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Avery v. Beard

United States District Court, S.D. California

March 20, 2017

KYLE AVERY, CDCR #E-67897, Plaintiff,
v.
J. BEARD, KELLY HARRINGTON, RALPH DIAZ, KATHLEEN ALLISON, VINCENT CULLEN, NATALIE FRANSHAM, DAVID SKAGGS, DAWN DESROSIERS, M.D. STAINER, TIMOTHY M. LOCKWOOD, S.K. HEMENWAY and R.L. BRIGGS, Defendants.

         ORDER: (1) GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(B)(6); (2) DISMISSING DEFENDANTS DIAZ, ALLISON, CULLEN, FRANSHAM, SKAGGS, DESROSIERS AND STAINER; (3) GRANTING PLAINTIFF'S MOTION FOR STAY; AND, (4) ISSUING A 90-DAY STAY

          Barry Ted Moskowitz, Chief Judge.

         Kyle Avery (“Plaintiff”), a prisoner at the Richard J. Donovan Correctional Facility (“RJD”) in San Diego, California, is proceeding pro se and in forma pauperis (“IFP”) with a complaint pursuant to the Civil Rights Act, 42 U.S.C. § 1983. (ECF No. 1.) Plaintiff claims that employees of the California Department of Corrections and Rehabilitation (“CDCR”) are unconstitutionally denying him equal protection of the laws and interfering with the free exercise of his religious beliefs by denying separate outdoor worship areas for practitioners of the Wiccan and Odinist religions. (ECF No. 1 at 17-38.)[1] He seeks fees, costs, a jury trial, a declaration of rights, and an injunction requiring separate outdoor worship facilities for Wiccans and Odinists, as well as the appointment of a paid pagan chaplain and mandatory religious tolerance classes for CDCR employees. (Id. at 39-40.)

         Defendants Diaz, Allison, Cullen, Fransham, Skaggs, Desrosiers and Stainer have filed a Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6), on the basis that the Complaint fails to allege they personally participated in the asserted constitutional violation.[2] (ECF No. 23.) These Defendants contend that their only connection to this case, and the only allegation against them in the Complaint, is that they were recipients of a CDCR memorandum setting forth guidelines for the establishment of new outdoor worship areas and the standardization of such existing areas. (Id. at 9-10.) In addition, all Defendants seek to dismiss any claim Plaintiff purports to bring on behalf of practitioners of the Odinist religion, because they contend that Plaintiff is a Wiccan and not an Odinist, and as a pro se litigant is precluded from bringing claims on behalf of others. (Id.)

         Plaintiff opposes the Motion to Dismiss, arguing that he is not asserting claims on behalf of others because he is involved with both the Wiccan and Odinist religions, but in any case the gravamen of his Complaint is that an exclusive worship area is needed by the Wiccans, and not one shared with the Odinists as CDCR policy requires. (ECF No. 29 at 2-4.) He argues that he has alleged personal participation by all of the Defendants through their receipt of the CDCR memorandum because it shows they were aware of and failed to prevent the alleged constitutional violation, and they would not have received it if they were not involved in the policy decision which caused the violation. (Id. at 4-6.)

         Plaintiff has also filed a Motion for a Stay pending exhaustion of administrative remedies. (ECF No. 29.) He states that he has already begun exhausting administrative remedies with respect to the lack of a sweat lodge and a request for Wiccan spiritual items. (ECF No. 27 at 5.) He requests a stay of this action until he completes the exhaustion process, after which he will amend his Complaint. (Id.) Defendants have filed a Reply in which they do not oppose a stay pending exhaustion of administrative remedies, although they reserve the right to move to dismiss any amended complaint, and repeat that they are entitled to dismissal due to the lack of allegations of their personal involvement in the alleged constitutional violation. (ECF No. 32.)

