Opinion
No. CV 19-9592-CBM(E)
2020-09-09
E. DAVIS, Plaintiff, v. Chaplain JOHN, Defendant.
Eric Davis, Lancaster, CA, pro se. Neculai Grecea, CAAG - Office of Attorney General California Department of Justice, Los Angeles, CA, for Defendant.
Eric Davis, Lancaster, CA, pro se.
Neculai Grecea, CAAG - Office of Attorney General California Department of Justice, Los Angeles, CA, for Defendant.
ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND
CONSUELO B. MARSHALL, UNITED STATES DISTRICT JUDGE
BACKGROUND
Plaintiff, who is confined at the California State Prison, Los Angeles County ("CSP-LAC"), filed this civil rights action pursuant to 42 U.S.C. on November 7, 2019. The Complaint consists of two pages of a form Complaint to which is attached a typewritten Complaint and exhibits. Defendant allegedly is both an official of the California Department of Corrections and a chaplain at CSP-LAC. Plaintiff sues Defendant in Defendant's individual capacity and in Defendant's official capacity.
On May 14, 2020, Defendant filed "Defendant's Motion to Dismiss Plaintiff's Complaint, etc." ("Motion to Dismiss"). Plaintiff did not file a timely opposition to the Motion to Dismiss. Accordingly, on June 23, 2020, the Magistrate Judge issued a Report and Recommendation recommending dismissal of the action without prejudice.
On July 17, 2020, Plaintiff filed "Plaintiff's Response to Defendant's Motion to Dismiss," constituting Plaintiff's belated opposition ("Opposition"). On August 6, 2020, the Magistrate Judge withdrew the June 23, 2020 Report and Recommendation. On August 11, 2020, Defendant filed a "Reply in Support of Motion to Dismiss" ("Reply").
SUMMARY OF PLAINTIFF'S ALLEGATIONS
Plaintiff alleges:
Plaintiff is an authorized "Inmate Lead (Representative)" for the Nation of Islam religious program at the CSP-LAC (Typewritten Complaint, p. 2, ¶ 5). Plaintiff's duties include the "maintenance and orderly functioning" of the Nation of Islam Religious Services and Program (id. ). Part of the Nation of Islam's religious practice involves displaying a religious "Symbol/Flag" depicting the Sun, Moon and Star during all religious services (id., ¶ 7). The Nation of Islam's religious flag is distinct and distinguishes the Nation of Islam from all other religious sects (id. ).
On December 20, 2018, while the Nation of Islam service in the multi-use chapel was in session with over twenty inmates in attendance, Defendant Chaplain John entered and began shouting: "You Black Muslims Can't Hang Your Muslim Symbol On the Podium" (id., pp. 2-3, ¶¶ 6, 8). Plaintiff told Defendant that Plaintiff is one of the authorized leads for the Nation of Islam Religious Program, and Plaintiff asked Defendant what the problem was (id., ¶ 7).
Defendant continued aggressively to shout at Plaintiff, saying, "Take That Damn Thing Down!" (referring to the Nation of Islam "Symbol/Flag") (id., pp. 2-3, ¶ 8). Defendant said: "That Podium Is A Christian Podium and This Is A
Christian Chapel!" (id. ). To avoid an argument, Plaintiff removed the Nation of Islam "Symbol/Flag" from the multi-use podium (id. ). Plaintiff felt ashamed and deeply humiliated (id. ). On December 20, 2018, Plaintiff submitted an inmate request to Defendant's supervisor (id., p. 3 ¶ 9, Ex. D).
On January 10, 2019, Defendant again disrespectfully interrupted the Nation of Islam service, shouting in the face of an inmate whom Plaintiff had asked to put up the Nation of Islam symbol and aggressively demanding that the Nation of Islam symbol be removed from the multi-use podium (id., p. 3, ¶¶ 9-10). Defendant angrily shouted: "You Black Muslims Can't Hang Your Symbol! This Is A Christian Chapel and A Christian Podium! Take That Shit Down!" (id., p. 3, ¶ 10). Plaintiff informed Defendant that Plaintiff was going to write a "602" inmate appeal (id., p. 3, ¶ 11). Defendant became even more angrily aggressive and said: "I Don't Care! Take That Damn Thing Down Now! Or Get Out Of Here!" (id. ).
The inmates complied and were made, "shamefully," to remove their religious symbol, thus substantially burdening the Nation of Islam "Religious Exercise and Religious Program" by forcing Plaintiff and the other inmates to go on with the service without their religious symbol (id., p. 3, ¶ 12). Defendant blatantly and disrespectfully discriminated against the Nation of Islam (id., p. 4, ¶ 13). Christians are able to put up a cross as their religious symbol (id. ). Others who share the multi-faith chapel and multi-purpose podium can put up their religious symbols (id. ). Defendant specifically targeted and denigrated the Nation of Islam and humiliated its adherents (id. ). Defendant acted under color of law and was motivated by his obvious hatred of the Nation of Islam religion (id. ).
