Opinion
No. CV 05-2110-PHX-DGC (ECV).
November 4, 2005
ORDER
This is a civil rights action pursuant to 42 U.S.C. § 1983 filed by an inmate confined in the Arizona State Prison Complex in Florence, Arizona, Arizona. Plaintiff has paid the $250 filing fee. The Court will dismiss the action with leave to amend.
A. Statutory Screening.
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if Plaintiff has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). If the Court determines that a pleading could be cured by the allegation of other facts, a pro se litigant is entitled to an opportunity to amend the complaint before dismissal of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) ( en banc). The Court is required to grant leave to amend "if a complaint can possibly be saved," but not if the Complaint "lacks merit entirely." Id. at 1129. A court therefore should grant leave to amend if the pleading could be cured by the allegation of other facts, or if it appears at all possible that the defect can be corrected. Id. at 1130. The Court should not, however, advise the litigant how to cure the defects. This type of advice "would undermine the district judges' role as impartial decisionmakers." Pliler v. Ford, 124 S. Ct. 2441, 2446 (2004); see also Lopez, 203 F.3d at 1131 n. 13 (declining to decide whether court was required to inform litigant of deficiencies). Plaintiff's Complaint will be dismissed for failure to state a claim, with leave to amend because the complaint may possibly be saved by amendment.
B. Complaint.
Plaintiff observes the faith of Judaism. He claims that his religion mandates that he maintain a Kosher diet, but Defendants refuse to allow him this diet because he has not provided a letter from a Rabbi. Plaintiff maintains that he does not know a Rabbi and that the policy purposefully prevents him from practicing his sincerely held belief in Judaism. Plaintiff alleges that he has lost 30 pounds as a result of not being able to practice his religious diet.
C. Failure to State a Claim.
The First Amendment directs that no law shall prohibit the free exercise of religion. O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987); Henderson v. Terhune, 379 F.3d 709, 712 (9th Cir. 2004). "Regulations that impinge on an inmate's constitutional rights will be upheld only if they are reasonably related to legitimate penological interests." Henderson, 370 F.3d at 712 (citing Turner v. Saflet, 482 U.S. 78, 89 (1987)).
Plaintiff's complaint expressly mentions the First Amendment but not the Religious Land Use and Institutionalized Persons Act ("RLUIPA"). Under RLUIPA, the government may not impose a substantial burden on an inmate's exercise of religion unless the regulation in question furthers a compelling state interest in the least restrictive manner. 42 U.S.C. § 2000cc-1(a). The RLUIPA standards are arguably more favorable to Plaintiff. The Ninth Circuit has held that a district court is obligated to permit Plaintiff to amend to plead a claim under RLUIPA. See Wyatt v. Terhune, 315 F.3d 1108, 1116 (9th Cir. 2003) (directing district court to allow amendment after remand to plead RLUIPA claim because new law could influence the decision); but see Henderson, 379 F.3d at 715 n. 1 (expressing no opinion regarding the application of RLUIPA when inmate raised claim under First Amendment). Recently, the Ninth Circuit Court of Appeals reversed the district court's denial of an injunction for religious exercise action raised by an inmate under RLUIPA. See Warsoldier v. Woodford, 2005 WL 1792117, at *9 (9th Cir. July 29, 2005). As discussed infra, Plaintiff will be given an opportunity to amend, and he may choose to raise a claim under RLUIPA.
Prisoners also enjoy equal protection of the law subject to the restrictions and limitations necessitated by legitimate penological interests. Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir. 1997). The equal protection guarantee ensures that prison officials cannot discriminate against a particular religion. Id. Practitioners of a minority faith must be afforded "a reasonable opportunity of pursuing [their] faith comparable to the opportunity afforded fellow prisoners who adhere to conventional religious precepts." Cruz v. Beto, 405 U.S. 319, 322 (1972) ( per curiam). A prisoner must show that officials intentionally acted in a discriminatory manner.Freeman, 125 F.3d at 737.
