ADCRR 4 Chaplaincy explaining that he wanted to seek approval for numerous non-approved group 5 ceremonial religious items and communion supplies to add to the approved items list, so 6 they could be purchased and/or donated by prisoners and their family and friends. Plaintiff 7 asked the ADCRR Chaplaincy what procedure needed to be followed and what 8 documentation needed to be provided to “get this done.” On March 6, 2024, Defendant 9 Thomas responded to Plaintiff’s inmate letter, outlining the process to have group 10 ceremonial items donated. Defendant Thomas did not address Plaintiff’s request to outline 11 the procedure to have group ceremonial items and communal supplies added to the 12 approved items list or Plaintiff’s question as to what information or documentation needed 13 to be provided. 14 On April 1, 2024, Plaintiff submitted another inmate letter to the ADCRR 15 Chaplaincy. Plaintiff explained that he had been trying to get religious items and 16 communion supplies added to the approved items list for group ceremonial use for the 17 Odinist/Asatru faith community for nearly two decades. Plaintiff also explained that there 18 were only four group ceremonial religious items on the approved items list for the Asatru 19 religion, there were no communion supplies, and there were no approved items for 20 Odinism, although Odinism and Asatru are “the exact same religion.” Plaintiff attached an 21 eight-page list describing the group ceremonial items that he was seeking to add to the 22 approved items list. Plaintiff stated that the requested religious items were essential to 23 perform Odinist/Asatru sacred rituals (Blot, Sumbel, Feast, and various other rites), and 24 without them, Odinist/Asatru group ceremonies are effectively impracticable. Plaintiff 25 offered to participate in an interview with the ADCRR Chaplaincy to explain the 26 importance of Odinist/Asatru rituals and the requested religious items. He also offered to 27 provide books, articles, and other documentation to support his requests. 28 On April 8, 2024, Defendant Thomas responded to Plaintiff’s inmate letter, advising 1 Plaintiff that his letter and request had been forwarded to the Director of Chaplaincy 2 Services for further review and consideration. 3 On April 29, 2024, Plaintiff submitted an informal complaint. On May 13, 2024, 4 Defendant Thomas responded to Plaintiff’s informal complaint, stating that the complaint 5 had been received and reviewed at the Central Office by the faith services administrator. 6 On May 20, 2024, Plaintiff submitted a grievance. On June 11, 2024, Defendant 7 Wilson, through Defendant Pomerantz, responded to the grievance, stating that Plaintiff’s 8 request had been forwarded to the faith services administrator for review and that a 9 response would be provided when a decision was made. 10 On June 13, 2024, Plaintiff submitted a first-level grievance appeal. On July 9, 11 2024, Defendant Bowers denied Plaintiff’s appeal because, per Defendant Arbaugh, the 12 matter was currently being litigated. Defendant Arbaugh also stated that Plaintiff had 13 declined a meeting with Arbaugh and ADCRR’s legal counsel. 14 On July 10, 2024, Plaintiff submitted a second-level grievance appeal. Plaintiff 15 wrote that Defendant Arbaugh’s statements that the matter was being litigated and that 16 Plaintiff had declined a meeting with him were “lies.” Plaintiff stated that the issues being 17 litigated in court had to do with individual religious items needed for his individual 18 religious practice, and the issue pertaining to his grievance appeal was group ceremonial 19 items and communion supplies for group practice. 20 On August 8, 2024, Defendant Brown denied Plaintiff’s second-level grievance 21 appeal because Plaintiff declined to participate in a meeting with Defendant Arbaugh and 22 because the “proposed resolution” was currently being litigated. 23 Request to Wear Religious Headwear 24 On April 15, 2024, Plaintiff submitted an inmate letter requesting approval to wear 25 his “Hlath” (religious headwear) at all times in accordance with his religious beliefs. 26 Plaintiff stated that he sincerely believes that he is required to wear his Hlath at all times 27 to show his dedication and commitment to his faith and his Gods. Plaintiff offered to 28 participate in an interview to resolve any questions. On May 1, 2024, Defendant Gulley 1 responded to Plaintiff’s request, stating there was “no approved headwear for the Odinist 2 faith group.” Defendant Gulley forwarded Plaintiff’s request to Defendant Thomas. 