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Porter v. Wegman

United States District Court, E.D. California

July 11, 2017

BRIAN ELLIS PORTER, Plaintiff,
v.
CHERYLEE WEGMAN, Defendant.

          Defendant's Motions in Limine Filing Deadline: July 14, 2017

          Plaintiff's Motions in Limine Filing Deadline: July 17, 2017

          Oppositions to Motions in Limine Filing Deadline: July 28, 2017

          Telephonic Status Conference: July 27, 2017

          Motion in Limine Hearing: August 14, 2017

          Jury Trial: August 29, 2017

          PRETRIAL ORDER

          Barbara A. McAuliffe UNITED STATES MAGISTRATE JUDGE

         Plaintiff Brian Ellis Porter (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. All parties have consented to magistrate judge jurisdiction. (ECF Nos. 5, 150.) This action proceeds on Plaintiff's claims against Defendant Wegman for violation of the Free Exercise Clause of the First Amendment. In particular, this action proceeds on Plaintiff's claim that Defendant Wegman violated his right to free exercise of his religion by switching him from a kosher diet to a vegetarian diet and denying his requested dietary accommodations during multi-day Passover observances.

         The parties submitted pretrial statements, and on July 11, 2017, the Court held a telephonic trial confirmation hearing. Plaintiff, appearing pro se, and Aseil Mohmoud and Monica Anderson, counsel for Defendant, attended the hearing. Having reviewed the parties' statements and the remainder of the file, and having considered the issues raised at the telephonic trial confirmation hearing, the Court issues the instant pretrial order.

         I. Jurisdiction and Venue

         The Court has subject matter jurisdiction over this federal civil rights action. 28 U.S.C. § 1331. Venue is proper because the conduct allegedly occurred in this judicial district. 28 U.S.C. § 1391.

         II. Trial

         The parties demand a trial by jury. Fed.R.Civ.P. 38(b).

         Trial is set for August 29, 2017, at 8:30 a.m. before U.S. Magistrate Judge Barbara A. McAuliffe in Courtroom 8 (BAM). The parties anticipate the trial will last approximately two (2) to three (3) days.

         III. Facts

         A. Plaintiff's Undisputed Facts

         Plaintiff contends the following facts are undisputed:

         1. Plaintiff Brian Ellis Porter is a California state prisoner housed at Kern Valley State Prison (“KVSP”) in Delano, California, where the events giving rise to this action occurred. Plaintiff is proceeding against Defendant Cherylee Wegman, the Community Partnership/Resource Manager at KVSP.

         2. Plaintiff is a member of the religion called the House of Yahweh (“HOY”) and the tenets of the HOY religion require its members to maintain a Kosher diet and observe Passover Feast of Unleavened Bread (“Passover”). Passover lasts approximately eight calendar days where HOY members are required to destroy all leavened food in their possession just prior to the beginning of Passover, and refrain from eating leavened food or coming into contact with leavened food. During Passover, HOY members must eat some amount of unleavened bread each day of the event, and eat some portion of the Passover sacrifice the night beginning the religious event which is Passover night.

         3. Defendant Wegman is the Community Partnership Manager at KVSP. Defendant Wegman's responsibilities include planning, organizing, and directing community based programs for inmates related to religion, art, services to communities, self-help groups, and volunteers. At all times relevant hereto, Defendant Wegman was not a chaplain for CDCR.

         4. In 2008, Plaintiff applied to receive a Kosher diet by submitting a CDC 3030 Religious Diet Request form to the appropriate staff, requesting only a Kosher diet. Plaintiff's request was approved soon thereafter, however, Plaintiff never received Kosher meals.

         5. On November 21, 2008, Defendant Wegman circulated an email amongst KVSP staff that referred to the HOY as a “Religious hate group, ” a “cult” and saying that the HOY poses a “real danger.”

         6. Inmates wishing to celebrate a religious event can submit a Religious Event Package, which explains the event they request to commemorate and list the accommodations that are needed.

