1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ASAR TAUF SHAKANASA, Case No. 21-cv-05635-JD

8 Plaintiff, ORDER RE DISMISSAL v. 9

10 C. CONTRERAS, Defendant. 11

12 13 Plaintiff, a state prisoner, has filed a pro se civil rights complaint under

. 14 The original complaint was dismissed with leave to amend, and plaintiff filed an amended 15 complaint. 16 DISCUSSION 17 STANDARD OF REVIEW 18 Federal courts must engage in a preliminary screening of cases in which prisoners seek 19 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 20 § 1915A(a). In its review, the Court must identify any cognizable claims, and dismiss any claims 21 which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 22 monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se 23 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t,

(9th 24 Cir. 1990). 25 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 26 claim showing that the pleader is entitled to relief.” Although a complaint “does not need detailed 27 factual allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to 1 cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above 2 the speculative level.” Bell Atlantic Corp. v. Twombly,

(2007) (citations 3 omitted). A complaint must proffer “enough facts to state a claim to relief that is plausible on its 4 face.”

. The United States Supreme Court has explained the “plausible on its face” 5 standard of Twombly: “While legal conclusions can provide the framework of a complaint, they 6 must be supported by factual allegations. When there are well-pleaded factual allegations, a court 7 should assume their veracity and then determine whether they plausibly give rise to an entitlement 8 to relief.” Ashcroft v. Iqbal,

(2009). 9 To state a claim under

, a plaintiff must allege that: (1) a right secured by 10 the Constitution or laws of the United States was violated, and (2) the alleged deprivation was 11 committed by a person acting under the color of state law. West v. Atkins,

(1988). 12 LEGAL CLAIMS 13 Plaintiff alleges that his religious rights were violated, and he was subject to retaliation. 14 Section 3 of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) provides: “No 15 government shall impose a substantial burden on the religious exercise of a person residing in or 16 confined to an institution, as defined in section 1997 [which includes state prisons, state 17 psychiatric hospitals, and local jails], even if the burden results from a rule of general 18 applicability, unless the government demonstrates that imposition of the burden on that person (1) 19 is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of 20 furthering that compelling governmental interest.” 42 U.S.C. § 2000cc-1(a). The statute applies 21 “in any case” in which “the substantial burden is imposed in a program or activity that receives 22 Federal financial assistance.” 42 U.S.C. § 2000cc-1(b)(1). RLUIPA also includes an express 23 private cause of action that is taken from RFRA: “A person may assert a violation of [RLUIPA] as 24 a claim or defense in a judicial proceeding and obtain appropriate relief against a government.” 42 25 U.S.C. § 2000cc-2(a); cf. § 2000bb-1(c). For purposes of this provision, “government” includes 26 states, counties, municipalities, their instrumentalities and officers, and “any other person acting 27 under color of state law.” 42 U.S.C. § 2000cc-5(4)(A). RLUIPA does not authorize money

F.3d 1023, 1031 (9th Cir. 2015). 2 To establish a free exercise violation, a prisoner must show a defendant burdened the 3 practice of his religion without any justification reasonably related to legitimate penological 4 interests. See Shakur v. Schriro,

(9th Cir. 2008). A prisoner is not required 5 to objectively show that a central tenet of his faith is burdened by a prison regulation to raise a 6 viable claim under the Free Exercise Clause.

. Rather, the test of whether the 7 prisoner’s belief is “sincerely held” and “rooted in religious belief” determines the Free Exercise 8 Clause inquiry.

(finding district court impermissibly focused on whether consuming halal meat 9 is required of Muslims as a central tenet of Islam, rather than on whether plaintiff sincerely 10 believed eating kosher meat is consistent with his faith). The prisoner must show that the religious 11 practice at issue satisfies two criteria: (1) the proffered belief must be sincerely held and (2) the 12 claim must be rooted in religious belief, not in purely secular philosophical concerns. Malik v. 13 Brown,

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

). 14 “Within the prison context, a viable claim of First Amendment retaliation entails five basic 15 elements: (1) an assertion that a state actor took some adverse action against an inmate (2) 16 because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate's 17 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 18 correctional goal.” Rhodes v. Robinson,

