FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prison inmate proceeding pro se with an action alleging a violation of his First Amendment right to practice his religion and his rights under the Religious Land Use and Institutionalized Person Act (RLUIPA). In the complaint, submitted under the penalty of perjury, plaintiff alleges that defendant Cruz violated plaintiff's religious dietary needs even though his file contained a number of chronos approving the provision of a religious diet. He also alleges that only Kosher and vegetarian diets are available for religious needs at CSPSolano, yet the tenets of his Rastafarian faith require him to eat a vegan diet. Compl. (Docket No. 1-2) at 5.*fn1 Defendants Ward and Hunter interviewed plaintiff about his complaints and defendants Brown and Sisto denied his grievance about the matter. These events occurred during 2006 and 2007.
Plaintiff also alleges that on November 9, 2006, defendant Boyden asked plaintiff to remove his religious headwear. Defendant Singh denied plaintiff's request to be allowed to wear his religious headwear, while defendant Sisto allowed him to wear it in certain areas of the prison and at certain times. Id.
Defendants Cruz, Ward, Calvo (nee Hunter), Brown and Sisto have filed a motion for summary judgment on the religious diet issue. Plaintiff has filed a cross-motion for summary judgment on both claims.
Defendants object to plaintiff's cross-motion for summary judgment on several grounds. One is dispositive. In the order resetting the schedule for the litigation, the court directed that dispositive motions be filed by December 15, 2008. See Docket No. 30. Defendants timely filed their motion. Plaintiff then requested and received three extensions of time in which to file an opposition or objections to the motion. Docket Nos. 34, 36, 37, 38, 40, 41. He did not ask for additional time in which to file his own dispositive motion. Because the motion is not timely, the court will recommend that it be denied. The court will, however, construe the "motion" as an opposition to defendants' motion, given that it followed multiple requests to file such an opposition.
II. Summary Judgment Standards
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 January 30, 2008, 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), cert. denied, 527 U.S. 1035 (1999), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).
New regulations governing inmate participation in a religious diet program became effective on April 24, 2006. Defendants' Motion For Summary Judgment (DMSJ), Ex. 3. Under these provisions,
(a) Any inmate who claims to require a religious diet shall be responsible for completing a CDCR Form 3030 . . ., Religious Diet Request . . ., and submitting it to the appropriate institution's Chaplain. . . .
(1) Interview the inmate to explain the two religious diet options (including what the meals consist of) and determine the inmate's ...