# (PC) Ransom v. Herr

> District Court, E.D. California · July 6, 2022

URL: https://www.frixlaw.com/law-library/cases/10045668

## Case

- **Court:** District Court, E.D. California
- **Decided:** July 6, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10045668

## How later opinions describe it (automated extraction)

- holding that construction of a new prison law library rendered a claim 9 for access to the courts partially moot because of physical changes to the prison facility

## Opinion text

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8 IN THE UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 BRYAN E. RANSOM, No. 2:20-CV-1209-KJM-DMC-P
12 Plaintiff,
13 v. FINDINGS AND RECOMMENDATIONS
14 HERR, et al.,
15 Defendants.
16
17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42
18 U.S.C. § 1983. Pending before the Court is Defendants’ motion to dismiss, ECF No. 20,
19 Plaintiff’s opposition, ECF No. 24, and Defendants’ reply thereto, ECF No. 27.
20 In considering a motion to dismiss, the Court must accept all allegations of
21 material fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The
22 Court must also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer
23 v. Rhodes, 416 U.S. 232, 236 (1974); see also Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S.
24 738, 740 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All
25 ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen,
26 395 U.S. 411, 421 (1969). However, legally conclusory statements, not supported by actual
27 factual allegations, need not be accepted. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009).
28 In addition, pro se pleadings are held to a less stringent standard than those drafted by lawyers.
1 See Haines v. Kerner, 404 U.S. 519, 520 (1972).
2 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement
3 of the claim showing that the pleader is entitled to relief” in order to “give the defendant fair
4 notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp v. Twombly,
5 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order
6 to survive dismissal for failure to state a claim under Rule 12(b)(6), a complaint must contain
7 more than “a formulaic recitation of the elements of a cause of action;” it must contain factual
8 allegations sufficient “to raise a right to relief above the speculative level.” Id. at 555-56. The
9 complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Id. at
10 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the
11 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
12 Iqbal, 129 S. Ct. at 1949. “The plausibility standard is not akin to a ‘probability requirement,’ but
13 it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting
14 Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a
15 defendant’s liability, it ‘stops short of the line between possibility and plausibility for entitlement
16 to relief.” Id. (quoting Twombly, 550 U.S. at 557).
17 In deciding a Rule 12(b)(6) motion, the Court generally may not consider materials
18 outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998);
19 Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The Court may, however, consider: (1)
20 documents whose contents are alleged in or attached to the complaint and whose authenticity no
21 party questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question,
22 and upon which the complaint necessarily relies, but which are not attached to the complaint, see
23 Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials
24 of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir.
25 1994).
26 Finally, leave to amend must be granted “[u]nless it is absolutely clear that no
27 amendment can cure the defects.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per
28 curiam); see also Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc).
1 I. PLAINTIFF’S ALLEGATIONS
2 This action proceeds on Plaintiff’s first amended complaint. See ECF No. 11.
3 Plaintiff names the following as defendants: (1) Herr, a Correctional Officer at California State
4 Prison – Solano (CSP-Sol.); (2) Lore, a Correctional Officer at CSP-Sol.; (3) G. Alvarez, the
5 Assistant Food Manager at CSP-Sol.; (4) A. Petty; (5) C. Pangelian; (6) D. Marchal; and (7) C.
6 Cagnina. See id. at 1, 3.
7 Plaintiff alleges he has been receiving Kosher meals consistent with his Jewish
8 faith and pursuant to California prison regulations. See id. at 4. According to Plaintiff,
9 participants in the Kosher meal program sign a “contract agreement” whereby inmates agree to
10 only accept the provided Kosher meals and not the regular meals provided for prisoners not
11 participating in the Kosher meal program. See id.
12 Plaintiff states that “violators” of this agreement are subject to removal from the
13 Kosher meal program “without any exceptions.” Id. Plaintiff states that all participants in the
14 Kosher meal program are issued a “Religious Diet Card” with their name and photograph on it for
15 proof of participation. Id. at 5. Plaintiff states that participants in the Kosher meal program at
16 CSP-Sol. are required to pick up their breakfast and lunch by 5:30 a.m. and their dinner by 3:00
17 p.m. See id. According to Plaintiff, his work schedule, which runs Mondays through Thursdays,
18 did not allow him to pick up his Kosher dinner by 3:00 p.m., so he was permitted to pick up his
19 dinner during the “regular chow release” after 5:00 p.m. See id.
20 Plaintiff alleges that, on February 12, 2020, at about 5:30 a.m., Plaintiff went to
21 pick up his Kosher breakfast and lunch. See id. Plaintiff contends that the C-Facility dining room
22 officer, Defendant Herr, refused to issue him his Kosher meals because Plaintiff’s name was no
23 longer on the “Inmate Meal Tracking System (IMTS) ‘Kitchen List.’” Id. at 5-6. According to
24 Plaintiff, he showed Defendant Herr his Religious Diet Card authorizing Kosher meals and asked
25 Defendant Herr to re-check the list. See id. at 6. Plaintiff states that this request was “to no avail”
26 and that Defendant Herr refused to feed Plaintiff breakfast or lunch. Id. Plaintiff states that he was
27 “at a loss as to what to do” because the contract agreement for Kosher meals “made no exception
28 or provision for such a situation.” Id. As a result, Plaintiff states he went without breakfast or
1 lunch. See id.
