Salas v. Gomez

          ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS RE: DKT. NO. 77

          JON S. TIGAR United States District Judge.

         INTRODUCTION

         Plaintiff, a prisoner at Pelican Bay State Prison (“PBSP”), filed this pro se civil rights action under 42 U.S.C. § 1983 alleging that PBSP officials and staff have violated his First Amendment right to religious freedom, his Eighth Amendment right to be free from cruel and unusual punishment, and his rights under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1. Plaintiff seeks declaratory and injunctive relief, as well as compensatory and punitive damages. Defendants have filed a motion to dismiss. Docket No. 77. For the reasons set forth below, the motion to dismiss is GRANTED IN PART AND DENIED IN PART.

         BACKGROUND

         I. Amended Complaint

         Plaintiff makes the following allegations in his Amended Complaint (“Am. Compl.”).

         On September 25, 2012, Community Resource Manager (“CRM”) Losacco approved Plaintiff’s request to receive a Jewish kosher diet. Docket No. 66 (“Am. Compl.”) at 10. Plaintiff alleges that CRM Losacco has responsibility for overseeing and reviewing the Jewish kosher diet menu plan; is required to “provide results” to Correctional Food Manager Reyes;^[1] and is in charge of purchasing the kosher food products. Am. Compl. at 24.

         On October 1, 2012, PBSP began distributing a generic brand of the kosher diet program, which was approved by Departmental Food Administrator Maurino. Am. Compl. at 10 and 17.

         Allegations regarding contaminated food.

         Starting November 2012, Plaintiff began to occasionally receive kosher meals that contained spoiled food or roaches. These contaminated meals caused Plaintiff to fall ill. Am. Compl. at 10-11.

         On January 13, 2013, Plaintiff submitted a prison grievance complaining about the contaminated food. Am. Compl. at 11. On February 4, 2013, Supervising Correctional Cook Gomez informed Plaintiff that he would grant the prison grievance, but asked Plaintiff to withdraw the grievance. Am. Compl. at 11-12. Plaintiff refused to withdraw his grievance. This refusal angered Gomez who responded by refusing to answer Plaintiff’s questions regarding the contaminated food. Am. Compl. at 12. On February 12, 2013, Assistant Correctional Business Manager Sojka and Correctional Business Manager Lemos interviewed Plaintiff as part of the first-level review of Plaintiff’s grievance. Am. Compl. at 12. On July 3, 2013, Warden Lewis and Chief Deputy Warden Ducart reviewed Plaintiff’s grievance regarding the contaminated food and refused to fully grant Plaintiff’s request that food be served in a humane manner, stating that PBSP had no control over Plaintiff’s food. Am. Compl. at 13.

         On July 4, 2013, Plaintiff received another contaminated kosher meal. Am. Compl. at 14. Plaintiff and his cellmate both fell ill after tasting the meal. Am. Compl. at 4. On July 7, 2013, Plaintiff notified Gomez and Supervising Correctional Cook Halls that the food had been contaminated. Am. Compl. at 14. Plaintiff submitted CDCR Form 22 Requests for Interviews (“Form 22”) to both Gomez and Halls. Am. Compl. at 14. Gomez did not respond until three months later. His response did not address the merits of the issue. Instead, Gomez stated that the Form 22 was outdated and asked Plaintiff to resubmit it. Am. Compl. at 14.

         On November 5, 7, and 10, 2013, Plaintiff received bologna sandwiches that were spoiled. Am. Compl. at 15. On November 10, 2013, Plaintiff submitted a Form 22 to Gomez and Halls informing them that he had received spoiled bologna sandwiches, spoiled cream cheese, and fermented fruit cups in his meals. Am. Compl. at 15. On November 11, 2013, kitchen staff employee Cooper responded to the Form 22 and stated that the food service had discontinued issuing the spoiled bologna sandwich per Gomez’s direction. Am. Compl. at 15. That same day, Plaintiff again received a spoiled bologna sandwich, so Plaintiff submitted another Form 22 to Gomez and Halls informing them of the spoiled meals and requesting that the spoiled food be thrown out. Am. Compl. at 15. Plaintiff never received a response to this Form 22 and this Form 22 was sent back to him the following day without a response. Am. Compl. at 16.

