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Shabazz v. Giurbino

United States District Court, E.D. California

June 21, 2017

AMIR SHABAZZ, Plaintiff,
v.
GIURBINO, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS REGARDING CROSS-MOTIONS FOR SUMMARY JUDGMENT ECF NOS. 74, 78, 79

         Plaintiff Amir Shabazz 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, filed November 17, 2016, and Plaintiff's cross-motion for summary judgment, filed November 30, 2016.

         I. RELEVANT HISTORY

         This action is proceeding on Plaintiff's First Amended Complaint against Defendants Giurbino Director of California Department of Corrections and Rehabilitation (CDCR)), Trimble (Warden at Pleasant Valley State Prison (PVSP)), Fisher (Associate Warden at PVSP), Myers (Community Resource Manager), and Farkas (Correctional Food Manager) for violation of Plaintiff's rights under the free exercise clause of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Religious Land Use and Institutionalized Persons Act.

         On October 9, 2014, the Court granted Defendants' motion to dismiss Plaintiff's monetary claims against Defendants in their official capacity and claim for injunctive relief against individual Defendants under RLUIPA. (ECF No. 33.)

         On December 10, 2014, Defendants filed an answer to the complaint. On December 16, 2014, the Court issued the discovery and scheduling order.

         On February 12, 2016, the Court denied Defendants Farkas, Fisher and Trimble's motion for summary judgment for failure to exhaust the administrative remedies. (ECF No. 52.)

         On July 28, 2016, the Court denied Defendants' motion for reconsideration of the Court's February 12, 2016, order. (ECF No. 64.)

         As previously stated, on November 17, 2016, Defendants filed a motion for summary judgment.[1] Plaintiff filed an opposition and a cross-motion for summary judgment on November 30, 2016. Defendants filed a reply and opposition on December 22, 2016. Accordingly, pursuant to Local Rule 230(1), this motion is deemed submitted for review without oral argument.

         II. LEGAL STANDARD

         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). 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 resolving cross-motions for summary judgment, the Court must consider each party's evidence. Johnson v. Poway Unified Sch. Dist., 658 F.3d 954, 960 (9th Cir. 2011). Plaintiff bears the burden of proof at trial, and to prevail on summary judgment, he must affirmatively demonstrate that no reasonable trier of fact could find other than for him. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). Defendants do not bear the burden of proof at trial and in moving for summary judgment, they need only prove an absence of evidence to support Plaintiff's case. In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010).

         In resolving cross-motions for summary judgment, the Court must consider each party's evidence. Johnson v. Poway Unified Sch. Dist., 658 F.3d 954, 960 (9th Cir. 2011). Plaintiff bears the burden of proof at trial, and to prevail on summary judgment, he must affirmatively demonstrate that no reasonable trier of fact could find other than for him. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). Defendants do not bear the burden of proof at trial and in moving for summary judgment, they need only prove an absence of evidence to support Plaintiff's case. In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010).

         In judging the evidence at the summary judgment stage, the Court does not make credibility determinations or weigh conflicting evidence, Soremekun, 509 F.3d at 984 (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).

         In arriving at this recommendation, the Court has carefully reviewed and considered all arguments, points and authorities, declarations, exhibits, statements of undisputed facts and responses thereto, if any, objections, and other papers filed by the parties. Omission of reference to an argument, document, paper, or objection is not to be construed to the effect that this Court did not consider the argument, document, paper, or objection. This Court thoroughly reviewed and considered the evidence it deemed admissible, material, and appropriate.

         III. SUMMARY OF PLAINTIFF'S COMPLAINT [2]

         Plaintiff who is a Muslim prisoner alleges that on or about February 28, 2011, Defendants and the CDCR started serving Muslim prisoners vegetarian meals for breakfast and lunch through the Religious Meat Alternate Program (“RMAP”). Plaintiff complained that the RMAP's vegetarian meals did not meet the dietary requirements of his Islamic faith. Plaintiff further complained that serving vegetarian meals to Muslim inmates was discriminatory because Jewish inmates, whose religious dietary requirements are similar to those of Muslims, receive Kosher meat options at every meal.

         IV. PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT

         Plaintiff moves for summary judgment on all of his claims. Defendants oppose Plaintiff's motion as procedurally defective and for lack of evidence to demonstrate entitlement to judgment as a matter of law.

