United States District Court, N.D. California
July 9, 2014
RAFAEL SALAS, Plaintiff,
MICHAEL GOMEZ, et al., Defendants.
ORDER OF SERVICE
JON S. TIGAR, District Judge.
On April 11, 2014, plaintiff, a California prisoner incarcerated at Pelican Bay State Prison (PBSP) and proceeding pro se, filed the above-titled civil rights action under 42 U.S.C. § 1983. By separate order filed concurrently herewith, plaintiff has been granted leave to proceed in forma pauperis. His complaint is now before the court for review under 28 U.S.C. § 1915A.
Plaintiff claims that PBSP officials and staff have impeded his efforts to practice his Jewish religion. His complaint alleges the following:
In 2010, plaintiff began studying and practicing Judaism. On May 30, 2012, PBSP's Jewish Chaplain, Rabbi Joseph Hample, conducted a Bar Mitzvah ceremony for plaintiff. On June 5, 2012, Rabbi Hample resigned as Chaplain and defendant Community Resource Manager Robert Losacco inherited the Rabbi's responsibilities in overseeing PBSP's Jewish program. Based on Rabbi Hample's recommendation, plaintiff was made inmate Jewish minister for the Jewish community in the PBSP B-yard.
On September 25, 2012, PBSP authorized plaintiff to receive a Jewish Kosher diet. On October 1, 2012, PBSP modified its Kosher meal plan, reducing portion sizes by half. In addition, PBSP's "new" Kosher meals regularly contained contaminated, rotten, and nutritionally inadequate food. For example, plaintiff began regularly receiving expired milk, rotten fruit, and spoiled cream cheese. He also regularly received food trays with the factory-secured covering partially removed and food missing. In a span of six days in early-November 2013, he received four rotten bologna sandwiches and fermented fruit cups. Plaintiff filed an inmate appeal on November 11, 2013 asking kitchen staff to throw out the rotten food, but nevertheless received rotten bologna sandwiches again on November 29, November 30, and December 4, 2013.
The contaminated food has made plaintiff very sick on multiple occasions, including regular bouts of stomach pain, vomiting, nausea, and diarrhea. Plaintiff remained sick for five days after discovering a roach in his fruit cup in December 2012. On another occasion, plaintiff became sick with coughing, sneezing, headaches, and body aches, subsequent to eating a meal that had been tampered with after the factory covering had been removed. The small amount of food that plaintiff has been able to eat has been nutritionally inadequate. Plaintiff has lost 33 pounds since starting on PBSP's new Kosher meal plan.
Although plaintiff regularly reported problems with his meals to a floor officer, he rarely received new food to replace the inedible food. In addition, most of plaintiff's inmate appeals have been denied or ignored by staff and officials at PBSP. Although some of plaintiff's appeals were nominally granted, he continued to receive inedible and nutritionally inadequate food.
In addition to being inedible, plaintiff's food has not met Jewish dietary (Kosher) guidelines. For example, plaintiff regularly receives non-Kosher food items. Plaintiff's meals often contain dairy products served with meat, which is against Jewish dietary law. Further, the unsanitary preparation of the food renders plaintiff's meals unclean, which means they are no longer considered Kosher.
Finally, PBSP staff has denied plaintiff access to Jewish scriptures. Plaintiff has requested Jewish scriptures based on his role as Jewish minister for the B-yard. His requests have been denied. According to plaintiff, Jews have been required to study scripture as an alternative to Temple practices and ceremonies. Without the Torah and other Jewish scriptures, plaintiff is unable to practice his faith.
A. Standard of Review
A federal court must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Pro se pleadings must, however, be liberally construed. See Balistreri v. Pacifica Police Dep't. , 901 F.2d 696, 699 (9th Cir. 1988).
Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." "Specific facts are not necessary; the statement need only "give the defendant fair notice of what the... claim is and the grounds upon which it rests.'" Erickson v. Pardus , 127 S.Ct. 2197, 2200 (2007) (citations omitted). Although in order to state a claim a complaint "does not need detailed factual allegations, ... a plaintiff's obligation to provide the grounds of his entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.... Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly , 127 S.Ct. 1955, 1964-65 (2007) (citations omitted). A complaint must proffer "enough facts to state a claim for relief that is plausible on its face." Id. at 1974.
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. See West v. Atkins , 487 U.S. 42, 48 (1988).
B. Legal Claims
The First Amendment guarantees the right to the free exercise of religion. In order to establish a free exercise violation, a prisoner must show a defendant burdened the practice of his religion without any justification reasonably related to legitimate penological interests. See Shakur v. Schriro , 514 F.3d 878, 883-84 (9th Cir. 2008). Inmates' religious freedoms also are protected by the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc-1. Section 3 of RLUIPA provides: "No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, as defined in section 1997 [which includes state prisons, state psychiatric hospitals, and local jails], even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." 42 U.S.C. § 2000cc-1(a). For an RLUIPA claim, the plaintiff-inmate must show that the government has imposed a substantial burden on his religious exercise. A "substantial burden' on religious exercise' must impose a significantly great restriction or onus upon such exercise." San Jose Christian College v. Morgan Hill , 360 F.3d 1024, 1034 (9th Cir. 2004).
Giving it the liberal construction to which it is entitled, the pro se complaint states cognizable claims for a violation of plaintiff's First Amendment right to the free exercise of religion and for a violation of plaintiff's rights under RLUIPA. The complaint adequately links defendants Gomez, Halls, Plunkett, Reidel, Ireland, Young, Cooper, Lemos, Sojka, Rias, Lossaco, and Lewis to the claims based on their roles in denying his requests for a religious diet and other religious accommodations.
Plaintiff also urges that defendants violated his right to be free from cruel and unusual punishment by failing to provide him food that he could eat consistent with his religious beliefs. Giving the pro se complaint the liberal construction to which it is entitled, an Eighth Amendment claim is also stated against defendants Gomez, Halls, Plunkett, Reidel, Ireland, Young, Cooper, Lemos, Sojka, Rias, Losacco, and Lewis. See Hebbe v. Pliler , 627 F.3d 338, 343 (9th Cir. 2010) (quoting Allen v. City and County of Honolulu , 39 F.3d 936, 940 (9th Cir. 1994) ("[A]n inmate cannot be forced to sacrifice one constitutionally protected right solely because another is respected.'")
The potential liability of the defendants who allegedly reviewed and rejected plaintiff's inmate appeals is under the First Amendment, RLUIPA, and the Eighth Amendment, and is not under the Fourteenth Amendment's Due Process Clause. There is no constitutional right to a prison or jail administrative appeal or grievance system in California, and therefore no due process liability for failing to process or decide an inmate appeal properly. See Ramirez v. Galaza , 334 F.3d 850, 860 (9th Cir. 2003); Mann v. Adams , 855 F.2d 639, 640 (9th Cir. 1988). If a defendant only denied an inmate appeal about a religious problem that already had occurred and was complete (e.g., an exclusion of the inmate from a religious ceremony on a past date), there would be no liability for a constitutional violation; however, where the problem is an ongoing religious need and the request is made in an inmate appeal to remedy the ongoing problem, liability can be based on the denial of an inmate appeal, just as it could be based on the denial of a verbal request from the inmate. Cf. Jett v. Penner , 439 F.3d 1091, 1098 (9th Cir. 2006) (supervisor may be liable for deliberate indifference to a serious medical need, for instance, if he or she fails to respond to a prisoner's request for help).
