# Thomas-Weisner v. Gipson

> District Court, S.D. California · June 14, 2022

URL: https://www.frixlaw.com/law-library/cases/10085920

## Case

- **Court:** District Court, S.D. California
- **Decided:** June 14, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10085920

## How later opinions describe it (automated extraction)

- holding 11 negligence is insufficient to state a valid Section 1983 claim for the violation of free 12 exercise rights

## Opinion text

1
2
3
4
5
6
7 UNITED STATES DISTRICT COURT
8 SOUTHERN DISTRICT OF CALIFORNIA
9
10 Jonquil THOMAS-WEISNER, Case No.: 19-cv-01999-JAH-BGS

11 Plaintiff,
REPORT & RECOMMENDATION
12 v. GRANTING DEFENDANTS’
MOTION TO DISMISS
13 Connie GIPSON, et al.,
PLAINTIFF’S SECOND AMENDED
14 Defendants. COMPLAINT
15
16 Jonquil Thomas-Weisner (“Plaintiff”), currently incarcerated at Centinela State
17 Prison (“CEN”) located in Imperial, California, is proceeding pro se and in forma pauperis
18 (“IFP”) in this civil rights action filed pursuant to 42 U.S.C. § 1983. (See ECF Nos. 1, 5.)
19 In the Second Amended Complaint (“SAC”), Plaintiff alleged that Defendants violated the
20 First Amendment’s Free Exercise Clause by removing him from his Religious Meal
21 Alternative (“RMA”) diet. (See ECF No. 26.) Defendant Patrick Covello and Defendant
22 Lance Eshelman (“Defendants”) moved to dismiss Plaintiff’s SAC on grounds that the
23 conduct attributed to the Defendants is not sufficient to maintain a § 1983 lawsuit, (ECF
24 No. 28 at 10); that Plaintiff’s SAC failed to state a cause of action for violation of the Free
25 Exercise Clause, (Id. at 12); and that the Defendants are entitled to qualified immunity, (Id.
26 at 13).(ECF No. 28.) The Plaintiff filed an Opposition to the Motion to the Dismiss
27 (“Opposition”) and Defendants filed a Reply in support of their motion (“Reply”). (ECF
28 Nos. 33, 34.)
1 This Report and Recommendation is submitted to United States District Judge John
2 A. Houston pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule HC.2 of the United
3 States District Court for the Southern District of California. Based on the documents and
4 evidence presented, and for the reasons set forth below, the Court RECOMMENDS that
5 Defendants’ Motion to Dismiss Plaintiff’s SAC (ECF No. 26) be GRANTED and that this
6 action be DISMISSED WITHOUT LEAVE TO AMEND.
7 I. PROCEDURAL BACKGROUND
8 On October 17, 2019, Plaintiff initially filed this action pursuant to 42 U.S.C. § 1983
9 and filed a Motion to Proceed IFP. (See ECF Nos. 1, 2.) On January 8, 2020, the Court
10 granted Plaintiff’s Motion to Proceed IFP and dismissed Defendants Gipson and Voong
11 for failing to state a claim upon which relief could be granted pursuant to 28 U.S.C. §§
12 1915 (e)(2(b)(ii), 1915A(b)(1). (See ECF No. 5.) However, the Court found that the
13 allegations in Plaintiff’s Complaint as to his First Amendment Free Exercise Clause and
14 Religious Land Use and Institutionalized Persons Act (“RLUIPA”) claims were “sufficient
15 to survive the ‘low threshold’ set for sua sponte screening pursuant to 28 U.S.C. § 1915
16 (e)(2(b)(ii) and § 1915A(b)(1).” (Id. at 8–9.) Thus, the Court directed the United States
17 Marshal Service to effect service of the remaining claims in Plaintiff’s Complaint on
18 Defendants Covello and Eshelman. (See id.)
19 On May 11, 2020, Defendants filed their Motion to Dismiss Plaintiff’s Complaint
20 pursuant to Fed. R. Civ. P. 12(b)(6). (ECF No. 10.) Plaintiff filed his Opposition to
