United States District Court, E.D. California
KASEY F. HOFFMAN, Plaintiff,
LASSEN ADULT DETENTION FACILITY, et al., Defendants.
ORDER AND FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE
is a state prisoner, proceeding without counsel, with a civil
rights action pursuant to 42 U.S.C. § 1983. Pending
before the court are several motions including
plaintiff's motion for summary judgment (ECF No. 73)
(construed as an opposition to defendants' motion for
extension of time), plaintiff's motion for seizure of
assets (ECF No. 68), plaintiff's motion for an extension
of time to conduct discovery (ECF No. 69), cross motions for
motion for summary judgment (ECF Nos. 65, 81), and
plaintiff's motion for punitive damages (ECF No. 84).
carefully considering the record, the undersigned recommends
that defendants' motion for summary judgment be granted
in part and denied in part, and plaintiff's motion for
summary judgment be denied. The undersigned orders that
plaintiff's other pending motions are denied.
Plaintiff's Motion for Extension of Time to Conduct
Discovery (ECF No. 69)
Rule 16 of the Federal Rules of Civil Procedure, the court
may modify the scheduling order in this case for “good
cause.” Fed.R.Civ.P. 16(b)(4). The “good
cause” standard “primarily considers the
diligence of the party seeking the amendment.”
Johnson v. Mammoth Re-creations, 975 F.2d 604, 608
(9th Cir. 1992).
to the August 25, 2016 scheduling order, the parties were
permitted to conduct discovery until December 16, 2016. (ECF
No. 51 at 5.) All requests for discovery pursuant to Federal
Rules of Civil Procedure 31, 33, 34 or 36 were to be served
not later than sixty days prior to December 16, 2016.
to the mailbox rule, plaintiff filed his pending motion for
extension of time to conduct discovery on December 30, 2016.
(ECF No. 69 at 10.) In the pending motion, plaintiff
describes the additional discovery he would like to conduct.
Plaintiff alleges that he will require subpoenas to obtain
documents in defendants' possession including his medical
file, his 832.5 form, plaintiff's original complaint and
plaintiff's first amended complaint. Plaintiff alleges
that he needs to depose defendants by written questions.
Plaintiff also alleges that he needs to depose the following
witnesses by written question: Hannah Hewitt, A. Wilson,
Supervisor Reed, Sergeant Witrow, Supervisor Mack, Nurse
McKee, Keith Stewart, Jeff Utter and Jason Langslet.
Plaintiff also appears to allege that he needs to issue
subpoenas to defendants to produce documents that they
refused to produce in response to his request for production
undersigned observes that plaintiff has previously filed
discovery related requests. On August 25, 2016, and September
12, 2106, plaintiff filed motions requesting that subpoenas
be issued to parties and non-parties for various documents.
(ECF Nos. 53, 55.) On September 23, 2016, the undersigned
denied those requests. (ECF No. 57.) The undersigned denied
plaintiff's request for subpoenas addressed to defendants
on the grounds that Federal Rule of Civil Procedure 45 does
not authorize service of subpoenas on parties. (Id.)
The undersigned denied plaintiff's request for issuance
of subpoenas on non-parties on the grounds that plaintiff had
not demonstrated that the documents and records sought were
obtainable only through the non-parties. (Id.) It
appeared that many of the documents sought were obtainable
from defendants. (Id.)
September 22, 2016, plaintiff filed another request for
issuance of subpoenas to non-parties. (ECF No. 56.) On
October 13, 2016, the undersigned denied that request. (ECF
October 12, 2106, plaintiff filed a motion to compel. (ECF
No. 60.) In that motion, plaintiff claimed that defendants
had not provided him with timely responses to interrogatories
and a request for production of documents. (Id.) In
the opposition, defendants stated that plaintiff had served
three discovery requests. (ECF No. 51.) Defendants stated
that they served plaintiff with timely responses to all three
discovery requests. (Id.) On December 12, 2016, the
undersigned denied the motion to compel. (ECF No. 64.)
following reasons, the undersigned finds that plaintiff has
not shown good cause to grant his motion for an extension of
time to conduct additional discovery. While plaintiff claims
that he did not understand that his discovery requests were
due 60 days prior to December 16, 2016, until it was
explained to him, he does not indicate when he understood the
discovery deadline. In any event, plaintiff's alleged
failure to understand this deadline does not explain his
failure to earlier seek any of the large volume of discovery
now requested. Plaintiff's failure to seek any of the
requested discovery prior to the discovery deadline
demonstrates that he did not act diligently in conducting
discovery. Plaintiff had ample opportunity to conduct
discovery. For these reasons, plaintiff's motion for an
extension of time to conduct discovery is denied. III.
