Opinion
Case No. CV02-384-S-BLW.
December 19, 2002
ORDER
Pending before the Court is the review of Plaintiff's Prisoner Civil Rights Complaint (Complaint) to determine whether Plaintiff is entitled to proceed in forma pauperis and whether the allegations of the Complaint are subject to summary dismissal under 28 U.S.C. §§ 1915(c)(2). Plaintiff also has two motions pending before this Court: (1) Motion to Proceed In Forma Pauperis (Docket No. 1); and (2) Motion for Summary Judgment (Docket No. 9).
Having carefully reviewed the record, and otherwise being fully informed, the Court enters the following Order.
I. REVIEW OF COMPLAINT
A. Background
Plaintiff alleges that he was forced to attend an Alcoholics Anonymous (AA) program in prison as a prerequisite to being considered for parole eligibility. He claims that he was ridiculed in the program and forced to wear a sign around his neck. He alleges that the program requirement infringes upon his First Amendment rights, and violates his Eighth Amendment right to be free from cruel and unusual punishment.
B. Applicable Law and Discussion
The Court is required to review complaints seeking relief against a governmental entity or an officer or employee of a governmental entity to determine whether summary dismissal is appropriate. 28 U.S.C. § 1915. The Court must dismiss a complaint or any portion thereof which states frivolous or malicious claim, which fails to state a claim upon which relief may be granted, or which seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).
Plaintiff's current Complaint fails to state a claim upon which relief can be granted. Plaintiff shall be given leave to file an amended complaint, following the guidelines set forth herein.
First, Plaintiff's facts do not state a cognizable Eighth Amendment violation. To state a claim under the Eighth Amendment, Plaintiff must show that he is incarcerated under conditions posing a substantial risk of serious harm. Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 1977 (1994). Verbal harassment, abuse and threats, without more, are not sufficient to state a constitutional deprivation under § 1983. Oltarzewski v. Ruggiero, 830 F.2d 136 (9th Cir. 1987).
This claim should be omitted from his amended complaint unless Plaintiff has enough facts to show a pattern of calculated harassment, which means multiple incidents of harassment. Inmates have a constitutional right to be free from "calculated harassment unrelated to prison needs." Hudson v. Palmer, 468 U.S. 517, 530, 104 S.Ct. 3194, 3202 (1984). While calculated harassment is actionable, a plaintiff must set forth facts showing something more than routine acts to prevail on such a cause of action.
Plaintiff also claims that the twelve step program infringes on his First Amendment rights. The First Amendment free exercise of religion clause absolutely protects the right to believe in a religion; it does not absolutely protect all conduct associated with a religion. Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900 (1940). Inmates clearly retain their free exercise of religion rights in prison. O'Lone v. Estate of Shabazz, 482 U.S. 342, 348, 107 S.Ct. 2400, 2404 (1987). However, challenges to prison restrictions that are alleged "to inhibit First Amendment interests must be analyzed in terms of the legitimate policies and goals of the corrections system, to whose custody and care the prisoner has been committed in accordance with due process of law." Jones v. North Carolina Prisoners' Union, 433 U.S. 119, 125, 97 S.Ct. 2532, 2538 (1977) (citation omitted). The courts, therefore, must balance prisoners' First Amendment rights against the goals of the correctional facility. Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861 (1979). Particularly, "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Turner v. Safely, 482 U.S. 78, 87, 107 S.Ct. 2254, 2260 (1987). Plaintiff shall be given leave to amend to assert additional facts regarding the specific details of his claim. For example, Plaintiff should describe his own religious beliefs and how the AA program infringes on those beliefs.
Plaintiff should also consider the following factors before determining whether to proceed with his suit for monetary damages. Plaintiff's claims may be subject to dismissal on the basis of a qualified immunity defense. In § 1983 actions, the doctrine of qualified immunity protects state officials from personal liability for on-the-job conduct so long as the conduct is objectively reasonable and does not violate an inmate's clearly-established federal rights. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738 (1982) (citations omitted). At least one court has determined that officials were entitled to qualified immunity in a similar case. See Feasel v. Willis, 904 F.Supp. 582 (N.D.Tex. 1995).