For the foregoing reasons and for good cause shown,
1. The complaint, liberally construed, states cognizable claims under § 1983 for violations of plaintiff's First Amendment religious freedom, RLUIPA, and Eighth Amendment rights.
2. The Clerk of the Court shall issue summons and the United States Marshal shall serve, without prepayment of fees, a copy of the complaint (Docket No. 1), and a copy of this order upon the following defendants at PBSP: Correctional Cook Supervisor Michael Gomez, Correctional Cook Supervisor P. Halls, Kitchen Staff D. Plunkett, Kitchen Staff K. Reidel, Kitchen Staff S. Ireland, Kitchen Staff R. Young, Kitchen Staff T. Cooper, Correctional Business Manager Tim Lemos, Assistant Correctional Food Manager Lucy Sojka, Correctional Food Manager Robert Rias, Community Resource Manager Robert Losacco, and Warden Glen D. Lewis.
The Clerk shall also mail a courtesy copy of the complaint and this order to the California Attorney General's Office.
3. In order to expedite the resolution of this case, the Court orders as follows:
a. No later than 91 days from the date this order is filed, defendants must file and serve a motion for summary judgment or other dispositive motion. A motion for summary judgment also must be accompanied by a Rand notice so that plaintiff will have fair, timely and adequate notice of what is required of him in order to oppose the motion. Woods v. Carey , 684 F.3d 934, 939 (9th Cir. 2012) (notice requirement set out in Rand v. Rowland , 154 F.3d 952 (9th Cir. 1998), must be served concurrently with motion for summary judgment). If defendants are of the opinion that this case cannot be resolved by summary judgment, defendants must so inform the Court prior to the date the motion is due.
b. Plaintiff's opposition to the summary judgment or other dispositive motion must be filed with the Court and served upon defendants no later than 28 days from the date the motion is filed. Plaintiff must bear in mind the notice and warning regarding summary judgment provided later in this order as he prepares his opposition to any motion for summary judgment.
c. Defendants shall file a reply brief no later than 14 days after the date the opposition is filed. The motion shall be deemed submitted as of the date the reply brief is due. No hearing will be held on the motion.
4. Plaintiff is advised that a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you must do in order to oppose a motion for summary judgment. Generally, summary judgment must be granted when there is no genuine issue of material fact - that is, if there is no real dispute about any fact that would affect the result of your case, the party who asked for summary judgment is entitled to judgment as a matter of law, which will end your case. When a party you are suing makes a motion for summary judgment that is properly supported by declarations (or other sworn testimony), you cannot simply rely on what your complaint says. Instead, you must set out specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, as provided in Rule 56(e), that contradict the facts shown in the defendants' declarations and documents and show that there is a genuine issue of material fact for trial. If you do not submit your own evidence in opposition, summary judgment, if appropriate, may be entered against you. If summary judgment is granted, your case will be dismissed and there will be no trial. Rand v. Rowland , 154 F.3d 952, 962-63 (9th Cir. 1998) (en banc) (App. A).
(The Rand notice above does not excuse defendants' obligation to serve said notice again concurrently with a motion for summary judgment. Woods , 684 F.3d at 939).
5. All communications by plaintiff with the Court must be served on defendants' counsel by mailing a true copy of the document to defendants' counsel. The Court may disregard any document which a party files but fails to send a copy of to his opponent. Until defendants' counsel has been designated, plaintiff may mail a true copy of the document directly to defendants, but once defendants are represented by counsel, all documents must be mailed to counsel rather than directly to defendants.
6. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16 is required before the parties may conduct discovery.
7. Plaintiff is responsible for prosecuting this case. Plaintiff must promptly keep the Court informed of any change of address and must comply with the Court's orders in a timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). Plaintiff must file a notice of change of address in every pending case every time he is moved to a new facility.
8. Any motion for an extension of time must be filed no later than the deadline sought to be extended and must be accompanied by a showing of good cause.
9. Plaintiff is cautioned that he must include the case name and case number for this case on any document he submits to the Court for consideration in this case.
IT IS SO ORDERED.
1. This civil rights action under 42 U.S.C. 1983 is to redress the deprivation under color of state law of rights guranteed by the Eighth Amendment of the United States Constitution. This court has jusisdiction pursuant to 28 U.S.C. § 1331 and 1343.
2. This court has jurisdiction over Plaintiff's request for declaratory relief pursuant to 28 U.S.C. 2201 and Federal Civil Procedure, Rule 57.
3. Venue is appropriate to the Northern District of California under 28 U.S.C. § 1391 (b)(2) for the events giving rise to the claims alleged in this complaint arose in Del Norte County, California at Pelican Bay State Prison.
4. This is a civil complaint for monetary damages and declaratory injunctive relief brought under 42 U.S.C. § 1983 against prison employees for violations of plaintiff's Rafael Salas rights to be tree from cruel and unusual punishment as protected by the Eighth Amendment of the United States Constitution. Specifically at issue here are Plaintiff Salas rights to be free from being routinely and knowingly issued contaminated food and underserved food portions rendering Plaintiff's food to be nutrionally inadequate. As a result of this deprivation, Plaintiff has fallen extremely ill on several occasions and has lost a notable amount of weight, precisely 33 pounds. Moreover, Plaintiff rights to be free to exercise his religious beliefs as protected by the First Amendment of the United States Constitution were violated for prison employees provided Plaintiff with an improper Kosher diet that does not satisfy the dietary laws of Jewish law and has failed to provide Plaintiff with Jewish scriptures.
Plaintiff prays for damages and declaratory injunctive relief. He has exhausted the administrative remedies concerning the claims alleged in the complaint.
5. Plaintiff, Rafael Salas is a 29 year old male Mexican-American resident of the State of California, currently incarcerated by the California Department of Corrections and Rehabilitation ("CDCR") at Pelican Bay State Prison ("PBSP") in Crescent City, California. At all times mentioned in this complaint, Salas was a prisoner within the CDCR system.
6. Defendant Michael Gomez was at all times relevant the Supervising Correctional Cook ("SCC") at PBSP. Plaintiff is informed and believes and thereon alleges that Defendant Gomez was responsible: to supervising the maintenance of food services, organizes and assists with the preparation, cooking and serving of food to inmates and employees; supplies and work areas, directs, trains, supervises and evaluates the work of inmates and employees and takes or recommends appropriatee action, has responsibilities over the kitchens; maintains order and supervises the conduct of inmates and does other related work.