Under prison regulations applicable at the time of the events alleged in the Complaint, an inmate generally initiated an administrative appeal process by submitting a CDCR Form 602 Inmate/Parolee Appeal within thirty days of the event or decision being appealed. Cal. Code Regs., tit. 15, former §§ 3084.2(a), 3084.8(b). On March 25, 2020, CDCR issued an emergency repeal of these regulations and issued new regulations which are effective June 1, 2020, through November 10, 2020. See Cal. Code Regs. tit. 15, § 3480 et seq.
Plaintiff asserts Defendant violated the Free Exercise Clause, the Equal Protection Clause and the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc-1(a) (Typewritten Complaint, p. 5, ¶ 19). Plaintiff seeks compensatory and punitive damages, as well as a declaration that Defendant discriminated against Plaintiff and substantially burdened Plaintiff's religious practice in violation of the First and Fourteenth Amendments (id., p 5).
Plaintiff attaches various exhibits to the Complaint, including:
1. A "Memorandum" dated June 25, 2016, signed as "approved" by two chaplains, including chaplain "S. John," inter alia identifying Plaintiff as an authorized Nation of Islam inmate assistant (Ex. B);
2. Two declarations from other inmates supporting Plaintiff's allegations concerning the December 20, 2018 and January 10, 2019 incidents (Exs. C, E);
3. An "Inmate/Parolee Appeal" form, Form "CDCR 602," signed by Plaintiff on January 10, 2019, in which Plaintiff complained of the two incidents and contended that inmates of other religions who used the chapel and the podium, including Christians and Catholics, were permitted to display their religious symbols (Ex. F, second document);
4. An "Amended Staff Complaint Response, etc.," dated June 4, 2019 and signed by the Warden: (1) partially granting Plaintiff's appeal "in that an Appeal inquiry into [Plaintiff's] allegation has been conducted"; (2) stating that an inquiry had been conducted and that "[s]taff did violate CDCR policy with respect to the issues raised"; and (3) advising Plaintiff that a request for administrative action or the placement of documentation in a staff member's personnel file was beyond the scope of the staff complaint process (Ex. F, sixth document); and
5. A "Third Level Appeal Decision," dated September 27, 2019, denying Plaintiff's appeal and concurring with the decision of the second level reviewer (Ex. F, first document).
DEFENDANT'S CONTENTIONS
Defendant contends:
1. Plaintiff allegedly cannot sue Defendant for damages or for non-monetary relief in Defendant's official capacity;
2. Defendant allegedly did not act under color of law within the meaning of 42 U.S.C. section 1983 ;
3. The Complaint allegedly fails to state a Free Exercise Claim;
4. The Complaint allegedly fails to state an Equal Protection Claim;
5. The Complaint allegedly fails to state a RLUIPA claim;
6. Plaintiff allegedly cannot sue for an asserted violation of state law pursuant to 42 U.S.C. section 1983 ;
7. Plaintiff's claim for declaratory relief allegedly is insufficient; and
8. Defendant allegedly is entitled to qualified immunity.
STANDARDS GOVERNING MOTION TO DISMISS
To survive a motion to dismiss under Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citation and internal quotations omitted). "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." Id.
"Generally, a court may not consider material beyond the complaint in ruling on a Fed. R. Civ. P. 12(b)(6) motion." Intri-Plex Technologies, Inc. v. Crest Group, Inc., 499 F.3d 1048, 1052 (9th Cir. 2007) (citation and footnote omitted). The Court may consider "only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice." Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citation omitted).
The Court "must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (citations omitted); Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 989 (9th Cir. 2009) (on motion to dismiss, court takes as true all non-conclusory factual allegations in the complaint and construes the complaint in the light most favorable to the plaintiff).
The Court may not dismiss a complaint without leave to amend unless "it is absolutely clear that the deficiencies of the complaint could not be cured by amendment." Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988) (citations and quotations omitted); see also Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc) (district court should grant leave to amend "unless it determines that the pleading could not possibly be cured by the allegation of other facts") (citation and internal quotations omitted).
DISCUSSION
I. The Eleventh Amendment Bars Plaintiff's Official Capacity Claims for Damages and Declaratory Relief.
The Court must construe Plaintiff's official capacity claims against Defendant, allegedly a state prison employee, as claims against the State of California. See Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). "[I]n the absence of consent a suit in which the State or one of its agencies or departments is named as the defendant is proscribed by the Eleventh Amendment. This jurisdictional bar applies regardless of the nature of the relief sought." Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). Section 1983 does not abrogate Eleventh Amendment immunity. See Quern v. Jordan, 440 U.S. 332, 344-45, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979) (footnote omitted). California has not waived its Eleventh Amendment immunity with respect to section 1983 claims. Brown v. Calif. Dep't of Corrections, 554 F.3d 747, 752 (9th Cir. 2009) (citations omitted); Dittman v. State of California, 191 F.3d 1020, 1025 (9th Cir. 1999), cert. denied, 530 U.S. 1261, 120 S.Ct. 2717, 147 L.Ed.2d 982 (2000). Therefore, Plaintiff may not sue Defendant in Defendant's official capacity for damages in this federal Court. Because this defect is not curable, the Court will dismiss Plaintiff's official capacity claims for damages without leave to amend.
