1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DANIEL R. QUINTERO, Case No.: 24-cv-1141-AJB (KSC)

CDCR #BN-3161,

12

ORDER DISMISSING FIRST

Plaintiff, 13 AMENDED COMPLAINT vs. PURSUANT TO 28 U.S.C. 14 §§ 1915(e)(2) & 1915A(b)

J. HILL, Warden, et al.,

15 Defendants. 16 17 18 19 On June 28, 2024, Plaintiff Daniel R. Quintero, a state inmate proceeding pro se, 20 filed a civil rights Complaint pursuant to 42 U.S.C. § 1983 claiming that the denial of water 21 for 20 hours during transportation to another prison amounted to cruel and unusual 22 punishment in violation of the Eighth Amendment and interfered with his religious 23 observance of Ramadan in violation of the First Amendment and the Religious Land Use 24 and Institutionalized Persons Act (“RLUIPA”). (ECF No. 1.) Plaintiff also filed a motion 25 to proceed in forma pauperis (“IFP”) and a request to remove this case to the Eastern 26 District of California. (ECF Nos. 2, 4.) On October 2, 2024, the Court denied the IFP 27 motion because it was not properly supported with the required prison trust account 28 certificate and dismissed this action without prejudice. (ECF No. 5.) 1 Plaintiff renewed his IFP motion, and on October 29, 2024, the Court granted leave 2 to proceed IFP, denied the removal motion, and dismissed the Complaint pursuant to 28 3 U.S.C. §§ 1915(e)(2) & 1915A(b) for failure to state a claim. (ECF No. 7.) Plaintiff was 4 informed of the pleading deficiencies of his claims and instructed that any amended 5 complaint must be complete by itself without reference to his original pleading and that 6 any claims not re-alleged will be considered waived. (Id. at 10.) Plaintiff has now filed a 7 First Amended Complaint (“FAC”) adding Defendant Jeffrey Macomber, the Secretary of 8 the California Department of Corrections and Rehabilitation (“CDCR”) and omitting his 9 First Amendment freedom of religion claim. (ECF No. 8.) 10 For the reasons set forth below, the FAC is not complete by itself because it relies 11 on allegations from the original Complaint, and the allegations in the FAC fail to state a 12 claim upon which relief may be granted. The Court will once again inform Plaintiff of the 13 pleading deficiencies of his claims and grant one final opportunity to amend. 14 I. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) 15 A. Standard of Review 16 Because Plaintiff is a prisoner and is proceeding IFP, his FAC requires a pre-Answer 17 screening pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). The Court must sua sponte 18 dismiss a prisoner’s IFP complaint, or any portion of it, which is frivolous, malicious, fails 19 to state a claim, or seeks damages from defendants who are immune. Lopez v. Smith, 203 20 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (28 U.S.C. § 1915(e)(2)); Rhodes v. 21 Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (28 U.S.C. § 1915A(b)). 22 “The standard for determining whether a plaintiff has failed to state a claim upon 23 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 24 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 25 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 26 2012) (noting that § 1915A screening “incorporates the familiar standard applied in the 27 context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).”) Rule 28 12(b)(6) requires a complaint to “contain sufficient factual matter, accepted as true, to ‘state 1 a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), 2 quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “Determining whether 3 a complaint states a plausible claim for relief [is] . . . a context-specific task that requires 4 the reviewing court to draw on its judicial experience and common sense.” Id. 5 Title 42 U.S.C. § 1983 “creates a private right of action against individuals who, 6 acting under color of state law, violate federal constitutional or statutory rights.” 7 Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). “To establish § 1983 liability, 8 a plaintiff must show both (1) deprivation of a right secured by the Constitution and laws 9 of the United States, and (2) that the deprivation was committed by a person acting under 10 color of state law.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 11 B. Allegations in the FAC 12 Plaintiff alleges that at an unstated date, time and place, he informed Defendant 13 correctional officer Lieutenant Poladian that he had been fasting for 20 days and was 14 suffering malnutrition and dehydration and “needed water at sundown to relieve the severe 15 pain of dehydration.”1 (ECF No. 8 at 3.) Poladian agreed to provide water. (Id.) However, 16 once Plaintiff “agreed to move,” Poladian “gave orders to deny [Plaintiff] any liquid.” (Id.) 17 “The transportation officers maliciously kept [Plaintiff] in an official vehicle fully 18 restrain[ed] for over 20 hours without water.” (Id.) 19 Plaintiff alleges he made Poladian and the “transportation staff” aware he had been 20 fasting for 20 days and aware that during the last 10 days of the fast it was a central tenant 21 of Islam to keep the fast until sundown to observe Ramadan. (Id. at 4.) After he “refused 22 transport for several hours” and “physical force was imminent,” Poladian assured him he 23

