Opinion
CASE NO. 3:19-cv-05096 BHS-JRC
09-16-2019
EDDIE LOUIS SMITH, III, Plaintiff, v. BELINDA D. STEWART, et al., Defendants.
REPORT AND RECOMMENDATION
NOTED FOR: October 4, 2019
The District Court has referred this 42 U.S.C. § 1983 civil rights matter to United States Magistrate Judge J. Richard Creatura under 28 U.S.C. §§ 636(b)(1)(A) and (1)(B) and Local Magistrate Judge Rules MJR 1, 3, and 4. See Dkt. 2.
Plaintiff brings various federal and state claims against twenty-five defendants, who are Department of Corrections (DOC) officials, staff, and entities, arising out of alleged incidents during the week of Passover 2018. Specifically, plaintiff alleges that the Passover meals he signed up to receive based on his "nondenominational religious beliefs" made him severely ill, so that he could not consume any of them. He claims that under the Passover meal policy, which did not allow participants to opt-out once Passover began, defendants refused to allow plaintiff to change back to a regular diet, so that he was forced to go without food for the week of Passover. Further, he alleges that defendants not only ignored his requests to change his meal plan back but retaliated against him for filing grievances and seeking medical attention by infracting him and demoting his custody level.
This matter is now before the Court on a motion to dismiss filed by all named defendants except defendant Joby Taylor. See Dkt. 42. The undersigned recommends granting in part and denying in part the motion to dismiss. Specifically, plaintiff has stated colorable claims of violation of the Establishment Clause because prisoners on Ramadan meal plans could withdraw, but not prisoners on Passover meal plans; deliberate indifference because defendants allegedly knowingly disregarded plaintiff's inability to eat the Passover food without getting sick; and retaliation because some defendants allegedly said that plaintiff was being punished for filing grievances. However, the balance of plaintiff's claims should be dismissed without prejudice.
BACKGROUND
Plaintiff, who proceeds pro se and in forma pauperis (see Dkt. 4), initiated this matter in February 2019. See Dkts. 1, 5. Plaintiff claims that he missed 24 consecutive meals during Passover, which ran from March 30 to April 7, 2018, because the Passover meals made him sick and defendants refused to provide him with an alternative. See Dkt. 5, at 40; Dkt. 5-1, at 4.
Plaintiff brings claims against the DOC and five DOC officials: Belinda Stewart, the Corrections Program Administrator; Jamie Dolan, the Food Services Administrator; Robert Herzog, the Assistant Secretary - Prisons Division; Danielle Armbruster, the Assistant Secretary - Re-entry Division; and Michelle Walker, the Prison Disciplinary Program Manager. See Dkt. 5, at 4-5, 11. He also sues the Stafford Creek Corrections Center ("SCCC"), SCCC superintendent Ronald Haynes, and SCCC associate superintendents Dan Van Ogle and Jeneva Cotton. See Dkt. 5, at 10-11. He brings claims against 11 corrections staff—a correctional unit supervisor, Stephanie Baltzell; a correctional lieutenant, Charles Casey; two sergeants, Brian Schuetter and Vincent Stroup, and seven corrections officers: Lewis Villalobos, Joby Taylor, Joshua Sutherby, "Unknown" Montambo, "Unknown" Schneider-Wiss, Steven Wertz, and Bruce Rifenberg. See Dkt. 5, 5-11. In addition, he brings claims against three medical staff—Nurse Angela Johnson, Nurse Kimberly Malone, and Amanda Kersey, P.A.—and a hearings officer, Thomas L'Heureux. Dkt. 5, at 11. He also includes allegations against a number of "John Doe" defendants. See Dkt. 5, at 48-58.
The allegations of the complaint, briefly summarized, are as follows. In December 2017, defendants Stewart and Dolan implemented a Passover meal policy requiring participants to sign up for Passover in advance. See Dkt. 5, at 14; Dkt. 5-1, at 4. Under the terms of the Passover policy, "Passover participants will not be provided any other alternative meals during this period. Once you sign up for Passover, you will be required to participate for the entire Passover period." Dkt. 5-1, at 4. Defendants Stewart and Dolan also promulgated a Ramadan 2018 memo, regarding requirements for participating in Ramadan during 2018. See Dkt. 5, at 14; Dkt. 5-1, at 7. Notably, participants could opt-out from the Ramadan meal program if they became ill during the month of Ramadan. See Dkt. 5-1, at 7.
Plaintiff alleges that he signed up to observe Passover and was subsequently demoted to MAX custody on January 29, 2018. Dkt. 5, at 14. On March 30, he received his first Passover meal and "experienced vomiting, stomach pain, and dizziness" after consuming the meal and continued to have vomiting and gastrointestinal pain throughout the day. Dkt. 5, at 15 (emphasis removed). Later in the day, he ate his second Passover meal and experienced more of these symptoms. See Dkt. 5, at 16. He then requested to be taken off of the Passover diet, including filling out a kite to the chaplain and religious diet request, as directed by corrections staff. Dkt. 5, at 16.
While waiting for responses to his kite and request, plaintiff alleges that he continued to be served Passover meals and that defendants refused to provide plaintiff with a regular diet. See Dkt. 5, at 17. On March 31, plaintiff sent an emergency grievance about his situation, to which defendant Schuetter responded, telling plaintiff to "kite the chaplain." Dkt. 5, at 18-19; Dkt. 5-2, at 1. Plaintiff alleges, however, that the chaplain would not have been able to timely respond to a kite since it was the weekend. See Dkt. 5, at 19-20.
In what he refers to as a "last resort" attempt to speak to defendant Schuetter, plaintiff covered up his cell window. See Dkt. 5, at 19. Defendant Schuetter did not take action in response to plaintiff's Passover meal problems. See Dkt. 5, at 20. Instead, defendant Villalobos infracted plaintiff for covering his window, and defendant Schuetter later demoted plaintiff's custody level. See Dkt. 5-2, at 3, 5. Plaintiff continued to inform corrections staff—including medical staff—of his alleged inability to consume the Passover meals, to no avail. See Dkt. 5, at 22-25. Later, defendants Villalobos and Schneider-Wiss informed plaintiff that he had been demoted because he had filed the emergency grievance. See Dkt. 5, at 26-27; see also Dkt. 5-2, at 5.
