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Rouser v. Tilton

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


July 22, 2010

WILLIAM ROUSER, PLAINTIFF,
v.
JAMES TILTON, ET AL., DEFENDANTS,

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

I. Introduction

Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court are the parties' cross motions for summary judgment.*fn1 Docs. 66, 83.

II. Background

This case is proceeding on the original complaint (Compl.), filed on July 11, 2006, against the defendants who were employed at California State Prison - Sacramento (CSPSac) or Mule Creek State Prison (MCSP). Plaintiff alleges violations of his First Amendment rights in the free exercise of religion, the Religious Land Use and Institutionalized Persons Act (RLUIPA), his ability to access the courts and file inmate grievances and a Fourteenth Amendment equal protection claim.

This is yet another action derived from case CIV S-93-0767 LKK GGH, where plaintiff alleged his ability to practice his Wiccan religion was hampered from 1990 to 1997 at CSP-Sac. On January 13, 2006, the court ordered that plaintiff could file a supplemental complaint regarding the continued violations of the specific rights alleged in the complaint in CIV S-93-0767 LKK GGH, that were now occurring due to his transfer to MCSP and incidents at CSP-Sac occurring after 1999.*fn2 That supplemental complaint was severed and became the instant action.

Plaintiff is not an unfamiliar figure to the undersigned or the Eastern District in general. Since the 1993 action, plaintiff has brought no less than seven actions either again claiming a violation of his First Amendment/RLUIPA rights, or that untoward actions have occurred to him as a result of his litigation notoriety, or some combination of both. The undersigned also recently issued findings and recommendations to dismiss another of plaintiff's cases regarding his ability to practice Wicca at MCSP. See CIV S-07-1107 JAM GGH.

Plaintiff names 26 defendants in this case. The allegations involve a multitude of alleged violations but mostly concern plaintiff's ability to order religious items, access to a pagan chaplain and access to grounds for Wiccan rituals. However, plaintiff does not identify what claims apply to what defendants. Moreover, while plaintiff describes in detail the actions of a few defendants, there is hardly any information concerning a majority of the defendants and it is not entirely clear how they violated plaintiff's constitutional rights. Ultimately, plaintiff has provided a diary-like recounting of his religious practices in both institutions and provided the names of nearly everyone involved in religious life at these facilities. Plaintiff seems to assert that all of these incidents when combined demonstrate a violation of his constitutional rights to practice his religion. However, it was plaintiff's responsibility to demonstrate a violation of his constitutional rights and set forth triable issues of fact using more than mere allegations from his complaint.

Unfortunately, plaintiff's motion for summary judgment and his opposition to defendants' motion for summary judgment provide no more details concerning the defendants or claims. Plaintiff's motion for summary judgment essentially repeats the facts from his complaint and then attaches approximately 270 pages of exhibits. While plaintiff does provide an itemized list of the exhibits, plaintiff does not reference any of the exhibits in his motion or discuss their meaning. It is not the court's responsibility to sift through all of plaintiff's exhibits and find support for his allegations. The court is not in a position to understand the relevance of all the exhibits or speculate as to their meaning and importance.

For the reasons that follow, plaintiff's motion for summary judgment should be denied, defendants' motion for summary judgment should be granted and this case should be closed.

III. Motion for Summary Judgment

Legal Standard for Summary Judgment (Cross Motions)

Burdens on summary judgment motion differ depending on who will carry the burden of persuasion at trial. "As the party with the burden of persuasion at trial, the [moving party] must establish "beyond controversy every essential element of its' [ ] claim. [The non-moving party] can defeat summary judgment by demonstrating the evidence, taken as a whole, could lead a rational trier of fact to find in its favor." Southern California Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir. 2003).

Summary judgment is appropriate when it is demonstrated that there exists "no genuine issue as to any material fact and that the movant is entitled to 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).

Undisputed Facts

The following of defendants' undisputed facts (DUF) are either not disputed by plaintiff, or following the court's review of the evidence submitted, have been deemed undisputed:*fn3

Plaintiff was incarcerated in CSP-Sac from April 1999 until being transferred to MCSP in March 2005. DUF #1. Plaintiff was incarcerated at MCSP from March 2005 until his transfer in June 2007. DUF #2. Plaintiff practices the Khemetic system of Wicca and since 1985 has been a third degree High Priest capable of conducting religious services on his own. DUF #3,4.

