(PC) Gann v. Valley State Prison

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA

11 NATHANIEL MARCUS GANN, 1:19-cv-01797-DAD-GSA-PC 12 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION 13 vs. PROCEED ONLY AGAINST DEFENDANTS FISHER, PAEZ, ANGUIANO, CHAPAS, LUCERO, VALLEY STATE PRISON, et al., MARQUEZ, CRUZ, AND MOOSEBAUR FOR VIOLATION OF RLUIPA, VIOLATION OF THE 15 Defendants. FIRST AMENDMENT FREE EXERCISE CLAUSE, AND ADVERSE CONDITIONS OF CONFINEMENT 16 IN VIOLATION OF THE EIGHTH AMENDMENT; AGAINST DEFENDANTS FISHER AND 17 MOOSEBAUR FOR FAILURE TO PROTECT PLAINTIFF IN VIOLATION OF THE EIGHTH 18 AMENDMENT; AND AGAINST DEFENDANT MOOSEBAUR FOR RETALIATION IN 19 VIOLATION OF THE FIRST AMENDMENT; AND THAT ALL OTHER CLAIMS AND DEFENDANTS 20 BE DISMISSED 21 OBJECTIONS, IF ANY, DUE IN 14 DAYS 23 Plaintiff Nathaniel Marcus Gann is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff Gann and fourteen co-plaintiffs filed the Complaint commencing this action on December 26, 2019, against Valley State Prison, et al., for subjecting them to adverse conditions of confinement in violation of the Eighth Amendment by serving substandard food in Kosher meals at VSP. (ECF No. 1.) On January 7, 2020, the court issued an order severing the fourteen co-plaintiffs’ claims from Plaintiff Gann’s claims and opening new cases for each of the co-plaintiffs. (ECF No. 10.) Each of the fifteen plaintiffs was ordered to file an amended complaint in his own case within thirty days. (Id.) On February 7, 2020, Plaintiff filed the First Amended Complaint in this case. (ECF No. 20.)

5 The First Amended Complaint names as defendants Valley State Prison, CDCR, John Doe #1 (Headquarter Community Resource Manager), John Doe #2 (Associate Director of the Division of Adult Institutions), John Doe #3 (CDCR Departmental Food Administrator), J.

8 Knight (Appeals Examiner), T. Thornton (Appeals Analyst, VSP), Raythel Fisher, Jr. (Warden, VSP), Timothy Anderson (inmate), John Doe #4 (inmate), Paez (Dining Hall Officer), Keene (Housing Unit Officer), Avila-Gonzalez (Correctional Officer), Sergeant Clements, Sergeant Santoya, C. Hernandez (Food Manager), Mohktar (Food Manager), Moosebaur (Culinary Supervisor Cook II), Hayman (Culinary Supervisor Cook II), Cruz (Culinary Supervisor Cook), Chapas (Culinary Supervisor Cook), Lucero (Culinary Supervisor Cook), Anguiano (Culinary Supervisor Cook), and Marquez (Culinary Supervisor Cook) (collectively, “Defendants”), and brings claims for violation of RLUIPA, violation of the First Amendment Free Exercise Clause, adverse conditions of confinement under the Eighth Amendment, failure to protect Plaintiff under the Eighth Amendment, retaliation under the First Amendment, equal protection under the Fourteenth Amendment, improper prison appeals process, and conspiracy.

19 The court screened the First Amended Complaint and found that it states cognizable claims against Defendants Fisher, Paez, Anguiano, Chapas, Lucero, Marquez, Cruz, and Moosebaur for violation of RLUIPA, violation of the First Amendment Free Exercise Clause, and adverse conditions of confinement in violation of the Eighth Amendment; against Defendants Fisher and Moosebaur for failure to protect Plaintiff in violation of the Eighth Amendment; and against Defendant Moosebaur for retaliation in violation of the First Amendment. (ECF No. 22.) On March 11, 2021, the court issued a screening order requiring Plaintiff to either (1) file a Second Amended Complaint, or (2) notify the court that he is willing to proceed only with the claims found cognizable by the court. (Id.) 1 On April 29, 2021, Plaintiff notified the court that he is willing to proceed only with the claims found cognizable by the court. (ECF No. 28.)

3 Based on the foregoing, it is HEREBY RECOMMENDED that: 4 1. This action proceed only against Defendants Warden Raythel Fisher, Jr., Dining 5 Hall Officer Paez, and Culinary Staff Members Anguiano, Chapas, Lucero, 6 Marquez, Cruz, and Moosebaur for violation of RLUIPA, violation of the First 7 Amendment Free Exercise Clause, and adverse conditions of confinement in 8 violation of the Eighth Amendment; against Defendants Warden Raythel Fisher, 9 Jr., and Moosebaur for failure to protect Plaintiff in violation of the Eighth 10 Amendment; and against Defendant Moosebaur for retaliation in violation of the 11 First Amendment; 12 2. All remaining claims and defendants be dismissed from this action; 13 3. Plaintiff’s claims for violation of equal protection, improper inmate appeals 14 process, and conspiracy be dismissed from this action based on Plaintiff’s failure 15 to state any claims upon which relief may be granted; 16 4. Defendants CDCR, John Doe #1 (Headquarter Community Resource Manager), 17 John Doe #2 (Associate Director of the Division of Adult Institutions), John Doe 18 #3 (CDCR Departmental Food Administrator), J. Knight (Appeals Examiner), T.

19 Thornton (Appeals Analyst, VSP), Timothy Anderson (inmate), John Doe #4 20 (inmate), Keene (Housing Unit Officer), Avila-Gonzalez (Correctional Officer), 21 Sergeant Clements, Sergeant Santoya, C. Hernandez (Food Manager), Mohktar 22 (Food Manager), and Hayman (Culinary Supervisor Cook II) be dismissed from 23 this action based on Plaintiff’s failure to state any claims against them upon which 24 relief may be granted; and 25 5. This case be referred back to the Magistrate Judge for further proceedings, 26 including initiation of service of process.

27 These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen (14) days after the date of service of these Findings and Recommendations, Plaintiff may file written objections with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court’s order.

5 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

IT IS SO ORDERED.

8 Dated: May 1, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE