The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER & FINDINGS AND RECOMMENDATIONS
Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court are: 1) defendants' motion for summary judgment, filed on 9/21/07, to which plaintiff filed an opposition; 2) plaintiff's (defective) cross-motion for summary judgment, filed on 10/29/07, which will be vacated*fn1 ; and 3) plaintiff's belated request for a continuance pursuant to Fed. R. Civ. P. 56(f), to which defendants filed their opposition and plaintiff filed a reply.
Plaintiff's original complaint was filed on 12/06/00; plaintiff filed a first amended complaint on 5/29/01, pursuant to the court's order, filed on 5/01/01. Upon defendants' motion to dismiss, plaintiff was granted leave to file a second amended complaint, subsequently stricken for plaintiff's failure to comply with court orders, filed on 5/13/03, 7/24/03, and 9/09/03. See, Order, filed on 9/29/03. Plaintiff's third amended complaint was ultimately stricken, primarily for plaintiff's failure to comply with Fed. R. Civ. P. Rule 8, with leave granted for plaintiff to file a fourth amended complaint even though plaintiff had been cautioned before filing the third amended complaint that he would have only one further opportunity to file an amended complaint in compliance with prior court orders. See, Orders, filed on 9/29/03, and 7/07/05. Defendants' motion to dismiss the fourth amended complaint, resulted in dismissal of the following claims: plaintiff's claims for a violation of his privacy rights under the Fourth Amendment or any claims for violations of his rights under the Eighth Amendment for defendants Weaver, Fletcher and Paul having observed him while he showered or while he was undressed in his cell; plaintiff's claims of a violation of his Eighth Amendment rights against defendant Weaver for her having spread allegations as to his being a child molester, rapist, or homosexual and for sharing sensitive information about his commitment offense among staff and inmates; and for plaintiff's claims of conspiracy. Also dismissed were plaintiff's claims for prospective injunctive relief against defendant Newland and for money damages for the participation of defendants Newland and Cambra in the grievance process or on claims regarding vicarious liability. This matter now proceeds only on plaintiff's claims of retaliation in violation of his First Amendment rights, against defendants Weaver, Fletcher and Paul for having unrestrictedly observed him in various states of undress (in the shower and in his cell) and as to plaintiff's claims of retaliation against defendant Weaver for having spread false allegations of child molesting, homosexuality and rape against plaintiff, as well as sensitive information about his commitment offense for a two-year period to staff and inmates. In addition, plaintiff's claims for money damages under RLUIPA against defendants Newland, Cambra, Weaver, Fletcher and Paul proceed, as well as plaintiff's claims for prospective injunctive relief against defendant Tilton, to the extent plaintiff has framed colorable claims implicating a state prison policy allowing female guards to observe him, a male Muslim inmate, while he is nude in the shower or undressed in his cell. See Order, filed on 3/30/07, adopting Findings and Recommendations, filed on 3/06/07. With those modifications, the court sets forth the remaining allegations of the fourth amended complaint (AC), filed on 9/08/05.
Named as defendants are former California State Prison- Solano (CSP-Sol) Warden Anthony Newland; former California Department of Corrections and Rehabilitation (CDCR) Director Steve Cambra, and three California State Prison -Solano (CSP-Sol) correctional officers (C/O): C/O J.R. Weaver; C/O Fletcher; C/O Paul. Defendant Tilton has been substituted in in his official capacity for purposes of any potential prospective injunctive relief. Plaintiff at the time of the filing of his fourth amended complaint was housed at California State Prison-Lancaster (CSP-Lac) in Los Angeles; his later filings demonstrate that he was subsequently incarcerated at California Men's Colony and California Correctional Facility (CCI) in Tehachapi, and is currently located at High Desert State Prison (HDSP).
Plaintiff alleges that defendant Weaver, from September 18, 1998 through March, 2000, repeatedly placed plaintiff in a life-threatening situation at CSP-Sol by telling staff and inmates that plaintiff is a homosexual, child molester and rapist. AC, p. 3. Plaintiff further alleges that defendant Weaver provided information to CSP-Sol Muslim inmates about plaintiff's alleged misconduct which gave rise to CDC-115 Rule Violation Reports, making it difficult for plaintiff to worship and have a fellowship with Muslim inmates, as well as making it difficult for plaintiff to interact with general population inmates and potential cell partners. Id. Moreover, plaintiff alleges that defendant Weaver shared with other staff the information about his commitment offense, evidently a conviction for second degree murder. Id. Plaintiff claims that defendant Weaver placed false documents in his file, although he does not identify such alleged documents. Plaintiff revisits a claim that has been previously found, inter alia, Heck-barred.*fn2
AC, p. 4. Plaintiff alleges that defendant Weaver has falsely labeled him as a sexual predator in retaliation for plaintiff having filed inmate grievances, as well as a grand jury complaint, against her for the purpose of having staff and inmates threaten his life or injure him. AC, pp. 4, 7.