The Eleventh Amendment does not bar an official capacity claim against a state employee for prospective relief regarding allegedly unconstitutional state action. See Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 n.10, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) ; Ex Parte Young, 209 U.S. 123, 159-60, 28 S.Ct. 441, 52 L.Ed. 714 (1908) ; Assoc. des Eleveurs de Canards et d'Oies due Quebec v. Harris, 729 F.3d 937, 943 (9th Cir. 2013), cert. denied, 574 U.S. 932, 135 S.Ct. 398, 190 L.Ed.2d 249 (2014). However, to the extent Plaintiff seeks declaratory relief against Defendant in his official capacity for past wrongs, such relief is unavailable. Claims for declaratory relief against Defendant in his official capacity for past wrongs duplicate Plaintiff's damages claims and hence are also barred by the Eleventh Amendment. See Green v. Mansour, 474 U.S. 64, 73, 106 S.Ct. 423, 88 L.Ed.2d 371 (1985) (declaratory judgment relief based on a past violation, when there is no claimed continuing federal constitutional violation, would be redundant to an award of monetary damages and, thus, is barred by the Eleventh Amendment). II. Plaintiff Sufficiently Alleges That Defendant Acted Under Color of Law.
Defendant also argues that Plaintiff cannot assert any official capacity claim for non-monetary relief because the Complaint allegedly fails to plead injury resulting from an official policy, practice or custom within the meaning of Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) ("Monell") (Motion to Dismiss, pp. 12-13). Monell is inapplicable because Defendant is a state official rather than a municipal official. See Monell, 436 U.S. at 691 n.54, 98 S.Ct. 2018 ("Our holding today is, of course, limited to local government units which are not considered part of the State for Eleventh Amendment purposes."); Krainski v. Nev. ex rel. Board of Regents, 616 F.3d 963, 968 (9th Cir. 2010), cert. denied, 562 U.S. 1286, 131 S.Ct. 1678, 179 L.Ed.2d 615 (2011) ("the Supreme Court has expressly declined to extend Monell's theory of municipal liability under § 1983 to state entities") (citation omitted).
It is axiomatic that a plaintiff asserting a section 1983 claim must allege that the defendant acted under color of state law when performing the challenged acts. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 328, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986) ; Haygood v. Younger, 769 F.2d 1350, 1353 (9th Cir. 1985), cert. denied, 478 U.S. 1020, 106 S.Ct. 3333, 92 L.Ed.2d 739 (1986). The "color of law" or "state actor" requirement is "a jurisdictional requisite for a § 1983 action." West v. Atkins, 487 U.S. 42, 46, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) ; see Gritchen v. Collier, 254 F.3d 807, 812 (9th Cir. 2001). "To state a claim under § 1983, a plaintiff must both (1) allege the deprivation of a right secured by the federal Constitution or statutory law, and (2) allege that the deprivation was committed by a person acting under color of state law." Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006) (citation omitted).
"The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." West v. Atkins, 487 U.S. at 49, 108 S.Ct. 2250 (citation and quotations omitted); see also Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d 916, 922 (9th Cir. 2011), cert. denied, 565 U.S. 1116, 132 S.Ct. 1000, 181 L.Ed.2d 743 (2012). Here, Plaintiff alleges that Defendant was a "CDCR official" at the time of the alleged wrongdoing (see Complaint, p. 2, ¶ 4). "[S]tate employment is generally sufficient to render the defendant a state actor." Lugar v. Edmondson Oil Co., 457 U.S. 922, 936-37 n.18, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982) (" Lugar"). "It is firmly established that a defendant in a § 1983 suit acts under color of state law when he abuses the position given to him by the State." West v. Atkins, 487 U.S. at 49–50, 108 S.Ct. 2250 ; see also Anderson v. Warner, 451 F.3d at 1068. "That is true even if the employee's offensive actions were illegal or unauthorized." Naffe v. Frey, 789 F.3d 1030, 1037 (9th Cir. 2015) (citations omitted).
However, "[t]here is no rigid formula for determining whether a state or local law official is acting under color of state law." Anderson v. Warner, 451 F.3d at 1068 (citations and quotations omitted). Whether a state officer is acting under color of state law "turns on the nature and circumstances of the officer's conduct and the relationship of that conduct to the performance of his official duties." Id. (citation omitted). For example, in Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981), the Supreme Court held that a public defender, although an employee of the State, did not act under color of law in representing an indigent criminal defendant. Id. at 321-26, 102 S.Ct. 445. The Court reasoned that: (1) a public defender was not amenable to administrative direction in the same sense as other employees of the State; and (2) the State had a constitutional obligation to respect the professional independence of the public defenders whom it engaged. Id.