7. Defendant P. Halls was at all times relevant the Supervising Correctional Cook ("SCC") at PBSP. Plaintiff is informed and believes and thereon alleges that Defendant Halls was responsible; to supervise, organizes and assists with the perparation, cooking and serving of food to inmates and employees; supervises the maintenance of food services equipment, supplies and work areas-directs, trains, supervises and evaluates the work of inmates and employees, and takes or recommends appropriate action; has responsibilities over the kitchens; maintains order and supervises the conduct of inmates and does other related work.
8. Defendant T Cooper was at all times relevant was employed by the CDCR and was a Kitchen Staff employee at PBSP. Defendant Cooper responsibilities were not disclosed upon Plaintiff's request [See CDCR 22 STAFF RESPONSE/SUPERVISORS REVIEW Appended hereto as Exhibit A] but plaintiff is further informed and believes, and thereon alleges, that Cooper is involved in the preparation, cooking and serving of food to inmates, including Plaintiff Salas.
9. Defendants D. Plunkett was at all times relevant was employed by the CDCrand was a Kitchen Staff employee at PBSP. Defendant Plunkett responsibilities were not disclosed upon Plaintiff's request [See Exhibit A], but Plaintiff is further informed and believes and thereon alleges, that Plunkett is involved in the preparation, cooking and serving of food to inmates, including Plaintiff Salas.
10. Defendant K. Reidel was at all times relevant was employed by the CDCrand was a Kitchen Staff employee at PBSP. Defendant Reidel responsibilities were not disclosed upon Plaintiff's request [See Exhibit A), but Plaintiff is further informed and belives and thereon alleges, that Reidel is involved in the preparation, cooking and serving of food to inmates, including Plaintiff Salas.
11. Defendants S, Ireland was at all times relevant was employed by the CDCrand was Kitchen Staff employee at PBSP. Defendant Ireland responsibilities could not be disclosed upon Plaintiff's request [See Exhibit A], but Plaintiff is further informed and believes and thereon alleges that Ireland is involved in the preparation, cooking and serving of food to inmates, including Plaintiff Salas.
12. Defendant R. Young was at all times relevant employed by the CDC and was a Kitchen Staff employee at PBSP. Defendant Young responsibilities could not be disclosed upon Plaintiff's request [See Exhibit A ], but Plaintiff is further informed and believes and thereon alleges that Young is involved in the preparation, cooking and serving of food to inmates, including Plaintiff Salas.
13. Defendant Tim lemos was at all times relevant employed by the CDCrand was a Correctional Business Manger I at PBSP. Defendant Lemos supervises the budget, canteen, clothing, food services, accounting and trust, procurement, warehouse and personnel.
14. Defendant Lucy Sojka was at all times relevant employed by the CDCrand was an Assistant COrrectional Food Manger I at PBSP. Defendant Sojka is under the direction of the food Manger, Sojka helps to plan, direct and coordinate food services activities (overall) food production. Defendant Sojka is also responsible for development, training, applying standards and procedures that govern the operation of the Food Services department. Sojka oversees production sheeets, estimate food requirements and order food and supplies and oversees facility inspections. Defendant Sojka helps in selecting staff, evaluating their performance and takes or recommends appropriate action.
15. Defendant Robert Rias was at all times relevant employed by CDC and was a Correctional Food Manger I at PBSP. As Defendant Sojka supervisor defendant Rios directs Sojka in the planning, direct, coordinatation of food service activities. Plaintiff is further informed and belives and thereon alleges that Rias had actual knowledge of acts complained via 602's and through Sojka but have been unchecked.
16. Defendant Robert Losaco was at all times relevant employed by the CDCR and was a Community Resourse Manger at PBSP defendant Losacco is responsible for PBSP's puchasing food products from outside vendors and oversees all Kitchen operations. Plaintiff is further informed and believes and thereon alleges, that Losacco, upon previous Jewish Chaplain resignation in June 2012, that he inherited the responsibilities of the Jewish Chaplain in the reviewing and overseeing of the Jewish Kosher Diet Program ("JKDP")
17. Plaintiff is informed and belives and thereon alleges that all times relevant Defendant Warden Glen D. Lewis was the warden at PBSP and was responsible for the supervision of supervising personnel, as well as for the safety and protection of all inmates at that institution, including SALAS.
18. At all times mentioned in this complaint, each individual defendant was acting under color of state law.
19. At all times mentioned in this complaint, each indivdual was acting in their, official capacity and in the scope and course of their employement.
20. All of the defendants, and each of them are being sued in their individual capacities and official capacities for the claims alleged in this complaint.
21. Plaintiff is informed and believes and on the basis of such information and beliefs alleges that each kitchen staff employee (i.e., T. Cooper, K. Reidel., D. Plunkett, R. Young, , S. Ireland, P. Halls and M. Gomez). including Correctional Business Manger I Tim Lemos; Correctional Food manger I, Robert Rios; Assistant Correctional Food Manger I, Lucy Sojka; Community
Resourse Manger, Robert Losacco; and Warden, Glen D. Lewis is responsible in some manner for the injuries alleged in this complaint.
22. The full names and/or capacities of kitchen staff eight(8) through twelve (12) are presently unknown to Plaintiff Salas, therefore sues said kitchen staff by initial of first name and full last name and will seek leave to amend this complaint to add their full name and capacities when the same have been asertained.
STATEMENT OF FIRST CLAIM
23. Plaintiff hereby claims that he suffered an Eighth Amendment Constitutional violation - to be free from cruel and unusual punishment-" due to being routinely and knowingly issued unsanitary contaminated food items (e.g., Kosher Diet) which were in a spoiled/rotten state causing him to fall extremely ill on several occassions.
24. The deprivation of plaintiff's constitutional rights was done in Defendants official capacity ("under color of law") as employees of Pelican Bay State Prison/CDCR and with deliberate indifference and total reckless disregard for physical welfare of Plaintiff by Food service staff and superiors issuing what was essentially poisonous food' and threat to Plaintiff's health.
25. On september 25, 2012, Plaintiff was given authorization by Defendant Lasacco to began receiving a Jewish Kosher Diet.
26. On October 1, 2012, PBSP began distributing a generic bradd of Jewish Kosher meal.
27. In early November of 2012, PBSP, plaintiff was issued his daily Kosher breakfast meal (that consisted of dry cerall, milk, apples sauce fruit cup) and after consuming the milk - which plaintiff noticed was actually expired - plaintiff fell extremly ill with stomach pain, vomitting, nausea, and diarrhea.
28. The milk tasted tangy and spoiled and the apple sauce fruit cup tasted fermented and for the next three days plaintiff received his meals in this manner.
29. On the third day after falling sick, plaintiff notified officer Nichols ("floor staff") of the contaminated state of his meals which were routinely being issued to him Nichols advised plaintiff to write an inmate Request ("CDCR 22" form") to kitchen, but plaintiff demanded that Nichols personally call the kitchen so that the matter can be resolved immediateley instead of waiting on the slow process of the CDCR 22 form. Convinced Nichols called the kitchen staff and for several weeks the spoiled rotten items stopped being issued.
