Opinion
Case No. 2:19-cv-10449-JVS-KES
10-27-2020
KOHEN DIALLO UHURU, Plaintiff, v. JIM BONNIFIELD, et al. Defendants.
FINAL REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE
This Final Report and Recommendation ("R&R") is submitted to the Honorable James V. Selna, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
I.
INTRODUCTION
Kohen Diallo Uhuru ("Plaintiff"), an inmate currently housed at the California Health Care Facility in Stockton ("CHCF"), has filed a civil rights complaint under 42 U.S.C. § 1983, the Americans with Disabilities Act ("ADA"), and the Religious Land Use and Institutionalized Person's Act ("RLUIPA") against staff members at the California Men's Colony in San Luis Obispo ("CMC"), where Plaintiff was previously housed. Generally, Plaintiff alleges that Defendants violated his First, Fifth, and Fourteenth Amendment rights by denying him the ability to practice his Nubian Hebrew Israelite ("NHI") religion, retaliating against him for filing complaints and lawsuits about CMC staff's behavior, and denying him access to the courts.
Although Plaintiff also asserts that his Eighth Amendment rights were violated (see, e.g., Dkt. 20 at 3), the First Amended Complaint does not appear to include any factual allegations to support such a claim.
The Court screened the initial Complaint under the Prison Litigation Reform Act ("PLRA") and dismissed it with leave to amend. (Dkt. 10.) Plaintiff then filed a First Amended Complaint. ("FAC" at Dkt. 20.)
The Magistrate Judge issued an initial R&R finding that: (a) the facts alleged in Plaintiff's FAC fail to state a claim under 42 U.S.C. § 1983, the ADA, or the RLUIPA; (b) leave to amend should be granted as to some claims and denied as futile as to others. (Dkt. 24.) Plaintiff filed Objections to the R&R adding some new facts and legal theories. (Dkt. 26 ["Objs."].) This Final R&R is issued to address the new factual allegations made in the Objections, although the overall recommendations remain largely unchanged.
Because this Final R&R is issued only to address the Objections Plaintiff filed to the initial R&R and the recommendation remains largely unchanged, Plaintiff is not granted leave to file new objections to this Final R&R. If the District Judge accepts this Final R&R, Plaintiff will be granted leave to file a Second Amended Complaint, as discussed further below.
II.
LEGAL STANDARD
A complaint may fail to state a claim for two reasons: (1) lack of cognizable legal theory; or (2) insufficient facts under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990) (as amended). In determining whether a complaint states a claim on which relief may be granted, its allegations of material fact must be taken as true and construed in the light most favorable to plaintiff. Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008).
Further, where the plaintiff is appearing pro se, the court must construe the allegations of the complaint liberally and must afford the plaintiff the benefit of any doubt. Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). However, the liberal pleading standard only applies to a plaintiff's factual allegations. "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997).
With respect to a plaintiff's pleading burden, the Supreme Court has held: "[A] plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do .... Factual allegations must be enough to raise a right to relief above the speculative level ... on the assumption that all the allegations in the complaint are true (even if doubtful in fact)[.]" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (To avoid dismissal for failure to state a claim, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. 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.") (internal citation and quotation marks omitted).
Although the scope of review generally is limited to the contents of the complaint, the Court may also consider documents attached to the complaint. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). Exhibits that contradict the allegations of a complaint may fatally undermine those allegations. Sprewell v.Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001), amended by, 275 F.3d 1187 (2001) (noting that a plaintiff can "plead himself out of a claim by including ... details contrary to his claims").
III.
DISCUSSION
A. Official Capacity Claims and Claims for Injunctive Relief
1. Legal Standard
Official capacity claims against CDCR employees are treated as claims against the CDCR. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-91 (1978). As a state agency, the CDCR is immune under the Eleventh Amendment from liability for money damages for § 1983 claims. See Will v. Mich. Dep't of State Police, 491 U.S. 58, 64-66 (1989); Holley v. Cal. Dep't of Corrs., 599 F.3d 1108, 1111 (9th Cir. 2010); Brown v. Cal. Dep't of Corrs., 554 F.3d 747, 752 (9th Cir. 2009).
A claim "for prospective injunctive relief provides a narrow, but well-established exception to Eleventh Amendment immunity." Flint v. Dennison, 488 F.3d 816, 825 (9th Cir. 2007) (citing Ex parte Young, 209 U.S. 123 (1908)). To fall under this exception, the complaint must "allege[] on ongoing violation of federal law and seek[] relief properly characterized as prospective." Verizon Md., Inc. v. PSC, 535 U.S. 635, 645 (2002) (citation omitted).
A claim for prospective injunctive relief may be mooted by a prisoner's transfer to another prison. Walker v. Beard, 789 F.3d 1125, 1132 (9th Cir. 2015). This is because "[o]nce an inmate is removed from the environment in which he is subjected to the challenged policy or practice, absent a claim for damages, he no longer has a legally cognizable interest in a judicial decision on the merits of his claim." Alvarez v. Hill, 667 F.3d 1061, 1064 (9th Cir. 2012) (citation omitted). Injunctive relief is not mooted by a transfer if the prisoner has a "reasonable expectation of returning" to the prison whose conditions he is challenging. Walker, 789 F.3d at 1132. Additionally, injunctive relief is not mooted by a transfer if "the policy pursuant to which the alleged violation occurred was 'system wide' and one of the defendants was in charge of the policy." Walker v. Beard, 789 F.3d 1125, 1132 (9th Cir. 2015).
2. Analysis
Like the initial Complaint, the FAC brings claims against each Defendant in both their individual and official capacities. (FAC at 3-5, 8.) To the extent Plaintiff's official capacity claims seek damages, they fail to state a claim because CDCR is immune from such damages under the Eleventh Amendment. Plaintiff may seek damages against Defendants in their individual capacities.
Although the FAC states that Defendants are being sued "individually for ... monetary compensation[] and ... separately for both injunctive and declaratory relief in their official capacities" (FAC at 14), the Court nevertheless includes this analysis in an abundance of caution.
The FAC also seeks the following declarative or injunctive relief:
• "granting the [NHI adherents the right] to receive donations from prisoners through charitable contributions, fundraising through food sales from Black-owned vendors";(FAC at 11.) These requests for injunctive relief seek relief against officials at CMC—the only Defendants named in the FAC—and they have been mooted by Plaintiff's transfer away from CMC to CHCF. (See id. at 1, 13.)
• a "court order to CDCR recognizing the [NHI] as a bona fide religion with holy fast days during the entire month of August and celebration of 8-day Passover in the second month"; and
• "church judicatory for the [NHI adherents] with explicit definitions on separation between church and state laws that will distinguish [NHI] vernacular [as] opposed to Eurocentric Jewish Yiddish...."
When quoting from Plaintiff's pro se FAC and Objections, the Court has amended scrivener's errors where Plaintiff's meaning is clear.
Although Plaintiff argues that he has a reasonable expectation of returning to CMC, he has not alleged sufficient facts to support this argument. First, although he alleges that he has been transferred back to CMC multiple times in the past, the reasons why remain unclear. Some of his allegations suggest that he was transferred to CMC in order to follow a mental health recommendation that he be assigned to a single cell; yet the FAC contends he was denied a single cell at CMC (as discussed below in section III.F.2.h). (See FAC at 13-14 [alleging he will be transferred back to CMC "for solitary in-cell worship with an open window for Plaintiff's relief of allergies due to past experiences where he has returned five times already even as an override with reconciliation case factors pertinent to single cell recommendations"]; Objs. at 2 [alleging that Plaintiff was "involuntarily returned to [CMC-East] for the fourth time from [the Richard J. Donovan] facility due to housing issues comparable to the court order designating CMC-East for single cell design of one prisoner per cell exempting his psychologist['s] ... and his psychiatrist['s] recommendations for solitary in-cell worship to be continued from the administrative segregation unit at the Richard J. Donovan Facility"].)
Second, Plaintiff alleges that he "has been informed by prison officials that CMC-East will be modified and revised down to a Level II [institution] whereas Plaintiff shall be returned." (Objs. at 9 ¶ 20.) This allegation is "too speculative to overcome mootness." Flowers v. Ahern, 650 F. Supp. 2d 988, 991 (N.D. Cal. 2009); see also Nelsen v. King Cty., 895 F.2d 1248, 1253 (9th Cir. 1990) ("speculative contingencies afford no basis for finding the existence of a continuing controversy as required by article III") (citation omitted). Plaintiff does not allege specific facts demonstrating a reasonable expectation that he will be transferred back to CMC.
Additionally, Plaintiff alleges that he "is being subjected to the same underground rules and policies" at CHCF based on "CHCF's refusal to remove crucifix (cross) affixed on top of E-Facility" and "denial of access to the courts with denials of in-presence legal copying of confidential legal material." (Objs. at 9 ¶ 21.) None of the injunctive relief sought in the FAC concerns CDCR-wide policies regarding placement of religious symbols in the chapel or access to courts, and there is no indication in Plaintiff's Objections that these arise out of a CDCR-wide policy. The complaints Plaintiff makes about CHCF would involve analyzing the specific facts of the incidents in question, not a CDCR-wide policy.
To the extent Plaintiff argues that his "transfer did not moot his claims ... because his religious property has not been compensated for [sic]" (Objs. at 9 ¶ 22), his transfer did moot his request for monetary damages, and he may continue to seek that relief.
Accordingly, the official capacity claims and requests for injunctive relief should be dismissed.
3. Denial of Leave to Amend
Plaintiff has had two opportunities to explain why his transfer to CHCF did not moot his requests for injunctive relief (in the FAC and the objections to the initial R&R). Those requests, as well as the official capacity claims, should now be dismissed without further leave to amend because it appears that granting further leave would be futile. B. Claims Against Gastelo, Bonnifield, and Steck Based on Supervisory Liability and Reviewing Grievances
1. Legal Standards
"There is no pure respondeat superior liability under § 1983...." Preschooler II v. Clark County Sch. Bd. of Trs., 479 F.3d 1175, 1182 (9th Cir. 2007). A supervisor is liable for the acts of his subordinates only "if there exists either (1) [the supervisor's] personal involvement in the constitutional deprivation, or (2) a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation." Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011).