Defendant argues that Plaintiff has failed to allege facts showing that Defendant acted under color of law because the Complaint allegedly shows that Defendant acted in an "ecclesiastical" capacity while engaging in the asserted wrongdoing (Motion to Dismiss, pp. 4-6). In this argument, Defendant principally relies on Montano v. Hedgepeth, 120 F.3d 844 (8th Cir. 1977) (" Montano"). In Montano, a Protestant prison chaplain who was a member of the prison staff convened a meeting of other Christians to determine whether and how to discipline the plaintiff, a Christian who practices "Messianic Judaism," for propagating allegedly "false doctrine." Id. at 846-47. The group decided to excommunicate the plaintiff from Protestant services for one year. Id. at 847. The plaintiff brought a federal civil rights action against the chaplain alleging, inter alia, violations of the First Amendment. On appeal from a dismissal of the action, the Eighth Circuit held that "a prison chaplain, even if a full-time state employee, is not a state actor when he engages in inherently ecclesiastical functions (that is, when he performs spiritual duties as a leader in his church)." Id. at 851. The Eighth Circuit recognized that "state employment is generally sufficient to render the defendant a state actor." Id. at 848 (citation omitted). However, applying the "functional view" of state action announced in Polk County v. Dodson, the Montano Court ruled that the state could not be "held accountable for conduct undertaken by a prison chaplain acting purely in a clerical capacity." Id. at 850.
Just as a public defender performs many functions which are free from the shackles of state control, a prison chaplain, although a state employee, sometimes behaves in ways which are beyond the bounds of governmental authority. In matters of faith, a pastor, probably even more so than an attorney acting on behalf of a client, is not answerable to an administrative supervisor. The teachings endorsed and practiced by recognized spiritual leaders are not, and should not be, subject to governmental pressures, and the canons which underlie most of the world's denominations are typically thought to derive from divine, rather than worldly, inspiration. As was the case in Polk County, this independence is memorialized in our Constitution. It is hard to imagine any greater affront to the First Amendment than a state's attempt to influence a prison chaplain's interpretation and application of religious dogma. During the course of his employment, a prison chaplain might, among many other things, deliver sermons, take confessions, grant forgiveness for sins, and counsel inmates on the proper reading of sacred texts. It is peculiarly difficult to detect any color of state law in such activities. Cf. Polk County, [citation] (finding it "peculiarly difficult" to detect color of state law in various activities undertaken by a public defender).
Montano, 120 F.3d at 850 (footnote omitted).
The Montano Court concluded that "a prison chaplain, even if a full-time state employee, is not a state actor when he engages in inherently ecclesiastical functions (that is, when he performs spiritual duties as a leader in his church)." Id. at 851. "By disciplining Montano as a result of the prisoner's perceived transgression of church law, [the chaplain] irrefutably acted in his capacity as pastor for the Protestant congregation." Id. "In contrast to the administrative and managerial tasks [the chaplain] is required to perform as prison chaplain, which clearly would be fairly attributable to the state, interpretation and implementation of church doctrine do not constitute state action." Id.
In Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d 916 (9th Cir. 2011), cert. denied, 565 U.S. 1116, 132 S.Ct. 1000, 181 L.Ed.2d 743 (2012) (" Florer"), the Ninth Circuit appeared to agree with Montano, at least in part. Florer did not involve a prison chaplain employed by the state, but rather a private party rabbi who volunteered his services as a prison chaplain through a Jewish organization which contracted with the prison to provide Jewish services to Jewish prisoners. Id. at 919-20. The rabbi had denied the plaintiff's request for a Torah, a Jewish calendar, and a rabbi visit because the rabbi did not regard the plaintiff as Jewish in light of the plaintiff's responses to inquiries concerning whether the prisoner was born to a Jewish mother or had converted to Judaism. Id. at 921. The plaintiff then brought suit, alleging violations of the First Amendment and RLUIPA by the rabbi and the Jewish organization. The district court granted summary judgment on the ground that the plaintiff "had not named a state actor." Id.
The plaintiff in Florer did not sue the state department of corrections. See Florer, 639 F.3d at 924.
On appeal, the Ninth Circuit first held that the "state actor" requirement for section 1983 civil rights cases also applied to RLUIPA actions. Id. at 922. The Florer Court then applied the analysis the United States Supreme Court announced in Lugar "[t]o determine whether actions that allegedly caused the deprivation of a right are fairly attributable to the state even though they were committed by private actors...." Florer, 639 F.3d at 922 (emphasis added). In the course of its analysis, the Florer Court reasoned that the "[d]efendants' professional standards governing who is a member of their religion are not dictated by the state," but rather involve a "private function ... for which state office and authority are not needed" Id. at 925 (citation and quotations omitted). In support of its conclusion, the Florer Court relied in part on Montano, concluding that, "[t]o the extent that Defendants refused to provide religious materials or services to Florer and refused to recognize him as Jewish, such determinations were ecclesiastical, not public, functions." Id. at 925-26. The Florer Court expressed agreement with Montano's holding that "a prison chaplain ... is not a state actor when he engages in inherently ecclesiastical functions (that is, when he performs spiritual duties as a leader in his church)." Id. (citation and quotations omitted).
RLUIPA defines "government" to include a "person acting under color of State law." 42 U.S.C. § 2000cc–5(4)(A)(iii).
