Opinion
Case No. 2:18-cv-01840-AC
03-23-2020
DASAY L. HOLLINQUEST, Plaintiff, v. S. SUH, Chaplain; B. CAIN, Superintendent; S. TOTH, Chaplain; S. YOUNG, Assistant Administrator Religious Services; DENNIS HOLMES, Administrator Religious Services; and S. MECHAM, Executive Assistant, Defendants.
FINDINGS AND RECOMMENDATION :
Introduction
Plaintiff Dasay L. Hollinquest ("Hollinquest"), an inmate in the custody of the Oregon Department of Corrections ("ODOC"), brings this action pro se against six ODOC employees arising out of events that occurred while Hollinquest was housed at Snake River Correctional Institution ("SRCI"). Hollinquest names as defendants in this action, all in both their individual and official capacities: Samuel Suh, Chaplain at SRCI ("Suh"); Brad Cain, Superintendent at SRCI ("Cain"); Steve Toth, Chaplain at SRCI ("Toth"); Stuart Young, Assistant Administrator of ODOC Chaplaincy Administration ("Young"); Dennis Holmes, Administrator of Religious Services for ODOC ("Holmes"); and Sheila Mecham, Executive Support Specialist 2 at SRCI ("Mecham") (collectively, "Defendants").
Titles used here are those provided by Defendants in their Answer, which differ slightly from the titles used in Hollinquest's Complaint. (Answer, ECF No. 12, ¶¶ 1-6.)
In his complaint filed October 18, 2018 (the "Complaint"), Hollinquest alleges one claim under the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"), 42 U.S.C. § 2000cc-1-5, and three claims under 42 U.S.C. § 1983 ("Section 1983"), each arising from the denial of his request to participate in Ramadan meals in 2018. Claim One alleges Defendants' application of their Ramadan Meal Policy violated Hollinquest's First Amendment rights. Claim Two alleges the Ramadan Meal Policy also violated RLUIPA. Claim Three alleges Suh retaliated against Hollinquest for filing a grievance regarding denial of Ramadan meals by refusing to change position on the denial, in violation of his First and Fourteenth Amendment rights. Claim Four alleges Suh discriminated against him because he filed a grievance.
Hollinquest's Complaint arguably alleges an Eighth Amendment violation not listed among his numbered claims (Compl. ¶ X), which the court addresses at pages 3-4, infra.
Hollinquest seeks injunctive relief, declaratory relief, compensatory damages, punitive damages, and reimbursement of litigation costs. (Compl., ECF No. 2, ¶ XI.) On August 7, 2019, Defendants moved for summary judgment on the merits. (Defs.' Mot. Summ. J., ECF No. 22 ("Mot.").) For the reasons set forth below, the court recommends Defendants' motion for summary judgment be GRANTED in part and DENIED in part.
Preliminary Procedural Matters
I. Plaintiff's pro se status requires greater leniency in construing his filings.
Hollinquest proceeds pro se in this action. The court "must consider as evidence in his opposition to summary judgment all of [Hollinquest's] contentions offered in motions and pleadings, where such contentions are based on personal knowledge and set forth facts that would be admissible in evidence, and where [Hollinquest] attested under penalty of perjury that the contents of the motions or pleadings are true and correct." Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004) (citing McElyea v. Babbitt, 833 F.2d 196, 197 (9th Cir. 1987); Johnson v. Meltzer, 134 F.3d 1393, 1399-1400 (9th Cir. 1998) (stating verified motions are admissible to oppose summary judgment). Accordingly, the court relies, at least in part, on Hollinquest's Response to Defendants' Motion for Summary Judgment and his Declaration in Opposition to Defendants' Motion for Summary Judgment.
Although Hollinquest labels his Complaint a "verified complaint," the complaint lacks an attestation under penalty of perjury that the contents are true and correct in accordance with 28 U.S.C. § 1746.
II. Plaintiff Has Not Pleaded an Eighth Amendment Claim.
Arguably, Hollinquest's allegation suggest a possible Eighth Amendment violatin but neither he nor Defendants specifically address this inchoate claim. Even if the claim is properly raised, Hollinquest fails to "demonstrate that the deprivation suffered was objectively, sufficiently serious." Wallis v. Baldwin, 70 F.3d 1074, 1076 (9th Cir. 1995) (internal quotations omitted). "Extreme deprivations are required to make out a conditions-of-confmement claim." Hudson v. McMillian, 503 U.S. 1, 9 (1992) (internal quotations omitted). Hollinquest received food to eat during Ramadan. The physical and emotional suffering Hollinquest describes as resulting from his inability to participate in Ramadan meals does not reflect the "extreme deprivations" required to show a denial of "the minimal civilized measure of life's necessities." See id. Accordingly, even if Hollinquest's Eighth Amendment claim is properly raised, because Hollinquest lacks evidence to support an essential element of the claim, Defendants are entitled to summary judgment on the claim.
Factual Background
I. Ramadan and ODOC's Ramadan Meal Policy
Hollinquest's claims in this case arise out of incidents surrounding his observance of Ramadan in 2018. In 2018, Ramadan began at sunset on May 15 and ended at sunset on June 14. (Young Decl., ECF No. 23, ¶ 5.).
Ramadan, the ninth month of the Islamic year, is observed by fasting from sunrise to sunset. (Young Decl. ¶ 5.) Prisoners seeking to observe Ramadan must sign up to receive Ramadan meals. (Young Decl. ¶ 6.) ODOC's Religious Meals Process requires that, to attend a religious meal, an inmate must have a history of attending the religious group's programming when it has been offered in an ODOC facility. (Young Decl. ¶ 12.) For Ramadan meals, inmates are required to sign up by a deadline about two months in advance of Ramadan. (Young Decl. ¶ 16.) The religious programming participation requirement and the advance signup requirement are referred to together here as the "Ramadan Meal Policy" or simply "the Policy." Instances in which the evidence refers specifically to the Religious Meals Process without reference to an advance signup requirement are maintained.
It is unclear from the evidence whether the two-month advance signup deadline is part of the "Religious Meals Process." It is also unclear whether the deadline is an ODOC-wide policy or is specific to SRCI.
II. Hollinquest's Prior History of Participation in Religious Programming
While in the ODOC system, Hollinquest has attended various types of Islamic religious programming at various institutions. Hollinquest attended Muslim services at SRCI from September to October 2003. (Hollinquest Decl., ECF No. 28, ¶ 45, Ex. 5.) In September and October 2006, Hollinquest participated in Ramadan meals at SRCI. (Hollinquest Decl. ¶ 45, Ex. 5.) Hollinquest attended Muslim services at SRCI at intervals between October 2006 and August 2008. (Hollinquest Decl. ¶ 46, Ex. 5.) In August and September 2009, while housed at the Oregon State Penitentiary ("OSP"), Hollinquest participated in Ramadan meals. Hollinquest continued to participate in Islamic programming in intervals, including from September 2016 through January 2017 while at OSP. (Exhibit 37.)
In February 2017, Hollinquest was transferred to Two Rivers Correctional Institution ("TRCI"). (Hollinquest Decl. ¶ 4.) Hollinquest tried to sign up for Islamic services but was told by Security Threat Management ("STM") that he could not attend because of a conflict with another inmate who attended services. (Hollinquest Decl. ¶ 4.) STM sent a memo to all ODOC religious services staff notifying them that Hollinquest could not attend Islamic services because of security concerns. (Hollinquest Decl. ¶ 5.)