30. However, on December 30, 2012, while consuming his breakfast (i.e., a large portion of apple sauce), plaintiff again noticed it tasted tangy and fermented.
31. Upon closer inspection of the apple sauce, plaintiff saw there was a "roach" inside it and he immediately notified Officer Cavazos who actually saw the roach inside the sauce. On that same day, plaintiff again fell ill with stomach pain, nausea,
32. Officer Nichols was later notified that there was a roach in his fruit cup. And on December 31, 2012, Nichols took the apple cup in order to show kitchen staff the presence of a roach inside the fruit cup.
33. On January 2, 2013, plaintiff was seen by Registered Nurse (R.N.) Penkian who instructed plaintiff to simply increase fluid intake. R.N. scheduled plaintiff with a follow up appointment in two days and with an appointment with primary care provider (PCP) [The physicians Notes pg 1-2 and worksheet pg 1-2 are appended hereto as Exhibit B ].
34. On January 4, 2013, RN conducted a follow up examination. plaintiff was still with stomach pain, vomitting diarrhea and nausea. RN did not provide medication and plaintiff remained sick for five days.[The physicians Notes and orders pg 1-3 are appended hereto as Exhibit C].
35. On January 13, 2013, plaintiff submitted an administrative appeal ("602") in which he complained of the contaminated food and sought to resolve the problem with Supervisor Correctional Cook. Further, plaintiff requested via 602 that his food be served in a humane manner in the future.
36. On February 4, 2013, Defendants Gomez spoke with plaintiff in regards of the 602. Gomez told plaintiff that he found the allegation of the roach in the fruit cup to be true for he spoke to officer Nichols. Gomez further stated that he grants the 602 based on this finding and that he is here today that plaintiff may interview Defendant Gomez, but first Gomez asked plaintiff to sign the withdraw section of the 602, and also gave him two "Dole" fruit cups. Plaintiff asked Gomez if the "Dole" fruit cups were going to replace PBSP unsealed pee-package fruit cup... Gomez said, "No... I don't know" After refusing [to sin] the withdraw section, Gomez told plaintiff that he was being incosiderate of Gomez kindness and that plaintiff was being unfair. Gomez also said it was in plaintiff's best intrest to sign and added that plaintiff signature is contingent on granting the 602.
37. Plaintiff's refusal infuriated Defendant Gomez. Consequently Gomez refused to be intervied by plaintiff's for he said he was not going to answer any of plaintiff's questions regarding the matter. Therefore Gomez never reached a genuine resolution.
38. On February 12, 2013 Defendant Sojka and Lemos reviewed the 602 for the firsr level review, but the matter went unchecked by the supervising Defendants Sojka and Lemos, for the response provided goes on length to dicuss missing food items and does not remotely address the issue at hand: contaminated food.
39. On July 3, 2013, Defendant Lewis reviewed the 602 for second level review. Defendant Lewis refused to fully grant plaintiff's request to have food served in a humane manner. Defendant Lewis contented that PBSP has no control over plaintiff's meal and hence can only partially grant' his request to have his food served in a humane manner. Defendant Lewis decision infers he agreed to allow the acts to continue to happen without any accountability or resolution.
40. On July 4, 2013, plaintiff was issued a dinner tray that had the sealed factory covering partially removed (Note: the frozen dinner tray is the only item that comes in its factory sealed container) After consuming a portion of the fish with gravy, plaintiff noticed that the fish was not fully cooked and there was a foul smell and taste to it. Plaintiff cellmate, Cesar Lopez, also tasted the fish to confirm whether or not it was contaminated, which he did.
41. On July 5, 2013, plaintiff and his cellmate Lopez both awoke sick with runny noses, sore throats, coughing, sneezing, headaches and body aches. Medical staff was informed via Health Care Services Request Form.
42. On July 7, 2013, plaintiff notified Supervisor Correctional Cook (i.e., Defendant Gomez and Halls)of him falling ill upon consuming food that had been delivered with the secured seal covering partially opened.
43. However, Supervisor Correctional Cook (i.e. Gomez and Halls)failed to respond to plaintiff's 22 form involving the open foul smelling fish tray. Prepexingly, Defendant Gomez responded to the request three months later stating request is outdated but did not in the least address the issue. (The CDCR 22 form is appended hereto as Exhibit D 3.
44. On July 8, 2013 RN Penkian examined plaintiff and determined that plaintiff had an impaired breathing pattern as evinced by cold symptoms and prescribed a regimen of medicines (e.g. Chlorpheniromin for congestion, Tylenol for fever control and, pain Cepacol Lozenges for coughing and sore throat) [The RN's worksheet pg 1-2 and CDCR 7362 Form is appended hereto as Exhibit E].
45. On November 5, 2013, plaintiff received a spoiled rotten bologna sandwich in which officer Hamner confirmed. Plaintiff was not given a replacement.
46. On November 7, 2013, again plaintiff received a spoiled rotten bologna sandwich in which officer Nichols confirmed.
47. On November 10, 2013, again plaintiff received a spoiled rotten sandwich in which officer Larson confirmed. Plaintiff was not given a replacement.
48. On November 10, 2013, plaintiff submitted a CDCR 22 form directed to Supervisor Correctional Cook (i.e., Gomez and Halls) in which he notified him that on November 5, 7, and 10 he has received rotten bologna sandwiches which was confirmed by floor staff. And that fruit cup has fermented and cream cheese is spoiled. Plaintiff asked Defendants to stop distributing contaminated foods. [The CDCR 22 form is appended hereto as Exhibit F].
49. On November 11, 2013, Defendant Cooper responded to the Nov. CDCR 22 form and notified plaintiff that the food service had discontinued issuing the contaminated bologna per (Defendant) M. Gomez.[The CDCR 22 form is appended hereto as Exhibit F].
50. Yet on November 11, 2013, again plaintiff was issued rotten spoiled bologna sandwich which was confirmed by officer Burgess, plaintiff was not given a replacement. Further, fruit cup was fermented.
51. On November 11, 2013, plaintiff again sent a CDCR 22 form to Supervisor Correctional Cook (i.e., Defendants Gomez and Halls) in which he alerted Defendants that in a span of six days he has received four rotten-spoiled bologna sandwiches and fermented fruit cups, Plaintiff asked Defendants to throw out the spoiled rotten food. [The CDCR 22 form is appended hereto as Exhibit G].
52. The Supervisor Correctional Cook (i.e., Gomez and Halls) never responded to the November 11, 2013, "22 Form" was sent back the following day without a response.
53. On November 29, 2013, again Plaintiff received a spoiled rotten bologna sandwich which was confirmed by officer Nichols.
54. On November 30, 2013, again plaintiff received a spoiled rotten sandwich which was confirmed by officer Cena. Plaintiff did not receive a replacement.
55. On December 1, 2013, plaintiff sent a 22 form to Supervisor Correctional Cook (i.e., Defendants Gomez and Halls) and asked them to inform superiors that he has notified food service staff multiple of times of receiving spoiled rotten food and that he has not received any cooperation, and also asked that Defendants stop serving rotten food, [The CDCR 22 form is appended hereto as Exhibit 1-1].
