The opinion of the court was delivered by: Claudia Wilken United States District Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Defendants J.S. Woodford, A.P. Kane and J. Nunez move, pursuant to Federal Rule of Civil Procedure 56, for summary adjudication of all claims in Plaintiff Stephen Liebb's second amended complaint (SAC). Plaintiff opposes the motion. The matter was taken under submission on the papers. Having considered the parties' papers and the evidence cited therein, the Court GRANTS Defendants' motion in part and DENIES it in part.
Plaintiff is a State prisoner incarcerated at San Quentin State Prison. He is serving a sentence of twenty-six years to life and has been housed at San Quentin since February, 1995. At all times relevant to this action, Defendant Woodward was the Warden at San Quentin, Defendant Kane was Chief Deputy Warden, and Defendant Nunez was a Correctional Captain. Defendant Kane was also a Correctional Lieutenant at the California Medical Facility in Vacaville when Plaintiff was temporarily housed there in 1989.
Plaintiff is an observant Jew. He maintains the Kashruth laws, prays daily, observes the Sabbath, Holy Days and fast days, wears a necklace with a Star of David pendant, and keeps a Torah, prayer book, Hebrew calendar and other Jewish books and study guides in his cell.
It is not disputed that the California Department of Corrections (CDC) classifies inmates based upon their perceived race. The four racial categories that the CDC uses are "White," "Black," "Hispanic" and "Other." The CDC also classifies inmates by ethnicity; the list of ethnicities in its operations manual includes, among others, American Indian, Chinese, Filipino, Samoan, and Thai. The list does not include Jewish. The CDC uses these racial and ethnic classifications for two purposes that are relevant to this litigation: (1) assigning cell-mates in the San Quentin reception center and general population, and (2) separating inmates during "lockdowns," during which all but the essential functions of the prison are shut down, generally in response to a security-related incident. The CDC has asserted in this and other litigation that it segregates its inmates on the basis of race and ethnicity in order to prevent violence caused by prison gangs that are largely organized along racial lines.
Although Defendants submit evidence that considerations other than race and ethnicity are taken into account in determining double-cell housing placements in the San Quentin reception center, they do not dispute that race and ethnicity are the determinative factors. The parties dispute, and the evidence is not clear, whether San Quentin takes any measures to ensure that anti-Semitic and Jewish inmates are not housed together in the reception center or the general population. It is not disputed that, for purposes of housing assignments and lockdowns, the CDC has classified Plaintiff exclusively as White during his incarceration at San Quentin.
Plaintiff acknowledges that, for a majority of the time that he has been incarcerated at San Quentin, he has been housed with inmates who have been racially classified as Other. That practice has been permitted, according to Plaintiff, because on each occasion he and his cell-mate have agreed to be housed together. However, Plaintiff submits evidence that he has been involuntarily celled with inmates at San Quentin on a temporary basis approximately twelve times. These situations have arisen when Plaintiff's permanent cell-mates have been paroled or transferred to a different housing unit or prison. Plaintiff's evidence, which is not disputed, is that on these twelve occasions, he has been celled only with White inmates. Plaintiff does acknowledge that he was permitted to change cells upon submitting a bed-move request to his unit sergeant or lieutenant and identifying another inmate who was willing to share a cell with him. It is not clear how long Plaintiff was housed with White inmates on each of these occasions, although he identifies one instance in which a White inmate was moved into his cell on a Friday afternoon, and Plaintiff's bed-move request was not approved until the following Monday.
According to Plaintiff's sworn declaration, he has experienced approximately ten lockdowns during his incarceration at San Quentin. During these lockdowns, which have lasted from one to ten days, Plaintiff has been required to shower, eat and walk the prison stairwells with White inmates, even during periods when his cell-mate was not White.