2 According to Plaintiff, later that same day he went to the C-Facility dining room to
3 pick up his Kosher dinner. See id. Plaintiff contends that an unidentified John Doe defendant
4 refused to issue Plaintiff his Kosher dinner, stating that Plaintiff’s name was no longer on his
5 Kitchen List. Id. As with Defendant Herr, Plaintiff states he showed this unidentified John Doe
6 defendant his Religious Diet Card but that he was nonetheless refused his Kosher dinner. See id.
7 Again, Plaintiff states that he went without his evening meal, hoping the situation would
8 eventually work itself out. See id. at 7.
9 Plaintiff claims that, with the exception of February 20, 2020, he was refused
10 Kosher meals by Defendants Herr, Lore and unidentified John/Jane Does 1 through 6. See id.
11 Each time, Plaintiff was informed his name was no longer on the Kitchen List. See id. According
12 to Plaintiff, he showed his Religious Diet Card each time to no avail. See id. Despite showing his
13 card, Plaintiff was refused his meals. See id. Plaintiff states that, on February 27, 2020, “it was
14 revealed that Plaintiff’s name had been on the IMTS Kitchen List all along.” Id. at 7-8.
15 Plaintiff states that, on February 21, 2020, he submitted an emergency inmate
16 appeal complaining that he had not been provided a total of 23 meals over the preceding nine
17 days. See id. at 9. According to Plaintiff, Defendants Petty, Pangelian, Marchal, and Cagnina
18 received and reviewed his appeal but refused to treat it as an emergency and instead set the matter
19 for a hearing on April 7, 2020. See id. at 9-10. Plaintiff claims this action allowed for the
20 protracted continuation of the denial of religious meals “and starvation.” Id. at 10.
21 Plaintiff states that, on February 21, 2020, he submitted a staff misconduct
22 complaint regarding the protracted denial of meals. See id. at 11. Plaintiff claims that, on
23 February 24, 2020, Defendants Cagnina and unidentified John/Jane Does 7 through 9 “took it
24 upon themselves to deliberately and nefariously mis-categorize Plaintiff’s ‘Staff Misconduct
25 Complaint’ as a Category 9 ‘Living Condition Complaint.’” Id. at 12-13. Plaintiff alleges this was
26 done in order to “foster a code of silence” and circumvent Plaintiff’s rights to a separate staff
27 misconduct investigation under California prison regulations. See id. at 13.
28 / / /
1 Plaintiff contends that, on February 26, 2020, he went to the C-Facility dining hall
2 for his daily Kosher breakfast and lunch. See id. at 13-14. Upon arrival, the Assistant Correctional
3 Food Manager, Defendant Alvarez, was waiting to interview Plaintiff regarding his pending
4 inmate grievances alleging that prison officials were withholding his Kosher meals. See id. at 14.
5 According to Plaintiff, Defendant Alvarez told Plaintiff she had reviewed Plaintiff’s appeal issues
6 and found that Plaintiff had not been receiving his Kosher meals because medical staff had placed
7 Plaintiff on a new “renal diet” which overrode his Kosher diet. Id. Alvarez told Plaintiff he should
8 have been receiving his meals from the medical facility for the last 16 to 17 days. See id.
9 Plaintiff states he was told by Alvarez that she had done all she could, and that
10 Plaintiff should withdraw his grievances and submit a medical grievance against the “Medical
11 Dietician.” Id. Plaintiff states he told Alvarez he would not withdraw his appeals. See id. at 15.
12 According to Plaintiff, this was all a ruse as he went to the medical facility to request meals and
13 was told by Correctional Officer McCullen that she had no recollection of Plaintiff ever being
14 placed on a “renal diet.” Id. According to Plaintiff, McCullen called the dietician to confirm and
15 was told by the dietician that there is not nor has there ever been an order for Plaintiff to receive a
16 “renal diet.” Id. at 15-16.
17 Plaintiff states that he ultimately went without meals that day because he had to
18 report for his work assignment. See id. at 16. According to Plaintiff, later that evening he went to
19 the C-Facility dining hall and presented his diet card to receive his Kosher dinner. See id. Plaintiff
20 states that, once again, he was refused his meal by an unidentified John/Jane Doe defendant, who
21 told him that his name was not on the Kitchen List. See id. Plaintiff contends that he went to the
22 dining hall on February 27, 2020, at 5:30 a.m. to receive his Kosher breakfast and lunch. See id.