21 Defendant’s Motion, to which Defendant filed a Reply. (See ECF Nos. 12, 13.) On
22 October 26, 2020, the Court issued its order granting Defendants’ Motion to Dismiss
23 Plaintiff’s Complaint with leave to amend. (ECF No. 14.)
24 On December 17, 2020, Plaintiff filed a First Amended Complaint (“FAC”). (ECF
25 No. 15.) Defendants filed another Motion to Dismiss on January 4, 2021. (ECF No. 16.)
26 On August 20, 2021, Judge Skomal issued a Report and Recommendation, wherein he
27 recommended that Defendants’ Motion to Dismiss be granted. (ECF No. 20.) On
28
1 November 15, 2021, Judge Houston issued an Order adopting the Report and
2 Recommendation and dismissed Plaintiff’s FAC with leave to amend. (ECF No. 25.)
3 Plaintiff’s SAC was filed on January 3, 2022 and contains a single cause of action
4 under the First Amendment for violation of the Free-Exercise Clause. (ECF No. 26.) On
5 January 20, 2022, Defendants filed their Motion to Dismiss Plaintiff’s SAC. (ECF No.
6 28.) Plaintiff filed his Opposition on April 11, 2022, and Defendants filed a reply in
7 support of their motion on April 20, 2022. (ECF Nos. 33, 34.)
8 II. FACTUAL BACKGROUND
9 In the SAC, Plaintiff maintained that he participated in the RMA diet while
10 incarcerated at California Substance Abuse Treatment Facility (SATF) until he was
11 transferred to RJD on January 5, 2018. (ECF No. 26 at 2.) While at RJD, Plaintiff claimed
12 that he then submitted a CDCR Form-22 explaining his dietary needs on January 8, 2018.
13 (Id. at 3.) Plaintiff stated that he submitted a CDCR Form-602 grievance on January 11,
14 2018 after no response. (Id.) On February 16, 2018, Plaintiff alleged that he was “informed
15 that he was being removed from the RMA program without his initial warning per Title 15
16 Section 3054.5[.]” (Id.)
17 Five months later, in June 2018, Plaintiff stated that he filed another CDCR Form -
18 602 grievance after his CDCR Form-3030 was denied. (Id.) Plaintiff alleged that
19 Defendant Eshelman reviewed and denied this grievance on August 30, 2018, which
20 Plaintiff claimed “further hinder[ed] the practice of [his] religious right, as well as,
21 violating his [First] Amendment rights.” (Id.) Plaintiff then alleged that “Defendant
22 Covello held that Title 15 section 3054.5 did not apply to Plaintiff’s request for RMA
23 because it was ‘[. . .] treated as new, and denied after the review process revealed
24 noncompliant canteen purchase[.]” (Id.) Plaintiff maintained that Defendant Covello
25 “violated [his] [First] Amendment right by not providing him with a meal sufficient to
26 sustain him in accordance to his belief.” (Id. at 4.) Plaintiff argued that he “has been and
27 will continue to be irreparably injured by the conduct of the defendants unless this court
28 grants the declaratory and injunctive relief which Plaintiff seeks.” (Id. at 5.)
1 III. MOTION TO DISMISS STANDARD
2 A motion to dismiss under Federal Rule 12(b)(6) may be based on either a “lack of
3 a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable
4 legal theory.” Johnson v. Riverside Healthcare System, LP, 534 F.3d 1116, 1121 (9th Cir.
5 2008) (citing Fed. R. Civ. P. 8(a)(2); Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699
6 (9th Cir. 1990)). A motion to dismiss should be granted if the plaintiff or petitioner fails
7 to proffer “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic
8 Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the
9 plaintiff pleads factual content that allows the court to draw the reasonable inference that
10 the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
11 (2009).
12 When considering a Federal Rule 12(b)(6) motion to dismiss, the Court must “accept
13 all allegations of material fact in the complaint as true and construe them in the light most
14 favorable to the non-moving party.” Cedars-Sinai Med. Ctr. v. Nat’l League of
15 Postmasters, 497 F.3d 972, 975 (9th Cir. 2007). However, it is not necessary for the Court
16 “to accept as true allegations that are merely conclusory, unwarranted deductions of fact,
17 or unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th
18 Cir. 2001). “[T]hreadbare recitals” of the elements of a cause of action, “supported by
19 mere conclusory statements,” are not enough. Ashcroft v. Iqbal, 556 U.S. at 678. “Factual
20 allegations must be enough to raise a right to relief above the speculative level.” Bell Atl.
