Opinion
Case No. CV 19-6099 JAK (AS)
08-29-2019
ANDRE M. LEIVA, Plaintiff, v. L. ZELAYA, Defendant.
ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND
INTRODUCTION
On July 16, 2019, Andre M. Leiva ("Plaintiff"), a California prisoner proceeding pro se, filed a Civil Rights Complaint ("Complaint") pursuant to 42 U.S.C. § 1983. (Dkt. No. 1). The Court has screened the Complaint as prescribed by 28 U.S.C. § 1915A and 42 U.S.C. § 1997e. For the reasons discussed below, the Court DISMISSES Plaintiff's Complaint WITH LEAVE TO AMEND.
Magistrate judges may dismiss a complaint with leave to amend without approval from the district judge. McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991).
STANDARD OF REVIEW
Congress mandates that district courts initially screen civil complaints filed by prisoners seeking redress from a governmental entity or employee. 28 U.S.C. § 1915A. A court may dismiss such a complaint, or any portion thereof, if the court concludes that the complaint: (1) is frivolous or malicious, (2) fails to state a claim upon which relief may be granted, or (3) seeks monetary relief from a defendant who is immune from such relief. Id. § 1915A(b); see also id. § 1915(e)(2) (The court "shall dismiss the case at any time if the court determines that . . . the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief."); accord Lopez v. Smith, 203 F.3d 1122, 1126-27 & n.7 (9th Cir. 2000) (en banc). In addition, dismissal may be appropriate if a complaint violates Rule 8 of the Federal Rules of Civil Procedure. McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996); Nevijel v. Northcoast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981).
In considering whether to dismiss a complaint, a court is generally limited to the pleadings and must construe "[a]ll factual allegations set forth in the complaint . . . as true and . . . in the light most favorable" to the plaintiff. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (citation omitted). Moreover, pro se pleadings are "to be liberally construed" and "held to less stringent standards" than those drafted by a lawyer. Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) ("Iqbal incorporated the Twombly pleading standard and Twombly did not alter courts' treatment of pro se filings; accordingly, we continue to construe pro se filings liberally when evaluating them under Iqbal."). Nevertheless, dismissal for failure to state a claim can be warranted based on either the lack of a cognizable legal theory or the absence of factual support for a cognizable legal theory. Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008).
DISCUSSION
Plaintiff's one claim is that Defendant L. Zelaya, a correctional officer sued in her individual capacity, violated Plaintiff's First Amendment right to religious exercise when Defendant denied his halal meal on August 28, 2018. (Complaint at 3, 5). Plaintiff does not allege any other incident or conduct, though he refers generally to also being "deprived the respects of [his] religious beliefs [sic]" and "denied . . . the right to practice [his] religion." (Id. at 5).
The First Amendment guarantees the right to the free exercise of religion. However, the Supreme Court has noted that the free exercise right is limited by the fact of incarceration, and may be curtailed in order to achieve legitimate correctional goals or to maintain prison security. O'Lone v. Shabazz, 482 U.S. 342, 348 (1987). To establish a free exercise violation, a prisoner "must show the defendants burdened the practice of his religion, by preventing him from engaging in conduct mandated by his faith, without any justification reasonably related to legitimate penological interests." Freeman v. Arpaio, 125 F.3d 732, 736 (9th Cir. 1997) (citing Turner v. Safley, 482 U.S. 78, 89 (1987)). "In order to reach the level of a constitutional violation, the interference with one's practice of religion 'must be more than an inconvenience; the burden must be substantial and an interference with a tenet or belief that is central to religious doctrine.'" Id. at 737 (quoting Graham v. C.I.R., 822 F.2d 844, 851 (9th Cir. 1987)).
