Opinion
A130596
09-29-2011
MALIK ALI MUHAMMAD, Plaintiff and Appellant, v. COUNTY OF MARIN et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Marin County Super. Ct. No. CIV092195)
In April 2005, a jury convicted appellant Malik Ali Muhammad of four counts of felony stalking (Pen. Code, § 646.9) and the trial court sentenced him to state prison. In May 2009, appellant filed a complaint in propria persona alleging, among other things, that the County of Marin (the County), the County of Marin Probation Department (Probation Department), the prosecutor, and various Probation Department employees deprived him of his civil rights (42 U.S.C. §§ 1983, 1985, 1986; Civ. Code, §§ 51, 52, 52.3) and intentionally inflicted emotional distress during the prosecution and his subsequent incarceration. In September 2010, the court granted defendants' motion for judgment on the pleadings. The court determined, among other things, that the complaint failed to state facts sufficient to constitute a cause of action because defendants were immune from liability. (Code Civ. Proc., § 438, subds. (c)(1)(B)(ii); (h)(3), Gov. Code, §§ 815.2, 821.6.)
Unless otherwise noted, all further statutory references are to the Government Code.
On appeal, appellant contends the court: (1) committed "prejudicial error" by incorrectly applying "federal and state 'immunity' provisions;" (2) abused its discretion by dismissing the complaint without leave to amend; (3) acted in excess of its jurisdiction; and (4) denied him equal protection under the federal Constitution.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We accept as true the facts alleged in the complaint because this matter comes to us after the trial court granted a motion for judgment on the pleadings. (See Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 647, fn. 1.)
Appellant has several prior convictions for stalking (Pen. Code, § 646.9). (See, e.g., People v. Muhammad (2007) 157 Cal.App.4th 484, 487.) In April 2005, a jury convicted appellant of four counts of felony stalking, including stalking with a prior conviction (Pen. Code, § 646.9, subd. (c)(2)). Geoff Iida, a deputy district attorney for the County, prosecuted the case. The court directed the Probation Department to prepare a presentence report.
On May 7, 2005, probation officer Jessica Fort interviewed appellant to determine whether he was suitable for probation. On June 6, 2005, Fort submitted a presentence probation report (probation report) recommending the court sentence appellant to state prison based on several factors, including his prior unsuccessful performance on probation and the sophistication in which he carried out his crimes. Fort opined appellant was using "a non violent means to send extremely violent and threatening messages" to a Citigroup employee, Ivory Jean Hart. She also opined he exhibited "menacing behavior" demonstrating an intent to "terroriz[e] his victim by any means necessary." In the narrative portion of the probation report, Fort noted appellant "believed he is beyond reproach" and that he perceived himself as a "martyr/champion of the righteous." Fort explained that appellant had "converted to the Islamic religion" while incarcerated for a prior conviction and had manipulated Islamic religious tenets "into supporting his self involved belief system." The court sentenced appellant to 11 years in prison.
On July 29, 2005, appellant sent a letter to Anne Wooliever, the Probation Department's chief probation officer, advising her that Fort made "prejudicial Islamophobic sentiments" in the probation report. In response, Wooliever informed appellant "that the matter had been referred to the proper supervisory personnel." A few weeks later, Michael Daly, Fort's supervisor, notified appellant that Fort's conduct was "acceptable and in conformity" with the Probation Department's "official policies, practices and guidelines[.]"
In September 2005, appellant was transported to California State Prison, Corcoran. In late November 2006, "two unidentified members" of the Prison Investigative Services Unit (ISU) "confronted" appellant and informed him that "'certain County . . . 'officials' did not 'like' the fact that he . . . had been writing letters to them" and advised him that he would be "subjected to disciplinary reprisals" if he continued to write such letters.