         The Court has previously informed the parties that proposed findings and recommendations by the magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(A) and S.D. Cal. CivLR 72.3(a) would not be necessary. (ECF No. 25.) Having considered the papers submitted, and for the reasons discussed below, the Court finds that Plaintiff has failed to state a plausible claim upon which relief may be granted as to Defendants Diaz, Allison, Cullen, Fransham, Skaggs, Desrosiers and Stainer, and therefore GRANTS in part the Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6) and DISMISSES these Defendants without prejudice. Because Plaintiff is not attempting to represent other individuals in this action, the Court DENIES in part the Motion to Dismiss on that basis. The Court GRANTS Plaintiff's unopposed Motion for a Stay, and ISSUES a brief stay pending exhaustion of administrative remedies.

         I. Plaintiff's Complaint

         Plaintiff attaches to his Complaint a January 20, 2015, CDCR Memorandum from Defendant Kelly Harrington, the Acting Director of the Division of Adult Institutions, which is addressed to the Associate Directors of the Division of Adult Institutions, the Wardens of the CDCR prisons, and the Community Resources Managers. (ECF No. 1 at 15-16.) The memorandum sets forth revised guidelines for building new outdoor religious and spiritual grounds and the standardization of any such areas already in existence. (Id.) It recognizes that any new areas created would be in addition to Native American sweat lodge grounds already in existence, which practitioners of other religions are not permitted to use. (Id.) Plaintiff filed an inmate grievance contending that the Wiccan and Asatru religions (Plaintiff uses Odinist and Asatru interchangeably), as does the Native American religion, require separate spiritual areas, and that requiring Wiccans and Asatrus to share a spiritual area prevented him, as a Wiccan, from practicing his faith according to his sincerely held beliefs. (Id. at 17-18, 45-46.)

         Plaintiff alleges in his Complaint that the denial of a separate outdoor spiritual area for practitioners of the Wiccan and Odinist/Asatru religions impairs their ability to freely exercise their religious beliefs, as does the CDCR policy which prohibits symbolism and totems, essentially requiring any spiritual grounds to be a bare dirt area with no permanent symbols. (Id. at 19-38.) He alleges symbolism is a central tenant of the Wiccan and Odinist religions, but they have different symbols, and the denial of the ability to have permanent symbols in their own separate space denies them the ability to strengthen the energy of the area in order to make it sacred and sanctified, because the energy is reset whenever a non-adherent enters the area and when the symbols are removed and replaced. (Id.)

         The factual allegations against Defendants Diaz, Allison, Cullen, Fransham, Skaggs, Desrosiers and Stainer consist entirely of the fact that their names or job titles are listed on the January 20, 2015 memorandum. (Id. at 12-14, 20-21, 29, 32.) Plaintiff claims they are liable for depriving him of the ability to practice his sincerely held religious beliefs solely by virtue of their having received the January 20, 2015 memorandum, because it made them aware of the constitutional violation arising from the lack of separate spiritual areas for the Wiccan and Asatru religions, and because they would not have received the memorandum if they did not have “the ability to end it or created the policy.” (Id. at 20-21.) Unlike these Defendants, the Complaint contains allegations of personal participation by the remaining Defendants, Beard (id. at 12, 26-28), Lockwood (id. at 14, 29-30), Hemenway (id. at 14, 18, 25), Harrington (id. at 12), and Briggs (id. at 14, 18, 25), who have not joined this aspect of the Motion to Dismiss.

         Plaintiff divides his pleading into three causes of action. In his first cause of action he claims the Defendants coerced him and other Wiccans and Asatrus in California prisons to abandon a sincerely held religious practice in violation of the First Amendment to the United States Constitution. (ECF No. 1 at 21-30.) In the second cause of action he claims the Defendants took that action in violation of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc, et seq., which permits the Court to issue injunctive relief. (Id. at 31-33.) And in the third cause of action he claims that the Defendants have violated his rights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by treating the Wiccan and Odinist religions differently than the Native American religion. (Id. at 34-38.)

         Plaintiff does not seek money damages, but seeks a declaration of the rights of the parties, as well as fees, costs, and a jury trial. (Id. at 39.) He also seeks an injunction requiring separate outdoor worship facilities for Wiccans and Odinists with running water, security fencing, altars, storage lockers, and ADA compliant walkways, as well as the appointment of a paid pagan chaplain, and mandatory religious tolerance classes for CDCR employees. (Id. at 39-40.)

         II. ...


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