24 25 1 Plaintiff states in the FAC that the constitutional violations are “ongoing” at “various CDCR facilities.” (ECF No. 8 at 1.) In violation of this Court’s instruction that his FAC 26 be complete by itself he appears to rely on the allegations in the original Complaint that he 27 was incarcerated in the administrative segregation unit at Richard J. Donovan Correctional Facility in San Diego, California on April 13, 2023, at the time of the alleged events and 28 1 would be provided with water to complete his fast. (Id.) During transportation he was told 2 that Poladian had given orders not to provide Plaintiff with water, thereby rendering the 3 prior 20 days of fasting unacceptable to complete the Ramadan observance because “he 4 was not allowed to complete three prayers essential to complete Ramadan.” (Id.) 5 In count one Plaintiff claims he was subjected to cruel and unusual punishment in 6 violation of the Eighth Amendment by Defendants CDCR, Secretary of the CDCR Jeffrey 7 Macomber, and Warden Hill for failing to put in place a policy of ensuring inmates are 8 provided water during transportation, by Defendants transportation officers Gose and 9 Salagubang for following Defendant Poladian’s orders to deny him water, and by Poladian 10 for ordering the denial of water during transport. (Id. at 2-3.) He claims in count two that 11 Poladian, Goss and Salagubang violated his rights under RLUIPA by preventing him from 12 completing his observation of Ramadan. (Id.) 13 C. Discussion 14 a) Eighth Amendment Cruel and Unusual Punishment Claim 15 “[A] prison official violates the Eighth Amendment when two requirements are met. 16 First, the deprivation alleged must be, objectively, ‘sufficiently serious.’” Farmer v. 17 Brennan, 511 U.S. 825, 834 (1994), quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991). 18 Second, Plaintiff must allege the prison official he seeks to hold liable had a “sufficiently 19 culpable state of mind,” that is, “one of ‘deliberate indifference’ to” his constitutional 20 rights. Id., quoting Wilson, 501 U.S. at 302-03. An objectively serious deprivation is a 21 denial of “the minimal civilized measures of life’s necessities.” Keenan v. Hall, 83 F.3d 22 1083, 1089 (9th Cir. 1996), quoting Rhodes v. Chapman, 452 U.S. 337, 346 (1981). 23 The Court previously informed Plaintiff that the allegations in the Complaint are 24 insufficient to plausibly allege that any Defendant deprived Plaintiff of “the minimal 25 civilized measures of life’s necessities” by not permitting water during his transportation, 26 as there were no allegations regarding how long the transportation lasted. (ECF No. 7 at 27 5.) Plaintiff now alleges he was not provided water for 20 hours during his transportation 28 but provides no allegations regarding any physical injury suffered as a result. See Jett v. 1 Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (an Eighth Amendment violation requires 2 “harm caused by the indifference.”) Plaintiff was informed that “extreme deprivations are 3 required to make out a conditions-of-confinement claim. Because routine discomfort is 4 part of the penalty that criminal offenders pay for their offenses against society, only those 5 deprivations denying the minimal civilized measure of life’s necessities are sufficiently 6 grave to form the basis of an Eighth Amendment violation.” Hudson v. McMillian, 503 7 U.S. 1, 9 (1992) (internal quote marks and citation omitted); see Anderson v. County of 8 Kern, 45 F.3d 1310, 1312–13 (9th Cir. 1995) (holding that short term or temporary 9 deprivations of basic needs such as food, clothing, shelter and sanitation do not plausibly 10 allege an Eighth Amendment violation); Wilson, 501 U.S. at 298 (“[O]nly those 11 deprivations denying the minimal civilized measure of life’s necessities are sufficiently 12 grave to form the basis of an Eighth Amendment violation.”) (internal citation and quote 13 marks omitted); Jett, 439 F.3d at 1096 (an Eighth Amendment violation requires “harm 14 caused by the indifference.”) Plaintiff has not plausibly alleged the denial of water for 20 15 hours during transportation which he needed “to relieve the severe pain of dehydration,” 16 without factual allegations regarding when he last had access to water in his cell during his 17 fasting violated the Eighth Amendment. 