The Complaint
In May 2009, appellant sued the County, the Probation Department, Iida, Fort, Wooliever, Daly, and probation officer Michael Robak (collectively, defendants) in their individual and official capacities. Appellant's first cause of action against all defendants, for deprivation of his civil rights in violation of 42 United States Code section 1983, alleged Fort's "aversion and disdain to and for his religion and his right to freely exercise the tenets" of his religion deprived him "of his fundamental constitutional right to freely exercise the religion of his choice. . . ." Appellant further alleged defendants sanctioned "the actions and conduct" of the "ISU members" and that the "admonishment to him regarding the likelihood of the receipt of 'disciplinary reprisals' was primarily designed to deter him from the lawful exercise of his fundamental constitutional right to seek redress of his grievances" pursuant to the First Amendment. Appellant also alleged defendants denied him equal protection under the federal Constitution.
Robak is named as a defendant in the complaint but is not a party on appeal. In the statement of facts in his opening brief, appellant contends he was served "pork without an acceptable substitute[,]" which constituted a "denial of his fundamental religious mandates." The complaint does not include this allegation.
42 United States Code section 1983 provides in relevant part: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
The second cause of action alleged defendants conspired to deprive him of his civil rights in violation of 42 United States Code section 1985(3). The third cause of action alleged Wooliever and Daly violated 42 United States Code section 1986 by neglecting to prevent the aforementioned civil rights violations. Appellant claimed these defendants "willfully conspired and agreed . . . to misuse their authority and power for the purpose of depriving . . . [him] of his fundamental right to equal protection of the law. . . ." Specifically, appellant alleged Wooliever and Daly "ratified" the "prejudicial, Islamophobic statements" made by Fort in the probation report. Appellant further alleged Wooliever and Daly were aware of the conspiracy and refused to prevent it. In his fourth cause of action, appellant claimed Robak, Wooliever, the County, and the Probation Department violated the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) by imposing "a substantial burden on [his] right to freely exercise the religion of his choice. . . ." (42 U.S.C. § 2000cc(a)(1).)
42 United States Code section 1985(3) provides for the recovery of damages "[i]f two or more persons . . . conspire . . . for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws. . . ." 42 United States Code section 1986 provides a cause of action for knowingly neglecting to prevent violations of 42 United States Code section 1985.
In his fifth, sixth, and seventh causes of action, appellant alleged defendants violated Civil Code sections 51, 52, and 52.3. Specifically, appellant claimed Fort made disparaging comments about his religion in the probation report and that the remaining defendants "ratified the wrongful conduct." Appellant further alleged that in November 2006, defendants conspired to deprive him of his right to "seek redress of his grievances." Finally, appellant alleged defendants engaged in a "pattern or practice of conduct which was designed to deprive [him] of his rights and privileges" under the state and federal Constitutions. Appellant's eighth and final cause of action alleged defendants intentionally inflicted emotional distress from May 2005 — when Fort interviewed him — to November 2006, when unidentified ISU members directed him to stop writing letters to unspecified county officials.
California Civil Code section 51, known as the Unruh Civil Rights Act, provides: "All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever." (Civ. Code, § 51, subd. (b).) Civil Code section 52.3, subdivision (a) provides: "No governmental authority, or agent of a governmental authority, or person acting on behalf of a governmental authority, shall engage in a pattern or practice of conduct by law enforcement officers that deprives any person of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States or by the Constitution or laws of California." Civil Code section 52 provides damages for violations of Civil Code section 51.
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The Motion for Judgment on the Pleadings
In June 2010, defendants moved for judgment on the pleadings (Code Civ. Proc., § 438, subd. (c)(1)(B)(ii)). Defendants contended appellant did not, and could not, allege a valid cause of action because they were immune from liability. They also argued appellant failed to state a cause of action under RLUIPA because his incarceration did not impair his right to exercise the religion of his choice. Finally, defendants contended appellant could not state a claim for intentional infliction of emotional distress because the conduct alleged was not outrageous and because they were "merely carrying out the duties of their respective jobs."
