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Tyrone Rogers, Cdc #V-35389 v. G. J. Giurbino; D. Uribe; P. Kuzil-Ruan; B. Narvis

February 26, 2013


The opinion of the court was delivered by: Hon. Irma E. Gonzalez United States District Judge


Plaintiff Tyrone Rogers ("Rogers"), a state prisoner incarcerated at Centinela State Prison ("CEN"), is proceeding pro se and in forma pauperis with a Second Amended Complaint ("SAC") in his 42 U.S.C. § 1983 civil rights action filed nearly two years ago. He alleged under several legal theories, that his religious exercise was infringed during certain prison lockdowns over an approximate fourteen month period. Only one of his original claims and one named defendant have survived dismissal in prior proceedings. The remaining claim alleges the suspensions of religious group assembly during the prison lockdowns violated Rogers' rights under the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"), 42 U.S.C.A. §§ 2000cc et seq. This matter is now before the Court on remaining defendant Facility B Captain P. Kuzil-Ruan's Fed.R.Civ.P. 56 Motion For Summary Judgment ("Motion") on that claim. In consideration of the evidence presented and controlling legal authority, for the reasons discussed below, the Motion is GRANTED.


Rogers' claim arises from three prison lockdowns at CEN for weapons searches in May, June, and August 2010, each lasting about ten days, and a series of "rolling lockdowns" between March 2010 and June 2011, each lasting one day at two- to four-day intervals. Defendants describe the rolling lockdowns as "intermittent modification to the normal programming" mandated by "a Three-to-Five Percent Staff Redirection Plan prepared by CDCR." (ECF No. 74-1 at 10.)*fn1 During the lockdowns, Rogers was prevented from assembling with other Protestants for fellowship, group prayer services, and ministry classes. (SAC 4-5, ECF No. 8)*fn2 The Court dismissed defendant B. Narvis before service of the SAC, along with Rogers' Eighth Amendment and access to courts claims. (ECF No. 9.) By Order entered February 14, 2012, the Court granted in part and denied in part defendants' Motion To Dismiss the SAC for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6), dismissing defendants G. J. Giurbino and D. Uribe and disposing of his First and Fourteenth Amendment claims, leaving only his RLUIPA claim against defendant B-Yard Facility Captain P. Kuzil-Ruan ("Kuzil-Ruan"). (ECF No. 33.) Kuzil-Ruan then filed her Answer. (ECF No. 34).

Kuzil-Ruan now moves for summary judgment on the RLUIPA claim pursuant to Fed.R.Civ.P. ("Rule") 56 ("Motion"). (ECF No. 74.) She contends: "(1) The undisputed facts show that there was not a substantial burden on Plaintiff's exercise of religion as alleged in Plaintiff's Second Amended Complaint and Defendant therefore did not violate [the RLUIPA]; (2) The undisputed facts show that Defendant and her successors had a compelling government interest in undertaking the actions alleged in the Second Amended Complaint and undertook those actions by the least restrictive means after considering options and therefore did not violate RLUIPA; (3) The undisputed facts show that Plaintiff is not entitled to damages as a matter of law under RLUIPA." (ECF No. 74 at 2.) Rogers filed an Opposition (ECF No. 81), and Kuzil-Ruan filed a Reply (ECF No. 88).


A. Legal Standards

1. The Civil Rights Act

The Civil Rights Act, 42 U.S.C. § 1983 ("Section 1983") created a procedure for the vindication of federal rights, providing "the vehicle whereby plaintiffs can challenge actions by governmental officials." Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002); Graham v. Connor, 490 U.S. 386, 393-94 (1989) ("[Section] 1983 'is not itself a source of substantive rights,' but merely provides 'a method for vindicating federal rights elsewhere conferred' ") (citation omitted). "To prove a case under section 1983, the plaintiff must demonstrate that (1) the action occurred 'under color of state law' and (2) the action resulted in the deprivation of a constitutional right or federal statutory right." Jones, 297 F.3d at 934 (citations omitted). There is no dispute that Kuzil-Ruan, a prison official participating in the implementation of lockdowns that suspended institutional programming including communal religious exercise in which Rogers participated, was acting under color of state law. He states his remaining claim arising from those interruptions as violations of rights conferred by the federal RLUIPA statute.