18 The allegation that Warden Hill, Secretary Macomber or the CDCR failed to create 19 a policy of ensuring inmates receive water during transportation also once again fails to 20 state an Eighth Amendment claim. “In a section 1983 claim, a supervisor is liable for the 21 acts of his subordinates if the supervisor participated in or directed the violations, or knew 22 of the violations of subordinates and failed to act to prevent them.” Corales v. Bennett, 23 567 F.3d 554, 570 (9th Cir. 2009) (internal quote marks omitted). There are once again no 24 allegations that any of these Defendants knew Plaintiff or any other inmate was deprived 25 of water during transportation and failed to prevent that deprivation. See Jones v. Williams, 26 297 F.3d 930, 934 (9th Cir. 2002) (“In order for a person acting under color of state law to 27 be liable under section 1983 there must be a showing of personal participation in the alleged 28 rights deprivation.”) 1 Plaintiff’s Eighth Amendment claim is dismissed sua sponte pursuant to 28 U.S.C. 2 §§ 1915(e)(2) & 1915A(b) for failure to state a claim. Watison, 668 F.3d at 1112; Wilhelm, 3 680 F.3d at 1121. 4 b) RLUIPA Claim 5 Plaintiff claims Defendants violated his statutory rights under RLUIPA to practice 6 his religion by interfering with his observation of Ramadan. (ECF No. 8 at 4.) RLUIPA 7 provides that “[n]o government shall impose a substantial burden on the religious exercise 8 of a person residing in or confined to an institution . . . even if the burden results from a 9 rule of general applicability,” unless the government demonstrates the burden is “in 10 furtherance of a compelling government interest” and “is the least restrictive means of 11 furthering that compelling governmental interest.” Walker v. Beard, 789 F.3d 1125, 1134 12 (9th Cir. 2015), quoting 42 U.S.C. § 2000cc–1(a). “To state a claim under RLUIPA, a 13 prisoner must show that: (1) he takes part in a ‘religious exercise,’ and (2) the State’s 14 actions have substantially burdened that exercise.” Id., quoting Shakur v. Schriro, 514 F.3d 15 878, 888-89 (9th Cir. 2008). “If the prisoner satisfies those elements, then the State must 16 prove its actions were the least restrictive means of furthering a compelling governmental 17 interest.” Id., citing Warsoldier v. Woodford, 418 F.3d 989, 995 (9th Cir. 2005). 18 To constitute a substantial burden, the alleged limitation on religious practice must 19 impose “a ‘significantly great’ restriction or onus upon such exercise.” San Jose Christian 20 Coll. v. City of Morgan Hill, 360 F.3d 1024, 1034 (9th Cir. 2004); Walker, 789 F.3d at 21 1135. A substantial burden need not actually force a litigant to change his practices; a 22 violation may occur “where the state . . . denies [an important benefit] because of conduct 23 mandated by religious belief, thereby putting substantial pressure on an adherent to modify 24 his behavior and to violate his beliefs.” Warsoldier, 418 F.3d at 995, quoting Thomas v. 25 Review Bd. of the Ind. Emp’t Sec. Div., 450 U.S. 707, 717-18 (1981). Plaintiff must allege 26 in a nonconclusory manner how his religious observation was denied by the Defendants’ 27 actions. Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of action, 28 supported by mere conclusory statements, do not suffice” to state a § 1983 claim). 1 The Court previously found Plaintiff provided conclusory allegations as to how the 2 denial of water during transportation substantially burdened his observation of Ramadan. 