Plaintiff did not receive a response to his March 30 religious diet request until April 3, when it was returned with a note that he was not "currently on Kosher diet." Dkt. 5-1, at 13. However, corrections staff refused to acknowledge the note, instead informing plaintiff that defendant Schuetter had instructed them to disregard it because it was forged. See Dkt. 5, at 32.
On April 5, plaintiff allegedly fell unconscious in his cell due to hunger. See Dkt. 5, at 34. Later that day, plaintiff submitted another emergency grievance stating that he could not eat the Passover diet. See Dkt. 5, at 34; Dkt. 5-2, at 17. Defendant Stroup then instructed defendant Johnson to infract plaintiff and to continue to do so every time that plaintiff declared a medical emergency. Dkt. 5, at 36. Defendant Johnson then infracted plaintiff for "pretend[ing] to be ill, despite a normal nursing assessment" and "beg[inning] a hunger strike and encourag[ing] his cell neighbor to go on hunger strike to protest [Corrections] food in general, and Passover meals specifically[.]" Dkt. 5, at 36; Dkt. 5-2, at 19. The same day, the facility chaplain responded to plaintiff's March 30 kite by telling him to "talk to Medical." See Dkt. 5-1, at 11.
Plaintiff alleges that he did not receive a regular meal again until April 8, when Passover ended—at which point he had lost over 14 pounds. See Dkt. 5, at 32, 40. Plaintiff subsequently requested to have his custody level promoted—a request denied by defendant Schuetter. See Dkt. 5, at 42. As a result of the hunger-strike infraction, plaintiff was sanctioned with the loss of good-conduct time. See Dkt. 5-2, at 38, 40; Dkt. 5-3, at 5
Plaintiff brings 14 causes of action based on these factual allegations, citing 42 U.S.C. §§ 1981, 1983, 1985(3), and 1986; the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc; and state tort law. He requests declaratory and injunctive relief, damages, and costs. See Dkt. 5, at 57-58.
After plaintiff filed his complaint, defendants—other than defendant Taylor—filed a motion to dismiss, including a notice to plaintiff of the dispositive motion. See Dkts. 42, 43. Plaintiff has filed a response, defendants have filed a reply in support of their motion, and the matter is ripe for decision. See Dkts. 52, 53.
DISCUSSION
I. Legal Standards for Motion to Dismiss
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief," "in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests[.]'" Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Although "detailed factual allegations" are not necessary, "[f]actual allegations must be enough to raise a right to relief above the speculative level[.]" Id. "[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 (2009) (quoting Twombly, 550 U.S. at 555).
A court must accept as true all factual allegations—but not legal conclusions—when reviewing whether a complaint survives a motion to dismiss under Rule 12(b)(6). See Iqbal, 556 U.S. at 678. "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. at 678 (quoting Twombly, 550 U.S. at 556).
When a plaintiff is proceeding pro se, this Court must "'construe the pleadings liberally and . . . afford the [plaintiff] the benefit of any doubt.'" Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (quoting Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir. 1985) (en banc)). The claims will be dismissed only where it "'appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (quoting Silva v. Di Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011)). Nevertheless, this Court will not supply essential elements of the claim that were not initially pled. Pena v. Gardner, 976 F.2d 469, 471-72 (9th Cir. 1992).
This Court may consider materials properly submitted as part of a complaint—such as plaintiff's attachments here—when ruling on the motion to dismiss, without converting the motion to dismiss to a summary judgment motion. See Lee v. City of L.A., 250 F.3d 668, 688 (9th Cir. 2001).
II. Defendants Herzog and Haynes
Plaintiff seeks to bring claims against defendants Assistant Secretary Herzog and Superintendent Haynes. See Dkt. 5, at 48-56. A supervisory official is liable under § 1983 only "if there exists either (1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation." Rodriquez v. Cty. of L.A., 891 F.3d 776, 798 (9th Cir. 2018) (citation omitted). "'The requisite causal connection can be established . . . by setting in motion a series of acts by others or by knowingly refus[ing] to terminate a series of acts by others, which the [supervisor] knew or reasonably should have known would cause others to inflict a constitutional injury.'" Id. at 798 (quoting Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011)).
Defendants correctly note that the only reference in plaintiff's complaint regarding defendant Haynes' participation is that defendant Van Ogle signed off on a grievance response "in place of defendant Haynes. Dkt. 5, at 44; Dkt. 5-2, at 36. And the reference in the complaint regarding defendant Herzog's involvement appear to be that he promulgated a policy related to lost privileges if a MAX security inmate committed certain acts. See Dkt. 5, at 13; Dkt. 5-1, at 2. Although promulgating a policy that is so deficient that the policy "'itself is a repudiation of constitutional rights'" and is "'the moving force of the constitutional violation'" may give rise to supervisory liability, here plaintiff's complaint includes no allegations that the MAX custody policy somehow deprived him of any constitutional rights. See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989) (quoting Thompkins v. Belt, 828 F.2d 298, 303-04 (5th Cir. 1987)).
Because these allegations fail to establish any personal participation in—or even any connection to—the alleged deprivations at issue, all claims against defendants Herzog and Haynes should be dismissed from this action.
III. Defendants DOC and SCCC
Plaintiff also seeks to bring claims against DOC and SCCC, whom he states he names solely as defendants on his claims for injunctive relief under RLUIPA. See Dkt. 52, at 31.
The Eleventh Amendment prevents citizens from suing their own state in federal court and—absent a state's consent to suit—applies regardless of the nature of the relief sought and extends to suits against state agencies. See Krainski v. Nevada ex. rel Bd. of Regents, 616 F.3d 963, 967 (9th Cir. 2010). Thus, the Eleventh Amendment bars plaintiff's suit against DOC and SCCC—since they are state agencies being sued in federal court. See Mayweathers v. Newland, 314 F.3d 1062, 1069-70 (9th Cir. 2002).
Plaintiff argues that because he may bring suit against state officials for prospective injunctive relief, he may bring suit against state agencies, as well. See Dkt. 52, at 31. This argument is contrary to established Ninth Circuit law. See Mayweathers, 314 F.3d at 1069. Moreover, plaintiff's argument that the state has effectively waived sovereign immunity under RLUIPA by accepting federal funding is not supported by his cited authority. See Sharp v. Johnson, 669 F.3d 144, 155 (3d Cir. 2012) ("the [Supreme] Court held that States did not consent to waive their sovereign immunity with respect to RLUIPA suits for damages against State employees in their official capacities").
Because defendants DOC and SCCC are not subject to suit in federal court—whether for damages under § 1983 or for injunctive relief under RLUIPA—they should be dismissed from this action.