23 Plaintiff states that, once again, Defendant Alvarez was waiting and told Plaintiff
24 that she had mistaken Plaintiff for another prisoner who had been removed from the Kosher meal
25 program and placed on a renal diet. See id. According to Plaintiff, he was told by Alvarez this
26 time that the reason Plaintiff’s name had not been showing up on the IMST Kitchen List for the
27 last 17 days was because Plaintiff name had been moved from page 2 to page 1 of the Kitchen
28 List and that the kitchen cook had only been providing custody staff with page 2 of the Kitchen
1 List. See id. at 17.
2 The Court ordered that service of the first amended complaint was appropriate
3 against all named defendants on Plaintiff’s claim related to denial of Kosher meals. See ECF No.
4 12.
5
6 II. DISCUSSION
7 In their motion to dismiss, Defendants argue:

8 1. Plaintiff’s claims against Defendants Herr and Lore should be
dismissed because Plaintiff admits that they were not the cause of his
9 lack of Kosher meals.

10 2. Plaintiff’s claims against all defendants should be dismissed because
Plaintiff alleges deprivation of Kosher meals for only one or two days.
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3. Plaintiff’s claims against Defendant Petty, Pangelian, Marchal, and
12 Cagnina should be dismissed because they were only involved in
Plaintiff’s innate appeal and did not participate in the denial of
13 Kosher meals.

14 4. Plaintiff’s claims for damages against defendants acting in their
official capacities are barred by the Eleventh Amendment.
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5. Plaintiff cannot proceed under RLUIPA on any money damages
16 claim, whether against defendants in their official or individual
capacities, and any claims for injunctive relief which may proceed
17 under RLUIPA are moot.

18 6. Defendants are entitled to qualified immunity on Plaintiff’s First
Amendment claims.
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7. Plaintiff’s negligence claim should be dismissed because Plaintiff failed
20 to comply with the California Government Claims Act prior to filing
suit and because Plaintiff fails to allege sufficient facts to state a
21 negligence claim against any defendant.

22 See ECF No. 20.
23 A. Eleventh Amendment Immunity
24 Defendants contend that Plaintiff’s damages claims against them acting in their
25 official capacities are barred. See ECF No. 20, 19-20. The Court agrees. The Eleventh
26 Amendment bars actions seeking damages from state officials acting in their official capacities.
27 See Eaglesmith v. Ward, 73 F.3d 857, 859 (9th Cir. 1995); Pena v. Gardner, 976 F.2d 469, 472
28 (9th Cir. 1992) (per curiam). Plaintiff’s official-capacity claims should be dismissed. Plaintiff
1 may proceed with his damages claims against Defendants in their individual capacities, except
2 under RLUIPA, as explained below.
3 B. First Amendment and RLUIPA Claims
4 The United States Supreme Court has held that prisoners retain their First
5 Amendment rights, including the right to free exercise of religion. See O'Lone v. Estate of
6 Shabazz, 482 U.S. 342, 348 (1987); see also Pell v. Procunier, 417 U.S. 817, 822 (1974). Thus,
7 for example, prisoners have a right to be provided with food sufficient to sustain them in good
8 health and which satisfies the dietary laws of their religion. See McElyea v. Babbit, 833 F.2d
9 196, 198 (9th Cir. 1987). In addition, prison officials are required to provide prisoners facilities
10 where they can worship and access to clergy or spiritual leaders. See Glittlemacker v. Prasse, 428
11 F.2d 1, 4 (3rd Cir. 1970). Inmates also must be given a “reasonable opportunity” to pursue their
12 faith comparable to that afforded fellow prisoners who adhere to conventional religious precepts.
13 See Cruz v. Beto, 405 U.S. 319, 322 (1972).
14 However, the court has also recognized that limitations on a prisoner’s free
15 exercise rights arise from both the fact of incarceration and valid penological objectives. See
16 McElyea, 833 F.2d at 197. For instance, under the First Amendment, the penological interest in a
17 simplified food service has been held sufficient to allow a prison to provide orthodox Jewish
18 inmates with a pork-free diet instead of a completely kosher diet. See Ward v. Walsh, 1 F.3d 873,
19 877-79 (9th Cir. 1993). Similarly, prison officials have a legitimate penological interest in getting
20 inmates to their work and educational assignments. See Mayweathers v. Newland, 258 F.3d 930,
21 38 (9th Cir. 2001) (analyzing Muslim inmates’ First Amendment challenge to prison work rule).
22 While free exercise of religion claims originally arose under the First Amendment,
23 Congress has enacted various statutes in an effort to provide prisoners with heightened religious
24 protection. See Warsoldier v. Woodford, 418 F.3d 989, 994 (9th Cir. 2005). Prior to these
25 congressional efforts, prison free exercise claims were analyzed under the “reasonableness test”
26 set forth in Turner v. Safley, 482 U.S. 78, 89-91 (1987); see e.g. O’Lone, 382 U.S. at 349. The
27 first effort to provide heightened protection was the Religious Freedom Restoration Act (RFRA)
28 of 1993. However, the Supreme Court invalidated that act and restored the “reasonableness test.”
