Hodges v. Sharon

          FINDINGS AND RECOMMENDATIONS RECOMMENDING GRANTING IN PART AND DENYING IN PART DEFENDANTS‘ MOTION FOR SUMMARY JUDGMENT (ECF NO. 41, 51-53) OBJECTIONS DUE WITHIN THIRTY DAYS

         Plaintiff Tyre‘id O.I. Hodges is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Currently before the Court is Defendants‘ motion for summary judgment which was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. For the reasons set forth herein, the Court recommends that Defendants‘ motion for summary judgment be granted in part and denied in part.

         I. PROCEDURAL HISTORY

         Plaintiff filed this action on May 6, 2013. (ECF No. 1.) On February 26, 2014, an order issued finding that Plaintiff had stated cognizable claims under the First Amendment and the Religious Land Use and Institutionalized Persons Act of 2000 (''RLUIPA'' against Defendants Jerald Sharon, Rosa Guembe, Kathleen Allison, Ralph Diaz, D. Foston, Darryl Heterbrink, R. Hall, Jose D. Ojeda, and J. D. Lozano, and a cognizable Equal Protection Claim against Defendant Jerald Sharon. (ECF No. 9.) Plaintiff was ordered to either file an amended complaint or notify the Court that he was willing to proceed on those claims found to be cognizable in the February 26, 2014 order. (Id. at 9-10.) On this same date, Plaintiff filed a first amended complaint. (ECF No. 10.) On March 10, 2014, Plaintiff notified the Court that he wanted to proceed on those claims found to be cognizable in the February 26, 2014 order, and requested that the first amended complaint be disregarded. (ECF No. 11.) On March 26, 2016, an order issued striking the first amended complaint. (ECF No. 12.)

         Defendants filed a motion to dismiss on August 18, 2014 which was granted on October 22, 2014, and Plaintiff‘s claim for monetary damages under RLUIPA was dismissed. (ECF Nos. 20, 28.)

         On December 30, 2015, Defendants filed the instant motion for summary judgment. (ECF No. 41.) After receiving several extensions of time, Plaintiff filed an opposition on February 24, 2016.^[1] (ECF Nos. 51-53.)

         II. LEGAL STANDARD

         A. Motion for Summary Judgment

         Any party may move for summary judgment, and the Court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a) (quotation marks omitted); Washington Mut. Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Summary judgment must be entered ''against a party who fails to make a showing sufficient to establish the existence of an element essential to that party‘s case....'' Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). ''[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ‘ which it believes demonstrate the absence of a genuine issue of material fact.'' Celotex Corp., 477 U.S. at 322.

         If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Each party‘s position, whether it be that a fact is disputed or undisputed, must be supported by (1) citing to particular parts of materials in the record, including but not limited to depositions, documents, declarations, or discovery; or (2) showing that the materials cited do not establish the presence or absence of a genuine dispute or that the opposing party cannot produce admissible evidence to support the fact. Fed.R.Civ.P. 56(c)(1) (quotation marks omitted). The Court may consider other materials in the record not cited to by the parties, but it is not required to do so. Fed.R.Civ.P. 56(c)(3); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010).

         In judging the evidence at the summary judgment stage, the Court does not make credibility determinations or weigh conflicting evidence, Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) (quotation marks and citation omitted), and it must draw all inferences in the light most favorable to the nonmoving party and determine whether a genuine issue of material fact precludes entry of judgment, Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011) (quotation marks and citation omitted).

         B. Religious Land Use and Institutionalized Persons Act

         Section 3 of RLUIPA provides that ''[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, unless the burden furthers a compelling governmental interest, and does so by the least restrictive means.'' Cutter v. Wilkinson, 544 U.S. 709, 712 (2005) (internal punctuation omitted) (quoting 42 U.S.C. § 2000cc-1(a)(1)-(2)). Religious exercise includes ''any exercise of religion, whether or not compelled by or central to, a system of religious belief.'' Cutter, 544 U.S. at 715 (quoting 42 U.S.C. § 2000cc-5(7)(A)). In enacting RLUIPA, Congress replaced the ''legitimate penological interest'' standard with the '' 'compelling governmental interest‘ and 'least restrictive means‘ tests codified at 42 U.S.C. § 2000cc-1(a).'' Warsoldier v. Woodford, 418 F.3d 989, 994 (9th Cir. 2005).

         Section 3 applies to state run institutions such as prisons. Cutter, 544 U.S. at 722 (citing 42 U.S.C. § 2000cc-1(a)). RLUIPA does not elevate accommodation of religion over an institutions need to maintain order and safety. Cutter, 544 U.S. at 723. In enacting RLUIPA, the legislature expected courts to apply the standards of RLUIPA with ''due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good order, security and discipline, consistent with consideration of costs and limited resources.'' Cutter, 544 U.S. 709, 723 (2005) (citations omitted).