Plaintiff's Motion for Seizure of Assets (ECF No.
Federal Rule of Civil Procedure 64, plaintiff requests that
defendants' assets be seized to prevent defendants from
transferring assets in an attempt to avoid paying money
damages to plaintiff should he succeed in this action. On
January 25, 2017, defendants filed an opposition to this
motion. (ECF No. 74.)
pertinent part, Federal Rule of Civil Procedure 64 provides
[A]ll remedies providing for seizure of person or property
for the purpose of securing satisfaction of the judgment
ultimately to be entered in the action are available under
the circumstances and in the manner provided by the law of
the state in which the district court is held....
Fed.R.Civ.P. 64 (Emphasis added).
Rule 64 “permits state seizure provisions to be used in
federal courts ...” Reebok Int'l v. Marnatech
Enters., 970 F.2d 552, 558 (9th Cir. 1992);
Pos-A-Traction, Inc. v. Kelly- Springfield Tire Co.,
112 F.Supp.2d 1178, 1181 (C.D.Cal. 2000) (noting that Rule 64
incorporates state law for prejudgment seizures of property).
Cal.Code Civ. Pro. § 484.090(a), in order for a
plaintiff to obtain issuance of a Right to Attach Order and
Writ of Attachment after hearing the plaintiff must
demonstrate: (1) that the claim on which the attachment is
based must be one on which an attachment may be issued; (2)
the probable validity of the claim on which the attachment is
based; and (3) that the attachment is not sought for a
purpose other than the recovery on the claim on which the
attachment is based.
motion for prejudgment seizure of assets is denied because
plaintiff has not shown the probable validity of his claims.
As discussed herein, the undersigned recommends that all
claims be dismissed except for plaintiff's First
Amendment claim against defendant Jones. However, the
undersigned does not find that plaintiff has shown the
probable validity of his remaining claim against defendant
Plaintiff's Motion for Punitive Damages (ECF No.
motion, plaintiff requests that he be allowed to pursue
punitive damages, pursuant to California Civil Code §
3294, for violation of the California Bane Act (California
Civil Code § 52.1). Plaintiff also requests that
defendants be prosecuted pursuant to California Penal Code
§ 422.6. On April 11, 2017, defendants filed an
opposition to this motion. (ECF No. 89.)
argue, in part, that plaintiff is attempting to amend his
complaint. Defendants argue that plaintiff's motion to
amend should be denied as untimely. The undersigned agrees.
to amend are governed by Rule 15(a) of the Federal Rules of
Civil Procedure. Rule 15(a) provides that the Court
“should freely give leave [to amend] when justice so
requires.” Fed.R.Civ.P. 15(a)(2). In the Ninth Circuit,
Rule 15(a) is applied with “extreme liberality.”
Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d
1048, 1051 (9th Cir. 2003).
the court retains discretion to grant or deny a motion for
leave to amend. Leadsinger, Inc. v. BMG Music Pub.,
512 F.3d 522, 532 (9th Cir. 2008). The court considers five
factors when assessing the propriety of a motion for leave to
amend: (1) bad faith, (2) undue delay, (3) prejudice to the
opposing party, (4) futility of amendment, and (5) whether
the plaintiff has previously amended his complaint. Allen
v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir.
1990). The court “need not apply all five
factors” when two factors sufficiently persuade the
Court to deny the motion. Id.
filed the pending motion requesting to add additional legal
claims well after the deadline for filing dispositive motions
had passed. Plaintiff also filed this motion just eleven days
after defendants filed their summary judgment motion. Under
these circumstances, plaintiff has shown undue delay in
bringing the motion to amend. Allowing plaintiff to amend his
complaint at this time to raise these new claims would
prejudice defendants. In addition, plaintiff has previously
been allowed to file amended complaints. On these grounds,
plaintiff's motion for punitive damages, construed as a
motion to amend, is denied.
Plaintiff's Motion for Summary Judgment (ECF No.
motion for summary judgment, plaintiff objects to
defendants' request for extension of time to oppose
plaintiff's motion for summary judgment. (See
ECF No. 67.) On January 12, 2017, the undersigned granted
defendants' motion for extension of time. (ECF No. 71.)
Plaintiff has not demonstrated that he was prejudiced by the
court granting defendants' motion for extension of time.
Accordingly, plaintiff's motion for summary judgment,
construed as an opposition to defendants' motion for
extension of time to file an opposition to plaintiff's
summary judgment motion, is denied.