III. Ramadan 2018 Denial.
On February 25, 2018, while housed at TRCI, Hollinquest sent an inmate communication ("kyte") to TRCI religious services asking to be put on the list of inmates receiving Ramadan meals for Ramadan 2018 (the "February Kyte"). (Hollinquest Decl. ¶ 6, Ex. 2.) Hollinquest did not receive a response to his February Kyte, but a few days later he spoke with a chaplain at TRCI who confirmed that Hollinquest had been added to the list. (Hollinquest Decl. ¶ 6.)
Hollinquest was transferred to SRCI on March 6, 2018. (Hollinquest Decl. ¶ 7.) Unbeknownst to Hollinquest, SRCI inmates had already been informed that the deadline for Ramadan meal signups was March 9, 2018. (Hollinquest Decl. ¶ 8.) On April 17, 2018, Hollinquest learned from another inmate that his requests for Ramadan meals made at TRCI would not transfer to SRCI. (Hollinquest Decl. ¶ 9.) Subsequently, he sent a kyte to Chaplain Persinger asking to be added to SRCI's list for Ramadan meals (the "April Kyte"). (Hollinquest Decl. ¶¶ 9, 10, Ex. 3.) The April Kyte was returned with receipt acknowledged but without a response. (Hollinquest Decl. ¶ 10.)
There is conflicting information in Plaintiff's Complaint and at other points in the record whether this kyte was sent on April 17 or April 29.
When Ramadan started on May 15, 2018, Hollinquest did not receive Ramadan meals. (Hollinquest Decl. ¶ 11.) Another inmate who had transferred to SRCI at the same time as Hollinquest and requested Ramadan meals late, on March 20, 2018, did receive Ramadan meals. (Hollinquest Decl. ¶ 21.)
On May 19, 2018, after a correctional officer's phone messages had not resolved the question of why Hollinquest was not receiving Ramadan meals, Hollinquest sent another kyte to Chaplain Persinger following up on his earlier request and asking to begin receiving Ramadan meals. (Hollinquest Decl. ¶¶ 12-14, Ex. 4.) On May 21, Hollinquest filed a grievance (the "Toth Grievance") against Toth, claiming that the failure to provide him with Ramadan meals despite his requests violated his First Amendment rights. (Hollinquest Decl. ¶ 15, Ex. 6.) On May 23, Hollinquest received the following response from Suh to the May 19 kyte:
You requested to be put on Ramadan list for this year. However, the dead line to sign up for Ramadan was March 9. According to your electronic record, you didn't actively participated in Muslim activities. Ramadan is only for those who
are actively participating Muslim. Thus, you will not be added to the list this year. However, you can still participate on your own. I hope you will continue on your spiritual journey. Thank you.(Hollinquest Decl. ¶ 14, Ex. 6.) On May 24, Hollinquest sent a kyte to Toth asking to receive Ramadan meals and alleging violations of his First Amendment rights. (Hollinquest Decl. ¶ 17, Ex. 13.)
On May 25, Suh came to Hollinquest's cell, introduced himself, and told Hollinquest he managed Ramadan meal signups. (Hollinquest Decl. ¶ 18.) Suh said he had learned Hollinquest had filed a grievance against him, and Hollinquest explained the grievance was against Toth. (Hollinquest Decl. ¶ 18.) Hollinquest and Suh discussed Hollinquest's request in the April Kyte to be added to the Ramadan meal list. (Hollinquest Decl. ¶ 18.) Hollinquest explained that because of his March 6 transfer to SRCI, he did not know about the March 9 signup deadline announced in February. (Hollinquest Decl. ¶ 18.) Hollinquest additionally argued he had made his request far enough in advance to be added to the list. (Hollinquest Decl. ¶ 18.) Suh told Hollinquest he had been denied because he missed the deadline, and Suh refused to make an exception. (Hollinquest Decl. ¶ 18.) Hollinquest told Suh he believed his First Amendment rights were being violated and he was suffering because he was unable to fast. (Hollinquest Decl. ¶ 18.) He explained that he was unable to fast for Ramadan on his own because guards would not allow him to save food to eat after sunset. (Hollinquest Decl. ¶ 18.) As Suh walked away from Hollinquest's cell, he turned back and said that "he was going to make an exception, but [Hollinquest] grieved him." (Hollinquest Decl. ¶ 18.)
Following the May 25 conversation, Hollinquest continued to correspond by kyte with Suh over the next few days about the denial of Hollinquest's request for Ramadan meals. (Hollinquest Decl. ¶¶ 19-20, Exs. 13-15.) On June 1, Hollinquest filed a grievance against Suh regarding the cell-side interaction on May 25 (the "Suh Grievance"). (Hollinquest Decl. ¶ 22, Ex. 22.) Hollinquest's correspondence with Suh continued through June 18, 2018, with Hollinquest arguing he had timely requested and been approved for Ramadan meals at TRCI and Suh reiterating that the February Kyte requesting Ramadan meals at TRCI did not prove his eligibility. (Hollinquest Decl. ¶¶ 23-24, 28, Exs. 24-26, 28-29.) Suh told Hollinquest he had confirmed Hollinquest's ineligibility with his supervisor, Young. (Hollinquest Decl. ¶¶ 24, 28, Exs. 26, 28-29.)
Meanwhile, on June 10, Hollinquest received a response from Toth regarding the Toth Grievance. (Hollinquest Decl. ¶ 15, Ex. 7.) Toth explained that Suh had already responded to Hollinquest's Ramadan requests. (Hollinquest Decl. ¶ 15, Ex. 7.)
Also on June 10, Hollinquest sent a kyte to Cain complaining that Suh refused to add him to the Ramadan list despite his timely signup at TRCI, claiming Cain's failure to act deprived him of his free exercise of religion, and asking to participate in the last few days of Ramadan meals. (Hollinquest Decl. ¶ 27, Ex. 27.) On June 13, Mecham responded for Cain, noting that Hollinquest had filed the Toth Grievance on this issue and would receive a response through the grievance process. (Hollinquest Decl. ¶ 27, Ex. 27.)
On June 14, Ramadan ended at sunset. (Young Decl. ¶ 5.) Hollinquest had fasted from sunrise to sunset for only twelve days during the month of Ramadan because he could not save food. (Hollinquest Decl. ¶ 18; Pl.'s Resp. to Defs.' Mot. for Summ. J., ECF No. 27 ("Resp."), ¶ 27.)
On June 15, the Suh Grievance was returned for noncompliance with a requirement that only one grievance may be filed on a single issue or incident. (Hollinquest Decl. ¶ 22, Ex. 23.) On June 17, Hollinquest filed a grievance against Young (the "Young Grievance") over Young's role in the denial of his request for Ramadan meals, claiming that Young was violating his First Amendment Rights. (Hollinquest Decl. ¶ 30, Ex. 30.) On June 19, Hollinquest filed a grievance against Cain (the "Cain Grievance") over Cain's failure to remedy the problems Hollinquest reported in the June 10 kyte. (Hollinquest Decl. ¶ 32, Ex. 33.) Subsequently, on June 21 and 25, both the Young Grievance and the Cain Grievance were returned for non-compliance. (Hollinquest Decl. ¶¶ 30, 32, Exs. 31, 34.)