2. Analysis
The Court notes that Defendants Acting Warden Gastelo, Community Resource Manager ("CRM") Bonnifield, and Correctional Captain Steck appear to be in positions of supervisory authority. Insofar as Plaintiff is attempting to hold these Defendants liable for the actions of subordinates, Plaintiff has not alleged facts sufficient to establish these Defendants' personal involvement in their subordinates' decisions or a causal connection between their conduct and an alleged constitutional deprivation. See Starr, 652 F.3d at 1207. For example, Plaintiff alleges that Warden Gastelo "violated her responsibility [under CDCR regulations] to operate assigned religious programs for" NHI adherents (FAC at 9), but he does not allege that Warden Gastelo was personally involved in any decision affecting the NHI adherents' rights.
To the extent the FAC alleges that Warden Gastelo and CRM Bonnifield misinterpreted and improperly denied Plaintiff's administrative grievances (FAC at 15-16), these allegations are insufficient to state a claim. Courts in this circuit generally agree that denying a prisoner's grievance does not, by itself, lead to liability. See Phillipi v. Patterson, No. 13-01514, 2014 U.S. Dist. LEXIS 105865 at *7, 2014 WL 11774836 at *3 (E.D. Cal. Aug. 1, 2014) ( "denial of an inmate appeal ... does not state a cognizable constitutional violation"), aff'd, 599 F. App'x 288 (9th Cir. 2015); see also Baldhosky v. Hubbard, No. 12-01200, 2018 U.S. Dist. LEXIS 45667 at*8-9, 2018 WL 1392058, at *3 (E.D. Cal. Mar. 20, 2018) ("denial of a prisoner's administrative requests generally does not cause or contribute to any underlying constitutional violation" unless prison administrators "willfully turn a blind eye to constitutional violations being committed by subordinates"); Thomas v. Matevousian, No. 17-1592, 2018 U.S. Dist. LEXIS 46663 at*9, 2018 WL 1452261 at *4 (E.D. Cal. Mar. 21, 2018) ("Actions in reviewing a prisoner's administrative appeal generally cannot serve as the basis for liability in a section 1983 action."). Moreover, as discussed further below, the FAC fails to allege facts demonstrating that Plaintiff's rights under the Free Exercise Clause or RLUIPA were violated; thus, Defendants' denial of Plaintiff's grievances raising these claims would not involve Defendants in a violation of his constitutional rights.
The FAC similarly fails to state a claim for alleged improper handling of grievances because "inmates lack a separate constitutional entitlement to a specific prison grievance procedure," Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003), and "delays and improper denials during the inmate appeal process do not state a constitutional claim." Alvarado v. Herndon, No. 10-0760-CJC-JEM, 2012 U.S. Dist. LEXIS 80856 at *18, 2012 WL 2365894 at *7 (C.D. Cal. Mar. 28, 2012), R&R adopted at, 2012 U.S. Dist. LEXIS 80855, 2012 WL 2110266 (C.D. Cal. June 11, 2012).
In his Objections, Plaintiff alleges that Defendant Captain Steck was a member of the "CMC Religious Review Committee," which denied NHI adherents equal access to chapel space. (Objs. at 5.) This allegation might support a finding that Defendant Steck was personally involved in a violation of Plaintiff's rights, assuming Plaintiff can state a claim for such a violation (discussed below in section III. F.2.g). However, to the extent Plaintiff is attempting to hold Defendant Steck liable simply because Steck was a correctional captain and lower-ranked officers under Steck's command violated Plaintiff's rights, this would fail to state a claim.
Accordingly, to the extent the FAC attempts to hold Defendants Gastelo, Bonnifield, and Steck liable for the actions of their subordinates or for denying grievances, these claims are dismissed.
3. Denial of Leave to Amend
Because the Court previously granted Plaintiff leave to amend these claims (Dkt. 10 at 5), it appears that granting further leave to amend would be futile. C. ADA Discrimination Claims
1. Legal Standards
Title II of the ADA provides:
[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefit of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.42 U.S.C. § 12132. This provision of the ADA extends to discrimination against inmates in state prison. Penn. Dep't of Corr. v. Yeskey, 524 U.S. 206, 210 (1998).
"To prove that a public program or service violated Title II of the ADA, a plaintiff must show that: (1) he is a 'qualified individual with a disability'; (2) he was either excluded from participation in or denied the benefits of a public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits, or discrimination was by reason of his disability." Duvall v. Cty. of Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001), as amended on denial of reh'g (Oct. 11, 2001).
The ADA defines a disability as: (a) "a physical or mental impairment that substantially limits one or more major life activities of such individual"; (b) "a record of such an impairment"; or (c) "being regarded as having such an impairment." 42 U.S.C. § 12102(1); see also Kula v. Malani, 539 F. Supp. 2d 1263, 1267-68 (D. Haw. 2008).
To show that the discrimination was "by reason of" the plaintiff's disability, the plaintiff must show that the action would not have been taken "but for" the disability. See Murray v. Mayo Clinic, 934 F.3d 1101, 1107 (9th Cir. 2019) (holding that "ADA discrimination claims under Title I must be evaluated under a but-for causation standard."), cert. denied, 206 L. Ed. 2d 855 (Apr. 27, 2020).
Earlier Ninth Circuit cases holding that Title II ADA discrimination claims should be evaluated under the less strict "motivating factor" standard, see, e.g., K.M. ex rel. Bright v. Tustin Unified Sch. Dist., 725 F.3d 1088, 1099 (9th Cir. 2013), appear to have been overruled by the Supreme Court. See Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 350 (2013) (explaining that "because of," "by reason of," "on account of," and "based on" all indicate a but-for causal relationship). However, the Court need not resolve that issue at this time because the FAC's allegations fail to state a claim under either the "but for" or "motivating factor" standard.
Further, "[t]o recover monetary damages under Title II of the ADA ..., a plaintiff must prove intentional discrimination on the part of the defendant." Duvall, 260 F.3d at 1138 (emphasis added). This requires the plaintiff to show that the defendant acted with "deliberate indifference," i.e., that the defendant had "knowledge that a harm to a federally protected right is substantially likely, and ... fail[ed] to act upon that the likelihood." Id. at 1139. The plaintiff must either "alert[] ... the public entity to his need for accommodation" or the need must be "obvious, or required by statute or regulation." Id.
2. Analysis
a. Chaplain Farao
The initial Complaint alleged that Chaplain Farao discriminated against Plaintiff under the ADA by "throwing him out [of] the chapel because he had a hearing impairment...." (Compl. at 3.) The Court dismissed the claim with leave to amend, finding that the Complaint did not allege: (a) facts showing his hearing impairment was a disability under the ADA; (b) enough details about the incident to plead plausibly that Chaplain Farao was motivated by a desire to discriminate against Plaintiff because of his disability; and (c) that he made Chaplain Farao aware of his disability, or that it was obvious. (Dkt. 10 at 7.)
In the FAC, Plaintiff alleges that Chaplain Farao "implemented gross discrimination against [Plaintiff's] ADA/Mental [and] medical disability by kicking [Plaintiff] out of the Chapel J" on September 26, 2017 and November 24, 2018. (FAC at 17.) Plaintiff claims Farao did so even though he observed Plaintiff's "bright green handicapped vest inclusive with [Plaintiff's] cane due to mobility and hearing impairment" and even though "he didn't make his Muslim clerk stand." (Id.) In addition to his "mobility and hearing impairment[s]," Plaintiff alleges that he has a "mental handicap," post-traumatic stress disorder, and "post slavery trauma syndrome," and that the latter conditions cause him to suffer from "permanent incontinence." (Id. at 13, 17.)
The initial R&R found that these allegations corrected one defect identified in the Complaint because, due to Plaintiff's "bright green handicapped vest," Plaintiff could argue that Chaplain Farao knew that Plaintiff had some sort of disability. However, the R&R found that the FAC again failed to allege sufficient facts to support the other elements of an ADA discrimination claim for two reasons.
First, the FAC does not sufficiently describe the circumstances under which Chaplain Farao kicked Plaintiff out of the chapel. The allegation that Chaplain Farao "didn't make his Muslim clerk stand" suggests that Farao kicked Plaintiff out for failing to stand at an appropriate time during a religious ceremony. (FAC at 17.) Even assuming this interpretation of Plaintiff's vague allegations is correct, Plaintiff does not explain how his alleged disabilities caused his failure to stand. This lack of explanation means that the FAC fails to demonstrate that Chaplain Farao discriminated against Plaintiff on the basis of his disability.
Second, because the FAC does not describe Plaintiff's mobility or hearing impairments in any detail, the FAC fails to show that they qualify as disabilities under the ADA. See, e.g., Jones v. Nat'l R.R. Passenger Corp., No. 15-02726, 2016 U.S. Dist. LEXIS 117640 at *6-8, 2016 WL 4538367 at *2 (N.D. Cal. Aug. 31, 2016) (finding allegations that plaintiff "used a scooter" and was "a qualified individual with a disability" were insufficient to state a claim, and collecting cases finding that "these types of vague, conclusory, allegations are insufficient to state a claim for disability discrimination"). Even if Plaintiff's mental impairments could be considered disabling, it does not appear that kicking Plaintiff out of the chapel had anything to do with those mental impairments.
In his Objections, Plaintiff adds, "Defendant John Farao ... stepped off the podium to single the Plaintiff out by yelling and pointing his finger in [Plaintiff's] face while kicking [Plaintiff] out of the chapel because [Plaintiff] was unable to stand...." (Objs. at 4 ¶ 7.) Plaintiff alleges that Chaplain Farao "was cognizant that the Plaintiff had a hearing/mobility impairment because he observed the Plaintiff wearing a bright green handicap vest while walking also with a cane" and because of "many [prior] occasions and interviews" about Plaintiff's complaints regarding the treatment of NHI adherents. (Id.)