In the present case, of course, the alleged deprivation assertedly was caused by a state employee, not a private actor. The issue of whether a private party may be deemed a "state actor" for purposes of a section 1983 action differs from the issue of whether a conceded public employee acts as a state actor for purposes of a section 1983 action. See Sanchez v. California, 90 F. Supp. 3d 1036, 1062 n.17 (E.D. Cal. 2015) (where issue was whether state correctional officer acted under color of law in subjecting a co-worker to sexual harassment, tests for determining whether actions of a private individual amounted to state action were "not relevant to the issue before this Court").
In Wolcott v. Board of Rabbis, 2015 WL 6847890, (E.D. Cal. Nov. 9, 2015), report and recommendation withdrawn, 2016 WL 1702052 (E.D. Cal. Apr. 28, 2016), a prisoner serving a life sentence sued prison officials, including the former and current Jewish chaplains. Id. at *1-2. The plaintiff alleged that the chaplains had refused to allow him to convert to Judaism because the Board of Rabbis had not officially approved the conversion of those serving life sentences. Id. at *1-2. On screening, the Magistrate Judge inter alia recommended dismissal of the claim against the chaplains, reasoning that the alleged act of failing to facilitate the plaintiff's desired conversion was not a public function and that whether an inmate is a follower of a particular religion is an ecclesiastical decision. Id. at *6. Subsequently, the Magistrate Judge vacated the recommendation after the plaintiff requested leave to file an amended pleading restricted solely to claims in an earlier pleading which the court previously had found cognizable. Wolcott v. Board of Rabbis, 2016 WL 1702052, at *1 (E.D. Cal. Apr. 28, 2016). The Magistrate Judge issued findings and recommendations the next day, recommending the dismissal with prejudice of Plaintiff's claims concerning the inability to convert to Judaism. See Wolcott v. Board of Rabbis, 2017 WL 1740127, at *1 (E.D. Cal. May 4, 2017), aff'd in part, rev'd in part, Wolcott v. Board of Rabbis, 738 F. App'x 538 (9th Cir. 2018). On appeal, the Ninth Circuit affirmed in an unpublished disposition, ruling that the District Court "properly dismissed Wolcott's free exercise and RLUIPA religious conversion claims because Wolcott failed to allege facts sufficient to show that defendants acted under color of state law." Wolcott v. Board of Rabbis, 738 Fed. App'x 538, 538-39 (9th Cir. 2018) (citing Florer ).
In the present case, Plaintiff alleges that Defendant was a state official, unlike the defendants in Florer. More significantly, Plaintiff and Defendant are not adherents of, or aspirants to, the same religion, unlike the circumstance in Florer, Montano and Wolcott. Additionally, Plaintiff does not allege that Defendant was Plaintiff's chaplain or spiritual advisor or that any pastoral relationship existed between Plaintiff and Defendant, in contrast to the attorney-client relationship between the plaintiff and the defendant in Polk County v. Dodson.
Furthermore, Defendant's role as a prison chaplain did not impose on Defendant "professional and ethical obligations requir[ing] him to act in a role independent of and in opposition to the State" with respect to the scheduling of religious services or the denial to adherents of one religion services and benefits accorded to adherents of another religion. See West v. Atkins, 487 U.S. 42, 49–50, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) (citing Polk County v. Dodson, 454 U.S. 312, 318-19, 323 n.13, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981) ). California prison regulations require that an institution's religious programs shall provide for "opportunity for religious services and practices." Cal. Code Regs. tit. 15, § 1372(a). The regulations require that the facility administrator provide access to religious services "at least once each week." Cal. Code Regs. tit. 15, § 1372. "Depending upon the number of inmates of the various faiths, chaplains may be employed or their services may be accepted on a nonpaid volunteer basis." Cal. Code Regs. tit. 15, § 3210(b). Defendant was subject to various prison policies governing his conduct, including policies forbidding Defendant from discriminating against any person on account of religion. See California Department of Corrections and Rehabilitation, Department Operations Manual, § 31010.1 ("All employees are prohibited from discriminating against or harassing anyone on the basis of their protected status," including "Religion/Religious Creed"); § 33030.3.1 (under "Code of Conduct," employees are expected to "respect the rights of others and treat them fairly regardless of ... religion, ..."). Defendant was also responsible for approving the scheduling and the conducting of worship services, including the use of the chapel. See California Department of Corrections and Rehabilitation, Department Operations Manual, § 101060.6, 101060.8. Defendant's alleged act of denying Plaintiff and other Nation of Islam members the ability to display in the chapel a religious symbol or flag does not appear to have been based on the performance of any of Defendant's "spiritual duties as a leader in his church." See Florer, 639 F.3d at 925 (quoting Montano, 120 F.3d 844, 851 (8th Cir. 1977) ). Plaintiff does not allege any facts suggesting that Defendant, evidently a Protestant chaplain, made an ecclesiastical decision to demand removal of the "Symbol/Flag" on the ground that the "Symbol/Flag" supposedly was not a Nation of Islam symbol or that the worshippers then present supposedly were not true Nation of Islam adherents. Indeed, it is doubtful that any Protestant chaplain would even pretend to make any ecclesiastical decision regarding such Nation of Islam matters. Rather, Plaintiff alleges that Defendant used his authority as a prison official to force Plaintiff and other Nation of Islam adherents to remove the Nation of Islam religious symbol. And Plaintiff further alleges that, in doing so, Defendant stated (falsely) that use of the multi-denominational podium was limited to use by Christians. Thus, the Complaint suffices to allege facts from which it plausibly may be inferred that Defendant acted under color of law while engaging in the alleged wrongdoing.