56. On December 4, 2013, again plaintiff received a rotten spoiled bologna sandwich which was confirmed by officer Carraway.
57. On December 4, 2013, plaintiff notified Defendant Sojka and Lemos on food service staff's failure to stop the issuance of contaminated food but Lemos and Sojka never responded to plaintiff's CDCR 22 form.
58. Instead, on December 15, 2013, Defendant Reidel responded to the 22 form and stated therein:"We have not had any issues with the lunch meat or any other complaints. [and Defendant) P. Halls has personally inspected several cases and has not found any spoiled meat [The CDCR 22 form is appended hereto as Exhibit I]
59. On December 18, 2013, Defendant Ireland sent plaintiff a staff response in regards to Dec, 4, 2013, 22 form [See Exhibit in. Ireland stated the main kitchen is working to solve the Kosher Lunch meat problem. And that the kitchen staff has always replaced any product that has been bad.
60. Plaintiff remains at PBSP as of the initial filing of this complaint. He has been subjected to conduct which he views as retaliatory in light of the absence of any such incidents before he consumed the unsanitary roach infested food that caused him to suffer illness on December 30, 2012 and complained about the experience. The conduct includes, but is not limited to, meals arriving hours late while every other inmate have consumed their meals, food trays being received open/unsealed which food portions are leaking and scattered through out the brown/plastic bag; receiving non-Kosher items in his box trays, individual wrapped items (e.g., sliced bread, bagels, dessert) smashed on the frozen dinner tray piercing through the sealed wrapping; missing/underserved iteams not being replaced upon plaintiff's request and officer confirmation, plaintiff's loss of 33 pounds of weight; Defendants failure to stop the continuous serving of contaminated and nutritionally inadequate food which not only constitute as gross negligence but also deliberate indifference as well.
STATEMENT OF SECOND CLAIM
61. Plaintiff hereby claims he suffered an Eigth Amendment Constitutional violation - to be free from cruel and unusual punishment due to Defendants herein routinely and knowingly issuing him underserved food portions below the nutritional value as required to preserve health. As a result of this deprivation, plaintiff has lost a notable amount of weight, specifically 33 pounds; rendering plaintiff's food servings to be nutritionally inadequate.
62. The deprivation of plaintiff's constitutional rights was done in the defendants offical capacity ("under color of law") as employees of PBSP/CDCR and with deliberate indifference as regards to providing plaintiff appropriate portions of food (i.e., a nutritional balanced diet).
63. Plaintiff is a jewish inmate and is required by his jewish tenets to maintain a jewish Kosher Diet.
64. On September 23, 2012, plaintiff began receiving a Jewish Kosher Diet after receiving approval from Defendant Losacco.
65. On October 1, 2012, plaintiff's Kosher meals was replaced by an inexpensive generic brand of Kosher food products.
66. In mid November, plaintiff began receiving the "new" Kosher meals. Plaintiff noticed that his meals have been severely cut (portion servings) to half. For previously while housed in Administrative Segregation Unit ("ASU"). Plaintiff was receiving a set amount of food portions (e.g., four slices of bread, a sealed pack of eight meat slices, two pastries, and a sealed pack of crackers/chips) and now he is receiving two pieces of bread, one slice of meat, a zip lock bag of underserved chips. In like fashion, the breakfast meals were also cut down.
67. Plaintiff notified Defendant Gomez via CDCR 22 form and asked Gomez to provide the nutritional value of thr current meals and asked Gomez why wasnt he being provided with two hot meals as previosly.
68. On December 2, 2012, Defendant Gomez responded to plaintiff's request in which he provided plaintiff with a nutrient value graph dated August 14, 2012. Thus, the graph displays the nutrient value of the previous Kosher diet, for the "new" Kosher menu was implemented on October 1, 2012. [The CDCR 22 form along with the Nutrient Value graph is appended hereto as Exhibit J].
69. On January 2, 2013, RN Penkian examined plaintiff during a medical visit. Plaintiff was weighed in at 158 pounds. [See Exhibit B].
70. On February 12, 2013, Defendant Lucy Sojka and Tim Lemos established a procedure in the event that plaintiff received a short or missing food item. Defendants prescribed plaintiff to contact the floor officer at that time of receiving the food tray. The officer will either confirm that your food is correct or not. If the officer is unsure or believes you are short or missing food item, he/she will bring the food tray to the kitchen. It will then be inspected by the kitchen staff. If it is short or missing a food item, it will be corrected at that time and returned to plaintiff.
71. On April 14, 2013, plaintiff meal was received dispraportionate in serving then first complained in November 2012, for plaintiff received a small bun with one slice of bologna, a zip lock bag of crumbled chips that were below required serving (0.5 oz) and desert that was below the required serving (2.5oz).
72. As prescribed by Defendants Sojka and Lemos, plaintiff followed prescribed procedure and showed officer Ramos who in turn fowarded to kitchen staff upon confirmation. But plaintiff never received a replacement for kitchen staff told Ramos that they we've not going to send anything.
73. On May 7, 2013, again plaintiff received an underserved meal. Plaintiff showed officer Nichols in turn it was confirmed to be short and sent to the kitchen, but again kitchen staff failed to previde a replacement.
74. On May 14, 2013, again plaintiff received an underserved meal (lunch box tray). The zip lock bag of chips were below required serving as well as the desert which was confirmed by officer Nichols but again after being forwared to the kitchen, the kitchen staff failed to provide a replacement.
75. Plaintiff attempted to contact Supervisor Correctional Cook (Defendants Gomez and Halls) via CDCR 22 form but Defendants failed to provide a response.
76. On May 20, 2013, Plaintiff submitted a 602 complaning of deprivation of full portions of food, with regard to CDCR'S regulations governing food service staff and food preparation and servings.
77. On June 15, 2013, Defendants Plunkett provided plaintiff with two (perplexingly) staff responses. In one responses, Plunkett stated the items, were pre-packaged and sealed. And in the second response, Plunkett stated he will supervise the portions and make sure plaintiff is receiving the correct amount.
78. On July 8, 2013, plaintiff was examined by RN penkian during a medical visit. Plaintiff weighed in at 154 puonds. [See Exhibit E].
78. From July 19, 2013 to August 24, 2013, plaintiff was not receiving milk and fruit in his meals. Officer Nichols was intially notified but said it was the kitchen staff's responsibility to include all items in meals.
80. On August 1, 2013, plaintiff notified food service staff via 22 form, but staff did not respond till August 24, 2013. On staff response, Defendant Ireland stated that since plaintiff cant seem to get fruit or milk from block (inmate) porter serving your breakfast. That food service staff will put them with breakfast and lunch trays. [The CDCR 22 form is appended hereto as Exhibit K; See Also Declarations from Block Porter Leon Davis; See, Exhibit T.