Although these Objections add slightly more detail, they do not completely correct the defects identified in the initial R&R. Even if they were added to an amended complaint, Plaintiff still has not alleged sufficient facts about his alleged impairments (e.g., can he not hear at all? Can he stand up from a seated position and/or walk with the use of a cane?); why these impairments caused him not to be able to stand in the Chapel (e.g., did he fail to hear an instruction to stand because of his hearing impairment? Was he unable to stand because of his mobility impairment?); and about the incident in question (e.g., did Chaplain Farao say that he was removing Plaintiff from the chapel because Plaintiff failed to stand? Did Plaintiff know he was supposed to stand?).
Accordingly, the FAC fails to state a claim for ADA discrimination against Chaplain Farao because the FAC fails to demonstrate that Chaplain Farao kicked Plaintiff out of the chapel by reason of his disability, or that Plaintiff is disabled within the meaning of the ADA.
b. Appeals Coordinator Reynoso and Custody Case Worker Gomez
The FAC brings a new claim against Defendant Reynoso for ADA discrimination, alleging that he denied a grievance Plaintiff filed about the confiscation of religious items (discussed further below) due to Plaintiff's disability. The FAC alleges:
[H]e deliberately denied ... appeal number: RJD-17-03204 on 9/20/18
due to the Plaintiff's disability whereby a DNH, CDCR 128-D Form had to be initiated with a classification hearing on 9/28/18 but the Plaintiff never received his payment with replacements of his lost religious items; religious necklace (chain) with masculine star of David and religious keter (mitre or Hebrew crown)....
(FAC at 5.) These allegations fail to state a claim for ADA discrimination because they do not explain how the denial of the grievance was because of Plaintiff's alleged disabilities. In his Objections, Plaintiff further alleges:
Defendants R. Gomez ... and M. Reynoso ... instructed the Plaintiff that before he could receive his compensations for equal value ... for appeal log number RJD-17-03204 on 9/20/2018, a DNH CDCR 128 Form had to be initiated with a classification hearing which took place on 9/28/2018 because of Plaintiff's ADA disability described by the Defendants, but after the classification hearing both Defendants deliberately violated the Plaintiff's rights under color of state law pursuant to CCR, title 15, article 9, section 3193(b) which was verified by cost of the items from Amazon.com with receipts submitted as exhibits.... [T]here has been no actual compensations given to the Plaintiff for the accepted liability for the loss and destruction of his religious property.... This discrimination was deliberately perpetrated by both Defendants because of Plaintiff's ADA disability.(Objs. at 7); see generally Cal. Code Regs., tit. 15, art. 9, § 3193(b) (providing that CDCR "shall accept liability for the loss or destruction of inmate personal property" that "results from employee action," and provide either "similar items of equal or greater value" or "monetary compensation" to the prisoner). The Objections appear to allege that, because of Plaintiff's disabilities, Defendants held a special administrative hearing to address his grievance. However, like the FAC, the Objections fail to explain why Plaintiff believes that his disability led to the denial of his grievance and/or his requests for compensation.
3. Grant of Leave to Amend
Because Plaintiff has added more detail about the incident with Defendants Farao and the denial of his grievance by Defendant Reynoso in his Objections, it appears that he may be able to add more facts that would allow him to state a claim for relief. Accordingly, he should be granted leave to amend these ADA claims. D. Access to Courts Claims
1. Legal Standards
Under the First and Fourteenth Amendments to the Constitution, state prisoners have a right of access to the courts. Lewis v. Casey, 518 U.S. 343, 346 (1996). "[A]ccess to the courts means the opportunity to prepare, serve and file whatever pleadings or other documents are necessary or appropriate in order to commence or prosecute court proceedings affecting one's personal liberty." Id. at 384 (quoting Hatfield v. Bailleaux, 290 F.2d 632, 637 (9th Cir. 1960)). "[T]here is no 'abstract, freestanding right to a law library or legal assistance[. A]n inmate ... must ... demonstrate that the alleged shortcomings in the library or legal assistance program hindered his efforts to pursue a legal claim.'" Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (quoting Lewis, 518 U.S. at 351, 353 n.3).
The Supreme Court has recognized two categories of access-to-courts claims:
In the first [category] are claims that systemic official action frustrates a plaintiff ...in preparing and filing suits at the present time. ... In cases of this sort, the essence of the access claim is that official action is presently denying an opportunity to litigate.... The opportunity has not been lost for all time, however, but only in the short term; the object of the denial-of access suit, and the justification for recognizing that claim, is to place the plaintiff in a position to pursue a separate claim for relief once the frustrating condition has
been removed.Christopher v. Harbury, 536 U.S. 403, 413-14 (2002) (footnotes omitted).
The second category covers claims not in aid of a class of suits yet to be litigated, but of specific cases that cannot now be tried (or tried with all material evidence), no matter what official action may be in the future. ... These cases do not look forward to a class of future litigation, but backward to a time when specific litigation ended poorly, or could not have commenced, or could have produced a remedy subsequently unobtainable. The ultimate object of these sorts of access claims, then, is not the judgment in a further lawsuit, but simply the judgment in the access claim itself, in providing relief obtainable in no other suit in the future.
A forward-looking access to court claims seeks to protect the constitutionally guaranteed "conferral of capability-the capability of bringing contemplated challenges to sentences or conditions of confinement before the courts." Lewis, 518 U.S. at 356. To allege a forward-looking claim, Plaintiff must allege: (1) "an actionable claim which he desired to bring has been lost or rejected," or (2) "that the presentation of such a claim is currently being prevented, because the capability of filing suit has not been provided." Id.
Where a plaintiff asserts the second type of backward-looking claim, he must: (1) describe "the underlying cause of action [that was] anticipated or lost," and (2) "identify a remedy that may be awarded as recompense but not otherwise available in some suit that may yet be brought." Christopher, 536 U.S. at 415.
2. Analysis
a. Claims against Litigation Coordinator Cervantes
The FAC brings a new claim against Defendant Cervantes, who Plaintiff claims "violated the Plaintiff's constitutional rights and access to the courts on 10/13/17 at 10:15 a.m. in Dept. C-75 preventing order to appear and OTC." (FAC at 8.) This claim fails because Plaintiff neither describes the underlying legal claim that Defendant Cervantes' actions frustrated, nor identifies a remedy that is not available in a future suit.
b. Claims against Correctional Officer ("CO") Davidson
The initial Complaint alleged that CO Davidson "destroyed, lost, and confiscated" Plaintiff's "legal documents." (Compl. at 5.) The Court dismissed this claim with leave to amend. (Dkt. 10 at 8.)
The FAC alleges that CO Davidson "destroyed Plaintiff's religious and authorized property" which included "legal books." (FAC at 9.) This again fails to state a claim because Plaintiff does not identify the legal claim that was lost by the destruction of his "legal books," and Plaintiff again fails to identify a remedy that would not be available in a future suit.
c. Claims against Librarian Maloney
Plaintiff alleges that the law librarian at CMC, Defendant Maloney, violated Plaintiff's right of access to the courts by: (1) reading "confidential" legal documents and sharing their contents with prison officials in order to "giv[e] out legal advice to Defendants" (FAC at 4, 9, 16); (2) telling "other educational staff to deny all copies of CDCR 602 appeals[,] ... proclaiming there was no room nor space to put a Xerox copying machine in the law library without proof of the library's floor plan" (id. at 4); and (3) taking "3 days or longer before implementing same day request" for copies (id. at 4, 9). The initial Complaint contained similar allegations, although it did not explicitly name Maloney as a Defendant. (See Compl. at 10-21; Dkt. 10 at 8-9.)
Construing the FAC liberally, Plaintiff could be alleging either a forward-looking or backward-looking access to courts claim. The FAC fails to state either type of claim because it fails to describe what actionable claims or remedies Plaintiff has been prevented from bringing.
To the extent the FAC alleges that Defendant Moloney improperly reviewed Plaintiff's legal documents, it is true that "prisoners have a protected First Amendment interest in having properly marked legal mail opened only in their presence." Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1211 (9th Cir. 2017). In Hayes, however, the legal mail at issue consisted of confidential communications between the plaintiff and his attorney. Id. at 1211-12. Here, Plaintiff describes the documents at issue as "legal documents to be copied to distribution to the courts...." (FAC at 16.) Such documents are not confidential because they were destined to be filed publicly with the court. See id. at 1211 ("Mail from the courts, as contrasted to mail from a prisoner's lawyer, is not legal mail.") (quoting Keenan v. Hall, 83 F.3d 1083, 1094 (9th Cir. 1996)).
Plaintiff's Objections argue that opening mail from the courts violates CDCR regulations. (Objs. at 3 ¶ 6); see Cal. Code Regs., tit. 15, art. 4, § 3141(c)(5) ("Persons and employees of persons with whom inmates may correspond confidentially and from whom inmates may receive confidential correspondence include ... [a]ll state and federal judges and courts."). Even if this is true, it does not violate the First Amendment. See Hamilton v. Dep't of Corr., 43 F. App'x 107 (9th Cir. 2002) ("Although Hamilton may have a right to correspond confidentially with an FBI agent under California law, see Cal. Code Regs. tit. 15, § 3141(a) & (c)(2) ... no such federal constitutional right exists") (emphasis added); see also Jackson v. Quick, No. 19-01591, 2020 U.S. Dist. LEXIS 181236 at *13-14, 2020 WL 5816501 at *5 (E.D. Cal. Sept. 30, 2020) (collecting cases). Thus, these allegations fail to state a claim under the First Amendment.
To the extent the FAC alleges that Defendant Moloney took too long to make photocopies, this also fails to state a claim because the FAC does not explain how this hindered Plaintiff's access to the courts. See Hiser v. Franklin, 94 F.3d 1287, 1294 n.6 (9th Cir. 1996) (noting that an "inmate has a right to photocopying ... when, and only when, necessary to guarantee him meaningful access to the courts"). The Court previously explained the elements of an access-to-courts claim to Plaintiff and gave him a chance to amend these claims. (Dkt. 10 at 7-9.)
d. Computer and Law Library Access
In his Objections, Plaintiff alleges that "social distancing" policies at CMC and/or CHCF due to the COVID-19 pandemic have "eliminated ... all physical access to the law library[,] denying him access to the Courts because he has been obstructed from research through legal law books ... [and] has been denied all access to ADA computers with print capabilities [which he needs] because of his disabilit[ies] of ... blurred vision, mobility, and hearing impairment which [are] permanent pursuant to Title II of the ADA...." (Objs. at 7.) To the extent Plaintiff is alleging that social distancing policies have violated his constitutional right of access to the courts, he fails to show that these policies—which are supported by a compelling interest in protecting prisoners from contracting a possibly deadly virus—hindered his efforts to pursue a legal claim. Despite the lack of computer access, he was able to file 10 pages of timely, handwritten objections that cite case law and respond to issues raised in the initial R&R.