On September 29, 2010, the court granted the motion without leave to amend and entered judgment for defendants. Among other things, the court determined: (1) Iida, Fort, Wooliever, and Daly were immune from damages for the state statutory and common law causes of action pursuant to section 821.6 because the complaint alleged defendants were acting within the course and scope of their employment; (2) the County and the Probation Department were immune from liability pursuant to section 815.2; (3) all defendants had absolute immunity from the federal civil rights claims and the cause of action alleging a violation of RLUIPA; (4) appellant's claim for interference with RLUIPA failed because appellant did not allege facts demonstrating defendants interfered with his right to worship freely while incarcerated; and (5) appellant's claim that defendants interfered with his right to redress his grievances failed to allege facts connecting defendants' conduct with statements made by ISU representatives. The court concluded there was no reasonable probability appellant could amend the complaint to state a valid cause of action.
Defendants filed a notice of entry of the court's order granting their motion on October 6, 2010. Appellant mailed his notice of appeal on November 29, 2010, but it was not filed until December 13, 2010, after the 60-day period set forth in California Rules of Court, rule 8.104(a) expired. The prison-delivery doctrine — which deems notice of appeal filed on date it is delivered by prisoner to prison authorities — "applies to civil appeals filed by an incarcerated in propria persona litigant." (Shufelt v. Hall (2008) 163 Cal.App.4th 1020, 1023.) Defendants do not contend the appeal is untimely.
DISCUSSION
"A motion for judgment on the pleadings is akin to a general demurrer; it tests the sufficiency of the complaint to state a cause of action. [Citation.] The court must assume the truth of all factual allegations in the complaint, along with matters subject to judicial notice. [Citation.] Appellate courts review judgments on the pleadings de novo. [Citation.]" (Wise v. Pacific Gas & Electric Co. (2005) 132 Cal.App.4th 725, 738.)
I. Defendants Are Immune from Liability
To place the issues in context, we briefly discuss relevant immunity provisions under federal and state law.
42 United States Code section 1983 allows a plaintiff the right to sue, in either state or federal court, for compensation and deterrence "'for violations of federal rights committed by persons acting under color of state law.' [Citations.]" (Pitts v. County of Kern (1998) 17 Cal.4th 340, 348 (Pitts))This means "a local government may be liable for constitutional torts committed by its officials according to municipal policy, practice, or custom. [Citation.]" (Weiner v. San Diego County (9th Cir. 2000) 210 F.3d 1025, 1028 (Weiner).) But "'a municipality cannot be held liable solely because it employs a tortfeasor—or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.' [Citation.] Thus, 'a local government may not be sued under [section] 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.' [Citations.]" (Pitts, supra, 17 Cal.4th at p. 349.)
A plaintiff may sue government officials in their personal and official capacities. "'Personal-capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law.' [Citation.] 'Official-capacity suits, in contrast, "generally represent only another way of pleading an action against an entity of which an officer is an agent."' [Citations.] . . . [¶] 'When it comes to defenses to liability, an official in a personal-capacity action may, depending on his position, be able to assert personal immunity defenses. . . . [Citation.] In an official-capacity action, these defenses are unavailable. [Citations.] The only immunities that can be claimed in an official-capacity action are forms of sovereign immunity that the entity . . . may possess, such as the Eleventh Amendment.' [Citation.]" (Pitts, supra, 17 Cal.4th at p. 350.)
Various California statutes provide immunity for public employees for actions taken in the course and scope of employment. Section 821.6 provides that "[a] public employee is not liable for injury caused by his [or her] instituting or prosecuting any judicial or administrative proceeding within the scope of his [or her] employment, even if he [or she] acts maliciously and without probable cause." California courts have given section 821.6 "an 'expansive interpretation' . . . to best further the rationale of the immunity, that is, to allow the free exercise of the prosecutor's discretion and protect public officers from harassment in the performance of their duties." (Ingram v. Flippo (1999) 74 Cal.App.4th 1280, 1292.) Accordingly, "the immunity provided by section 821.6 bars liability for any injury caused by the prosecution of the judicial proceeding. . . ." (Amylou R. v. County of Riverside (1994) 28 Cal.App.4th 1205, 1211; Jacqueline T. v. Alameda County Child Protective Services (2007) 155 Cal.App.4th 456, 468 (Jacqueline T.).) Section 815.2, subdivision (b) provides, "[e]xcept as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability."