3 See e.g. Skolnik, 372 F. App’x at 782 (finding two incidents where prison staff interfered 4 with prisoner’s fasting did not amount to a substantial burden); Canell, 143 F.3d at 1215 5 (“relatively short-term and sporadic” interference with religious exercise was not a 6 substantial burden). Plaintiff alleges in the FAC that denial of water during transportation 7 rendered his prior 20 days of fasting as not counting for the 30 days of fasting necessary to 8 observe Ramadan, but indicates only in conclusory terms that not being provided water 9 during transportation prevented him for saying three prayers essential to observing 10 Ramadan. (ECF No. 8 at 4.) Without nonconclusory factual allegations regarding how the 11 failure to provide water during transportation impacted his ability to say those prayers or 12 complete his religious observation of Ramadan, Plaintiff fails to state a RLUIPA claim. 13 Intrusions on the practice of religion which are “relatively short-term and sporadic” do not 14 constitute substantial burdens. Canell, 143 F.3d at 1215. If Plaintiff wishes to proceed 15 with this claim, he must set forth facts which plausibly allege in a nonconclusory manner 16 how the denial of water during transportation interfered with his observance of Ramadan 17 to the point of creating “a significantly great restriction or onus” on the exercise of his faith 18 or put “substantial pressure on [him] to modify his behavior and to violate his beliefs.” 19 Warsoldier, 418 F.3d at 995; Iqbal, 556 U.S. at 678 (conclusory allegations do not state a 20 § 1983 claim). 21 Plaintiff’s interference with religion claim under RLUIPA is dismissed for failure to 22 state a claim upon which § 1983 relief can be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); 23 § 1915A(b)(1); Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d at 1004. 24 D. Leave to Amend 25 In light of his pro se status, the Court grants Plaintiff one final opportunity to amend 26 in order to attempt to address the pleading deficiencies identified in this Order and the 27 Court’s prior dismissal Order. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) 28 (“A district court should not dismiss a pro se complaint without leave to amend unless it is 1 || absolutely clear that the deficiencies of the complaint could not be cured by amendment.”’) 2 || (internal quote marks omitted). 3 ||. Conclusion and Orders 4 Accordingly, good cause appearing, the Court DISMISSES Plaintiff's FAC for 5 || failing to state a claim upon which relief may be granted pursuant to 28 U.S.C. 6 || §§ 1915(e)(2)(B)G)) & 1915A(b)(1) and GRANTS Plaintiff forty-five (45) days leave 7 || from the date of this Order in which to file an Second Amended Complaint which cures all 8 ||the deficiencies of pleading noted. Plaintiff's Second Amended Complaint must be 9 complete by itself without reference to his original pleading. Defendants not named and 10 |/any claim not re-alleged in his Second Amended Complaint will be considered waived. 11 ||See S.D. CAL. CIVLR 15.1; Hal Roach Studios, Inc., 896 F.2d at 1546 (“[A]n amended 12 pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 13 2012) (noting that claims dismissed with leave to amend which are not re-alleged in an 14 amended pleading may be “considered waived if not repled.’’) 15 If Plaintiff fails to file a Second Amended Complaint within the time provided, the 16 || Court will enter a final Order dismissing this civil action based both on Plaintiffs failure 17 || to state a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) 18 || & 1915A(b)(1), and his failure to prosecute in compliance with a court order requiring 19 |}amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does 20 take advantage of the opportunity to fix his complaint, a district court may convert the 21 || dismissal of the complaint into dismissal of the entire action.’’) 22 IT IS SO ORDERED. 23 || Dated: November 21, 2024 © ¢ 24 Hon. Anthony J. attaglia 25 United States District Judge 26 27 28 8 a ee