         The inmate bears the initial burden of presenting evidence to demonstrate a prima facie claim that the conditions he is objecting to constitute a substantial burden on the exercise of his religious beliefs. Warsoldier, 418 F.3d at 994. If the inmate establishes the prima facie existence of a substantial burden on exercise of his religious beliefs, then the defendants bear the burden of proving that any substantial burden on the exercise of the inmate‘s religious beliefs is both in furtherance of a compelling governmental interest and the least restrictive means for furthering that compelling governmental interest. Id. at 995. RLUIPA is to be broadly construed in favor of protecting an inmate‘s right to exercise his religious beliefs. Id.

         ''[A] 'substantial burden‘ on 'religious exercise‘ must impose a significantly great restriction or onus upon such exercise. Warsoldier, 418 F.3d at 995 (quoting San Jose Christian Coll. v. City of Morgan Hill, 360 F.3d 1024, 1034 (9th Cir.2004)). The Supreme Court has also found a substantial burden ''where the state denies an important benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs.'' Warsoldier, 418 F.3d at 995 (quoting Thomas v. Review Bd. of the Ind. Employment Sec. Div., 450 U.S. 707, 717-18 (1981)).

         RLUIPA provides a safe harbor provision by which the government entity may avoid liability under RLUIPA ''by changing the policy or practice that results in a substantial burden on religious exercise, by retaining the policy or practice and exempting the substantially burdened religious exercise, by providing exemptions from the policy or practice for applications that substantially burden religious exercise, or by any other means that eliminates the substantial burden.'' 42 U.S.C. 2000cc-3(e). While the Court does not find any published Ninth Circuit case construing this provision, courts have interpreted it according to its ordinary meaning. Forter v. Geer, 868 F.Supp.2d 1091, 1098 (D. Or. 2012), aff d, 536 F. App‘x 724 (9th Cir. 2013).

         III. ALLEGATIONS IN COMPLAINT

         On October 23, 1998, Plaintiff was transferred to the California Substance Abuse Treatment Facility (''CSATF'') and is currently housed in Facility A Building 2. (Compl. ¶ 22, ECF No. 1.) Although Plaintiff had been born Jewish, prior to his incarceration he had practiced Hebrew Christianity. (Id.) In 1995, Plaintiff adopted the beliefs of Messianic Judaism, and from 1995 to 2009, he was not able to practice his faith in an open forum. (Id.) In November 2009, the Messianic Jewish members were afforded the opportunity to have use of the Facility Chapel but without a Messianic Jewish Rabbi, no Messianic Jewish prayer books, no bibles, no prayer shawls, no skull caps, or Messianic Jewish CDs or DVDs. (Id.) Plaintiff also requested to have kosher meals provided for the specific Holy Days and a daily kosher diet, but the request was denied by Defendant Sharon (Jewish Chaplain) after a lengthy interview. (Id.)

         On August 3, 2010, Plaintiff filed an inmate appeal requesting that his religious designation be made Messianic Judaism. (Id.) Plaintiff sought to have Messianic Judaism be listed under the Jewish category and be officially endorsed by the prison and the California Department of Corrections and Rehabilitation (''CDCR''). (Id.) Plaintiff also sought to have specified days for Messianic Jewish services, kosher religious meals, to be excused from work for religious observances, and noted that a Messianic Jewish rabbi was required for religious services. (Id.)

         On August 27, 2010, Plaintiff was interviewed by Defendant Guembe (the Catholic Chaplain) who was being consulted by Defendant Sharon. (Id.) The appeal was partially granted at the first level, and Plaintiff was allowed to worship on Saturdays, from Friday sundown to Saturday morning with services on Saturday morning, and the Seven Jewish ''Holy Days'' which was already permitted under the prison regulations. (Id.) Plaintiff was denied the request to have Messianic Judaism be considered under the Jewish category, kosher meals for Holy Days and daily consumption, and relief from work assignments on Holy Days. (Id.)

         Plaintiff appealed to the second level of review. (Id.) On June 20, 2012, the appeal was denied by Defendant Foston (Chief Inmate Appeals). (Id.)

         On October 25, 2010, Plaintiff filed an appeal and requested permission to hold a Chanukah religious meal on December 3, 2010, as the second religious meal of the year. (Id. at ¶ 23.) On November 6, 2010, Plaintiff was interviewed by Defendant Heterbrink (Protestant Chaplain). (Id.) Plaintiff‘s request was refused because he did not meet the time guidelines because he had submitted his request too late and did not have a proposed menu, although Plaintiff contends that the appeal was timely and included a proposed menu. (Id.)