IV. Injunctive Relief
Plaintiff requests injunctive relief in the form of (1) restoration of "good conduct time" that he lost because of the hunger-strike infraction, (2) expungement of his hunger-strike and window-coverage infractions, and (3) that defendants be enjoined from "establishing and/or applying religious guidelines in a coercive manner." Dkt. 5, at 57-58. Defendants argue that his claims for injunctive relief are either not cognizable under Preiser v. Rodriguez, 411 U.S. 475 (1973), that plaintiff lacks standing to bring such claims, and that his request for injunctive relief is impermissibly vague. Dkt. 42, at 6-7.
Under Preiser, a challenge to the constitutionality of one's physical confinement that seeks a shortened sentence is not properly brought under § 1983 but must be brought as a petition for habeas corpus. See 411 U.S. at 500. This includes a request for restoration of good-conduct time. See Wilkinson v. Dotson, 544 U.S. 74, 79 (2005). Because invalidation of plaintiff's hunger-strike infraction would necessarily invalidate the loss of his good-conduct time that resulted from that infraction (see Dkt. 5-2, at 38, 40; Dkt. 5-3, at 5), plaintiff's claim for restoration of good-conduct time and to have the hunger-strike infraction set aside are not cognizable in this action.
Unlike his hunger-strike infraction, plaintiff's window-coverage infraction did not in the loss of good-conduct time—the penalty for the hunger strike infraction was a loss of privileges. See Dkt. 5-2, at 23, 25, 31. Thus defendants' argument that Preiser bars this Court from setting aside plaintiff's window-coverage infraction is not well-taken. See Dkt. 42, at 6.
Defendants also argue that plaintiff lacks standing to challenge the Passover policy because he has not demonstrated a sufficient probability that he will be subjected to the policy again. See Dkt. 42, at 7. To establish standing, a plaintiff must make "an individualized showing that there is a very significant possibility that the future harm will ensue." See Nelsen v. King Cty., 895 F.2d 1248, 1250 (9th Cir. 1990) (internal citations omitted). Here, plaintiff has plausibly made such a showing because—all other things remaining the same—each Passover that he is in custody, he may again choose to participate in the Passover diet program based on his "nondenominational religious beliefs," he may again become sick from the Passover meals that he claims made him ill, and he may again not be allowed to receive an alternative diet because of the Passover policy.
Defendants' standing argument is simply that there is no "credible threat of repeat harm" because plaintiff is "no longer on the Passover meal plan and need never participate again." See Dkt. 42, at 8. Of course, based on the allegations in plaintiff's complaint, plaintiff would "never participate again" not because of changed circumstances, but because if plaintiff becomes sick from the Passover meals again, he would have to either consume food that makes him ill for a week or go without food for a week. As such, plaintiff has standing to bring a claim for injunctive relief against defendants in their official capacities—other than DOC and SCCC. See Mayweathers v. Newland, 314 F.3d 1062, 1069-70 (9th Cir. 2002) (holding that suits for prospective injunctive relief against prison officials in their official capacities may be brought under RLUIPA). Based on the allegations in plaintiff's complaint, he has sufficiently alleged standing for injunctive relief.
Finally, defendants argue that plaintiff's request for injunctive relief preventing the establishment or application of religious guidelines in a coercive manner is too vague under the PLRA. See Dkt. 42, at 6-7. In relevant part, the PLRA provides that "[p]rospective relief . . . shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs." 18 U.S.C. § 3626(a)(1)(A). "The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right." Id.
Defendants are correct that plaintiff's request regarding the Passover policy goes beyond what the PLRA allows. However, plaintiff's complaint must be construed liberally, in light of his pro se status. Here, plaintiff's requested relief certainly encompasses changing the Passover policy to allow prisoners to "opt out" from the Passover diet during Passover week. Rather than strike plaintiff's requested injunctive relief, therefore, the Court should interpret plaintiff's claim narrowly, as a request to change the Passover policy to remedy the alleged constitutional violations at issue.
Therefore, the District Court should dismiss plaintiff's claims for injunctive relief in the form of setting aside his hunger-strike infraction and restoring his good-conduct time lost as a result of that infraction. However, the District Court should decline to dismiss plaintiff's claims for injunctive relief in the form of expunging his window-coverage infraction and should interpret his claim regarding religious guidelines as one to have the Passover policy amended so that prisoners may opt-out from the Passover diet during Passover week. The District Court should also decline to dismiss plaintiff's RLUIPA claims, which are solely for injunctive relief, on the basis of defendants' argument that the "requested injunctive relief is legally barred and [plaintiff lacks standing]." See Dkt. 42, at 9.
Plaintiff's complaint does not make clear which particular defendants plaintiff sues for expungement of his window-coverage infraction or change to the Passover policy. As noted above, DOC and SCCC are not proper defendants for these claims. And a claim for prospective injunctive relief against a state official in his or her official capacity must allege facts plausibly demonstrating some connection between the official and the allegedly wrongful conduct. See Ex Parte Young, 209 U.S. 123, 157 (1908). Here, the undersigned broadly construes plaintiff's complaint as asserting claims for injunctive relief against three officials in their official capacities for prospective injunctive relief—defendants Stewart and Dolan, whom plaintiff alleges promulgated the policy (Dkt. 5-1, at 4-5) and defendant associate superintendent Cotton, who allegedly investigated plaintiff's appeal of his infraction "on behalf of the Superintendent" and affirmed the hearing officer's decision. See Dkt. 5-2, at 31.
V. Damages
A. Eighth Amendment Claims
Plaintiff brings claims of violation of the Eighth Amendment for being deprived of food and medical care during Passover. Dkt. 5, at 49-50.
"[T]he treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment." Helling v. McKinney, 509 U.S. 25, 31 (1983). "Although the routine discomfort inherent in the prison setting is inadequate to satisfy the . . . Eighth Amendment inquiry, 'those deprivations denying the minimal civilized measure of life's necessities are sufficiently grave to form the basis of an Eighth Amendment violation.'" Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991) (internal quotation omitted)). And "'[t]he more basic the need, the shorter the time it can be withheld.'" Id. (quoting Hoptowit v. Ray, 682 F.2d 1237, 1259 (9th Cir. 1982)).
