(PC) Cortinas v. Baughman

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 LARRY WILLIAM CORTINAS, No. 2:19-cv-1712 KJN P 12 Plaintiff, 13 v. ORDER 14 DAVID BAUGHMAN, 15 Defendant. [16] 17 Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. 18 § 1983, and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 . This 19 proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636 (b)(1). 20 Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915 (a). 21 Accordingly, the request to proceed in forma pauperis is granted. 22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 23 §§ 1914(a), 1915(b)(1). By this order, plaintiff is assessed an initial partial filing fee in 24 accordance with the provisions of 28 U.S.C. § 1915 (b)(1). By separate order, the court will direct 25 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 26 forward it to the Clerk of the Court. Thereafter, plaintiff is obligated to make monthly payments 27 of twenty percent of the preceding month’s income credited to plaintiff’s trust account. These 28 payments will be forwarded by the appropriate agency to the Clerk of the Court each time the 1 amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 2 § 1915(b)(2). 3 As discussed below, plaintiff’s complaint is dismissed with leave to amend. 4 Screening Standards 5 The court is required to screen complaints brought by prisoners seeking relief against a 6 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 7 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 8 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 9 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 10 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 11 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 12 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an 13 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, [14] 490 U.S. at 327 . The critical inquiry is whether a constitutional claim, however inartfully 15 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 16 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 17 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 18 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at 19 1227. 20 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 21 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 22 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 23 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 24 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a 25 formulaic recitation of the elements of a cause of action;” it must contain factual allegations 26 sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555 . 27 However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the 28 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. 1 Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555 , citations and internal 2 quotations marks omitted). In reviewing a complaint under this standard, the court must accept as 3 true the allegations of the complaint in question, Erickson, 551 U.S. at 93 , and construe the 4 pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232 , 236 5 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984). 6 Plaintiff’s Allegations 7 Plaintiff states that since December 25, 2018, and continuing daily, defendant David 8 Baughman, Warden, California State Prison, Sacramento, “refuse[s] to treat the Kosher meal 9 [plaintiff] receive[s] equally with the other meals and religious meals served.” (ECF No. 1 at 4.) 10 Plaintiff complains he only receives six hot dinner meals and seven cold breakfast meals, whereas 11 every other meal comes hot breakfast service six to seven times weekly. In addition, on certain 12 holidays, all other meals receive double main course dinner meats and proteins and a special 13 dessert with chocolate milk, but the Kosher meal does not. Plaintiff states this is “conduct by 14 choice” by defendant, and there are alternative morning meals available for Kosher meal service. 15 (Id.) Plaintiff claims that “equal protection does not exist for Kosher meal service,” and that such 16 conduct is “intentional discrimination” used to discourage inmates from choosing the Kosher diet. 17 As a result, plaintiff suffers mental stress, and seeks money damages. 18 Discussion 19 Plaintiff’s allegations fail to state an equal protection claim. 20 “The Equal Protection Clause of the Fourteenth Amendment commands that no State shall 21 deny to any person within its jurisdiction the equal protection of the laws, which is essentially a 22 direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne 23 Living Ctr., 473 U.S. 432, 439 (1985) (internal quotation marks and citation omitted). This 24 requires a plaintiff to show that he was intentionally treated differently because of his 25 membership in an identifiable group or a constitutionally suspect class. See Flores v. Morgan 26 Hill Unified Sch. Dist., 324 F.3d 1130 , 1134 (9th Cir. 2003); see also Taylor v. San Diego 27 County, 800 F.3d 1164, 1169 (9th Cir. 2015) (stating that the groups being compared must be 28 comprised of similarly situated persons so that the factor motivating the alleged discrimination 1 can be identified (internal quotation marks and citation omitted); see Village of Willowbrook v. 2 Olech, 528 U.S. 562, 564 (2000) (holding that equal protection claims may be brought by a “class 3 of one”). Although the groups being compared may be different in some respects, “they must be 4 similar in the respects pertinent to the State’s policy.” Taylor, 800 F.3d at 1169 . Strict scrutiny is 5 applied where an equal protection claim is based on membership in a suspect class or the 6 burdening of a fundamental right. See Kahawaiolaa v. Norton, 386 F.3d 1271 , 1277-78 (9th Cir. 7 2005). Otherwise, rational review applies. See id. 8 Here, plaintiff fails to show that inmates receiving religious diets and inmates who receive 9 regular meals are similarly situated with respect to prison meal policies. Likewise, although 10 plaintiff alleges that the Kosher diet results in unequal treatment among participants in the Kosher 11 diet program and other religious diet programs, plaintiff has not shown that he and inmates who 12 have different religious dietary requirements are similarly situated. See Merrida v. Aramark Food 13 Serv. Provider, 2011 WL 646412 , at *3 (E.D. Cal. Feb. 17, 2011) (“Plaintiff claims that he and 14 most inmates are getting the same food and that inmates on a special diet receive different and 15 better food. Thus, according to plaintiff, the only inmates receiving different and better food are 16 those that are not similarly situated, i.e., inmates with special dietary needs.”). 