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Davis v. Powell

United States District Court, S.D. California

October 4, 2012

Jim Dale DAVIS, Plaintiff,
v.
R. POWELL, T. Borem, L. Small, K. Ours, Defendant.

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Jim Dale Davis, Calipatria, CA, pro se.

Christopher H. Findley, Office of the Attorney General, San Diego, CA, for Defendants.

ORDER (1) ADOPTING REPORT AND RECOMMENDATION AND (2) GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS

[Doc. Nos. 30, 35]

CATHY ANN BENCIVENGO, District Judge.

On October 6, 2011, plaintiff filed a Second Amended Complaint (" SAC" ). [Doc.

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No. 29.] On October 13, 2011, defendants filed a motion to dismiss the SAC. [Doc. No. 30.] On October 31, 2011, Plaintiff filed an opposition to the motion to dismiss. [Doc. No. 31.] On November 7, 2011, Defendants filed a reply to the opposition. [Doc. No. 33.] On July 25, 2012, Magistrate Judge Brooks prepared a Report and Recommendation (" Report" ) recommending that the motion to dismiss the SAC be granted in part and denied in part. [Doc. No. 35.] The Report also ordered that any objections were to be filed by August 24, 2012. [Report at 71.] To date, no objection has been filed, nor have there been any requests for an extension of time in which to file an objection.

A district court's duties concerning a magistrate judge's report and recommendation and a respondent's objections thereto are set forth in Rule 72(b) of the Federal rules of Civil Procedure and 28 U.S.C. § 636(b)(1). When no objections are filed, the district court is not required to review the magistrate judge's report and recommendation. The Court reviews de novo those portions of the Report and Recommendation to which objections are made. 28 U.S.C. § 636(b)(1). The Court may " accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id. However, " [t]he 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." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.2003) (en banc) (emphasis in original). " Neither the Constitution nor the statute requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct." Id. In the absence of timely objection, the Court " need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Fed.R.Civ.P. 72 advisory committee's note (citing Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir.1974)).

Here, neither party has timely filed objections to the Report. Having reviewed it, the Court finds that it is thorough, well reasoned, and contains no clear error. Accordingly, the Court hereby (1) ADOPTS Magistrate Judge Brooks' Report and Recommendation; and (2) GRANTS IN PART AND DENIES IN PART Defendants' motion to dismiss the SAC as set forth below.

Per Magistrate Judge Brook's Report and Recommendation, the Court ORDERS AS FOLLOWS:

(1) Plaintiff's references to violations of the California Code of Regulations are not separate causes of action. Therefore, Defendants' motion to dismiss this portion of count two is GRANTED without leave to amend.

(2) Plaintiff improperly includes several new causes of action in count two of his SAC. First, an amendment to include a retaliation claim in count two against Defendant Small for the addendum he approved on September 16, 2009, would not clearly be futile. This retaliation claim is properly asserted. Defendant Small's motion to dismiss this claim is DENIED. A retaliation claim against Defendant Small for the October 25, 2010 policy, however, would be futile; this claim shall not be considered. Therefore, Defendant Small's motion to dismiss this claim is GRANTED without leave to amend.

(3) Retaliation claims against Defendants Powell, Borem, and Ours for the September 2009 and October 2010 policies would also be futile. Their motion to dismiss both retaliation claims against them is GRANTED without leave to amend.

(4) Defendants Powell, Borem, and Ours's motion to dismiss the conspiracy causes of action against them in count two

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is GRANTED without leave to amend; an amendment to include a conspiracy claim against Defendant Small would be futile, and the conspiracy claim against him is DISMISSED without leave to amend.

(5) Defendant Small's motion to dismiss the equal protection claim in count two regarding the September 16, 2009 policy addendum is DENIED. An amendment to include an equal protection claim against Powell, Borem, and Ours for this policy would be futile and is DISMISSED without leave to amend. Likewise, an amendment to include an equal protection cause of action against all Defendants based on the October 25, 2010 policy would be futile and is DISMISSED without leave to amend.

(6) The motion to dismiss the First Amendment and RLUIPA causes of action against all Defendants in count one is DENIED; in count two, the Defendants' motion to dismiss the First Amendment and RLUIPA claims is GRANTED without leave to amend.

(7) All of the Defendants are entitled to qualified immunity for the First Amendment claims against them in count two, and their motion to dismiss Plaintiff's claim for civil damages on this basis is GRANTED. The Defendants are not, however, entitled to qualified immunity as to the First Amendment allegations in count one, and their motion to dismiss on this basis is DENIED.