In their motion to dismiss, defendants do not contest that deprivation of "the minimal measures of life's necessities"—such as food—would violate the Eighth Amendment. Dkt. 42, at 13. Instead, they argue that because only the bologna meat served with Passover made plaintiff sick, he could have eaten other food served with the Passover meals—so that defendants did not deprive plaintiff of adequate food. See Dkt. 42, at 13. However, this Court must accept as true the factual allegations of plaintiff's complaint and all reasonable inferences from those factual allegations when reviewing defendants' motion to dismiss. See Iqbal, 556 U.S. at 678; Cafasso v. General Dynamics C4 Sys., 637 F.3d 1047 1054 (9th Cir. 2011).
Here, plaintiff's complaint alleges that both of the Passover "meals" that he consumed made him ill and in his various grievances attached to his complaint, he repeatedly refers to the Passover "food" and "meals"—not simply bologna meat—as causing his illness. See, e.g., Dkt. 5, at 15-16; Dkt. 5-1, at 13; Dkt. 5-2, at 1, 11, 17. Plaintiff further alleges that DOC staff disparaged the quality of the Passover food in front of him. See Dkt. 5, at 15, 45. Although a kite that plaintiff filled out on the same day that he ate the two meals refers to the "bologna meat" making him sick, plaintiff's allegations in his complaint are that all the Passover food that he consumed—and that was offered during Passover week—made him ill. See Dkt. 5-1, at 11.
Plaintiff's claim is that he was not provided with "food that [was] adequate to maintain health"—which is an actionable claim under the Eighth Amendment. See LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. 1993). Defendants' argument that plaintiff was provided food with his Passover meals that did not make him ill is a dispute with plaintiff's factual allegations and not an appropriate ground to grant a motion to dismiss. Similarly, their claim in their reply that plaintiff was offered "the same foods he had been receiving on the 'normal' diet" improperly relies on facts beyond the factual allegations pleaded in plaintiff's complaint or included in the complaint's attachments. See Dkt. 53, at 5.
Plaintiff also brings a claim of deliberate indifference for "medical care"—that is, plaintiff claims that it was cruel and unusual punishment for medical staff not to intervene when he informed them that he was being offered only food that made him ill. See Dkt. 5, at 50. "Deliberate indifference to serious medical needs of prisoners constitutes the 'unnecessary and wanton infliction of pain'. . . proscribed by the Eighth Amendment." Estelle v. Gamble, 429 U.S. 97, 104 (1976) (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)).
In response to this claim, defendants repeat their argument that plaintiff was offered food that he could consume and that "the decision to reject those meals was his own." Dkt. 42, at 14. This argument, as discussed above, fails to take into account that viewing plaintiff's factual allegations in the light most favorable to him, plaintiff alleges that all the Passover food—not merely one item—made him ill.
Defendants also appear to argue that a "prolonged fast[]" "is not inherently dangerous" and so cannot amount to cruel and unusual punishment. See Dkt. 42, at 14. Defendants suggest that as a matter of law, failure to provide food—other than an approximately 8 ounce meal supplement on one occasion—for eight days would not be actionable under the Eighth Amendment. The law is clearly to the contrary. See, e.g., Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986) ("The discrete basic human needs that prison officials must satisfy include food. . . .").
Finally, defendants argue that because medical staff evaluated plaintiff and provided him with a meal supplement on one occasion during Passover week, they were not deliberately indifferent to plaintiff. However, plaintiff alleges that he repeatedly told medical staff during Passover week that he could not consume that Passover meals and that despite his repeated requests, they told him to "drink water" and infracted him for filing a medical emergency on the day that he passed out. See, e.g., Dkt. 5, at 22, 25, 28, 34-36, 40. He alleges that he lost more than 14 pounds, suffered pain and dizziness, and lost consciousness at one point. See Dkt. 5, at 28-29, 32, 34; Dkt. 5-2, at 9. Although the encounter reports from staff evaluations are attached to plaintiff's complaint and include that on one occasion he was provided with approximately 8 ounces of a liquid meal supplement (see Dkt. 5-2, at 21), taking plaintiff's factual allegations as true, this is inadequate to say that there is no set of facts under which plaintiff could establish that medical staff acted with deliberate indifference.
Defendants' motion to dismiss plaintiff's claims of deliberate indifference should therefore be denied.
B. First Amendment Claims
1. Establishment Clause
Plaintiff alleges that defendants "promulgated policies [the Passover and Ramadan policies] establishing religion, and improperly invoked them[,] coercing the plaintiff to participate in religious practice against his protests for a sustained period of time[.]" Dkt. 5, at 51. In his response to the motion to dismiss, plaintiff also explains that his Establishment Clause claim is for preference given to those observing Ramadan, but not to Passover. See Dkt. 52, at 6 ("while the option to opt-out due to illness remains available to those observing Ramadan"). Defendants argue that they neither favored one religion over another nor forced plaintiff to participate in the Passover program, so that the Establishment Clause is not implicated. See Dkt. 42, at 15-16.
The First Amendment requires the government to be neutral toward religion—avoiding either hostility or preference to religion. See Vasquez v. L.A. Cty., 487 F.3d 124, 1255 (9th Cir. 2007). Further, "[t]he clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another." Larson v. Valente, 456 U.S. 228, 244 (1982). "[L]aws discriminating among religions are subject to strict scrutiny . . . and . . . laws 'affording a uniform benefit to all religions' should be analyzed under" the test set forth in Lemon v. Kurtzman, 403 U.S. 602 (1971). Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 339 (1987) (quoting Larson, 456 U.S. at 246). The Lemon test contains three criteria, all of which a regulation must meet to survive—it must "have a secular . . . purpose," its "principal or primary effect must be one that neither advances nor inhibits religion," and it must not foster excessive government entanglement with religion. Lemon, 403 U.S. at 612-13.
Defendants argue that plaintiff has failed to allege anything "suggesting the Department favored Jewish inmates over other religious denominations or no religion at all." Dkt. 42, at 16. To the contrary, plaintiff points to the Ramadan policy, which allows for opting-out from Ramadan once it has begun: "If you become ill during Ramadan, you may request to be removed from the Ramadan diet." Dkt. 5-1, at 7. In contrast, the Passover program does not contain any exception once Passover begins—either for those who become ill or otherwise—and dictates that "Passover participants will not be provided any other alternative meals during this time. Once you sign up for Passover, you will be required to participate for the entire Passover period." Dt. 5-1, at 4-5. Thus, the Passover policy appears to disfavor those who participate in the Passover program compared to those who participate in the Ramadan program by allowing the latter, but not the former, to discontinue the program if they become ill.
