The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER and FINDINGS AND RECOMMENDATIONS
On account of prison transfers and vague claims, plaintiffs' pleadings in this religion-in-prison case are dysfunctional giving rise to numerous questions as to the proper parties and claims and exhaustion status. However, given liberal pro se pleading standards as they are, district courts are compelled to divine what is at issue. A good part of the Findings and Recommendations will be spent in setting forth the history of this case and the appropriate issues as the undersigned has seen and presently sees them.
Plaintiff has filed suit essentially claiming that his abilities to practice his Muslim religion were unduly burdened at his former institution (Sierra Conservation Center), and have been unduly infringed at Pleasant Valley State Prison, his present incarceration locale. The motions and oppositions in this matter at bar total approximately 1,000 pages. In those pages, defendants seek to have two of plaintiff's purported six claims dismissed on the basis that they were not administratively exhausted prior to filing suit, and on the merits of all six claims.
For the reasons that follow defendants' exhaustion ground should be denied. However, but for the halal/kosher diet claim, defendants should be awarded summary judgment on all other claims. Even for the diet claim, defendants in their individual capacity are qualifedly immune from damages. This case should go to trial on the diet claims for prospective relief only. Pertinent Case Chronology
On September 10, 2005, plaintiff filed his complaint while housed at Sierra Conservation Center. The complaint named Jeanne Woodford, then the Director of CDCR and also "all unknown wardens of all CDC prisons." "Class Action" was denominated on this pleading. The complaint raised four issues:
1. Be allowed to participate in Jumu'ah without penalty*fn1;
2. That CDCR hire paid imams for religious services involving Muslim prisoners;
3. That Muslim prisoners be allowed to have beards and long hair;
4. That Muslim prisoners be given halal/kosher diets.
The complaint sought injunctive relief and $10,000 in total damages.
Director Woodford was ordered served on January 13, 2006; Director Tilton was substituted in with respect to his official capacity on September 8, 2006. The court also sought, in vain, to acquire counsel for plaintiff. In his September 8th order, the undersigned found that no class action motion had been filed, that class actions litigated by pro se plaintiffs were nearly impossible with a layperson acting as both the class representative and class counsel, and that the action would be "presently construed" as a non-class action.*fn2 Plaintiff was ordered to amend the complaint for various reasons. The First Amended Complaint was filed, but now plaintiff had several other prisoners join in as plaintiffs. For the reasons set forth in the court's April 30, 2007 order, the multi-plaintiff action was severed, plaintiff was ordered to proceed on his own, and file a Second Amended Complaint.
The Second Amended Complaint was filed essentially reiterating the issues in the initial complaint. However, in an attached Memorandum of Points and Authorities, plaintiff appeared to attempt to add two new issues:
5. Being permitted to purchase and use prayer oils;
6. Being permitted single cell status on account of cleanliness requirements of the Muslim religion.
Defendants*fn3 brought a motion to dismiss for lack of exhaustion of administrative remedies. Although recognizing that the court had not included plaintiff's spurious add on claims as referenced in the memorandum, attached to the Second Amended Complaint, see Order of September 25, 2007, defendants collectively attacked all six issues. Defendants reasoned that because plaintiff had been transferred to Pleasant Valley, any exhaustion of remedies at Sierra Conservation Center (SCC) could not be applicable to complaints at Pleasant Valley. No mention was made in the first motion that the last two of the six claims applied only to Pleasant Valley. In adjudicating defendants' first motion to dismiss for lack of exhaustion, the undersigned responded to the collective attack by finding that the previous exhaustion at SCC would apply to a transferred plaintiff. Order; Findings and Recommendations of March 21, 2008. This holding was adopted by the district judge. Whether defendants can bring a second motion on a theory that the last two issues required exhaustion since they only applied to the new prison is discussed below.
We now arrive at the point of defendants' combined motion to dismiss and for summary judgment.
Motion to Strike Declarations
Plaintiff seeks to strike three reply declarations (Myers, Igbinosa, Duncan) on the basis that the initial declarations filed omitted the "I declare under penalty of perjury..." sentence. When brought to the attention of defendants' counsel, substitute declarations were filed with the inadvertently omitted sentence now in place.