CSP-Sac Defendants

Pliler was a former warden at CSP-Sac. DUF #10. Plaintiff alleges that Pliler was aware of problems plaintiff had in placing and receiving orders for religious artifacts. DUF #11.

Rosario was a former chief deputy warden at CSP-Sac, and plaintiff alleges that Rosario was also aware of problems plaintiff had in placing and receiving orders for religious artifacts. DUF #13, 14.

Jackson was the former community resource manager who was responsible for enforcing the policies affecting religious programs. DUF #15. Jackson promised that plaintiff would be permitted to order religious items and be provided the opportunity to practice his religion. DUF #18.

The only allegations against Carlson and Grant are that they failed to process some paperwork that caused plaintiff to miss a Sabbat. DUF #24, 54.

Till was a correctional officer. DUF #32. Plaintiff alleges that Till verbally harassed him and would not allow a person in the prison waiting room to act as best man in plaintiff's wedding. Id.

Hannigan was a correctional officer who did not normally work in plaintiff's area of CSP-Sac. DUF #35. In 2001 Hannigan was in plaintiff's area escorting a group of Enhanced Outpatient Program (EOP) inmates to the chapel. DUF #36. Hannigan was also providing security for the EOP inmates. Id. Plaintiff wanted Hannigan to allow him access to the chapel and to the locked cabinet in the chapel. DUF #39, 43. Hannigan did not think plaintiff was allowed unsupervised access to the chapel and did not allow him in. DUF 38, 39. When Hannigan was instructed by another official to let plaintiff in the chapel, Hannigan complied. DUF #42. Hannigan did not unlock the cabinet because he did not have the key. DUF #43.

The only allegations against Swope, who is a correctional officer, is that he searched the Wiccan altar (a sealed box) that was in another inmates possession and to do so, cut the bottom of the box. DUF #44.

Stewart is a chaplain, and plaintiff alleges another inmate heard Stewart say that Wiccans were not welcome in the chapel. DUF #45.

Hill, Wiley, Goldsmith and Johnson were supervisors of the mailroom. DUF #48, 49, 50, 53. Plaintiff alleges that as supervisors they were responsible for the mail. Id. Plaintiff also alleges that Johnson denied an inmate grievance that plaintiff filed. DUF #52.

Plaintiff alleges that Hamad, as supervisor of academic instruction failed to play Wiccan religious videos on the institutional channel, but played other religious videos. DUF #56. Hamad can only play videos that are provided by the prison chaplain or the community resource manager, not any videos given to her by an inmate. Hamad Declaration at 2. Plaintiff did not actually have the video but wanted to buy it and have it mailed directly to Hamad. Id. Hamad was thus unable to view the video to determine if it was appropriate. Id. Later, Hamad's supervisors stopped broadcasting all religious videos. Id. at 2-3.

MCSP Defendants

Bunnell was the associate warden of housing at MCSP and was responsible for supervising and monitoring compliance with policies involving religion. DUF #60.

Page was the associate warden of central services and was responsible for rules, regulations and policies effecting religion. DUF #65.

Plaintiff alleges that Stacy, a correctional officer returned one of plaintiff's packages to the sender because it did not contain the proper labels indicating that the sender is a business or a description of the items in the package. DUF #66, 67, 68. Packages that do not meet these criteria are returned to the sender. DUF #67.

Pogue was a correctional officer. DUF #69. There was a grassy area between two buildings that was considered restricted for use by inmates unless they received permission from correctional staff. DUF# 70. Pogue did not allow plaintiff to use this area. DUF #69. Unbeknownst to Pogue, non-defendant Captain Steele allowed plaintiff and other Wiccan inmates to use this area. DUF #71.

The only allegations against Castro are that he refused, at plaintiff's urging, to call a supervisor to have a chaplain return from another facility during a Sabbat and that Castro refused to send one of plaintiff's envelopes that plaintiff admits was an improper envelope. DUF #72; Compl. at 22.