3 During this time, Plaintiff showed Defendant Gulley paperwork demonstrating that he had 4 been approved to wear religious headwear years earlier as an adherent of Asatru. Plaintiff 5 also showed Defendant Gulley paperwork demonstrating that Odinism and Asatru are the 6 same religion. 7 On May 14, 2024, Plaintiff submitted an informal complaint, stating that he had 8 been approved to wear a Hlath almost two decades earlier and attached supporting 9 documentation. Plaintiff also explained that Odinism and Asatru are the same religion and 10 that Astruars have approved headwear called a “Hlath.” Plaintiff pointed out that DO 11 904.5.6 supported his request. He also stated that he sincerely believes he is required to 12 wear his Hlath at all times. 13 On May 30, 2024, Defendant Thomas denied Plaintiff’s informal complaint, stating 14 there was no approved headwear for the Odinism faith at that time. Defendant Thomas 15 advised Plaintiff that all property requests for Odinism were being reviewed at the Central 16 Office. 17 On June 4, 2024, Plaintiff submitted a grievance. Plaintiff explained that he had 18 been approved to wear a Hlath 17 years earlier and that a Hlath was an approved religious 19 item for his faith. Plaintiff explained that Asatru and Odinism are the same religion and 20 that he had submitted documentation to the ADCRR Chaplaincy to demonstrate this. 21 Plaintiff stated that all religions with approved headwear were permitted to wear their 22 headwear at all times, but he had been told numerous times by Barchey Unit staff, and the 23 Chaplaincy, that he could not wear his. 24 On June 18, 2024, Defendant Suckle, through Defendant Pomerantz, stated that after 25 review of DO 904.5.6., the Odinist faith was “not listed as a religion with [] approved 26 headwear.” Plaintiff was advised that all property items for the Odinist faith were being 27 reviewed by the Central Office. 28 On June 20, 2024, Plaintiff submitted a first-level grievance appeal. On July 15, 1 2024, Defendant Bowers, through Defendant Arbaugh, agreed that the Hlath was on the 2 approved religious items list but that it was not addressed in DO 904.5.6. Defendants stated 3 that “because of this problem,” the Chaplains and others “were only following policy as it 4 is written.” Defendants advised Plaintiff that they were in the process of making significant 5 changes and that it was reasonable to allow Plaintiff to wear his headwear, just as other 6 faith traditions were permitted to wear theirs. 7 On August 1, 2024, Plaintiff submitted a second-level grievance appeal because 8 Defendant Arbaugh’s response “left several questions unanswered.” Plaintiff proposed as 9 a resolution that the Hlath be placed on the approved items list for the religion of Odinism; 10 that Plaintiff be permitted to purchase and possess a Hlath without having to produce 11 documentation of a religious requirement; that he be permitted to wear a Hlath at all times; 12 that he be permitted to wear his homemade Hlath until he could purchase a new one; and 13 that ADCRR staff be ordered to return his homemade Hlath to him. 14 On August 30, 2024, Defendants Brown and Arbaugh stated that the Hlath was an 15 approved item for individuals who identify with the Odinist tradition, that the purchase and 16 possession of a Hlath had already been reviewed and approved, and that individuals who 17 identify with the Odinist tradition were now permitted to wear their faith-based headwear 18 as outlined for other traditions. Defendants “declined to state or agree” to Plaintiff’s 19 proposed resolution, without explaining why. According to Plaintiff, the Hlath has not 20 been added to the approved items list and DO 904.5.6 still does not list Odinism/Asatru as 21 a religion with approved religious headwear. 22 Plaintiff alleges that all Defendants violated his right to free exercise of religion and 23 denied him equal protection of the law by denying him a reasonable opportunity to pursue 24 his faith compared to prisoners of other faiths. 25 With respect to his conspiracy claims, Plaintiff alleges that all Defendants 26 “conspired to and did deprive [him of] equal protection of the laws, including the right to 27 free exercise of religion, based upon [his] members[hip in] the Odinisht/Asatru faith 28 community.” Plaintiff claims Defendants’ “agreements and concerted actions were 1 designed to discourage” him from practicing his religion, including, but not limited to, 2 knowingly and intentionally refusing to conduct a full and fair investigation, ignoring 3 documentation Plaintiff offered, and “making [his] request not tenable.” 