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Liebb v. Woodford

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA


September 21, 2005

STEPHEN LIEBB, PLAINTIFF,
v.
J.S. WOODFORD, ET AL., DEFENDANTS.

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.

BACKGROUND*fn1

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 documents and that he would not be reclassified as Other.

On May 18, 2001, Plaintiff had filed a grievance that he had been removed from his position as a food clerk for, among other things, testifying against Defendant Kane in a suit brought by a correctional officer alleging anti-Semitism and discrimination. Plaintiff requested reinstatement and back pay. The informal level response, dated May 23, 2001, reassigned Plaintiff to the food services depart, but in a different position.

Because the informal level response failed to address Plaintiff's request for back pay and his allegation that Defendant Kane retaliated against him, Plaintiff appealed the decision. The second level response, dated July 16, 2001, denied back pay, finding that "appellant's change in assignment was due to a concern by Mr. Kane that appellant would use the position as a manipulative means to gain some end result for appellant's benefit."

The director's level decision, dated March 28, 2002, also denied the appeal. The decision found that an inmate sentenced to life without parole, like Plaintiff, who was assigned to a back door position, like the food clerk position, could be a security risk and that Plaintiff had been reassigned for that reason.

Defendants acknowledge that Plaintiff has exhausted the administrative appeal process for each of these claims, and that they are ripe for this Court to review.

On May 29, 2001, Plaintiff filed the complaint that initiated this action and, on August 29, 2002, he filed a first amended complaint (FAC). On September 29, 2003, the Court granted Defendants' motion to dismiss the unexhausted claims in the FAC but granted Plaintiff leave to amend to file an amended complaint that contained only exhausted claims. On October 7, 2003, Plaintiff filed the SAC, which alleges the following causes of action arising from Defendants' practice of classifying him as White for purposes of housing and lockdowns: (1) violation of the Eighth Amendment right to be free from cruel and unusual punishment, (2) violation of the Equal Protection Clause of the Fourteenth Amendment, and (3) violation of the Religious Land Use and Institutionalized Persons Act (RLUIPA), and (4) retaliation by firing him from a prison job as a result of his administrative complaints. Plaintiff seeks compensatory and punitive damages as well as injunctive relief; Plaintiff requests that the CDC include Jewish in its list of ethnic classifications and that it classify his race as "Other" for purposes of housing assignments and inmate segregation during lockdowns.

LEGAL STANDARD

Summary judgment is properly granted when no genuine and disputed issues of material fact remain, and when, viewing the evidence most favorably to the non-moving party, the movant is clearly entitled to prevail as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir. 1987).

The moving party bears the burden of showing that there is no material factual dispute. Therefore, the court must regard as true the opposing party's evidence, if supported by affidavits or other evidentiary material. Celotex, 477 U.S. at 324; Eisenberg, 815 F.2d at 1289. The court must draw all reasonable inferences in favor of the party against whom summary judgment is sought. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991).

Material facts which would preclude entry of summary judgment are those which, under applicable substantive law, may affect the outcome of the case. The substantive law will identify which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Where the moving party does not bear the burden of proof on an issue at trial, the moving party may discharge its burden of showing that no genuine issue of material fact remains by demonstrating that "there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325. The moving party is not required to produce evidence showing the absence of a material fact on such issues, nor must the moving party support its motion with evidence negating the non-moving party's claim. Id.; see also Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 885 (1990); Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), cert. denied, 502 U.S. 994 (1991). If the moving party shows an absence of evidence to support the non-moving party's case, the burden then shifts to the opposing party to produce "specific evidence, through affidavits or admissible discovery material, to show that the dispute exists." Bhan, 929 F.2d at 1409. A complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial. Celotex, 477 U.S. at 323.