17 The undersigned does not find that plaintiff’s allegations give rise to an equal protection 18 claim. Plaintiff does not allege that he is similarly situated to those allegedly receiving a better 19 diet. Plaintiff confirms that he is receiving a Kosher diet, but complains that those inmates not 20 receiving a Kosher diet get hot food more frequently and more food on more occasions than those 21 on a Kosher diet. Therefore, according to plaintiff, the only inmates receiving more food and 22 more hot food are those who are not similarly situated, for example, those inmates on non-Kosher 23 religious diets and those inmates without special dietary needs.1 [24] 1 Plaintiff does not raise an Eighth Amendment claim. He does not allege that he is not being [25] provided constitutionally adequate food, and states that he receives six hot dinner meals and cold breakfast meals. The Eighth Amendment requires only that prisoners receive food that is [26] adequate to maintain health. See LaMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. 1993). Such 27 food need not be tasty or aesthetically pleasing. See id. Food may even occasionally be served cold or occasionally contain foreign objects without violating the constitution. See id. Here, 28 plaintiff does not allege that the food he is provided is unhealthy or inadequate to meet his 1 Accordingly, plaintiff’s complaint must be dismissed. Although it does not appear that 2 plaintiff can allege facts demonstrating a constitutional violation based on the alleged 3 circumstances, the court grants plaintiff leave to file an amended complaint. 4 Leave to Amend 5 If plaintiff chooses to amend the complaint, he must demonstrate how the conditions 6 about which he complains resulted in a deprivation of plaintiff’s constitutional rights. See, e.g., 7 West v. Atkins, 487 U.S. 42, 48 (1988). Also, the complaint must allege in specific terms how 8 each named defendant is involved. Rizzo v. Goode, 423 U.S. 362, 371 (1976). There can be no 9 liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a 10 defendant’s actions and the claimed deprivation. Rizzo, 423 U.S. at 371 ; May v. Enomoto, 633 11 F.2d 164, 167 (9th Cir. 1980). Further, vague and conclusory allegations of official participation 12 in civil rights violations are insufficient. Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 13 1982). 14 Also, plaintiff is informed that the court cannot refer to a prior pleading in order to make 15 plaintiff’s amended complaint complete. Local Rule 220 requires that an amended complaint be 16 complete in itself without reference to any prior pleading. This requirement exists because, as a 17 general rule, an amended complaint supersedes the original complaint. See Ramirez v. County of 18 San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“an ‘amended complaint supersedes the 19 original, the latter being treated thereafter as non-existent.’” (internal citation omitted)). Once 20 plaintiff files an amended complaint, the original pleading no longer serves any function in the 21 //// [22] 23 nutritional needs. Such allegations do not give rise to an Eighth Amendment claim based on denial of adequate meals. In addition, inmates have “no constitutional right to be served a hot 24 meal.” Garnica v. Washington Dept. of Corrections, 965 F.Supp.2d 1250, 1267 (W.D. Wash. 2013), aff’d, 639 F. App’x 484 (9th Cir. 2016) (serving cold food to Muslim inmates during [25] Ramadan did not violate Eighth Amendment when food was nutritionally adequate on all but one day); accord Osolinksi v. Coalinga State Hospital, 2017 WL 131988 at *3 (E.D. Cal. Jan. 12, [26] 2017) (“there is no constitutional right to be fed hot meals”); see also Saddiq v. Trinity Services 27 Group, 198 F.Supp.3d 1051, 1060-61 (D. Ariz. 2016) (state prison’s practice of providing cold, “megasack” meal stacks instead of hot meals during Ramadan upheld on equal protection 28 challenge). 1 | case. Thus, in an amended complaint, as in an original complaint, each claim and the 2 | involvement of each defendant must be sufficiently alleged. 3 In accordance with the above, IT IS HEREBY ORDERED that: 4 1. Plaintiffs request for leave to proceed in forma pauperis is granted. 5 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 6 | is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 7 | § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 8 | Director of the California Department of Corrections and Rehabilitation filed concurrently 9 | herewith. 10 3. Plaintiff's complaint is dismissed. 11 4. Within sixty days from the date of this order, plaintiff shall complete the attached 12 | Notice of Amendment and submit the following documents to the court: 13 a. The completed Notice of Amendment; and 14 b. An original and one copy of the Amended Complaint. 15 | Plaintiff's amended complaint shall comply with the requirements of the Civil Rights Act, the 16 | Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must 17 | also bear the docket number assigned to this case and must be labeled “Amended Complaint.” 18 Failure to file an amended complaint in accordance with this order may result in the 19 | dismissal of this action. 20 | Dated: March 31, 2020 Aectl Aharon 22 KENDALL J.NE contl 712.14 UNITED STATES MAGISTRATE JUDGE [7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 LARRY WILLIAM CORTINAS, No. 2:19-cv-1712 KJN P 12 Plaintiff, 13 v. NOTICE OF AMENDMENT 14 DAVID BAUGHMAN, 15 Defendant. [16] 17 Plaintiff hereby submits the following document in compliance with the court's order 18 filed______________. 19 _____________ Amended Complaint DATED: [20] 21 ________________________________ Plaintiff