         On January 28, 2010, the appeal was partially granted at the second level by Defendant Allison. (Id.) At the meal on January 11, 2011, Messianic Jewish believers were required to eat with the traditional Christians and were not provided a kosher meal. (Id.) Plaintiff submitted a third level appeal on February 1, 2011. (Id.)

         On or about September 9, 2011, Plaintiff received a response from the director‘s level of review. (Id.) It was found that Messianic Jewish inmates expressed a sincere desire to celebrate both Yom Kippur and Passover with a special meal in accordance with their sincerely held religious beliefs. (Id.) It was found that the requirement that the Jewish join the traditional Christian in celebrating Christmas and Easter is contrary to their expressed beliefs that those two holidays are pagan and as such, they have no wish to celebrate them. (Id.) The matter was referred to CSATF‘s Religious Review Committee (''RRC'') for consideration of Plaintiff‘s request. (Id.)

         Defendant Allison ignored the modification order and stated that when Jewish feasts are celebrated Messianic Jewish inmates will be served regular meals and added to Jewish meals, which is contrary to Plaintiff‘s sincerely held relief beliefs. (Id.) Defendant Sharon continued to deny Plaintiff‘s request for kosher meals to be served to the Messianic Jewish group during the Passover week. (Id.)

         On December 5, 2010, Plaintiff filed an appeal and requested a Chanukah special religious meal, which was to be the last High Holy meal of the year. (Id. at ¶ 24.) On January 17, 2011, Plaintiff was interviewed by Defendant Sharon. (Id.) Plaintiff was denied attendance to the Chanukah religious meal by Defendant Sharon because Messianic Jews such as Plaintiff are not considered to be Jewish. (Id.) However, Defendant Sharon allowed four other Messianic Jewish inmates to attend the Chanukah service. (Id.)

         On January 27, 2011, Plaintiff submitted the appeal to the second level of review. (Id.) On or about April 19, 2011, Plaintiff received a second level response to his appeal. (Id.) In the second level response, Defendant Hall, made note in the summary that Plaintiff was ''not Jewish [and] not eligible for the Chanukah meal.'' (Id.) The appeal was ultimately denied by Defendant Allison. (Id.)

         On April 25, 2011, Plaintiff submitted an appeal to the director‘s level of review. (Id.) On or about August 26, 2011, Plaintiff received the director‘s level response which stated that the event in question was provided for inmates of the traditional Jewish faith and not of the Messianic Jewish faith and that any inmate may request a special religious event through an institutional Chaplain for his particular faith. (Id.) The appeal was denied. (Id.)

         On December 27, 2010, Plaintiff, along with 15 other members of the Messianic Jewish group, filed an appeal. (Id. at ¶ 26.) On December 20, 2010, Plaintiff was interviewed by Defendant Ojeda, and Plaintiff contended that religious services for Messianic Jewish inmates and Native American inmates housed at Facility G had been scheduled at the same time in the chapel library on the first and third Saturdays of the month from 1200 to 1400 hours. (Id.) Plaintiff explained that the entire situation had become volatile and tense the prior week. (Id.) It was requested that Plaintiff be provided time in the main chapel area from 9:00 to 11:00 a.m. on Saturday. (Id.) Plaintiff was advised that if he withdrew the appeal he could be given the first and third Saturdays of the month. (Id.) However, Plaintiff refused to sign-off on the appeal, and Defendant Ojeda only gave his group one day per month. (Id.) The appeal was partially granted. (Id.)

         On February 6, 2011, Plaintiff submitted his appeal for second level review. (Id.) On April 5, 2011, he received a second level response. (Id.) Appeals Coordinator Gomez attached a copy of the schedule posted on the chapel door which showed that Messianic Jewish inmates were not listed on the worship schedule on Saturday mornings and concluded that a modification order should be granted stipulating that the RRC review the request to allow Messianic Jewish inmates to worship and congregate in the chapel on Saturday from 0900 to 1100 hours. (Id.)

         On April 12, 2011, Plaintiff submitted his appeal to the director‘s level. (Id.) On or about September 10, 2011, the appeal was denied by Defendant Foston because the request had been granted at the second level. (Id.)

