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Giraldes v. Beard

United States District Court, E.D. California

July 13, 2016

LARRY GIRALDES, JR., Plaintiff,
v.
JEFFREY BEARD, Defendant.

          ORDER

          CAROLYN K. DELANEY, UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         Plaintiff is a California prisoner proceeding through counsel in this civil rights action pursuant to 42 U.S.C. § 1983. In his July 28, 2014 complaint, plaintiff seeks to permanently enjoin the California Department of Corrections and Rehabilitation (“CDCR”) from enforcing Title 15 Cal. Code Regs. § 3177(b)(2), which prohibits conjugal visits for certain classes of inmates, including those sentenced to life who have not yet received a parole date. Plaintiff, who married in 2013, claims this policy violates his right to practice his Catholic religion, which requires marriages to be consummated. He brings claims under the First Amendment and the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). (ECF No. 1 (“Compl.”).)

         The undersigned found that service was appropriate for (former) CDCR Secretary Jeffrey Beard. (ECF No. 9.) On November 6, 2014, defendant answered the complaint. (ECF No. 13.) On March 11, 2015, plaintiff’s motion to appoint counsel was granted. (ECF No. 18.)

         Before the court is plaintiff’s April 4, 2016 motion for preliminary injunction, seeking an order barring CDCR from enforcing § 3177(b)(2) against him to bar overnight visits with his wife pending the resolution of the merits of this case. (ECF No. 45 (“Mot.”).) Defendant has filed an opposition (ECF No. 50), and plaintiff has filed a reply (ECF No. 51). Following a July 6, 2016 hearing on the motion in which attorney Alan Reinach appeared for plaintiff and Deputy Attorney General Arthur Mark appeared for defendant, the motion was submitted. (ECF No. 52.) Both parties have consented to magistrate judge jurisdiction to conduct all proceedings in this matter. (ECF Nos. 3 & 12.)

         II. Legal Standard for Preliminary Injunction

         The legal principles applicable to a request for injunctive relief are well established. To prevail, the moving party must show either a likelihood of success on the merits and the possibility of irreparable injury, or that serious questions are raised and the balance of hardships tips sharply in the movant’s favor. See Coalition for Economic Equity v. Wilson, 122 F.3d 692, 700 (9th Cir. 1997); Oakland Tribune, Inc. v. Chronicle Publ’g Co., 762 F.2d 1374, 1376 (9th Cir. 1985). The two formulations represent two points on a sliding scale with the focal point being the degree of irreparable injury shown. Oakland Tribune, 762 F.2d at 1376. “Under any formulation of the test, plaintiff must demonstrate that there exists a significant threat of irreparable injury.” Id. In the absence of a significant showing of possible irreparable harm, the court need not reach the issue of likelihood of success on the merits. Id.

         III. Facts

         Since 1993, plaintiff has been serving a life sentence with the possibility of parole for his conviction for multiple felony offenses, including two counts of first degree murder. A Level IV maximum-security prisoner at California State Prison-Sacramento, plaintiff has not been given a parole date and has a minimum release date of March 21, 2039.[1] His custody status is Medium A.

         Plaintiff is an observant Roman Catholic. In October 2013, he legally married his childhood friend, Cheree Giraldes, in prison. Plaintiff’s application for a family overnight visit with his wife was denied. To date, plaintiff and his wife have not been able to consummate the marriage or spend time alone together in a private setting.

         Section 3177(b) provides that family visiting is a “privilege” that “shall be restricted as necessary” to maintain prison order and security. Inmates may lose family visiting privileges based on documented misconduct. Family visiting is not permitted for certain types of inmates, including those “convicted of a violent offense involving a minor or family member or any sex offense.” Section 3177(b)(2) provides:

Family visits shall not be permitted for inmates who are in any of the following categories: sentenced to life without the possibility of parole; sentenced to life, without a parole date established by the Board of Parole Hearings; designated Close A or Close B custody; designated a condemned inmate; assigned to a reception center; assigned to an administrative segregation unit; assigned to a security housing unit; designated “C” status; guilty of one or more Division A or Division B offense(s) within the last 12 months; or guilty of narcotics distribution while incarcerated in a state prison.

(Emphasis added.) Plaintiff is categorically denied family visits per both of the underlined provisions: a life sentence without a parole date and, alternatively, a disciplinary conviction for distributing narcotics in prison.

         IV. Legal Standards for Plaintiff’s Claims

         A. Free Exercise

         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). A prisoner is not required to objectively show that a central tenet of his faith is burdened by a prison regulation to raise a viable claim under the Free Exercise Clause. Id. at 884-85. Rather, the sincerity test of whether the prisoner’s belief is “sincerely held” and “rooted in religious belief” determines whether the Free Exercise Clause applies. Id. The prisoner must show that the religious practice at issue satisfies two criteria: (1) the proffered belief must be sincerely ...


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