         Plaintiff continued to receive spoiled food throughout November. On December 1, 2013, Plaintiff sent a Form 22 to Cooks Gomez and Hall, asking that PBSP stop distributing spoiled food and asking Gomez and Hall to inform their superiors that Plaintiff continued to receive spoiled food. Am. Compl. at 16. Kitchen staff employee Ireland responded and stated that the main kitchen was working to solve the kosher lunchmeat problem and that the kitchen always replaced any spoiled foods. Am. Compl. at 17.

         On December 4, 2013, Plaintiff again received spoiled food, and he submitted a Form 22 to Sojka and Lemos informing them of the spoiled food. Am. Compl. at 16. Sojka and Lemos did not respond to this Form 22, but kitchen staff employee Reidel responded, stating that no other complaints had been received regarding the food and that Hall had personally inspected several cases of food and found no spoiled foods. Am. Compl. at 16.

         Maurino ordered that the meals be double-wrapped but this solution did not address food that had been contaminated prior to the wrapping. Am. Compl. at 17.

         Allegations regarding nutritionally inadequate food.

         Starting mid-November 2012, Plaintiff noticed that his meal portions had been reduced by half. Am. Compl. at 18. On December 2, 2012, Gomez provided Plaintiff with nutrient values for both the kosher diet in effect prior to October 1, 2012, and the current kosher diet. Am. Compl. at 19. On February 12, 2013, Sojka and Lemos implemented a procedure to address meals that were missing food items or otherwise fell short of the nutritional requirements set forth in the graphs provided by Gomez. Am. Compl. at 19.

         On April 14, May 7, and May 14, 2013, Plaintiff received meals that fell short of the nutritional requirements. Am. Compl. at 20. Plaintiff submitted Form 22s to Gomez and Hall regarding the nutritionally inadequate meals, but received no response. Am. Compl. at 20. On May 20, 2013, Plaintiff submitted a prison grievance complaining that he was not receiving his full meal portion in violation of CDCR regulations. Am. Compl. at 20. On June 15, 2013, kitchen staff employee Plunkett responded that meals were pre-packed and sealed, and that Plunkett would supervise the portions and ensure that Plaintiff was receiving the correct amounts. Am. Compl. at 20.

         From July 19 to August 24, 2013, Plaintiff did not receive milk and fruit in his meals. Am. Compl. at 21. Plaintiff submitted a Form 22 to the kitchen staff regarding his incomplete meals, which was responded to on August 24 by kitchen staff employee Ireland. Am. Compl. at 21. Ireland responded that fruit and milk would be included with Plaintiff’s breakfast and lunch trays. Am. Compl. at 21.

         On August 3, 2013, Plaintiff submitted a Form 22 to Sojka stating that it was inaccurate that PBSP had no control over preparation and packaging of kosher meals. Am. Compl. at 21. Kitchen staff employee Young responded to this grievance but did not address the issue. Am. Compl. at 22.

         On August 11, 2013, Plaintiff again submitted a Form 22 to Sojka stating that it was inaccurate that the kosher meals were prepared by an outside vendor. Am. Compl. at 22. Plaintiff received no response to this Form 22.

         Due to the nutritionally inadequate meals, Plaintiff lost over 20 pounds between January 2013 and December 2013. Am. Compl. at 19 and 22.

         On February 5, 2014, Plaintiff submitted a Form 22 to Gomez and Hall stating that the repackaging of the kosher meals did not resolve the contamination issue or the nutritional inadequacies. Am. Compl. at 23. Cook Gomez responded that PBSP repackages the meals because the vendor-provided seal comes off. Am. Compl. at 10. Plaintiff unsuccessfully sought a supervisor level review of this response.