(8) Defendant Ours, Powell, and Borem's motion to dismiss Plaintiff's claim for civil damages for the equal protection violation alleged in count two on qualified immunity grounds is GRANTED. Defendant Small is not immune from damages attributable to the equal protection claim against him in count two for the September 2009 policy. His motion to dismiss on this ground is DENIED. Defendant Small is, however, entitled to qualified immunity for the equal protection claim against him in count two, focusing on the October 2010 addendum, and his motion to dismiss Plaintiff's claim for civil damages for this claim is GRANTED.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS SECOND AMENDED COMPLAINT [ECF NO. 30]

RUBEN B. BROOKS, United States Magistrate Judge.

Plaintiff Jim Dale Davis, a state prisoner proceeding pro se and in forma pauperis, filed a Complaint on August 31, 2010, pursuant to 42 U.S.C. § 1983 [ECF No. 1]. The Defendants filed a Motion to Dismiss Complaint, which was granted [ECF Nos. 17, 24-25]. On September 30, 2011, Davis filed a First Amended Complaint [ECF No. 26]. He subsequently sought leave to replace the second page of the First Amended Complaint with a different page [ECF No. 27]. The Court granted his request and instructed the Clerk of the Court to refile the First Amended Complaint with the replacement page as a separate docket entry; this new filing would constitute, and was docketed as, Davis's Second Amended Complaint, even though it was titled " Frist [sic] Amended Complaint" [ECF No. 28].

Plaintiff's Second Amended Complaint was filed on October 6, 2011, along with exhibits [ECF No. 29].[1] There, Davis argues

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in count one that Defendants violated the First Amendment and the Religious Land Use and Institutionalized Persons Act of 2000 (" RLUIPA" ) when they imposed a total ban on the purchase and receipt of prayer oil by inmates for fourteen months. (Second Am. Compl. 1, 3-8, ECF No. 29.) In count two, Plaintiff asserts that Defendants violated the Equal Protection Clause and retaliated against him when they implemented an addendum to Department Operations Manual (" DOM" ) supplement number 54030.7.1, which provided that certain religious items ordered by inmates would be counted as a quarterly package. ( Id. at 9-10; see id. Attach. # 2 Ex. U, at 39.) Warden Small signed the addendum on September 16, 2009. ( Id. ) [2] All Defendants allegedly discriminated against Davis because the religious items described in the addendum are purportedly used only by practitioners of the Muslim faith. (Second Am. Compl. 9-10, ECF No. 29.) Plaintiff contends Defendants retaliated and discriminated again on October 25, 2010, when they implemented a policy that prayer oil orders from the vendor, Union Supply, would not count as a quarterly package, but orders from nonapproved vendors would. ( Id. at 10.)

On October 13, 2011, the four named Defendants, Powell, Borem, Small, and Ours, filed a Motion to Dismiss Second Amended Complaint, which included a Memorandum of Points and Authorities [ECF No. 30]. Davis filed his " Objection to Defendants Motion to Dismiss Second Amended Compliant [sic]" on October 31, 2011, which the Court construes as an Opposition [ECF No. 31]. On November 7, 2011, Defendants' Reply was filed [ECF No. 33].

The Court has reviewed the Second Amended Complaint and attachments, Defendants' Motion to Dismiss and attachment, Davis's Opposition, and the Defendants' Reply. The Motion to Dismiss is suitable for resolution on the papers. See S.D. Cal. Civ. R. 7.1(d)(1). For the reasons stated below, the district court should GRANT in part and DENY in part the Defendants' Motion.

I. FACTUAL ALLEGATIONS

Plaintiff is incarcerated at Calipatria State Prison. (Second Am. Compl. 1, ECF No. 29.) In count one, Davis asserts that he has been a practicing Muslim and has used prayer oil for sixteen years. ( Id. at 3.) Plaintiff posits that using prayer oil is an " obligatory act that [he] must do during the preformance [sic] of his religion." ( Id. (citing id. Attach. # 1 Ex. A, at 4).) On August 11, 2009, Defendant Powell and the Islamic chaplain issued a religious chrono listing the religious articles Davis was authorized to keep in his cell, which included eight ounces of prayer oil per quarter. ( Id. at 3-4 (citing id. Attach. # 1 Exs. B, C).) According to Plaintiff, the chaplain signed a religious item approval list allowing Davis to purchase prayer oil from Halalco Books, a vendor on Calipatria's authorized vendor list. ( Id. at 4 (citing id. Attach. # 1 Ex. D).) Davis alleges that on October 9, 2009, Halalco Books sent his eight-ounce prayer oil order to Calipatria with the approval form on the box; Defendant Borem received the order sometime in October, but failed to forward the package to Plaintiff. ( Id. at 4, 7 (citing id. Attach. # 1 Ex. E, at 21).)

