The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff, a state prisoner, proceeds pro se with an action pursuant to 42 U.S.C. § 2000cc et seq., the Religious Land Use and Institutionalized Persons Act (RLUIPA). On February 6, 2008, judgment was entered in favor of defendants and this case closed. On August 18, 2010, the Ninth Circuit Court of Appeals reversed the judgment and remanded the case for consideration of plaintiff's request for injunctive relief under RLUIPA for the expungement of disciplinary records. This action now proceeds against the sole remaining defendant, Rick Hill, Warden of Folsom State Prison.
Defendant's motion for summary judgment is before the court. Also pending are defendant's motion for a protective order to stay discovery responses and plaintiff's motion to compel discovery.
I. Defendant's Motion for Summary Judgment
As an initial matter, the parties dispute which of plaintiff's claims remain pending. Defendant contends plaintiff's injunctive relief claim under RLUIPA for the expungement of disciplinary reports is the sole remaining claim in this action, while plaintiff asserts he also has claims for damages and declaratory judgment pending.
As indicated above, a judgment was entered in this case on February 6, 2008 which operated as a final determination resolving all claims against plaintiff. Plaintiff appealed and the Ninth Circuit remanded to this court for consideration of his claim arising under RLUIPA for the expungement of disciplinary records. As set forth in this court's order of August 9, 2011, "The directive from the Ninth Circuit was clear: only plaintiff's RLUIPA claim for expungement was remanded." Dkt. 117 at 3 n.2.*fn1
In addition, on February 2, 2011, a status conference was held during which plaintiff indicated that he wished to proceed pro se and to pursue a claim for damages. On February 3, 2011, the court entered an order granting plaintiff leave to file a motion for reconsideration of the court's February 6, 2008 judgment dismissing his claim for damages. Plaintiff did not seek reconsideration of the February 6, 2008 judgment. Plaintiff's injunctive relief claim under RLUIPA constitutes the sole remaining claim in this action.See Thomas v. Bible, 983 F.2d 152, 154 (9th Cir. 1993) (discussing the "law of the case" doctrine).
RLUIPA "protects institutionalized persons who are unable freely to attend to their religious needs and are therefore dependent on the government's permission and accommodation for exercise of their religion." Cutter v. Wilkinson, 544 U.S. 709, 721 (2005).
Section 3 of RLUIPA provides that "[n]o 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 the burden "is in furtherance of a compelling governmental interest" and "is the least restrictive means of furthering that compelling government interest." 42 U.S.C. § 2000cc-1. Of particular relevance here is that in Warsoldier v. Woodford, 418 F.3d 989 (9th Cir. 2005), the Ninth Circuit held that a grooming policy of the California Department of Corrections intentionally put significant pressure on inmates to abandon their religious beliefs by cutting their hair and therefore imposed a substantial burden on their religious practice in violation of RLUIPA. Id. at 995-96.
Summary Judgment Standard under Rule 56
Summary judgment is appropriate when there exists "no genuine issue as to any material fact and that the moving party 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 (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. 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. "[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.
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 exists. See 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 allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits or admissible discovery material, in support of its contention that the dispute exists. SeeFed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate (1) that the fact in contention is material, i.e., is 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 (1986); T.W. Elec. Serv., Inc. V. Pacific Elec. Contractors Ass'n, 809 F.2d 626, ...