1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 BRYANT A. REAGOR, Case No. 19-cv-05493-HSG

8 Plaintiff, ORDER OF DISMISSAL WITH LEAVE TO AMEND 9 v.

10 ROBERT LOSACCO, et al., 11 Defendants.

12 13 INTRODUCTION 14 Plaintiff, an inmate at California State Prison — Substance Abuse Treatment and Facility 15 in Corcoran Prison, filed this pro se action alleging that he was denied kosher meals while housed 16 at Pelican Bay State Prison in violation of his First Amendment right to free exercise of religion 17 and in violation of his rights under the Religious Land Use and Institutionalized Persons Act 18 (“RLUIPA”), 42 U.S.C. § 2000cc-1. Plaintiff has been granted leave to proceed in forma pauperis 19 in a separate order. His complaint (Dkt. No. 1) is now before the Court for review under 28 20 U.S.C. § 1915A. 21 DISCUSSION 22 A. Standard of Review 23 A federal court must engage in a preliminary screening of any case in which a prisoner 24 seeks redress from a governmental entity, or from an officer or an employee of a governmental 25 entity. 28 U.S.C. § 1915A(a). In its review, the Court must identify any cognizable claims, and 26 dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may be 27 granted, or seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. 1 Dep’t,

(9th Cir. 1990). 2 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 3 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Specific facts are not 4 necessary; the statement need only ‘give the defendant fair notice of what the . . . . claim is and the 5 grounds upon which it rests.’” Erickson v. Pardus,

(2007) (citations omitted). 6 “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more 7 than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not 8 do. . . . Factual allegations must be enough to raise a right to relief above the speculative level.” 9 Bell Atlantic Corp. v. Twombly,

(2007) (citations omitted). A complaint must 10 proffer “enough facts to state a claim to relief that is plausible on its face.”

. 11 To state a claim under

, a plaintiff must allege two elements: (1) that a 12 right secured by the Constitution or laws of the United States was violated; and (2) that the 13 violation was committed by a person acting under the color of state law. West v. Atkins,

42, 48 (1988). 15 B. Complaint 16 Plaintiff has named as defendants Pelican Bay State Prison (“PBSP”) Community 17 Resource Manager Robert Losacco, PBSP Warden Jim Robertson, California Department of 18 Corrections and Rehabilitation (“CDCR”) Litigation Coordinator Voong, and PBSP Appeals 19 Coordinator W. Coleman. 20 On August 27, 2018, while housed at PBSP, plaintiff submitted a CDCR Form 30301 21 Religious Diet Program Request requesting a kosher diet. On October 10, 2018, Defendant 22 Losacco denied the request. 23 On October 1, 2018, while plaintiff’s Form 3030 request was pending, plaintiff filed a 24 grievance challenging the failure to provide him with kosher meals. Defendant Robertson did not 25 interview plaintiff regarding this grievance and, on November 29, 2018, Defendant Robertson 26 denied the grievance at the second level based on false and misleading statements regarding 27 1 plaintiff’s understanding of the Jewish faith. On February 5, 2019, Defendant Voong denied the 2 grievance at the third level, which violated plaintiff’s First Amendment right to correct Defendant 3 Robertson’s violation of plaintiff’s right to freely practice his religion. On May 17, 2019, after 4 plaintiff had transferred to Salinas Valley State Prison (“SVSP”), he submitted another Form 3030 5 again requesting a kosher diet. On June 12, 2019, SVSP staff granted his Form 3030 request 6 stating, “Inmate appeared to be well versed of Kosher (sic).” Dkt. No. 1 at 4-5. 7 Plaintiff alleges that defendants denied his kosher diet request because plaintiff is black 8 and the defendants are white. Dkt. No. 1 at 3. He alleges that the denial of a kosher diet caused 9 him to suffer different levels of spiritual shock, emotional distress, and embarrassment; as well as 10 spiritual and physical harm. 11 Plaintiff alleges that his rights under the First Amendment and RLUIPA have been 12 violated, and seeks declaratory relief; monetary, compensatory and punitive damages; costs of suit 13 and attorney’s fees; and any other relief deemed appropriate by the Court. Dkt. No. 1 at 4, 7. 14 The complaint suffers from the following deficiencies. 15 First, plaintiff lacks standing to seek declaratory relief because he is no longer housed at 16 PBSP. A declaratory judgment is proper only where “there is a substantial controversy, between 17 parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance 18 of a declaratory judgment.” Lake Carriers’ Ass’n v. MacMullan,

(1972). Generally, 19 when a prisoner is transferred from a prison, his claim for injunctive or declaratory relief becomes 20 moot as to conditions at that particular facility. Alvarez v. Hill,