Together, "sections 821.6 and 815.2 . . . immunize the County [and the Probation Department] and its employees 'from liability for the actions or omissions of the investigating officers if: (1) the officers were employees of the County [or the Probation Department]; (2) [appellant's] injuries were caused by acts committed by the officers to institute or prosecute a judicial or administrative proceeding; and (3) the conduct of the officers while instituting or prosecuting the proceeding was within the scope of their employment.' [Citation.]" (County of Los Angeles v. Superior Court (2009) 181 Cal.App.4th 218, 228 (County of Los Angeles))
A. The Individual Defendants are Immune from Liability Appellant's first and second causes of action allege the individual defendants — Iida, Fort, Wooliever, and Daly — deprived and conspired to deprive him of his federal civil rights in violation of 42 United States Code sections 1983 and 1985(3). The third cause of action alleges Wooliever and Daly violated 42 United States Code section 1986 by neglecting to prevent the aforementioned civil rights violations. The court determined these defendants were absolutely immune from liability on appellant's federal civil rights causes of action. We agree.
The complaint alleged Iida was responsible for the "lawful prosecution of individuals charged with the commission of criminal offenses within . . . [the] County. . . Iida, is sued in his individual and official capacities." Although the complaint alleged Iida was "acting within the course and scope" of his employment, it did not identify or allege any specific behavior by Iida that violated appellant's federal civil rights. Appellant's federal civil rights claims against Iida fail because "'state prosecutors are absolutely immune from liability under sections 1983 for conduct that is 'intimately associated with the judicial phase of the criminal process.'" (Pitts, supra, 17 Cal.4th at p. 350, quoting Imbler v. Pachtman (1976) 424 U.S. 409, 430-431 (Imbler); Agnew v. Moody (9th Cir. 1964) 330 F.2d 868, 869 (Agnew)[extending prosecutorial immunity to claims made pursuant to 42 United States Code section 1985].) Additionally, prosecutors are "entitled to qualified immunity . . . for conduct not 'intimately associated with the judicial phase of the criminal process,' including giving legal advice to police, or conducting investigations regarding an individual before there is probable cause to have that individual arrested." (Pitts, supra, 17 Cal.4th at p. 351, quoting Imbler, supra, 424 U.S. at p. 430.) Here, the complaint does not identify or allege any specific behavior by Iida that violated appellant's federal civil rights. Iida is therefore entitled to absolute immunity from liability for initiating the prosecution and presenting the state's case; he is entitled to qualified immunity for conduct "not 'intimately associated with the judicial phase of the criminal process.'" (Pitts, supra, 17 Cal.4th at p. 351.)
Appellant's attempt to sue Iida in his official capacity for federal civil rights deprivations fails for the additional reason that Iida is not a "person" for purposes of claims brought under 42 United States Code sections 1983 and 1985. (County of Los Angeles, supra, 181 Cal.App.4th at p. 234.) Appellant sued Iida in his official capacity as a deputy district attorney for the County, "which is simply another way of pleading the action against the State of California, of which the district attorney is an agent. [Citation.] As such, the district attorney is not a person within the meaning of section 1983, and may not be found liable under that statute [citation] by virtue of the Eleventh Amendment and the doctrine of sovereign immunity." (County of Los Angeles, supra, 181 Cal.App.4th at p. 234; see also Pitts, supra, 17 Cal.4th at p. 345 ["the district attorney represents the state, not the county, when preparing to prosecute and when prosecuting crimes, and when establishing policy and training employees in these areas"].)