21 Corp. v. Twombly, 550 U.S. at 555. On the other hand, “[a] document filed pro se is ‘to be
22 liberally construed,’ [. . .] and ‘a pro se complaint, however inartfully pleaded, must be
23 held to less stringent standards than formal pleadings drafted by lawyers[.]’” Erickson v.
24 Pardus, 551 U.S. 89, 94 (2007).
25 IV. DISCUSSION
26 In his SAC, Plaintiff alleged that the Defendants violated his First Amendment rights
27 for their alleged actions regarding his RMA diet. (ECF 26 at 3–4.) Defendants moved to
28 dismiss Plaintiff’s SAC in its entirety on the grounds that the conduct attributed to the
1 Defendants is not sufficient to maintain a § 1983 lawsuit, (ECF No. 28 at 10); that
2 Plaintiff’s SAC failed to state a cause of action for violation of the Free Exercise Clause,
3 (Id. at 12); and that the Defendants are entitled to qualified immunity, (Id. at 13).
4 A. 42 U.S.C. §1983 Standard
5 Title 42 U.S.C. § 1983 “provides a federal cause of action against any person who,
6 acting under color of state law, deprives another of his federal rights.” Conn v. Gabbert,
7 526 U.S. 286, 290 (1999). Section 1983 offers no substantive legal rights, but rather
8 provides procedural protections for federal rights granted elsewhere. Albright v. Oliver,
9 510 U.S. 266, 271 (1994). “Section 1983 is a ‘vehicle by which plaintiffs can bring federal
10 constitutional and statutory challenges to actions by state and local officials.’” Naffe v.
11 Frey, 789 F.3d 1030, 1035 (9th Cir. 2015) (quoting Anderson v. Warner, 451 F.3d 1063,
12 1067 (9th Cir. 2006)). “To state a claim under § 1983, a plaintiff [1] must allege the
13 violation of a right secured by the Constitution and laws of the United States, and [2] must
14 show that the alleged deprivation was committed by a person acting under color of state
15 law.” Id. at 1035–36 (quoting West v. Atkins, 487 U.S. 42, 48 (1988)). “Dismissal of a §
16 1983 claim following a Rule 12(b)(6) motion is proper if the complaint is devoid of factual
17 allegations that give rise to a plausible inference of either element.” Id. at 1036 (citing
18 DeGrassi v. City of Glendora, 207 F.3d 636, 647 (9th Cir. 2000), Price v. Hawaii, 939 F.2d
19 702, 707–09 (9th Cir. 1991), and Iqbal, 556 U.S. at 678).
20 Fundamentally, “where a particular amendment provides an explicit textual source
21 of constitutional protection against a particular sort of government behavior, that
22 Amendment, not the more generalized notion of substantive due process, must be the guide
23 for analyzing a plaintiff’s claims.” See Pino v. Ladd, No. 1:13CV01593-DLB-PC, 2014
24 WL 1102721, at *3 (E.D. Cal. Mar. 2014) (citing Patel v. Penman, 103 F.3d 868, 874 (9th
25 Cir. 1996)). Therefore, considering that Plaintiff alleged that the Defendants’ conduct
26 hindered his full and safe participation of his religion due to their alleged participation in
27 removing Plaintiff from his RMA diet, (ECF No. 26 at 2), Plaintiff’s religion claim is
28 properly analyzed under the First Amendment. See Pino, 2014 WL 1102721, at *3 (finding
1 that Plaintiff did not have a Fourteenth Amendment claim since his claim regarding his
2 religious practice was properly analyzed under the First Amendment).