Davis maintains that he waited several weeks for his prayer oil before submitting an inmate grievance, to which prison officials never responded. ( Id. at 4.) On December 22, 2009, Plaintiff submitted another grievance requesting that officials

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deliver the prayer oil; the grievance was denied at the informal level on January 5, 2010, because the " Hazmat Specialist," Defendant Ours, had " denied the introduction of oil into the prison." ( Id. (citing id. Attach. # 1 Ex. F).) Plaintiff alleges his subsequent appeals were denied at all levels; at the director's level, it was determined that " [t]he oils were appropriately confiscated as it was determined they pose a fire, health, and safety hazard." ( Id. ; see id. Attach. # 1 Ex. G, at 27.)

Defendant Ours allegedly never issued a memorandum explaining why the oil was hazardous, and the decision was not supported by any documentation or legitimate reason. (Second Am. Compl. 4-5, ECF No. 29.) Davis maintains that on February 3, 2010, Defendant Borem sent Plaintiff a letter indicating that his oil had been returned to Halalco and that Defendants Ours, Small, and Powell had concluded that prayer oil would no longer be allowed at Calipatria because it posed a fire, health, and safety hazard. ( Id. at 5 (citing id. Attach. # 2 Ex. H).) In the letter, Borem explained that the decision was based on the fire rating information on the " Materials Safety Data Sheet" (" MSDS" ), but he did not identify the MSDS or where he obtained it. ( Id. )

Davis argues that from August 11, 2009, to October 16, 2010, there was a " total ban" on the purchase and receipt of prayer oil by inmates, denying him a " critical part" of his religion for fourteen months. ( Id. ) Defendants' actions were allegedly without any penological justification because if they followed protocol, they would have known that the prayer oil from Halalco Books complied with Calipatria's hazardous materials standards. ( Id. )

Davis contends that years earlier, on November 14, 2003, Defendant Ours sent a memorandum to " department heads" regarding the " Material Safety Sheet Binders," along with a copy of the " Calipatria State Prison Hazardous Communication Plan." ( Id. at 6 (citing id. Attach. # 2 Ex. I).) The plan provided that a material is " combustible" if its flash point is 100 degrees Fahrenheit and above, and a material is " flammable" if its flash point is between twenty and 100 degrees Fahrenheit. ( Id. ) Plaintiff asserts that the prayer oil provided by Halalco Books has a flash point between 189 and 195 degrees Fahrenheit and therefore is not flammable. ( Id. (citing id. Attach. # 2 Ex. J).) In comparison, pink hand soap has a flash point of 212 degrees, and pink skin cleanser has a flash point of 200 degrees. ( Id. (citing id. Attach. # 2 Exs. K, L).) Davis argues that Defendants therefore knew that the Halalco prayer oil complied with Calipatria's hazardous materials standards, but they still banned the oil. ( Id. )

The Plaintiff contends that on July 12, 2010, the associate warden responded to inmate correspondence and wrote, " Warden McEwen and Calipatria staff have reviewed the matter, and find that there is no compelling reason to deny the oil from the vendors that have been approved by the Institution in the past." ( Id. Attach. # 2 Ex. M, at 22; see Second Am. Compl. 6-7, ECF No. 29.) Davis further asserts that during the total ban on prayer oil, he was never supplied an alternative prayer oil vendor. ( See Second Am. Compl. 7, ECF No. 29.) Plaintiff states that while prison officials ultimately provided the alternative vendor, Union Supply, this did not occur until August 1, 2010. ( Id. (citing id. Attach. # 2 Ex. O).)