To state a claim against a person individually, Plaintiff must allege exactly what the individual did or failed to do that violated Plaintiff's constitutional right, how the action or inaction of that person is connected to the violation of Plaintiff's constitutional right, and what specific injury Plaintiff suffered because of that person's conduct. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976). Here, Plaintiff has failed to specifically allege what the named Defendants did to prohibit him from practicing his religion. Accordingly, Plaintiff's complaint presently fails to state a claim and will be dismissed for failure to state a claim upon which relief may be granted.
Plaintiff may amend his Complaint within 30 days of this order to cure the deficiencies outlined above. The Clerk of Court will be directed provide Plaintiff with a Court-approved form for filing a civil rights complaint. Plaintiff is advised that the amended complaint must be retyped or rewritten in its entirety on the court-approved form and may not incorporate any part of the original Complaint by reference. Any amended complaint submitted by Plaintiff should be clearly designated as such on the face of the document.
Plaintiff is also reminded that in an Amended Complaint, he may only include one claim per count. The "one claim per count" rule is set forth in the form Complaint and accompanying instructions, and is a requirement imposed by the local rules of this Court.See LRCiv 3.4(a) (complaint must be in accordance with the instructions provided with the form).
An amended complaint supersedes the original complaint. Ferdik v. Bonz elet, 963 F.2d 1258, 1262 (9th Cir.), cert. denied, 506 U.S. 915 (1992); Hal Roach Studios v. Richard Feiner Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the original pleading is treated as nonexistent. Ferdik, 963 F.2d at 1262. Thus, causes of action alleged in an original complaint which are not alleged in an amended complaint are waived. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).
D. Address Changes.
In the notice of assignment issued in this action (Doc. #2), Plaintiff was advised he must file a notice of change of address if his address changes. Plaintiff is again reminded that at all times during the pendency of this action, Plaintiff shall immediately advise the Court of any change of address and its effective date. Such notice shall be captioned "NOTICE OF CHANGE OF ADDRESS." Plaintiff shall serve a copy of the Notice of Change of Address on all opposing parties. The notice shall contain only information pertaining to the change of address and its effective date, and shall not include a motion for other relief. Failure to timely file a notice of change of address may result in the dismissal of the action for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
E. Warning of Possible Dismissal.
Plaintiff should take note that if he fails to timely comply with every provision of this Order, this action will be dismissed without further notice. See Ferdik, 963 F.2d at 1260-61 (district court may dismiss action for failure to comply with any order of the Court). Moreover, because the Complaint has been dismissed for failure to state a claim, if Plaintiff fails to file an amended complaint correcting the deficiencies identified in this Order, the dismissal of this action will count as a "strike" under the "three strikes" provision of the Prison Litigation Reform Act.See 28 U.S.C. § 1915(g).
IT IS THEREFORE ORDERED that:
(1) The Complaint is dismissed for failure to state a claim. Plaintiff shall have 30 days from the date this Order is filed to file an Amended Complaint in compliance with this Order.
(2) The Clerk of Court shall enter a judgment of dismissal of this action with prejudice and without further notice to Plaintiff, if Plaintiff fails to file an amended complaint within thirty (30) days of the date this Order is filed. Upon entry of judgment, the Clerk shall make an entry on the docket in this matter indicating that the dismissal of this action falls within the purview of 28 U.S.C. § 1915(g).
(3) Aside from the two copies of the petition or amended petition that must be submitted pursuant to LRCiv 3.5(a), a clear, legible copy of every pleading or other document filed shall accompany each original pleading or other document filed with the Clerk for use by the District Judge or Magistrate Judge to whom the case is assigned. See LRCiv 5.4. Failure to comply with this requirement may result in the pleading or document being stricken without further notice to Plaintiff.
(4) The Clerk of Court is directed to provide to Plaintiff a current court-approved form for filing a civil rights complaint by a prisoner.
FORM