Plaintiff contends that Reyes did not process his administrative grievance as an emergency grievance and as a result plaintiff missed a Sabbat. DUF #73.

Plaintiff accuses Espinoza of not responding to an inmate grievance. DUF #75. Plaintiff states that Kanipe, the former litigation coordinator lied in a memo, saying plaintiff had everything he needed for religious services, even though red and blue candles were not allowed until a later date. DUF #87.

Barham was the Protestant chaplain at MCSP. DUF #77. Plaintiff concedes that Barham approved of eight ritual observances for Wiccan Holy Days. DUF #84.

Schwarzenegger is Governor of California and Tilton and Hickman were Secretaries of California Department of Corrections and Rehabilitation (CDCR). DUF #89, 91, 92. Plaintiff alleges these defendants are liable in a supervisorial capacity. Id.

Disputed Facts

The parties do not generally dispute the above facts, rather plaintiff feels that the above actions violated his constitutional rights.

Analysis

1. Preliminary Matters

Injunctive Relief Plaintiff seeks injunctive relief regarding his claims at CSP-Sac and MCSP.

However, it is undisputed that plaintiff is no longer incarcerated at either of those facilities. Therefore, plaintiff's claims for injunctive relief are moot as he has not provided any evidence that he may be transferred back to either facility. See Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991) (per curiam) (transfer to another prison by prisoner challenging conditions of confinement renders moot any request for injunctive relief absent evidence of reasonable expectation that prisoner will be transferred back). Thus, the claims hereafter may only be reviewed against all defendants in their individual capacities.

Supervisory Liability (Individual Capacity)

Plaintiff alleges that the following defendants are liable due to their supervisorial positions: Hill, Wiley, Goldsmith, Tilton, Hickman, Espinoza, Reyes, Rosario, Pliler, Schwarzenegger and Johnson.

Supervisory personnel are generally not liable under § 1983 for the actions of their employees under a theory of respondeat superior and, therefore, when a named defendant holds a supervisorial position, the causal link between him and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations concerning the involvement of official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

Plaintiff has set forth no facts linking these defendants to the alleged constitutional violations. Plaintiff simply concludes that these defendants were aware of what was transpiring and therefore are liable. As plaintiff's conclusory allegations are insufficient these defendants should be dismissed.

2. Access the Courts

Plaintiff contends that defendants violated his right to access the courts by destroying inmate grievances and harassing him for using the court system.

Prisoners have a constitutional right to be afforded "a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts." Lewis v. Casey, 518 U.S. 343, 351, 116 S.Ct. 2174 (1996). This right applies to prisoners' challenges to their convictions or sentences or conditions of confinement. Id. at 354. Prison officials may not "actively interfer[e] with inmates' attempts to prepare legal documents or file them." Id. at 350. To establish a claim for any violation of the right of access to the courts, prisoners must prove an actual injury by showing that their efforts to pursue a non-frivolous claim concerning their conviction or conditions of confinement has been hindered. Id. at 350-55.

In the instant case, plaintiff has presented no evidence that he was hindered trying to purse a claim in another non-frivolous case. Plaintiff simply makes general statements that his ability to pursue other litigation was hampered without citing any specific facts. Plaintiff merely states he was trying to send an envelope to Judge Karlton regarding CIV S-93-0767 LKK GGH. Plaintiff has failed to meet his burden to show a constitutional violation.

With regard to plaintiff's claims concerning his inmate appeals, plaintiff is informed that prisoners do not have a "separate constitutional entitlement to a specific prison grievance procedure." Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003), citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). Even the nonexistence of, or the failure of prison officials to properly implement, an administrative appeals process within the prison system does not raise constitutional concerns. Mann v. Adams, 855 F.2d at 640. See also, Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993); Flick v. Alba, 932 F.2d 728 (8th Cir. 1991); Azeez v. DeRobertis, 568 F.Supp. 8, 10 (N.D.Ill. 1982) ("[A prison] grievance procedure is a procedural right only, it does not confer any substantive right upon the inmates. Hence, it does not give rise to a protected liberty interest requiring the procedural protections envisioned by the fourteenth amendment"). Specifically, a failure to process a grievance does not state a constitutional violation. Buckley, supra. State regulations give rise to a liberty interest protected by the Due Process Clause of the federal constitution only if those regulations pertain to "freedom from restraint" that "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 2300, 132 L.Ed.2d 418 (1995).*fn4

Thus, summary judgment should be granted on these claims as plaintiff has failed to meet his burden in showing any actionable violations.