(9th Cir. 21 2012) (prisoner’s claims for injunctive and declaratory relief relating to prison conditions are 22 rendered moot by his transfer to another facility). Plaintiff’s request for declaratory relief is 23 DISMISSED with prejudice. 24 Second, plaintiff has failed to state a cognizable RLUIPA claim because the relief sought – 25 declaratory relief and monetary damages – is unavailable. As discussed supra, because plaintiff is 26 no longer housed at PBSP, he lacks standing to seek declaratory judgment for RLUIPA violations 27 at PBSP. RLUIPA does not authorize money damages against state officials, whether sued in their 1 Plaintiff’s RLUIPA claims are therefore DISMISSED with prejudice. 2 Third, plaintiff has failed to state a cognizable First Amendment free exercise claim. 3 Prisoners retain the protections afforded by the First Amendment, “including its directive that no 4 law shall prohibit the free exercise of religion.” O’Lone v. Estate of Shabazz,

, 348 5 (1987) (citation omitted). For a prisoner to establish a free exercise violation, he therefore must 6 show that a prison regulation or official burdened the practice of his religion without any 7 justification reasonably related to legitimate penological interests. See Shakur v. Schriro,

878, 883-84 (9th Cir. 2008). Plaintiff has made no factual allegations from which it can be 9 reasonably inferred that defendants’ denial of a kosher diet was based solely on racial animus. 10 The allegation that SVSP officials granted his kosher diet request nine months later does not lead 11 to a reasonable inference of racial animus where SVSP officials appear to have based their grant 12 on plaintiff’s understanding of the kosher diet and PBSP officials appear to have based their denial 13 on plaintiff’s lack of familiarity with the Jewish religion, and where there are no factual 14 allegations regarding racial animus or discrimination. Plaintiff’s allegations are insufficient to 15 raise a right to relief above the speculative level. Bell Atlantic Corp.,

. The Court 16 DISMISSES plaintiff’s First Amendment claim with leave to amend, if plaintiff can truthfully do 17 so. See Ramirez v. Galaza,

(9th Cir. 2003) (“Leave to amend should be granted 18 unless the pleading could not possibly be cured by the allegation of other facts, and should be 19 granted more liberally to pro se plaintiffs.”) (internal quotation marks and citation omitted). The 20 Court notes that to the extent that plaintiff seeks damages for the alleged First Amendment 21 violation, the Prisoner Litigation Reform Act (PLRA) provides that prisoners may recover for 22 mental or emotional injuries suffered while incarcerated only if they first show that they suffered a 23 physical injury. 42 U.S.C. § 1997e(e). 24 Fourth, plaintiff has failed to state a claim against Defendant Coleman. Plaintiff has not 25 made any factual allegations that Defendant Coleman was directly involved in the alleged 26 constitutional violation. Plaintiff alleges that Defendant Coleman is liable because he is the PBSP 27 Appeals Coordinator and therefore responsible for complying with both state and federal laws 1 on the basis of his supervisory position, a theory known as supervisory liability. Under no 2 circumstances is there liability under section 1983 solely because one is responsible for the actions 3 or omissions of another, i.e. under the theory of supervisory liability. See Taylor v. List,

1040, 1045 (9th Cir. 1989). A supervisor may be liable under section 1983 only upon a showing 5 of (1) personal involvement in the constitutional deprivation or (2) a sufficient causal connection 6 between the supervisor’s wrongful conduct and the constitutional violation. Henry A. v. Willden, 7

, 1003–04 (9th Cir. 2012). Even if a supervisory official is not directly involved in 8 the allegedly unconstitutional conduct, “[a] supervisor can be liable in his individual capacity for 9 his own culpable action or inaction in the training, supervision, or control of his subordinates; for 10 his acquiescence in the constitutional deprivation; or for conduct that showed a reckless or callous 11 indifference to the rights of others.” Starr v. Baca,

(9th Cir. 2011). The 12 Court DISMISSES Defendant Coleman from this action but grants plaintiff leave to amend his 13 claim against Defendant Coleman if plaintiff can truthfully do so. See Ramirez,

. 14 CONCLUSION 15 For the foregoing reasons, the Court DISMISSES with prejudice the RLUIPA claim and 16 the request for declaratory relief; DISMISSES the First Amendment claim with leave to amend; 17 and DISMISSES Defendant Coleman from this action but grants plaintiff leave to amend his claim 18 against Defendant Coleman. Within twenty-eight (28) days of the date of this order, Plaintiff 19 shall file an amended complaint. The amended complaint must include the caption and civil case 20 number used in this order, Case No. C 19-05493 HSG (PR) and the words “AMENDED 21 COMPLAINT” on the first page. If using the court form complaint, Plaintiff must answer all the 22 questions on the form in order for the action to proceed. Because an amended complaint 23 completely replaces the previous complaints, Plaintiff must include in his amended complaint all 24 the claims he wishes to present and all of the defendants he wishes to sue. See Ferdik v. Bonzelet, 25

(9th Cir. 1992). Plaintiff may not incorporate material from the prior 26 complaint by reference. 27 Failure to file an amended complaint in accordance with this order in the time 1 The Clerk shall include two copies of the court’s complaint with a copy of this order to 2 || Plaintiff. 3 IT IS SO ORDERED. 4 || Dated: 11/26/2019 5 Atapured 3, Sb). HAYWOOD S. GILLIAM, JR. 6 United States District Judge 7 8 9 10 11 a 12

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