Alternatively, even if the policy did not favor one religion over another, it could run afoul of the Establishment Clause by having the primary effect of inhibiting religious practice. Although defendants argue that plaintiff has not shown that he was coerced into practicing a religion since he voluntarily signed up for the Passover program, plaintiff claims that the program's primary effect is to dissuade participation in the Passover program because as implemented by the Department, prisoners who then found themselves unable to consume the Passover food would be forced to go without food for up to a week. Thus, the program could run afoul of the Lemon test by having the "primary effect of . . . inhibiting religion"—by discouraging sign-up for Passover. See Am. Family Ass'n, Inc. v. City & Cty. of S.F., 277 F.3d 1114, 1122 (9th Cir. 2002).
Therefore, interpreting plaintiff's pleading liberally and giving plaintiff the benefit of the doubt, plaintiff has stated a claim for violation of the Establishment Clause, and defendants' motion to dismiss this claim should be denied.
2. Retaliation
Plaintiff alleges that the two infractions and the level demotion were retaliation for plaintiff's filing grievances and seeking medical attention. See Dkt. 5, at 52. He brings retaliation claims against defendants Villalobos, Johnson, Stroup, Schuetter, Baltzell, Casey, L'Heureux, Cotton, Van Ogle, Dolan, Armbruster, and Walker. See Dkt. 5, at 52. Defendants argue that plaintiff's claims are not cognizable in a § 1983 action and that plaintiff has not alleged all the essential elements of a retaliation claim. See Dkt. 42, at 17-18. These arguments are addressed in turn.
a. Heck-barred Claims
Defendants assert that plaintiff's claim for damages for retaliation is barred by Heck v. Humphrey, 512 U.S. 477 (1994), because if this Court agreed with plaintiff, it would be effectively finding that his infractions were imposed unconstitutionally and therefore that his good-conduct time should not have been forfeited. See Dkt. 42, at 17.
"[I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a federal court's issuance of a writ of habeas corpus[.]" Heck v. Humphrey, 512 U.S. 477, 487 (1994). "[T]he sole dispositive question is whether a plaintiff's claim, if successful, would imply the invalidity of his conviction." Whitaker v. Garcetti, 486 F.3d 572, 584 (9th Cir. 2007). This rule does not apply, however, to "§ 1983 suits challenging a disciplinary hearing or administrative sanction that does not affect the overall length of the prisoner's confinement." Ramirez v. Galaza, 334 F.3d 850, 858 (9th Cir. 2003).
Here, although defendants argue that invalidation of plaintiff's disciplinary infractions would necessarily reduce the term of his confinement, this is true for only one of plaintiff's infractions. Plaintiff's hunger-strike infraction resulted in loss of good conduct time. See Dkt. 5, at 35-36; Dkt. 5-2, at 19. A decision that calls into question that constitutionality of the hunger-strike infraction would therefore call into question whether the forfeiture of plaintiff's good conduct time was valid. See Edwards v. Balisok, 520 U.S. 641, 648 (1997) (a claim that loss of good conduct time credit violated due process was not cognizable under § 1983 because if plaintiff prevailed, it would imply that his sentence should be shortened). And this would necessarily imply that plaintiff's sentence should be shortened—all in violation of the principles set forth in Heck v. Humphrey. Thus claims of retaliation regarding the hunger-strike infraction should be dismissed without prejudice. Plaintiff cannot bring these claims unless he also alleges that the loss of good conduct time has been "reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a federal court's issuance of a writ of habeas corpus." Heck, 512 U.S. at 480-82.
However, it appears from plaintiff's complaint and attachments that his window-coverage infraction and level demotion resulted in only loss of privileges, not good conduct time. See Dkt. 5, at 21, 27; Dkt. 5-2, at 3, 5. Therefore, Heck does not bar plaintiff's claims related to his window-coverage infraction and subsequent level demotion. If a jury found in plaintiff's favor on these claims, it would not call into question the validity of plaintiff's underlying conviction or the length of his sentence.
b. Elements of Retaliation—Window-Coverage Infraction and Level Demotion
The elements of a claim of retaliation under the First Amendment are
(1) An assertion that 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.Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009) (quoting Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005)). Here, defendants argue that plaintiff has failed to plead facts plausibly establishing that each defendant had a retaliatory motive and that each defendant's actions were not intended to advance a legitimate correctional goal.
As for defendants Villalobos and Schuetter, plaintiff alleges that defendant Schuetter said that he would "look into" the Passover meal issue, but later, defendant Villalobos told plaintiff that Schuetter "'doesn't want to talk to you.'" Dkt. 5, at 18. Plaintiff then filed an emergency grievance, and defendant Villalobos told plaintiff, "'Oh, you like to write grievances? Well I got something coming your way.'" Dkt. 5, at 18-19. Plaintiff received defendant Schuetter's response to "kite the chaplain" and then plaintiff claims that he "covered up his cell window as a last resort [to speak] with" defendant Schuetter. See Dkt. 5, at 19. According to plaintiff, defendant Schuetter refused to look into the matter further that day—despite plaintiff saying that it would not be until after the weekend that the chaplain could respond to his kite. See Dkt. 5, at 19-20. Later in the conversation, defendant Schuetter threatened plaintiff with a level demotion. See Dkt. 5, at 20. Allegedly, defendant Villalobos issued the window coverage infraction based on this interaction. See Dkt. 5, at 21.
After the window-coverage infraction, plaintiff alleges that defendant Villalobos and another told plaintiff that "the Sergeant [Schuetter] didn't like that grievance you wrote the other day so he told us to take your radio and he demoted your level." See Dkt. 5, at 26-27. Plaintiff further alleges that after he received the response to his kite to the chaplain—a response stating that plaintiff was "not currently on Kosher diet"—defendant Schuetter told staff that the response was forged and to disregard it. See Dkt. 5, at 31-32. Later, plaintiff alleges that defendant Schuetter refused to promote his level. Dkt. 5, at 42.
These factual allegations against defendants Schuetter and Villalobos, taken as true, plausibly support that defendants Schuetter and Villalobos infracted plaintiff, demoted his custody level, and refused to promote plaintiff's custody level as retaliation for filing a grievance. Contrary to defendants' argument, these allegations go beyond mere questionable timing—plaintiff alleges that both defendants actually made statements indicating retaliatory motive.