Cross Motions for Summary Judgment
action, plaintiff alleges that he was denied a Kosher diet
while housed at the Lassen County Jail. The defendants are
Lassen County Jail Commander Jones and Lassen County Sheriff
Growden. The following facts are undisputed.
was booked into the Lassen County Jail on February 17, 2015.
(ECF No. 81-5 at 3.) On February 23, 2015, plaintiff
submitted an Inmate Request Form to the kitchen for a kosher
diet. (Id. at 27.) Sometime between February 23,
2015, and March 23, 2015, defendant Jones denied
plaintiff's request for a kosher diet. (Id. at
4-5.) On March 23, 2015, Undersheriff Mineau granted
plaintiff's request for a kosher diet. (Id. at
undersigned clarifies the legal claims plaintiff is raising.
As discussed in the May 27, 2016 findings and recommendations
addressing defendants' motion to dismiss, plaintiff
alleges that defendant Jones violated his First Amendment
rights by denying his request for a kosher diet. (ECF No. 33
at 7.) Plaintiff alleges that defendant Growden failed to
train his employees regarding how to process requests for
religious diets. (Id.) Plaintiff's claims
against defendant Growden are based on alleged violations of
the First Amendment and the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”).
Plaintiff seeks money damages only.
Legal Standard for Summary Judgment
judgment is appropriate when it is demonstrated that the
standard set forth in Federal Rule of Civil procedure 56 is
met. “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).
Under summary judgment practice, the moving party 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. v. Catrett, 477 U.S. 317, 323 (1986)
(quoting then-numbered Fed.R.Civ.P. 56(c)).
the nonmoving party bears the burden of proof at trial, the
moving party need only prove that there is an absence of
evidence to support the non-moving party's case.”
Nursing Home Pension Fund, Local 144 v. Oracle Corp. (In
re Oracle Corp. Sec. Litig.), 627 F.3d 376, 387 (9th
Cir. 2010) (citing Celotex Corp., 477 U.S. at 325);
see also Fed.R.Civ.P. 56 advisory committee's
notes to 2010 amendments (recognizing that “a party who
does not have the trial burden of production may rely on a
showing that a party who does have the trial burden cannot
produce admissible evidence to carry its burden as to the
fact”). Indeed, summary judgment should be entered,
after adequate time for discovery and upon motion, against a
party who fails to make a showing sufficient to establish the
existence of an element essential to that party's case,
and on which that party will bear the burden of proof at
trial. Celotex Corp., 477 U.S. at 322. “[A]
complete failure of proof concerning an essential element of
the nonmoving party's case necessarily renders all other
facts immaterial.” Id. at 323.
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 exists.
See Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). In attempting to
establish the existence of such a factual dispute, the
opposing party may not rely upon the allegations or denials
of its pleadings, but is required to tender evidence of
specific facts in the form of affidavits, and/or admissible
discovery material in support of its contention that such a
dispute exists. See Fed.R.Civ.P. 56(c);
Matsushita, 475 U.S. at 586 n.11. The opposing party
must demonstrate that the fact in contention is material,
i.e., a fact that might affect the outcome of the suit under
the governing law, see Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv.,
Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d
626, 630 (9th Cir. 1987), and that the dispute is genuine,
i.e., the evidence is such that a reasonable jury could
return a verdict for the nonmoving party, see Wool v.
Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir.
1987), overruled in part on other grounds,
Hollinger v. Titan Capital Corp., 914 F.2d 1564,
1575 (9th Cir. 1990).
endeavor to establish the existence of a factual dispute, the
opposing party need not establish a material issue of fact
conclusively in its favor. It is sufficient that “the
claimed factual dispute be shown to require a jury or judge
to resolve the parties' differing versions of the truth
at trial.” T.W. Elec. Serv., 809 F.2d at 630.
Thus, the “purpose of summary judgment is to
‘pierce the pleadings and to assess the proof in order
to see whether there is a genuine need for trial.'”
Matsushita, 475 U.S. at 587 (quoting Fed.R.Civ.P.
56(e) advisory committee's note on 1963 amendments).
resolving a summary judgment motion, the court examines the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any.
Fed.R.Civ.P. 56(c). The evidence of the opposing party is to
be believed. See Anderson, 477 U.S. at 255. All
reasonable inferences that may be drawn from the facts placed
before the court must be drawn in favor of the opposing
party. See Matsushita, 475 U.S. at 587.
Nevertheless, inferences are not drawn out of the air, and it
is the opposing party's obligation to produce a factual
predicate from which the inference may be drawn. See
Richards v. Nielsen Freight Lines, 602 F.Supp. 1224,
1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898,
902 (9th Cir. 1987). Finally, to demonstrate a genuine issue,
the opposing party “must do more than simply show that
there is some metaphysical doubt as to the material facts. .
