The opinion of the court was delivered by: Arthur L. Alarcón United States Circuit Judge Sitting by Designation
Plaintiff Curtis Lee Swygert ("Swygert") is a state prisoner proceeding with counsel in this civil rights action brought pursuant to 42 U.S.C. § 1983. Swygert alleges constitutional violations under the First Amendment, Fourteenth Amendment, and the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. §§ 2000cc-2000cc-5.
On October 24, 2008, at the Court's request, Defendants filed a supplemental brief arguing that no Warden within the California Department of Corrections and Rehabilitation (CDCR) would be a properly named defendant because state regulations do not authorize Muslim inmates to have Kosher or Halal foods, and that if a Warden were to violate that policy, he or she could be subject to disciplinary measures. (Doc. 62). Thus, Defendants argue, wardens do not have the authority to provide the injunctive relief requested by Swygert. Defendants have asserted that the Departmental Food Administrator (DFA) represents the CDCR in all food service issues and activities, including development of standardized menus for CDCR, and that institutions must follow the CDCR standardized recipes. Id.
On November 26, 2008, the Court issued an order appointing counsel for Swygert, replacing Martin Veal with Mike Knowles for allegations made by Swygert against the warden in his official capacity, and granting Swygert leave to amend his complaint to name an appropriate defendant who, in his or her official capacity, could provide the requested injunctive relief being sought in Swygert's complaint. (Doc. 64).*fn1 The Court also ordered the parties to submit separate briefs regarding whether the complaint should be amended to add the CDCR as a proper defendant. Id.
On December 29, 2008, Defendants filed a brief arguing that the CDCR should not be named as a Defendant because under 42 U.S.C. § 1983 the CDCR, as a state entity, is not considered a "person" and thus cannot be sued. (citations omitted). (Doc. 66).
On December 31, 2008, Plaintiff filed a brief in response to the Court's November 26, 2008 order and a request for judicial notice. (Doc. 67). Plaintiff argues that neither the DFA nor the institutional heads and correctional food managers (none of whom have been identified by Defendants by name) are proper defendants in this case. Id. Plaintiff contends that Matthew Cate, the Secretary of the CDCR, is the proper defendant to ensure implementation of a court order regarding the service of Halal Food to Muslim inmates and/or religious services for Muslim Inmates, should such an order be issued, because he is the state official with the highest level of authority. Plaintiff also argues that the CDCR is a proper defendant in this case for the limited purposes of assessing against it attorney's fees and costs for this action. Id.
Plaintiff has also requested that the Court take Judicial Notice of certain CDCR procedures as set forth in its brief.
Accordingly, IT IS HEREBY ORDERED THAT on or before January 20, 2009, Defendants file a response to:
1. Plaintiff's contention that the Secretary of the CDCR, Matthew Cate, is a proper defendant to be named in this action, and one who is responsible for ensuring implementation of a court order regarding the service of Halal Food to Muslim inmates and/or religious services for Muslim Inmates, should such an order be issued; and,
2. Plaintiff's request for ...