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Kyle Avery v. Marc Elia

December 27, 2012

KYLE AVERY, PLAINTIFF,
v.
MARC ELIA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Allison Claire United States Magistrate Judge

ORDER AND FINDINGS & RECOMMENDATIONS

Plaintiff, a state prisoner, is proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is defendants' March 9, 2012 motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b) for failure to exhaust administrative remedies and 12(b)(6) for failure to state a claim. Plaintiff opposes the motion in part. Also pending is plaintiff's March 12, 2012 motion for preliminary injunctive relief, plaintiff's April 23, 2012 motion for court review of supplement briefing, and defendants' May 24, 2012 motion to strike plaintiff's unauthorized sur-reply. On review of the motions, the documents filed in support and opposition, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:

FACTUAL ALLEGATIONS

At all times relevant to this action, plaintiff was housed at California State Prison

-- Sacramento ("CSP-Sac").*fn1 In the operative complaint filed September 23, 2011*fn2 , plaintiff brings suit against Community Program Manager Marc Elia, who is charged with the oversight of the religious program at CSP-Sac, and Rabbi I. Korik, a rabbi employed at CSP-Sac, for violation of plaintiff's right to the free exercise of his religion pursuant to the First Amendment and right to equal protection pursuant to the Fourteenth Amendment.

On or around March 28, 2007, plaintiff, a practitioner of Ceremonial Magick*fn3 , was granted authorization by Rabbi Ira Book, not a party to this action, to participate in the Kosher meal program at CSP-Sac as this meal program corresponds most closely with plaintiff's religious beliefs. Compl. at 11-12.

On an unidentified date, defendant Elia ordered a sergeant at CSP-Sac, also not a party to this action, to confiscate plaintiff's Kosher meal card, which authorized plaintiff to participate in the Kosher meal program. Compl. at 12-13. Plaintiff refused to forfeit his card. Id. at 13. Nonetheless, some while later, plaintiff contacted prison authorities to forfeit his Kosher card. Id. On the forfeit form, plaintiff claimed that he was forfeiting his card under duress. Id. In the complaint, plaintiff alleges that he chose to forfeit his Kosher card to avoid "muddy[ing] a fight" that was then being litigated for the Wiccans. Id.

In September 2010, plaintiff submitted a request to renew participation in the Kosher meal program, as previously authorized by Rabbi Book, who was no longer at CSP-Sac. Compl. at 13-14. Defendant Rabbi Korik denied plaintiff's request. Id. at 14. In late-2010, plaintiff filed an inmate grievance concerning Rabbi Korik's denial of this request. Id. at 14. Plaintiff's grievance was granted at the informal level of review by Rabbi Korik, who renewed plaintiff's Kosher diet card effective November 9, 2010. Id. Because he received the relief he requested, plaintiff did not continue the appeal process. Id.

On April 13, 2011, Rabbi Korik sent plaintiff a letter noticing plaintiff's removal from the Kosher meal program on the ground that plaintiff was not Jewish. Compl. at 15.

Plaintiff did not file an appeal concerning Rabbi Korik's revocation of plaintiff's Kosher diet card because he assumed that any such appeal would be dismissed as duplicative of plaintiff's previous appeal regarding his request to be reinstated into the Kosher meal program. Compl. at 15-16. Plaintiff believed that the previous appeal constituted a procedural bar that prohibited him from exhausting the issue of Rabbi Korik's revocation of plaintiff's Kosher diet card. Id.

RELEVANT PROCEDURAL BACKGROUND

Plaintiff filed suit against defendants Elia and Rabbi Korik on September 26, 2011. On March 9, 2012, defendants filed the instant motion to dismiss, which plaintiff opposes.

On April 23, 2012, plaintiff filed a motion for the court to review supplemental briefing. Defendants ask the court to strike this supplemental briefing as an unauthorized sur-reply. Because the court does not find that defendants are prejudiced by the court's consideration of this supplemental briefing, plaintiff's request will be granted and defendants' request will be denied.

On March 12, 2012, plaintiff filed a motion for preliminary injunctive relief wherein plaintiff seeks an order directing defendants to reinstate his Kosher ...


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