On July 14, 2010, Davis received approval from the Islamic chaplain to order prayer oil from Halalco Books. ( Id. at 8 (citing id. Attach. # 2 Ex. R).) Halalco shipped Plaintiff a back order five days later, and on July 27, 2010, Halalco shipped his " current order." ( Id. (citing id. Attach. # 2 Ex. S).) Plaintiff insists that the Defendants

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received the July 27, 2010 order, but did not forward the oil to him until October 16, 2010. ( Id. ) Defendant Borem returned one of Plaintiff's prayer oil orders to Halalco as recently as January 18, 2011, even though Borem knew Halalco was an approved vendor. ( Id. (citing id. Attach. # 2 Ex. T).) As a result, Davis maintains that Defendants Powell, Borem, Small, and Ours violated RLUIPA and the First Amendment by denying him access to Islamic prayer oil without penological justification. ( See id. at 3-8.)

In count two, Davis alleges that Defendants conspired to force him to purchase prayer oil from their preferred vendor, Union Supply, instead of from Halalco Books, another approved Islamic vendor. ( Id. at 9.) On September 16, 2009, Warden Small issued an addendum to DOM supplement 54030. ( Id. ) The addendum provided that when an inmate received a package from a religious specialty vendor, it would be counted as a regular quarterly personal package. ( Id. Attach. # 2 Ex. U, at 39.) Davis argues that the addendum discriminates against him and other Muslim prisoners because it only lists Muslim religious articles. ( See Second Am. Compl. 9, ECF No. 29.) The addendum also violates section 3190(i)(4) of the California Code of Regulations (" CCR" ), title 15, and was issued in retaliation for Davis's assertion of his First Amendment rights. ( Id. ) Thirteen days later, on September 29, 2009, Plaintiff and other Muslim inmates filed a group appeal contesting the discriminatory addendum, but it was denied. ( Id. (citing id. Attach. # 2 Ex. V, at 41-45).)

The Plaintiff further argues that Defendants retaliated again on October 25, 2010, when officials issued another addendum to DOM supplement 54030, " stating that if Plaintiff ordered prayer oils from Union Supply it would not be counted as a quarterly package but if Plaintiff used a nondepartmentally approved vendor it would be counted as a quarterly package." ( Id. at 10.) [3] Davis complains that the provisions penalize him because packages from Halalco, his preferred Islamic vendor, are treated as quarterly packages, but packages from Union Supply are not. ( See id. ) Therefore, Defendants violated RLUIPA, the First Amendment, section 3190(i)(4) of the California Code of Regulations, and the Equal Protection Clause. ( Id. )

II. APPLICABLE LEGAL STANDARDS

A. Motions to Dismiss for Failure to State a Claim

A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the claims in the complaint. See Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 633, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999). " The old formula— that the complaint must not be dismissed unless it is beyond doubt without merit— was discarded by the Bell Atlantic decision [Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 n. 8, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ]." Limestone Dev. Corp. v. Vill. of Lemont, 520 F.3d 797, 803 (7th Cir.2008).

A complaint must be dismissed if it does not contain " enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp., 550 U.S. at 570, 127 S.Ct. 1955. " A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The court must accept as true all material allegations in the complaint, as

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well as reasonable inferences to be drawn from them, and must construe the complaint in the light most favorable to the plaintiff. Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 973 (9th Cir.2004) (citing Karam v. City of Burbank, 352 F.3d 1188, 1192 (9th Cir.2003)); Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir.1995); N.L. Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.1986).

The court does not look at whether the plaintiff will " ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); See Bell Atl. Corp. v. Twombly, 550 U.S. at 563 n. 8, 127 S.Ct. 1955. A dismissal under Rule 12(b)(6) is generally proper only where there " is no cognizable legal theory or an absence of sufficient facts alleged to support a cognizable legal theory." Navarro v. Block, 250 F.3d 729, 732 (9th Cir.2001) (citing Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1988)).

The court need not accept conclusory allegations in the complaint as true; rather, it must " examine whether [they] follow from the description of facts as alleged by the plaintiff." Holden v. Hagopian, 978 F.2d 1115, 1121 (9th Cir.1992) (citation omitted); See Halkin v. VeriFone, Inc., 11 F.3d 865, 868 (9th Cir.1993); see also Cholla Ready Mix, Inc., 382 F.3d at 973 (quoting Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir.1994)) (stating that on a Rule 12(b)(6) motion, a court " is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged[ ]" ). " Nor is the court required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001).