1 See City of Boerne v. P.F. Flores, 521 U.S. 507 (1997); see also Freeman v. Arpaio, 125 F.3d
2 732, 736 (9th Cir. 1997) (recognizing that the United States Supreme Court’s decision in City of
3 Boerne invalidated RFRA and restored the “reasonableness test” as the applicable standard in free
4 exercise challenges brought by prison inmates).
5 Congress then enacted the Religious Land Use and Institutionalized Persons Act
6 (RLUIPA) in 2000 “. . . in response to the constitutional flaws with RFRA identified in City of
7 Boerne.” Guru Nanak Sikh Soc. of Yuba City v. County of Sutter, 456 F.3d 978, 985 (9th Cir.
8 2006). Under RLUIPA, prison officials are prohibited from imposing “substantial burdens” on
9 religious exercise unless there exists a compelling governmental interest and the burden is the
10 least restrictive means of satisfying that interest. See id. at 986. RLUIPA has been upheld by the
11 Supreme Court, which held that RLUIPA’s “institutionalized-persons provision was compatible
12 with the Court’s Establishment Clause jurisprudence and concluded that RLUIPA ‘alleviates
13 exceptional government-created burdens on private religious exercise.’” Warsoldier, 418 F.3d at
14 994 (quoting Cutter v. Wilkinson, 125 S.Ct. 2113, 2117 (2005)). Congress achieved this goal by
15 replacing the “reasonableness test” articulated in Turner with the “compelling government
16 interest” test codified in RLUIPA at 42 U.S.C. § 2000cc-1(a). See id.
17 It is not clear whether a prisoner must specifically raise RLUIPA in order to have
18 his claim analyzed under the statute’s heightened standard. In Alvarez v. Hill, the Ninth Circuit
19 held that, if a complaint contains “factual allegations establishing a ‘plausible” entitlement to
20 relief under RLUIPA, [plaintiff has] satisfied the minimal notice pleading requirements of Rule 8
21 of the Federal Rules of Civil Procedure.” 518 F.3d 1152, 1157 (9th Cir. 2008); but see
22 Henderson v. Terhune, 379 F.3d 709, 715 n.1 (9th Cir. 2004) (declining to express any opinion
23 about whether plaintiff could prevail under RLUIPA because plaintiff brought his claim under the
24 First Amendment only). Therefore, it is possible for a prisoner’s complaint to raise both a First
25 Amendment claim and RLUIPA claim based on the same factual allegations. In other words,
26 even if the plaintiff does not specifically invoke the heightened protections of RLUIPA, he may
27 nonetheless be entitled to them. Under Henderson, however, the plaintiff’s claim may be limited
28 to the less stringent Turner “reasonableness test” if the plaintiff specifically brings the claim
1 under the First Amendment only.
2 Under both the First Amendment and RLUIPA, the prisoner bears the initial
3 burden of establishing that the defendants substantially burdened the practice of his religion by
4 preventing him from engaging in conduct mandated by his faith. See Freeman v. Arpaio,125 F.3d
5 732, 736 (9th Cir. 1997) (analyzing claim under First Amendment); see also Warsoldier, 418 F.3d
6 at 994-95 (analyzing claim under RLUIPA). While RLUIPA does not define what constitutes a
7 “substantial burden,” pre-RLUIPA cases are instructive. See id. at 995 (discussing cases defining
8 “substantial burden” in the First Amendment context). To show a substantial burden on the
9 practice of religion, the prisoner must demonstrate that prison officials’ conduct “. . . burdens the
10 adherent’s practice of his or her religion by pressuring him or her to commit an act forbidden by
11 the religion or by preventing him or her from engaging in conduct or having a religious
12 experience which the faith mandates.” Graham v. Commissioner, 822 F.2d 844, 850-51 (9th Cir.
13 1987). The burden must be more than a mere inconvenience. See id. at 851. In the context of
14 claims based on religious diets, a plaintiff must prove that prison officials refused to provide a
15 diet which satisfies his religious dietary laws or that the available prison menu prevented him
16 from adhering to the religious dietary laws mandated by his faith. See Bryant v. Gomez, 46 F.3d
17 948, 949 (9th Cir. 1995).