4 V. Discussion of Complaint 5 A. Section 1983 Claims 6 1. Official Capacity Claims 7 A suit against a defendant in his or her official capacity represents only another way 8 of pleading an action against the entity that employs the defendant. Kentucky v. Graham, 9 473 U.S. 159, 166 (1985). That is, the real party in interest is not the named defendant, but 10 the entity that employs the defendant. Id. A claim against an individual in his or her 11 official capacity is “only another way of pleading an action against an entity of which an 12 officer is an agent.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55 (1978). “To 13 bring a claim against an individual in his official capacity, a plaintiff must show that the 14 constitutional deprivation resulted from the entity’s policy, custom, or practice. Kentucky 15 v. Graham, 473 U.S. at 166; Monell, 326 U.S. at 694. 16 “[A] suit against a state official in his or her official capacity is not a suit against the 17 official but rather is a suit against the official’s office. As such, it is no different from a 18 suit against the State itself.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) 19 (internal citation omitted). Plaintiff cannot maintain a lawsuit for damages against 20 Defendants in their official capacities. See Hafer v. Melo, 502 U.S. 21, 27 (1991) (“State 21 officers sued for damages in their official capacity are not ‘persons’ for purposes of the suit 22 because they assume the identity of the government that employs them.”); see also 23 Gilbreath v. Cutter Biological, Inc., 931 F.2d 1320, 1327 (9th Cir. 1991) (“[A] state is not 24 a ‘person’ for purposes of section 1983. Likewise[,] ‘arms of the State’ such as the Arizona 25 Department of Corrections are not ‘persons’ under section 1983.”) (citation omitted)). 26 Plaintiff may maintain a lawsuit against Defendants in their official capacities for 27 prospective declaratory and injunctive relief because under the doctrine set forth in Ex 28 Parte Young, 209 U.S. 123 (1908), the Eleventh Amendment “does not . . . bar actions for 1 prospective declaratory or injunctive relief against state officers in their official capacities 2 for their alleged violations of federal law.” Coal. to Defend Affirmative Action v. Brown, 3 674 F.3d 1128, 1134 (9th Cir. 2012). But not all declaratory and injunctive relief is 4 prospective. The exception is intended to prevent continuing violations of federal law and 5 “does not permit judgments against state officers declaring that they violated federal law 6 in the past.” P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 7 (1993); see also Hindes v. FDIC, 137 F.3d 148, 166 (3d Cir. 1998) (“The type of 8 prospective relief permitted under Young is relief intended to prevent a continuing violation 9 of federal law.”). 10 Here, Plaintiff is seeking retrospective, rather than prospective, declaratory relief. 11 The Court will dismiss Plaintiff’s claim for declaratory relief. 12 As discussed below, the Court will join ADCRR Director Ryan Thornell, in his 13 official capacity only, for the sole purpose of answering Plaintiff’s claims for injunctive 14 relief. Plaintiff’s official-capacity claims against the remaining Defendants are duplicative 15 of the official-capacity claim against Thornell. The Court will therefore dismiss the 16 official-capacity claims against Defendants McKone, Brown, Arbaugh, Bowers, Thomas, 17 Gulley, Suckle, O’Brien, Wilson, and Pomerantz. 18 2. First Amendment and RLUIPA Claims 19 a. Legal Standards 20 RLUIPA prohibits the government from imposing a substantial burden on the 21 religious exercise of an institutionalized person unless the government establishes that the 22 burden furthers a “compelling governmental interest” and does so by “the least restrictive 23 means.” 42 U.S.C. § 2000cc-1(a)(1) - (2). Therefore, to state a claim under RLUIPA, a 24 plaintiff must allege facts to support that government action has substantially burdened the 25 exercise of the plaintiff’s religion without a compelling government interest and by the 26 least restrictive means. See Guam v. Guerrero, 290 F.3d 1210, 1222 (9th Cir. 2002). “[A] 27 ‘substantial burden’ on ‘religious exercise’ must impose a significantly great restriction or 28 onus upon such exercise.” Warsoldier v. Woodford, 418 F.3d 989, 995 (9th Cir. 2005) 1 (quotations omitted). Thus, an institutionalized person’s religious exercise is substantially 2 burdened “‘where the state . . . denies [an important benefit] because of conduct mandated 3 by religious belief, thereby putting substantial pressure on an adherent to modify his 4 behavior and to violate his belief.’” Id. 5 In addition, “[i]nmates clearly retain protections afforded by the First Amendment, 6 including its directive that no law shall prohibit the free exercise of religion.” O’Lone v. 7 Estate of Shabazz, 482 U.S. 342, 348 (1987) (internal quotations and citations omitted). 