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Gustavo Mckenzie v. Sergeant G. Ellis

September 12, 2012

GUSTAVO MCKENZIE,
PLAINTIFF,
v.
SERGEANT G. ELLIS, JOHN MITCHELL, M. VORISE, W. TIETZ,
T. OCHOA, D. BELL AND DOES 1 AND 2,
DEFENDANTS.



The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge

ORDER: (1) OVERRULING PLAINTIFF'S OBJECTIONS TO REPORT AND RECOMMENDATION; (2) SUSTAINING DEFENDANTS' OBJECTIONS TO REPORT AND RECOMMENDATION; (3) ADOPTING REPORT AND RECOMMENDATION AS MODIFIED; AND (4) DISMISSING FEDERAL CLAIMS; AND ORDER OF REMAND

This action was removed from state court on July 14, 2010, based on federal question jurisdiction. After dismissal of his original complaint, Plaintiff Gustavo McKenzie, a prisoner in state custody, filed his amended complaint (the "FAC") on November 4, 2011. Defendants then moved to dismiss. This motion was referred to Magistrate Judge Mitchell Dembin for a report and recommendation. On May 15, Judge Dembin issued his report and recommendation (the "R&R"), to which Plaintiff and Defendants have both filed objections. Defendants also filed a reply to McKenzie's objections.

Legal Standards

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 determining whether a complaint states a claim, the Court accepts all allegations of material fact in the complaint as true and construes them in the light most favorable to the non-moving party. Cedars-Sinai Medical Center v. National League of Postmasters of U.S., 497 F.3d 972, 975 (9th Cir. 2007) (citation omitted). However, the Court is "not required to accept as true conclusory allegations which are contradicted by documents referred to in the complaint," and does "not . . . necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (citations and quotation marks omitted). The pleading standard is governed by Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). This standard doesn't allow a plaintiff to plead mere "labels and conclusions;" rather, he must allege facts sufficient to raise his "right to relief above the speculative level." Twombly at 555. His claim for relief must be plausible, not merely possible. Iqbal at 678.

The Court construes pro se pleadings liberally, King v. Atiyeh, 814 F.2d 565, 567 (9th Cir.1987), but will not supply facts a plaintiff has not pleaded. See Ivey v. Board of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir.1982).

Discussion

McKenzie, a California state prisoner, brings civil rights claims arising primarily from alleged failure to provide him with a religiously-appropriate diet. He identifies himself as Rastafarian, and says he can eat fish and poultry but not red meat or pork. He also brings claims pertaining to alleged retaliation against him for complaining. The initial complaint was somewhat vague and omitted significant information. Nevertheless, Defendants didn't object to the first report and recommendation that their motion to dismiss should be denied in part. This was understandable bearing in mind the complaint's generality. The FAC, however, clarified McKenzie's factual allegations a good deal, including setting forth a clearer timeline of events.

The FAC alleges facts that were largely omitted from the original complaint. It alleges that while McKenzie was at North Kern State Prison in Delano, California, the chaplain there issued him a religious diet card. He was later transferred to Calipatria State Prison on January 23, 2009. He says his religious diet card was honored during his first weeks there. Then on February 6, 2009, he says he was transferred to administrative segregation, the alleged deprivations began.

The FAC concerns itself with two alleged periods of deprivation. First, from February 7 to May 14, 2009, McKenzie says he was improperly denied a religious diet while in administrative segregation. (FAC at 3A-4, ¶ 18.) Then beginning in October of 2009 and continuing periodically through the next year, McKenzie says he he could have eaten the meals served to the general prison population but instead was improperly served vegetarian religious meals. The claims pertaining to the first period are primarily First Amendment and free exercise claims, while the claims pertaining to the second period are more focused on equal protection. McKenzie has been transferred away from the prison where he says the violations took place, and has shown no likelihood of being transferred back. The relief he seeks is therefore retrospective only; prospective injunctive relief is unavailable. See Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991) (per curiam) (transfer to another prison generally renders moot a prisoner's request for relief to remedy conditions of confinement).

The first deprivation period, according to the FAC, was prompted by correctional officers' questioning of the validity of his religious diet card. The FAC alleges staff told him there were no records in his files saying he was supposed to receive a religious diet, confiscated the religious diet card, and asked him several times to fill out forms in order to get one. The FAC makes clear they sent him the forms and asked him to sign and return them, even bringing the forms to his cell. He refused, saying he wasn't required to do so, and filed at least one grievance complaining that he shouldn't have been asked to complete a new form. As a result, he didn't receive a special religious diet beginning on February 7, 2009*fn1 until he was again registered for the religious diet program on May 11, 2009. The FAC makes clear that during this time McKenzie was sometimes provided with food he considered appropriate, but sometimes he was not. On the one occasion he mentions specifically, officers brought him hot dogs, which he refused to eat, even after being told they were made of chicken (which his religious diet permitted him to eat). He says that as a result of refusing to eat the hot dogs, he starved that day.

It should be noted that denial of special religious meals does not mean that McKenzie was put to the choice of either eating food his religion told him was wrong to eat, or eating nothing at all. The original complaint also attached copies of menus (although not for this time period), showing that religiously-appropriate food was served to the general population, though some of the entrees were not religiously-appropriate. In fact, the FAC makes clear McKenzie would like to have been served the same meals as are served to the general population, as long as the entree was not red meat or pork.

The FAC also details McKenzie's grievance process, during which he continued to refuse to complete forms. (See, e.g., FAC at 3A-7, ¶ 4 (explaining that Defendant Vorise came to his cell on March 27, 2009 and asked him to complete some forms concerning his diet, but that he, McKenzie, "refused to sign any such forms, as I did NOT need to.")) He says officers mishandled this process by mixing up dates, confusing the facts in their findings, imposing incorrect requirements, and failing to recognize that he had a valid chrono for a religious diet.

After McKenzie was released from administrative segregation, he agrees he was served a religiously appropriate diet. At various times beginning in October of 2009, however, he alleges that the prison went on lockdown and during that time he was served only vegetarian food when chicken or turkey was being served to the general population, but he did receive fish when fish was served to the general population. Lockdowns, he alleges, occurred periodically for a total of eighteen days between October 19, 2009 and August 9, 2010. (FAC at 3A-10, ¶ 2 (alleging he "was served an appropriate diet" until lockdown on October 19), 3A-12, ¶¶ 7, 8 (alleging that "every single time we're on lockdown" Defendant Bell served him a vegetarian meal even when poultry was being served to the general population).) In other words, McKenzie was always served ...


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