3. RLUIPA

The Religious Land Use and Institutionalized Persons Act of 2000 provides in part:

No 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 demonstrates that imposition of the burden on that person-(1) is in furtherance of a compelling government interest; and

(2) is the least restrictive means of furthering that compelling government interest.

42 U.S.C. § 2000cc-1.

As discussed above, plaintiff's claims for injunctive relief are moot, therefore the sole issue for his claims under RLUIPA concern monetary damages from defendants in their individual and official capacities. However, monetary damages are not recoverable under RLUIPA.

Individual Capacity

RLUIPA creates a cause of action for suits against "a government," which is defined, in pertinent part, as a "State, county, municipality, or other governmental entity," and "branch, department, agency, instrumentality, or official of an entity listed in [the previous clause]," and "any other person acting under color of state law." 42 U.S.C. § 2000cc-5(4) (emphasis added). Despite this language, several Circuit Courts have held that RLUIPA does not create a cause of action for damages against officials in their individual capacity. See Rendelman v. Rouse, 569 F.3d 182, 187-89 (4th Cir. 2009); Nelson v. Miller, 570 F.3d 868, 886-89 (7th Cir. 2009); Sossamon v. Lone Star State of Texas, 560 F.3d 316, 327-29 (5th Cir. 2009); Smith v. Allen, 502 F.3d 1255, 1271-75 (11th Cir. 2007). These Circuits concluded that Congress enacted RLUIPA pursuant to the Spending Clause and did not indicate with sufficient clarity an intent to condition the states' receipt of federal funds on the creation of an individual capacity action for damages; moreover, a contrary reading of the statute would raise serious constitutional concerns about the extent of Congress's authority under the Spending Clause. See Rendelman, 569 F.3d at 187-89; Nelson, 570 F.3d at 887-89; Sossamon, 560 F.3d at 327-29; Smith, 502 F.3d at 1271-75.

The Ninth Circuit has not yet addressed this issue.*fn5 However, the Ninth Circuit has upheld the constitutionality of RLUIPA as an enactment under the Spending Clause. See Mayweathers v. Newland, 314 F.3d 1062, 1066-67 (9th Cir. 2002). Thus, this court adopts the reasoning of the Fourth, Fifth, Seventh, and Eleventh Circuits in the above cases and concludes that plaintiff cannot assert a RLUIPA claim for damages against defendants in their individual capacities. See Rupe v. Cate, 688 F.Supp.2d 1035, 1046 (E.D. Cal. 2010); Harris v. Schriro, 652 F.Supp.2d 1024, 1028-30 (D. Ariz., Aug.11, 2009) (dismissing individual capacity claims for damages under RLUIPA based on out-of-circuit authority); Pogue v. Woodford, 2009 WL 2777768, *9 (E.D. Cal., August 26, 2009); but see Guru Nanak Sikh Society of Yuba City v. County of Sutter, 326 F. Supp.2d 1140, 1162 (E.D. Cal. 2003)*fn6 (court noted that the recovery of damages under RLUIPA is an open question and only granted plaintiff nominal damages of one dollar against each defendant); Sokolsky v. Voss, 2009 WL 2230871, *5-6 (E.D. Cal., July 24, 2009) (court found on a motion to dismiss that defendants in their individual capacities were not entitled to qualified immunity regarding a Kosher food claim). Therefore, plaintiff's RLUIPA claims for damages against defendants in their individual capacities should be dismissed.

Official Capacity

The next issue is whether plaintiff can assert a RLUIPA claim for damages against defendants in their official capacities. "[A] suit against a state official in his or her official capacity is... no different from a suit against the State itself." Will v. Michigan Dep't. of State Police, 491 U.S. 58, 71 (1989). The Eleventh Amendment prohibits federal jurisdiction over claims against a state unless the state has consented to suit or Congress has abrogated its immunity. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 99-100 (1984). The state's consent to suit, however, must be unequivocally expressed. Id.