Plaintiff alleges that male inmates are exposed to observation by female guards in the use of cell toilet facilities and in various states of dress and undress in their cells. AC, p. 5. Plaintiff further alleges that he is denied the right to the free exercise of his religion by defendant Warden Newland in allowing plaintiff to be, or at risk for being, viewed completely or partly nude by any female guard in the course of her duties because such exposure is forbidden by the Holy Qu'ran which requires male Muslims not to reveal their private parts to any but a wife or certain close relative(s). AC, pp. 5-6. Plaintiff does not reference the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) as the basis for his claim within the body of his complaint although he has been given ample opportunity to do so. Plaintiff has, however, referenced RLUIPA in the caption of his filing, so the court has liberally construed his claims with regard to female guards as made under RLUIPA.*fn3 Defendants Weaver, Fletcher and Paul, in retaliation for plaintiff's having filed grievances about female guards being able to watch him in the shower, have made sure to observe plaintiff at length in the shower and in his cell, violating his right to practice his faith as a Sunni Muslim. AC, p. 8.
Plaintiff claims that defendants Newland and Cambra "created a policy or custom allowing and encouraging the illegal act of placing plaintiff in administrative segregation housing... violating plaintiff's Islamic beliefs." AC, p. 6. Plaintiff seeks money damages and injunctive relief.
Plaintiff, on 11/13/07, filed a motion for a continuance of defendants' summary judgment motion, averring that defendants Newland, Paul and Fletcher failed to answer interrogatories or respond to a discovery motion he submitted on 8/2/07. He moves for an order compelling discovery, including interrogatories which plaintiff contends were served on defendants, which he states were not "fully" answered. He includes requests for production that are dated 11/08/07, with no indication that those requests were served previously. He seeks $1000.00 for bringing the putative motion.
Defendants, in opposing the motion, are correct that discovery in this matter closed on 8/3/07, and that plaintiff failed to seek an extension of the discovery deadline. See Scheduling Order, filed on 4/25/07. In addition, defendants contend they were never served with the discovery requests at issue and did not see them before plaintiff filed the present motion.
In reply, plaintiff includes a copy of a 9/13/07 memorandum indicating a computer crash of outgoing legal meal, such that the High Desert State Prison mailroom supervisor is unable to retrieve the log of outgoing legal mail from February, 2007, until Sept. 13, 2007. More puzzlingly, plaintiff references a first and second set of interrogatories and a set of requests for production of documents that he indicates were served on defendants on 9/07/04, and for which "defendants never gave me this problem."
The instant case was filed in 2000. Plaintiff brings his motion for a continuance and motion to compel far beyond the 8/03/07 discovery deadline and simply offers no substantive reason for failing to serve his discovery requests earlier. Even if he served them when he says he did, on 8/02/07, that would have been too late. In the 4/25/07 scheduling order, the following is set forth:
The parties may conduct discovery until August 3, 2007. Any motions necessary to compel discovery shall be filed by that date. All requests for discovery pursuant to Fed. R. Civ. P. 31, 33, 34, or 36 shall be served not later than sixty days prior to that date.
Moreover, Fed. R. Civ. P. 56(f) specifies that a request for a continuance should be made in the form of an affidavit setting forth "specified reasons" that a party "cannot present facts essential to justify its opposition," which plaintiff has failed to submit. Plaintiff's motion for a continuance, pursuant to Fed. R. Civ. P. 56(f), is denied, as is his belated request for an order compelling discovery.
Motion for Summary Judgment
Defendants move for summary judgment on the grounds that: 1) plaintiff cannot recover damages under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) and his claims for injunctive relief are moot; 2) the retaliation claim fails; 3) defendants are entitled to qualified immunity. Motion for Summary Judgment (MSJ), pp. 1--12.
Legal Standard for Summary Judgment
Summary judgment is appropriate when it is demonstrated that the standard set forth in Fed. R. Civ. P. 56(c) is met. "The judgment sought shall be rendered forthwith if . . . there is no genuine issue as to any material fact, and . . . the moving party ...