         Defendants are correct that Plaintiff's motion for summary judgment is defective in that Plaintiff's statement of undisputed facts fails to cite or reference any evidence but simply asserts legal conclusions. (ECF No. 79.) Local Rule 260 specifically provides that every motion for summary judgment shall be accompanied by a Statement of Undisputed Facts that shall “enumerate discretely each of the specific material facts relied upon in support of the motion and cite the particular portions of any pleading, affidavit, deposition, interrogatory answer, admission, or other document relied upon to establish that fact.” Local Rule 260(a); Fed.R.Civ.P. 56(c). Plaintiff's summary judgment motion is nothing more than legal arguments devoid of specific reference to the documentation and evidence in support of such claims. The parties bear the burden of supporting their motion and opposition with the papers they wish the Court to consider and/or by specifically referencing any other portions of the record they wish the Court to consider. Fed.R.Civ.P. 56(c); Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). The Court will not undertake to mine the record for triable issues of fact. In re Oracle Corp. Securities Litigation, 627 F.3d 376, 386 (9th Cir. 2010); Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010); Carmen v. San Francisco Unified School Dist., 237 F.3d at 1031. Accordingly, Plaintiff, as the moving party, has failed to produce evidence to meet his initial burden of proof, and the burden therefore has not shift to Defendants. Thus, Plaintiff's cross-motion for summary judgment must be denied. In any event, for the reasons explained below, Defendants' motion for summary judgment shall be granted.

         V. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

         A. Defendants' Request for Judicial Notice

         Defendants request that the Court take judicial notice of: (1) Notice of Change of Regulations, No. 09-09; (2) Notice of Approval of Regulatory Action, OAL File No. 2009-1217-01 S; (3) Notice of Change to the Department Operational Manual, addressing changes to Chapter 5, Article 51; and (4) Notice of Change to Regulations, No. 16-08. (Defs.' Req. Judicial Notice (RJN), Exs. 1-4, ECF No. 75.)

         “A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b). The Court may take judicial notice of matters of public record, including records and reports of administrative agencies. United States v. 14.02 Acres of Land More or Less in Fresno County, 547 F.3d 943, 955 (9th Cir. 2008) (quotations marks and citations omitted).

         The Court grants Defendants' request for judicial notice of Exhibits 1 through 4.

         B. Statement of Undisputed Facts

1. Plaintiff Shabazz is an inmate in the custody of the California Department of Corrections and Rehabilitation (CDCR) currently housed at San Quentin State Prison. (Pl.' Dep. 10:19-22.) Plaintiff has no formal medical education. (Pl. Dep. 57:20-21.)
2. Between June of 2009 and December of 2011, Plaintiff Shabazz was incarcerated at Pleasant Valley State Prison (PVSP). (Pl. Dep. 11:4-8.)
3. Plaintiff has no expectation of returning to PVSP. (Pl. Dep. 10:23-25.)
4. Defendant Trimble served as Acting Warden at PVSP between approximately January to November of 2011. (Trimble Decl. at ¶ 3.)
5. Defendant Myers served as Acting Community Resources Manager at PVSP between 2010 and 2013. (Myers Decl. at ¶ 3.)
6. Defendant Farkas was employed as Correctional Food Manager at PVSP, and is now employed as Community Resources Manager at PVSP. (Farkas Decl. at ¶¶ 2-3.)
7. Defendant Fisher was employed as Associate Warden of Central Operations at PVSP from April of 2010 through December of 2011, and is currently employed as Warden of Valley State Prison. (Fisher Decl. at ¶ 2.)
8. Defendant Giurbino was employed as Director for the Division of Adult Institutions between January of 2010 and December of 2011, and is now a retired annuitant with CDCR. (Giurbon Decl. at ¶¶ 1-2.)
9. Defendants Trimble and Myers are retired from CDCR. (Trimble Decl. at ¶ 1; Myers Decl. at ¶ 1.)
10. Plaintiff has been a Muslim since 1977. (Pl. Dep. 13:20-14:2.)
11. Plaintiff does not follow a particular person's interpretation of Islamic law. (Pl. Dep. 14:3-15:16.)
12. Plaintiff's faith requires that he only eat meat that is halal. (Pl. Dep. 15:17-17:10.)
13. Plaintiff asserts that his religious dietary requirements may be met by a kosher diet. (First Am. Compl. at 8 ¶ 13, 11 ¶ 3, ECF No. 12.)
14. The term “halal” in its broadest sense, means “permissible” or “allowed.” To designate a food as “halal” is to state that it is permissible to eat under Islamic law. (Johnson Decl. at ¶ 5.)
15. Under Islamic law, all food items are considered halal, and permissible, unless there is a text from the Quran or the authentic Sunnah (words of Prophet Muhammad) that designates a particular type of food as haram (impure). (Johnson Decl. at ¶ 6.)
16. Islamic law holds that meat is haram unless it is slaughtered using halal methods, which includes the utterance of an Islamic prayer over the animal, and the use of a well-sharpened knife to slit the animal's throat. For these reasons, the terms “halal” and “haram” are often applied to meat items and methods of slaughtering. (Johnson Decl. at ¶ 7; Pl. Dep. 15:22-17:10.)
17. Vegetables and other non-meat items are halal according to Islamic law, unless they are contaminated with meat that is not halal. (Johnson Decl. at ...

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