The remaining individual defendants are also entitled to immunity. As to Fort, who prepared the presentence probation report, the Ninth Circuit has held that that "probation officers preparing presentencing reports for state court judges are entitled to absolute judicial immunity from personal damage actions brought under [42 United States Code] section 1983." (Demoran v. Witt (9th Cir. 1986) 781 F.2d 155, 158 (Demoran).)The Demoran court reasoned that "[p]robation officers preparing presentencing reports serve a function integral to the independent judicial process. . . . they act as 'an arm of the sentencing judge.'" (Id. at p. 157, quoting Cleavinger v. Saxner (1985) 474 U.S. 193, 204.) Fort is therefore entitled to absolute immunity on appellant's first and second causes of action alleging claims pursuant to 42 United States Code sections 1983 and 1985. (Agnew, supra, 330 F.2d at p. 869.) Daly and Wooliever are also entitled to absolute immunity on the first, second, and third causes of action under the principles articulated in Demoran because their approval of the probation report "serve[d] a function integral to the independent judicial process." (Demoran, supra, 781 F.2d at p. 157.) Courts have extended this immunity to social workers performing quasi-judicial functions (Meyers v. Contra Costa County Dept. of Soc. Serv. (9th Cir. 1987) 812 F.2d 1154, 1157) and court investigators (Fisher v. Pickens (1990) 225 Cal.App.3d 708, 715).
Under the circumstances present here, the probation officers who ratified the probation report are entitled to the same immunity provided to the probation officer who prepared the report. Appellant alleged Wooliever and Daly were acting within the scope of their employment; he did not allege they were "act[ing] clearly and completely outside the scope of their jurisdiction." (Demoran, supra, 781 F.2d at p. 158.) As the Demoran court explained, "[t]he prospect of damage liability under [42 United States Code] section 1983 would seriously erode the [probation] officer's ability to carry out his independent fact-finding function and thereby impair the sentencing judge's ability to carry out his judicial duties." (Demoran, supra, 781 F.2d at p. 157.)
The court also correctly concluded the individual defendants were immune from appellant's state law claims pursuant to section 821.6. In his fifth through eighth causes of action, appellant alleged Iida, Fort, Wooliever, and Daly were acting within the course and scope of their employment when they violated Civil Code sections 51, 52, and 52.3 and when they intentionally inflicted emotional distress. "Although . . . section 821.6 has primarily been applied to immunize prosecuting attorneys and other similar individuals, this section is not restricted to legally trained personnel but applies to all employees of a public entity" including probation officers. (Kemmerer v. County of Fresno (1988) 200 Cal.App.3d 1426, 1436 (Kemmerer); Howard v. Drapkin (1990) 222 Cal.App.3d 843, 856; Demoran, supra, 781 F.2d at p. 157.) Appellant alleged Fort was acting "within the course and scope of [her] employment." Fort's interview with appellant and her preparation of the presentence probation report are undoubtedly connected to the "prosecution process" and are "protected by the immunity in section 821.6." (County of Los Angeles, supra, 181 Cal.App.4th at p. 229.)
We reach the same conclusion regarding appellant's state law claims against Wooliever and Daly. Their "ratification" of other defendants' conduct was triggered by the criminal prosecution and was therefore part of the "prosecution process." (County of Los Angeles, supra, 181 Cal.App.4th at p. 229.) Moreover, section 821.6 "appears also to extend to conduct that occurred after the close of the proceeding." (County of Los Angeles, at p. 229, citing cases.) "The test of immunity is not the timing of the offending conduct but whether there is a causal relationship between the act and the prosecution process." Here, there was a causal relationship between Wooliever and Daly's ratification of Fort's conduct and the "prosecution process." As such, their conduct is immunized by section 821.6. (County of Los Angeles, at p. 229.)
B. The Public Entity Defendants Are Immune from Liability
The County and the Probation Departments are immune from liability on appellant's first and second causes of action alleging federal civil rights violations. As noted above, appellant sued the County and the Probation Department for violating 42 United States Code sections 1983 and 1985(3). The court determined these public entity defendants were immune from liability.
As stated above, "[p]ursuant to 42 [United States Code section] 1983, a local government may be liable for constitutional torts committed by its officials according to municipal policy, practice, or custom. [Citation.] To hold a local government liable for an official's conduct, a plaintiff must first establish that the official (1) had final policymaking authority 'concerning the action alleged to have caused the particular constitutional or statutory violation at issue' and (2) was the policymaker for the local governing body for the purposes of the particular act." (Weiner, supra, 210 F.3d at p. 1028, quoting McMillian v. Monroe County (1997) 520 U.S. 781, 785.)
