United States District Court, N.D. California
ORDER DISMISSING THE COMPLAINT WITH LEAVE TO AMEND
DKT. NOS. 20 AND 29
WILLIAM H. ORRICK UNITED STATES DISTRICT JUDGE
federal civil rights suit is DISMISSED with leave to amend
upon defendants' Rule 12(b)(6) motion because plaintiff
Noel Ray Smith has failed to state a claim for relief. Denial
of two kosher meals, neither of which Smith ordered, did not
violate his constitutional and statutory rights. Any amended
complaint shall be filed on or before January 20,
factual allegations are based on Smith's complaint and
are assumed as true for purposes of this order. Smith alleges
that on April 17 and 18, 2017, there were two Kosher for
Passover meals remaining on the food cart that would be
either be discarded or given to employees, he was the last
inmate in line to be served, and yet Ramirez, a correctional
officer at CTF-Soledad, refused to allow him kosher dinners.
(Compl., Dkt. No. 1 at 3.)
has not alleged that he ordered a Kosher meal or was entitled
to one as a religious diet. As defendants point out,
“This is not a case where a religious meal was ordered
for an inmate, and then later denied.” (Mot. to Dismiss
(MTD), Dkt. No. 20 at 10.) Instead, Smith asked whether he
could have “one of the extra meals.” (Compl.,
Dkt. No. 1 at 3.) Ramirez declined the request, saying
“No, I don't care if there are extra, the rules are
the rules.” (Id. at 3.)
grievance regarding the matter was denied by defendant A.
Steiber. His “request to re-evaluate memo distribution
has been denied due to the fact that no current policies are
in violation.” (Id. at 5.) The memo in
question was written, Smith alleges, by K. Allison, Director
of the Division of Adult Services. (Id.) The
memo's contents are at this point unknown, but Smith
alleges Allison's memo was responsible for Ramirez's
denial of the kosher meals. (Id.)
alleges defendants violated his free exercise and due process
rights, as well as his statutory rights under RLUIPA
(Religious Land Use and Institutionalized Persons Act, 42
U.S.C. § 2000cc).
Standard of Review
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) should be granted if the complaint does not proffer
“enough facts to state a claim for relief that is
plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). Dismissal is
appropriate also when pleadings show a “lack of
cognizable legal theory, ” or “the absence of
sufficient facts alleged under a cognizable legal theory,
” Balistreri v. Pacifica Police Dep't, 901
F.2d 696, 699 (9th Cir. 1990) (citation omitted), or when an
affirmative defense is premised on facts alleged in the
complaint, Scott v. Kuhlmann, 746 F.2d 1377, 1378
(9th Cir. 1994).
right to exercise religious practices and beliefs under the
First Amendment includes “the right to be provided with
food sufficient to sustain [prisoners] in good health that
satisfies the dietary laws of their religion.”
McElyea v. Babbitt, 833 F.2d 196, 198 (9th Cir.
1987) (citation omitted). In order to establish a free
exercise of religion violation, a prisoner must show that a
prison official burdened the practice of his religion without
any justification reasonably related to legitimate
penological interests. See Shakur v. Schriro, 514
F.3d 878, 883-84 (9th Cir. 2008). RLUIPA claims are judged
under the same standard. International Church of
Foursquare Gospel v. City of San Leandro, 673 F.3d 1059,
1067 (9th Cir. 2011).
has not alleged that he was entitled to a Kosher meal. But
even if he was, missing two kosher meals does not constitute
a burden sufficient to violate his First Amendment or RLUIPA
rights. Other courts have come to the same conclusion on
similar facts. Wilson v. Juaregui, No.
17-cv-04003-CRB (PR), 2019 WL 1559195, at *3 (N.D. Cal. Apr.
10, 2019) (missing four kosher meals “was de minimis
and not a substantial burden on plaintiff's practice of
his religion”); Ahdom v. Etchebehere, No.
1:13-cv-01623-DAD-GSA, 2017 WL 8793335, at *1 (E.D. Cal. Dec.
12, 2017) (missing one day of Ramadan meals was not a
substantial burden on plaintiff's practice of his
religion); McKenzie v. Ellis, No. 10-cv-1490-LAB
(AJB), 2012 WL 4050297, at *5 (S.D. Cal. Sept. 13, 2012) (a
four-day denial of a religious diet because of alleged
wrongdoing by jailors did not “substantially
burden” plaintiff's religious practice); and
Rapier v. Harris, 172 F.3d 999, 1006 n.4 (7th Cir.
1999) (the ...