3. Denial of Leave to Amend
The Court previously dismissed Plaintiff's access to courts claims with leave to amend and explained the elements of such a claim. (Dkt. 10 at 7-9.) Despite this, Plaintiff again fails to state a claim for relief. Granting further leave to amend would be futile. E. First Amendment Retaliation Claims
1. Legal Standards
It is well established that prisoners have a First Amendment right to litigate and file prison grievances. See Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005); see also Blaisdell v. Frappiea, 729 F.3d 1237, 1243 (9th Cir. 2013); Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009). Prisoner plaintiffs must allege the following in order to state a claim for retaliation: (1) prison officials took adverse action against the inmate; (2) the adverse action was taken because the inmate engaged in conduct protected by the First Amendment; (3) the adverse action chilled the inmate's First Amendment rights; and (4) the adverse action did not serve a legitimate penological purpose. Rhodes, 408 F.3d at 567-68.
To establish retaliatory motive, "a plaintiff must show that his protected conduct was the substantial or motivating factor behind the defendant's conduct." Brodheim, 584 F.3d at 1271 (citation and quotation marks omitted). Plaintiff may offer either direct or circumstantial evidence of retaliatory motive. McCollum v. Cal. Dep't of Corrs. & Rehab., 647 F.3d 873, 882 (9th Cir. 2011). Circumstantial evidence may include: "(1) proximity in time between protected speech and the alleged retaliation; (2) [that] the [defendant] expressed opposition to the speech; [or] (3) other evidence that the reasons proffered by the [defendant] for the adverse ... action were false and pretextual." Id.; see, e.g., Quiroz v. Short, 85 F. Supp. 3d 1092, 1101 (N.D. Cal. 2015) (finding no proximity of time, expression of opposition, or evidence suggesting prison officials motives were false or pretextual).
2. Analysis
Plaintiff alleges that various Defendants retaliated against him for filing grievances protected by the First Amendment. (See, e.g., FAC at 10 ["Plaintiff alleged that he was retaliated against for filing appeals which Defendants in said civil complaint retaliated against"].) Plaintiff claims the adverse action consisted of: (1) "fabricat[ing] records and assessments falsely stating that [Plaintiff] was able to double-cell," and (2) "deceitfully omit[ing] [Plaintiff's] low tier/low terrain housing due to seizures, syncope, blackouts, foot deformity, and mobility impairment...." (Id.; see also id. at 16-17 [noting that Plaintiff had been given a single cell since his arrival at CMC in 2005, because "his modus operandi was to kill any sodomite, homosexual, etc. placed or forced in a small cell within him because of his [NHI] beliefs"].)
The FAC does not allege any facts suggesting a retaliatory motive for these actions, either directly or circumstantially. Plaintiff does not allege which grievances motivated Defendants to retaliate against him, when said grievances were filed, or when Defendants took the adverse actions. Without alleging these facts, Plaintiff fails to establish a "proximity in time between [the] protected speech and the alleged retaliation." McCollum, 647 F.3d at 882. Plaintiff also fails to allege that Defendants expressed opposition to Plaintiff's protected conduct or that that Defendants' motives were "false and pretextual." Id. "[M]ere speculation that defendants acted out of retaliation is not sufficient." Wood v. Yordy, 753 F.3d 899, 905 (9th Cir. 2014).
Thus, the FAC fails to state a claim for First Amendment retaliation against any Defendant.
3. Denial of Leave to Amend
The Court previously dismissed very similar allegations in the Complaint with leave to amend, explaining the elements of a retaliation claim to Plaintiff. (Dkt. 10 at 9; Compl. at 3, 6.) Because the FAC again fails to state a claim, granting further leave to amend would be futile. F. First Amendment Free Exercise and RLUIPA Claims
1. Legal Standards
a. First Amendment Free Exercise Claims
"Inmates ... retain protections afforded by the First Amendment, ... including its directive that no law shall prohibit the free exercise of religion." O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987) (internal quotations and citation omitted). A prisoner must show that the belief at issue is both "sincerely held" and "rooted in religious belief, not in 'purely secular' philosophical concerns." Malik v. Brown, 16 F.3d 330, 333 (9th Cir. 1994); see also Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008) (noting the Supreme Court's disapproval of the "centrality" test and finding that the "sincerity" test in Malik determines whether the Free Exercise Clause applies).
"A person asserting a [First Amendment] free exercise claim must show that the government action in question substantially burdens the person's practice of her religion." Jones v. Williams, 791 F.3d 1023, 1031 (9th Cir. 2015). "A substantial burden ... place[s] more than an inconvenience on religious exercise; it must have a tendency to coerce individuals into acting contrary to their religious beliefs or exert substantial pressure on an adherent to modify his behavior and to violate his beliefs." Id. at 1031-32 (citation omitted). "[A]n outright ban on a particular religious exercise" is generally considered a substantial burden. Greene v. Solano Cty. Jail, 513 F.3d 982, 988 (9th Cir. 2008) (finding that jail's policy of prohibiting plaintiff, a maximum security prisoner, from attending group religious worship services was a substantial burden).
"'To ensure that courts afford appropriate deference to prison officials,' the Supreme Court has directed that alleged infringements of prisoners' free exercise rights be 'judged under a 'reasonableness' test less restrictive than that ordinarily applied to alleged infringements of fundamental constitutional rights.'" Jones, 791 F.3d at 1032 (quoting O'Lone, 482 U.S. at 349). Under this reasonableness test, which is set forth in Turner v. Safley, 482 U.S. 78 (1987), the "challenged conduct 'is valid if it is reasonably related to legitimate penological interests.'" Jones, 791 F.3d at 1032 (quoting O'Lone, 482 U.S. at 349 and Turner, 482 U.S. at 89).
Under Turner, the Court must consider the following factors when assessing reasonableness: (1) whether the restriction has a logical connection to the legitimate government interests invoked to justify the restriction; (2) whether there are alternative means of exercising the rights that remain open to the inmate; (3) the impact that accommodation of the asserted constitutional right will have on other inmates, guards, and institution resources; and (4) the presence or absence of alternatives that fully accommodate the inmate's rights at de minimis cost to valid penological interests. Turner, 482 U.S. at 89-91; see also Jones, 791 F.3d at 1032 n.5 (listing these factors). These factors may be considered at the pleading stage. See, e.g., Lewis v. Ollison, 571 F. Supp. 2d 1162, 1170-73 (C.D. Cal. 2008) (granting motion to dismiss); Sessing v. Beard, No. 13-1684, 2015 U.S. Dist. LEXIS 84194 at *9-10, 2015 WL 3953501 at *4 (E.D. Cal. June 29, 2015), R&R adopted, 2015 U.S. Dist. LEXIS 151859, 2015 WL 6872807 (E.D. Cal. Nov. 9, 2015) (dismissing complaint on screening; finding "the failure to construct exclusive Odinist worship grounds" and "the denial of access to the fire pit" did not state a claim because "[t]he link between prison security and allowing inmates to use fire is obvious, and the burden of constructing a separate worship area for every minority religion is self-evident").
b. RLUIPA claims
Section 3 of RLUIPA "relates to religious exercise by institutionalized persons" and "provides that '[n]o [state or local] government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution,' unless the government shows that the burden furthers 'a compelling governmental interest' and does so by 'the least restrictive means.'" Cutter v. Wilkinson, 544 U.S. 709, 715 (2005) (quoting 42 U.S.C. § 2000cc-1(a)(1)-(2)). Thus, a claim under RLUIPA is similar to a First Amendment claim in that the plaintiff must initially demonstrate that the defendant's actions "constitute a substantial burden on the exercise of his religious beliefs." Warsoldier v. Woodford, 418 F.3d 989, 994 (9th Cir. 2005).
"The RLUIPA substantial-burden test is the same as that used under the First Amendment." Sprouse v. Ryan, 346 F. Supp. 3d 1347, 1357 (D. Ariz. 2017). However, "RLUIPA defines 'religious exercise' to include 'any exercise of religion, whether or not compelled by, or central to, a system of religious belief.'" Greene v. Solano Cty. Jail, 513 F.3d 982, 986 (9th Cir. 2008) (quoting 42 U.S.C. § 2000cc-5). RLUIPA therefore "bars inquiry into whether a particular belief or practice is 'central' to a prisoner's religion." Cutter, 544 U.S. at 725 n.13. "[T]he availability of alternative means of practicing religion" is not "a relevant consideration," because "RLUIPA's 'substantial burden' inquiry asks whether the government has substantially burdened religious exercise ... not whether the RLUIPA claimant is able to engage in other forms of religious exercise." Holt v. Hobbs, 574 U.S. 352, 361-62 (2015) (finding that prison's policy banning beards substantially burdened Muslim prisoner's exercise of his religion, even though the prisoner "had been provided a prayer rug and a list of distributors of Islamic material"). "[B]ut, of course, a prisoner's request for an accommodation must be sincerely based on a religious belief and not some other motivation." Id. at 360-61.
Additionally, if the plaintiff demonstrates a substantial burden, RLUIPA imposes a "much stricter burden" than the First Amendment. Greene, 513 F.3d at 986; see also Warsoldier, 418 F.3d at 994 (noting that in RLUIPA, "Congress ... replac[ed] the 'legitimate penological interest' standard articulated in Turner"). Once the plaintiff has "met his burden of showing that the ... policy substantially burdened his exercise of religion, the burden shift[s] to the [defendants] to show that" the policy: "(1) [was] in furtherance of a compelling governmental interest; and (2) [was] the least restrictive means of furthering that compelling governmental interest." Holt, 574 U.S. at 362 (quoting 42 U.S.C. § 2000cc-1(a)).