3 Inmates do retain the protections afforded to them under the First Amendment,
4 including the free exercise of their religion, while incarcerated. See McElyea v. Babbitt,
5 833 F.2d 196, 197 (9th Cir. 1987) (citing O’Lone v. Estate of Shabazz, 482 U.S. 342, 348
6 (1987)). Free exercise rights, however, are “necessarily limited by the fact of incarceration,
7 and may be curtailed in order to achieve legitimate correctional goals or to maintain
8 security.” Id. The protections of the Free Exercise Clause are triggered when prison
9 officials burden the practice of an inmate’s religion by preventing him from engaging in
10 conduct which he sincerely believes is consistent with his faith. See Shakur v. Schriro, 514
11 F.3d 878, 884 (9th Cir. 2008). The Ninth Circuit has held that inmates “have the right to
12 be provided with food sufficient to sustain them in good health that satisfies the dietary
13 laws of their religion.” Ward v. Walsh, 1 F.3d 873, 877 (9th Cir. 1993).
14 “The right to the free exercise of religion is a precious American invention,
15 distinguishing our Constitution from all prior national constitutions.” Id. at 876. “The
16 right to exercise religious practices and beliefs does not terminate at the prison door. [. . .]
17 The free exercise right, however, is necessarily limited by the fact of incarceration, and
18 may be curtailed in order to achieve legitimate correctional goals or to maintain security.”
19 McElyea v. Babbitt, 833 F.2d 196, 197 (9th Cir. 1987). The protections of the Free Exercise
20 Clause are triggered when prison officials burden the practice of an inmate’s religion by
21 preventing him from engaging in conduct which he sincerely believes is consistent with
22 his faith. See Shakur, 514 F.3d at 884; Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir.
23 1997), overruled in part by Shakur, 514 F.3d at 884–85.
24 B. The Conduct Attributed to the Defendants Does Not Amount to a
25 Constitutional Violation
26 Defendants argued that the conduct attributed to Defendant Covell and Defendant
27 Eshelman did not amount to a constitutional violation. (ECF No. 28 at 10.) Defendants
28 maintained that the SAC makes no allegation that either Defendant was responsible for
1 transferring the Plaintiff’s religious diet, nor in providing notice to the Plaintiff. (Id. at 11.)
2 Defendants claimed that Plaintiff only alleged that the Defendants only handled his
3 grievances. (Id.)
4 Plaintiff claimed that Defendant Eshelman reviewed and denied his grievance, citing
5 to Exhibit D. (ECF No. 26 at 3.) Exhibit D indicates that on August 30, 2018, Defendant
6 Eshelman reviewed and denied Plaintiff’s grievance. (Id. at 25.) As regards to Defendant
7 Covello, Plaintiff alleged that Defendant Covello also denied his grievance by mistakenly
8 finding that Title 15 Section 3054.5 did not apply to Plaintiff and treated him as a new
9 request. (Id. at 3.) Plaintiff claimed that Defendant Covello violated Plaintiff’s First
10 Amendment right by not providing him with a meal sufficient to sustain him in accordance
11 with his belief. (Id. at 3–4.)
12 However, since there is no respondeat superior liability under 42 U.S.C. § 1983,
13 defendants cannot be held liable simply by virtue of their supervisory roles. See Iqbal, 556
14 U.S. at 676 (“Government officials may not be held liable for the unconstitutional conduct
15 of their subordinates under a theory of respondeat superior.”). In order for Plaintiff to state
16 a claim against either Defendant, Plaintiff would have to allege their “‘personal
17 involvement in the constitutional deprivation’” or “‘a sufficient causal connection between
18 the supervisor’s wrongful conduct and the constitutional violation.’” See Jones v.
19 Williams, 297 F.3d 930, 934 (9th Cir. 2002) (quoting Redman v. Cnty. of San Diego, 942
20 F.2d 1435, 1446 (9th Cir. 1991) (en banc), abrogated on other grounds by Farmer, 511
21 U.S. at 837); see also Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (“The inquiry into
22 causation must be individualized and focus on the duties and responsibilities of each
23 individual defendant whose acts or omissions are alleged to have caused a constitutional
24 deprivation.”).
