The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS R E C O M M E N D I N G G R A N T I N G DEFENDANTS' MOTION TO DISMISS
OBJECTIONS DUE WITHIN THIRTY DAYS
Plaintiff Michael Mootry ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983, filed this action on July 20, 2009. This action is proceeding on the first amended complaint, filed May 24, 2010, against Defendants Flores, Hedgpeth, Billings, Tarnoff, Lewis, Grissom, Wegman, and Cabrerra for interfering with Plaintiff's exercise of his religious beliefs in violation of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Religious Land Use and Institutionalized Persons Act ("RLUIPA"). On June 10, 2011, Defendants Cabrera, Flores, Grissom, Hedgpeth, Lewis , Tarnoff, and Wegman filed a motion to dismiss. Plaintiff filed an opposition on July 29, 2011, and Defendants filed a reply on September 6, 2011. On October 31, 2011, following the issuance of an order for the United States Marshal to re-serve the complaint and summons, Defendant Billings waiver of service was returned executed.
II. Complaint Allegations
Plaintiff brings this action against Defendants Flores, Hedgpeth, Billings, Tarnoff, Lewis, Grissom, Wegman, and Cabrera seeking declaratory and injunctive relief, and compensatory and punitive damages. Plaintiff, a devout and practicing Muslim, arrived at Kern Valley State Prison ("KVSP") in June of 2006. On March 2008, Plaintiff filed an inmate appeal alleging that his rights to exercise his religion were being violated. The appeal was screened out by Defendant Billings stating that it was a request for information, not an appeal. Plaintiff appealed the rejection and Defendant Billings again screened out his appeal for the same reason.
Plaintiff objected stating that Defendant Billings was attempting to keep him from exhausting his appeal and mailed the form to the Inmate Appeals Branch for Director's Level review. The appeal was returned stating it appeared that it may have been improperly rejected. On August 4, 2008, Plaintiff was asked by Defendant Tarnoff to resubmit the appeal, which he did.
Defendant Wegman interviewed Plaintiff on September 23, 2008, for the first level response. Defendant Cabrera was also present. Defendant Wegman partially granted Plaintiff's appeal stating that KVSP does not allow Muslim inmates to attend Jumu'ah prayer services due to the lack of a Muslim chaplain or volunteers. Although services are scheduled for Friday, they are never held. Defendants Grissom and Wegman signed off on the appeal.*fn1 Plaintiff received a second level response from Defendant Lewis on December 5, 2008. The response stated that Defendant Tarnoff had been assigned to investigate the appeal and a thorough investigation had been conducted. Defendant Cabrera had informed Defendant Tarnoff that outside volunteers are available to conduct services, and a Jewish chaplain had been hired, but he does not work on Fridays due to religious reasons. Defendant Cabrera further indicated that volunteer religious personnel conduct services when they are available. Defendant Lewis indicated that KVSP was in the process of hiring additional religious personnel.
On December 28, 2008, Plaintiff filed his Director's Level appeal. The appeal was denied on March 9, 2009, stating that KVSP only employed one full-time chaplain making it difficult to meet the needs of the various religious groups and that interviews to fill the vacant chaplain position had been completed and hiring was anticipated. Volunteers had been providing coverage, but had been discontinued for personal reasons.
Plaintiff alleges that Defendants intentionally participated in the delay in hiring a Muslim chaplain and refused to allow reasonable accommodation of an inmate minister out of prejudice against Muslims. KVSP fired the previous Muslim chaplain in October 2007, and he filed a civil lawsuit alleging discrimination and retaliation. A Muslim chaplain was not provided until April 2009. During the time inmates were without a Muslim chaplain Jumu'ah, Ta'alim, and Ramadan services were sometimes allowed with supervision.
By March 2008, Defendant Flores, head of religious programing on the yard, and Defendant Hedgpeth, had completely disallowed all Muslim religious services and no longer allowed Muslim inmates to receive prayer oil. After inmates appealed, Defendants Hedgpeth and Flores had Christian chaplains or volunteers conduct services. These volunteers discontinued their services after prison guards, under the direction of Defendant Cabrera, began intentionally delaying services by not allowing Muslim inmates go to the chapel. The services would overlap making it difficult for the Christian chaplains to conduct their own services. The volunteers discontinued their services.
Around the time Plaintiff filed his initial appeal a Jewish chaplain was hired to minister to the Jewish inmates and Muslim population, although a majority of inmates were Muslim. Plaintiff's request for the reasonable accommodation of an inmate minister was ignored. From 2006 until March 2008, an inmate minister was allowed to conduct Muslim services in the absence of a chaplain and volunteers. During the thirty days of Ramadan unsupervised services were allowed to be conducted for two hours by an inmate minister, and on June 6, 2008, an inmate minister was allowed to conduct Jumu'ah services.
During this time period inmates were allowed to vote for and be represented by the Mens Advisory Counsel. Muslim inmates were the only class of people to be excluded from the right to be represented by an appointed minister.
III. Motion to Dismiss Legal Standard
In considering a motion to dismiss for failure to state a claim, the court generally considers only the pleadings and must accept as true the allegations in the complaint. Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006); Shaver v. Operating Engineers Local 428 Pension Trust Fund, 332 F.3d 1198, 1201, 1203 (9th Cir. 2002). A court may consider evidence that the complaint relies on, where the complaint refers to a document that is central to the complaint and no party questions the authenticity of the document. Marder, 450 F.3d at 448; see United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). Additionally, the court is to "construe the pleading in the light most favorable to the party opposing the motion, and resolve all doubts in the pleader's favor. Hebbe v. Pliler, 627 F.3d 338, 340 (9th Cir. 2010). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Hebbe, 627 F.3d at 342.
A motion to dismiss for failure to state a claim is properly granted where the complaint lacks "a cognizable legal theory" or "sufficient facts alleged under a cognizable legal theory." Conservation Force v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011) (quoting Balistreri v. Pacifica Police Dep't., 901 F.2d 696, 699 (9th Cir. 1988)). There are two requirements to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6). While accepting factual allegations in the complaint as true, the court is not required to accept legal conclusions as true, and the factual allegations must state a plausible claim for relief. Maya v. Centex Corp., __ F.3d __, WL 4381864, *3 (9th Cir. 2011).
A. Defendants' Motion to Dismiss
Defendants bring this motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) on the grounds that 1) Plaintiff cannot recover damages or injunctive relief under RLUIPA; 2) Plaintiff failed to state facts demonstrating that Defendants Tarnoff, Lewis, Grissom, Wegman, or Cabrera participated in conduct that deprived Plaintiff of his rights under RLUIPA or the U. S. Constitution;
3) Plaintiff failed to state facts to demonstrate that Defendants discriminated against Plaintiff in violation of the Equal Protection Clause; and 4) Defendants are entitled to qualified immunity because they violated no constitutional or statutory right and their conduct was reasonable.
Defendants argue that Plaintiff may not bring suit against Defendants seeking damages under RLUIPA. Although the Ninth Circuit has not addressed the issue of whether a RLUIPA claim can be brought against a defendant in his individual capacity, courts that have considered the issue have not permitted suits against individuals in their individual capacities under RLUIPA and district courts in the Ninth Circuit have ...