The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
ORDER ADOPTING FINDINGS AND RECOMMENDATION DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (ECF No. 78, 102) CASE TO REMAIN OPEN
Plaintiff Antonio Cortez Buckley, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action on April 26, 2004 pursuant to 42 U.S.C. § 1983. (ECF No. 1.) The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 of the United States District Court for the Eastern District of California.
On February 28, 2013, Findings and Recommendation were filed in which the Magistrate Judge recommended that Defendants' Motion for Summary Judgment filed July 11, 2012 (ECF No. 78), be DENIED by the District Judge. (ECF No. 102.) The parties were notified that objection, if any, was due within fourteen days. (Id.)
On March 14, 2013, Defendants filed Objections to the Findings and Recommendation. (ECF No. 103.) Plaintiff has not filed a reply to Objections and the time for doing so has expired. (ECF 102 at § V.)
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the Court finds the Findings and Recommendation to be supported by the record and by proper analysis.
A. Defendants' Objections
Defendants argue they did not substantially burden Plaintiff's exercise of his Jewish religion because (1) even if Plaintiff's sole "white" kippah was confiscated on April 29, 2003, the color "white" is not central to his religion, he had at least one other [green] kippah, and it is speculative to conclude he could not wear his remaining [green] kippah outside his cell, (2) Defendant Peck, based upon the weight of the evidence before the Court, did not destroy Plaintiff's confiscated religious property, (3) alleged denial of chapel access did not deprive Plaintiff of Jewish services or programming or designated chapel time (there were none at times relevant); he could worship in his cell.
Defendants reargue their entitlement to qualified immunity claiming there is no underlying First Amendment violation and that it would not have been clear to them that their actions may have been unlawful in the context alleged.
Defendants re-assert their "authenticity" objection to the Muslim Chaplin's April 9, 2003 Memorandum (Pl. Evi. in Supp. Opp'n, ECF 89, at 62 - wherein Plaintiff was permitted one black kippah and one white kippah), which objection was overruled by the Magistrate.
Defendants request, for the first time, partial summary judgment on the basis that Defendant Dotson did not participate in the April 29, 2003 kippah confiscation and is not liable thereon.
The Court finds Defendants' Objections lack merit. The Objections on grounds Defendants did not substantially burden Plaintiff's religious exercise do not raise an issue of law or fact under the Findings and Recommendation. Plaintiff proffered evidence in the record, otherwise admissible and considered by the Magistrate, sufficient to create a genuine issue whether confiscation of all his black and white kippahs denied him any kippah approved by prison officials, (Pl's Opp'n, ECF No. 86, at 18), preventing him from covering his head during the day as mandated by his religion. (Id.) Likewise as to the issue whether denial of chapel access on April 15, 2003, otherwise authorized by a prison official for Plaintiff to meet with the Muslim Chaplin who had been assigned to Jewish prisoners (Pl Opp'n, ECF 89, at 146-47), prevented Plaintiff from pursuing his religious purposes and service. (Id.) In-cell worship, argued by Defendants as an ...