18 Under the First Amendment “reasonableness test,” where the inmate shows a
19 substantial burden the prison regulation or restriction at issue is nonetheless valid if it is
20 reasonably related to a legitimate penological interest. See Shakur v. Schriro, 514 F.3d 878, 884
21 (9th Cir. 2008) (citing Turner, 482 U.S. at 89). In applying this test, the court must weight four
22 factors: (1) whether there is a rational connection between the regulation or restriction and the
23 government interest put forward to justify it; (2) whether there are available alternative means of
24 exercising the right; (3) whether accommodation of the asserted religious right will have a
25 detrimental impact on prison guards, other inmates, or the allocation of limited prison resources;
26 and (4) whether there exist ready alternatives to the regulation or restriction. See id.; see also
27 Allen v. Toombs, 827 F.2d 563, 567 (9th Cir. 1987).
28 Under RLUIPA, the government is required to “. . . meet the much stricter burden
1 of showing that the burden it imposes on religious exercise is ‘in furtherance of a compelling
2 government interest; and is the least restrictive means of furthering that compelling governmental
3 interest.’” Green v. Solano County Jail, 513 F.3d 992, 986, 989 (9th Cir. 2008) (citing 42 U.S.C.
4 § 2000cc-1(a)(1)-(2) and 2(b)); see also Warsoldier, 418 F.3d at 994-95. Prison security is an
5 example of a compelling governmental interest. See Green, 513 F.3d at 989 (citing Cutter, 125
6 S.Ct. at 2113 n.13). In establishing that the regulation or restriction is the least restrictive means
7 to achieve a compelling governmental interest, prison officials must show that they actually
8 considered and rejected the efficacy of less restrictive means before adopting the challenged
9 practice. See Green, 513 F.3d at 989 (citing Warsoldier, 418 F.3d at 999).
10 The gravamen of Plaintiff’s complaint is that Defendants, in denying Kosher
11 meals, violated his rights under the First Amendment, RLUIPA, or both. In the current motion to
12 dismiss, Defendants contend Plaintiff cannot sustain a First Amendment or RLUIPA claim
13 because any deprivation was de minimis and thus not a substantial burden on Plaintiff’s exercise
14 of religion. Next, Defendants assert that Petty, Pangelian, Marchal, and Cagnina should be
15 dismissed because they did not participate in the denial of Kosher meals. Finally, in the context
16 of RLUIPA, Defendants argue that Plaintiff’s sole remedy is prospective injunctive relief, which
17 was rendered moot when Plaintiff was provided Kosher meals after only a short delay.
18 1. Substantial Burden
19 At the outset, the Court rejects Defendants’ apparent argument that Defendants
20 Herr and Lore should be dismissed because Plaintiff admits that Defendant Herr and Lore were
21 not the cause of his being denied Kosher meals. In his first amended complaint, Plaintiff states
22 that the first time he was denied a meal it was by Defendant Herr, who did not find Plaintiff’s
23 name on the IMTS list and refused him a Kosher meal, despite Plaintiff displaying his Religious
24 Diet Card. See ECF No. 11, 5-6. According to Plaintiff he was refused Kosher meals over the
25 next seventeen days by “Officers Herr, Lore, and John/Jane Does 1 thru 6.” Id. at 7. Broadly
26 construing Plaintiff’s allegations, and taking the stated facts as true, Defendants Herr and Lore
27 affirmatively acted to deny Plaintiff Kosher meals for at least some of the seventeen days where
28 he missed meals.
1 The Court next addresses Defendants’ argument that Plaintiff cannot state a claim
2 because the facts alleged show only a de minimis deprivation, which does not amount to a
3 substantial burden on Plaintiff’s exercise of religion. Defendants contend that the sixteen-day
4 interruption in Plaintiff’s receipt of kosher meals is not a substantial burden on Plaintiff’s
5 religious practice that rises to the level of a constitutional violation, citing Holiday v. Giusto,
6 2004 U.S. Dist. LEXIS 16348 (D. Or. 2004). In that case, the plaintiff was denied Halal or
7 Kosher meals for eighteen days as the plaintiff waited for an application to receive Halal meals to
8 be processed. See id. at *9. The district court granted summary judgment in favor of the
9 defendants, stating that “an eighteen-day delay in processing Plaintiff Holiday’s religious dietary
10 request simply is not a substantial burden.” Id. at *16 (emphasis added).
11 The instant case is distinguishable because Plaintiff had already been granted a
12 religious dietary request. See ECF No. 11, 4. Showing the sincerity of his religious beliefs,
13 Plaintiff was issued a card allowing him to receive Kosher meals. See id. at 5. He was then
14 denied Kosher meals for a period of seventeen days. See id. at 7. Rather than a delay “caused by
15 a verification process . . . recognized as a legitimate penological interest,” as was the situation in
16 Holiday, Plaintiff was denied meals which he had already authorized. Holiday, 2004 U.S. Dist.
17 16348 at *16. It is unclear from the complaint whether Plaintiff was able to have alternative
18 meals during this time, though he does state that staff conduct was causing “starvation.” ECF No.
19 11, 11.
20 Defendants conceded that “[t]he point at which a temporary suspension of an
21 inmate’s legitimate religious practice in prison becomes a substantial burden is a fact-based
22 inquiry and an open question.” ECF No. 20, 15 (quoting Lawson v. Carney, 2017 U.S. Dist.