Hollinquest filed an appeal on the Toth Grievance, which the grievance office accepted on June 20. (Hollinquest Decl. ¶ 15, Ex. 8.) On June 22, Young reviewed Hollinquest's religious services attendance record and determined that Hollinquest "did not have a history of active participation in Islamic services since January 2017 although he had many opportunities while living in inmate general population. For this reason, his request was denied, consistent with policy." (Young Decl. ¶ 17.) Young responded to Hollinquest's appeal of the Toth Grievance that day, providing the same explanation of Hollinquest's lack of participation and citing the Religious Meals Process. (Hollinquest Decl. ¶ 15, Ex. 9.)
Hollinquest appealed the Toth Grievance a second time on June 28, citing his history of attending Muslim services and participating in Ramadan throughout his incarceration. (Hollinquest Decl. ¶ 15, Ex. 10.) Holmes responded to the second appeal, again explaining the religious services participation requirement expressed in the Religious Meals Process and Hollinquest's denial based on his lack of participation in Islamic services since January 2017. (Hollinquest Decl. ¶ 15, Ex. 11.) IV. Hollinquest's Subsequent Participation in Religious Programming
On August 22, 2018, Hollinquest was transferred to Eastern Oregon Correctional Institution ("EOCI"). (Hollinquest Decl. ¶ 33.) At EOCI, he asked to attend the Eid feast, an Islamic religious meal, but was denied based on his visitor status. (Hollinquest Decl. ¶¶ 34, 35, Ex. 36.) On October 16, STM approved Hollinquest to begin attending Islamic religious services. (Hollinquest Decl. ¶¶ 36, 37, Exs. 35, 37.) Hollinquest attended services at EOCI until December 7, 2018, when a hairline fracture in his ankle prevented him from climbing stairs to the room where services were held. (Hollinquest Decl. ¶ 38, Exhibit 37.)
On May 23, 2019, during Ramadan 2019, Hollinquest was transferred again, to the Oregon State Penitentiary ("OSP"), where he immediately requested Ramadan meals. (Hollinquest Decl. ¶¶ 39, 40, Ex. 38.) The request was approved on May 26, 2019, and Hollinquest participated in Ramadan meals. (Hollinquest Decl. ¶ 41, Ex. 37.) Hollinquest resumed attending Islamic religious services and studies at OSP in June 2019, with approval from STM. (Hollinquest Decl. ¶¶ 42, 43, Ex. 37.) V. This Lawsuit
This court takes judicial notice that in 2019, Ramadan began in the United States on May 5 at sunset and ended on June 3 at sunset. See FED. R. EVID. 201 (allowing judicial notice of a fact not subject to reasonable dispute because it "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned").
On October 15, 2018, Hollinquest filed this lawsuit pursuant to Section 1983 and RLUIPA. On August 7, 2019, Defendants moved for summary judgment. \ \ \ \ \ \ \ \ \ \
Legal Standards
Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). The moving party satisfies its burden by offering the district court the portions of the record it believes demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court does not assess the credibility of witnesses, weigh evidence, or determine the truth of matters in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in the non-moving party's favor. Porter v. Cal. Dep of Corr., 419 F.3d 885, 891 (9th Cir. 2005) (citations omitted). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation and internal quotation marks omitted). "[W]here evidence is genuinely disputed on a particular issue—such as by conflicting testimony—that issue is inappropriate for resolution on summary judgment." Zetwick v. County of Yolo, 850 F.3d 436, 441 (9th Cir. 2017) (internal quotation and citation omitted).
If the moving party demonstrates no issue of material fact exists, the burden falls to the nonmoving party to go beyond the pleadings and identify facts showing a genuine issue for trial. Celotex, 477 U.S. at 324. The nonmoving party cannot defeat a motion for summary judgment with unsupported conjecture or conclusory statements, or by relying on allegations in the complaint. Hernandez v. Spacelabs Medical Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). "Mere allegations or denials" are insufficient to meet the nonmoving party's burden to show a genuine issue of material fact to defeat a motion for summary judgment. Gasaway v. Northwestern Mut. Life Ins. Co., 26 F.3d 957, 960 (9th Cir. 1994). Importantly, if the nonmoving party fails to provide evidence to support an essential element of his case on which he has the burden of proof, the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323.
Discussion
I. Hollinquest's Request for Injunctive Relief
In this action, Hollinquest seeks, among other relief, an injunction "ordering Defendant(s) collectively to enforce their own written rules, policies and procedures dealing with religious meal accommodations." (Compl. ¶ XI.) In seeming conflict with this request, Hollinquest's lawsuit challenges Defendants' policies, which they enforced against him to deny him Ramadan meals, as violating his rights under the First Amendment and RLUIPA. This court construes a pro se plaintiff's pleadings liberally and affords the plaintiff the benefit of any doubt. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Accordingly, the court observes the Complaint and exhibits reveal that in Hollinquest's view, the Ramadan Meal Policy is not part of ODOC's written rules, policies, and procedures because it is not written in the Oregon Administrative Rules applicable to ODOC regarding religious activities. (Compl. ¶¶ 13, 16, 29, 32; Hollinquest Decl. Ex. 10.) In that light, Hollinquest's request for injunctive relief should be construed as a request that Defendants not enforce the Ramadan Meal Policy at issue in this case, a policy not in the "written rules, policies and procedures" as Hollinquest understands them. Accordingly, this court understands Hollinquest is requesting an injunction barring Defendants from enforcing the Ramadan Meal Policy on the grounds that a policy not contained in Oregon Administrative Rules or other written policies to which Hollinquest had access cannot be enforced.
Hollinquest appears to have maintained this belief despite a grievance appeal response on July 24, 2018, from Holmes explaining to him that "[O]DOC operates on more than OAR's alone; we have policies and procedures that guide many of our practices to ensure statewide consistency. Not everything that directs Religious Services is covered in one document." (Hollinquest Decl. Ex. 11.)
The argument required to support Hollinquest's request for injunctive relief lacks merit. In responding to Defendants' motion for summary judgment, Hollinquest concedes the Ramadan Meal Policy exists and was applied to deny his request for Ramadan meals. (Resp. ¶¶ 1, 20, 28-30.) It is unclear from the evidence presented exactly where the Policy is written. However, even if the Policy were entirely unwritten, the lack of formality would not provide grounds to enjoin enforcement in an action brought under Section 1983 and RLUIPA. Unwritten policies may be challenged on the grounds that they are unconstitutional or violate a federal statute such as RLUIPA. See, e.g., Johnson v. California, 543 U.S. 499 (2005) (holding an unwritten prison policy regarding racial segregation was subject to strict scrutiny under the Equal Protection Clause); Brinkman v. Linderman, 616 F. App'x 227, 229 (9th Cir. 2015) (addressing a prisoner's challenges to an unwritten policy under the First Amendment Free Exercise Clause and RLUIPA). Unwritten policies can be upheld in such a challenge; simply being unwritten does not render the policy invalid. See Brinkman, 616 F. App'x at 229 (affirming district court's grant of summary judgment to defendants on plaintiff's challenges to an unwritten policy). Accordingly, Hollinquest's action under Section 1983 and RLUIPA does not support his request to enjoin enforcement of a policy on the grounds that it is not written in the OAR or other documents to which Hollinquest had access. Because Hollinquest is not entitled to the injunctive relief he seeks, this court evaluates below only his claims for damages.