2. Analysis
a. Claims Against Chaplain Williams
The initial Complaint alleged that Chaplain Williams prohibited Plaintiff "from prostrating and praying on his knees with his shoes off in the chapel...." (Compl. at 5.) The Court dismissed this claim with leave to amend. (Dkt. 10 at 12.)
The FAC does not include any allegations about barefoot prayer, or any allegations against Chaplain Williams other than the conclusory assertion that he "denied the Plaintiff to practice his [NHI] religion [sic]." (FAC at 5.) The initial R&R recommended that any claims against Chaplain Williams be dismissed without leave to amend because it appeared that Plaintiff was no longer complaining about any of Chaplain Williams' actions.
The Objections do not repeat the initial Complaint's allegations regarding barefoot prayer, but they do allege that Chaplain Williams was a member of a "CMC Religious Review Committee" which denied permission for the NHI adherents to hold banquets or worship in the chapel. (Objs. at 5.) These claims are addressed below in sections III.F.2.c and g.
b. Claims Against Chaplain Farao
As discussed above in connection with Plaintiff's ADA discrimination claim, the FAC alleges that, on two occasions in September 2017 and November 2018, Chaplain Farao kicked Plaintiff out of the chapel. (FAC at 17.) The FAC also alleges that, during an interview about a grievance Plaintiff had filed, Chaplain Farao would not refer to Plaintiff by his NHI title of "father." (Id.)
Even if these allegations are liberally construed as intrusions on Plaintiff's religious practice, they do not demonstrate a "substantial burden" on that practice because they were "relatively short-term and sporadic." See Canell v. Lightner, 143 F.3d 1210, 1215 (9th Cir. 1998) ("While Lightner's evangelizing may have constituted an intrusion upon Canell's prayers on some occasions during the brief period involved, we agree with the district court's conclusion that these intrusions were 'relatively short-term and sporadic' and did not constitute a substantial interference."); Leiva v. Zelaya, No. 19-6099-JAK-AS, 2020 U.S. Dist. LEXIS 59430 at *4-5, 2020 WL 1557987 at *2 (C.D. Cal. Feb. 24, 2020) (collecting cases and finding allegation that plaintiff was deprived "of religious meals on one particular day" failed to state a claim), R&R adopted, 2020 WL 1549595 (C.D. Cal. Mar. 31, 2020).
Thus, the FAC fails to state a claim against Chaplain Farao under the Free Exercise Clause or RLUIPA. This claim should be dismissed without leave to amend because further amendment would be futile. More detail about these incidents would not change the fact that they were short-term and sporadic.
c. Denial of NHI Banquets
In the Complaint, Plaintiff alleged that Warden Gastelo denied requests for "banquets of foods of religious significance" during Passover and "the Holy Month of August." (Compl. at 4, 6.) The Court dismissed this claim with leave to amend because Plaintiff had not pled sufficient facts to explain what, exactly, he sought permission to do or eat at the banquets. (Dkt. 10 at 10.)
In the FAC, Plaintiff alleges that Defendants Bonnifield, Gastelo, and Steck "continuously denied Plaintiff's (2) annual banquets" (FAC at 9, 15), but he provides no additional facts about the banquets. In the FAC's request for relief, Plaintiff asks for "court order to CDCR recognizing the [NHI] as a bona fide religion with holy fast days during the entire month of August and celebration of 8-day Passover in the second month." (Id. at 11.) It is unclear if or how this is related to the requested banquets.
Plaintiff does not allege that the failure to allow these banquets completely deprived him of food sufficient to sustain him in good health and that satisfied the dietary laws of the NHI religion. See generally McElyea v. Babbitt, 833 F.2d 196, 198 (9th Cir. 1987). Without explaining what the banquets entailed, Plaintiff does not allege sufficient facts plausibly suggesting that Defendants' refusal to allow the banquets lacked a reasonable penological justification or failed to further a compelling government interest. Thus, the FAC fails to state a claim under the Free Exercise Clause or RLUIPA based on the denial of the banquets.
In his Objections, Plaintiff alleges:
[W]hen it was time to implement the [NHI] banquet ... which was submitted in a timely manner with confirmation and collaboration with the CMC-East food manager, Angela Tucker on 7/10/2018, and also in agreement was confirmed by assisting staff coordinator, Imam Enrique Rasheed ... on 10-13-2017 whereby the religious meal/food request form with Exhibit A-1, Exhibit A-2, and Exhibit A-3 detailing
the two separate banquet events for "Passover in the Second Month" (May 13, 2018); and also for our holy month of August 21, 2018 banquet which was submitted to correctional food manager II with stipulations pursuant to staff response on CDCR-0022 (10-09) that the CMC Religious Review Committee ... along with CRM Jim Bonnifield review due [sic] to the fact that [Plaintiff] articulated all [NHI adherents] and guest were prepared to pay in full from our own resources/donations for the menu desired from approved vendors only to be undermined and denied with prejudice by CRM Jim Bonnifield on 8/18/2017.(Objs. at 5.) Although these allegations are somewhat unclear, Plaintiff appears to be alleging that CDCR staff denied permission for the banquets because they did not want to allow NHI adherents to collect donations and/or buy outside food. The Objections identify the members of the CMC Religious Review Committee as Chief Deputy Warden D. Samuel, Associate Warden J. Ingwerson, Correctional Captain J. Steck, Litigation Coordinator H. Cervantes, and Chaplain Mark Williams. (Id.) Plaintiff's Objections also assert, "Plaintiff has documented affidavits and request forms which were required for ... approval for the [NHI] Passover in the second month; and the banquet with foods of religious significance which can be submitted upon court order as supporting documents...." (Id. at 10 ¶ 26.)
This claim should be dismissed with leave to amend, because Plaintiff may be able to provide further facts about the banquets and why CDCR staff denied permission for them, either by attaching the documents referenced in his Objections as exhibits to his Second Amended Complaint or quoting from them.
d. Confiscation of Religious Items by CO Davidson
In the initial Complaint, Plaintiff alleged that CO Davidson took his Hebrew scriptures, prayer shawl, and "Holy (Keter) Crown." (Compl. at 5.) The Court dismissed this claim with leave to amend because Plaintiff failed to allege when or why the items were taken (such as whether they were lost or intentionally confiscated) and why CO Davidson would have known of their religious significance. (Dkt. 10 at 12.) The Court also noted that Plaintiff had not described the crown and there might be a legitimate penological interest in prohibiting inmates from having sharp, metal objects. (Id.)
In the FAC, Plaintiff alleges as follows:
• Plaintiff filed a grievance seeking compensation for the following "lost religious items[:] religious necklace (chain) with masculine Star of David and religious keter (mitre or Hebrew crown)[,] which covers the entire head" and "was multi-colored," "handknitted[, and] worth $300.00 from Amazon.com." (FAC at 5.)
• CO Davidson "destroyed Plaintiff's religious and authorize[d] property of classical Hebrew Bible (Torah in scroll form), his hot pot, Geneva watch, legal books, medical supplies, and was denied his religious head gear to be worn at all times especially during involuntary transfer." (Id. at 9; see also id. at 18 ["CO Davidson deliberately destroyed the Plaintiff's religious property, personal property...."].)
• "When [Plaintiff] arrived at CHCF ... on 1/18/19 ... prison staff documented that [his] JWIN compact disc player ... was all operative and working prior to transfer but after [his] involuntary transfer[] ... [staff] tested the appliances and found that [his] JWIN was broken.... Therefore, the Plaintiff is seeking compensation and replacement of his ... JWIN; his Star of David medallion with chain; his ... West Bend hot pot; his Geneva wristwatch; his Torah Holy Scroll; and Cordoba GK guitar with case and all accessories...." (Id. at 18.)
• Plaintiff filed administrative grievances about the incident, which resulted in a third-level denial dated April 30, 2020. (Id. [citing grievance nos.
CMC-E-17-01019, CMC-19-02703, and CHCF-19-03736].)
• Plaintiff's "religious head gear is always confiscated and destroyed during involuntary transfers," even though official CDCR policy allows prisoners "to wear their religious head gear at all times...." (Id. at 19.)
The initial R&R found that, because the FAC did not explain the religious significance of Plaintiff's JWIN music player, guitar, hot pot, watch, legal books or medical supplies, the FAC failed to allege that the loss of these items was a substantial burden on his religious practice. See, e.g., Jenkins v. Urbina, No. 10-00960, 2013 U.S. Dist. LEXIS 169072 at *10-14, 2013 WL 6182033 at *4-5 (E.D. Cal. Nov. 25, 2013) (dismissing free exercise and RLUIPA claims based on confiscation of "Native American items such as beads, sewing needles, choker, and feathers" because the complaint did "not explain[] how the items [were] used for religious practice, nor ... allege[] any facts suggesting that the deprivation of these items substantially burdened his ability to practice his religion"). In his Objections, Plaintiff alleges that the JWIN music player and guitar are used to make religious music during NHI services, and the hot pot is used to prepare religious foods. (See Objs. at 10 ¶¶ 27-28.) These allegations are sufficient as to these items, but Plaintiff still has not explained the religious significance of the watch, legal books, and medical supplies.
The initial R&R also found that the FAC failed to include enough facts about when and why these items were confiscated or lost, noting that it was not entirely clear whether the FAC was alleging that the items were not returned to Plaintiff after he was transferred from CMC to CHCF, or that they were returned damaged. In his Objections, Plaintiff appears to confirm that the items were either lost, damaged, or destroyed during his transfer from CMC to CHCF, alleging:
Defendant CO Davidson denied the Plaintiff's religious property under color of state law when documenting his CDCR-1083 that his 'holy (Keter) crown' and prayer shawl could not be worn on the
CDCR transportation bus, therefore these items were confiscated and destroyed because they were separated from Plaintiff's transpacked [sic] property as he was getting on the bus.... Also, the Defendant documented [Plaintiff's] JWIN [music player] as working prior to transpacking [sic] but upon approval at CHCF, the Plaintiff's CDCR-1083 was registered as being tampered with and not working.(Objs. at 6 ¶ 14); see CDCR Department of Operations Manual, p. 453, § 54030.5 (explaining that a CDCR Form 1083 "shall be completed when there is a need to inventory an inmate's property (e.g., Administrative Segregation Unit [ASU] placement, inter-institutional transfer, ... etc.), to ensure all property is accounted for and to provide a vehicle for the evaluation of inmate property claims").