In addition, when resolving a motion to dismiss for failure to state a claim, courts may not generally consider materials outside of the pleadings. Schneider v. Cal. Dep't of Corr., 151 F.3d 1194, 1197 n. 1 (9th Cir.1998); Jacobellis v. State Farm Fire & Cas. Co., 120 F.3d 171, 172 (9th Cir.1997); Allarcom Pay Television Ltd. v. Gen. Instrument Corp., 69 F.3d 381, 385 (9th Cir.1995). " The focus of any Rule 12(b)(6) dismissal ... is the complaint." Schneider, 151 F.3d at 1197 n. 1. This precludes consideration of " new" allegations that may be raised in a plaintiff's opposition to a motion to dismiss brought pursuant to Rule 12(b)(6). Id. (citing Harrell v. United States, 13 F.3d 232, 236 (7th Cir.1993)).

B. Standards Applicable to Pro Se Litigants

Where a plaintiff appears in propria persona in a civil rights case, the court must construe the pleadings liberally and afford the plaintiff any benefit of the doubt. Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir.1988). The rule of liberal construction is " particularly important in civil rights cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir.1992). In giving liberal interpretation to a pro se civil rights complaint, courts may not " supply essential elements of claims that were not initially pled." Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir.1982). " Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss." Id.; see also Jones v. Cmty. Redev. Agency, 733 F.2d 646, 649 (9th Cir.1984) (finding conclusory allegations unsupported by facts insufficient to state a claim under § 1983). " The plaintiff must allege with at least some degree of particularity overt acts which defendants engaged in that support the plaintiff's claim."

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Jones, 733 F.2d at 649 (internal quotation omitted).

Nevertheless, the Court must give a pro se litigant leave to amend his complaint " unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir.2000) (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir.1995)). Thus, before a pro se civil rights complaint may be dismissed, the court must provide the plaintiff with a statement of the complaint's deficiencies. Karim-Panahi, 839 F.2d at 623-24. But where amendment of a pro se litigant's complaint would be futile, denial of leave to amend is appropriate. See James v. Giles, 221 F.3d 1074, 1077 (9th Cir.2000).

C. Stating a Claim Under 42 U.S.C. § 1983

To state a claim under § 1983, the plaintiff must allege facts sufficient to show (1) a person acting " under color of state law" committed the conduct at issue, and (2) the conduct deprived the plaintiff of some right, privilege, or immunity protected by the Constitution or laws of the United States. 42 U.S.C.A. § 1983 (West 2003); Shah v. County of Los Angeles, 797 F.2d 743, 746 (9th Cir.1986).

III. DEFENDANTS' MOTION TO DISMISS

As to count one, Defendants Small, Powell, Borem, and Ours argue that Davis fails to state a claim for relief under the First Amendment because the temporary ban on prayer oil was reasonably related to legitimate penological interests in not allowing flammable materials into prison cells and controlling inmate inventory. ( See Mot. Dismiss Attach. # 1 Mem. P. & A. 5-7, ECF No. 30.) The Defendants also maintain that Davis fails to state a claim for relief under RLUIPA because regulating flammable prayer oil furthers prison safety, which is a compelling governmental interest and is the least restrictive means of achieving safety. ( Id. at 10-11.)

With regard to count two, the four Defendants argue that Davis's claims against them fail because he was not precluded from ordering prayer oil; rather, he was merely required to order prayer oil as part of a quarterly package. ( Id. at 7-8.) Limiting inmate inventory to reduce contraband, theft, bartering, and gambling is a legitimate penological interest. ( Id. at 8.) Plaintiff also does not allege a RLUIPA allegation, Defendants assert, because requiring Davis to order religious supplies as a quarterly package did not place a substantial burden on his religious practice. ( Id. at 11-12.) Plaintiff does not state an equal protection claim because he fails to plead facts sufficient to show that the provisions in the policy addendum were discriminatory. ( Id. at 12-14.) Further, Defendants Powell, Borem, and Ours urge that the First Amendment, Fourteenth Amendment, and RLUIPA causes of actions fail because they are conclusory and lack factual support. ( Id. at 14.)

Finally, the Defendants argue that they are entitled to qualified immunity from liability on Davis's First and Fourteenth Amendment claims. ( Id. at 15-16.)

