ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
KEITH STRONG, Magistrate Judge.
Mr. McGovern, who is incarcerated, alleges prison staff and officials violated his religious rights by depriving him of Wiccan religious materials and worship opportunities. CD 13. Three counts in Mr. McGovern's Complaint state claims under the Religious Land Use and Institutionalized Persons Act: Count 2, alleging a prison policy that limits him to one religion deprives him of the opportunity to participate in Native American Sweats; Count 4, alleging Wiccan materials are not provided to inmates in disciplinary segregation, and Count 5, alleging he is not allowed to have an important book of prayers.
Defendants Ferriter, Woods, Swanson, Wilson, Marthaller, Foster, Smith and Mihelich must respond to Counts 2, 4 and 5 of the Amended Complaint. Mr. McGovern's allegations in Counts 1, 3 and 6 of the Amended Complaint do not plausibly allege substantial burdens have been imposed on Mr. McGovern's sincerely-held religious beliefs. Mr. McGovern has already had the opportunity to amend his Complaint with specific instructions regarding pleading requirements. Further amendment would be futile. Counts 1, 3 and 6 should be dismissed with prejudice.
Mr. McGovern filed this action in federal court, in the Helena Division of the District of Montana. CD 2. Venue is proper, as he is incarcerated in and alleges wrongs committed in Powell County, Montana. Local Rule 3.2(b)(3). The Court has personal jurisdiction over the parties, all of whom are found in Montana. Fed.R.Civ.P. 4(k)(1)(A); Mont. R. Civ. P. 4(b). The federal court has subject matter jurisdiction, as the Complaint alleges violations of right protected by federal law. 28 U.S.C. § 1331, 28 U.S.C. § 1343(a). The case was assigned to Hon. Dana L. Christensen, United States District Court Judge, and referred to the undersigned. Local Rule 72.2(a)(1).
Mr. McGovern previously filed a complaint that the court reviewed before service, as it must for complaints filed by prisoners. CD 2, 28 U.S.C. 1915. The complaint could not be served because certain counts did not state a claim on which relief could be granted, and Mr. McGovern had not satisfied the administrative exhaustion requirement for the remaining claims. CD 12. However, Mr. McGovern was granted leave to amend the complaint to attempt to correct the deficiencies. CD 12.
Mr. McGovern filed an Amended Complaint on March 4, 2013. CD 13. The Amended Complaint also must be reviewed before it is served on the Defendants to determine if the allegations are frivolous, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915, 1915A. If so, the Amended Complaint must be dismissed. 28 U.S.C. § 1915(e)(2). This is the review.
A. Stating a claim
A complaint must allege sufficient factual matter to "state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). Plausibility is less than probability, but requires "more than a sheer possibility that a defendant has acted unlawfully." Id . Pleadings that are no more than conclusions are not entitled to the presumption of truth and may be disregarded. Id. at 679. A plaintiff must plead the essential elements of a claim to avoid dismissal for failure to state a claim. Ivey v. Board of Regents , 673 F.2d 266, 268 (9th Cir. 1982).
B. Leave to amend
The court liberally construes pro se pleadings. Eldridge v. Block , 832 F.2d 1132, 1137 (9th Cir. 1987). "Unless it is absolutely clear that no amendment can cure the defect... a pro se litigant is entitled to notice of the complaint's deficiencies and an opportunity to amend prior to dismissal of the action." Lucas v. Dep't of Corr. , 66 F.3d 245, 248 (9th Cir. 1995).
Leave to amend a complaint should be given freely "when justice so requires." Fed.R.Civ.P. 15. However, a district court should dismiss a complaint without granting leave to amend if amendments would be futile. Klamath Lake Pharmaceutical Ass'n v. Klamath Medical Services Bureau , 701 F.2d 1276, 1293 (9th Cir. 1983). "Leave to amend need not be given if a complaint, as amended, would be subject to dismissal." Moore v. Kayport Package Exp., Inc. , 885 F.2d 531, 538 (9th Cir. 1989).
Mr. McGovern alleges he has been deprived of religious rights in prison. CD 13. Though he presents the allegations as violations of the United States and Montana constitutions, they will be construed and analyzed under the Religious Land Use and Institutionalized Persons Act, 42 U.S. 2000cc et seq. ("RLUIPA"). RLUIPA has a stricter standard of review of prison regulations than First Amendment standards. Shakur v. Schriro , 514 F.3d 878, 888 (9th Cir. 2008). Also, "prior to reaching any constitutional questions, federal courts must consider nonconstitutional grounds for decision." Gulf Oil Co. v. Bernard , 452 U.S. 89, 99 (1981).
No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution... even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
42 U.S.C.§ 2000cc-1(a).
Religious exercise under RLUIPA "includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief." 42 U.S.C. § 2000cc-5(7)(A). A "substantial burden" is a burden that is "oppressive' to a significantly great' extent." Warsoldier, 418 F.3d at 995 (quoting San Jose Christian College v. City of Morgan Hill , 360 F.3d 1024, 1034 (9th Cir.2004)).
A prison is not required by RLUIPA to pay for an inmate's devotional accessories. 42 U.S.C. 2000cc-1(a); Knows His Gun v. Montana , 866 F.Supp.2d 1235 (2012). However, allegations that the prison prohibits important items necessary for proper practice of religious ceremonies, satisfies the pleading standard for a RLUIPA claim. Id. at 1240.
RLUIPA is to be construed broadly in favor of protecting an inmate's right to exercise his religious beliefs. Indreland v. Yellowstone County Bd. of Comr's , 693 F.Supp.2d 1230 (D. Mont. 2010). Under RLUIPA, prison officials bear the burden of establishing that the restriction challenged is the least restrictive alternative to achieve a compelling governmental interest. Alvarez v. Hill , 518 F.3d 1152 (9th Cir. 2008). Prison officials cannot justify restrictions on religious exercise by simply citing to the need to maintain order and security in a prison, but instead they must demonstrate that they actually considered and rejected the efficacy of less restrictive measures before adopting the challenged practice. Alvarez v. Hill , 518 F.3d 1152 (9th Cir. 2008).
For purposes of this review, the allegations in the Complaint are presumed to be true so long as they have some factual support. Unsupported legal conclusions, however, are disregarded.
Mr. McGovern has been incarcerated at Montana State Prison since June 2011. He practices the Wiccan religion. He alleges his ability to practice his religion has ...