Hollinquest argues his request was initially denied because he missed the deadline and the justification based in religious participation was added later. (Resp. ¶ 20.) However, regardless whether Defendants initially applied the advance signup deadline or the religious services participation requirement, they applied a policy of broad application.
II. RLUIPA Claim
Hollinquest asserts that Defendants' refusal to allow him to participate in Ramadan meals under the Ramadan Meal Policy violated his rights under RLUIPA. RLUIPA provides, in pertinent part, 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 establishes the burden is "in furtherance of a compelling government interest" and is "the least restrictive means of furthering that . . . interest." 42 U.S.C. § 2000cc-1(a) (2018); see Greene v. Solano Cty. Jail, 513 F.3d 982, 986 (9th Cir. 2008) (discussing the heightened burden on the government under RLUIPA compared to under the First Amendment Free Exercise Clause). RLUIPA represents Congress's "efforts to accord religious exercise heightened protection from government-imposed burdens." Greene, 513 F.3d at 986 (quoting Cutter v. Wilkinson, 544 U.S. 709, 714 (2005)).
Although RLUIPA provides heightened religious protection, its remedies are limited. RLUIPA does not authorize an action for damages against state officials in either their official capacity or their individual capacity. Jones v. Williams, 791 F.3d 1023, 1031 (9th Cir. 2015) (citing Sossamon v. Texas, 563 U.S. 277 (2011); Wood v. Yordy, 753 F.3d 899, 904 (9th Cir. 2014)). Accordingly, monetary damages are not available under RLUIPA. Williams, 791 F.3d at 1031.
Claims for RLUIPA violations may not be brought through the vehicle of 42 U.S.C. 1983. See Alvarez v. Hill, No. CV 04-884-BR, 2010 WL 582217, at *15 (D. Or. Feb. 12, 2010) (concluding that Section 1983 does not provide "an end-run around the limited remedial scheme of RLUIPA").
Hollinquest seeks damages from Defendants in their official and individual capacities under RLUIPA. Because RLUIPA does not authorize suits for monetary damages in either capacity, Hollinquest cannot obtain the relief he seeks under RLUIPA. Accordingly, Defendants' motion for summary judgment should be granted on Hollinquest's RLUIPA claim.
As discussed above, Hollinquest also is not entitled under RLUIPA to injunctive relief.
III. Constitutional Claims
A. 42 U.S.C. § 1983 Standard
Hollinquest brings several constitutional claims under Section 1983. "Section 1983 does not create any substantive rights, but is instead a vehicle by which plaintiffs can bring federal constitutional and statutory challenges to actions by state and local officials." Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). To state a cognizable claim under Section 1983, an inmate must show that: (1) defendants deprived plaintiff of a constitutional right, and (2) defendants acted under the color of state law. Id. In the Ninth Circuit, a prison official acts under color of state law where, as here, such actions are carried out in the performance of the official's duties as an employee of the state. Id. at 1068-69.
Hollinquest brings his constitutional claims for damages against all Defendants in their official and individual capacities. Under Section 1983, liability for monetary damages may be imposed on state officials only through personal-capacity suits, not official-capacity suits. Hafer v. Melo, 502 U.S. 21, 27, 31 (1991). Accordingly, Hollinquest's claims for damages under Section 1983 may be brought against Defendants only in their individual capacities.
A cognizable claim for damages under Section 1983 also requires an inmate to show causation, that is, that a particular defendant engaged in " 'an affirmative act, participat[ed] in another's affirmative act, or omit[ted] to perform an act which he is legally required to do that causes the deprivation of which complaint is made.' " Preschooler II v. Clark Cty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)); Leer v. Murphy, 844 F.2d 628, 632-33 (9th Cir. 1988). To establish causation, the inmate must include in the pleadings "specific facts as to each individual defendant's" causal role in the alleged constitutional deprivation. Leer, 844 F.2d at 634. Accordingly, when determining causation in a suit seeking damages, a court "must take a very individualized approach which accounts for the duties, discretion, and means of each defendant." Id. at 633-34.
B. First Amendment Free Exercise Claim
1. Turner Analysis
Hollinquest argues that Defendants deprived him of his constitutional rights under the Free Exercise Clause of the First Amendment when they applied the Ramadan Meal Policy to deny him Ramadan meals. (Resp. ¶¶ 28-30.) Hollinquest's challenge addresses the application of two elements of the Policy: the requirement that an inmate have a recent history of participating in religious services when offered and the requirement that an inmate sign up by a deadline about two months in advance of Ramadan.
Hollinquest argues the application of the participation requirement violated his First Amendment rights. Although the evidence regarding the Ramadan Meal Policy does not reveal a time frame in which the inmate must have participated in services, Hollinquest's request was denied in April 2018 based on a lack of participation since January 2017, a gap of approximately fifteen months. While Hollinquest was in the general population at TRCI during that interval, he did not attend religious services; he explains that from February 2017 through October 2018, ODOC officials did not allow him to attend services because of a security risk. (Hollinquest Decl. ¶¶ 4-5.) To the extent the Ramadan Meal Policy requires continuous or recent participation in religious services or does not account for his inability to attend services for reasons unrelated to his faith, Hollinquest argues that the Policy unconstitutionally impinges on his right to free exercise of religion. He argues that the Policy unconstitutionally denies Ramadan participation "the moment he stops attending Islamic services or Islamic programs for personal, medical, or security reasons although he has a history of attending Islamic services, Islamic programs, and Ramadan in the past." (Hollinquest Decl. ¶ 68.)
Hollinquest also contests application of the requirement that inmates sign up for Ramadan meals at the facility two months in advance. His request for Ramadan meals at TRCI was timely made, but his request at SRCI came after the deadline had passed. Hollinquest argues the application of the advance signup requirement in his case violated his right to free exercise because he made a timely request at TRCI but was transferred to SRCI after SRCI's deadline was announced, and thus he did not know he needed to make a new request. (Hollinquest Decl. ¶ 61).
Hollinquest argues Defendants relied on his late signup as the initial reason for denying his request, and only afterwards did they cite his lack of participation in religious services. (Resp. ¶¶ 20, 33.)