23 LEXIS 160272, *18 (E.D. Wa. 2017)). Based on this, it would be inappropriate to dismiss
24 Plaintiff’s First Amendment and RLUIPA claims based on an assertion that a sixteen-day refusal
25 to serve him kosher meals is not a substantial burden on his religious practice. The Court finds
26 that Plaintiff has stated sufficient facts to show that Defendants were responsible for at least
27 several days of not receiving kosher meals. Given the fact-intensive nature of the inquiry, the
28 Court is not prepared to say that, on the facts alleged by Plaintiff, he has failed to allege a
1 substantial burden based on a sixteen-day delay.
2 2. Defendants Petty, Pangelian, Marchal, and Cagnina
3 Defendants also assert that Plaintiff has failed to state a First Amendment claim
4 against Defendants Petty, Pangelian, Marchal, and Cagnina. See ECF No. 20, 18-19. According
5 to Defendants, Plaintiff has only made conclusory statements about their actions, and that as “no
6 specific activity in the deprivation is attributed to any of the above four defendants,” that he fails
7 to state a claim. Id. at 19. The Court does not agree. Plaintiff has alleged that these defendants
8 classified his grievance as a non-emergency, when it should have been an emergency, given that
9 he was missing meals, presenting a health risk. See ECF No. 11, 8-10. He claims that this further
10 delayed his receipt of appropriate meals. See id. at 10. The Court finds that these allegations are
11 sufficient to show the involvement of Defendant Petty, Pangelian, Marchal, and Cagnina in a
12 potential substantial burden by way of delay of Kosher meals.
13 3. Availability of Relief under RLUIPA
14 Citing Jones v. Williams, 791 F.3d 1023, 1031 (9th Cir. 2015), Defendants argue
15 that “RLUIPA does not authorize money damages against state officials, whether sued in their
16 official or individual capacities.” The Court agrees. As discussed above, the Eleventh
17 Amendment bars any money damages claims against Defendants in their official capacities. See
18 Eaglesmith, 73 F.3d at 859. Moreover, RLUIPA does not permit money damages claims against
19 state officials acting in their individual capacities because Congress did not intend RLUIPA to
20 create individual liability. See Jones, 791 F.3d at 1031. Instead, RLUIPA allows for “appropriate
21 relief” against “a government.” Id. Plaintiff cannot obtain money damages under RLUIPA and
22 any such claims should be dismissed with prejudice.
23 Defendants also assert that any claim for injunctive relief under RLUIPA is now
24 moot because Plaintiff has begun to receive kosher meals again. See ECF 20, 20. “Federal courts
25 lack jurisdiction over claims that have been rendered moot because ‘the issues presented are no
26 longer live’ or because the parties no longer possess ‘a legally cognizable interest in the
27 outcome.’” Jones v. Williams, 791 F.3d 1023, 1031 (9th Cir. 2015) (quoting Alvarez v. Hill, 667
28 F.3d 1061, 1064 (9th Cir. 2012)). Even if the harm does not continue throughout the case, there
1 may still be standing where the challenged action is “one that is capable of repetition, yet evading
2 review.” Gerstein v. Pugh, 420 U.S. 103, 110 n.11 (1975). Courts have generally held that
3 inmate claims against prison officials become moot when they are release from custody, or are
4 transferred to a different facility, because at that point “there is no indication that [the plaintiff]
5 will again be subjected to the challenged prison policies.” Alvarez, 667 F.3d at 1064. See, e.g.,
6 Jones, 791 F.3d at 1031, Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991), Incumaa v.
7 Ozmint, 507 F.3d 281, 285 (4th Cir. 2007); Cf. Lindquist v. Idaho State Bd. of Corr, 776 F.2d
8 851, 854 (9th Cir. 1985) (holding that construction of a new prison law library rendered a claim
9 for access to the courts partially moot because of physical changes to the prison facility).
10 Here, Plaintiff is still in custody at the same facility and therefore still subject to
11 the same policies. See ECF No. 11. There is no indication that any actions have been taken to
12 ensure no further deprivation of Kosher meals. The complaint, also states that “Plaintiff was still
13 periodically not being given his Kosher meals.” Id. at 17. Because Plaintiff claims to still be
14 denied Kosher meals occasionally, and is still in the same prison facility, where no changes have
15 thus far been made to prevent future deprivations, his claim for injunctive relief under RLUIPA is
16 not moot.
17 C. Negligence Claims
18 Defendants have asked this Court to take judicial notice of an exhibit which shows
19 that Plaintiff failed to comply with the California Government Claims Act by failing to wait for a
20 response to his complaint with the Government Claims Program (GCP) before filing this suit.
21 See ECF Nos. 20-1 (request for judicial notice, 20-2 (Exhibit A). The Court may take judicial
22 notice pursuant to Federal Rule of Evidence 201 of matters of public record. See U.S. v. 14.02
23 Acres of Land, 530 F.3d 883, 894 (9th Cir. 2008). Thus, this Court may take judicial notice of
24 state court records, see Kasey v. Molybdenum Corp. of America, 336 F.2d 560, 563 (9th Cir.