Plaintiff proffers evidence, which is not disputed, that a significant portion of the White prison population at San Quentin is overtly anti-Semitic. Prisoners' anti-Semitism is manifested verbally and through the use of swastikas, lightning bolts and other Nazi symbols depicted in tattoos, drawings and writings. Two large prison gangs, the Aryan Brotherhood and the Nazi Low Riders, promote anti-Semitism as a central feature of their respective ideologies. Plaintiff submits evidence that several of the twelve cell-mates to whom Plaintiff has been involuntarily assigned have had anti-Semitic tattoos and have been known members of White prison gangs. Each time Plaintiff has been involuntarily celled with White inmates with anti-Semitic tattoos or markings, he has hidden his Jewish books and study guides, taken off his Star of David pendant, and refrained from praying or engaging in any public display of his religion out of fear for his physical safety.
Plaintiff states that he has heard White inmates in the San Quentin yard use anti-Semitic language and refer to anti-Semitic literature. He also submits some evidence that Jewish inmates in San Quentin and other State prisons have been victims of verbal and physical attacks by White inmates. He states that he was involved in a physical altercation with an anti-Semitic White inmate at the California Medical Facility in Vacaville in 1989. Plaintiff submits evidence that Defendant Kane interviewed him following the altercation. However, Plaintiff does not offer evidence that he has been the victim of physical violence or verbal abuse because of his religion since he has been incarcerated at San Quentin.
On August 16, 1999, Plaintiff filed an administrative appeal which requested that the CDC re-classify him from White to Other for purposes of housing assignments. Plaintiff stated in the appeal that he was Jewish, a distinct ethnicity, and that he did not wish to be celled with White inmates "due to the prevalence of anti-Semitic symbols such as swastikas and attitudes toward Jews among that group." On September 14, 1999, Plaintiff's appeal was denied at the informal response level; the correctional counselor stated that the information in Plaintiff's central file indicated that he was White, and that there "was no supporting documentation to change your race from 'White' to 'Other.'" Plaintiff appealed to the first formal response level, stating that his "racial, ethnic and religious identity is Jewish"; his appeal was rejected. Plaintiff then appealed to the second formal response level. On December 27, 1999, Defendant Woodford denied Plaintiff's appeal. The denial stated as follows: "Appellant is advised the Department is not denying the ethnicity or culture of the Jewish people [sic] however, appellant has failed to establish proof that the change of his ethnicity should be made."
On February 26, 2002, Plaintiff filed an administrative appeal which alleged that San Quentin's policy of segregating him with other White inmates, including "skinheads, Neo-Nazis, anti-Semites and white supremacists," during lockdowns violated his religious freedom and his rights under the Equal Protection Clause. Plaintiff again requested that the CDC reclassify him from White to Other. Plaintiff's appeal bypassed the informal review level, and was denied at the first formal response level. That decision stated that the available documents listed Plaintiff as White. At the second formal level of review, Defendant Woodford denied Plaintiff's appeal, stating, inter alia, as follows:
Based on the information provided it is reasonable to conclude that for legal purposes, the appellant's ethnic [sic] is White/Caucasian and the legal documentation in the appellant's central file supports this finding. . . . Appellant has failed to provide sufficient evidence that staff should reclassify him from White to Other.
On July 17, 2002, the CDC issued a director's level decision denying Plaintiff's appeal. That decision also stated that the documentation in Plaintiff's central file indicated that he was White, and that in the CDC's operations manual "there is not a separate category for Semite or Jew, thus the appellant's designation of Caucasian is affirmed under the category of 'White.'"
On August 6, 2002, Plaintiff filed an inmate administrative appeal that challenged, under the Equal Protection Clause, the prison's policy of housing him with White inmates. Plaintiff identified three instances within a one-week period in July, 2002, in which he was involuntarily celled with White inmates.
Plaintiff's appeal was denied at all levels of administrative review. In the second formal review level decision, dated October 21, 2002, Defendant Woodford again stated that Plaintiff was classified as White in all prison ...