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Gilbert Saldana v. T. Borem

February 24, 2012

GILBERT SALDANA,
PLAINTIFF,
v.
T. BOREM, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Honorablelarryalanburns United States District Judge

ORDER ADOPTING IN PART AND REJECTING IN PART REPORT AND RECOMMENDATION (DOCKET NUMBER 30); ORDER GRANTING MOTION TO DISMISS (DOCKET NUMBER 17); AND ORDER DENYING MOTION FOR ENTRY OF DEFAULT

On March 28, 2011, Plaintiff Gilbert Saldana, a prisoner proceeding pro se and in forma pauperis, filed his complaint bringing a claim under 28 U.S.C. § 1983. Specifically, Saldana alleges Defendants violated his free exercise rights under the First amendment and the Religious Land Use and Institutionalized Persons Act (RLUIPA), his First Amendment right to freedom of expression, his equal protection rights under the Fourteenth Amendment, and his due process rights under the Fifth and Fourteenth Amendments.

Defendants Builteman, Madden, Ochoa, and Hurtado then moved to dismiss all claims against all Defendants. After receiving briefing Judge McCurine issued his report and recommendation (the "R&R"), in which he recommended dismissing some but not all claims, Saldana filed objections, to which Defendants filed a reply.

A district court has jurisdiction to review a Magistrate Judge's report and recommendation on dispositive matters. Fed. R. Civ. P. 72(b). "The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Id. "A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). The Court reviews de novo those portions of the R&R to which specific written objection is made. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). "The statute makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." Id. When no objections are filed, the Court need not review the report and recommendation de novo. Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005).

The parties did not object to the factual discussion set forth in the R&R, which the Court therefore ADOPTS. The facts and legal standards are set forth in the R&R, and the Court will not recite them in full here.

The dispute concerns a large, partially completed drawing Saldana had in his cell. The drawing, attached as an exhibit to the complaint,*fn1 depicts a scene involving three people in Aztec-style costume. One woman lies decapitated with a pool of blood near her neck. The second woman is bare-chested and wears a headdress, sandals, ornaments, and a small loincloth, and is shown kneeling, with one bare breast visible. A powerfully-built man, also clad in a loincloth, sandals and headdress, stands behind her, grasping her hair from behind, and holding a club or sword at waist level. Saldana maintains this is a religious drawing which he is permitted to possess, under both the California Code of Regulations and RLUIPA. The complaint contains a detailed attempt to explain the myth this drawing depicts, which involves the killing of an earth goddess, and the decapitation of the moon goddess in revenge, by the sun god. (Compl., 10--12.) Saldana has attached his other drawings, which were not confiscated. Several depict scantily-clothed figures of people or symbols of violence or death (such as skulls or weapons), but only the confiscated drawing depicts actual nudity, violence, or threatened violence.

Two prison officers found this drawing in Saldana's cell. During the same search they also found several examples of what Saldana admits was contraband pornography. The officers confiscated the contraband pornography and the drawing. The explanation given at the time was that it depicted female frontal nudity, which in fact it does. Saldana's argument, however, is that it has religious value is therefore not contraband under theFebruary 24, 2012 California Code of Regulations. The officers did not confiscate other religious drawings.

Saldana attempted to get his drawing back through the prison grievance process, but was unsuccessful. He argues the officers who searched his cell violated his rights by depriving him of his religious drawing, and also framed him by collating all the materials together instead of keeping them separate and considering the drawing separately from the admitted pornography, but in light of the other religious materials. He argues that because the pornography was kept separately from the drawing, and used only for "entertainment" purposes (Compl., 2), its presence in his cell sheds no light on the nature of the drawing.

He also argues the officials who denied his grievance and appeals violated his rights by not allowing him to possess his religious drawing, by considering the confiscated materials together instead of separately as he thinks they should have, and by treating him differently than other prisoners. Other prisoners, he now points out, were permitted to look at a documentary about babies which showed naked infants and bare-chested women, and copies of National Geographic which showed several naked or partially-naked people in tribal environments, injured people, and other images he thinks are analogous. His theory is that these officials should have corrected the alleged violation, and that their failure to do so was itself a violation.

The R&R recommends dismissing all claims against Defendants Madden, Builteman, and Ochoa-but not Wilkins or Foston-based on their handling of his grievance or appeals. It recommends denying Defendants' motion to dismiss Saldana's equal protection claim against Defendant Borem. And it recommends granting Defendants' motion to dismiss Saldana's due process claim.

Modifications to the R&R

The Court generally agrees with the R&R, but finds it has occasionally applied incorrect standards, or incorrectly considered some of the facts to reach the conclusion that some claims could survive.

Although the R&R recommended dismissal of claims against most Defendants, it recommended not dismissing those same claims against Defendants Foston and Wilkins, simply because they have not yet answered and are the subject of a motion for entry of default. But the Court is not free to do this. Under 28 U.S.C. § 1915(e)(2) and 1915A(b), the Court is required to dismiss, sua sponte, the complaint of any prisoner or anyone else proceeding in forma pauperis to the extent the complaint fails to state a claim. Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc). In other words, as soon as it becomes clear the complaint fails to state a claim against any Defendant, the Court must dismiss those claims regardless of whether the Defendants have answered or appeared. The Court therefore REJECTS the R&R's recommendation that the motion to dismiss be denied as to Defendants Wilkins and Foston. Rather, all claims will be dismissed as to these Defendants to the same extent as to other Defendants.

The only claim the R&R found Saldana had adequately pleaded was his equal protection claim against Defendants Borem and Hurtado. The R&R correctly identifies the elements of an equal protection claim, but its recitation of the facts do not support such a finding. The R&R found that Saldana had alleged facts showing he was treated differently than others because they were allowed to view movies depicting bare-chested women and receive copies of National Geographic magazine that occasionally depicted naked or injured people. The R&R also found Saldana had ...


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