"Prisoners 'do not forfeit all constitutional protections by reason of their conviction and confinement in prison.'" Shakur v. Schriro, 514 F.3d 878, 883 (9th Cir. 2008) (quoting Bell v. Wolfish, 441 U.S. 520, 545 (1979)). "Inmates retain the protections afforded by the First Amendment, 'including its directive that no law shall prohibit the free exercise of religion.'" Shakur, 514 F.3d at 883-84 (quoting O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987)). Prisons may adopt regulations and restrictions that potentially impinge on an inmate's free exercise of religion if those regulations are "reasonably related to legitimate penological interests." Turner v. Safley, 482 U.S. 78, 89 (1987); Alvarez v. Hill, 518 F.3d 1152, 1156 (9th Cir. 2008) ("Turner . . . governs inmate free exercise claims brought under the First Amendment."). Under Turner, the court must assess four factors:
(1) whether the regulation is rationally related to a legitimate and neutral governmental objective, (2) whether there are alternative avenues that remain open . . . to exercise the right, (3) the impact that accommodating the asserted right will have on other guards and prisoners, and on the allocation of prison resources; and (4) whether the existence of easy and obvious alternatives indicates that the regulation is an exaggerated response by prison officials.Prison Legal News v. Lehman, 397 F.3d 692, 699 (9th Cir. 2005) (citing Turner, 482 U.S. at 89)). Accordingly, this court must analyze whether application of the Ramadan Meal Policy to Hollinquest potentially impinges on his free exercise of religion and, if so, whether it is valid under Turner.
a. substantial burden on a sincerely held belief rooted in religion
To prevail on a free exercise claim, a plaintiff must demonstrate that the challenged action burdens a sincerely held belief that is rooted in the plaintiff's religion. Shakur, 514 F.3d at 884-85. The burden on the plaintiff's religious belief must be substantial, more than an inconvenience. Williams, 791 F.3d at 1031; Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir. 1997).
Hollinquest contends his desire to observe Ramadan by fasting from sunrise to sunset is a sincerely held belief rooted in his religion as a Muslim. (Hollinquest Decl. ¶ 57.) Defendants question the sincerity of Hollinquest's religious beliefs and his Ramadan request. (Mot. at 4-5.) Hollinquest describes his Muslim beliefs and states that "participation in Ramadan is part of the way plaintiff practices his religious beliefs." (Hollinquest Decl. ¶¶ 47-48.) Furthermore, while in ODOC custody, Hollinquest has attended Muslim services intermittently over many years and has participated in Ramadan meals several times. (Hollinquest Decl. ¶¶ 41, 45-46, 50.) Accordingly, Hollinquest has established a genuine issue of material fact as to the existence of his sincerely held religious belief, rooted in his religion, that he should fast during Ramadan.
Hollinquest argues the denial of Ramadan meals under the Ramadan Meal Policy substantially burdened his religious belief. (Hollinquest Decl. ¶ 48.) Hollinquest explains that could not consistently observe the sunrise-to-sunset fast on his own because he was not allowed to save food. (Hollinquest Decl. ¶ 18.) Ultimately, he was able to fast for only twelve of the thirty days of Ramadan. (Resp. ¶ 27.) Hollinquest's inability to receive Ramadan meals under the Policy caused more than an inconvenience for his fasting; it prevented him from fasting for the majority of the thirty days of Ramadan, in accordance with his belief. Accordingly, the application of the Ramadan Meal Policy substantially burdened Hollinquest's religious belief.
b. valid penological interests
Under the First Amendment Free Exercise Clause, a prison regulation that "impinges on inmates' constitutional rights" is nevertheless valid if it is "reasonably related to legitimate penological interests" under Turner's four-factor test. Turner, 482 U.S. at 89. In determining whether summary judgment is appropriate, this court "must engage in a full Turner analysis to determine whether any genuine issue of material fact exists with respect to [Hollinquest's] free exercise claim." Shakur, 514 F.3d at 885.
Courts evaluate the policies of a jail or prison with "due regard for the 'inordinately difficult undertaking' that is modern prison administration," recognizing that "certain proposed interactions, though seemingly innocuous to laymen, have potentially significant implications for the order and security of the prison." Thornburgh v. Abbott, 490 U.S. 401, 407 (1989) (quoting Turner, 482 U.S. at 85). The judgment of correctional officials is entitled to due deference, but courts also must consider a plaintiff's contrary evidence. See Pell v. Procunier, 417 U.S. 817, 827 (1974).
1) rational relationship
With respect to the first Turner factor, the evidence shows a rational and valid connection between the Defendants' application of the Ramadan Meal Policy and a legitimate governmental interest. The "orderly administration of a program that allows . . . prisons to accommodate the religious dietary needs of thousands of prisoners" is a legitimate governmental interest. Resnick v. Adams, 348 F.3d 763, 769 (9th Cir. 2003); see also Sefeldeen v. Alameida, 238 F. Appx. 204, 206 (9th Cir. 2007) ("the legitimate governmental interest is to reasonably accommodate thousands of inmates' religious dietary needs while also considering budgetary, staff, and security limitations"). The Ramadan Meal Policy requires a recent history of attending the religious group's programming when it has been offered in an ODOC facility. Defendants explain that "[i]n an inmate population, it is an unfortunate truth some individuals manipulate the system to obtain sought-after items or what may be perceived by them as special treatment," and that without this screening criterion, ODOC would be forced to accommodate every request to participate in religious meals. (Mot. at 13.) Additionally, Defendants explain that the advance signup requirement for Ramadan provides time to evaluate requests and prepare with Food Services for implementation. (Mot. at 13.) Defendants have provided justification showing that the Ramadan Meal Policy, including the recent participation requirement and the advance signup requirement, is rationally related to a need to provide orderly administration of the prison's religious meal programs. See Resnick, 348 F.3d at 769 (finding a signup procedure that allowed prison chaplains to assess an inmate's sincerity in requesting religious meals was rationally connected to the legitimate prison interest of aiding administration of the program). Accordingly, the first Turner factor weighs in favor of Defendants.
2) alternative means
Under the second Turner factor, the court must consider "whether there are alternative means of exercising the right that remain open to prison inmates." Turner, 482 U.S. at 89-90. The relevant inquiry under the second Turner factor is "not whether the inmate has an alternative means of engaging in the particular religious practice that he or she claims is being affected; rather [it is] whether the inmates have been denied all means of religious expression." Ward v. Walsh, 1 F.3d 873, 878 (9th Cir. 1993) (citing O'Lone, 482 U.S. at 352). Even when regulations impinge upon some aspects of religious practice, there may yet be alternative means of exercising the right to free exercise where inmates "retain[] the ability to participate in other significant rituals and ceremonies of their faith." Id. at 877.
The uncontested facts show Hollinquest did not have any alternative means of fasting for Ramadan; however, the relevant inquiry is whether other means of religious expression remained available to him. The record lacks mention of other significant rituals, ceremonies, or forms of expression were available to Hollinquest when Defendants applied the Ramadan Meal Policy to deny his request. Cf. O'Lone, 482 U.S. at 352 (listing religious activities that remained available to a plaintiff); Shakur, 514 F.3d at 886 (same). Furthermore, Hollinquest states that, from February 2017 through October 2018, ODOC personnel barred him from participating in group religious services because of a security concern, limiting the religious activities available to him. (Hollinquest Decl. 4-5, 36-37.) Accordingly, this court lacks evidence regarding the alternative forms of religious expression remained open to Hollinquest.
An additional inquiry under factor two is the form of religious exercise denied the plaintiff. "It is one thing to curtail various ways of expressing belief, for which alternative ways of expressing belief may be found. It is another thing to require a believer to defile himself, according to the believer's conscience, by doing something that is completely forbidden by the believer's religion." Ward, 1 F.3d at 878. Plaintiff explains that because he wanted to fast but could not, he still received God's blessing, but could not receive the purification and growth of fasting and had a diminished spiritual experience. (Hollinquest Decl. ¶ 47.) Accordingly, Plaintiff's inability to fast for Ramadan curtailed his positive expression of belief, which carries less weight in the analysis under factor two than would a religious violation. Nevertheless, without evidence showing the alternative forms of religious expression that remained open to Hollinquest, the court cannot reach a conclusion on the second Turner factor.