25 Plaintiff failed to allege any personal involvement by the Defendants in the transfer
26 of his RMA to RJD. The only specific conduct that Plaintiff attributed to both Defendants
27 was their participation in the grievance process. However, the act of denying a grievance,
28 without more, cannot sustain a § 1983 lawsuit. See Henderson v. Muniz, 196 F.Supp.3d
1 1092, 1105 (N.D. Cal., 2016). Moreover, the Plaintiff cannot state a § 1983 claim based
2 solely on Defendants’ role in the inmate appeals process. See, e.g., George v. Smith, 507
3 F.3d 605, 609 (7th Cir. 2007) (“Only persons who cause or participate in the violations are
4 responsible. [. . .] Ruling against a prisoner on an administrative complaint does not cause
5 or contribute to the violation.”); Revis v. Syerson, No. 2:12-CV-2751-MCE-EFB, 2015 WL
6 641629, at *5 (E.D. Cal. Feb. 2015) (“[Defendant’s] signing of the Second Level Response
7 is insufficient personal participation.”), subsequently aff’d sub nom. Revis v. Roche, 659 F.
8 App’x 453 (9th Cir. 2016); Lopez v. Peterson, No. 2:98-CV-2111-LKK-EFB, 2013 WL
9 3994466, at *16 (E.D. Cal. Aug. 2013) (“[T]he prison grievance procedure does not confer
10 any substantive rights upon inmates and actions in reviewing and denying inmate appeals
11 cannot serve as a basis for liability under section 1983.”), report and recommendation
12 adopted, No. 2:98-CV-2111-LKK, 2013 WL 5946182 (E.D. Cal. Nov. 2013); Hernandez
13 v. Cate, 918 F. Supp. 2d 987, 1018 (C.D. Cal. Jan. 2013) (“Plaintiff cannot state a section
14 1983 claim based solely on [the Defendant’s] role in the inmate appeals process.”); Lamon
15 v. Junious, No. 109CV00484GSAPC, 2009 WL 3248173, at *4 (E.D. Cal. Oct. 2009)
16 (“[T]he involvement of prison personnel in reviewing and issuing decisions on Plaintiff’s
17 inmate appeals does not provide a basis for the imposition of liability on them for the
18 conduct of others.”). And “the denial of a grievance does not retroactively cause the prior
19 harm.” Tate v. Hernandez, No. CV195089PHXSPLJFM, 2020 WL 4926353, at *4 (D.
20 Ariz. July 2020), report and recommendation adopted, No. CV1905089PHXSPLJFM,
21 2020 WL 4922073 (D. Ariz. Aug. 2020).
22 Therefore, accepting all the allegations regarding Plaintiff’s claims as to Defendant
23 Covello and Defendant Eshelman as true and construing them in the light most favorable
24 to the non-moving party, Plaintiff has failed to state a cognizable claim that is plausible on
25 its face that the Defendants’ conduct resulted in a constitutional violation. Accordingly,
26 IT IS THEREFORE RECOMMENDED that the Court find that Plaintiff’s SAC be
27 DISMISSED as to both Defendants for failing to allege the Defendants’ personal
28 involvement, or a sufficient causal connection, in the alleged constitutional deprivation.
1 C. Violation of California Code of Regulations
2 Plaintiff alleged that Defendant Covello erroneously applied Title 15, § 3054.5 of
3 the California Code of Regulations by treating Plaintiff’s request for RMA as new. (ECF
4 No. 26 at 3.) Plaintiff submitted that he was previously approved for an RMA diet May
5 27, 2014 at his previous institution, SATF. (Id. at 2, 7.) Plaintiff alleged that any
6 restrictions pertaining to a religious diet do not apply until after the inmate is approved into
7 the program. (Id. at 3–4.) Plaintiff claimed that Defendant Covello violated his First
8 Amendment right by not providing him with a meal sufficient to sustain him, in accordance
9 to his belief. (Id. at 4.) Defendants contended that a violation of Title 15, § 3054.5 of the
10 California Code of Regulations would not amount to a 42 U.S.C. § 1983 cause of action.
11 (ECF No. 28 at 11.)