While plaintiff is, of course, correct that unsworn declarations are not admissible on summary judgment, plaintiff posits no legitimate reason why technical errors such as the one at issue cannot be rectified in the absence of bona fide prejudice to plaintiff. The motion to strike is ordered denied.
Defendants contend in this motion to dismiss for failure to exhaust that plaintiff cannot rely on the court's previous holding of a "transferred exhaustion" from SCC to Pleasant Valley for his 5th (prayer oils) and 6th (single cell) claims because plaintiff did not make these claims at SCC, but only Pleasant Valley. While defendants' assertion may be factually accurate, defendants do not address the reasons why they did not make this assertion in the previous exhaustion motion.
As set forth above, defendants made the previous exhaustion dismissal motion on the basis that none of the claims were exhausted, administrative proceedings having been commenced at SCC, but not at Pleasant Valley, prior to the bringing of the federal complaint. However, they did not argue that only some of the claims were Pleasant Valley only claims. The second motion is therefore a seriatim, non-enumerated Fed. R. Civ. P 12(b) motion, i.e., based on a different theory. "'[W]hen a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.'" United States v. Park Place Assoc., Ltd., 563 F.3d 907, 925 (9th Cir. 2009). In this case, the court has decided that plaintiff exhausted administrative remedies. That order is ultimately a ruling on the law, and should not be upset absent satisfactory reasons. Here, defendants posit no reasons to be relieved of the law of the case doctrine. Hence, the motion to dismiss claims 5 and 6 based on lack of exhaustion should be denied.
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, 106 S.Ct. 2548, 2553 (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, 106 S.Ct. at 2552. "[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, 106 S.Ct. at 2553.
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, 106 S.Ct. 1348, 1356 (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, 106 S.Ct. at 1356 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, 106 S.Ct. 2505, 2510 (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, 106 S.Ct. at 1356 (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, 106 S.Ct. at 1356. 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, 106 S.Ct. at 1356 (citation omitted).
On February 24, 2006, 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, 411-12 (9th Cir. 1988).
B. Types of Claims; Status of Defendants
Plaintiff's present claims against defendants located at SCC can only be predicated on a claim for damages as plaintiff is no longer housed in that institution. However, claims against officials at Pleasant Valley can sound in both damages and injunctive relief, assuming that the claims are otherwise appropriate against the named defendants. The problem here is that plaintiff was not very careful in identifying the defendants he desired to sue, and with the exception of Warden Yates, defendants have made no attempt to separate the defendants' activities insofar as they may relate to SCC or Pleasant Valley.
As related above, the operative complaint is the second amended complaint. Plaintiff sued therein the California Department of Corrections, which cannot be sued under the Eleventh Amendment (see Findings and Recommendations of 9/26/07), Secretaries Woodford, Hickman and Tilton. Plaintiff also sued all unknown wardens of every CDCR institution. For obvious reasons, none of these anonymous wardens were served.*fn4 The court did substitute in the warden at plaintiff's present institution, Pleasant Valley-defendant Yates. An answer was filed on behalf of these defendants. (Answer, June 5, 2008).
Plaintiff purported to sue all defendants in their individual and official capacities. As CDCR has undergone quite a bit of leadership change in the past several years, none of the above Secretaries currently hold the position of Secretary, CDCR, and can have no official capacity. Matthew Cate is the present Secretary of CDCR and he will be substituted in this case in his official capacity only. See Fed. R.Civ.P. 25(d). Plaintiff has never sought leave to identify individuals at his former SCC facility as defendants in this action.
Defendants have made no assertion, and do not assert here, that the remaining defendants are somehow not individually linked to plaintiff's allegations at either SCC or Pleasant Valley for purposes of individual liability. Thus, the status of defendants is as follows:
1. Cate: official capacity only;
2. Woodford: individual capacity only;
3. Tilton; individual capacity only;
4. Hickman: individual capacity only;
5. Yates: individual and official capacity (but only for ...