The CDCR Department of Operations Manual is available online at: https://www.cdcr.ca.gov/regulations/cdcr-regulations/dom-toc/.
These allegations appear to explain that Defendant CO Davidson was responsible for taking an inventory of Plaintiff's property in connection with his transfer from CMC to CHCF; that the crown and prayer shawl were never returned to Plaintiff; and that the JWIN music player was returned but broken. Plaintiff does not explain what happened to the Star of David necklace, the Torah, the hot pot, and the guitar. Plaintiff also does not explain what CDCR said about the loss of or damage to the items in response to his grievances. Without more facts, the FAC does not plausibly suggest that Defendants' actions lacked a penological justification or failed to further a compelling government interest.
As discussed above regarding Defendants Gomez and Reynoso, the Objections allege that Defendants "accepted liability for the loss and destruction of [Plaintiff's] religious property" but failed to compensate him for it. (Objs. at 7 [citing grievance no. RJD-17-03204].) It is unclear whether this refers to the same incident and property.
This claim should be dismissed with leave to amend as to the loss of Plaintiff's Torah, keter, Star of David necklace, JWIN music player, guitar, and hot pot, i.e., the items alleged to have a religious significance. Plaintiff may be able to state a claim for relief if he alleges more details, such as: (a) which items were lost or merely damaged, and (b) what explanation Plaintiff was given (if any) for the loss of or damage to the items when his grievances were denied. Leave to amend should be denied as to Plaintiff's watch, legal books, and medical supplies, because after being granted leave to amend, Plaintiff has again failed to explain these items' religious significance.
e. Confiscation of Musical Instruments in July 2018
In the initial Complaint, Plaintiff alleged that Defendant Bonnifield had Plaintiff's and other inmates' "keyboards removed from their cells," and that "Defendants denied the Plaintiff to maintain his musical instruments of a Radio Shack keyboard/electric guitar with amplifier and accessories for spiritual occasions which items were donated to the Plaintiff to enhance his didactic musical skills in the Chapel...." (Compl. at 6.) The Court dismissed this claim, finding Plaintiff had not pled sufficient facts about the instruments and how or why they were taken from him. (Dkt. 10 at 12.)
In the FAC, Plaintiff alleges that on July 9, 2018, Chaplain Alderson "directed staff to enter the Plaintiff's cell without his presence to retrieve and illegally confiscate musical instruments," namely "[Plaintiff's] Epiphone Les Paul - Model #100, a "Charvel Amp (Ch.-200r mini amp) (serial no. 001145)," and a "portable key board." (FAC at 15 ¶ H.) Plaintiff claims these musical instruments were "donated to the Nubian Hebrew Israelites and approved by memorandum on 6/16/2018 because the Plaintiff was authorized to conduct music ministry [and] mental health performances in the gym...." (Id.)
A June 16, 2018 memo from Chaplain Alderson is attached as an exhibit to the FAC. (Id. at 7.) It states that Plaintiff has permission to use the "East Protestant Chapel's Musical Instruments" in his cell "to allow him ample opportunity to practice during the times when the Chapel is inaccessible." (Id. at 7.) The subject line of the memorandum refers to an "Epiphone Les Paul - Model #100" and a "Charvel [sic] Amp - (Ch.-2003 Mini Amp) (Ser. No. 001145)," and the body of the memorandum refers to a "portable keyboard" and a "Charuel [sic] Amp - (Ser. No. 001144)." (Id.) It notes that the "use of this musical instrument [sic] is for [Plaintiff's] work in the Chapel's Music Ministry, Mental Health Performances in the Gym, and the [NHI] banquets...." (Id.)
The initial R&R noted that this memo undermined Plaintiff's allegations, since it indicated that the instruments in question belonged to CDCR rather than Plaintiff, and that the FAC contained insufficient facts about why the instruments were confiscated. Plaintiff's Objections argue that the R&R "misconstrued ... the 6/16/2018 memorandum ... because the only musical instrument Plaintiff was given permission to keep in his assigned cell was the Charwel [sic] amp specifically with serial number #001144 whereby it was only documented that the Epiphone Les Paul guitar - model #100 was already owned by the Plaintiff...." (Objs. at 4.) The Objections also discuss a "Radio Shack Keyboard - model no. MD 1210," which Plaintiff claims was "donated" to the NHI adherents. (Id. at 5.)
The FAC and Objections again fail to allege sufficient facts concerning these instruments and why they were taken from Plaintiff's cell to plausibly suggest that Defendants' actions lacked a penological justification or failed to further a compelling government interest. The FAC appeared to allege that Chaplain Anderson initially gave Plaintiff permission to have these instruments in his cell via the June 16, 2018 memorandum, but about a month later revoked that permission and had the instruments confiscated. The Objections argue over whether the instruments truly belonged to the chapel or Plaintiff, but they do not make any attempt to clarify which instruments were confiscated by Chaplain Alderson on July 9, 2018 and why. The FAC also lacks sufficient facts to suggest that the confiscation of the instruments substantially burdened Plaintiff's religious practice.
This claim should be dismissed with leave to amend, because Plaintiff may be able to state a claim for relief if he more clearly explains the circumstances.
f. Sabbath Work Claim
The initial Complaint alleged that CRM Bonnifield made Plaintiff work on Saturdays, which are the NHI sabbath day. (Compl. at 4.) The Court dismissed this claim with leave to amend because the Complaint failed to allege how Plaintiff requested an exemption from work on Saturdays and what response he received. (Dkt. 10 at 12.)
In the FAC, Plaintiff alleges that on April 14, 2017, he was "plac[ed] ... on yard crew without his consent" and assigned to work "on the sabbath or Saturdays in position number: 4DW.001.004 from 07:30 through 11:30." (FAC at 15.) He states that his "request was denied on every level by Defendants [CRM] Bonnifield and [Warden] Gastelo on 2-28-2018 and 3-7-2018 regarding CDCR 602 appeal log number #CMC-E-18-00548." (Id.)
Although the FAC is more specific that the Complaint, it still fails to state a claim for relief. The FAC does not allege sufficient facts about the work assignment, such as what accommodation Plaintiff requested from Defendants, why that accommodation was denied, and whether Plaintiff was punished or threatened with punishment if he failed to work on the sabbath. Absent more detail, the FAC fails to plausibly allege that the work assignment substantially burdened Plaintiff's religious practice or that Defendants' actions lacked a penological justification or failed to further a compelling government interest. See Jones, 791 F.3d at 1031-32 ("A substantial burden ... place[s] more than an inconvenience on religious exercise; it must have a tendency to coerce individuals into acting contrary to their religious beliefs or exert substantial pressure on an adherent to modify his behavior and to violate his beliefs."); Peets v. Brown, No. 18-2469, 2019 U.S. Dist. LEXIS 60932 at *3, 2019 WL 1539183 at *1 (E.D. Cal. Apr. 9, 2019) (finding that Jewish prisoner stated free exercise claim by alleging that defendants "attempt[ed] to force him to work on the sabbath and [gave] him repeated write ups for refusing to work on the sabbath").
This claim should be dismissed with leave to amend because Plaintiff may be able to state a claim for relief if he alleges more details, such as: (a) what accommodation Plaintiff requested from Defendants, (b) why that accommodation was denied, and (c) whether Plaintiff was punished or threatened with punishment if he failed to work on the NHI sabbath.
g. Access to Religious Facilities
The initial Complaint alleged that the chief deputy warden "denied group Worship by putting conflicting schedules of secular activities on the Holy Sabbath...." (Compl. at 3.) The Court found that this allegation did not sufficiently explain how this action burdened Plaintiff's practice of his religion. (Dkt. 10 at 13.)
The FAC alleges as follows:
• Captain Steck "violated the Plaintiff's const[itutional] rights to practice his [NHI] religion" by failing to create "yard configurations with designated worship areas" as provided for in CDCR rules, "due to mismanagement and misappropriation of funds. The Facility D area next to the building 'MA' was deliberately denied when Plaintiff requested...." (Id. at 8.)
• On January 4, 2018, the NHI adherents "were approved for worship services ... by way of memorandum," but as of February 8, 2018, the NHI adherents "were never actually provided time and space in Chapel K on [their] holy sabbath days (Saturdays)." (FAC at 13-14.)
• On February 8, 2018, Plaintiff filed a grievance that: (a) "requested for Chapel K passes or ducats be provided for [NHI] participants plus an open call over the institution's intercom to the same degree as other religions"; and (b) complained "secular activities were given conflicting preference
to utilize the chapel when they ... could easily have transitioned into an available classroom." (Id. at 14-15.) The grievance "was denied on every level by Defendants [CRM] Bonnifield and [Warden] Gastelo on 2-28-2018 and 3-7-2018 regarding CDCR 602 appeal log number #CMC-E-18-00548." (Id. at 15.)In his Objections, Plaintiff adds further detail to these claims by listing specific dates and times on which specific groups were given chapel time and allowed to solicit donations from inmates and announce their programs over the CMC intercom (things he contends NHI should have been allowed to do). (See Objs. at 5-6.)
• On February 26, 2018, Chaplain Alderson "told [Plaintiff] personally when [Plaintiff] summoned a minister's meeting in his office, that he would approve [NHI] scheduled days of worship on the holy sabbath (Saturdays) but when his head clerk Curtis Moore attempted to get Alderson's approval for print-out for [NHI] services on the list of available chapel services and [NHI] curriculum 'school of prophets' as a self-help program[,] [Chaplain Alderson] told his head clerk deceitfully to 'shut us down.'" (Id. at 15.)
• Generally, Defendants "fail to execute chapel services in a multipurpose and multidenominational manner that would ensure equal treatment...." (Id. at 19.)
The FAC alleges that the same grievance also complained about Plaintiff having to work on the sabbath, as discussed above.