8 However, free exercise rights are “necessarily limited by the fact of incarceration, and may 9 be curtailed in order to achieve legitimate correctional goals or to maintain prison security.” 10 Id. To state a First Amendment free exercise claim, a plaintiff must allege that a defendant 11 substantially burdened his religious practice without a justification reasonably related to 12 legitimate penological interests. Shakur v. Schriro, 514 F.3d 878 (9th Cir. 2008); Malik v. 13 Brown, 16 F.3d 330, 333 (9th Cir. 1994); Warsoldier, 418 F.3d at 995 (citing Thomas v. 14 Review Bd. of the Ind. Employment Sec. Div., 450 U.S. 707, 717-18 (1981) (pressure on 15 exercise must be substantial)); Canell v. Lightner, 143 F.3d 1210, 1215 (9th Cir. 1998) 16 (same). The religious practice or exercise at issue must be rooted in sincerely held religious 17 belief and not in “‘purely secular’ philosophical concerns.” Malik, 16 F.3d at 333 (internal 18 citation omitted). 19 b. Sacred Land 20 Liberally construed, Plaintiff has stated a First Amendment and RLUIPA claim in 21 Count One against Defendants Thomas, O’Brien, and McKone with respect to his request 22 for sacred land for group ceremonies. The Court will require Defendants Thomas, O’Brien, 23 and McKone to answer this portion of Count One. Pursuant to Rule 19(a)(1)(A) of the 24 Federal Rules of Civil Procedure, the Court will join Ryan Thornell, in his official capacity 25 only, as a Defendant for the sole purpose of responding to Plaintiff’s request for injunctive 26 relief and will require Thornell to answer this portion of Count One. 27 c. Fasting and Vowing Silence 28 Liberally construed, Plaintiff has stated a First Amendment and RLUIPA claim in 1 Count One against Defendants Gulley, O’Brien, Thomas, and McKone with respect to his 2 request to fast and vow silence. The Court will require Defendants Gulley, O’Brien, 3 Thomas, McKone, in their individual capacities, and Thornell, in his official capacity only, 4 to answer this portion of Count One. 5 d. Hlath 6 As noted, in Plaintiff’s other pending civil rights case, Plaintiff requested to be 7 allowed to wear a Hlath. Because that issue is already being litigated, Plaintiff cannot 8 assert the same claim in a new case. The Court will therefore dismiss the portion of Count 9 One that pertains to Plaintiff’s request to be permitted to wear a Hlath. 10 e. Traditional Food and Drinks and Group Ceremonial Items 11 With respect to Plaintiff’s requests to be able to purchase traditional food and drink 12 for major feast days, Plaintiff alleges that Defendant Gulley responded to Plaintiff’s inmate 13 letter, stating that if Plaintiff wished to purchase religious items outside of what was 14 approved for a group ceremony, he had to follow the property request procedure. Plaintiff 15 asserts that Defendant Thomas responded to Plaintiff’s inmate letter and informal 16 complaint and stated that his requests had been forwarded to the faith services administrator 17 for review, and a response would be provided when a decision was made. Plaintiff claims 18 Defendant Wilson responded to Plaintiff’s grievance, stating that Plaintiff’s request had 19 been forwarded to the faith services administrator for review and that a response would be 20 provided when a decision was made. Plaintiff does not allege that Defendants Gulley, 21 Thomas, and Wilson denied his request; rather, he alleges that Gulley merely informed 22 Plaintiff that he had to follow the property request procedure to purchase religious items 23 beyond what was already approved for group ceremonies, and Defendants Thomas and 24 Wilson only told Plaintiff that his request was being reviewed. Plaintiff’s allegations do 25 not support that Defendants Gulley, Thomas, and Wilson’s responses, in themselves, 26 substantially burdened his religious exercise. 27 Likewise, with respect to Plaintiff’s request to add various religious items to the 28 approved items list for group ceremonies, Plaintiff alleges that Defendant Gulley told him 1 that he had to follow the property request procedure to purchase religious items outside of 2 what was approved for a group ceremony; Defendant Thomas told Plaintiff that his 3 informal complaint was being reviewed at the Central Office; and Defendant Wilson told 4 Plaintiff that his request had been forwarded to the faith services administrator for review 5 and that a response would be provided once a decision had been made. Plaintiff does not 6 allege that Defendants Gulley, Thomas, and Wilson denied his requests. Plaintiff therefore 7 fails to allege facts to support that Defendants Gulley, Thomas, and Wilson substantially 8 burdened his religious practice. 