Defendants argue that plaintiff has failed to show the absence of legitimate correctional goals because plaintiff was punished for covering his window—which he freely admitted doing and which violated Department rules. See Dkt. 42, at 19. However, retaliation is still actionable even if there could have been a legitimate correctional goal. See, e.g., Bruce v. Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003) ("But if, in fact, the defendants abused the gang validation procedure as a cover or ruse to silence and punish [plaintiff] because he filed grievances, they cannot assert that [plaintiff's] validation served a valid penological purpose, even though he may have arguably ended up where he belonged."); see also Shepard v. Quillen, 840 F.3d 686, 694 (9th Cir. 2016) (citing with approval authority that the policy against retaliation applies even where the action taken would otherwise be permissible (internal citations omitted)). Plaintiff's allegation that defendants Villalobos and Schuetter both expressly stated that they were taking adverse actions against him because of his grievance is sufficient to meet his burden to show the absence of a legitimate correctional goal.
As noted above, plaintiff's claims related to the hunger-strike infraction are not cognizable under § 1983 because if plaintiff prevailed on these claims, it would affect the length of his sentence. See supra, part V(B)(2)(a). The complaint does not allege that defendants Johnson and Stroup participated in the window-coverage infraction or level demotion. Therefore, the retaliation claims against them rely solely on their alleged actions related to the hunger strike infraction, so that these claims against defendants Johnson and Stroup are Heck-barred and the Court recommends that these defendants be dismissed.
As for defendants Casey, Van Ogle, Baltzell, L'Heureux, Armbruster, Dolan, Walker, and Cotton, plaintiff raises no particular allegations to plausibly establish that these defendants had retaliatory motive and lacked a legitimate correctional goal. Regarding defendant Casey, plaintiff incorporates materials showing simply that Casey approved plaintiff's window-coverage infraction and then later responded to one of plaintiff's grievances requesting to be switched back to a regular diet by referring plaintiff to medical staff and "a specific process for religious diets." See Dkt. 5-2, at 3, 17. This is insufficient to plausibly establish that defendant Casey was retaliating against plaintiff or had no legitimate correctional goal for approving the window-coverage infraction.
Regarding defendant Baltzell, her involvement appears to be confined to approving plaintiff's custody demotion based on his window-coverage infraction and file (Dkt. 5-2, at 5), investigating his grievance regarding retaliation, and interviewing plaintiff. Dkt. 5-2, at 36. However, plaintiff does not plead any particular facts regarding defendant Baltzell's involvement that would support that she acted with a retaliatory motive when she approved the demotion or responded to his grievance or that her responses were not based on a legitimate correctional goal.
Regarding defendant L'Heureux's involvement in the window-coverage infraction, L'Heureux was the hearing officer who approved plaintiff's window-coverage infraction based upon his own admission and staffs written testimony. See Dkt. 5-2, at 23, 25, 31. There are no factual allegations that plausibly establish that he acted with a retaliatory motive or without legitimate correctional goals.
As for defendant Van Ogle, the extent of his participation, based on the complaint and attachments, appears to have been approving defendant L'Heureux's finding of guilt (see Dkt. 5-2, at 25) and defendant Baltzell's response to plaintiff's grievance. See Dkt. 5-2, at 36. Similarly, defendant Cotton merely affirmed defendant L'Heureux's findings of guilt (see Dkt. 5-2, at 31; Dkt. 5-3, at 5), and defendant Walker responded to plaintiff's letter requesting dismissal of his infractions and stated that she found no due process violations in the disciplinary hearings process. See Dkt. 5-3, at 10. And defendants Dolan and Armbruster merely reviewed plaintiff's grievance and responses, concurring with previous responses. See Dkt. 5-3, at 8.
Plaintiff's claims against defendants Casey, Van Ogle, Baltzell, L'Heureux, Armbruster, Dolan, Walker, and Cotton rest primarily on their role in approving the various infractions, demotions, and grievance responses and the timing between plaintiff's grievances and their actions. See Dkt. 5, at 52. But plaintiff admitted that he covered his window—leading to his demotion and one of his infractions—and without more, the proximity in time between events does not lead to an inference that any of these defendants were substantially motivated by retaliation or did not have legitimate correctional goals for their actions. See Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995) (requiring more than suspect timing to support an inference of retaliatory motive).
Therefore, the retaliation claims against all defendants except defendant Villalobos and defendant Schuetter should be dismissed.
3. Free Exercise Clause
Plaintiff alleges that the refusal to provide him with an alternative to the Passover diet when he became ill violated his right to free exercise because it inhibited his religious practice by "morally coercing [plaintiff] to observe . . . Passover" and "depriv[ing] him of any other alternative diet[.]" Dkt. 5, at 51. Defendants argue that the factual allegations of the complaint do not set forth that they coerced plaintiff to participate because he freely chose to enroll in the program and then sought to disenroll based on his belief that the food was making him ill, not religious belief. See Dkt. 42, at 16-17.
Prisoners "retain the protections afforded by the First Amendment, 'including its directive that no law shall prohibit the free exercise of religion.'" Shakur v. Schriro, 514 F.3d 878, 884 (9th Cir. 2008) (quoting O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987) (internal citation omitted)). "However, '[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.'" Id. (quoting O'Lone, 482 U.S. at 348 (internal quotation omitted)).
"A person asserting a free exercise claim must show that the government action in question substantially burdens the person's practice of [his] religion." Jones v. Williams, 791 F.3d 1023, 1031 (9th cir. 2015). Moreover, even a regulation that substantially burdens religious practice may be legitimate if it survives scrutiny under the factors set forth in Turner v. Safley. 482 U.S. 78 (1987).
Here, of course, plaintiff's factual allegations do not amount to being substantially burdened in the practice of his religious beliefs by being coerced to observe Passover because he alleges that he willingly signed up for Passover on the basis of his "non-denominational biblical religious views." Dkt. 5, at 14. His decision to quit the Passover program was due to illness, not a change in belief. And failing to provide the Passover diet did not coerce plaintiff into abandoning his religious beliefs because he does not allege that he was forced to consume non-Kosher food during Passover week. Indeed, the essence of plaintiff's claim is that he was forced to eat nothing for a week—Kosher or otherwise.
