United States District Court, N.D. California
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO
DISMISS RE: DKT. NO. 77
TIGAR United States District Judge.
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.
makes the following allegations in his Amended Complaint
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; and is in charge of purchasing the kosher
food products. Am. Compl. at 24.
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.
regarding contaminated food.
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.
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.
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.
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.
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.
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.
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.
regarding nutritionally inadequate food.
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.
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.
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.
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.
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.
the nutritionally inadequate meals, Plaintiff lost over 20
pounds between January 2013 and December 2013. Am. Compl. at
19 and 22.
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.
makes a general allegation that “[d]uring the 602
process, ” 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
regarding housing transfer.
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.
regarding free exercise of religion.
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. 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
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
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
16, 2015 Order of Service
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