25 1964), as well as its own records, see Chandler v. U.S., 378 F.2d 906, 909 (9th Cir. 1967). This
26 Court may also take notice of “‘records and reports of administrative bodies.’” Mack v. S. Bay
27 Beer Distribs., 798 F.2d 1279, 1282 (9th Cir. 1986) (quoting Interstate Nat. Gas Co., 209 F.2d
28 380, 385 (9th Cir. 1953)). The accuracy of the documents must not be “subject to reasonable
1 dispute.” Fed. R. Evid. 201(b).
2 Defendants have attached a separate exhibit to their motion to dismiss, namely the
3 rejection of Plaintiff’s claim by the GCP, dated June 26, 2020, along with certifications of the
4 document’s veracity by both the GCP and the California Department of Justice. See ECF No. 20-
5 2, 12-15. This is an administrative record. Given its source, its contents are not “subject to
6 reasonable dispute.” Fed. R. Evid. 201(b). Therefore, this Court may take notice of Defendants’
7 Exhibit A.
8 Defendants argue that, as shown by Exhibit A, Plaintiff violated the California
9 Government Claims Act because he filed this action prior to receiving a response from the state
10 agency responsible for hearing his claim. See ECF No. 20, 23-24. The Government Claims Act
11 requires that person submit their complaint to the appropriate governing body or public entity
12 before filing suit against the state and that a suit may not be filed until after that entity has acted
13 on or rejected the claim. See Shirk v. Vista Unified Sch. Dist., 164 P.3d 630, 634 (Cal. 2007)
14 (overruled on other grounds by Rubenstein v. Doe No. 1, 400 P.3d 372 (Cal. 2017)); see also Cal.
15 Gov’t Code § 945.4. As Defendants’ Exhibit A shows, Plaintiff did not receive a response to his
16 Government Claims Act claim until June 26, 2020 – which is after Plaintiff filed his original
17 complaint in this case on June 17, 2020. See ECF No. 20-2, 12. While Plaintiff’s original
18 complaint was prematurely filed, the amended complaint upon which the action now proceeds
19 was filed after the Government Claims Act claim was denied. Defendants have cited no authority
20 in support of the position that Plaintiff’s negligence claim is procedurally barred on these facts
21 where it clear that, notwithstanding a premature filing, the state tort claim has since been denied
22 by the appropriate agency.
23 Finally, the Court rejects Defendants’ contention that Plaintiff fails to plead
24 sufficient facts to sustain a claim for negligence. As outlined above, Plaintiff alleges generally
25 that Defendants had a duty to provide Kosher meals consistent with this meal authorization.
26 Plaintiff also alleges that each defendant in some way participated in denying him Kosher meals
27 and that this caused him to suffer damage. Liberally construed, these allegations are sufficient.
28 ///
1 D. Qualified Immunity
2 Government officials enjoy qualified immunity from civil damages unless their
3 conduct violates “clearly established statutory or constitutional rights of which a reasonable
4 person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In general,
5 qualified immunity protects “all but the plainly incompetent or those who knowingly violate the
6 law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). In ruling upon the issue of qualified
7 immunity, the initial inquiry is whether, taken in the light most favorable to the party asserting the
8 injury, the facts alleged show the defendant’s conduct violated a constitutional right. See Saucier
9 v. Katz, 533 U.S. 194, 201 (2001). If a violation can be made out, the next step is to ask whether
10 the right was clearly established. See id. This inquiry “must be undertaken in light of the specific
11 context of the case, not as a broad general proposition . . . .” Id. “[T]he right the official is
12 alleged to have violated must have been ‘clearly established’ in a more particularized, and hence
13 more relevant, sense: The contours of the right must be sufficiently clear that a reasonable
14 official would understand that what he is doing violates that right.” Id. at 202 (citation omitted).
15 Thus, the final step in the analysis is to determine whether a reasonable officer in similar
16 circumstances would have thought his conduct violated the alleged right. See id. at 205.
17 When identifying the right allegedly violated, the court must define the right more
18 narrowly than the constitutional provision guaranteeing the right, but more broadly than the
19 factual circumstances surrounding the alleged violation. See Kelly v. Borg, 60 F.3d 664, 667 (9th
20 Cir. 1995). For a right to be clearly established, “[t]he contours of the right must be sufficiently
21 clear that a reasonable official would understand [that] what [the official] is doing violates the
22 right.” See Anderson v. Creighton, 483 U.S. 635, 640 (1987). Ordinarily, once the court
23 concludes that a right was clearly established, an officer is not entitled to qualified immunity
24 because a reasonably competent public official is charged with knowing the law governing his
25 conduct. See Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982). However, even if the plaintiff
26 has alleged a violation of a clearly established right, the government official is entitled to
27 qualified immunity if he could have “. . . reasonably but mistakenly believed that his . . . conduct
28 did not violate the right.” Jackson v. City of Bremerton, 268 F.3d 646, 651 (9th Cir. 2001); see
1 also Saucier, 533 U.S. at 205.
