ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a former maximum security inmate at the Claybank Facility of the Solano County Jail. He claims violation of his rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA), the First, Eighth, and Fourteenth Amendments, and California Penal Code § 4027. The sole defendant in this action is Lieutenant Peggy Rourk, the Commander at the Claybank Facility.*fn1 On May 22, 2009, the court held a hearing on defendant's motion for summary judgment (Doc. No. 94) and plaintiff's motion to compel deposition of defendant Rourk (Doc. No. 106). Fred Norton of Boies, Schiller & Flexner appeared on behalf of plaintiff, and Martha Stringer of Williams & Associates appeared on behalf of defendant.
This action is proceeding on plaintiff's amended complaint, filed on May 26, 2004.*fn2 In his amended complaint plaintiff named defendant Rourk as the sole defendant.*fn3 Plaintiff alleges as follows. He was housed in the maximum security module of the Claybank Facility for approximately three months, from June 30, 2003 to October 9, 2003.*fn4 He was not allowed to attend religious services because such services were offered to only minimum and medium security inmates.*fn5 According to plaintiff, he and other inmates attempted to hold Bible studies and morning prayer by "yelling thru the corner edge of the cell door" and in the maximum security module during "unlocks." (Am. Compl. Suppl.) However, these attempts were halted after a few days because of complaints from other inmates who were not interested in these religious activities and because the activities disturbed inmates who were watching television. Subsequently, plaintiff submitted a grievance regarding the lack of religious services which was signed by forty-two other inmates. In response to the grievance, defendant Rourk stated that she was unaware that maximum security inmates wanted to have religious services and that a religious visit would be provided. When this was not done, plaintiff filed a second grievance. Defendant Rourk denied the grievance, telling plaintiff "to focus your energy to being re-classified to minimum where religious programs ARE provided." (Id.) Plaintiff claims "the discriminating treatment and denial of access to free assembly for religious services and practices, was cruel and unusual punishment, which is in violation of mine and others constitutional rights covered in the 1st, 8th, and 14th amendments." (Id.) In terms of relief, plaintiff seeks the following:
End Solano Counties discriminitory [sic], prejudicial and unconstitutional practice of denying inmates "equally" to religious services, Bible study. Monitor there [sic] policies to ensure equal and fair treatment to all individuals in there [sic] custody. Award twenty million dollars to me for pain and suffering, for the cruel and unusual punishment, and for the mental anguish and distress. Portions of the twenty million dollars will be given to the (42) forty two individuals listed on the back of the original greivance [sic] with my being responsible for doing so after and if any monies are awarded to me. Force a public apology.
This is the second motion for summary judgment filed on behalf of defendant Rourk in this action. The first motion, filed on September 27, 2005, was granted on September 18, 2006, and the action was dismissed. On appeal, the Ninth Circuit Court of Appeals determined that under RLUIPA, the religious exercise placed at issue by plaintiff's amended complaint was group worship services, and that "the Claybank jail's policy of prohibiting Greene, a maximum security prisoner, from attending group religious worship services substantially burdened his ability to exercise his religion." Greene v. Solano County Jail, 513 F.3d 982, 988 (9th Cir. 2008). While recognizing that maintaining prison security is a compelling governmental interest, the Ninth Circuit concluded that there were disputed material facts as to whether precluding group religious worship by maximum security prisoners was the least restrictive means available for maintaining that security. Id. at 988-89. In this regard, the court stated:
Nothing in our opinion should cast doubt on the fact that prison officials may, under certain circumstances, substantially burden a prisoner's ability to engage in religious exercise. But in light of RLUIPA, no longer can prison officials justify restrictions on religious exercise by simply citing to the need to maintain order and security in a prison. RLUIPA requires more. Prison officials must show that they "actually considered and rejected the efficacy of less restrictive measures before adopting the challenged practice." Warsoldier [v. Woodford], 418 F.3d [989,] 999 [(9th Cir. 2005).] If prison officials meet that standard, the prison regulation passes muster under RLUIPA, regardless of the burden it imposes on religious exercise.
Id. at 989-90. Accordingly, the Ninth Circuit remanded to this court for further proceedings plaintiff's claims that "group worship also violated his rights under the First, Eight, and Fourteenth Amendments[,]" as well as, under California Penal Code § 4027. Id. at 990.
PLAINTIFF'S MOTION TO COMPEL
As noted above, plaintiff seeks to compel the deposition of defendant Lieutenant Peggy Rourk. Upon due consideration of the parties' arguments presented in their briefs and at oral argument, the court will grant plaintiff's motion to compel and reopen discovery for the limited purpose of allowing the deposition of defendant Rourk to be taken. In light of this ruling, the court will also reopen law and motion and set new dates for the filing of any dispositive motions.
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Defendant Rourk has again moved for summary judgment in her favor on plaintiff's RLUIPA, First Amendment, Eighth Amendment, Equal Protection, and state Penal Code claims. Defendant also contends that she is entitled to qualified immunity with respect to plaintiff's claim under RLUIPA and seeks summary judgment in her favor in that regard. Finally, defendant Rourk also seek dismissal of plaintiff's requests for injunctive relief and damages except for nominal damages.
Summary judgment is appropriate when it is demonstrated that there exists "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).
Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See id. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323.
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 631. Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments).
In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts.... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted).
On August 18, 2004, the court advised plaintiff of the requirements for opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc); Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).
RLUIPA provides in relevant part, that "[n]o 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 establishes that the burden furthers "a compelling governmental interest," and does so by "the least restrictive means." 42 U.S.C. § 2000cc-1(a)(1)-(2). RLUIPA defines "religious exercise" to include "any exercise of religion, whether or not compelled by, or central to, a system of religious belief." 42 U.S.C. § 2000ccc-5(7)(A); Warsoldier v. Woodford, 418 F.3d 989, 994 (9th Cir. 2005).
Greene v. Solano County Jail, 513 F.3d at 986. RLUIPA is distinguishable from traditional First Amendment jurisprudence in at least two ways. Id. First, it expanded the reach of its protection to include any religious exercise, whether or not compelled by or central to the religious belief in question. Id. Second, RLUIPA requires the government to meet a stricter test under which any burden imposed by the government on religious exercise must be both in furtherance of a compelling governmental interest and be the least restrictive means of furthering the governmental interest at issue. Id.
Defendant Rourk argues that she is entitled to summary judgment in her favor as to plaintiff's RLUIPA claim because there was no substantial burden placed on plaintiff's religious exercise. The court is unpersuaded by the argument. Defendant asserts that plaintiff was able to worship and conduct Bible study with his cellmate, as well as, with other maximum security inmates in the dayroom or corridor of the maximum security module. However, as the Ninth Circuit has already concluded in this case, "the Claybank jail's policy of prohibiting Greene, a maximum security prisoner, from attending group religious worship services substantially burdened his ability to exercise his religion." Greene, 513 F.3d at 988. To the extent defendant Rourk now argues that plaintiff was able to conduct group worship in the maximum security module, there are clearly disputed issues of material facts as to whether the corridors and dayroom were suitable areas within the jail for group religious worship.
There also exist disputed issues of material facts as to whether prohibiting plaintiff from attending group worship with the minimum and medium security inmates was the least restrictive means of furthering the governmental interest in preserving institutional security. In this regard, plaintiff's criminal justice expert, Walter Kautzky has declared that "sensible scheduling and use of alternate spaces in the jail provide numerous reasonable alternatives to a ban on group worship." (Kautzky Decl. (Doc. No. 105) ¶ 25 at 9.) In response to defendant's contention that the classroom space at the jail is unsuitable for this purpose because of the lack ...