. . Where the record taken as a whole could not lead a
rational trier of fact to find for the nonmoving party, there
is no ‘genuine issue for trial.'”
Matsushita, 475 U.S. at 586 (citation omitted).
contemporaneous notice provided on August 16, 2013(ECF No.
22), plaintiff was advised of the requirements for opposing a
motion brought pursuant to Rule 56 of the Federal Rules of
Civil Procedure. See Rand v. Rowland, 154 F.3d 952,
957 (9th Cir. 1998) (en banc); Klingele v.
Eikenberry, 849 F.2d 409 (9th Cir. 1988).
the pending summary judgment motions in context, the
undersigned provides the following background.
was booked into the Lassen County Jail on February 17, 2015.
(ECF No. 81-5 at 3.) On February 23, 2015, plaintiff
submitted an Inmate Request Form to Kitchen Manager Keith
Stewart requesting a kosher diet and identifying himself as
Jewish. (ECF No. 81-5 at 4.) In this request plaintiff wrote,
“Being a Jewish inmate I have a right to eat a kosher
diet as outlined in Leviticus 11: 1-31. I was approved for
Kosher diet by Rabbi Jacob Sharone at CSP-SATF and at
CSP-Solano. By state law that approval is transferable to
institution. I would like to be provided with a Jewish Kosher
diet.” (Id. at 27.)
to defendant Jones, Mr. Stewart “promptly”
brought plaintiff's request to his attention. (ECF No.
81-5 a 4.) Defendant Jones had doubts regarding the sincerity
of plaintiff's religious beliefs based on plaintiff's
past affiliation with white supremacists. (Id.)
Defendant Jones contacted staff at several other detention
facilities to learn how they tested the sincerity of an
inmate's religious beliefs when that inmate requested a
kosher diet. (Id.) Defendant Jones also contacted a
rabbi in Reno to learn what a person who converted to Judaism
should know if they were truly practicing their faith.
on his investigation, defendant Jones prepared an Inmate
Application for Religious Meal Program form and provided it
to plaintiff. (Id.) Plaintiff completed the form on
February 24, 2015, i.e., one day after he submitted the
request for a religious diet to kitchen manager Stewart.
(Id.) A copy of this one page form is attached to
defendant Jones's declaration. (Id. at 29.) In
this form, plaintiff identified his religious affiliation as
Jewish. (Id.) In the section of the form asking
plaintiff if he converted to this religion, plaintiff circled
“no.” (Id.) Plaintiff wrote that he
worshipped at a Jewish synagogue. (Id.) Plaintiff
identified his Rabbi as Jerome Sharone at CSP-SATF.
(Id.) In the section of the form asking plaintiff
what about his beliefs required him to be on a religious meal
program and to identify what he was asking for, plaintiff
wrote, “A Kosher diet in accordance with Leviticus Law
11: 1-31. A discipline by Jewish faith.” (Id.)
to defendants, on February 26, 2015, plaintiff submitted a
second Inmate Request Form to defendant Jones seeking a
kosher diet. (Id. at 4.) Plaintiff apparently
submitted this form after receiving no response to his
Application for a Religious Meal submitted two days earlier.
A copy of this form is attached to defendant Jones's
declaration. (Id. at 31.) On this form plaintiff
3 days ago I turned in a request for a religious diet. Since
2009 I have been on a Kosher diet as approved by CDC and
Rabbi Jarold Sharone at CSATF at Corcoran. Upon leaving the
institution in 2011 I went to CSP-Solano where I was on a
Kosher diet. Per California law, 1st Amendment rights and
inmate bill of rights this card is transferable from
institution to institution without having to be reapproved by
form states that plaintiff's request for a kosher diet
was denied by the Jail Commander, i.e., defendant Jones.
(Id.) The form contains an undated handwritten note
stating, “You have failed to provide adequate
information regarding your faith, this time.”
(Id.) The note is signed with the initial “J,
” which is apparently defendant Jones. (Id.)
discussed above, in his declaration, defendant Jones
indicates that he interviewed plaintiff regarding his
religious faith after receiving plaintiff's application
for a religious diet. (Id. at 4-5.) In his
declaration, defendant Jones states that he found that
plaintiff was unable to identify where exactly he purchased
kosher foods and could identify only hot dogs as the kosher
food he ate. (Id.) Based on plaintiff's
responses to the questions, defendant Jones denied
plaintiff's request for a kosher diet. (I ...