Plaintiff William Rouser has brought suit against the defendants, all of whom are employees of the California Department of Corrections and Rehabilitation ("CDCR"), alleging they violated his civil rights by denying him his right to practice his religion while incarcerated. Plaintiff's Second Amended Complaint raises claims for violations of: 1) the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000 et seq.; 2) the Free Exercise and Establishment Clauses of the First Amendment of the U.S. Constitution; 3) the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution; 4) the Free Exercise and Establishment Clauses of the California Constitution (Art. I, sec. 4); and 5) the Equal Protection Clause of the California Constitution (Art. I, sec. 7).
Pending before the court is defendants' motion to dismiss plaintiff's federal and California state Establishment Clause claims (counts 3 and 6, respectively ). For the reasons explained below, the motion is denied.
I. FACTUAL ALLEGATIONS*fn1
Plaintiff is an adherent of the Wiccan religious faith who seeks to practice his religion while incarcerated. SAC ¶¶ 15. The complaint alleges that the use of various religious articles and the ability to conduct group worship under the guidance of a spiritual leader are central to the practice of plaintiff's religious beliefs. SAC ¶¶ 16-17. According to the complaint, the plaintiff, as a prisoner of the state, has been harassed and discriminated against due to his adherence to Wicca. SAC ¶¶ 19-20. Defendants' alleged discrimination has taken many forms, including denying plaintiff access to his religious articles (such as altars, wands, incense, tarot cards, and the Wiccan Bible) and denying plaintiff the ability to conduct group worship under the guidance of a spiritual leader, while allowing such access to other prisoners who adhere to one of the five religions outlined in CDCR's Departmental Operations Manual ("DOM").*fn2 SAC ¶¶ 18, 19, 24, 25, 27, 30, 32, 33, 56-59. In part, CDCR's DOM identifies that the prisons may obtain qualified chaplains from five religious categories: Muslim, Jewish, Catholic, Protestant, and "Native American." See DOM § 101060.5. Plaintiff challenges the alleged institutional preference toward these denominations on the grounds that the preference goes beyond the employment of chaplains and influences other decisions regarding religion.
The plaintiff's complaint was initially filed in 1993. The parties settled in November, 1997. The terms of the settlement provided, in part, that plaintiff would have access to the Wiccan Bible and other religious materials, even while housed in a Security Housing Unit or Administrative Segregation, consistent with policies and procedures regulating inmate access to religious articles. SAC ¶¶ 29(a)-(d). Additionally, the settlement agreed to permit a volunteer Wiccan spiritual advisor to conduct Wiccan services. SAC ¶ 29(g). In 2003, plaintiff notified the court that defendants were not honoring the terms of the settlement.
The case was reopened, although plaintiff's prior counsel withdrew from representation. In 2006, plaintiff's substituted counsel also withdrew. Proceeding pro se, plaintiff filed an amended complaint on January 30, 2006, which supplemented his February 12, 1997 complaint. Plaintiff, with the assistance of counsel, filed a second amended complaint on June 30, 2008.
Pending before the court is defendants Tilton and Yates' motion to dismiss the Establishment Clause violations embodied in count three (brought under the U.S. Constitution) and six (under the California Constitution) of the Second Amended Complaint.
A. Standard for Dismissal Pursuant to Federal Rule of Civil Procedure 12(b)(1)
Federal Rule of Civil Procedure 12(b)(1) allows a party to raise, by motion, a defense that the court lacks "jurisdiction over the subject matter" of a claim. Fed. R. Civ. P. 12(b)(1). As "the federal courts are courts of limited jurisdiction," the party seeking to invoke the court's jurisdiction bears the burden of establishing its existence. Kokkonen v. Guardian Life Ins. Co of Am., 511 U.S. 375, 377 (1994) (citations omitted); Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989).
A Rule 12(b)(1) motion to dismiss for lack of jurisdiction may be either facial, where the inquiry is confined to the allegations in the complaint, or factual, where the court is permitted to look beyond the complaint to extrinsic evidence. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004); Savage v. Glendale Union High School Dist. No. 205, 343 F.3d 1036, 1040 n.2 (9th Cir. 2003). Where the attack is facial, as in this case, the court takes the allegations in the complaint as true. Bollard v. Cal. Province of the Soc'y of Jesus, 196 F.3d 940, 944-945 (9th Cir. 1999). In contrast, when the motion constitutes a factual attack, "no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Thornhill Publ'g Co. v. Gen. tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir. 1979); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977).
B. Standard for Dismissal Pursuant to Federal Rule of Civil Procedure 12(b)(6)
In order to survive a motion to dismiss for failure to state a claim, plaintiffs must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, __ U.S. __, 127 S.Ct. 1955, 1974 (2007). While a complaint need not plead "detailed factual allegations," the factual allegations it does include "must be enough to raise a right to relief above the speculative level." Id. at 1964-65.
The Supreme Court recently held that Federal Rule of Civil Procedure 8(a)(2) requires a "showing" that the plaintiff is entitled to relief, "rather than a blanket assertion" of entitlement to relief. Id. at 1965 n.3. Though such assertions may provide a defendant with the requisite "fair notice" of the nature of a plaintiff's claim, the Court opined that only factual allegations can clarify the "grounds" on which that claim rests. Id. "The pleading must contain something more. . . than . . . a statement of facts that merely creates a suspicion [of] a legally ...