2 The first factors in the qualified immunity analysis involve purely legal questions.
3 See Trevino v. Gates, 99 F.3d 911, 917 (9th Cir. 1996). The third inquiry involves a legal
4 determination based on a prior factual finding as to the reasonableness of the government
5 official’s conduct. See Neely v. Feinstein, 50 F.3d 1502, 1509 (9th Cir. 1995). The district court
6 has discretion to determine which of the Saucier factors to analyze first. See Pearson v. Callahan,
7 555 U.S. 223, 236 (2009). In resolving these issues, the Court must view the evidence in the light
8 most favorable to the plaintiff and resolve all material factual disputes in favor of the plaintiff.
9 See Martinez v. Stanford, 323 F.3d 1178, 1184 (9th Cir. 2003).
10 Taking the facts alleged in the light most favorable to the Plaintiff, the amended
11 complaint establishes the violation of a clearly established right to religious meals. Given the
12 existence of a Religious Meal Card, and established criteria for obtaining such card, a reasonable
13 official would know that there was a right to receive religiously compliant meals. Finally, we
14 must determine whether the officials in question could have been reasonably mistaken in thinking
15 that their conduct did not violate the right. The final inquiry – whether Defendants could have
16 reasonably but mistakenly believed their conduct did not violate Plaintiff’s clearly established
17 rights – is a legal determination to be made based on prior factual findings, which cannot be made
18 in the context of a motion to dismiss.
19 Defendants Herr and Lore may or may not have been reasonably mistaken as to
20 whether their conduct violated Plaintiff’s rights. While they may have been reasonable in relying
21 on the “kitchen list,” it is possible that failing to provide Plaintiff a meal in light of his Religious
22 Diet Card, which Plaintiff presented to them, was unreasonable, especially as Plaintiff returned
23 daily for over two weeks seeking a Kosher meal. It is also possible that Defendants Herr and
24 Lore should have investigated the issue and sought to rectify it at some point given the seventeen-
25 day time frame during which the deprivations took place. Taking Plaintiff’s factual allegations as
26 true, Defendants Herr and Lore are entitled to qualified immunity.
27 According to Plaintiff, Defendant Alvarez deliberately misled Plaintiff by sending
28 him to medical for a meal in order to have Plaintiff withdraw his grievance. See ECF No. 11, 15.
1 Given that Plaintiff is alleging intentional conduct intended to continue to deprive him of Kosher
2 meals, it can be inferred that Defendant Alvarez did not make a reasonable mistake about whether
3 or not his conduct was lawful. Therefore, Defendant Alvarez is also not entitled to qualified
4 immunity at this stage.
5 Finally, regarding Defendants Petty, Pangelian, Marchal, and Cagnina, Defendants
6 contend that they were following state law in classifying Plaintiff’s grievance as a non-emergency
7 grievance. See ECF No. 20, 14-16. Again, taking Plaintiff’s allegations as true, Defendants’
8 reclassification of the grievance as a non-emergency appeal was inappropriate, as Plaintiff alleges
9 that he was undergoing “starvation,” which Plaintiff contends was grounds to classify his
10 complaint as an emergency. ECF No. 11, 10. Whether these defendants appropriately followed
11 the process for the classification of grievances such that any mistake on their part was reasonable
12 is a factual question that cannot be decided at this time in the context of a motion to dismiss. The
13 Court finds that Defendants Petty, Pangelian, Machal, and Cagnina are also not entitled to
14 qualified immunity on the current record.
15
16 III. CONCLUSION
17 Based on the foregoing, the undersigned recommends that:
18 1. Defendants’ motion to dismiss, ECF No. 20, be granted in part and denied
19 in part.
20 2. Plaintiff’s damages claims against Defendants acting in their official
21 capacities be dismissed with prejudice.
22 3. Plaintiff’s damages claims under RLUIPA against Defendants acting in
23 their individual capacities be dismissed with prejudice.
24 4. This action proceed against all Defendants on the following claims:

25 (a) Plaintiff’s damages claims under the First amendment against
Defendants in their individual capacities,
26
(b) Plaintiff’s injunctive relief claims under the First Amendment
27 and RLUIPA against Defendants acting in their official and
individual capacities, and
28
1 (c) Plaintiff's negligence claims.
2
These findings and recommendations are submitted to the United States District
3
Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days
4
after being served with these findings and recommendations, any party may file written
5
objections with the court. Responses to objections shall be filed within 14 days after service of
6
objections. Failure to file objections within the specified time may waive the right to appeal. See
7
Martinez v. YlIst, 951 F.2d 1153 (9th Cir. 1991).
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Dated: July 5, 2022
10
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10045668. Public record. Not legal advice.