81. On August 3, 2013, plaintiff received a sealed box tray that contained state-issued items marked "PIA" (PRISON INDUSTRY AUTHORITY), specifically PIA branded bread slice bread and two pack meat slices. Which was confirmed by officer Kleiser. Now this factor is relevant for defendants contend that box trays meals come sealed and packaged by outside vendor in order to evade and allude responsibility for the underserved and contaminated meals.
82. On August 3, 2013, plaintiff submitted a CDCR 22 form to defendant Sojka and notified her that her previous excuse on the 602 that PBSP has no control over Kosher meals preparations and that PBSP has nothing to do with how meals are made has been discredited for plaintiff received a box tray with PIA items Defendant Sojka never responded to plaintiff's 22 form.
83. Instead, Defendant Young sent plaintiff a staff response on August 9, 2013, but did not address the issue at hand of finding PIA items. Rather, Young stated PBSP policy and procedure only rectifies matters involving missing or short iteams in which inmate must notify floor staff immediately in order to receive prompt cooperation. And said this was the only resolve for inmates. [The CDCR 22 form is appended hereto as Exhibit L].
84. On August 10, 2013, again plaintiff received "PIA" marked food items in a sealed box tray which was confirmed by officer Kleiser.
85. On August 11, 2013, plaintiff sent a CDCR 22 form for Supervisor Review to Defendant Sojka in which he notified her that he again received "PIA" items inside the sealed box tray and reminded her that this was the second time. And that these finding contradict her previous claim that meals were prepared by an outside vendor.
86. Again, Defendant Sojka failed to provide a response to plaintiff CDCR 22 form [See Exhibit L).
87. On December 4, 2013, plaintiff was seen by RN Penkian during a medical visit. Plaintiff was weighed in at 132 pounds. [The physician's progress notes pg 1-2 are appended hereto as Exhibit M).
88. And as a matter of relevancy, during the the times plaintiff was receiving, contaminated food (e.i., fruit cups, bologna, milk and or cream cheese) and open scattered food trays, food service staff failed to replace iteams/meals. The only time when contaminated item was replaced was on the 7 and 29 of November and December 4, 2013.
89. On January 10, 2014, plaintiff was seen by RN Penkian during a medical visit. Plaintiff was weighed in at 126 pounds. [The physician's progress notes pg 1-2 is appended hereto as Exhibit N].
90. The relevancy of plaintiff weight of 126 in comparison to December 4 weight of 132, to July 8 weight in at 154 and in January 2 weight in at 158 demonstrates the plaintiff is being deprived of a balanced nutritionally adequate diet which has caused him to lose a notable amount of weight.
91. Moreover, since November of 2013, plaintiff's frozen dinner trays were being continuously served in a compromised state for factory secured seal was peeled off and contents were tampered with for they were underserved.
92. To hide the breach, kitchen staff (Defendants) re-sealed the dinner tray with after market plastic plastic wrapping. The use of after market wrapping was previously only used on breakfast and lunch iteams, but now the entire Kosher diet is re-wrapped in after market wrapping.
93. On February 5, 2014, plaintiff submitted a CDCR 22 form to Supervisor Correctional Cook (Defendants Gomez and Halls) and notified them that the re-packaged dinner trays and other Kosher items; does not rectify the meal/iteams exposure to present contaminents nor did it constitute as of fully served nutritional meal when contents has spilled out during breakage of its factory seal. Therefore, plaintiff asked Defendants to serve factory sealed meals/iteams.[The CDCR 22 form is appended hereto as Exhibit O).
94. On February 10, 2014, defendant Gomez sent plaintiff a staff response in which he addmittingly stated the seal comes off and that is why the meal/item is re-packaged. [See Exhibit O].
95. On February 10, 2014, plaintiff sent a request for Supervisor Review to defendants notifying them he had received a response from defendant Gomez which was without recourse in regards to the re-packaging of meals/iteams. Plaintiff asked that defendants throw out compromised iteams/meals and to serve only factor sealed items/meals hence preventing the continuous serving of underserved portions and minimizing the risk of contamination. Plaintiff never received a response from defendants.
96. During the 602 process, defendant Losacco found sufficient justification to grant plaintiff's 602 specifically that meals be properly served and served in it's original container/packaging. As mentioned above this order has not been honored.
97. Defendant Lasacco granting of the plaintiff's 602 was only done in face but has not been enforce to cure plaintiff's grievance.
98. Further, plaintiff has been informed by Chaplain Larry Mitchell that defendant Losacco inherited the responsibilities of the Jewish Chaplain upon his resignation to oversee and review the JKdp and to provide results to the Correctional Food Manger, defendant Rios.
99. Moreover, defendant Losacco is in charge in the purchasing of Kosher food products which has proven to be defective in quantity and quality, as well as packaging. tiff's 602, (food manager) defendant Rias is very aware of the needs of Jewish inmates. And that a standarized Menu Review Team meet on a regular basis and is made up of Food Manager (i.e., defendant) who relay the concerns of inmates and provide input regarding portion size and nutritional balance of inmate meals.
STATEMENT OF THIRD CLAIM
101. Plaintiff hereby claims that he suffered a First Amendment violation-" to be free to exercise his religious practices"- (e.i., that is to maintain a proper Jewish Kosher diet that satisfies the dietary laws and sufficient to sustain good health and study Jewish Scripture), a right which is further protected under the Religious Land Use and Institutionalized Persons Act ("RLUIPA").Specifically, Plaintiff Kosher needs have been unmet for the Kosher meals are unsanitary and poorly prepared which renders meals to be unclean and no longer considered to be Kosher. Moreover, Defendants have failed to provide Plaintiff with Jewish Scriptures (e.g., Torah, Talmuds, Tonakh.)
102. The deprivation of Plaintiff's religious rights was done in defendants official capacity as employyes of PBSP/CDC and with deliberate indifference of his religious beliefs.
103. In 2010, Plaintiff began studying and practicing Judaism as his personal religious belief.
104. On May 30, 2012, Under the teachings and presence of Rabbi Joseph Hample, a Bar Mitzvah ceremony was conducted for Plaintiff Salas.[The Bar Mitzvah documentation is appended hereto as Exhibit P].
105. On June 5, 2012, Rabbi Hample resigned as PBSP's Jewish Chaplain and Defendant Losacco inherited the Rabbi's responsibilities in overseeing the Jewish program.
106. Further, based on Rabbi Hample's recommendation Plaintiff Salas was made inmate Jewish minister of the Jewish community in PBSP B yard facility per Title 15 §3211(a). [The Rabbi's recommendation is appended hereto as Exhibit Q]. Thus, Plaintiff is sincere in his Jewish beliefs.
107. As previously alleged in Claim 1, Plaintiff realle ges and incorporates each of the general allegations of paragraph 1 through 60 and paragraphs 61 through 100 inclusive as if allege herein.