Appellant concedes "a municipality cannot be held liable solely because it employs a tortfeasor—or, in other words, a municipality cannot be held liable under [section] 1983 on a respondeat superior theory." (Monell v. New York City Dept. of Social Services (1978) 436 U.S. 658, 691.) He contends, however, the County and the Probation Department are not entitled to immunity because they failed to train their employees, and that this failure to train amounted to a deliberate indifference to his constitutional rights. At oral argument appellant stated this was his essential claim. The problem with this argument is the complaint does not allege the County and the Probation Department failed to train their respective employees, nor does it allege that any purported failure to train constituted a constitutional deprivation. The complaint merely alleges the County was a public entity and business establishment and that the Probation Department was responsible for supervising and evaluating its employees. Notably, the complaint does not allege the individual or public entity defendants executed a policy or custom constituting or causing the constitutional deprivation. (Pitts, supra, 17 Cal.4th at p. 349.) Even if appellant had alleged a failure to train or a deliberate indifference to training, that allegation would not state a claim under 42 United States Code section 1983 because it is not an allegation of an unconstitutional adoption of policy.
The County and the Probation Department are also immunized from liability on appellant's fifth, sixth, seventh, and eighth causes of action alleging violations of California law. Where employees of a public entity are immune from liability for state law claims pursuant to section 821.6, the public entity employer is also immune from liability under section 815.2. (Ross v. San Francisco Bay Area Rapid Transit Dist. (2007) 146 Cal.App.4th 1507, 1516; Jacqueline T., supra, 155 Cal.App.4th at p. 468 [where county social workers were immune from liability pursuant to section 821.6, county was likewise immune under section 815.2]; Kemmerer, supra, 200 Cal.App.3d at p. 1435 [where the employee is immune pursuant to section 821.6, "so too is the County" employer].) Appellant does not argue the County and the Probation Department are directly liable pursuant to section 815.6 for failing to discharge a mandatory duty. (See, e.g., Jacqueline T., supra, 155 Cal.App.4th at p. 469.)
Appellant's claims against the public entity defendants — the County and the Probation Department — arise out of their status as employers of Iida, Fort, Wooliever, and Daly. As established above, each of the individual defendants is immune from liability on appellant's state law claims pursuant to section 821.6. As a result, the County and the Probation Department are immune from liability pursuant to section 815.2 on appellant's fifth, sixth, seventh, and eighth causes of action alleging violations of state law.
II. Appellant Failed to State a Claim for a Violation of RLUIPA
Appellant's fourth cause of action accuses Wooliever, the County, and the Probation Department of violating RLUIPA by imposing a "substantial burden" on his right to exercise the religion of his choice. According to the complaint, "to have been afforded equal treatment and consideration" from unspecified entities, appellant "would necessarily have been required to relinquish or disavow basic and fundamental rights of his chosen religion."
RLUIPA provides that "[n]o 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 the burden is "in furtherance of a compelling governmental interest" and is "the least restrictive means of furthering that . . . interest." (42 U.S.C. § 2000cc-1(a).) RLUIPA defines "'religious exercise'" to include "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).) "Substantially burdening one's free exercise of religion means that the regulation must significantly inhibit or constrain conduct or expression that manifests some central tenet of a person's individual religious beliefs; must meaningfully curtail a person's ability to express adherence to his or her faith; or must deny a person reasonable opportunities to engage in those activities that are fundamental to a person's religion." (Patel v. U.S. Bureau of Prisons (8th Cir. 2008) 515 F.3d 807, 813; see also Shakur v. Schriro (9th Cir. 2008) 514 F.3d 878, 888 (Shakur); Warsoldier v. Woodford (9th Cir. 2005) 418 F.3d 989, 995 (Warsoldier).)"'RLUIPA . . . protects institutionalized persons who are unable [to] freely . . . attend to their religious needs and are therefore dependent on the government's permission and accommodation for exercise of their religion.'" (Shakur, supra, 514 F.3d at p. 888, quoting Cutter v. Wilkinson (2005) 544 U.S. 709, 721.)
