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Eric Wilton Burton v. Ken Clark

August 2, 2012

ERIC WILTON BURTON,
PLAINTIFF,
v.
KEN CLARK, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER GRANTING DEFENDANT'S MOTION TO STRIKE PLAINTIFF'S SURREPLY (ECF NO. 61) FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BE GRANTED (ECF No. 53) OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS

Findings and Recommendations

I. Background

A. Procedural History

Plaintiff Eric Wilton Burton ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's first amended complaint against Defendant Ken Clark for violation of the Free Exercise Clause of the First Amendment and the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"). On January 17, 2012, Defendant Clark filed a motion for summary judgment. Def.'s Mot. Summ. J., ECF No. 53. Plaintiff filed an opposition on January 27, 2012. ECF No. 56. On January 31, 2012, Defendant filed a reply. ECF No. 57.

On July 12, 2012, Plaintiff was provided the opportunity to file a supplemental opposition to Defendant's motion for summary judgment. ECF No. 65. The Court provided this opportunity in 3 light of the recent decision in Woods v. Carey, Nos. 09-15548, 09-16113, 2012 WL 2626912, at *5 4 (9th Cir. Jul. 6, 2012). Plaintiff must be provided with "fair notice" of the requirements for opposing 5 a motion for summary judgment at the time the motion is brought, and the notice given in this case 6 over two years prior does not suffice. Id. On July 24, 2012, Plaintiff filed his response. ECF No. 7 66. Plaintiff states that he will rely upon his complaint and all other filings. The Court construes 8 this as Plaintiff's notice that he intends to proceed with his opposition filed on January 27, 2012, in 9 which Plaintiff opposed Defendant's motion and generally reasserted his pleadings set forth in his complaint. Pl.'s Opp'n 2:28, ECF No. 56. Thus, the matter is submitted pursuant to Local Rule 230(l).

B. Defendant's Motion to Strike

On February 17, 2012, Plaintiff filed a reply to Defendant's reply. ECF No. 58. The Court construes this filing as a surreply. On February 23, 2012, Defendant filed a motion to strike the surreply. ECF No. 61. Plaintiff filed objections to Defendant's motion on March 6, 2012. ECF Nos. 62, 63. The matter is submitted pursuant to Local Rule 230(l).

The Local Rules of this Court and the Federal Rules of Civil Procedure do not generally permit the filing of a surreply. See L.R. 230(l) (matter is generally submitted after movant files and serves reply). The Court did not request a surreply from Plaintiff. Accordingly, Defendant's motion to strike, filed February 23, 2012, is granted. Plaintiff's surreply is stricken.

II. Summary Judgment Standard

Summary judgment is appropriate when it is demonstrated that there exists no genuine dispute as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). 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). "[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.'" 2

Id. at 324. Indeed, summary judgment should be entered, after adequate time for discovery and upon 3 motion, against a party who fails to make a showing sufficient to establish the existence of an 4 element essential to that party's case, and on which that party will bear the burden of proof at trial. 5

Id. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's 6 case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment 7 should be granted, "so long as whatever is before the district court demonstrates that the standard for 8 entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323. 9

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine dispute as to any material fact actually does exist. 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 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. Fed. R. Civ. P. 56(c); 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, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Thrifty Oil Co. v. Bank of Am. Nat'l Trust & Sav. Ass'n, 322 F.3d 1039, 1046 (9th Cir. 2002); 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, Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); 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 former Rule 56(e) advisory committee's note on 1963 amendments). 2

In resolving a motion for summary judgment, the court examines the pleadings, depositions, 3 answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. Civ. 4 P. 56(c). The evidence of the opposing party is to be believed, Anderson, 477 U.S. at 255, and all 5 reasonable inferences that may be drawn from the facts placed before the court must be drawn in 6 favor of the opposing party, Matsushita, 475 U.S. at 587 (citing United States v. Diebold, Inc., 369 7 U.S. 654, 655 (1962) (per curiam)).

Finally, to demonstrate a genuine dispute, the opposing party "must do more than simply 9 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 586-87 (citations omitted).

III. Statement of Facts*fn1

Plaintiff is a state inmate, serving a life term for attempted first degree murder and is currently incarcerated at High Desert State Prison. Hanlon Decl., Abstract of Judgment; Pl.'s Dep. 5:24-6:1, Oct. 14, 2011.*fn2 Plaintiff is legally blind, but sees well enough to read and write as well as work in the yard crew wiping tables. Pl.'s Dep. 10:7-17; 11:7-13; 61:10-24; 71:3-20. Plaintiff was incarcerated at the California Substance Abuse Treatment Facility (CSATF) at Corcoran, California from August 23, 2006, to May 19, 2009. Pl.'s Dep. 14:11-15. Defendant Clark was the Warden during Plaintiff's incarceration at CSATF. ECF No. 7 at 2.

In 2008 through 2009, Title 15 required that two religious diet options be afforded inmates: Religious Vegetarian and Jewish Kosher diets. Cal. Code Regs. tit.15, §3054(e); Maurino Decl. ¶ 4.*fn3 The general prison population receives the Pork-Free Meal Program. Pork and pork derivatives 2 are not served in CDCR institutions. Maurino Decl. ¶ 5. In the department's research conducted 3 before implementing the Jewish kosher meal, the requirements of Jewish kosher laws were more 4 exacting on the CDCR's food service operation. Kosher food requires separate utensils, dishes, and 5 storage to ensure no contact of meat and dairy foods. This would require a separate kitchen and a 6 kosher kitchen staff, as well as a separate kosher food supplier. Id. ¶ 6. 7

The most effective way to provide kosher food items was as pre-packaged, pre-cooked, shelf- 8 stable entrees so that the meal could be served after simply re-heating it. No food is cooked at the 9 prison kitchen for the Jewish Kosher meal, but re-heated in microwaves or ovens to avoid violating kosher laws. The Jewish Kosher meal is assembled in a separate kitchen area by trained staff. Id. For lunch, all inmates get a sack meal. Inmates receiving the Jewish Kosher diet are provided with a separate sack lunch of all kosher items. Id.