         Plaintiff makes a general allegation that “[d]uring the 602 process, ”^[2] CRM Losacco granted his request that meals be served in their original containers and packaging. Am. Compl. at 24. Plaintiff further alleges that, during this 602 process, Plaintiff was told that Food Manager Reyes was aware of the needs of Jewish inmates and that Reyes met regularly with a Menu Review Team to address inmate concerns regarding the meal portion size and nutritional balance. Am. Compl. at 25.

         Allegations regarding housing transfer.

         On April 11, 2013, Plaintiff made a verbal request to the Unit Classification Committee (“UCC”) for a transfer to a prison that would provide him Jewish scripture, a Jewish rabbi, and a proper kosher diet, which he alleged that PBSP did not provide. Am. Compl. at 12 and 28. The UCC, composed of Correctional Counselor I Markel, Correctional Counselor II Webster, and Facility Captain Walch, denied Plaintiff’s request for a transfer, finding that he was appropriately housed at PBSP. Am. Compl. at 12. Plaintiff appealed this decision by submitting a Request for Supervisor Review and a prison grievance. Am. Compl. at 13 and 28. The prison grievance, number PBSP-N-01074, was reviewed at the first level and denied in its entirety by Correctional Captain Osborne and Correctional Administrator Bradbury. Am. Compl. at 13 and 29. Grievance number PBSP-N-01074 was reviewed by Warden Lewis, and denied by Chief Deputy Warden Ducart. Am. Compl. at 13 and 29. Plaintiff never received a response to his Request for Supervisor Review. Am. Compl. at 28.

         Allegations regarding free exercise of religion.

         Plaintiff alleges that Defendants have prevented him from exercising his First Amendment right to practice his religion by providing him with meals that are not kosher because the meals are unclean, contain non-kosher items, or otherwise violate kosher laws; and by failing to provide him with Jewish Scriptures.^[3] Plaintiff informed Gomez that he was being served meals that violated kosher laws. Am. Compl. at 66. Gomez responded that he would make the necessary changes to Plaintiff’s meals. For the two days following Gomez’s response, however, Plaintiff continued to receive meals that did not comply with kosher laws. Am. Compl. at 27. Plaintiff also alleges that CRM Losacco has refused to provide him with Jewish Scriptures. Am. Compl. at 28.

         On April 8, 2013, Plaintiff submitted a Form 22 to Correctional Counselor II Markel regarding inter alia PBSP’s failure to provide him with Jewish scriptures, and requesting a transfer to a prison which could accommodate his religious needs. Markel responded that these issues would be addressed at the April 11, 2013 UCC meeting, which is discussed supra.

         Relief Sought.

         Plaintiff claims that the aforementioned constitutional violations caused him physical injury, and emotional and psychological distress. He seeks compensatory and punitive damages. Am. Compl. at 32, 34, and 36. Plaintiff seeks injunctive relief on all his claims, including but not limited to being transferred away from PBSP so that he would not be subject to retaliation for bringing these claims. Plaintiff also seeks declaratory relief.

         II.June 16, 2015 Order of Service

         On June 16, 2015, the Court found that, liberally construed, the amended complaint stated 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 Court found that the amended complaint adequately linked defendants Gomez, Halls, Plunkett, Reidel, Ireland, Young, Cooper, Lemos, Sojka, Reyes, Losacco, Lewis, and Ducart to these claims based on their roles in denying his requests for a religious diet and other religious accommodations, and adequately linked Maurino to these claim based on her role in developing and administering new diet programs at CDCR institutions. Docket No. 67 at 5. The Court noted that the potential liability of the defendants who allegedly reviewed and rejected Plaintiff’s inmate appeals was under the First Amendment, RLUIPA, and the Eighth Amendment. The Court noted that “[i]f 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, ...