         7. In 2009, Plaintiff and HOY members at KVSP submitted a Religious Event Package specifically to receive an eight-day modified meal plan for the observance of Passover, taking place from April 10, 2009 to April 17, 2009. Defendant Wegman circulated a memorandum dated April 17, 2009, suggesting to all KVSP staff that the two HOY elders/ministers be cell fed rather than participating in the Passover banquet with all the HOY members. Plaintiff and HOY members were granted one special meal to celebrate the HOY Passover on April 17, 2009.

         8. In 2010, Plaintiff and HOY members at KVSP submitted a Religious Event Package, specifically to receive an eight-day modified meal plan for the observance of Passover, taking place from March 30, 2010, to April 6, 2010. Plaintiff and HOY members were granted one special meal to celebrate the HOY Passover on March 30, 2010.

         9. In 2011, Plaintiff submitted a Religious Event Package, specifically to receive an eight-day modified meal plan for the observance of Passover, taking place from April 18, 2011, to April 25, 2011. Plaintiff was denied his request in whole.

         10. On April 30, 2009, Plaintiff attempted to file an institutional grievance, complaining about the prison's failure to provide Plaintiff with a Kosher diet as well as their failure to provide the necessary accommodations for the observance of Passover. However, Defendant Wegman obstructed the institutional grievance process, leaving Plaintiff with no means to exhaust his administrative remedies.

         11. On April 18, 2010, Plaintiff filed an institutional grievance, appeal log no. KVSP-0-10-00851 directly against Defendant Wegman complaining about her failure to grant Plaintiff's request for necessary accommodations for the observance of Passover, and limiting the accommodations to one meal void of any religious significance. Plaintiff exhausted his appeal through all available levels.

         12. On May 15, 2011, Plaintiff attempted to file an institutional grievance complaining about the prison's failure to provide Plaintiff with any accommodations for the observance of Passover despite his timely request thereto. KVSP obstructed the institutional grievance process, leaving Plaintiff with no means to exhaust his administrative remedies.

         B. Defendant's Undisputed Facts

         Defendant contends the following facts are undisputed:

         1. Plaintiff Porter was in CDCR custody and housed at Kern Valley State Prison (KVSP).

         2. At all times relevant to this case, Defendant C. Wegman was employed by CDCR as the Community Resource Manager at KVSP and remains in that capacity.

         3. Plaintiff identifies as a member of the “House of Yahweh” faith.

         4. Plaintiff requested a religious diet meal at KVSP as an alternative to the standard inmate meal.

         5. Per CDCR regulations, Plaintiff qualified for vegetarian diet meal and was provided vegetarian meals to accommodate his religious needs.

         6. Plaintiff refused to eat the vegetarian meals for a period of four-to-five days during Passover in 2009 and 2010 because he wanted a kosher diet meal.

         7. CDCR's religious diet policy only allowed for Jewish inmates to be provided a kosher diet meal.

         8. The “House of Yahweh” is not Judaism, nor is it a branch of Judaism.

         9. Because Plaintiff was not Jewish, he could not be granted a kosher diet meal. Instead, he was provided vegetarian meals.

         10. Vegetables are “kosher.” 11. Plaintiff chose not to eat the vegetarian meals at all for a period of four-to-five days during Passover in 2009 and 2010.

         12. Plaintiff took part in a special event meal that the institution provided for the House of Yahweh inmates' Feast of Tabernacles, yet Plaintiff refused to eat the food because he claimed the food was unsatisfactory.

         C. Plaintiff's Disputed Factual Issues

         1. Defendant Wegman claims that in or about 2008, Defendant Wegman mistakenly approved inmate Porter's request for a Kosher diet.

a. Plaintiff disputes this claim, alleging himself that in 2008, Plaintiff applied to receive a Kosher diet by completing a CDC Form 3030, Religious Diet Request, then submitting it to the Jewish chaplain, Daniel Mehlman, who later interviewed Plaintiff and subsequently approved his request.