DISCUSSION

I. Eighth Amendment Claim

A. Analysis

A prison official violates an inmate's rights under the Eighth Amendment when two requirements are met. First, "the deprivation alleged must be, objectively, sufficiently serious." Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal citations omitted). On a claim based upon failure to prevent harm, a petitioner must show "that he is incarcerated under conditions posing a substantial risk of serious harm." Id. Second, the official must have a sufficiently culpable state of mind which, in prison-condition cases, is one of "deliberate indifference." Id. That is a subjective test; the inmate must show that "the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. at 837.

Defendants argue that Plaintiff has failed to submit evidence of a substantial risk of serious harm that results from sharing a cell with White inmates or from being segregated with White inmates during lockdowns, and that Plaintiff has not offered evidence that Defendants knew of any substantial risk of harm to him. Defendants note that Plaintiff submits no evidence that he has been threatened or involved in any physical altercation as a result of sharing a cell with White inmates or of being locked down with White inmates during the ten years that he has been incarcerated at San Quentin. And, Defendants note that Plaintiff has been permitted, on the occasions in which he has been temporarily celled with White inmates, to move and share cells instead with inmates who are not White.

Plaintiff argues that the CDC's policy of segregating its inmates along racial and ethnic lines is itself evidence that inmates are at substantial risk of harm due to the violent gang culture prevalent in California prisons, and that the CDC has admitted as much in this and other litigation. Plaintiff argues that by implementing the CDC's racial classification system, Defendants are tacitly acknowledging the dangers posed to non-White inmates by gangs such as the Aryan Brotherhood and the Nazi Low Riders, and that, because these gangs hate Jews as well as non-Whites, it would be illogical to conclude that they pose any less risk to Jewish inmates than they do to, for instance, Black and Hispanic inmates. Plaintiff has submitted evidence that Jewish inmates have been victims of anti-Semitic violence in San Quentin and other California prisons, including the California Medical Facility in Vacaville, where Plaintiff was involved in a fight with a White gang member. Plaintiff notes that Defendants have not disputed that anti-Semitic White prison gangs are a threat generally to the physical safety of Jewish inmates. Plaintiff argues that this evidence is sufficient under Farmer, in which the Court ruled that, in the analysis of substantial risk of serious harm, "it does not matter whether the risk comes from a single source or multiple sources, any more than it matters whether a prisoner faces an excessive risk of attack for reasons personal to him or because all prisoners in his situation face such a risk." 511 U.S. at 843.

There is a material dispute of fact whether Defendants have violated Plaintiff's rights under the Eighth Amendment. It cannot be disputed that, based upon the CDC's policy of racial classification and segregation and its acknowledgment in this and other litigation of the epidemic of race-based gang violence in the prison system, Defendants have subjective knowledge of the substantial risk that race-based prison gangs pose to inmates generally. There is a factual dispute, based upon the evidence in the record here, whether a policy of classifying Plaintiff as White poses a substantial risk of serious harm to him as a Jewish inmate, and whether Defendants had the requisite state of mind regarding such a risk.

B. Qualified Immunity

Defendants also argue that they are entitled to summary judgment of qualified immunity on Plaintiff's Eighth Amendment claim. The defense of qualified immunity protects officials "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The threshold question is whether, taken in the light most favorable to the plaintiff, the facts alleged show that the officer's conduct violated a constitutional or statutory right. Saucier v. Katz, 533 U.S. 194, 201 (2001). The plaintiff bears the burden of proving the existence of a clearly established right at the time of the allegedly impermissible conduct. Maraziti v. First Interstate Bank, 953 F.2d 520, 523 (9th Cir. 1992). If the law is determined to be clearly established, the next inquiry is whether a reasonable official could have believed his conduct was lawful. Act Up!/Portland v. Bagley, 988 F.2d 868, 871-72 (9th Cir. 1993). The defendant bears the burden of establishing that his or her actions were reasonable, Doe v. Petaluma City Sch. Dist., 54 F.3d 1447, 1450 (9th Cir. 1995), and the defendant's good faith or subjective belief in the legality of his or her actions is irrelevant. Alford v. Haner, 333 F.3d 972, 978-79 (9th Cir. 2003). Where there are genuine issues of fact relating to what the officer knew or did, or if a reasonable juror could find that the officer acted unreasonably, the question is appropriately for the trier of fact. Sinaloa Lake Owners Ass'n v. City of Simi Valley, 70 F.3d 1095, 1099-1100 (9th Cir. 1995).