3) adverse impact
The third Turner factor requires the court to consider the "impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally." Turner, 482 U.S. at 90. "When accommodation of an asserted right will have a significant 'ripple effect' on fellow inmates or on prison staff, courts should be particularly deferential to the informed discretion of corrections officials." Id. However, a court cannot simply accept, without factual findings, a prison official's assertion that an effect would be significant. See Ward, 1 F.3d at 878-89.
In this case, accommodating Hollinquest's request would require adding him to a group of inmates receiving Ramadan meals. Accordingly, no significant financial or administrative impacts would be expected from including Hollinquest in the already-existing group. Compare Shakur, 514 F.3d at 886 ("the marginal cost and administrative burden of adding Shakur to the roster of kosher-diet inmates would be small or even negligible") with Ward, 1 F.3d at 878 ("Common sense tells us that there would be some disruption to the efficient operation of culinary services if the prison were required to provide a special meal for one prisoner.").
Defendants argue the Ramadan Meal Policy is necessary to prevent a situation in which ODOC is "compel[led] . . . to accommodate every request to participate in every religious meal," including from inmates seeking perceived special treatment for non-religious reasons. (Mot. at 13.) Without specifically addressing effects that would flow from accommodating Hollinquest, Defendants raise generalized concerns of subsequent untimely requests resulting from even a single exception to procedure: "[i]f one inmate is successful in requesting an item without complying with standard procedures, then we are often flooded with similar requests from inmates who do not necessarily share the [relevant] religious beliefs." (Mot. at 12.)
Hollinquest presents evidence suggesting that accommodating his request for Ramadan meals would not cause that such an effect or create other adverse impacts. Hollinquest represents that Defendants have not consistently enforced the religious services requirement as rigidly as they did in his case in 2018, allowing him to receive Ramadan meals after gaps in services participation in 2006 (thirty-five months), 2009 (twelve months), and 2019 (five months). (Hollinquest Decl. ¶¶ 41, 45-46.) Hollinquest argues these other approvals demonstrate that the strict religious services participation requirement applied to him in 2018 is not necessary to avoid any adverse effects. (Hollinquest Decl. ¶ 55.) Hollinquest also presents evidence that Defendants accommodated another inmate's late request in 2018 and that ODOC accommodated Hollinquest's own late request in 2019, thus further countering concerns of adverse impacts. (Hollinquest Decl. ¶¶ 21, 40-41.)
"Although we must give deference to the prison official's assessment on prison operations, we cannot simply accept" that a significant adverse effect would occur. See Ward, 1 F.3d at 878-89 (noting that without evidence regarding the disruption expected to occur from accommodating the plaintiff's request, the court could not simply take the warden's word that the disruption would be significant); Shakur, 514 F.3d at 887. Here, Defendants do not cite evidence beyond Young's declaration to establish that the participation requirement and the advance signup requirement must be and - always has been - strictly applied to prevent multiple untimely requests or other adverse impacts. Furthermore, their concerns of adverse impacts are general, not tied specifically to Ramadan participation or accommodating Hollinquest. In contrast, Hollinquest presents evidence suggesting similar Ramadan meal accommodations have been provided without adverse effects. Without specific evidence of adverse effects that would flow from accommodating Hollinquest's asserted constitutional right to Ramadan meals, the record lacks facts sufficient to reach a conclusion on the third Turner factor. See id.; Ward, 1 F.3d at 878-89; see also Hunafa v. Murphy, 907 F.2d 46, 48 (7th Cir. 1990) (Posner, J.) ("On this record, which consists essentially of a brief affidavit filed by the prison's food administrator that summarizes the prison's concerns but makes no attempt to estimate their magnitude in relation to the plaintiff's religious claims, the balance is too close for summary judgment to be proper."). \ \ \ \ \
4) ready alternatives
The fourth Turner factor requires the court to consider whether there are alternatives to the challenged policy that would accommodate the inmate's rights "at de minimis cost to the pursuit of valid penological interests." Turner, 482 U.S. at 91. The "existence of obvious, easy alternatives may be evidence that the regulation is not reasonable, but is an 'exaggerated response' to prison concerns." Id. at 90. Although prison officials need not consider every possible alternative, a court may consider alternatives raised by the inmate "as evidence that the regulation does not satisfy the reasonable relationship standard." Id. at 90-91. The burden is on the prisoner challenging the regulation to show there are alternatives to the regulation. O'Lone, 482 U.S. at 350; Mauro v. Arpaio, 188 F.3d 1054, 1063 (9th Cir. 1999).
Hollinquest identifies two potential alternatives to Defendants' strict application of the religious services participation requirement. Defendants could instead apply the requirement more flexibly by considering Hollinquest's history of intermittent attendance of Islamic services throughout his time in ODOC custody. Indeed, this is what Hollinquest implies Defendants have done in the past when they approved his prior and subsequent requests for Ramadan meals, despite his lack of or gaps in recent participation. Hollinquest also suggests Defendants should consider whether an inmate was unable to attend services in the relevant time period. In his case, Hollinquest explains that he was prevented from attending services because of a security concern related to another inmate during the time period on which his denial was based.
Hollinquest also identifies an alternative to enforcing a two-month advance signup deadline for inmates who transfer to the prison after the deadline is announced. He suggests that chaplains at the facility to which the inmate is transferred could check for and honor an inmate's timely request for Ramadan meals at the previous facility. (Hollinquest Decl. ¶ 31.)
Because Hollinquest identifies alternatives that could fully accommodate his rights at potentially de minimis cost to valid penological interests, he presents sufficient evidence suggesting the Ramadan Meal Policy as Defendants applied it to him does not satisfy the rational relationship standard. See Turner, 482 U.S. at 90. Defendants do not address the feasibility of Hollinquest's alternatives, and without more information from Defendants on this point the court cannot reach a conclusion on the fourth Turner factor.
Lacking sufficient facts to weigh the second, third, and fourth Turner factors, and Defendants failure to analyze the Turner factors, this court cannot determine on summary judgment whether Defendants' application of the Ramadan Meal Policy to Hollinquest was reasonably related to ODOC's interest in orderly administration of the prison's religious meal programs. Without sufficient factual development with respect to each Turner factor, summary judgment is inappropriate. See Shakur, 514 F.3d at 888 ("the district court's grant of summary judgment on the free exercise claim must be vacated and the matter remanded to the district court so that it can fully develop the factual record in light of the Turner factors"); see also Ward, 1 F.3d at 879 (reasoning that denial of religious meals "cannot be justified by the rote recitation" of a legal standard and remanding "so that the district court can make specific factual findings and can engage in a careful balancing of all the Turner factors").
2. Liability for Damages
Defendants argue that Young, Holmes, Cain, and Mecham are entitled to summary judgment as to their individual liability for damages on the grounds that they did not personally participate in the alleged constitutional violation. Liability under 1983 "may not be imposed on supervisory personnel" under a theory of respondeat superior. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009); Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010), overruled on other grounds by Horton v. City of Santa Maria, 915 F.3d 592, 599 (9th Cir. 2019). A supervisor may be held liable only if: (1) he or she is personally involved in the constitutional deprivation, or (2) there is "a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation." Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989). A supervisor may be held liable "if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them." Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Because the court "must take a very individualized approach" to each defendant's actions to determine the causation for the purposes of Section 1983, see Leer, 844 F.2d at 633-34, the role of each defendant in Hollinquest's free exercise claim is addressed in turn below.