         2. Defendant Wegman claims that in 2010, members of the HOY requested to celebrate the Yahweh Passover feast, as well as an eight-day modified meal plan. The HOY members were provided with one special meal. However, they were denied the requested eight-days of special meals pursuant to Department Operations Manual (“DOM”) section 54080.13, which states: “Inmate religious groups shall not be permitted more than two events each year where foods with recognized religious significance are provided by the institution in place of the regularly planned meal.” Although the observance of Passover constitutes a single religious holiday, pursuant to DOM section 54080.14, the rules for Passover only apply to Jewish inmates desiring to practice Jewish Kosher law. CDCR policy does not authorize Passover observance for non-Jewish inmates.

a. Plaintiff disputes these claims, alleging that despite the fact that Passover is a week-long (approximately eight-days) religious observance requiring a specified meal plan, Defendant Wegman decided on her own to modify the observance of Passover to a one day, one meal event for HOY members through her own misinterpretation of CDCR policy, to disparage against HOY.
b. Further, there is no CDCR policy that dictates that the week-long (approximately eight-day) observance of Passover is reserved exclusively for Jewish inmates and CDCR will only provide accommodations for proper observance of Passover to Jewish inmates despite an inmate's sincerely held belief that he/she must observe Passover the same way a Jewish inmate does. California Code of Regulations, Title 15 (“15 CCR”) section 3054.2(e) and DOM section 54080.14 simply defines the basic rules for Passover observance due to the Jewish Kosher Diet Program's (“JKDP”) inherent accommodations for participants in the program (providing specified accommodations particular to proper Passover observance). However, these policies surrounding Passover (nor any other CDCR policy) in no way determines how HOY observes Passover, or what accommodations HOY can be provided, including a multi-day modified meal plan particular to proper observance of Passover for inmates outside of the JKDP desiring to observe Passover. To interpret these policies in such a way is discriminatory on its face.

         3. Defendant Wegman claims that although Porter requested a Kosher diet and Passover accommodations, pursuant to DOM sec 54080.13 and 15 CCR secs. 3053, 3054, 3084, and 3210, Defendant Wegman did not have the authority or ability to provide him with accommodations that he did not meet the criteria for under those regulations.

a. Plaintiff disputes this claim, alleging himself that Plaintiff did meet the criteria for both religious accommodations for Passover as well as a Kosher diet. Defendant Wegman used her own discretion, absent of CDCR policy to limit the observance of Passover for Plaintiff to a one day, one meal event void of any religious significance, and revoke Plaintiff's Kosher diet (JKDP) approval. Defendant Wegman is not a chaplain and has never had the authority to determine inmate's request, including Plaintiff's request for a religious diet or requests for religious event accommodations and she violated CDCR policy by doing so. No CDCR policy restricts a chaplain's ability and/or authority to provide Plaintiff with accommodations for each day of Passover.

         4. Defendant Wegman claims that she never denied Porter Kosher meals or accommodations for Passover because of animosity or ill feelings for him or his religion, rather, she denied his request for a Kosher diet and Passover accommodations because she was not authorized to provide him with the accommodations under CDCR policy, which she is bound to adhere to.

a. Plaintiff disputes this claim, alleging himself that Defendant Wegman did hold contempt towards the HOY which she clearly expressed through a pattern of disparate and disparaging actions, including: 1) the circulation of an email amongst KVSP staff, describing the HOY as a “religious hate group, ” a dangerous group and a potentially dangerous cult, and also Defendant Wegman's prejudice reason for circulating this email; 2) Defendant Wegman's subversion of the Religious Diet Program policies by acting in place of the chaplain for the purpose of determining Plaintiff's eligibility in his request for a Kosher diet, and determining Plaintiff's religious needs for Passover, denying Plaintiff any accommodations that held religious significance; 3) suggesting to KVSP staff that the HOY ministers/elders at KVSP be cell fed during the Passover banquet of 2009, rather than participating in the banquet along with all the other HOY members; 4) denying Plaintiff and all other HOY members their requested religious accommodations for Passover on a discriminatory basis; 5) misinterpreting CDCR policy to discriminate specifically against HOY; and 6) manipulation of the CDCR inmate appeal process to avoid responding to Plaintiff's appeals concerning Passover, and undermine his attempts to resolve his issues at the administrative level.

         D. Defendant's Disputed Factual Issues

         1. Whether Plaintiff, an inmate identifying as a member of the House of Yahweh faith, was entitled to the institutional kosher diet meal from 2008-2011 at KVSP.