While there is a split of authority between the other circuits regarding whether a state's receipt of prison funds constitutes a waiver of its sovereign immunity from suits seeking monetary damages, the Ninth Circuit recently issued an opinion concerning this issue. On April 5, 2010, the Ninth Circuit held in Holley v. California Dept. Of Corrections, 599 F.3d 1108, 1114 (9th Cir. 2010), that the "Eleventh Amendment bars [] suit for official-capacity damages under RLUIPA." Id. The Ninth Circuit noted the following while referring to the "appropriate relief"*fn7 language in the RLUIPA statute:

This statutory text does not "unequivocally express[ ]" a waiver of sovereign immunity. The phrase "appropriate relief" does not address sovereign immunity specifically at all, let alone "extend [a waiver of sovereign immunity] unambiguously to... monetary claims" in particular. We join five of the six circuits to have considered this question in holding that "RLUIPA's 'appropriate relief' language does not unambiguously encompass monetary damages so as to effect a waiver of sovereign immunity from suit for monetary claims..."

Id. at 1112 (internal citations omitted).

Therefore, plaintiff's claims against defendants in their official capacities are barred by the Eleventh Amendment.

4. Free Exercise/ Equal Protection

The only issues remaining are if plaintiff is entitled to monetary damages for alleged violations of his free exercise rights and the equal protection clause. The court is not entirely certain how to review these claims. As stated above, plaintiff has named 26 defendants and not identified which claims are connected to which defendants. In addition, there are very few allegations against the majority of these defendants and plaintiff has provided very little support for the allegations other than 270 pages of exhibits that are not referenced in his motions.

Legal Standard

While inmates retain their First Amendment right to the free exercise of religion, a regulation impinging on an inmate's constitutional rights passes muster so long as it is reasonably related to a legitimate penological interest. Henderson v. Terhune, 379 F.3d 709, 712 (9th Cir. 2004), citing O'Lone v. Estate of Shabazz, 482 U.S. 342, 348, 107 S.Ct. 2400 (1987) and Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254 (1987). The Turner test includes four factors to determine if a prison regulation violates a prisoner's constitutional rights. "First, there must be a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it, and the governmental objective itself must be a legitimate and neutral one. A second consideration is whether alternative means of exercising the right on which the regulation impinges remains open to prison inmates. A third consideration is the impact accommodation of the asserted right will have on guards, other inmates, and the allocation of prison resources. Finally, the absence of ready alternatives is evidence of the reasonableness of a prison regulation." Allen v. Toombs, 827 F.2d 563, 567 (9th Cir. 1987) (citing Turner, 482 U.S. at 89-91); see also, Malik v. Brown III, 71 F.3d 724, 728-729 (9th Cir.1995).

The "Equal Protection Clause of the Fourteenth Amendment commands that no State shall 'deny to any person within its jurisdiction the equal protection of the laws,' which is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439, 105 S.Ct. 3249 (1985).

"The Equal Protection Clause entitles each prisoner to 'a reasonable opportunity of pursuing his faith comparable to the opportunity afforded fellow prisoners who adhere to conventional religious precepts.'" Shakur v. Schriro, 514 F.3d 878, 891 (9th Cir. 2008) (quoting Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972)). The Turner test described above applies also to Equal Protection claims arising out of prison. Shakur, 514 F.3d at 891.

Furthermore, the Civil Rights Act under which many of the claims were filed provides as follows:

Every person who, under color of [state law]... subjects, or causes to be subjected, any citizen of the United States... to the deprivation of any rights, privileges, or immunities secured by the Constitution... shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). "A person 'subjects' another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

Discussion

While plaintiff listed many defendants in the complaint, there are only the barest allegations against many of them.

Plaintiff alleges that Carlson forgot to process paperwork, and then made an excuse. Compl. at 17, Plaintiff's MSJ at 2.

Plaintiff alleges that Stacey returned some items that had been mailed to plaintiff, because Stacey believed they were not from an approved vendor.