(9th Cir. 2005) (footnote omitted). 19 Accord Pratt v. Rowland,

(9th Cir. 1995) (prisoner suing prison officials under 20 § 1983 for retaliation must allege that he was retaliated against for exercising his constitutional 21 rights and that the retaliatory action did not advance legitimate penological goals, such as 22 preserving institutional order and discipline). The prisoner must show that the type of activity he 23 was engaged in was constitutionally protected, that the protected conduct was a substantial or 24 motivating factor for the alleged retaliatory action, and that the retaliatory action advanced no 25 legitimate penological interest. Hines v. Gomez,

(9th Cir. 1997) (inferring 26 retaliatory motive from circumstantial evidence). 27 “The Equal Protection Clause of the Fourteenth Amendment commands that no State shall 1 direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne 2 Living Center,

(1985) (quoting Plyler v. Doe,

(1982)). A 3 plaintiff alleging denial of equal protection under

based on race or other suspect 4 classification must plead intentional unlawful discrimination or allege facts that are at least 5 susceptible of an inference of discriminatory intent. Monteiro v. Tempe Union High School Dist., 6

, 1026 (9th Cir. 1998). To state a claim for relief, the plaintiff must allege that the 7 defendant state actor acted at least in part because of plaintiff’s membership in a protected class. 8 See Furnace v. Sullivan,

(9th Cir. 2013). 9 Plaintiff says that he is a practitioner of the Black African religious faith of Shetaut Neter. 10 He has participated in a religious diet program for suitable meals. He alleges that, on September 11 17, 2020, defendant Contreras discarded plaintiff’s religious diet tray as retaliation because 12 plaintiff did not have his light on during a prisoner count, and that Contreras made a derogatory 13 comment in Spanish. Plaintiff also alleges that Contreras issued a disciplinary report due to 14 plaintiff keeping his light off during the prison count. Plaintiff contends that these actions were 15 retaliatory and based on his race and creed. 16 The original complaint contained the same allegations about the incident in September 17 2020, and was dismissed with leave to amend because that was not enough to plead a plausible 18 RLUIPA claim. The amended essentially just repeats the original complaint. 19 Several factors weigh against the amended complaint. To start, plaintiff seeks money 20 damages for this incident but such damages are not permitted under the RLUIPA. See Jones, 791 21 F.3d at 1031. In addition, to plausibly allege a free exercise violation, plaintiff must show that the 22 denial of the food tray burdened his ability to practice his religion, and causation in that defendant 23 discarded the tray due to plaintiff’s religious beliefs. Here, the factual allegations relate much 24 more to Contreras’s frustration that plaintiff’s cell light was off than to any religious or racial 25 animus. Furthermore, the amended complaint identifies only a single incident, but a substantial 26 burden on the practice of an individual’s religion requires more than an isolated incident or short- 27 term occurrence. See Canell v. Lightner,

(9th Cir. 1998) (correctional 1 substantial burden on free exercise of religion); Brown v. Washington,

, 405 (9th 2 || Cir. 2018) (“a one-time set of circumstances amounting to no more than an unintentional 3 interference” with the plaintiff's ability to exercise his religious beliefs was an “isolated incident” 4 || and “not enough to constitute a substantial burden of plaintiff’s religious beliefs”). 5 With respect to the Equal Protection claim, plaintiff has not shown that other similarly 6 || situated inmates were treated differently. And even if defendant had called plaintiff a derogatory 7 || name, allegations of verbal harassment and abuse fail to state a claim cognizable under 42 U.S.C. 8 § 1983. See Freeman v. Arpaio,

(9th Cir. 1997) overruled in part on other 9 grounds by Shakur v. Schriro,

(9th Cir. 2008). 10 CONCLUSION 11 Plaintiff was already provided leave to amend in response to the prior dismissal. In light of 12 || the infirmities in the amended complaint, the Court declines to allow another round of pleadings. 5 13 Consequently, the case is dismissed without leave to amend with prejudice. The Clerk is 14 || requested to close this case. 3 15 IT IS SO ORDERED. a 16 Dated: October 12, 2021

18 JAMES TO 19 United Stes District Judge 20 21 22 23 24 25 26 27 28