The Court takes judicial notice of the Department Operations Manual of the California Department of Corrections and Rehabilitation, available on the Department's website at https://www.cdcr.ca.gov/regulations/cdcr-regulations/dom-toc. See Brown v. Valoff, 422 F.3d 926, 931 n.7 (9th Cir. 2005).
III. Plaintiff Fails to State a Cognizable Free Exercise Claim.
Prisoners "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, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987) (citation omitted); see Cruz v. Beto, 405 U.S. 319, 322 & n. 2, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972). The protections of the Free Exercise Clause are triggered when prison officials substantially burden the practice of a prisoner's religion by preventing the prisoner from engaging in conduct which is rooted in the prisoner's sincerely held religious belief. See Walker v. Beard, 789 F.3d 1125, 1138 (9th Cir.), cert. denied, 577 U.S. 1015, 136 S. Ct. 570, 193 L.Ed.2d 443 (2015) ; Shakur v. Schriro, 514 F.3d 878, 884–86 (9th Cir. 2008) ; Malik v. Brown, 16 F.3d 330, 333 (9th Cir. 1994) ; Callahan v. Woods, 658 F.2d 679, 683 (9th Cir. 1981). However, prisoners' First Amendment rights are limited by the loss of freedom intrinsic to incarceration and by the penological objectives of the institution. See O'Lone v. Estate of Shabazz, 482 U.S. at 348, 107 S.Ct. 2400. To state a cognizable Free Exercise claim, a prisoner must allege facts showing that the defendant substantially burdened the practice of the prisoner's religion without any justification reasonably related to legitimate penological interests. See O'Lone v. Estate of Shabazz, 482 U.S. at 348-50, 107 S.Ct. 2400 (applying the test set forth in Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) (" Turner")); Jones v. Williams, 791 F.3d 1023, 1031-1033 (9th Cir. 2015) ; Shakur v. Schriro, 514 F.3d at 884-88.
Defendant does not argue that Defendant's alleged actions were reasonably related to any legitimate penological purpose. Rather, Defendant argues that Plaintiff's Free Exercise claim is defective because the Complaint "does not allege that displaying the Nation of Islam symbol is central to [Plaintiff's] religious belief" (see Motion to Dismiss, p. 6). This argument is meritless. The First Amendment imposes no such centrality requirement. See Shakur v. Schriro, 514 F.3d at 884–85 ; see also Employment Div., Dep't of Human Res. of Oregon v. Smith, 494 U.S. 872, 887 (1990) ("Judging the centrality of different religious practices is akin to the unacceptable business of evaluating the relative merits of differing religious claims.") (citation and quotations omitted).
Defendant does not argue that Plaintiff fails to plead a sincerely held, religiously based belief that Nation of Islam members should display their symbol at religious services (see Typewritten Complaint, ¶ 10, alleging that the symbol was "part of Our weekly Religious Programs and Practice"). See Holt v. Hobbs, 574 U.S. 352, 361, 135 S.Ct. 853, 190 L.Ed.2d 747 (2015) ("Here, the religious exercise at issue is the growing of a beard, which petitioner believes is a dictate of his religious faith, and the Department does not dispute the sincerity of petitioner's belief.").
However, Defendant does argue that Plaintiff has failed to plead that the alleged removal of the Nation of Islam symbol at two chapel services imposed any "substantial burden" on Plaintiff's ability to practice his religion (Motion to Dismiss, pp. 6-7). "A substantial burden places 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." Jones v. Williams, 791 F.3d at 1031–32 (citations, quotations, brackets and ellipses omitted). "A substantial burden need not actually force a litigant to change his practices; a violation may occur where the state denies [an important benefit] because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs." Walker v. Beard, 789 F.3d at 1135.
In the present case, Plaintiff alleges that, due to Defendant's insistence that the Nation of Islam symbol be removed from the podium on two occasions, Plaintiff twice was forced to have weekly services without the display of the religious symbol. As a result of Plaintiff's administrative appeal, this problem evidently was rectified and evidently will not recur. According to the Ninth Circuit's free exercise jurisprudence, the past alleged deprivation of the symbol's display on only two occasions is insufficient to have constituted a "substantial burden" on Plaintiff's ability to practice his religion. See Howard v. Skolnik, 372 Fed. App'x 781, 782 (9th Cir. 2010) (prison staff's alleged interference with plaintiff's religious fasting on two occasions did not amount to a "substantial burden"); Canell v. Lightner, 143 F.3d 1210, 1215 (9th Cir. 1998) ("relatively short-term and sporadic" interference with religious exercise not a "substantial burden" on exercise of religion); Chaparro v. Ducart, 2016 WL 491635, at *5 (N.D. Cal. Feb. 9, 2016), aff'd, 695 Fed. App'x 254 (9th Cir. 2017) (causing plaintiff to miss four chapel services did not impose "substantial burden"). Therefore, the Complaint fails to state a cognizable Free Exercise claim.