108. Jews are required to maintain a Kosher Diet, according to the laws of Kashruth. Jews following Kashruth may only eat animals with split hooves and that chew their cud and certain fowl and fish with scales and fins. Diary products and meat are not allowed to be consumed in the same meal. It is costomary to wait atleast six hours after consuming meat to eat dairy and atleast one hour after drinking milk to eat meat. Fruit vegetables and some cereal qualify as Kosher. Kosher food must remain physically seperate from non-Kosher, as must utensils and plate.
109. And according to the Shemin; "All things that swarm upon the earth (e.g., bugs, vermin, parasites, bacteria) are an abomination; they shall not be eaten. Anything that crawls on its belly or anything that walks on four or anything that has many legs; shall not be eaten." Subsequently, if Kosher food comes in contact with bugs, vermin, parasites and or bacteria the meal is no longer deemed Kosher. In the present case at hand Plaintiff has received contaminated Kosher food that is deemed to be unclean by contact of contamination. As well, Plaintiff has received non-Kosher food items along with Kosher food which ultimately renders Kosher food to be non-Kosher by contact.
110. Take for instance on August 3, 2013, Plaintiff received "PIA" food items in his Kosher "sealed" box tray which was confirmed by Officer Kleiser [See Exhibit L]. The PIA food items are only distributed to inmates who reciev regular meals.
111. And on August 10, 2013, Plaintiff received PIA food items (i.E., sliced bread and an opened bologna pack) which was confirmed by Officer Kleiser.
112. And from November 16 until November 21, 2013, Plaintiff received non-Kosher Cheese crackers with his Kosher meals that consisted of meat. This is deemed to be in violation of Jewish Kashruth laws, for (1) dairy products and meat are not allowed to be consumed in the same meal and (2) Kosher food must remain physically separate from non-Kosher food.
113. Defendant Gomez was informed via CDCR 22, and responded to Plaintiff request, stating he will make the changes for Plaintiff is right.
114. But for two consecutive days after, Plaintiff was again served in the same manner. And again this was brought to Defendant Gomez's attention which he again assured Plaintiff the serving of non-Kosher items will come to a stop, [The CDCR 22 Form is appended hereto as Exhibit R].
-JEWISH SCRIPTURE NEED
115. As inmate Jewish minister, Plaintiff has been adamant in having Defendant Losacco provide Jewish scriptures. But defendant Losacco has failed to meet Plaintiff's request.
116. Not to mention, Plaintiff has had the entire Jewish community/in B yard to submit their own request for Jewish scripture but yet again Defendant Losacco failed to address the matter.
117. Seeing no cooperation in sight, Plaintiff had requested Unit Classification Committee ("UCC") for a hardship transfer based on PBSP (e.i., defendant Losacco) failure to provide Jewish scriptures and for not receiving a proper Kosher diet and for not having a Jewish Rabbi overseeing the Jewish program. [The 128-G is appended hereto as Exhibit S].
118. During the 602 process in which Plaintiff appealed UCC's denial of his hardship transfer, Defendant Lewis stated Plaintiff was appropriately housed in PBSP and overlooked the facts that PBSP has not been able to accomadate the Plaintiff with Jewish scriptures and other related Jewish religious accomadations.
119. Defendant Losacco and Defendant Lewis displayed deliberate indifference to Plaintiff's religious needs in being able to practice his Jewish faith.
120. It is one of Plaintiff's central tenets to study Jewish scripture. Since the destruction of the Holy Temple, Jews have been required to study scripture as an alternative to Temple practices and ceremonies.
121. Furthermore, the Talmud Shabbat 127 a sates that "the study of Torah [Jewish scripture] is equivalent to all other commandments."And without the Torah abd other Jewish scripture, Plaintiff is unable to practice this Jewish tenet which is the very outset in practicing other Jewish tenets.
122. Therefore, Defendants have placed a substantial burden on Plaintiff in order that he may practice his Jewish tenets and are violating Plaintiff's constitutional rights in being unable to practice his religion accordingly.
FIRST CLAIM FOR RELIEF
Violation of Prisoner's Eighth Amendment Right to be Free From Being Issued Contaminated Food.
123. Plaintiff realleges and incorporates by reference each allegation of paragraph 1 through 60, inclusive as if alleged herein.
124. Defendant Gomez, Halls, Plunkett, Reidel, Ireland, Young, Cooper, Lemos, Sojka, Rios, Losacco, and Lewis violated Salas's Eighth Amendment right to be free from cruel and unusual punishment in the form of being issued unsanitary contaminated food, thus denying a basis human need guranteed to prisoners by the United States Constitution.
125. In doing as alleged herein above, defendants acted with deliberate indifference to Salas personal health and subjected him to unnecessary and wanton infliction of pain, including physical injury and psychological and emotional distress in violation of his rights under the Eighth Amendment. Specifically, defendants were deliberate indifferent to Salas right to have (Jewish Kosher) food prepared and served under conditions which do not present an immediate danger to the health and well being of the plaintiff who consumes it. By virtue of the defendants reckless neglect of plaintiff who continual complaints, Salas fell extremely ill on numerous occassions (e.g., diarrhea, stomach pain, nausea, vomitting, colds et.al.) and is thus made vulnerable for further health problems.
126. Plaintiff is informed and believes and thereon alleges that supervisory officials defendants Gomez, halls, Lewis, Losacco, Rias, Sojka, and Lemos had knowledge of the acts complained of and agreed to them or allowed them to happen.
127. Plaintiff is informed and believes and thereon alleges that supervisory officials defendants Gomez, Halls, Lewis, Losacco, Rias, Sojka, and Lemos had actual knowledge for the acts complained of have been brought to their attention by prison officals/plaintiff but have been unchecked by the responsible supervisor defendants.
128. All of the defendants acted despicably, knowingly willfully and maliciously or with reckless or callous disregard for Salas Federally protected rights.
129. As a direct and proximate result of all of the defendants actions herein alleged, plaintiff Salas suffered and continues to suffer physical injury. Salas is entitled to an amount award of compensatory and punitive damages for injuries suffered.
130. As a further direct and proximate result of all of the defendants action herein alleged, Salas suffered and continues to suffer, emotional and psychological distress, Salas is entitled to an award of compensatory and punitive damages for the injuries suffered.
131. Salas is entitled to injunctive relief including but not limited to an order requiring his transfer away from PBSP where he will be subjected to retaliation instigated and/or ratified by any of the defendants. Thereis no adequate remedy at law to protect Salas from said tetalation and without the equitable relief sought he is suspectible to great and irreparable injury. The balance of hardship tips markedly toward Salas in that there would be little or no prejudice or harm to the defendants should Salas be transferred away from PBSP.
SECOND CLAIM FOR RELIEF
VIOLATION of Prisoner's Eighth Amendment Right to Have a Nutritional Adequate Diet
132. Plaintiff realleges and incorporates by reference each of the general allegations of paragraphs 1 through 60, inclusive and paragraphs 61 through 100, inclusive, of the first claim, as if alleged herein.
133. Defendants have denied Salas his Eighth Amendment right to be free from cruel and unusual punishment in the form of deprivation of a nutritional adequate diet, thus denying a basic human need guranteed to prisoners by the United States Constitution.