Religious Vegetarian entrees are cooked separately from meat items to ensure that no meat products are mixed with vegetarian items. If meat is served for lunch, inmates on the Religious Vegetarian diet receive a non-meat protein source. Id. ¶ 7. Title 15 provides that 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. The inmate is interviewed by the Chaplain who reads and signs an agreement with the inmate. Cal. Code Regs. tit.15, §3054.3; Maurino Decl. ¶ 3. Title 15 provides that" "Jewish kosher meals shall be available at designated institutions. Jewish inmates may participate in the program, as determined by a Jewish chaplain." As only a Jewish chaplain shall determine an inmate's eligibility for the Jewish Kosher diet, only Jewish inmates may be considered for participation in the diet, per the Jewish chaplain. Maurino Decl. ¶ 4; Cal. Code Regs. tit.15, §3054.2(a), (g).

In March 2007, Chaplin Kulunga, a Muslim Chaplain at CSATF, approved Plaintiff's request for the Jewish Kosher diet and Plaintiff received kosher meals. Pl.'s Dep. 21:18-22; 50:23-53:4. Plaintiff was unhappy with the Jewish Kosher diet because he is "predominately a vegetarian," and the Jewish Kosher diet contains red meat. Pl.'s Dep. 19:4-8, 54:19-55:17; ECF No. 7 at 7. Plaintiff 2 changed to a vegetarian diet while at CSATF because he did not like the Jewish Kosher meals. Pl.'s 3 Dep. 54:19-55:17. Plaintiff wrote in inmate appeal log number SATF-C-08-5154: "Due to the poor 4 quality of the kosher food there had been days where I'd become physically ill with stomach pains 5 and the foul smell utterly made me refuse and since ue to theses reasons which caused me to change 6 to a vegetarian diet." Gomez Decl. (ECF No. 24-2) at 24.*fn4 Plaintiff wrote in inmate appeal log 7 number SATF-C-0808-5154: "It is due to my Eighth Amendment Right to food that caused me to 8 change to a kosher vegetarian diet the nutritional quality of the evening meals are poor." ECF No. 9

24-2 at 21.

The Pork-Free Meal Program for the general population, the Religious Vegetarian diet, and the Jewish Kosher diet are nutritionally comparable. All three meal programs are designed and tested to provide the same range of calories, protein, vitamins, and other nutritional needs of an adult male inmate. There are no nutritionally significant differences in the meal programs. Maurino Decl. ¶ 5.

Plaintiff claimed his kosher meals where tampered with. He wrote in inmate appeal log number SATF-C-08-5154 that the "original seal is always moved by someone." Pl.'s Dep. 54:19-55:13; ECF No. 24-2 at 21. Plaintiff admits that he does not know if the unsealed meals were tampered with. Pl.'s Dep. 54:21-55:8.

On September 8, 2008, Plaintiff filled out a religious diet request on form CDCR 3030. ECF No. 7 at 7. Plaintiff listed his faith as Jewish and his religious group as "non-affiliated." ECF No. 7 at 7. Form CDCR 3030 listed two religious meal options: vegetarian or kosher. Plaintiff circled option 1-vegetarian." ECF No. 7 at 7. Form CDCR 3030 asked: "Can your religious dietary needs be met by not eating pork, and/or following a vegetarian diet?" Plaintiff answered, "Yes, Rabbi, I have hyper lipidemia (high cholesterol) Dr. Enemoh instructed me to abstain from peanut butter margerine and cheese. I'm a vegetarian. The Kosher evening meal largely red meat, processed meat plus soy is intolerable. Therefore, I must now seek a total vegetarian diet to meet my nutritional needs. I do however wish to continue to get a kosher lunch and breakfast minus the cheese, peanut butter and lunch meat if possible, if not option 1 please. Thank you." (Emphasis original). ECF No. 7 at 7. 2

Plaintiff refuses to eat beans in excess, butter, margarine, peanut butter or cheese for health 3 reasons. Pl.'s Dep. 18:14-19:16; ECF No. 7 at 7, 12. Beans, butter, margarine, peanut butter and 4 cheese are contained in both the Jewish Kosher diet as well as the Religious Vegetarian diet. 5

Maurino Decl. ¶ 11. Plaintiff believes that chicken is part of the Religious Vegetarian diet because it 6 is "not considered meat." Pl.'s Dep. 63:1-5. Plaintiff is not a vegetarian for religious reasons. Id. at 7

15: 4:24; 18:14-19:16. 8

A vegetarian diet is not inconsistent with Plaintiff's religious belief, so long as the food is 9 blessed by a rabbi. Pl.'s Dep. 16:10-19. The Torah does not require or prohibit vegetarianism, or require the eating of meat. Moskowitz Decl. ¶ 6.*fn5 Plaintiff's religious beliefs prevent him from eating non-kosher foods. Pl.'s Dep. 15:4-24. Plaintiff was approved for the Religious Vegetarian diet on September 16, 2008. ECF No. 7, at 7. Attached to the approval for the Religious Vegetarian diet was a form CDC 128B (chrono) by Jewish Chaplain ...


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