The court determined appellant failed to state facts sufficient to constitute a cause of action under RLUIPA because the complaint did not allege facts "that would demonstrate these [d]efendants interfered with [appellant's] right to freely worship while incarcerated. There is nothing contained in the pre-sentence report that limits [appellant's] exercise of his religion." We agree. Appellant's RLUIPA claim fails because it does not allege facts demonstrating defendants imposed a substantial burden on his right to freely exercise his religion. Neither Fort's probation report nor Wooliever's ratification of that report placed a burden on appellant's ability to practice his Muslim faith. Similarly, the comments made by unnamed ISU members — who are not parties to this litigation — did not impose a "significantly great restriction or onus" upon the exercise of appellant's religion. (Warsoldier, supra, 418 F.3d at p. 995.)
The complaint's conclusory allegation that appellant "would necessarily have been required to relinquish or disavow basic and fundamental rights of his chosen religion" does not alter our conclusion. Appellant has not alleged defendants "'put substantial pressure on [him] to modify his behavior and to violate his beliefs.'" (Jolly v. Coughlin (2d Cir. 1996) 76 F.3d 468, 477 (Jolly), quoting Thomas v. Review Bd. of the Indiana Employment Sec. Div. (1981) 450 U.S. 707, 718.) In his opening brief, appellant claims Fort's description of appellant as "'beyond reproach'" somehow demonstrates an interference with the "exercise of his religious beliefs." We disagree. The probation report's characterization of appellant did not put "'substantial pressure on [him] to modify his behavior and to violate his beliefs.'" (Jolly, supra, 76 F.3d at p. 477.) Appellant also contends he was "served pork . . . for multiple months" while incarcerated, and that Muslims are "strictly forbidden from pork consumption." Appellant, however, concedes he did not allege this fact in his complaint.
Based on the foregoing, we reject appellant's claim that the court abused its discretion by granting defendants' motion for judgment on the pleadings without leave to amend. Appellant's reliance on cases interpreting the pleading rules set forth in the Federal Rules of Civil Procedure does not assist him and appellant has not proposed any way of successfully amending the complaint to avoid federal and state immunity. Having concluded defendants are immune from liability on appellant's claims alleging violations of state law, we need not address defendants' argument that the complaint failed to state a claim for intentional infliction of emotional distress.
III. Appellant's Claims That the Court Acted in Excess of Its Jurisdiction and Violated His Right to Equal Protection Under the Federal Constitution Fail
In September 2009, appellant moved to disqualify Judge Dufficy, apparently because the judge's denial of appellant's petition for writ of habeas corpus demonstrated the judge was biased against him. In October 2009, Judge Dufficy struck the statement of disqualification pursuant to Code of Civil Procedure section 170.4, subdivision (b). Appellant filed a petition for writ of mandate, which this court denied.
On appeal, appellant claims the court acted in "excess of its jurisdictional authority" when it struck his motion to disqualify. There are several problems with this argument. One problem is that it is not cognizable on appeal. "The determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate. . . ." (Code Civ. Proc., § 170.3, subd. (d).) This court — having already rejected appellant's petition for writ of mandate challenging the order striking his motion to disqualify — will not address appellant's challenge to the order on appeal.
In November 2009, appellant filed a motion for appointment of counsel. In January 2010, the court denied the motion. It concluded appellant failed to "show that his physical liberty would be deprived without appointment of counsel . . . nor does [appellant] show that the issues presented are so complex and numerous as to warrant appointment of counsel in the interests of judicial economy." On appeal, appellant contends Judge Dufficy acted in "excess of his jurisdictional authority" when he denied the motion for appointment of counsel. Even assuming this order is appealable (see Iraheta v. Superior Court (1999) 70 Cal.App.4th 1500, 1515), we reject appellant's argument because it is unsupported by any authority. (Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.) We reject appellant's claim that the denial of this motion deprived him of his right to equal protection under the federal Constitution for the same reason: it is unsupported by authority. (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 ["absence of . . . citation to authority allows this court to treat the contentions as waived"].)
DISPOSITION
The judgment is affirmed. Defendants are awarded costs on appeal.
Jones, P.J. We concur:
Simons, J.
Bruiniers, J.