IV. Plaintiff Sufficiently States an Equal Protection Claim.
The Equal Protection Clause entitles an inmate to "a reasonable opportunity of pursuing his faith comparable to the opportunity afforded fellow prisoners who adhere to conventional [or other] religious precepts." Cruz v. Beto, 405 U.S. at 322, 92 S.Ct. 1079 ; Shakur v. Schriro, 514 F.3d at 891. "To prevail on an Equal Protection claim brought under § 1983, [Plaintiff] must allege facts plausibly showing that the defendants acted with an intent or purpose to discriminate against [him] based upon membership in a protected class." Hartmann v. California Dep't of Corrections and Rehabilitation, 707 F.3d 1114, 1123 (9th Cir. 2013) (citation omitted; brackets added). Under the applicable Turner test, a prisoner cannot assert a cognizable equal protection claim if the alleged difference in treatment based on religion is reasonably related to legitimate penological interests. Shakur v. Schriro, 514 F.3d at 891 (citation and quotations omitted).
Defendant does not argue that the Complaint discloses any legitimate penological reason for Defendant's alleged actions. Rather, Defendant argues that the Complaint's allegations that Defendant was "disrespectful" and that Defendant used the words "Black" and "Muslim" supposedly do not show discriminatory intent and that verbal harassment assertedly does not violate equal protection (Motion to Dismiss, pp. 8-9).
The Complaint alleges that Defendant, a prison official, aggressively and angrily ordered the removal of the Nation of Islam symbol from a multi-denominational chapel and podium although members of other faiths were permitted to display their religions symbols in that location. The Complaint further alleges that, in ordering the removal of the symbol, Defendant stated that Black Muslims could not display their religious symbol because both the chapel and podium supposedly were reserved for Christians, a statement Plaintiff alleges was untrue. Thus, Plaintiff alleges much more than mere verbal harassment. Plaintiff alleges that Defendant's verbalizations betrayed Defendant's discriminatory motivation for Defendant's peculiar exercise of authority over the worshippers in the chapel. The Complaint sufficiently states an equal protection claim. See Freeman v. Arpaio, 125 F.3d 732, 737-38 (9th Cir. 1997), overruled in part on other grounds, Shakur v. Schriro, 514 F.3d 878, 884–85 (9th Cir. 2008) (defendants not entitled to summary judgment where plaintiff submitted evidence alleging that prison official refused to open Muslim prisoners' cell doors to prevent them from attending religious services, but did not direct such actions against inmates of other faiths); Long v. Parker, 390 F.2d 816, 821 (3d Cir. 1968) (reversing grant of summary judgment for prison officials on Muslim prisoner's equal protection claim predicated on discriminatory denial of, inter alia, access to the chapel and religious medals); Phillips v. County of Riverside, 2020 WL 4260963, at *10 (C.D. Cal. July 24, 2020) (allegations that jail officials denied the plaintiff's requests for Islamic religious items, congregation services, and a meeting with an Islamic advisor, while permitting Christian and Catholic inmates to receive religious and advisor congregation services up to three times a month and to receive religious materials on request, sufficed to state a equal protection claim).
V. Plaintiff Fails to State a Cognizable RLUIPA Claim.
RLUIPA provides that "[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution ... even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person — (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." 42 U.S.C. § 2000cc–1(a). To state a claim under RLUIPA, a prisoner must allege that: (1) the prisoner took part in a "religious exercise," and (2) the State's actions substantially burdened that exercise. Walker v. Beard, 789 F.3d at 1134 (citation and quotations omitted).
Plaintiff's RLUIPA claim fails for several reasons. First, to the extent Plaintiff asserts an official capacity claim under RLUIPA, i.e., a claim against the state, the Supreme Court has held that RLUIPA does not operate as a waiver of a state's sovereign immunity from private party actions for money damages. Sossamon v. Texas, 563 U.S. 277, 292, 131 S.Ct. 1651, 179 L.Ed.2d 700 (2011) ; see also Jones v. Williams, 791 F.3d at 1031. Second, RLUIPA does not authorize suits for damages against state officials in their individual capacities because individual state officials are not recipients of federal funding and nothing in the statute suggests any congressional intent to hold them individually liable. Jones v. Williams, 791 F.3d at 1031 ; Wood v. Yordy, 753 F.3d 899, 903–04 (9th Cir. 2014). Finally, for the reasons discussed above, Plaintiff has failed to allege facts demonstrating that Defendant's actions imposed a "substantial burden" on Plaintiff's religious exercise. See Warsoldier v. Woodford, 418 F.3d 989, 995-96 (9th Cir. 2005) (defining RLUIPA "substantial burden" test by reference to First Amendment case law).