         On August 29, 2011, Plaintiff requested a ''breaking our fast'' religious meal for Yom Kippur. (Id. at ¶ 27.) On October 12, 2011, Plaintiff was interviewed by Defendant Ojeda regarding the appeal in which he and others expressed a sincere desire to celebrate both Yom Kippur and Passover with a special religious meal. (Id.) The appeal was granted and Plaintiff was to be provided a religious meal during the month of December 2011 since Yom Kippur had already passed. (Id.) The request for kosher meals and kosher items were denied. (Id.) Plaintiff submitted the appeal to the second level on October 30, 2011. (Id.) On January 2, 2012, Plaintiff‘s appeal was denied stating that Messianic Jews have not been approved for kosher meals by the Jewish chaplain. (Id.) Plaintiff submitted the appeal to the director‘s level and on June 30, 2012, Plaintiff received a response from Defendant Lozano that his appeal was denied because he failed to substantiate that staff at CSATF had failed to adhere to departmental guidelines regarding religious diets. (Id.)

         On May 5, 2012, Plaintiff filed an appeal requesting approval for kosher meals two times yearly for religious event meals. (Id. at ¶ 28.) Plaintiff also addressed being forced to defile himself for the past four years because he was being refused daily kosher meals and two yearly kosher religious event meals. (Id.) Plaintiff first addressed the issue with Defendant Ojeda who informed him he needed to fill out a ''Jewish Chaplain Verification Form-. (Id.) Plaintiff filed out the form and was subsequently informed there was no Jewish rabbi on staff so no kosher meals were being approved. (Id.) Plaintiff was also informed that Messianic Jewish inmates were not being approved kosher meals and the policy was under review in Sacramento. (Id.) Plaintiff‘s appeal of the decision was cancelled as a duplicate appeal. (Id.)

         On February 20, 2012, Plaintiff filed an appeal seeking a Passover special religious meal for 20 people to be held on April 7, 2012. (Id. at ¶ 29.) Plaintiff requested a Seder meal to include the kosher meal of the day, and kosher foods necessary to observe the Passover Seder: grape juice, Mitzvah, one egg, Cyanosis, romaine lettuce, bitter herbs and grape juice and Mitzvah for the entire week, and 20 copies of the Messianic Jewish Passover Haggadic. (Id.) On January 21, 2012 Plaintiff was interviewed by Defendant Ojeda who informed Plaintiff that Messianic Jews were to be provided with accommodations regarding Jewish celebrations but would be provided with regular, and not kosher meals. (Id.) Plaintiff submitted a second level appeal which was partially granted by Defendant Diaz on May 9, 2012. (Id.) Plaintiff submitted the appeal to the director‘s level and it was received back on August 16, 2012 cancelled as a duplicate appeal. (Id.) The response noted that the prior appeal had found that rejection of the request and the direction that Plaintiff join Christians in celebrating Christmas and Easter is contrary to Plaintiff‘s sincerely held religious beliefs. (Id.)

         Plaintiff was informed by Defendant Ojeda that CDCR no longer provides special religious meals. (Id.)

         On January 15, 2012, Plaintiff filed an appeal requesting that all Messianic Jews be allowed to worship in the chapel with Torah readings, singing, prayers and communion with grape juice and Matzah on Saturdays. (Id. at ¶ 30.) Defendant Ojeda concluded that there were no religious volunteers or chaplain staff to supervise the group on the day and time requested. (Id.) The group was provided evening chapel on Friday evenings every other week. (Id.) On March 26, 2012, Plaintiff received a second level response from Defendant Diaz stating that Plaintiff was being accommodated with Friday worship services. (Id.) The response stated that the schedule could not be modified until a Jewish chaplain is hired or volunteers are accepted. (Id.) The director‘s level response was received on July 30, 2012. (Id.) Defendant Lozano stated that until a Jewish Chaplain was hired or volunteers were accepted the current schedule would not be modified. (Id.)

         On January 29, 2012, Plaintiff filed an appeal requesting Messianic Jewish artifacts and a religious vendor be added to the vendor list. (Id.) Plaintiff also requested that all Messianic Jewish groups at the institution receive one bottle of kosher grape juice and one box of Matzah with 20 4 oz. Kiddush cups every week for weekly Messianic Jewish service and receive daily kosher meals. (Id. at ¶ 31.) Plaintiff was interviewed by Defendant Ojeda on February 24, 2012 who found that Messianic Jewish religious artifacts matched the items listed on the Jewish vendor list. (Id.) It is a matter of fact that all Messianic Jewish believers use the same religious artifacts as members of the Jewish faith. (Id.) Especially in the case of Plaintiff because he was born Jewish. (Id.) The vendor ''Jews for Jesus‘ was not added to the vendor list. (Id.) Plaintiff submitted the appeal to the second level and director‘s level where it was cancelled as duplicative. (Id.)