134. As a direct result of being deprived of a nutritional adequate diet, plaintiff was subjected to abnormal "weight loss" and hunger pangs.
135. In doing as alleged herein above, defendants acted with deliberate indifference to Salas personal health and subjected him to unnecessary and wanton infliction of pain including physical injury and psychological and emotional distress in violation of his rights under the Eighth Amendment.
136. Under the doctrine of supervisory liability defendants GOMEZ, Halls, Lewis, Losacco, Rias, Sojka and Lemos are liable for Salas injuries for they had actual knowledge of the acts complained of have been brought to the attention of prison officials but have been unchecked by the responsible supervisor and allowed the acts to happen and or agreed to them.
137. Defendants acted despicably, knowingly, willfully and maliciously, or with reckless or callous disregard for Salas federally protected rights.
138. As a direct and proximate result of all of the defendants actions herein alleged, Salas suffered and continues to suffer, physical injury. Salas is entitled to an award of compensatory and punitive damages for injuries suffered.
139. As a further direct and proximate result of all of the defendants action herein alleged, Salas suffered and continues to suffer, severe emotional and psychological distress. Salas is entitled to an award of compensatory and punitive damages for injuries suffered.
140. Salas is entitled to injunctive relief including but not limited to an order requiring his transfer away from PBSP where he will be subjected to retaliation instigated and/or ratified by any of the defendants. There is no remedy at law to protect Salas from said retaliation and without the equitable relief sought he is susceptible to great and irreparable injury. The balance of hardships tips remarkedly toward Salas in that there would be little or no prejudice or harm to the defendants should he be transfered away from PBSP.
THIRD CLAIM FOR RELIEF
Violation of Prisoner's First Amendment Right To Excercise His Religious Beliefs.
141. Plaintiff realleges and incorporates by referance each of the general allegations of paragraph 1 through 60 inclusive and paragraphs 61 through 100 and paragraphs 101 through 122 as if alleged herein.
142. Defendants have denied Salas his First Amendment Right to be free to exercise his Jewish practices in the form of depriving a proper Kosher diet as well as Jewish religious scriptures (e.g. Torah, Talmuds, Tanakh) Hence, denying a basic right guranteed to prisoners by the United States Constitution and further protected under the RLUIPA Act.
143. As a direct result of being deprived of his religious rights, Plaintiff was subjected to consuming a contaminated insalubrious improper Kosher meal resulting in Plaintiff falling ill on numerous occasions including but not limited to extreme weight loss, stomach pain, nausea, vomiting, body aches, colds, and diarreah.
144. Further, the deprivation of Jewish scripture has subjected the Plaintiff to live in an incosistent manner in light of his central tenet, for he is unable to properly study and unable to conduct a proper Jewish service as an "Inmate Jewish Minister".
145. Defendants imposed a substantial burden on Plaintiff religious exercise rights because Plaintiff is dependent on Defendants for his Jewish Kosher food and religious scriptures.
146. Defendants acted with deliberate indifference to Salas religious beliefs and subjected him to sustain an improper Kosher diet that does not satisfy the dietary laws of the Jewish faith.
147. In doing as alleged herein above, defendants have deliberately placed Plaintiff Salas personal health at risk and subjected him to unnecessary and wanton infliction of pain, physical injury and psychological and emotional distress.
148. Under the doctrine of supervisor liability, defendants Gomez, Halls, Lewis, Losacco, Rias, Sojka, and Lemos are liable for Salas rights being violated, for they had actual knowledge of the acts complained of but have went unchecked by the responsible supervisor and allowed the deprivation to continue and or agreed to them to continue.
149. Defendants acted despicably, knowingly, wilfully and maliciously or with reckless or callous disregard for Plaintiff Salas federally protected rights.
150 As a direct and proximate result of all of the defendants mention herein alleged, Salas suffered and continues to suffer, severe emotional and psychological distress. Salas is entitled to an award of compensatory and punitive damage for injuries suffered.
151. As a further direct and proximate result of all of the defendants action herein alleged, plaintiff Salas suffered and continues to suffer, severe emotional and psychological distress. Salas is entitled to an award of compensatory and punitive damages for injuries suffered.
152. Salas is entitled to injunctive relief but not limited to an order requiring his transfer away from PBSP to another institution where his religious needs could be met. The balance of hardship tips remarkedly toward Salas in that there would be little or no prejudice or harm to the defendants should he be transfered away from PBSP.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff, Rafael Salas prays for the following relief
1. Declarator relief;
2. Injunctive relief;
3. Compensatory damages according to proof;
4. Punitive damages according to proof;
5. Appoint Counsel and award reasonable attorney fees;
6. Cost of suit; and
7. Such further relief as the court deems proper.
DEMAND FOR JURY TRIAL
Plaintiff, Rafael Salas hereby demands a trial by jury.
DECLARATION OF LEON DAVIS H-49071 IN THE MATTERS OF IMPENDING CIVIL ACTION WITHIN THE PROVISION OF 42 USC 1982 FILED BY PLAINTIFF SALAS
I, Leon Davis, depose and say:
That I'M a prisoner housed as PBSP and at all times relevant herein has been so housed.
That if called as a witness in this matter, I can and will, freely and competently testify to the following truths:
That, at the relevant times mentioned in the civil complaint, I was one of the so-called "porters" that authorized by work-description to pass out lunches and milks.
That I'm aware that plaintiff Salas is a practicing adherent of Judaism and that he (Salas) therefore received a "religious" diet thats different from the standard prison regular diet.
That from the month of early July, 2013, to late August, 2013, Salas was not receiving milks of fruits in his "religious-meals" I know this to be in fact because I'm the "porter" who was instructed by c/o Nicholas to (NOT) place any milks or fruits on Salas's door because they were suppose to be in his "religious-diet "package."
In truth and in fact, there was no milks of fruits ever in Salas's "religious-diet" from the times specified herein.
It is my opinion based on observation, that custody staff here at PBSP views Salas religious diet (and others religious diets) as cumbersome.
As a result, custody is very slow-if ever-to respond to any problems associated with such diets.
That, in reaching this observation, and measuring the negative effects against the backdrop of Salas health, I took the liberty to explain directley to one of the food supervisors by the name of Ireland, that "Salas was not receiving milks of fruits in his diet and that I'm prohibited by custody from giving Salas any milks or fruits from the regular distribution" Further, "that, since no milks or fruits was included in the religious diet package received by Salas, that I was of the opinion that this was an unfair and unnecessary deprivation, especially in light of the very small portions of food being served to Salas.
Food supervisor, Ireland agreed and in turns informed me that from now on (which was late Aug. 2013 Salas would receive his fruits and milks in his religious-package or that I should give Salas said iteams from the standard distribution.
I declare under penalty of perjury of the laws of the state of California, that all of the foregoing is true and correct except to those matters stated upon observation, belief, and information, and as to those matters I believe them to be true.
Executed this 31st day of March, 2014, at PBSP in Crescent City, CA