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September 10, 1997


The opinion of the court was delivered by: STIVEN


 The present suit was filed on June 30, 1995. The Plaintiff, Roderick Washington, was incarcerated at Centinela State Prison ("Centinela") during the period for which his allegations are made. All Defendants were employees at Centinela at the time in question.

 While he contends Defendants violated his constitutional rights, Plaintiff admits he engaged in numerous incidents of serious misconduct while at Centinela, *fn1" including physical assaults on staff and disobeying orders. (Pl.'s Mot. Summ. J. P 3.) Plaintiff admits that on several occasions he "gassed" (threw feces and urine on) numerous staff. (Second Am. Compl. at 15; Pl.'s Mot. Summ. J. P 5; Pl.'s Dep. Tr. at 17:10-26, 38:3-7.) Plaintiff's misconduct also included threats of great bodily harm to Centinela staff. (Defs.' Mot. Summ. J. Exs. E-DD.)

 By Memorandum Decision, *fn2" filed on June 4, 1997, this Court: (1) granted in part and denied in part Defendants' motions for summary judgment; (2) denied Plaintiff's motion for summary judgment; and (3) denied Defendants' motion to dismiss. The Court determined that surviving claims and Defendants include: (1). whether Defendants Garcia, Robles, Calvin, Giles, and Tomasetti denied Plaintiff a special diet during the month of Ramadan in 1994, and, if so, whether such denial met the substantial burden test; and (2) whether or not the February 15, 1995 incident with Defendant Viale occurred as Plaintiff alleged, and whether or not these allegations constitute excessive force. All other moving Defendants (McCracken, Morales, Franco, Rock, and Stanifer) were dismissed with prejudice.

 Defendants Garcia, Robles, Calvin, Giles, and Tomasetti now move for the Court to Reconsider its Memorandum Decision on the issue of whether Defendants herein denied Plaintiff a special diet during the month of Ramadan in 1994, and, if so, whether such denial met religious exercise standards in view of the recent Supreme Court decision regarding the Religious Freedom Restoration Act of 1993 ("RFRA") in Boerne v. Flores, 138 L. Ed. 2d 624, 117 S. Ct. 2157 (1997). *fn3"


 Federal Rule of Civil Procedure 54(b) states in relevant part, "Any order . . . which adjudicates fewer than all the claims . . . is subject to revision at any time before the entry of judgment adjudicating all the claims . . . ." Fed. R. Civ. P. 54(b). The Court has discretion to reconsider interlocutory orders at any time prior to final judgment. California v. Summer Del Caribe, Inc., 821 F. Supp. 574, 577 (N.D. Cal. 1993) (citations omitted). "Such motions may be justified on the basis of an intervening change in the law, or the need to correct a clear error or prevent manifest injustice." Id. (citing Pyramid Lake Paiute Tribe of Indians v. Hodel, 882 F.2d 364, 369 n.5 (9th Cir. 1989)). "To succeed in a motion to reconsider, a party must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision." Id. (citations omitted). As stated by the Fifth Circuit, "because the denial of a motion for summary judgment is an interlocutory order, the trial court is free to reconsider and reverse its decision for any reason it deems sufficient, even in the absence of new evidence or an intervening change in or clarification of the substantive law." McKethan v. Texas Farm Bureau, 996 F.2d 734, 738 n.6 (5th Cir. 1993) (quoting Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 185 (5th Cir. 1990)).

 Here, because the Supreme Court has recently decided that the RFRA exceeds Congress' power and is thus unconstitutional, *fn4" and because Plaintiff's claims herein at issue are based, in part, on the RFRA, this Court deems the intervening change in law sufficient and good cause to reconsider its previous Decision on Plaintiff's surviving religious exercise claims. *fn5"


 The party moving for summary judgment is "entitled to judgment as a matter of law because the nonmoving party has failed to make sufficient showing on an essential element of [his] case with respect to which [he] has the burden of proof." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). A motion for summary judgment shall be granted where "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); British Airways Bd. v. Boeing Co., 585 F.2d 946, 951 (9th Cir. 1978), cert. denied, 440 U.S. 981, 60 L. Ed. 2d 241, 99 S. Ct. 1790 (1979). The opposing party cannot rest on the mere allegations or denials of his pleading, but must "go beyond the pleadings and by her own affidavits or by the 'depositions, answers to interrogatories, and admissions on file' designate 'specific facts showing that there is a genuine issue for trial.'" Celotex Corp., 477 U.S. at 324. If a nonmoving party bears the burden of proof at trial, he must establish each element of his claim with "significant probative evidence tending to support the complaint." Barnett v. Centoni, 31 F.3d 813, 815 (9th Cir. 1994) (citations omitted).

 Cross-motions for summary judgment do not necessarily mean that there are no disputed issues of material fact, and do not necessarily permit the judge to render judgment in favor of one side or the other. Starsky v. Williams, 512 F.2d 109, 112 (9th Cir. 1975). The Court must consider each motion separately to determine whether any genuine issue of material fact exists. Id. A "material" fact is one that is relevant to an element of a claim or defense and whose existence might affect the outcome of the suit. The materiality of a fact is thus determined by the substantive law governing the claim or defense. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986)). Although pro se pleadings are construed liberally, pro se litigants are nonetheless bound by the rules of procedure. Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995).

 Section 1983 imposes two essential proof requirements upon a claimant: (1) that a person acting under color of state law committed the conduct at issue; and (2) that the conduct deprived the claimant of some right, privilege, or immunity protected by the Constitution or laws of the United States. 42 U.S.C. ยง 1983; Parratt v. Taylor, 451 U.S. 527, 535, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981), rev'd on other grounds, Daniels v. Williams, 474 U.S. 327, 328, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986); see Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (en banc), cert. denied, 478 U.S. 1020, 92 L. Ed. 2d 739, 106 S. Ct. 3333 (1986). Here, there appears to be no dispute that Defendants, all employees of the California Department of Corrections, acted under color of state law when they allegedly violated Plaintiff's constitutional rights. Thus, this case turns on the second inquiry: whether Defendants wrongfully deprived Plaintiff of any constitutional rights.

 With respect to the February 1994 claim, the record indicates that Plaintiff, then in Administrative Segregation ("Ad Seg"), filed an Inmate Appeal claiming he was denied the food diet that general population Muslim inmates had received during Ramadan; the Appeal was granted on May 6, 1994. *fn6" (Pl.'s Decl. Ex. C or D (unclear); Appeal Log No. CEN-A-94-01146.) The Appeal Response stated that Muslim inmates housed in Ad Seg will be allowed to receive the same food diet that Muslim inmates in the General Population receive during Ramadan. Id. Thus, there is some evidence in the record that could be considered "probative evidence tending to support" Plaintiff's allegation that in 1994, his request for a Ramadan special event diet was not accommodated. Barnett v. Centoni, 31 F.3d 813, 815 (9th Cir. 1994).


 The RFRA was adopted as a response to the decision of a majority of the United States Supreme Court in Employment Div., Dept. of Human Resources of Or. v. Smith, 494 U.S. 872, 108 L. Ed. 2d 876, 110 S. Ct. 1595 (1990). Smith held that "neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling interest." Boerne v. Flores, 138 L. Ed. 2d 624, 117 S. Ct. 2157, 2161 (1997) (construing Smith, 494 U.S. at 885). In Boerne, the Supreme Court determined the RFRA to be unconstitutional; contradicting "vital principles necessary to maintain separation of powers." 117 S. Ct. at 2171. Therefore, this Court ...

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