It appears Defendants concede that Toth and Suh personally participated in the alleged constitutional violation and could be held liable for damages under Section 1983.
a. Young
Young participated in the denial of Hollinquest's repeated requests to receive Ramadan meals. In Suh's correspondence with Hollinquest during Ramadan, Suh mentioned the "[r]eligious services assistant administrator who is my direct supervisor in Salem" in connection with Hollinquest's ineligibility for Ramadan meals. (Hollinquest Decl. Ex. 26.) On June 14, 2018, the last day of Ramadan, Suh sent Hollinquest a memo saying he had conferred with Young about Hollinquest's request to use the February Kyte in which he signed up for Ramadan at TRCI, to prove he should be allowed Ramadan meals at SRCI, and that Young determined the February Kyte did not prove his eligibility. (Hollinquest Decl. Ex. 29.) Two days after Ramadan ended, Suh reiterated the same reason for denial, confirmed with Young. (Hollinquest Decl. Ex. 28.) On June 22, Young reviewed and responded to the first appeal of the Toth Grievance, upholding the application of the religious services participation requirement to deny Ramadan meals. (Hollinquest Decl. Ex. 9.) Hollinquest's evidence shows that Young was personally involved in the decision to deny his repeated requests to receive Ramadan meals while Ramadan was ongoing. Because Young was personally involved in the alleged constitutional violation, Young is not entitled to summary judgment on Hollinquest's free exercise claim for damages.
The role or capacity in which Young was mentioned is unclear in the kyte.
b. Holmes
Hollinquest presents evidence showing that Holmes was involved in Hollinquest's denial of Ramadan meals only by denying the second appeal of the Toth Grievance on July 24, well after the end of Ramadan. (Exhibit 11.) There is no evidence Holmes knew of or participated in the decision to deny Ramadan meals before that time. Accordingly, Holmes was not personally involved in the alleged constitutional deprivation. Because Hollinquest does not present evidence showing Holmes was personally involved in the decision to deny Ramadan meals, Holmes is entitled to summary judgment on Hollinquest's free exercise claim.
c. Cain and Mecham
On June 10, while Ramadan was ongoing, Hollinquest sent a kyte to Cain requesting the alleged constitutional violation be remedied by allowing him to participate in the remaining meals. On June 13, Mecham responded on Cain's behalf, telling Hollinquest he would receive a response through the grievance process. (Exhibit 27.) Although Hollinquest's evidence establishes that Cain and Mecham knew of the alleged constitutional violation, he provides no evidence showing that they could or should have acted differently. Indeed, the evidence Hollinquest presents shows that prison personnel with roles specifically responsible for religious accommodation were the ones who made, reconsidered, and upheld the decision to deny Ramadan meals. Without evidence showing the duties, discretion, and means of Cain and Mecham, or how either of them could or should have acted to remedy the alleged constitutional violation, Hollinquest has not carried his burden to establish a genuine issue of material fact as to their personal participation in a free exercise violation. Accordingly, Cain and Mecham should be granted summary judgment Hollinquest's free exercise claim.
C. Retaliation Claim
Hollinquest claims that Suh retaliated against him for filing a grievance by refusing to reverse the decision to deny Ramadan meals. (Compl. ¶ 16.) The First Amendment guarantees prisoners the right to seek redress of grievances from prison officials. Id. at 1035. Any retaliation by prison authorities against prisoners for exercising their rights to the grievance process violates the First Amendment and is clearly prohibited by law. Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009); Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005).
In his Declaration, Hollinquest also describes a cell-side incident in which Suh returned a kyte and told Hollinquest that if Hollinquest continued to send kytes, he would give Hollinquest a misconduct report. (Hollinquest Decl. ¶ 31.) Hollinquest interpreted his actions as a threat. (Hollinquest Decl. ¶ 31.) To the extent Hollinquest argues in his Declaration that this incident demonstrates additional retaliation, there is no notice of such a retaliation claim in the Complaint, and this court will not address it. See Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 963, 968-69 (9th Cir. 2006) (district court did not err by holding that it would not consider issues plaintiff raised for first time on summary judgment, because she failed to provide the defendants with adequate notice in her complaint of these new allegations).
A prison retaliation claim requires that: (1) "a state actor took some adverse action against an inmate, (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal." Rhodes, 408 F.3d at 567-68; Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). "The filing of an inmate grievance is protected conduct." Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012). On the fourth element, "[a] plaintiff who fails to allege a chilling effect may still state a claim if he alleges he suffered some other harm that is more than minimal." Id. (internal quotations and citations omitted).
Here, Hollinquest argues that: (1) Suh refused to reverse the prior denial of Ramadan meals (2) because (3) Hollinquest filed a grievance, and the refusal to reverse (4) harmed Hollinquest more than minimally, and (5) the refusal to reverse did not reasonably advance a legitimate correctional goal. Defendants argue the third element, causation, is not met here. (Mot. at 6.) Defendants note that Suh had applied, and maintained the application of, a general policy regarding Ramadan meals. (Hollinquest Decl. ¶ 18; Mot. at 7.) Accordingly, despite Hollinquest's allegation that Suh "told him he was going to make an exception, but plaintiff grieved him," Defendants argue Hollinquest's grievance did not cause Suh to refuse to reverse his decision. (Mot. at 6.)
Suh's application of a generally applicable policy does not itself defeat a retaliation claim. "'[P]rison officials may not defeat a retaliation claim on summary judgment simply by articulating a general justification for a neutral process, when there is a genuine issue of material fact as to whether the action was taken in retaliation for the exercise of a constitutional right.'" Shepard v. Quillen, 840 F.3d 686, 692 (9th Cir. 2016) (quoting Bruce v. Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003)). A prison official cannot apply a generally applicable policy to an inmate "as a cover or a ruse to silence and punish [the inmate] because he filed grievances." Bruce, 351 F.3d at 1289. Accordingly, a close inquiry into causation is required.
In this case, the potential retaliatory action is not the initial denial of Ramadan meals, but a decision not to reverse the initial denial, which occurred after the protected conduct of filing a grievance. Whereas retaliatory motive can be found when an authority reverses a favorable policy application to an unfavorable one after a plaintiff engages in protected conduct, such a conclusion is less readily drawn when an unfavorable application is maintained. If, after engaging in protected conduct, a plaintiff fails to present new evidence that would warrant a change to an unfavorable policy application, and, at an opportunity for reversal, that unfavorable application is maintained, an inference of retaliatory motive is not justified. See O'Connor v. Cty. of Clackamas, No. 3:11-CV-1297-SI, 2013 WL 3818143, at *23 (D. Or. July 22, 2013), aff'd sub nom, O'Connor v. Cty. of Clackamas, Or., 627 F. App'x 670 (9th Cir. 2015) (holding in a non-prison First Amendment retaliation context that in such a situation, "there can be no logical inference that retaliatory animus was the cause of the negative decision"); Brodheim, 584 F.3d at 1270 (looking to retaliation claims outside the prison context to understand what is required of prison retaliation claims).