         2. Whether Officer Wegman, as the Community Resource Manager at KVSP, violated CDCR policy by not providing Plaintiff with a kosher diet meal once per day during Passover in 2009-2010.

         3. Whether Plaintiff was entitled to a “special event” meal during Passover in 2009-2010 that was “kosher” per his standards.

         E. Disputed Evidentiary Issues[1]

         1. Plaintiff's Disputed Evidentiary Issues

         Plaintiff has identified no disputed evidentiary issues.

         2. Defendant's Disputed Evidentiary Issues

         a) Defendant objects to any evidence submitted by Plaintiff based upon or containing inadmissible hearsay, or evidence that is irrelevant, immaterial, or incompetent.

         b) Defendant will contest the admissibility of any written statements by inmates whom Plaintiff claims are witnesses including, but not limited to, any statement signed by said inmates.

         c) Defendant objects to any opinion testimony from Plaintiff or any non-expert witnesses regarding any matters that call for medical expertise, including the cause of injuries, if any.

         d) Defendant reserves objections to specific testimony and exhibits until such time as Defendant has had the opportunity to hear such testimony and examine such exhibits. Defendant will also file specific objections to Plaintiff's exhibits once they have been exchanged with Defendant.

         e) Should Plaintiff or any other incarcerated witnesses testify, Defendant will seek to impeach such witnesses by presenting evidence of prior felony convictions, pursuant to Federal Rules of Evidence, Rule 609. The verdict in this case will be affected by the credibility of witnesses. Therefore, Defendant argues that no one who has suffered a prior felony conviction is entitled to the false aura of veracity which would occur if impeachment were not allowed.

         F. Special Factual Information

         Not applicable.

         IV. Relief Sought

         Plaintiff seeks a declaratory judgment, compensatory damages, punitive damages, litigation fees and costs, and a permanent injunction.

         Defendant seeks a judgment in her favor with Plaintiff taking nothing, and an award of attorney fees and costs.

         V. Points of Law

         A. Imposition of Liability Under Section 1983

         Under § 1983, Plaintiff is required to prove that Defendant (1) acted under color of state law and (2) deprived him of rights secured by the First Amendment of the United States Constitution. Long v. Cty. of L.A., 442 F.3d 1178, 1185 (9th Cir. 2006). Plaintiff must prove that Defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). “A supervisor is liable under § 1983 for a subordinate's constitutional violations ‘if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them.'” Maxwell v. Cty. of San Diego, 708 F.3d 1075, 1086 (9th Cir. 2013) (quoting Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989)).

         There is no respondeat superior liability under section 1983, and Defendant is only liable for her own misconduct. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).

         B. First Amendment - Free Exercise

         A person asserting a free exercise claim must show that the government action in question substantially burdens the person's practice of their religion. Graham v. C.I.R., 822 F.2d 844, 851 (9th Cir. 1987), aff'd sub nom. Hernandez v. C.I.R., 490 U.S. 680, 699 (1989). “A substantial burden . . . place[s] more than an inconvenience on religious exercise; it must have a tendency to coerce individuals into acting contrary to their religious beliefs or exert substantial pressure on an adherent to modify his behavior and to violate his beliefs.” Ohno v. Yasuma, 723 F.3d 981, 1101 (9th Cir. 2013) (quoting Guru Nanak Sikh Soc'y of Yuba City v. Cty. of Sutter, 456 F.3d 978, 998 (9th Cir. 2006) (internal quotation marks and alterations omitted)).

         “The right to exercise religious practices and beliefs does not terminate at the prison door. The free exercise right, however, is necessarily limited by the fact of incarceration, and may be curtailed in order to achieve legitimate correctional goals or to maintain prison security.” McElyea v. Babbitt, 833 F.2d 196, 197 (9th Cir. 1987) (per curiam) (citations omitted); see also O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987); Shakur v. Schriro, 514 F.3d 878, 883-84 (9th Cir. 2008). In order to implicate the Free Exercise Clause, the prisoner's belief must be both sincerely held and rooted in religious belief. Shakur, 514 F.3d at 885 ...


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