The opinion of the court was delivered by: Allison Claire United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
Plaintiff is a prisoner proceeding pro se in this civil action brought pursuant to 42 U.S.C. § 1983. Before the court are four pending applications: (1) defendants' motion to dismiss for failure to state a claim (Doc. No. 18); (2) plaintiff's motion for an order to show cause (Doc. No. 19); (3) plaintiff's motion for default judgment (Doc. No. 21); and (4) the court's own order to show cause why this action should not be dismissed as moot (Doc. No. 20). For the reasons outlined below, the undersigned recommends that this action be dismissed against defendant McDonald as moot, and against defendants Cate and Giurbino with leave to amend.
The Complaint Plaintiff filed this action on September 21, 2011. At the time of filing, plaintiff was housed at High Desert State Prison ("HDSP"), and alleged, among other things, that he is a Muslim, that he was being denied an adequate Halal diet, and that he was prohibited from participating in Ramadan services. See Doc. No. 1. Specifically, plaintiff alleged that he first requested to be placed on Halal or Kosher diet in October 2008. See Doc. No. 1-1 at 1. On or about January 16, 2009, after his request was denied, and his appeal of the denial was pending, the California Department of Corrections and Rehabilitation ("CDCR") proposed a policy change allowing a religious meat alternative at dinner only. Id. Plaintiff also alleges that defendant Giurbino authored a memo to Correctional Food Managers authorizing them to substitute "unlawful meat" with a vegetarian option. Id. Plaintiff does not advise when the Giurbino memo was written.
In November 2009, after completing his administrative remedies, plaintiff petitioned the Lassen County Superior Court. See Doc. No. 1-1 at 1. Plaintiff does not provide the court with a copy of the petition, or of the Lassen County Superior Court's decision; however, based on the allegations in plaintiff's complaint, plaintiff appears to have asked that court to direct that he be provided with meals in accord with his religious beliefs. According to plaintiff, the state argued to the Lassen County Superior Court that plaintiff's petition would soon be moot, because plaintiff would soon be able to obtain halal meals. See id. Plaintiff argues, however, that the state misled the state court, because the state's attorney failed to advise the Superior Court of the Guirbino memo. Id. Plaintiff's petition was denied in June 2010, and plaintiff alleged that, "to date, [he] still has problems receiving a halal diet." See id.
In his complaint, plaintiff sought injunctive relief only, including an order directing the CDCR to provide him with "full Halal meals." Id.
In or around October, 2011, while this complaint was pending, plaintiff was transferred to the California Substance Abuse Treatment Facility and State Prison at Corcoran. See Doc. Nos. 6, 7.
Defendants' Motion to Dismiss
On March 20, 2012, defendants Giurbino, Cate, and McDonald moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6). Specifically, defendants argued:
(1) plaintiff failed to allege any personal participation by defendant Cate; (2) plaintiff failed to allege a constitutional violation by defendant Giurbino; and (3) the allegations raised against defendant McDonald are vague and speculative, and accordingly insufficient to state a colorable claim. See Doc. No. 18.
Plaintiff filed an untimely opposition to the motion to dismiss on October 9, 2012. See Doc. No. 25. Plaintiff argued that: (1) his equal protection rights had been violated, because Jewish inmates receive a "complete Kosher meal" at breakfast, lunch, and dinner, while plaintiff receives only a Kosher entree at dinner; and (2) CDCR's Halal diet program is inadequate because (a) plaintiff only receives a Kosher entree at dinner served with unlawful foods and trays; (b) food managers substitute meat with non-kosher foods, such as Prison Industry Authority food or foods not purchased from a certified Kosher/Halal vendor with a current halal certification; and (c) plaintiff is not a vegetarian but the non-Kosher/Halal "vegetable option" is forced on him, violating his free exercise rights. See Doc. No. 25.
Plaintiff's Motion for an Order to Show Cause
On July 27, 2012, after his transfer to Corcoran, plaintiff filed a motion seeking an Order to Show Cause for a Preliminary Injunction and a Temporary Restraining Order, raising many of the same allegations included in his original complaint, and asking the court to order that CDCR: (1) serve plaintiff Kosher meals until he is provided with Halal meals; (2) serve plaintiff Kosher or Halal meat at breakfast; (3) prevent cross-contamination of Kosher/Halal foods and utensils with non-Kosher/Halal foods; and (4) serve Kosher/Halal meals covered to protect them from cross-contamination. See Doc. No. 19 at 1-2.
Among the allegations raised by the plaintiff in his motion were that CDCR does not have a Halal diet option, and that CDCR official policy ignores plaintiff's religious dietary prescriptions, because it provides "full Kosher/Halal meals" to Jewish inmates, while only offering plaintiff a "Kosher/Halal meat entree at dinner served with Haram (unlawful) foods."
See Doc. No. 19 at 3.*fn1
Plaintiff argues that CDCR "uses a combination of the Religious Meat Alternative Diet and the Vegetarian diet to circumvent" giving plaintiff a Kosher/Halal diet. Id. at 3. According to plaintiff, the Religious Meat Alternative Diet and the Vegetarian Diet are : (1) not certified Kosher/Halal; (2) are from general procured companies; and/or (3) are from prison industry authority. Id. at 4. Plaintiff does not explain how foods from general procured companies, or from PIA, makes the foods unacceptable. For example, at Exhibit C to the plaintiff's motion is a list of foods available for purchase from prison vendors, at least ...