Plaintiff alternatively appears to argue that he was substantially burdened in the practice of his religious beliefs by being forced to abandon those beliefs when defendants refused to provide him with the alternative that he requested (a regular diet). See Dkt. 52, at 3-4. On this point, plaintiff alleges that his case is similar to Shakur v. Schriro. In that case, the Ninth Circuit held that it implicated the Free Exercise Clause to refuse to provide a Kosher diet to a Muslim prisoner who was on a vegetarian diet that made him sick. See Shakur, 514 F.3d at 882. The Muslim prisoner sought the Kosher diet as a diet consistent with Halal meal requirements that would not make him sick—as the vegetarian diet did. Id.
But unlike in Shakur, where the prisoner sought to be placed on an alternative diet that still complied with his religious belief (i.e. a Halal diet), here plaintiff's proffered alternative was to simply be placed back on the regular diet that was served to prisoners who were not observing Passover. Thus unlike in Shakur, where the defendants' action could reasonably be seen as forcing the Muslim prisoner to abandon consuming Halal meals, here, there is no allegation that defendants forced plaintiff to abandon his belief that he should consume Kosher meals. Plaintiff specifically alleges in his complaint that he is seeking relief for not being returned to a regular (i.e. non-Kosher) diet—not that there was a different diet that still complied with his religious beliefs, that he requested the alternative diet, and that it was denied. He does not allege that providing him with food that he could not eat coerced him into abandoning his beliefs. His claim is simply that when the Passover diet made him ill, he should have been allowed to return to a regular diet.
Plaintiff argues that defendants' refusal to allow him to change diets from a Passover diet to a regular diet when the Passover diet made plaintiff ill essentially created a Hobson's choice for plaintiff: eat the Passover food that made him severely ill or eat nothing and starve for a week. Although if true, plaintiff's factual allegations could amount to cruel and unusual punishment, the choices offered to him did not include forsaking his belief that he had to consume a Passover diet. Therefore, he does not show substantial burden of his religious practice, and his claim is not cognizable under the Free Exercise Clause.
C. Equal Protection Clause
Plaintiff alleges that he was discriminated against "as a class of one compared to other similarly situated individuals without legit[imate] penological basis." Dkt. 5, at 49. At the outset, the Court notes that although plaintiff states that his claim is brought under a class-of-one theory, he does not allege a claim that he, individually, was treated arbitrarily—as one must in order to allege a class-of-one claim.
A class of one theory "is unusual because the plaintiff in [such a] case does not allege that the defendants discriminate against a group with whom []he shares characteristics but rather that the defendants simply harbor animus against h[im] in particular and therefore treated h[im] arbitrarily." Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008). But plaintiff does not appear to allege that any other prisoners were allowed to opt out from the Passover diet if they became ill, while defendants arbitrarily chose to enforce the rule against plaintiff, only. Although plaintiff alleged that he was treated differently than "black inmates observing Ramadan" (Dkt. 52, at 23), plaintiff has not alleged facts sufficient to claim that he was somehow singled out for discrimination as the only black inmate observing Passover. See United States v. Moore, 543 F.3d 891, 896-97 (7th Cir. 2008) ("To be considered similarly situated, the [plaintiff] must be prima facie identical in all relevant respects or directly comparable in all material respects" to the others identified (internal quotation omitted)); see also Nordlinger v. Hahn, 505 U.S. 1, 10 (1992).
Rather, plaintiff alleges that based on his factual allegations, as a prisoner participating in Passover, he was treated differently than all other prisoners participating in Ramadan, who were allowed to opt-out if they became ill. See Lazy Y Ranch Ltd., 546 F.3d at 592 (holding that where plaintiff relied on difference in treatment based on a classification, rather than unique treatment, the plaintiff was not relying on a class-of-one theory). Thus plaintiff's claim appears to be more similar to a claim of intentional discrimination on the basis of religion.
"The Equal Protection Clause of the Fourteenth Amendment commands that no State shall 'deny to any person within its jurisdiction the equal protection of the laws,' which is essentially a direction that all persons similarly situated should be treated alike." Serrano v. Francis, 345 F.3d 1071, 1081 (9th Cir. 2003) (quoting City of Cleburne v. Cleburne Living Ctr., 472 U.S. 432, 439 (1985)). In order to make out a cognizable claim of discrimination—whether based on religion or otherwise—an essential element of plaintiff's claim is that he plead that defendants acted with a discriminatory purpose, which means more than an awareness of consequences. It means a course of action chosen because of—not simple in spite of—adverse effects upon an identifiable group. See Iqbal, 556 U.S. at 676-77. Plaintiff must plead facts showing that defendants "adopted and implemented the . . . policies at issue not for a neutral . . . reason but for the purpose of discrimination on account of . . . religion[.]" Id. at 677.
Although plaintiff's complaint must be construed liberally, this Court cannot supply an essential element of his claim—such as intent to discriminate on the basis of religion—for plaintiff. See Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Nor can plaintiff remedy this defect by alleging religious discrimination in response to defendants' motion to dismiss. Accord Phillips v. Turmezei, 1:08-cv-1388-FJM, 2011 WL 13192703, at *2 (E.D. Cal. Feb. 24, 2011).
For lack of allegation of intentional discrimination on the basis of religion, plaintiff's equal protection claim should be dismissed without prejudice but with leave to amend regarding this claim.
D. 42 U.S.C. §§ 1985(3) and 1986
Plaintiff alleges that certain defendants conspired to deprive plaintiff of his civil rights in violation of 42 U.S.C. § 1985(3) and neglected to prevent the conspiracy in violation of 42 U.S.C. § 1986. See Dkt. 5, at 53-54. Defendants argue that plaintiff has failed to specifically state the existence of an alleged conspiracy, so that both claims fail. See Dkt. 42, at 20.
To bring a cause of action successfully under § 1985(3), a plaintiff must allege and prove four elements: (1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of this conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States.Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th Cir. 1992) (quoting United Brotherhood of Carpenters & Joiners of Am. v. Scott, 463 U.S. 825, 828-29 (1983). The claim must allege facts to support the allegation that defendants conspired together—"[a] mere allegation of conspiracy without factual specificity is insufficient." Karim-Panahi v. L.A. Police Dep't, 839 F.2d 621, 626 (9th Cir. 1988).