Plaintiff does not allege facts that demonstrate that the limitations placed on Plaintiff's access to Facility D or Chapel K impacted his ability to hold group worship services in other areas within CMC. The FAC mentions at least one other chapel, Chapel J, and it appears that Plaintiff attended some sort of religious ceremonies or events in Chapel J. (See FAC at 17 [alleging that Chaplain Farao kicked Plaintiff out of Chapel J].) The FAC also suggests that Plaintiff was allowed to play music in one of the chapels as part of some sort of religious ceremony. (See id. at 7.) The Objections appear to indicate that chapel access was offered under certain conditions or times of day. (See, e.g., Objs. at 6 [alleging that Plaintiff's "spiritual group 'Shephard's Praise' [was prevented] from utilizing any songs of praise in the chapel unless he subject[ed] himself to other inmates flaunting themselves as 'ministers' conducting so-called 'ministers training'...."]; id. at 5 [alleging Defendants allowed a "victim impact workshop" to take place "on the [NHI] holy Sabbath day (Saturday) in the chapel from 8:00 a.m. - 12:00 p.m."].) Yet they also allege that there was an "outright prohibiting of Plaintiff's [NHI] worship services...." (Id. at 9 ¶ 24.)
If Plaintiff was allowed to worship in other areas of CMC, and was simply denied exclusive access to his preferred chapel or time of day, such limitations might not impose a substantial burden on his religious practice, which forced him to "forego [his] sincerely held religious beliefs or to engage in conduct that violates those beliefs." Jones, 791 F.3d at 1033. Compare Pompilius v. Nevada, No. 18-01801, 2020 U.S. Dist. LEXIS 99644 at *16, 2020 WL 3050709 at *6 (D. Nev. June 8, 2020) (finding plaintiff stated a claim under the Free Exercise Clause and RLUIP based "on the allegations [that the plaintiff's] religion requires the use of a chapel or indoor facility to perform the religion's ritual ceremonies but prison officials have denied him access to such facilities since February 2018"). Additionally, because the FAC does not explain why Defendants denied Plaintiff's grievance seeking Saturday chapel access for NHI worship, it does not plead sufficient facts plausibly suggesting that Defendants' actions lacked a reasonable penological justification or failed to further a compelling government interest.
This claim should be dismissed with leave to amend because Plaintiff may be able to state a claim for relief if he alleges more details, such as: (a) whether Plaintiff was given access to facilities other than Chapel K for NHI worship, and (b) if so, why those facilities were inadequate, and (c) what explanation Defendants gave (if any) for refusing Plaintiff's request to use Chapel K or other facilities.
h. Single Cell Assignment Claim
CDCR regulations provide, "Inmates are not entitled to single cell assignment, housing location of choice, or to a cellmate of their choice." 15 Cal. Code Regs. § 3269. Prisons generally have a limited number of single-cell assignments and are directed to give those assignments to inmates who display predatory tendencies or victimization. Id. at § 3269(d).
Plaintiff requests "all defendants and CDCR ... articulate and promulgate the Plaintiff's true appellation of being solely a [NHI] ... who is never compatible with another male in a cell forced to violate his [NHI] beliefs and Nazarite vows to perform solitary in-cell worship with continuous ablutions, purification, sanctification day and night...." (FAC at 11; see also Objs. at 8 ["Plaintiff has requested unrestricted access to his cell for ablutions and sanctification due to permanent incontinence, enuresis, and PTSD...."].) Plaintiff has not alleged sufficient facts to plausibly suggest that CMC's refusal to designate him for single-cell status in accordance to his NHI beliefs was unreasonable or failed to further a compelling government interest. See, e.g., Pogue v. Woodford, No. 05-1873, 2009 U.S. Dist. LEXIS 75943 at *40, 2009 WL 2777768 at *13 (E.D. Cal. Aug. 26, 2009) (rejecting the plaintiff's request for "single cell status in an overcrowded prison system because he asserts his cellmate is not fastidious in his toilet practices, and [he] needs a clean place to pray when he is in his cell"; finding the state has a "compelling interest in ensuring that its prisons contain all those that should be there," and double celling was necessary due to prison overcrowding), R&R adopted, 2009 U.S. Dist. LEXIS 90567, 2009 WL 3211406 (E.D. Cal. Sept. 30, 2009).
Thus, Plaintiff's allegation that he was not given a single cell fails to state a claim under the Free Exercise Clause or RLUIPA. This claim should be dismissed without leave to amend. Amendment would be futile because more facts about Plaintiff's religious practices or requests for a single cell would not alter the compelling government interest identified above.
To the extent the FAC may be trying to bring an Eighth Amendment claim based on the failure to assign Plaintiff a single cell, it also fails to state a claim. Plaintiff alleges, "[W]hen [Plaintiff] first arrived at CMC in 2005, his modus operandi was to kill any sodomite, homosexual, etc. placed or forced in a small cell with him because of his [NHI] beliefs... which therefore led to Plaintiff being placed in a administrative segregation with a[n] RVR 115 of wanting to kill an 'unknown inmate'.... [U]pon release from ad-seg at CMC-East Plaintiff has always remained in a single cell...." (FAC at 17.) "Notwithstanding plaintiff's ... threats of violence" more than ten years ago, there are no allegations "demonstrating that he has the requisite history of in-cell violence or predatory behavior to justify a single-cell assignment." Womack v. Virga, No. 11-1030, 2013 U.S. Dist. LEXIS 40716 at *32-33, 2013 WL 1194953 at *12 (E.D. Cal. Mar. 22, 2013).
3. Partial Grant of Leave to Amend
As discussed above, the following Free Exercise and RLUIPA claims should be dismissed without leave to amend: (a) against Chaplain Farao for kicking Plaintiff out of the chapel on two occasions in September 2017 and November 2018, (b) regarding the loss and/or damage to Plaintiff's watch, legal books and medical supplies, and (c) regarding Plaintiff's assignment to a double cell.
However, Plaintiff should be granted leave to amend the Free Exercise and RLUIPA claims based on: (a) the denial of NHI banquets, (b) the loss and/or damage to Plaintiff's Torah, keter, Star of David necklace, JWIN music player, guitar, and hot pot, (c) regarding the confiscation of musical instruments in July 2018; (d) requiring Plaintiff to work on the NHI sabbath, and (e) access to CMC facilities for NHI group worship. G. Fourteenth Amendment Equal Protection Claims
1. Legal Standards
The Equal Protection Clause of the Fourteenth Amendment requires that all persons who are similarly situated be treated alike. Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001); City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). "[T]he Equal Protection Clause entitles each prisoner to a reasonable opportunity of pursuing his faith comparable to the opportunity afforded fellow prisoners who adhere to conventional religious precepts." Shakur, 514 F.3d at 891 (quoting Cruz v. Beto, 405 U.S. 319, 322 (1972)). To state a claim, Plaintiff must allege facts sufficient to plausibly suggest that prison officials intentionally discriminated against him because of his religion by failing to provide him a reasonable opportunity to pursue his faith compared to other similarly situated religious groups. Cruz v. Beto, 405 U.S. 319, 321-22 (1972); Shakur, 514 F.3d at 891. In considering whether a prison improperly discriminated against a prisoner on the basis of religion, courts consider whether, "[u]nder the Turner test, ... the difference between the defendants' treatment of [the plaintiff] and their treatment of ... inmates [of other religions] is reasonably related to legitimate penological interests." Id. (citation and quotation marks omitted).
2. Analysis
As discussed above, Plaintiff alleges that the NHI adherents "were never actually provided time and space in Chapel K on [their] holy sabbath days (Saturdays) and also that Plaintiff requested for Chapel K passes or ducats be provided for participants plus an open call over the institution's intercom to the same degree as other religions and secular activities...." (FAC at 14-15.) The initial R&R found that this failed to state a claim because the FAC: (a) did not allege what response he received from CMC staff when he requested use of Chapel K and the intercom via the administrative grievance procedure; and (b) failed to allege which groups (religious or secular) received the services that Plaintiff was denied or how the NHI adherents were similarly situated with inmates in those other groups.
In his Objections, Plaintiff alleges that Defendants on the CMC "Religious Review Committee" (Samuel, Ingwerson, Steck, Cervantes, and Williams) "illegally denied with prejudice and deliberate indifference ... any and all of the Plaintiff's efforts to implement his [NHI] religious worship within the chapel to the same degree as European Caucasoids...." (Objs. at 5.) He then goes on to name specific secular groups and programs that were allowed to use chapel space on certain dates at certain times. (See, e.g., id. at 5-6 [alleging that Defendants allowed secular groups to use the chapel, announce their programs over the intercom, and solicit donations, and allowed other religious groups to utilize chapel space].) As discussed above in section III.F.2.g regarding Plaintiff's Free Exercise and RLUIPA claims, however, it is not clear whether NHI adherents were offered space in other facilities or under conditions Plaintiff found objectionable. (See, e.g., id. at 6 [alleging that "Plaintiff was denied to even hold prayer groups in various chapel areas such as K-101 that was also utilized as a band area with piano inside for choir practice" and "his efforts to utilize the K-107 area was denied" in "comparison [to] other secular groups utilizing chapel areas K-109, K-115, or K-110"].)
3. Grant of Leave to Amend
This claim should be dismissed with leave to amend because, based on the facts alleged in Plaintiff's Objections, Plaintiff may be able to state a claim for relief in a Second Amended Complaint. H. Fourteenth Amendment Due Process Claims
1. Analysis
As stated earlier, Plaintiff alleges several Defendants fabricated Plaintiff's prison records. Specifically, Plaintiff alleges Defendants fabricated records concerning Plaintiff's double-cell status and omitted pertinent information that would support Plaintiff's claim of single-cell status. (FAC at 10.)