Here, Hollinquest did not present new evidence that would warrant a change in the decision to deny Ramadan meals in the relevant time frame. Hollinquest's initial request was denied prior to May 15. On May 17 and 18, Suh received messages from a correctional officer on Hollinquest's behalf inquiring why Hollinquest had not received Ramadan meals, and Suh did not reverse the decision. Hollinquest engaged in protected conduct, the filing of the Toth Grievance, on May 21. Subsequently, on May 23, Suh explained to Hollinquest in writing the reasons Ramadan meals were denied under the Ramadan Meal Policy's participation and advance signup requirements. It is unclear whether Suh's explanation for the denial occurred before or after Suh learned of the Toth Grievance; regardless, maintenance of the decision at that time does not support an inference of retaliatory motive because Hollinquest had not presented any new evidence beyond that upon which the original decision was based.
During the May 25 cell-side interaction with Suh, Hollinquest argued for the first time that the two-month signup deadline should not have been enforced in his case because he was transferred to SRCI after SRCI inmates were notified of the deadline. Even if this is considered new evidence, Suh's refusal to make a denial after that evidence still does not support an inference of retaliatory motive because the evidence does not warrant a change in the decision. Suh had explained the reasons for denial of Ramadan meals on May 23: Hollinquest had missed the deadline for signups and he lacked the necessary participation in Islamic religious services. Without new evidence regarding the necessary participation in services, no change in the decision was warranted. Accordingly, because Suh "affirm[ed] [the] negative decision that was made before any protected conduct, and there [was] no new evidence presented by [Hollinquest] after the protected conduct that would warrant a change in [Suh's] negative decision, there can be no logical inference that retaliatory animus was the cause of the negative decision." See O'Connor, 2013 WL 3818143 at *23. Hollinquest fails to show a genuine issue of material fact as to the causation element of his retaliation claim and the claim does not survive summary judgment. See Brodheim, 584 F.3d at 1269 n.3 ("On summary judgment . . . , the plaintiff must demonstrate there is a triable issue of material fact on each element of his claim"). Defendants' motion for summary judgment should be granted on Hollinquest's First Amendment retaliation claim.
D. Discrimination Claim
Hollinquest alleges that "[a]s a result of allegedly filing a grievance against Defendant S. Suh - Defendant S. Suh discriminated and retaliated against plaintiff by refusing to allow plaintiff to participate in Ramadan." (Compl. ¶ I.) Hollinquest's Claim 4 is for discrimination. (Compl. ¶ IX.) Defendants do not specifically address Hollinquest's discrimination claim in their motion for summary judgment, apparently because they understand his complaint to equate it with his retaliation claim. (Mot. at 7.) A court cannot "manufacture arguments" for a pro se litigant. Greenwood, 28 F.3d at 977 (waiving an appellant's claim "due to his failure to present a specific, cogent argument for our consideration"). Even construing Hollinquest's complaint liberally, see Haines, 404 U.S. at 520-21, this court agrees with Defendants that Hollinquest's complaint does not raise a separate discrimination claim. Instead, the claim is based on actions Hollinquest alleges Suh took because of the Toth Grievance; those actions are addressed through Hollinquest's retaliation claim, analyzed above. To the extent Hollinquest's materials responding to Defendants' motion for summary judgment can be read liberally as raising a "class of one" discrimination claim, this is a new legal theory raised only after the motion for summary judgment, which the court need not consider. See Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 963, 968-69 (9th Cir. 2006) (finding that a district court need not address allegations raised for the first time in a response to a motion for summary judgment where the plaintiff's "pleadings did not provide sufficient notice of those allegations").
Furthermore, even if Hollinquest properly raised a "class of one" discrimination claim, it would be unavailing. Hollinquest argues in his opposition materials that Suh intentionally discriminated against him by refusing to allow him to participate in Ramadan but allowing other similarly situated inmates to participate. "The Equal Protection Clause requires the State to treat all similarly situated people equally." Shakur, 514 F.3d at 890 (citing City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)). In a typical equal protection claim, "a plaintiff must show that the defendants acted with an intent or purpose to discriminate against the plaintiff based upon membership in a protected class." Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). Alternatively, a plaintiff may bring an equal protection claim by demonstrating he was intentionally and irrationally treated differently from a group of similarly situated individuals. Engquist v. Or. Dep't of Agric., 553 U.S. 591, 601 (2008); Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (recognizing the "class of one" theory).
The "class of one" theory was recognized in Olech, and is unusual because the plaintiff in a "class of one" case does not allege that the defendants discriminate against a group with whom she shares characteristics, but rather that the defendants simply harbor animus against her in particular and therefore treated her arbitrarily. Such circumstances state an Equal Protection claim because, if a state actor classifies irrationally, the size of the group affected is constitutionally irrelevant.Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008) (internal citations omitted). The preliminary inquiry in a "class of one" equal protection claim is to identify the group of similarly situated individuals from which plaintiff was irrationally "singled out." See Engquist, 553 U.S. at 602.
Here, Hollinquest does not represent that he was treated differently because he is a member of any particular protected class. Instead, he argues he was treated differently from other similarly situated inmates as a "class of one." Hollinquest identifies a small class of similarly situated individuals, himself and inmate Willie Waller, Jr. ("Waller"). (Hollinquest Decl. ¶ 21.) He argues that despite their similar situations, Waller was allowed to participate in Ramadan meals while Hollinquest was not, and that Suh irrationally singled-out Hollinquest for denial. (Hollinquest Decl. ¶ 70.)
Even assuming a class of two similarly situated people could be sufficient to support a "class of one" equal protection claim, Hollinquest fails to identify a similarly situated group. Hollinquest presents evidence that both he and Waller were transferred to SRCI on May 6, 2018, and that both submitted late signups for Ramadan meals. (Hollinquest Decl. ¶ 21, Ex. 21.) Hollinquest additionally represents that neither he nor Waller actively attended Islamic services at the time. (Hollinquest Decl. ¶¶ 21, 62, 70.) Because Hollinquest fails to establish personal knowledge of Waller's participation in Islamic services, his representation is hearsay and is inadmissible. See Blanas, 393 F.3d at 923 (to be considered as evidence in opposition to a motion for summary judgment, plaintiff's contentions must "set forth facts that would be admissible in evidence"). Waller's written statement lacks any mention of his participation in religious services. Without admissible evidence to establish that Waller had a similar period of non-participation in religious services, Hollinquest cannot show he and Waller are similarly situated. Because Hollinquest cannot establish a genuine issue of material fact as to the existence of a group of similarly situated individuals from which he was singled out, his "class of one" discrimination claim, even if properly raised, fails. Accordingly, Defendants should be granted summary judgment on Hollinquest's discrimination claim. \ \ \ \ \ \ \ \ \ \
Conclusion
For the reasons stated above, Defendants' motion for summary judgment (ECF No. 22) should be DENIED with regard to Hollinquest's First Amendment claim for monetary damages against Toth, Suh, and Young in their individual capacities and GRANTED in all other respects.
Scheduling Order
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due within 14 days. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.
DATED this 23rd day of March, 2020.
/s/_________
JOHN V. ACOSTA
United States Magistrate Judge