1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 TRACY TAYLOR, Case No. 21-cv-00055-JD

7 Plaintiff, ORDER RE DISMISSAL v. 8 Re: Dkt. Nos. 23, 24 9 CONNIE GIPSON, et al., Defendants. 10

11 12 Plaintiff, a state prisoner, has filed a pro se civil rights complaint under

. 13 The amended complaint was dismissed with leave to amend and plaintiff has filed a second 14 amended complaint. 15 DISCUSSION 16 STANDARD OF REVIEW 17 Federal courts must engage in a preliminary screening of cases in which prisoners seek 18 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 19 § 1915A(a). In its review, the Court must identify any cognizable claims, and dismiss any claims 20 which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 21 monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se 22 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t,

(9th 23 Cir. 1990). 24 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 25 claim showing that the pleader is entitled to relief.” Although a complaint “does not need detailed 26 factual allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to 27 relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a 1 the speculative level.” Bell Atlantic Corp. v. Twombly,

(2007) (citations 2 omitted). A complaint must proffer “enough facts to state a claim to relief that is plausible on its 3 face.”

. The United States Supreme Court has explained the “plausible on its face” 4 standard of Twombly: “While legal conclusions can provide the framework of a complaint, they 5 must be supported by factual allegations. When there are well-pleaded factual allegations, a court 6 should assume their veracity and then determine whether they plausibly give rise to an entitlement 7 to relief.” Ashcroft v. Iqbal,

(2009). 8 To state a claim under

, a plaintiff must allege that: (1) a right secured by 9 the Constitution or laws of the United States was violated, and (2) the alleged deprivation was 10 committed by a person acting under the color of state law. West v. Atkins,

(1988). 11 LEGAL CLAIMS 12 Plaintiff alleges that prison officials have interfered with his ability to practice his religion. 13 Section 3 of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) provides: “No 14 government shall impose a substantial burden on the religious exercise of a person residing in or 15 confined to an institution, as defined in section 1997 [which includes state prisons, state 16 psychiatric hospitals, and local jails], even if the burden results from a rule of general 17 applicability, unless the government demonstrates that imposition of the burden on that person (1) 18 is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of 19 furthering that compelling governmental interest.” 42 U.S.C. § 2000cc-1(a). The statute applies 20 “in any case” in which “the substantial burden is imposed in a program or activity that receives 21 Federal financial assistance.” 42 U.S.C. § 2000cc-1(b)(1). RLUIPA also includes an express 22 private cause of action that is taken from RFRA: “A person may assert a violation of [RLUIPA] as 23 a claim or defense in a judicial proceeding and obtain appropriate relief against a government.” 42 24 U.S.C. § 2000cc-2(a); cf. § 2000bb-1(c). For purposes of this provision, “government” includes, 25 inter alia, states, counties, municipalities, their instrumentalities and officers, and “any other 26 person acting under color of state law.” 42 U.S.C. § 2000cc-5(4)(A). 27 To establish a free exercise violation, a prisoner must show a defendant burdened the 1 interests. See Shakur v. Schriro,

(9th Cir. 2008). A prisoner is not required 2 to objectively show that a central tenet of his faith is burdened by a prison regulation to raise a 3 viable claim under the Free Exercise Clause.

. Rather, the test of whether the 4 prisoner’s belief is “sincerely held” and “rooted in religious belief” determines the Free Exercise 5 Clause inquiry.

(finding district court impermissibly focused on whether consuming halal meat 6 is required of Muslims as a central tenet of Islam, rather than on whether plaintiff sincerely 7 believed eating kosher meat is consistent with his faith). The prisoner must show that the religious 8 practice at issue satisfies two criteria: (1) the proffered belief must be sincerely held and (2) the 9 claim must be rooted in religious belief, not in purely secular philosophical concerns. Malik v. 10 Brown,