2. Summary Judgment

Any party "may move, with or without supporting affidavits, for summary judgment on all or part of [a] claim." Rule 56(a), (b). Summary judgment is properly entered "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Rule 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "A material issue of fact is one that affects the outcome of the litigation and requires a trial to resolve the parties' differing versions of the truth." S.E.C. v. Seaboard Corp., 677 F.2d 1301, 1306 (9th Cir. 1982). The materiality of facts is determined by looking to the substantive law defining the elements of the claim. See Anderson, 477 U.S. at 248.

The moving party is not required to produce evidence negating the non-movant's claims but does bear the "burden of showing the absence of a genuine issue as to any material fact. . . ." Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); see Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 255 (1986) (the court considers all the evidence in the light most favorable to the non-moving party and accepts the version of disputed facts most favorable to that party in deciding whether there is a genuine issue for trial). If the moving party fails to discharge its initial burden to show "the absence of a genuine issue concerning a material fact," summary judgment must be denied, and the court need not consider the non-moving party's evidence. Adickes, 398 U.S. at 159-60.

If the movant carries its burden, the burden then shifts to the non-moving party to establish facts beyond the pleadings that show there remains a disputed issue of material fact so that summary judgment is not appropriate. The opposing party may not rest on conclusory allegations or mere assertions. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Rather, it must identify specific facts showing there are "genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson, 477 U.S. at 250. The non-moving party must "go beyond the pleadings and by her own affidavits, or by 'the depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.' " Celotex, 477 U.S. at 324, quoting Rule 56(e); see Adickes, 398 U.S. at 157. "[S]ummary judgment should be granted where the nonmoving party fails to offer evidence from which a reasonable jury could return a verdict in its favor." Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir. 2001) (internal punctuation and citation omitted).

When the Court considers evidence from both sides, "[i]f reasonable minds could differ as to the import of the evidence" and there is "evidence on which the jury could reasonably find for either party," summary judgment for the moving party must be denied. Anderson, 477 U.S. at 250-51, 254. Conversely, summary judgment must be entered in favor of the moving party "if, under the governing law, there can be but one reasonable conclusion as to the verdict." Id. at 250-251; Celotex, 477 U.S. at 325. In deciding the motion, a district court does not make credibility determinations, weigh conflicting evidence, or draw inferences, as those are functions reserved for the trier of fact. Anderson, 477 U.S. at 249, 255, 249; see Lujan v. Nat'l Wildlife Federation, 497 U.S. 871, 888 (1990) ("In ruling upon a Rule 56 motion, 'a District Court must resolve any factual issues of controversy in favor of the non-moving party' only in the sense that, where the facts specifically averred by that party contradict facts specifically averred by the movant, the motion must be denied").

B. Rogers Was Advised Of The Motion's Potential Consequences And Of His Opposition Obligations

Among her Motion papers served and filed on November 13, 2012, Kuzil-Ruan provided Rogers with a "Warning To Plaintiff Regarding Opposing Summary Judgment" that conforms to the requirements of Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en banc). (ECF No. 74-2.) The Rand court applied the rule from Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988) establishing notice as a substantial right to require that pro se prisoners pursuing relief under 42 U.S.C. § 1983 must be advised of the rules codified at Rule 56 and of the consequence that the case will be dismissed without a trial if the defendant's summary judgment motion is granted. In particular, Rogers received notice of his obligation to produce evidence to create a triable material fact in order to avoid that consequence. In addition, this Court reiterated the Rand notice to Rogers in its November 15, 2012 Order continuing the December 17, 2012 Motion hearing date to January 22, 2013. (ECF No. 75.)

