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Salas v. Gomez

United States District Court, N.D. California

July 9, 2014

RAFAEL SALAS, Plaintiff,
v.
MICHAEL GOMEZ, et al., Defendants.

ORDER OF SERVICE

JON S. TIGAR, District Judge.

INTRODUCTION

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.

BACKGROUND

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.

DISCUSSION

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).

CONCLUSION

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).[1] 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.

JURISDICTION

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.

VENUE

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.

INTRODUCTION

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.

PARTIES

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.

FACTS

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. ...


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