(9th Cir. 1994) (cited with approval in Shakur,

). 11 Plaintiff professes to be an adherent of “Thelema” and expresses his beliefs through 12 consumption of tobacco products. Plaintiff originally alleged that the California Department of 13 Corrections and Rehabilitation (“CDCR”) and Salinas Valley State Prison (“SVSP”) officials had 14 prevented him from purchasing or receiving tobacco products which had interfered with his ability 15 to practice his beliefs. He sought injunctive relief and money damages. 16 The amended complaint was dismissed with leave to amend to provide more information 17 about defendants’ conduct. The defendants named were Gipson, CDCR Director of Prisons and 18 Atchley, Warden of SVSP. Plaintiff stated that Gipson implemented a policy that prevented 19 plaintiff from obtaining proper tobacco. He alleged that Atchley denied his request to obtain 20 tobacco in an appeal response. But plaintiff also said that a higher level of appeal was granted and 21 stated that tobacco could be approved by the Religious Review Committee. Plaintiff said that he 22 never heard from the Religious Review Committee, but it is not clear what actions he took to 23 obtain an approval by the committee. 24 A review of plaintiff’s exhibits indicated that he had also sought relief in state court. Dkt. 25 No. 17 at 21. On October 12, 2017, the Del Norte County Superior Court ordered that SVSP 26 make tobacco available to plaintiff for his religious needs. Dkt. No. 17 at 21. The court noted that 27 there was no support for plaintiff’s request to have ten pounds of tobacco available in his cell.

1 plaintiff was to be provided an herb mix containing 1% tobacco for outdoor use.

2 For the second amended complaint, plaintiff was directed to provide more information 3 about how his rights had been violated by defendants and why the order providing the herb mix 4 containing tobacco was not sufficient, or not followed by prison officials. It was noted that it did 5 not appear that the named defendants were personally involved. Gipson implemented a tobacco 6 policy, which had exceptions for religious purposes. Atchley appeared to have denied an inmate 7 appeal. Plaintiff was advised that there is no constitutional right to a prison administrative appeal 8 or grievance system. See Ramirez v. Galaza,

(9th Cir. 2003). To the extent 9 that these defendants or other defendants such as members of the Religious Review Committee 10 had failed to comply with the Del Norte Superior Court order, plaintiff had failed to identify such 11 defendants and describe what occurred. Plaintiff was also directed to state why he had not sought 12 relief in Del Norte Superior Court, if that court’s order had not been followed. 13 The second amended complaint again fails to state a claim for relief. The defendants are 14 Gipson, CDCR Director of Prisons and Atchley, Warden of SVSP. Plaintiff reports that his 15 concerns about the use of tobacco products were resolved in the Del Norte Superior Court. Dkt. 16 No. 22 at 3. What, if any, claims remain is not clear. He states that CDCR violated state law by 17 failing to provide exceptions to the CDCR tobacco ban for religious reasons. Id. at 5. Yet, 18 plaintiff notes that due to his state court litigation, CDCR adopted emergency regulations to 19 provide for a religious exemption through approved vendors. Id. Plaintiff says that none of the 20 approved vendors sell tobacco products, but he already stated that this action does not concern the 21 use of tobacco products because that has been resolved. 22 To the extent that plaintiff seeks an order allowing him to obtain tobacco products from 23 unapproved vendors, he should seek relief in his state court cases. He already has a case against 24 the same defendants involving the same subject matter, and so cannot seek relief in this Court. 25 The federal courts have traditionally adhered to the related doctrines of res judicata and collateral 26 estoppel. See Allen v. McCurry,

(1980). Under res judicata, a final judgment on 27 the merits bars further claims by parties or their privies based on the same cause of action. See 1 actually and necessarily determined by a court of competent jurisdiction, that determination is 2 || conclusive in subsequent suits based on a different cause of action involving a party to the prior 3 || litigation. See id.! 4 To the extent the state court denied this claim and plaintiff seeks relief in this Court, he 5 |} may not go forward. Under Rooker-Feldman, lower federal courts are without subject matter 6 || jurisdiction to review state court decisions, and state court litigants may therefore only obtain 7 || federal review by filing a petition for a writ of certiorari in the Supreme Court of the United 8 States. See District of Columbia Court of Appeals v. Feldman,

(1983); 9 Rooker y. Fidelity Trust Co.,

(1923). For all these reasons, plaintiff fails to 10 state a claim for relief. Because plaintiff has already been provided multiple opportunities to 11 amend and further amendment would be futile, this action is dismissed without leave to amend. a 12 CONCLUSION

13 1. Plaintiff's motions for the Court to review his second amended complaint (Dkt. Nos.

v 14 || 23,24) are GRANTED. This action is DISMISSED with prejudice for failure to state a claim.

15 2. The Clerk is requested to close this case. 16 IT IS SO ORDERED.

17 || Dated: August 11, 2021

Z 18 19 JAMES ATO 20 United St@ltes District Judge 21 22 23 24 25 26 7 ' Although res judicata has traditionally been referred to as “claim preclusion,” and collateral estoppel as “issue preclusion,” see Allen,

& n.5, the Supreme Court clarified in 28 Taylor vy. Sturgell,

(2008), that claim preclusion and issue preclusion are now collectively referred to as “res judicata.”