Despite those notices, Rogers' Opposition is deficient. He produces no evidence as defined by Rule 56 in support of his Opposition. Rather than substantiate a material issue of fact "that affects the outcome of the litigation and requires a trial to resolve the parties' differing versions of the truth," Seaboard Corp., 677 F.2d at 1306, he continues to rely on vague allusions to unspecified "genuine facts" and purported evidence from unidentified individuals or other sources he suggests he could develop if only discovery were reopened. (See ECF No. 81 at 2, 4, 9,10.) His supporting "Declaration" consists solely of his attestation that his conclusory arguments are "true and correct to the best of [his] knowledge," and that "if called [he] would testify to the same." (ECF No. 81 at 10-11.) Exhibit A to his Opposition consists of two pages from the Department of Corrections and Rehabilitation Operations Manual addressing incident reporting procedures. (Id. at 12.) Exhibit B consists of a Memorandum directed to "Associate Directors, Division of Adult Institutions" and "Wardens" dated February 2, 2010, setting out the "3 and 5 Percent Redirection Plans" to address reduced institutional staffing issues, a Memorandum dated August 10, 2010 on the subject of the "Three Percent Position Reduction Assessment" (Id. at 14-15), and a Director's Level Appeal Decision denying Rogers relief from his challenge to the "rolling" lockdown periods on grounds, among others, that they "are not allowing for religious attendance." (Id. at 16-17.) Exhibit C is a May 23, 2011 Fact Sheet summarizing the United States Supreme Court's ruling affirming that California must comply with an order to reduce its prison population. (Id. at 18.)

Rogers has had ample opportunity to develop the factual and evidentiary bases for his RLUIPA claim. He initiated this action on March 21, 2011 and filed the operative pleading, his SAC, on July 12, 2011. (ECF No. 8). Nevertheless, along with his Opposition (ECF No. 81), he filed an "Ex Parte Motion To Stay Summary Judgment Until Plaintiff Can Obtain Discovery Necessary To Oppose" (ECF No. 82), followed on December 20, 2012 by a motion seeking to add additional defendants (ECF No. 85) and a "Second Request"for production of documents (ECF No. 86), both purportedly to enable him to oppose the Motion. By Order entered December 21, 2012, this Court denied those requests, noting that the time for such motions had passed under the April 11, 2012 Scheduling Order governing the case (ECF No. 47), and that Rogers had not attempted the good cause showing required to reopen discovery or to amend pleadings beyond those deadlines. (ECF No. 87.) The Court further observed it had already dismissed the defendants Rogers proposed to add and had "repeatedly denied Plaintiff's attempts to add these same defendants and related claims." (Id. at 1-2.) On January 25, 2013, the Court denied yet another of his ex parte motions to reopen discovery or to amend the pleadings (ECF No. 90), noting that the motion was simply "the latest in a long line of repetitive requests to reopen discovery or amend the pleadings . . . ." (ECF No. 91 at 1.) The Court reminded him that under the Scheduling Order, "discovery closed October 15, 2012, and the deadline for motions to join parties or otherwise amend the pleadings passed July 16, 2012." (Id.)

Despite the Opposition deficiencies, in deciding this Motion, the Court has considered all the evidence properly before it in the light most favorable to Rogers. Anderson, 477 U.S. at 255; Celotex, 477 U.S. at 324. That evidence includes excerpts from Rogers' October 12, 2012 Deposition that KuzilRuan provides in support of her Motion as Exhibit A to the Findley Declaration, ECF No. 74-7.

C. Rogers Fails To Identify A Triable Issue Of Material Fact On His RLUIPA Claim, And Defendant Is Entitled To Judgment As A Matter Of Law


Congress passed the RLUIPA "to 'protect[] 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.' " Khatib v. County of Orange, 639 F.3d 898, 900 (9th Cir. 2011), quoting Cutter v. Wilkinson, 544 U.S. 709, 721 (2005). The enactment creates a statutory basis for "protect[ing] prisoners and other institutionalized people from government infringement on their practice of ...

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