It is well-settled that in a claim brought under § 1985(3), a plaintiff must allege that defendants acted from "some racial, or perhaps otherwise class-based, invidiously discriminatory animus[.]" See Griffin v. Breckenridge, 403 U.S. 88, 102 (1971). The Ninth Circuit has extended § 1985(3) beyond race "only when the class in question can show that there has been a governmental determination that its members require and warrant special federal assistance in protecting their civil rights." Schultz v. Sundberg, 759 F.2d 714, 718 (9th Cir. 1985) (internal quotation omitted). Thus, for example, a claim of conspiracy to retaliate, without more, does not give rise to a cognizable cause of action under § 1985(3) for conspiracy to discriminate. Accord Saunders v. Cty. of Sacramento, 2:10-cv-02559-GEB-KJN-PS, 2011 WL 6100295, at *9 (E.D. Cal. Dec. 6, 2011).
Here plaintiff's class-based discrimination allegations on the basis of race and/or religion fail for the reasons set forth above. Further, his claim of retaliation, although viable, cannot form the basis for a § 1985(3) claim since plaintiff is alleging that he was retaliated against on the basis that he complained about his treatment. With no viable claim for class-based discrimination, plaintiff cannot bring a § 1985(3) claim of conspiracy to discriminate against him on the basis of membership in a protected class. See Caldeira v. Cty. of Kauai, 866 F.2d 1175, 1182 (9th Cir. 1989) ("[T]he absence of a section 1983 deprivation of rights precludes a section 1985 conspiracy claim predicated on the same allegations.").
Moreover, although plaintiff makes out a claim of violation of the Establishment Clause, plaintiff does not allege that there was a conspiracy to discriminate against him because defendants disfavored his religion. Although in his response to the motion to dismiss, plaintiff points to the level demotion and window-coverage infraction, defendant Schuetter's alleged direction to other staff to disregard plaintiff's Passover diet issues, and the alleged orders to infract plaintiff if he wrote emergency grievances (see Dkt. 52, at 26-27), none of these actions appears to be related to the basis for plaintiff's only cognizable First Amendment claim—the apparent preferential treatment given to Ramadan meal program participants. Rather, the allegations that plaintiff points to are all allegations of retaliation against him for complaining about the alleged cruel and unusual punishment to which he was allegedly subjected when he was unable to consume the Passover meals and requested to have his diet changed. See Dkt. 52, at 26.
Because plaintiff fails to allege facts to support the existence of a conspiracy under § 1985(3), his claim under § 1986 fails, as well. See Trerice v. Pedersen, 769 F.2d 1398, 1403 (9th Cir. 1985). Plaintiff's claims under §§ 1985 and 1986 should be dismissed with leave to amend.
Plaintiff alleges that defendants violated 42 U.S.C. § 1981, prohibiting racial discrimination in the making and termination of contracts, when they allegedly kept plaintiff from terminating his "contract" to receive a Passover diet. See Dkt. 5, at 55. Defendants request that this claim be dismissed for reasons including any plausible factual allegations of racial discrimination. See Dkt. 42, at 21; Dkt. 53, at 9.
An essential element of a claim under § 1981 is that defendants acted with the intent to discriminate on the basis of race. See Gen'l Building Contractors Assoc. v. Pennsylvania, 458 U.S. 375, 391 (1982). Here, other than identifying himself as a "black citizen" (Dkt. 5, at 54), plaintiff does not claim that defendants were motivated by race when they refused to allow him to return to the regular meal program. He provides no plausible factual allegations to support that defendants' decision was motivated by racial animus. As such, his claim should be dismissed. /// /// /// ///
F. Substantive Due Process
Plaintiff brings a claim for violation of substantive due process against defendants for "morally coerc[ing] the plaintiff to adhere to the terms of an agreement that was unconstitutional" and "sanction[ing] the plaintiff to a loss of good time[.]" See Dkt. 5, at 48. Defendants argue that this claim is appropriately considered under the Eighth Amendment. See Dkt. 42, at 10.
"[I]f a constitutional claim is covered by a specific constitutional provision, such as . . . the Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process." See United State v. Lanier, 520 U.S. 259, 272 n.7 (1997). As plaintiff's substantive due process claim is co-extensive with his claim that prison officials were deliberately indifferent to his medical needs and failed to provide him with adequate nutrition (see Dkt. 52, at 20-21), it is evaluated under the Eighth Amendment. Plaintiff's freestanding claim for violation of substantive due process should be dismissed.
VI. Motion to Strike
Defendants request that the Court strike plaintiff's excess pages in his response to their motion to dismiss. See Dkt. 53, at 1. Although plaintiff's responsive brief is overlength, the Court declines to strike any portion of it. Plaintiff should be aware, however, that pro se status does not excuse compliance with this Court's local rules. In the future, if plaintiff desires to file an over-length response or other document, he must comply with Local Civil Rule 7(f). /// /// ///
CONCLUSION
Defendants' motion to dismiss should be granted in part and denied in part. Specifically, the following claims should be dismissed without prejudice—(1) all claims against defendants Herzog, Haynes, DOC, and SCCC, (2) plaintiff's requests for any injunctive relief other than expungement of his infraction for covering his window and his level demotion for the same behavior and his request to change the Passover policy to allow for opting-out during Passover week; (3) all retaliation claims except those against defendants Villalobos and Schuetter; (4) the Free Exercise claims; (5) the Equal Protection claims; (6) the claims under 42 U.S.C. §§ 1981, 1985, and 1986; and (7) the substantive due process claims. All of the dismissals should be without prejudice, and the dismissals of the Equal Protection, § 1985, and § 1986 claims should be with leave to amend. None of the claims against defendant Taylor should be dismissed, however, since he did not join in the motion to dismiss.
In sum, related to the defendants who brought the motion to dismiss, the following claims survive—(1) Claims for injunctive relief against defendants Dolan and Stewart to have the Passover policy changed to allow opting out during Passover week; (2) Claims for injunctive relief against defendant Cotton to have plaintiff's disciplinary infraction for covering his window expunged; (3) Claims against all moving defendants except defendants Herzog, Haynes, DOC, and SCCC for damages on the basis of violation of the Eighth Amendment and the Establishment Clause; (4) Claims against defendants Villalobos and Schuetter for damages for retaliation in violation of the First Amendment; (5) Plaintiff's state-law claims, which the moving defendants do not address in their motion to dismiss.
Pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b), the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for purposes of de novo review by the district judge, see 28 U.S.C. § 636(b)(1)(C), and can result in a result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Miranda v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012) (citations omitted). Accommodating the time limit imposed by Fed. R. Civ. P. 72(b), the clerk is directed to set the matter for consideration on October 4, 2019 as noted in the caption.
Dated this 16th day of September, 2019.
/s/_________
J. Richard Creatura
United States Magistrate Judge