9 Plaintiff’s allegations indicate that the requests for traditional food and drink and to 10 add ceremonial items for group ceremonies were ultimately denied because Defendant 11 Arbaugh erroneously believed that the requests were already being litigated in Plaintiff’s 12 other pending civil rights case, and that Plaintiff had declined to meet with Arbaugh and 13 ADCRR’s legal counsel about the issues. Defendant Brown denied Plaintiff’s second-level 14 grievance appeals because Plaintiff declined to participate in a meeting with Defendant 15 Arbaugh, and Plaintiff’s proposed resolution was “currently being litigated.” Plaintiff’s 16 allegations do not support that Defendants Arbaugh and Brown were even aware of what 17 Plaintiff had actually requested. Defendants Arbaugh and Brown’s responses might 18 amount to negligence with respect to their failure to investigate Plaintiff’s grievances, but 19 that is insufficient to state a § 1983 claim. See Lewis v. Mitchell, 416 F. Supp. 2d 935, 944 20 (S.D. Cal. 2005) (“Plaintiff must assert more than negligence to state a valid § 1983 claim 21 for the violation of his Free Exercise rights. Instead, Plaintiff must allege conscious or 22 intentional acts that burden his free exercise of religion.”). The Court will therefore dismiss 23 the portions of Count One pertaining to Plaintiff’s requests to be able to purchase 24 traditional food and drink and to add various religious items and communion supplies to 25 the approved items list for group ceremonies. 26 f. Grievance Procedure 27 Prisoners have a First Amendment right to file prison grievances, Rhodes v. 28 Robinson, 408 F.3d 559, 567 (9th Cir. 2005), but prisoners do not have “‘a separate 1 constitutional entitlement to a specific prison grievance procedure,” Ramirez v. Galaza, 2 334 F.3d 850, 860 (9th Cir. 2003) (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 3 1988)). Accordingly, prisoners cannot bring due process challenges to the processing of 4 their grievances. See Ramirez, 334 F.3d at 860; see also McRoy v. Roe, 509 F. App’x 660, 5 660 (9th Cir. 2013) (affirming dismissal of claims “arising from defendants’ processing of 6 and response to his grievances because prisoners do not have a ‘constitutional entitlement 7 to a specific prison grievance procedure’”) (quoting Ramirez, 334 F.3d at 860)). 8 Plaintiff’s allegations against Defendants Pomerantz and Bowers pertain only to 9 their purely administrative role in handling Plaintiff’s grievances. Plaintiff cannot state a 10 claim on this basis. The Court will therefore dismiss Defendants Pomerantz and Bowers. 11 3. Equal Protection 12 Generally, “[t]o state a claim . . . for a violation of the Equal Protection Clause . . . [,] 13 a plaintiff must show that the defendants acted with an intent or purpose to discriminate 14 against the plaintiff based upon membership in a protected class.” Barren v. Harrington, 15 152 F.3d 1193, 1194 (9th Cir. 1998). The United States Supreme Court has also recognized 16 “successful equal protection claims brought by a ‘class of one,’ where the plaintiff alleges 17 that [he] has been intentionally treated differently from others similarly situated and that 18 there is no rational basis for the difference in treatment.” Village of Willowbrook v. Olech, 19 528 U.S. 562, 564 (2000); see also SeaRiver Maritime Fin. Holdings, Inc. v. Mineta, 309 20 F.3d 662, 679 (9th Cir. 2002). 21 For the reasons set forth above with respect to Plaintiff’s First Amendment and 22 RLUIPA claims, the Court will require Defendants Gulley, Thomas, O’Brien, McKone, in 23 their individual capacities, and Thornell, in his official capacity only, to answer the portions 24 of Count Two pertaining to Plaintiff’s requests for sacred land for group ceremonies and 25 to fast and vow silence. 26 The Court will dismiss Plaintiff’s equal protection claim regarding his request to 27 wear a Hlath as duplicative of his claim in CV-22-00998. Finally, for the reasons discussed 28 above, Plaintiff cannot state an equal protection claim against Defendants Gulley, Thomas, 1 Wilson, Arbaugh, and Brown based on his requests to be able to purchase traditional food 2 and drink and to add various religious items and communion supplies to the approved items 3 list for group ceremonies. The Court will therefore dismiss these portions of Count Two. 4 B. Section 1985(3) Claim 5 To state a claim under § 1985(3), a plaintiff must allege facts to support (1) the 6 existence of a conspiracy, (2) to deprive him of the equal protection of the laws, or of equal 7 privileges and immunities under the laws, (3) an act by one of the conspirators in 8 furtherance of the conspiracy, and (4) a personal injury, property damage or a deprivation 9 of any right or privilege of a citizen of the United States. Griffin v. Breckenridge, 403 U.S. 10 88, 102-103 (1971) (42 U.S.C. § 1985(3) covered group of Black citizens who were 11 assaulted by a group of White citizens who mistakenly believed the plaintiffs were civil 12 rights workers). “A claim under this section must allege facts to support the allegation that 13 defendants conspired together. A mere allegation of conspiracy without factual specificity 14 is insufficient.” Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 626 (9th Cir. 1988). 15 Additionally, there must be some racial or other class-based, invidiously 16 discriminatory animus behind the conspirators’ action. Id. To make a showing of class- 17 based animus “the plaintiff must be a member of a class that requires special federal 18 assistance in protecting its civil rights.” Gerritsen v. de la Madrid Hurtado, 819 F.2d 1511, 19 1519 (9th Cir. 1985). That is, a plaintiff must allege that he is a member of a class of 20 persons that the courts have designated as a suspect or quasi-suspect class “requiring more 21 exacting scrutiny or that Congress has indicated through legislation that the class required 22 special protection.” Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th Cir. 1992) 23 (“Generally, our rule is that section 1985(3) is extended beyond race only when the class 24 in question can show that there has been a governmental determination that its members 25 require and warrant special federal assistance in protecting their civil rights.” (internal 26 citations and quotations omitted)). 27 Plaintiff has alleged no facts to support the existence of a conspiracy. The Court 28 will therefore dismiss Count Three. 1 VI. Warnings 2 A. Release 3 If Plaintiff is released while this case remains pending, and the filing fee has not 4 been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court 5 that he intends to pay the unpaid balance of his filing fee within 120 days of his release or 6 (2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may 7 result in dismissal of this action. 8 B. Address Changes 9 Plaintiff must file and serve a notice of a change of address in accordance with Rule 10 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 11 relief with a notice of change of address. Failure to comply may result in dismissal of this 12 action. 13 C. Copies 14 Because Plaintiff is currently confined in an Arizona Department of Corrections, 15 Rehabilitation & Reentry Complex or Private Facility subject to General Order 23-19, 16 Plaintiff can comply with Federal Rule of Civil Procedure 5(d) by including, with every 17 document Plaintiff files, a certificate of service stating that this case is subject to General 18 Order 23-19 and indicating the date the document was delivered to prison officials for filing 19 with the Court. Plaintiff is not required serve Defendants with copies of every document 20 or provide an additional copy of every document for the Court’s use. 21 If Plaintiff is transferred to a facility other than one subject to General Order 23-19, 22 Plaintiff will be required to: (a) serve Defendants, or counsel if an appearance has been 23 entered, a copy of every document Plaintiff files, and include a certificate stating that a 24 copy of the filing was served; and (b) submit an additional copy of every filing for use by 25 the Court. See Fed. R. Civ. P. 5(a) and (d); LRCiv 5.4. Failure to comply may result in 26 the filing being stricken without further notice to Plaintiff. 27 D. Possible Dismissal 28 If Plaintiff fails to timely comply with every provision of this Order, including these 1 warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 2 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure 3 to comply with any order of the Court). 4 IT IS ORDERED: 5 (1) Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 2) is granted. 6 (2) As required by the accompanying Order to the appropriate government 7 agency, Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing fee 8 of $25.85. 9 (3) Pursuant to Rule 19(a)(1)(A) of the Federal Rules of Civil Procedure, Ryan 10 Thornell, in his official capacity only, is joined as a Defendant. 11 (4) Count Three is dismissed without prejudice. 12 (5) Defendants Arbaugh, Pomerantz, Bowers, Brown, Wilson, and Suckle are 13 dismissed without prejudice. Plaintiff’s official-capacity claims against Defendants 14 Thomas, O’Brien, McKone, and Gulley are dismissed without prejudice. 15 (6) Plaintiff’s request for declaratory relief is dismissed. 