The Court construes these allegations as attempting to allege a § 1983 claim under the Due Process Clause. Generally, however, a right to accurate prison records grounded in the Due Process Clause has not been recognized. See Hernandez v. Johnston, 833 F.2d 1316, 1319 (9th Cir. 1987) ("Because Washington law provides a liberty interest in accurate prison record information in the proper case, we do not reach the question of whether in the absence of the statute, such a right is 'grounded in the due process clause' itself."); Riley v. Beaulieu, No. 13-00847, 2013 U.S. Dist. LEXIS 111257 at *8, 2013 WL 3968603 at *3 (E.D. Cal. July 31, 2013) ("To the extent Plaintiff believes an inaccurate prison record denies him due process, he fails to state a claim. ... The Ninth Circuit has not found that prisoners have an independent right, grounded in the Due Process Clause, to an accurate prison record. ... Liberty interests created by prison regulations are limited to freedom from restraint which 'imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.'") (quoting Sandin v. Connor, 515 U.S. 472, 484 (1995)). Additionally, "To the extent that Plaintiff attempts to state a due process claim based upon the revocation of his single cell status, Plaintiff has no constitutional right to have his own cell." Waters v. Flores, No. 10-02169, 2012 U.S. Dist. LEXIS 18320 at *9, 2012 WL 484530 at *3 (E.D. Cal. Feb. 14, 2012) (collecting cases).
2. Denial of Leave to Amend
This claim should be dismissed without leave to amend because amendment would be futile. Adding more facts about the alleged fabrication would not change the legal principle that Plaintiff lacks a constitutionally protected interest in accurate prison records or in a single-cell assignment.
I. New Claims Raised in Plaintiff's Objections
1. Fire Extinguisher Incident
a. Legal Standard
A prison staff member may be liable for violating a prisoner's Eighth Amendment rights if: (1) the defendant used excessive and unnecessary force under all of the circumstances, (2) the force was applied "maliciously and sadistically to cause harm" rather than "in a good-faith effort to maintain or restore discipline," and (3) the defendant's acts caused the plaintiff harm. Hoard v. Hartman, 904 F.3d 780, 788 n.9 (9th Cir. 2018). "Not every malevolent touch by a prison guard gives rise to a federal cause of action. ... The Eighth Amendment's prohibition of 'cruel and unusual' punishment necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort 'repugnant to the conscience of mankind.'" Hudson v. McMillian, 503 U.S. 1, 6 (1992) (citations omitted); see also Wilkins v. Gaddy, 559 U.S. 34, 38 (2010) ("An inmate who complains of a 'push or shove' that causes no discernible injury almost certainly fails to state a valid excessive force claim.").
b. Analysis
In the initial Complaint, Plaintiff alleged that he was "sprayed with a fire extinguisher for praying on an involuntary transfer bus without seat belts...." (Compl. at 7.) He alleged that inmates on the bus were instructed not to talk, but he was praying, and the "Holy Ghost caused the Plaintiff to give utterance in a loud voice with prayer in his Holy Tongues," which apparently prompted prison staff to spray him with a fire extinguisher. (Id.)
The Court dismissed this claim with leave to amend. (Dkt. 10 at 14.) Assuming that this was meant to allege a violation of Plaintiff's Eighth Amendment rights, the Court found that Plaintiff had failed to allege: (a) which of the named Defendants (if any) sprayed him with the fire extinguisher, and (b) enough facts about the circumstances of this event to show that force was applied to cause harm and that he actually suffered harm as a result. (Id.)
Although the FAC did not mention this incident, Plaintiff discusses it again in his Objections, alleging:
Plaintiff was involuntarily transferred from RJD to CMC on 04/05/2017 due to retaliation and reprisals for filing appeals.... Upon arrival at CMC the Plaintiff had to seek medical documentation from RN Dennis Acasio at 5:05 p.m. immediately after prison staff sprayed him with a fire extinguisher for praying out loud in the Holy Ghost with the evidence of speaking in other tongues as the spirit gives utterance while being shackled like a slave on an illegal transportation bus without seat belts. The Plaintiff's social worker Michael Rogers also documented the incident....(Objs. at 2.) These allegations suffer from the same defects as the allegations in the initial Complaint. Plaintiff again fails to state which of the named Defendants (if any) sprayed him with the fire extinguisher, and whether he suffered any injuries.
c. Grant of Leave to Amend
Because the Objections indicate that Plaintiff may be able to add more facts relevant to this claim, including facts documented by prison staff, he should be granted leave to amend this claim in the Second Amended Complaint.
2. Denial of Newspaper
a. Legal Standard
"[T]he right to receive newspapers and magazines is part of the [F]irst [A]mendment...." Payne v. Whitmore, 325 F. Supp. 1191, 1193 (N.D. Cal. 1971). A "blanket ban on newspapers and magazines" would likely violate prisoners' First Amendment rights. Prison Legal News v. Babeu, 933 F. Supp. 2d 1188, 1206 (D. Ariz. 2013) (collecting out-of-circuit cases); see also Pepperling v. Crist, 678 F.2d 787, 791 (9th Cir. 1982) (noting that a "blanket prohibition against receipt of the publications by any prisoner carries a heavy presumption of unconstitutionality"). But lesser restrictions on receiving newspapers may be constitutional because a prisoner's "First Amendment rights to receive mail may be limited by regulations that 'are reasonably related to legitimate penological interests,' including prison security." Brown v. Trejo, 818 F. App'x 599, 603 (9th Cir. 2020) (quoting Nordstrom v. Ryan, 856 F.3d 1265, 1272 (9th Cir. 2017); finding that newspaper articles about other inmates and former jail employees "were properly seized as contraband pursuant to a policy that served a legitimate government interest of protecting other inmates and former staff").
b. Analysis
Plaintiff alleges that Defendant Captain Steck "denied ... Plaintiff to receive his San Francisco Bay View periodicals for a whole year stating that Plaintiff's newspaper subscription would disrupt the order of the facility...." (Objs. at 3.) From this one sentence, it is unclear whether Plaintiff has alleged a violation of his First Amendment rights. If he wishes to pursue this claim, he should add facts about, e.g., the approximate dates when the newspaper was denied; whether the whole newspaper (or just a certain part of the newspaper) was denied; and why prison officials claimed that receiving the newspaper would disrupt the order of the facility (if Plaintiff was given an explanation).
The San Francisco Bay View appears to be a newspaper that focuses on issues relevant to the African-American community. See https://sfbayview.com/.
c. Grant of Leave to Amend
Because Plaintiff may be able to state a claim under the First Amendment, he should be granted leave to amend this claim in the Second Amended Complaint.
3. Strip Search During Transfer from CMC to CHCF
a. Legal Standard
The Fourth Amendment right to be secure against unreasonable searches and seizures "extends to incarcerated prisoners; however, the reasonableness of a particular search is determined by reference to the prison context." Michenfelder v. Sumner, 860 F.2d 328, 332 (9th Cir. 1988). In the prison context, courts must ask whether the challenged search was "reasonably related to legitimate penological interests." Id. at 331 (citing Turner v. Safley, 482 U.S. 78, 89 (1987)). In evaluating the constitutionality of prison strip searches, the Ninth Circuit requires lower courts to "consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted." Id. at 332 (citing Bell v. Wolfish, 441 U.S. 520, 559 (1979)).
Many cases have applied this analytical framework to uphold the constitutionality of warrantless, suspicion-less prison strip searches. See, e.g., Florence v. Bd. of Chosen Freeholders of Cty. of Burlington, 566 U.S. 318, 330 (2012) (holding routine strip searches of inmates entering the general population are constitutional); Bell, 441 U.S. at 558-60 (holding routine strip searches of inmates after every contact visit are constitutional); Cunningham v. Multnomah Cty., 737 F. App'x 814, 816 (9th Cir. 2018) (affirming grant of summary judgment for defendants on Fourth Amendment claim challenging "official policy to visually strip search kitchen work crews inside an adjacent 'boot room' at the completion of their shift and prior to their return to the general prison population").
b. Analysis
For the first time in the Objections, Plaintiff alleges that during his transfer from CMC to CHCF, he was "sexually assaulted through CO Davidson's reckless eyeballing of voyeurism and sexual harassment upon information and belief by his loitering in front of the Plaintiff's naked body when another guard peace/officer was conducting a strip search...." (Objs. at 6.) Plaintiff also alleges that the strip search was unreasonable because multiple inmates were instructed to "stand naked by each other" for the search, rather than being searched "separately one-on-one in privacy...." (Id.)
An allegation that CO Davidson looked at Plaintiff while he was being strip searched is insufficient to show that CO Davidson "sexually harassed" Plaintiff. To the extent Plaintiff is contending that the strip search violated the Fourth Amendment because of the way it was conducted, he should include more facts, e.g., about the scope and manner of the search, how many inmates were searched at the same time, the reason for the search, and the name of the other CO who actually conducted the search (if known).
4. Grant of Leave to Amend
Because Plaintiff has not previously had a chance to amend this claim, and he may be able to state a claim if he adds more facts, he should be granted leave to include this claim in his Second Amended Complaint.
IV.
RECOMMENDATION
IT IS THEREFORE RECOMMENDED that the District Court issue an Order:
(1) approving and accepting this R&R;
(2) dismissing the following claims in the FAC with leave to amend them in a Second Amended Complaint:
(a) the ADA discrimination claims against Defendants Farao, Reynoso, and Gomez;
(b) the Free Exercise and RLUIPA claims based on the denial of permission to hold NHI religious banquets;
(c) the Free Exercise and RLUIPA claims based on the loss and/or damage to Plaintiff's Torah, keter, Star of David necklace, hot pot, JWIN music player, and guitar;
(d) the Free Exercise and RLUIPA claims based on the confiscation of musical instruments in July 2018;
(e) the Free Exercise and RLUIPA claims based on the work assignment that required Plaintiff to work on the NHI sabbath,
(f) the Free Exercise and RLUIPA claims based on access to CMC facilities for NHI group worship;
(g) the Fourteenth Amendment Equal Protection claim based on discrimination against NHI religious adherents at CMC; and
(h) the claims arising from the April 2017 incident when Plaintiff was allegedly sprayed with a fire extinguisher while praying on a transfer bus;
(i) the claim that Plaintiff was denied access to the San Francisco Bay View periodical for a year; and
(j) the claims arising from the strip search conducted in connection with his transfer from CMC to CHCF.
(3) dismissing all other claims in the FAC without leave to amend; and
(4) limiting leave to amend to the events and claims described in the FAC and the Objections and listed above, and which occurred before the filing of the initial Complaint in December 2019. DATED: October 27, 2020
/s/_________
KAREN E. SCOTT
United States Magistrate Judge