Here, Defendants do not dispute that Plaintiff, as a Jewish inmate, has a clearly established right to be free from substantial risk of harm when being housed with other inmates or segregated during lockdowns. However, a reasonable prison official could have believed that Defendants' actions in this case were reasonable. Defendants have followed CDC policy in housing Plaintiff with other inmates classified as White. A reasonable prison official could have believed that the prison's procedures, which include separating inmates based upon the CDC's racial and ethnic classifications and allowing Plaintiff to request to cell with non-White inmates, were sufficient to protect Plaintiff's constitutional right to be free from serious risk of harm. Thus, Defendants are entitled to summary judgment of qualified immunity from Plaintiff's damages claim under the Eighth Amendment.

Qualified immunity is not, however, a defense against prospective injunctive relief. Vance v. Barrett, 345 F.3d 1083, 1091 n.10 (9th Cir. 2003). Plaintiff may still be entitled to injunctive relief, including reclassification as Other for purposes of housing assignments and lockdowns, on his Eighth Amendment claim.

II. Equal Protection Clause Claim

Plaintiff also challenges the CDC's policy of racial and ethnic classification for purposes of housing assignments and separating inmates during lockdowns under the Fourteenth Amendment's Equal Protection Clause. Plaintiff challenges the policy on its face and as it applies to him as a Jewish inmate. In Johnson v. California, et al., __ U.S. __, 125 S.Ct. 1141 (2005), an African-American inmate challenged the CDC's policy of racial classification for the purpose assigning cell-mates in prison reception centers. The district court granted the defendants in that case summary judgment of qualified immunity on the grounds that the defendants' conduct implementing the policy was not clearly unconstitutional. The Ninth Circuit affirmed, ruling that the constitutionality of the CDC policy of racial and ethnic classification is reviewed under the deferential standard that the Supreme Court articulated in Turner v. Safley, 482 U.S. 78 (1987).

Johnson v. State of California, 321 F.3d 791 (9th Cir. 2003). In February of this year, the Supreme Court reversed, ruling that the CDC's policy of racial and ethnic classification is subject to strict scrutiny, and it remanded the case to the Ninth Circuit for determination whether the State's policy meets that test. Johnson, 125 S.Ct. at 1148. The Ninth Circuit has yet to rule on remand.

In light of these facts, it would not be prudent for this Court to consider now whether the CDC's policy on its face withstands strict scrutiny review. The Court notes that Plaintiff also alleges that the CDC's classification policy as it applies to him as a Jew violates his rights under the Equal Protection Clause, because he is not afforded the same protections as other inmates, such as some Hispanic inmates who separately identify as "Northern" and "Southern," but are not involuntarily housed together despite the fact that they are classified as members of the same race. Again, however, it would be a waste of judicial resources for this Court to determine whether any facet of the CDC's policy of racial and ethnic classification survives strict scrutiny before the Ninth Circuit rules in Johnson.

Defendants' motion for summary adjudication of Plaintiff's claims under the Equal Protection Clause of the Fourteenth Amendment for damages and injunctive relief is denied without prejudice to refiling after the Ninth Circuit's ruling on remand in Johnson.

III. RLUIPA Claim

Plaintiff claims that being forced to share a double cell with overtly anti-Semitic inmates substantially burdens his free exercise of religion. The RLUIPA states in pertinent part as follows:

No 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 government interest; and (2) is the least restrictive means of furthering that compelling government interest.