Plaintiff states that Pogue disrupted some services and filed a report that several Wiccan members burned a cross that upset other inmates, when in fact, no other inmates were upset. Plaintiff's MSJ at 6. Plaintiff also states that Pogue would not let Wiccans onto an area unless they had the proper form with them that allowed them to be there. Plaintiff does not indicate how many times this occurred.

It is alleged that Till repeatedly called plaintiff names and prevented someone from participating in plaintiff's wedding. Compl. at 16.

The only allegations against Stewart are that another inmate told plaintiff that Stewart stated that Wiccans were not welcome in the Chapel. Compl. at 15.

Plaintiff contends that Hannigan would not let plaintiff into the chapel and would not unlock a cabinet. It is undisputed that this was the only interaction between plaintiff and Hannigan. When Hannigan was instructed by another official to let plaintiff in the chapel, Hannigan complied. Hannigan insisted that he did not have a key to the cabinet, but plaintiff maintains that other prison officials in Hannigan's position had keys to the cabinet.

There are very few allegations against Page, who is an associate warden. In the complaint, plaintiff states that he requested to be able to perform religious services as the other religions are allowed, but Page denied the request. Plaintiff's further pleadings do not aid in shedding any light on plaintiff's request or what Page denied.

It is alleged that Grant failed to process some paperwork.

The only allegation against Swope is that he searched the Wiccan alter (a sealed box) that was in another inmates possession and to do so, cut the bottom of the box.

The only allegations against Castro are that he refused, at plaintiff's urging, to call a supervisor to have a chaplain return from another facility during a Sabbat and that Castro refused to send one of plaintiff's envelopes that plaintiff admits was an improper envelope.

Plaintiff states that Kanipe, the former litigation coordinator lied in a memo, saying plaintiff had everything he needed for religious services, even though red and blue candles were not allowed until a later date.

Jackson, the community resource manager, was responsible for enforcing the policies effecting religious programs. Jackson promised that plaintiff would be permitted to order religious items and be provided the opportunity to practice his religion, but plaintiff asserts that problems persisted. However, these problems were not attributed to Jackson. Plaintiff also alleges that Jackson was responsible for preventing a volunteer chaplain from conducting services. Other than this conclusory statement, plaintiff provides no other details how Jackson interfered with the volunteer chaplain.

Barham was the Protestant chaplain at MCSP. Plaintiff concedes that Barham approved of eight ritual observances for Wiccan Holy Days. Plaintiff also discusses how Barham aided helping the mail problems so that plaintiff could more easily order religious items. Compl. at 20. Plaintiff does allege that Barham once stated that he was too busy to deal with plaintiff's problems. Plaintiff next alleges that on October 31, 2005, Barham informed him that all Pagan religious orders would be suspended until the operations manual was updated. Plaintiff alleges that as a result he could not acquire certain religious items and for 18 weeks he was only able to have two Thursday services. In plaintiff's motion for summary judgment he states that it was almost a year before he was able to order religious items again, though plaintiff's own exhibits indicate he was able to place an order on July 31, 2006. Plaintiff's MSJ at 19. Plaintiff's list of exhibits refers to an exhibit describing Barham's order, yet the exhibit is not attached. Plaintiff's MSJ at 20, Exh. zzz. Assuming plaintiff's allegations are true, it is still not clear how the ability to practice his religion was burdened. Plaintiff was able to conduct ritual observances on the following Holy Days during the alleged year long suspension: 12/23/05-Yul, 2/2/06-Ibolg, 3/21/06-Eostre, 5/1/05-Beltaine. Compl., Part 4, at 30.

Bunnell was the associate warden of housing at MCSP and was responsible for supervising and monitoring compliance with policies involving religion. Plaintiff alleges that he met with Bunnell and a program was outlined to correct prior problems and allow plaintiff to acquire necessary religious items. Compl. at 20. Plaintiff later states that Bunnell grew tired of plaintiff's correspondence and instructed plaintiff to deal with Barham. Id. Plaintiff also states that the procedures that Bunnell provided were not fully complied with by other defendants.*fn8

Hamad was supervisor of academic instruction and plaintiff alleges that Hamad failed to play Wiccan religious videos on the institutional channel, but played other religious videos. While this could be construed as a viable equal protection claim, it is undisputed that Hamad refused to play plaintiff's video, because prison restrictions prevented her from playing videos unless they were supplied by the prison chaplain or the community resource manager. These are reasonable restrictions to prevent every inmate from submitting a video to be played. In addition, plaintiff did not have possession of the video so Hamad was unable to view it to make a determination if it was appropriate. Regardless, all religious videos were eventually ceased from being broadcast, so all religions were thus treated the same.