A. Violations of the California Code of Regulations

In count two of the Second Amended Complaint, Davis alleges that the Defendants' conduct violated " RLUIPA and the [First] Amendment and Equal Treatment Clause." (Second Am. Compl. 9, ECF No. 29.) The gravamen of Plaintiff's allegations is that the Defendants discriminated against him based on his religion. ( See id. at 9-10.) Davis also states that Defendants' conduct violated section 3190(i)(4) of the California Code of Regulations. ( Id. at 10.) Section 3190(i) provides that inmates

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shall be permitted special purchases of authorized personal items from locally-approved vendors, and staff must ensure that approved vendor catalogs and order forms are available to qualifying inmates. Cal. Code Regs. tit. 15, § 3190(i). Special purchase items include " [r]eligious [i]tems subject to approval by institutional chaplain and designated custody staff." Id. § 3190(i)(4).

Plaintiff cannot assert an independent cause of action based on the purported violation of section 3190(i) of the California Code of Regulations. " The existence of regulations such as these governing the conduct of prison employees does not necessarily entitle Plaintiff to sue civilly to enforce the regulations or to sue for damages based on the violation of the regulations." K'napp v. Adams, No. 1:06-cv-01701-LJO-GSA (PC), 2009 WL 1292347, at *4, 2009 U.S. Dist. LEXIS 38682, at *12 (E.D.Cal. May 7, 2009). There is no implied private right of action under title fifteen of the California Code of Regulations. Id. at *4-5, 2009 U.S. Dist. LEXIS 38682 at *12-13. Because Davis's asserted violation of section 3190(i) fails to state a claim for relief in count two, the Defendants' Motion to Dismiss this portion of count two should be GRANTED.

B. Unauthorized Claims in Second Amended Complaint

Under Federal Rule of Civil Procedure 15, a party may amend its pleading within twenty-one days of service once as a matter of course. Fed.R.Civ.P. 15(a). Thereafter, a party must obtain leave of court or written consent from the opposing party. Fed.R.Civ.P. 15(a)(2). Here, all of Davis's claims in his Complaint were dismissed, and he was only given leave to amend his RLUIPA and First Amendment causes of action. (Report & Recommendation 38-39, ECF No. 24; see Order 2, ECF No. 25.) Plaintiff was not given leave to add additional claims. ( Id. ) Nevertheless, in his Second Amended Complaint, Davis improperly includes new allegations against the Defendants for retaliation, conspiracy, and equal protection.

" Although an amendment filed without leave of court, when leave is required, has no legal effect, the court has discretion to treat the amendment as properly filed if the court would have granted leave to amend had leave been sought." Taylor v. City of San Bernardino, No. EDCV 09-240-MMM (MAN), 2010 WL 5641065, at *7, 2010 U.S. Dist. LEXIS 140060, at *19-20 (C.D.Cal. Oct. 12, 2010) (citing Ritzer v. Gerovicap Pharm. Corp., 162 F.R.D. 642, 644-45 (D.Nev.1995); Brockmeier v. Solano Cnty. Sheriff's Dep't, No. CIV S-05-2090 MCE EFB PS, 2007 WL 1521074, at *1, 2007 U.S. Dist. LEXIS 40580, at *1 (E.D.Cal. May 21, 2007)). Indeed, the Ninth Circuit has " repeatedly stressed that the court must remain guided by ‘ the underlying purpose of Rule 15 ... to facilitate decision on the merits, rather than on the pleadings or technicalities.’ " Lopez, 203 F.3d at 1127 (citation omitted). Whether to give leave to amend rests in the sound discretion of the district court. Pisciotta v. Teledyne Indus. Inc., 91 F.3d 1326, 1331 (9th Cir.1996).

Courts typically consider five factors when determining whether to grant a motion for leave to amend: (1) bad faith by the moving party, (2) undue delay in seeking leave to amend, (3) prejudice to the opposing party, (4) futility of an amendment, and (5) whether the plaintiff has previously amended the complaint. Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir.2004). " ‘ Futility alone can justify the denial of a motion amend.’ " Id. (quoting Nunes v. Ashcroft, 348 F.3d 815, 818 (9th Cir.2003)). But " [p]rejudice to the opposing party is the most important factor."

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Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir.1996) (citing Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330-31, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971)). " Undue delay is delay that prejudices the nonmoving party or imposes unwarranted burdens on the court." BNSF Ry. Co. v. San Joaquin Valley R.R. Co., No. 08-cv-01086-AWI (SMS), 2011 WL 3328398, at *2, 2011 U.S. Dist. LEXIS 84694, at *5 (E.D.Cal. Aug. 2, 2011) (citing Mayeaux v. Louisiana Health Serv. and Indem. Co., 376 F.3d 420, 427 (5th Cir.2004)). Leave to amend " is not ...


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