VI. To the Extent Plaintiff Asserts a Constitutional Claim Based on an Alleged Violation of State Law or Prison Regulations, the Complaint Is Insufficient.
It is axiomatic that, to state a claim under section 1983, the plaintiff must allege a violation of a right secured by the federal constitution or federal law. See Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986) ; Haygood v. Younger, 769 F.2d 1350, 1353 (9th Cir. 1985), cert. denied, 478 U.S. 1020, 106 S.Ct. 3333, 92 L.Ed.2d 739 (1986). Mere allegations of state law violations do not suffice to plead a section 1983 claim. See Cousins v. Lockyer, 568 F.3d 1063, 1070 (9th Cir. 2009) (violation of California prison regulations does not "establish a federal constitutional violation") (citations omitted; original emphasis); Cornejo v. County of San Diego, 504 F.3d 853, 855 n.2 (9th Cir. 2007) ("a claim for violation of state law is not cognizable under § 1983") (citation omitted); Lovell v. Poway Unif. Sch. Dist., 90 F.3d 367, 370-71 (9th Cir. 1996) ("To the extent that the violation of a state law amounts to the deprivation of a state-created interest that reaches beyond that guaranteed by the federal Constitution, Section 1983 offers no redress"; citation omitted); Kitilya v. Calif. Dep't of Corrections and Rehabilitation, 2018 WL 3129816, at *2 (E.D. Cal. June 20, 2018) (" Section 1983 provides no redress for prison officials' mere violation of state prison regulations.") (citations omitted). To the extent Plaintiff asserts a state law claim pursuant to section 1983, any such claim is insufficient.
It is unclear whether Plaintiff asserts any such state law claim.
VII. The Court Will Defer Ruling on the Issue of Qualified Immunity.
The defense of qualified immunity protects government officials from liability for civil damages as long as their conduct does not violate clearly established constitutional or statutory rights of which a reasonable official would have known. Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) ; Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). "The protection of qualified immunity applies regardless of whether the government official's error is a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact." Pearson v. Callahan, 555 U.S. at 231, 129 S.Ct. 808 (citation and internal quotations omitted).
In Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (" Saucier"), the Supreme Court announced a two-step sequence for determining qualified immunity claims. Under the Saucier formulation, the initial inquiry is whether, taken in the light most favorable to the party asserting the injury, the facts alleged show the officer's conduct violated a constitutional right. Id. at 201, 121 S.Ct. 2151. "If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity. On the other hand, if a violation could be made out on a favorable view of the parties' submissions, the next sequential step is to ask whether the right was clearly established." Id.
Saucier's two-step sequence is not mandatory. Pearson v. Callahan, 555 U.S. at 236, 129 S.Ct. 808. Rather, the Court may exercise its "sound discretion" in deciding which of the two steps to address first, "in light of the circumstances in the particular case at hand." Id. at 236, 129 S.Ct. 808.
In the present case, because the Court is granting leave to amend with respect to most of Plaintiff's claims, the Court declines to rule at this time on the issue of qualified immunity, an issue often better resolved on summary judgment. See Kwai Fun Wong v. United States, 373 F.3d 952, 957 (9th Cir. 2004) ; Morley v. Walker, 175 F.3d 756, 761 (9th Cir. 1999) (on motion to dismiss, court was "not equipped at this stage to determine whether qualified immunity will ultimately protect Walker"; issues "must be resolved at summary judgment or at trial").
ORDER
The Motion to Dismiss is granted in part and denied in part. Plaintiff's section 1983 official capacity claims for damages are dismissed without leave to amend, but without prejudice. The Complaint otherwise is dismissed with leave to amend. If Plaintiff still wishes to pursue this action, he is granted twenty-eight (28) days from the date of this Order within which to file a First Amended Complaint.
Any First Amended Complaint shall be complete in itself and shall not refer in any manner to any prior complaint. Plaintiff may not add Defendants without leave of Court. See Fed. R. Civ. P. 21. Failure to file timely a First Amended Complaint may result in the dismissal of this action. See Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002), cert. denied, 538 U.S. 909, 123 S.Ct. 1481, 155 L.Ed.2d 230 (2003) (court may dismiss action for failure to follow court order); Simon v. Value Behavioral Health, Inc., 208 F.3d 1073, 1084 (9th Cir.), amended, 234 F.3d 428 (9th Cir. 2000), cert. denied, 531 U.S. 1104, 121 S.Ct. 843, 148 L.Ed.2d 723 (2001), overruled on other grounds, Odom v. Microsoft Corp., 486 F.3d 541 (9th Cir.), cert. denied, 552 U.S. 985, 128 S.Ct. 464, 169 L.Ed.2d 325 (2007) (affirming dismissal without leave to amend where plaintiff failed to correct deficiencies in complaint, where court had afforded plaintiff opportunities to do so, and where court had given plaintiff notice of the substantive problems with his claims); Plumeau v. School District #40, County of Yamhill, 130 F.3d 432, 439 (9th Cir. 1997) (denial of leave to amend appropriate where further amendment would be futile).