16 (7) If Plaintiff attempts to amend to address the shortcomings identified in this 17 Order, the amended complaint must be retyped or rewritten in its entirety on the court- 18 approved form for filing a civil rights complaint by a prisoner (including those claims and 19 Defendants that were not dismissed), and Plaintiff must comply with Rule 15 of the Federal 20 Rules of Civil Procedure and Rule 15.1 of the Local Rules of Civil Procedure. 21 (8) Defendants Thomas, O’Brien, McKone, and Gulley, in their individual 22 capacities, must answer the identified portions of Counts One and Two, as set forth herein. 23 Defendant Thornell, in his official capacity only, must answer Plaintiff’s claims for 24 injunctive relief. 25 (9) The Clerk of Court must send Plaintiff this Order, and a copy of the Marshal’s 26 Process Receipt & Return form (USM-285) and Notice of Lawsuit & Request for Waiver 27 of Service of Summons form for Defendants Thornell, Thomas, O’Brien, McKone, and 28 Gulley. 1 (10) Plaintiff must complete1 and return the service packet to the Clerk of Court 2 within 21 days of the date of filing of this Order. The United States Marshal will not 3 provide service of process if Plaintiff fails to comply with this Order. 4 (11) If Plaintiff does not either obtain a waiver of service of the summons or 5 complete service of the Summons and Complaint on a Defendant within 90 days of the 6 filing of the Complaint or within 60 days of the filing of this Order, whichever is later, the 7 action may be dismissed as to each Defendant not served. Fed. R. Civ. P. 4(m); LRCiv 8 16.2(b)(2)(B)(ii). 9 (12) The United States Marshal must retain the Summons, a copy of the 10 Complaint, and a copy of this Order for future use. 11 (13) The United States Marshal must notify Defendants of the commencement of 12 this action and request waiver of service of the summons pursuant to Rule 4(d) of the 13 Federal Rules of Civil Procedure and Rule 4(j)(2) of the Federal Rules of Civil Procedure 14 and Rule 4.1(c) of the Arizona Rules of Civil Procedure. The notice to Defendants must 15 include a copy of this Order. 16 (14) A Defendant who agrees to waive service of the Summons and Complaint 17 must return the signed waiver forms to the United States Marshal, not the Plaintiff, within 18 30 days of the date of the notice and request for waiver of service pursuant to Federal 19 Rule of Civil Procedure 4(d)(1)(F) to avoid being charged the cost of personal service. 20 (15) The Marshal must immediately file signed waivers of service of the 21 summons. If a waiver of service of summons is returned as undeliverable or is not returned 22 by a Defendant within 30 days from the date the request for waiver was sent by the Marshal, 23 the Marshal must: 24 (a) personally serve copies of the Summons, Complaint, and this Order 25 upon Defendant pursuant to Rule 4(e)(2) of the Federal Rules of Civil
26 1 If a Defendant is an officer or employee of the Arizona Department of Corrections, 27 Rehabilitation & Reentry, Plaintiff must list the address of the specific institution where the officer or employee works. Service cannot be effected on an officer or employee at the 28 Central Office of the Arizona Department of Corrections, Rehabilitation & Reentry unless the officer or employee works there. 1 Procedure; and 2 (b) — within 10 days after personal service is effected, file the return of 3 service for Defendant, along with evidence of the attempt to secure a 4 waiver of service of the summons and of the costs subsequently 5 incurred in effecting service upon Defendant. The costs of service 6 must be enumerated on the return of service form (USM-285) and 7 must include the costs incurred by the Marshal for photocopying 8 additional copies of the Summons, Complaint, or this Order and for 9 preparing new process receipt and return forms (USM-285), if 10 required. Costs of service will be taxed against the personally served 11 Defendant pursuant to Rule 4(d)(2) of the Federal Rules of Civil 12 Procedure, unless otherwise ordered by the Court. 13 (16) Defendants Thornell, Thomas, O’Brien, McKone, and Gulley must answer 14 the Complaint or otherwise respond by appropriate motion within the time provided by the 15 | applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure. 16 (17) Any answer or response must state the specific Defendant by name on whose 17 | behalf it is filed. The Court may strike any answer, response, or other motion or paper that 18 | does not identify the specific Defendant by name on whose behalf it is filed. 19 (18) This matter is referred to Magistrate Judge John Z. Boyle pursuant to Rules 20 | 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as 21} authorized under 28 U.S.C. § 636(b)(1). 22 Dated this 22nd day of November, 2024. 23 24 A 25 James A. Teilborg 26 Senior United States District Judge 27 28