Despite the uncertainty of which claims are directed against which defendants, plaintiff's free exercise and equal protection claims fail. Plaintiff has failed to link the majority of these defendants to any constitutional deprivation. Looking at plaintiff's pleadings as a whole and reviewing all of his allegations, plaintiff argues that prison officials have issued memoranda and created procedures to accommodate plaintiff's needs, but the entire prison apparatus has not met his expectations in carrying out the procedures.

A review of plaintiff's complaint shows that a primary concern to plaintiff is his ability to order religious items. It is undisputed that defendants created a plan to allow plaintiff to order these goods. It is undisputed that some goods arrived, while others were held for a time until determined not be a security threat and provided to plaintiff. Compl. at 11. Plaintiff states that for 2-3 months a procedure was set in place that worked well but then that procedure was changed and there are issues with the mailroom and the receiving and releasing department. Plaintiff has failed to set forth sufficient allegations concerning how the issues with delivery of items burdened his religious practices. While it is clear that certain religious ceremonies could not be completed on time due to problems with the mailroom, defendants went to great length to accommodate plaintiff. Plaintiff has failed to show that his ability to receive religious items by the mail was anything more than a sporadic and short term inconvenience which is not a constitutional violation. See Canell v. Lightner, 143 F.3d 1210, 1215 (9th Cir. 1998).

With respect to plaintiff's claims regarding a pagan chaplain and use of certain grounds for pagan rituals, it is undisputed that a chaplain and the grounds had been provided for Wiccans. Plaintiff merely cites to instances when the grounds were restricted or a chaplain was not provided. Plaintiff has failed to set forth any facts that these were more than isolated instances or that they burdened his ability to practice his religion or that any other religious group had full access to everything they requested.

It is important to note that although prisoners are entitled to equal protection, defendants are not responsible for duplicating every religious benefit provided to other religions so that all religions are treated exactly the same. As the Supreme Court stated in Cruz v. Beto, 405 U.S. 319, 322, n.2, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972):

We do not suggest... that every religious sect or group within a prison-however few in number-must have identical facilities or personnel. A special chapel or place of worship need not be provided for every faith regardless of size; nor must a chaplain, priest, or minister be provided without regard to the extent of the demand. But reasonable opportunities must be afforded to all prisoners to exercise the religious freedom guaranteed by the First and Fourteenth Amendments without fear of penalty.

Application of the standard set forth in Cruz does not require "strict numerical analysis" or "create a system of ratios or quotas." Thompson v. Commonwealth of Ky., 712 F.2d 1078, 1081 (6th Cir. 1983) (upholding grant of summary judgment on Muslim inmates' request for access to chapel comparable to Christian inmates).

Under the Cruz standard, described above, defendants must provide plaintiff a "reasonable opportunity" to practice his religion in a manner "comparable" to the other inmates. The facts before the undersigned show that plaintiff was given a wide latitude in the practice of his religion and prison officials went to great lengths to accommodate plaintiff.

For all these reasons, defendants' motion for summary judgment should be granted and plaintiff's First and Fourteenth Amendment claims should be dismissed.

Qualified Immunity

Because the court has found that the conduct alleged by plaintiff does not state a constitutional deprivation, the court need not address defendants' argument for qualified immunity.

Plaintiff's Motion for Summary Judgment

As the court is granting defendants' motion for summary judgment and for the reasons discussed above, plaintiff's motion for summary judgment is denied.

Accordingly, IT IS HEREBY RECOMMENDED that:

1. Plaintiff's April 30, 2009, motion for summary judgment (Doc. 66) be denied;

2. Defendants' December 11, 2009, motion for summary judgment (Doc. 83), be granted and this case closed.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within seven days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).


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