         Plaintiff contends that if he is transferred to another prison he would be required to sell his religious property or send it home. He states that all Messianic Jewish inmates should be allowed to have the following tools on their person at all times: one medal and chain; ten spiritual audio tapes or CDs; ten spiritual books (soft cover only); two prayer shawls (Tallit); two skull caps (Yarmulke); materials to make Yarmulke, if not ordering; one Mezuzah (plastic or wood no metal); two ounces anointing oil (non-alcoholic/non-flammable); one set of 4 Tzitzit; one Tfillin (leather rap with scroll box); two Katan (Tallit vest); and one Kiddush cup (plastic). (Id. at pp. 24-25.) Plaintiff seeks to have CDCR provide the following religious items to all Messianic Jewish inmates throughout the CDCR: one complete Torah scroll; ten Messianic Jewish Hebrew/English bibles (soft cover only); ten Messianic Jewish prayer books (soft cover only); ten Messianic Jewish song books (soft cover only); two Shabbat lamp stands; Shabbat candles (two per week); one Havdalah set (candle holder); two Havdalah candles; one Chanukah menorah; Chanukah menorah candles (8 boxes); one rams horn (not to exceed 11 inches); Passover plate and matzah; and Kiddush cup for each member. (Id. at p. 26.)

         Plaintiff seeks the following injunctive relief: 1) a religious designation for Messianic Judaism to be officially accepted and endorsed by all CDCR; 2) CDCR hire a Messianic Jewish chaplain for all designated institutions; 3) CDCR allow all Messianic Jewish inmates throughout CDCR to have the Passover plate and matzah, Kiddush cup, matzah and grape juice for Passover and weekly Shabbat services, and Messianic Jewish DVD‘s or CDs; 4) CDCR allow all Messianic Jewish inmates throughout CDCR to use his designated vendors; 5) all Messianic Jewish inmates to be allowed to worship on Saturday mornings; 6) all Messianic Jewish inmates be allowed to attend two kosher special religious meals per year; 7) all Messianic Jewish inmates be given three kosher meals daily; 8) Plaintiff be provided with three kosher meals daily until a decision is made in this suit; 8) Plaintiff be provided with two kosher special religious meals per year until decision is made in this suit; 9) Plaintiff not be transferred until a decision is made in this suit; 10) Plaintiff be allowed to worship on Saturday mornings; 11) all Messianic Jewish inmates housed in Arizona for CDCR be allowed to stay on the kosher diet program and be allowed to continue having Saturday morning services; 12) Inmate Gary Poucher be granted Amicus Curie status because Plaintiff is legally blind and cannot represent himself without assistance; and 13) the Court appoint an attorney for Plaintiff because he is blind and unable to adequately represent himself without assistance. (Id. at pp. 29-31.)

         IV. UNDISPUTED FACTS

         1. California Code of Regulations, title 15, section 3210, governs the establishment of religious programs at CSATF.

         2. CSATF officials must make every reasonable effort to provide for the religious and spiritual welfare of all interested inmates, including, but not limited to, affording inmates a reasonable accommodation to attend a scheduled religious service if they are unable to do so due to conflicting work/education assignments.

         3. Reasonable accommodation may include, but is not limited to, modified work schedule, use of accrued time or allowable breaks, granting of a job/assignment change, changes of regular days off, etc.

         4. Use of reasonable accommodation shall in no way adversely impact an inmate‘s credit earning status.

         5. Depending upon the number of inmates of the various faiths, chaplains may be employed or their services may be accepted on a nonpaid volunteer basis.

         6. When feasible, separate space for services of the faith groups represented by a substantial number of inmates shall be provided.

         7. However, in some facilities, such as camps, it is necessary for the various faith groups to share such space as is available for religious services.

         8. Reasonable time and accommodation must be allowed for religious services in keeping with facility security and other necessary institutional operations and activities.

         9. Insofar as possible, other facility activities shall be planned so as not to conflict with or disrupt scheduled religious services.

         10. A request for a religious service accommodation that requires a specific time, location and/or item(s) not otherwise authorized, will be referred to a RRC for review and consideration.

         11. The RRC is comprised of designated chaplains, and a correctional captain or their designee.

         12. Accommodation for religious services that are not granted, shall be for reason(s) which would impact facility/unit safety and security, and orderly day to day operations of the institution.

         13. Chaplain Alvarez schedules religious services for the various faith groups on Facility A at CSATF.

         14. Chaplain Alvarez also oversees the Messianic Jewish bible study on Facility A at CSATF.

         15. Chaplain Alvarez knows Plaintiff, and is familiar with Plaintiff because Plaintiff is an inmate assigned to Facility A at CSATF, and Plaintiff actively participates in the ...