Here, Plaintiff fails to state a First Amendment claim because he does not allege facts showing a substantial burden on his free exercise of religion. Instead, his only factual allegation is that Defendant deprived him of a single religious meal, on one particular day. (Complaint at 5). It is well settled law in the Ninth Circuit that intrusions which are "relatively short-term and sporadic" do not constitute a substantial burden of an inmate's free exercise of their religion. Canell v. Lightner, 143 F.3d 1210, 1215 (9th Cir. 1998); see also Howard v. Skolnik, 372 F. App'x 781, 782 (9th Cir. 2010) (affirming summary judgment on "First Amendment claim concerning two alleged incidents where prison personnel interfered with prisoner's fasting because there was no genuine issue as to whether a substantial burden was placed on Howard's free exercise of religion"); Thomas v. Cox, 2019 WL 2509023, at *7 (D. Nev. May 3, 2019) (granting summary judgment because a "single incident of receiving an improper Kosher meal is a short-term and sporadic intrusion into Plaintiff's religious practice and does not constitute a substantial burden on Plaintiff's rights); Pouncil v. Sherman, 2018 WL 646105, at *3 (E.D. Cal. Jan 31, 2018) (free exercise claim dismissed at screening because allegation of denial of meals for a single night of Ramadan did not present a substantial burden); Smith v. Cruzen, 2017 WL 4865565, at *4 (N.D. Cal. Oct. 26, 2017), aff'd, 735 F. App'x 434 (9th Cir. 2018) (granting summary judgment because one missed prayer did not amount to substantial burden on plaintiff's right to free exercise of religion); Glover v. Evans, 2007 WL 3022249, at *2 (N.D. Cal. Oct. 15, 2007) (religious exercise claim dismissed at screening because allegation of not being provided with religion-appropriate meal on a single occasion did not state a constitutional violation).
To state a First Amendment claim against Defendant, Plaintiff must be able to allege facts showing that Defendant substantially burdened Plaintiff's ability to freely exercise his religion. A single, isolated incident - or vague, conclusory allegations of other conduct - will not suffice. Accordingly, the Complaint warrants dismissal for failure to state a claim. Leave to amend is granted, however, because it is not "absolutely clear that the deficiencies of the complaint could not be cured by amendment." Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012).
In addition, the Complaint violates Rule 8 of the Federal Rules of Civil Procedure because it does not include any request for relief. See Fed. R. Civ. P. 8(a)(3) (complaint must contain "a demand for the relief sought, which may include relief in the alternative or different types of relief").
CONCLUSION
For the reasons discussed above, the Court DISMISSES Plaintiff's claims WITH LEAVE TO AMEND.
If Plaintiff still wishes to pursue this action, he shall file a First Amended Complaint no later than 30 days from the date of this Order. The First Amended Complaint must cure the pleading defects discussed above and shall be complete in itself without reference to the Complaint. See L.R. 15-2 ("Every amended pleading filed as a matter of right or allowed by order of the Court shall be complete including exhibits. The amended pleading shall not refer to the prior, superseding pleading."). This means that Plaintiff must allege and plead any viable claims in the Complaint again.
In any amended complaint, Plaintiff should identify the nature of each separate legal claim and confine his allegations to those operative facts supporting each of his claims. For each separate legal claim, Plaintiff should state the civil right that has been violated and the supporting facts for that claim only. Pursuant to Federal Rule of Civil Procedure 8(a), all that is required is a "short and plain statement of the claim showing that the pleader is entitled to relief." However, Plaintiff is advised that the allegations in the First Amended Complaint should be consistent with the authorities discussed above. In addition, the First Amended Complaint may not include new Defendants or claims not reasonably related to the allegations in the previously filed complaints. Plaintiff is strongly encouraged to utilize the standard civil rights complaint form when filing any amended complaint, a copy of which is attached.
Plaintiff is explicitly cautioned that failure to timely file a First Amended Complaint, or failure to correct the deficiencies described above, may result in a recommendation that this action, or portions thereof, be dismissed with prejudice for failure to prosecute and/or failure to comply with court orders. See Fed. R. Civ. P. 41(b); Applied Underwriters, Inc. v. Lichtenegger, 913 F.3d 884, 891 (9th Cir. 2019) ("The failure of the plaintiff eventually to respond to the court's ultimatum - either by amending the complaint or by indicating to the court that it will not do so - is properly met with the sanction of a Rule 41(b) dismissal." (emphasis omitted; quoting Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065 (9th Cir. 2004))). Plaintiff is further advised that if he no longer wishes to pursue this action in its entirety or with respect to particular claims, he may voluntarily dismiss all or any part of this action by filing a Notice of Dismissal in accordance with Federal Rule of Civil Procedure 41(a)(1). A form Notice of Dismissal is attached for Plaintiff's convenience.
IT IS SO ORDERED. Dated: August 29, 2019
/s/_________
ALKA SAGAR
UNITED STATES MAGISTRATE JUDGE