In Feasel v. Willis, the defendants cited two cases involving inmate's required attendance in the Alcoholics Anonymous Program. In Stafford v. Harrison, 766 F.Supp. 1014, 1016 (D.Kan. 1991), the district court found the Alcoholics Anonymous Program, while having a spiritual nature, was not a program which could properly be characterized as a religion. Defendants also cited O'Connor v. State of California, 855 F.Supp. 303 (C.D.Cal. 1994), another case requiring participation in the Alcoholics Anonymous Program. The district court found the principal and primary effect of encouraging this participation was not to advance a religious belief, but to treat substance abuse. The Court acknowledged spirituality was a central part of the philosophy, but the AA Program was not a religion. The Court held that various faiths could participate in the AA program without renouncing their religious convictions. O'Connor, 904 F.Supp. at 585-86.
The foregoing cases demonstrate two principles with regard to qualified immunity. First, Plaintiff could not be forced to adopt any particular religious beliefs through any program required for substance or drug abuse rehabilitation. Second, Plaintiff must be able to show that there was an established legal precedent, holding that the Alcoholics Anonymous Program was a forced indoctrination of religion or required the adoption of a particular religious preference in violation of the First Amendment free exercise clause. If the Court determines that Plaintiff's claims are subject to dismissal based upon a qualified immunity defense, then Plaintiff's Complaint would be dismissed, and he would be responsible for paying the full $150.00 filing fee in this action.
Additionally, Plaintiff is advised that the Complaint may also be subject to dismissal if he has failed to exhaust his administrative remedies. See Wyatt v. Terhune, 305 F.3d 1033, 1044 (9th Cir. 2002) (PLRA exhaustion of administrative remedies requirement creates a defense which may be raised by a Rule 12(b) motion); Title 42 U.S.C. § 1997e(a) ("No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted."); Booth v. Churner, 532 U.S. 731, 121 S.Ct. 1819, 1821 (2001) (if administrative remedies are not exhausted prior to the filing of a lawsuit, the lawsuit is subject to dismissal).
It appears that Plaintiff may not have appealed his grievance through all steps of the prison's review process. Based on the foregoing, Plaintiff may wish to consider filing a notice of voluntary dismissal of this action, so that he can first exhaust his administrative remedies at ISCI. If Plaintiff decides to voluntarily dismiss his action at this stage, he will not be assessed a filing fee. However, if Plaintiff decides to proceed, and his case is dismissed as a result of Defendants' motion to dismiss for failure to exhaust administrative remedies, he will still be assessed the full $150.00 filing fee.
If Plaintiff chooses to amend his § 1983 complaint, he must allege in specific terms the following: (1) the names of the persons who caused or personally participated in causing the alleged deprivation of his constitutional rights; (2) the dates on which the conduct of each Defendant allegedly took place, and (3) the specific conduct or action Plaintiff alleges is unconstitutional. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and conclusory allegations of official participation in civil rights violations are not sufficient. See Ivey v. Board of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
Furthermore, Plaintiff's amended complaint must contain all of his allegations in a single pleading, and cannot rely upon or incorporate by reference prior pleadings. D. Idaho L. Civ. R. 15.1 ("Any amendment to a pleading, whether filed as a matter of course or upon a motion to amend, shall reproduce the entire pleading as amended"). Plaintiff shall set forth each different factual allegation in a separate numbered paragraph. The amended complaint must be legibly written or typed in its entirety, and it should be clearly designated as the "First Amended Complaint." PLAINTIFF IS CAUTIONED IF HE FAILS TO AMEND WITHIN 30 DAYS, THE COMPLAINT MAY BE DISMISSED. Alternatively, the court will permit Plaintiff to voluntarily dismiss his Complaint by submitting a notice of voluntary dismissal within thirty (30) days after entry of this Order.
Finally, Plaintiff filed a motion seeking summary judgment on his Complaint. Based on the Court's determination that the Complaint fails to state a claim upon which relief can be granted, the motion is moot.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED that Plaintiff's Motion to Proceed in Forma Pauperis (Docket No. 1) is MOOT.IT IS FURTHER HEREBY ORDERED that, if Plaintiff decides to proceed with this action, he must file an amended complaint within thirty (30) days after entry of this Order. If Plaintiff files an amended complaint, he should also file a motion to reconsider his in forma pauperis status. In the alternative, Plaintiff may file a notice of voluntary dismissal within thirty (30) days after entry of this Order.
IT IS FURTHER HEREBY ORDERED that Plaintiff's Motion for Summary Judgment (Docket No. 9) is MOOT.