42 U.S.C. § 2000cc-1(a). The statute defines "exercise of religion" to include "any exercise of religion, whether or not compelled by, or central to, a system of religious belief." 42 U.S.C. § 2000cc-5(5). Furthermore, the statute "shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution." 42 U.S.C. § 2000cc-3(g).

Defendants argue as follows: (1) Plaintiff has failed to substantiate that being celled with anti-Semitic inmates with tattoos of swastikas and SS lightning bolts prevents him from practicing his religion, and (2) Defendants have a compelling interest in securing the safety of the institution and their housing assignment policies and lockdown procedures are the least restrictive means to do so.

Defendants' arguments are not well-taken. First, Plaintiff states that on the occasions in which he has been celled with inmates who are known members of anti-Semitic prison gangs and who have tattoos of swastikas and other Nazi symbols, Plaintiff hides his religious books, calendars and pendants out of fear for his physical safety. Plaintiff also submits evidence that other Jewish inmates have reacted similarly, by avoiding any public display of their religion, when being housed with overtly anti-Semitic White inmates. Defendants do not, and presumably cannot, dispute that this is a logical and rational response to such a circumstance.

Second, as previously stated, the question of whether the CDC's racial and ethnic classification policies serve a compelling government interest is now being considered by the Ninth Circuit on remand in Johnson; thus, the Court will not now make a determination on that issue. Further, there is a factual dispute whether the CDC is using means to further its interest in securing prison safety that are the least restrictive possible of Plaintiff's ability to practice and exercise his religion. There is a factual dispute whether Defendants and the CDC employ any means to ensure that Jewish inmates are not housed together with anti-Semitic inmates who are members of White prison gangs.

In addition, Defendants are not entitled to summary judgment of qualified immunity on this claim. Plaintiff has a clearly established right to practice his religion in San Quentin without the CDC placing a substantial burden his ability to do so. And, because there is a material dispute whether Defendants or the CDC employ any means to ensure that Jewish inmates are not housed, even temporarily, with violent anti-Semitic inmates, there is also a material dispute whether any reasonable prison officer could believe that Defendants actions are legal. In short, no reasonable prison officer could believe that it is lawful to do nothing to ensure that Jewish prisoners' right freely to practice their religion is not being chilled by being housed with anti-Semitic gang members.

For the foregoing reasons, Defendants' motion for summary adjudication of Plaintiff's RLUIPA claim is denied.

IV. Retaliation

Plaintiff claims that Defendant Kane removed him from his job at the prison in retaliation for testifying against Defendant Kane. Defendants, however, state that Plaintiff was removed from his position as a clerk in the food services department -- a back door position -- based on safety concerns. According to Defendants, Defendant Kane knew of Plaintiff's alleged past involvement in a conspiracy to assault an inmate; Defendant Kane also knew that Plaintiff is a "lifer" -- an inmate sentenced to a life prison term. Thus, Defendant Kane believed that Plaintiff in a back door position was a security risk and needed to be removed. Plaintiff does not address the retaliation claim in his opposition and Defendants' motion for summary adjudication of Plaintiff's retaliation claim is granted.

CONCLUSION

For the foregoing reasons, Defendants' motion for summary judgment (Docket No. 35) is GRANTED in part and DENIED in part. Defendants are entitled to summary judgment of qualified immunity on Plaintiff's Eighth Amendment claim for damages. However, because there is a dispute of material fact whether Plaintiff's rights under the Eighth Amendment have been violated, he may still seek injunctive relief under that claim. Defendants' motion for summary adjudication of Plaintiff's Equal Protection Clause claim is denied without prejudice to refiling after the Ninth Circuit's ruling on remand in Johnson. Defendants' motion for summary adjudication of Plaintiff's RLUIPA claim is denied. Defendants' motion for summary adjudication of Plaintiff's retaliation claim, which Plaintiff did not oppose, is granted.

IT IS SO ORDERED.


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