12 Failing to comply with state laws, including the California Code of Regulations and
13 Department of Operations Manual, does not amount to constitutional violation. Garcia v.
14 L.A. Cty. Sheriff Dep’t, No.CV1508329DOCDFM, 2017 WL 275597, at *6 (C.D. Cal. Jan.
15 2017) (“Section 1983 offers no redress for a violation of a state law or state-mandated
16 procedure that does not amount to a constitutional violation.”) (citing Sweaney v. Ada
17 Cty.,119 F.3d 1385, 1391 (9th Cir. 1997)). Only violations of the federal constitution or
18 federal law are cognizable under 42 U.S.C. § 1983. Canell v. Oregon Dep’t of Just., 811
19 F. Supp. 546, 550 (D. Or. 1993) (citing Williams v. Treen, 671 F.2d 892 (5th Cir. 1982),
20 cert. denied, 459 U.S. 1126 (1983)). Specifically, there is no independent cause of action
21 under § 1983 for violations of California Code of Regulations Title 15 § 3045.5 or other
22 similar regulations. See, e.g., King v. Los Angeles Cnty. Sheriff’s Dept., 672 F. App’x 701,
23 702 (9th Cir. 2016) (“Dismissal of King’s claims alleging violations of Title 15 of the
24 California Code of Regulations was proper because the cited regulations do not create a
25 private right of action.”); Nible v. Fink, No. 16-CV-02849-BAS-RBM, 2019 WL 2611102,
26 at *4 (S.D. Cal. June 2019) (“[V]iolations of Title 15 of the California Code of Regulations
27 ... do not create a private right of action.”), aff’d, 828 F. App’x 463 (9th Cir. 2020); Wallace
28 v. Olson, No. 3:16-CV-1917-AJB-NLS, 2017 WL 1346825, at *6 (S.D. Cal. Apr. 2017)
1 (“[T]o the extent Plaintiff’s FAC and exhibits focus almost exclusively on [Defendants’]
2 alleged failures to properly follow CDCR Title 15 prison regulations governing the
3 processing of his inmate appeals, he has failed to state a claim upon which § 1983 relief
4 can be granted.”), aff’d, 715 F. App’x 797 (9th Cir. 2018).
5 In the present case, Plaintiff claimed that Defendant Covello allegedly violated Title
6 15, § 3054.5 of the California Code of Regulations. (ECF No. 26 at 3–4.) However, this
7 does not amount to a § 1983 cause of action. See King, 672 F. App’x at 702; Nible, 2019
8 WL 2611102, at *4. Thus, Plaintiff cannot prove an essential element of his claim, i.e.,
9 that a federal constitutional right has been violated. Accordingly, IT IS THEREFORE
10 RECOMMENDED that the Court find that Plaintiff’s SAC be DISMISSED for failing to
11 establish that a federal constitutional right had been violated since Defendant Covello’s
12 alleged violation of Title 15, § 3054.5 did not amount to a § 1983 cause of action.
13 D. Violation of the First Amendment Free Exercise Clause
14 In his Opposition, Plaintiff alleged that Defendants substantially burdened his
15 religious practice because he was denied his dietary needs. (ECF No. 33 at 5.) Plaintiff
16 claimed to have made his dietary needs known on January 8, 2018 but did not receive RMA
17 until December 4, 2019. (Id.) Plaintiff maintained that he went without an RMA for 695
18 days. (Id.)1
19 Defendants asserted that Plaintiff was not substantially burdened because he was
20 able to consume side dishes and was able to purchase canteen food items. (ECF No. 28 at
21 12.) Defendants also claimed Plaintiff’s purchase of pork rinds goes to show that Plaintiff
22 was not sincere. (Id.) Defendants maintained that neither Defendant was responsible for
23 transferring Plaintiff’s diet nor supplying notice. (Id.) Defendants claimed that they both
24 appropriately responded to Plaintiff’s grievance by reviewing his file and treating his
25

26
1 These 695 days included his stay at RJD and CEN. (ECF Nos. 26 at 2, 4; 33 at 7.) Of note, Plaintiff
27 was transferred to RJD on January 8, 2018. (ECF No. 26 at 2.) Plaintiff was thereafter transferred to CEN
on August 3, 2018. (ECF No. 33 at 7.)
28
1 complaint as a new application for a religious diet. (Id.) Defendants claimed that Plaintiff
2 cannot state a claim under the First Amendment’s Free Exercise Clause since Plaintiff
3 made no allegation that their conduct was intentional and unreasonable. (Id.)
4 To state a claim under the Free Exercise Clause, an inmate must plausibly allege that
5 a prison official’s actions (a) “substantially burden[ed]” the inmate’s exercise of a sincerely
6 held religious belief; and (b) did so in an unreasonable manner—i.e., the official’s actions
7 were not “rationally related to legitimate penological interests.” See O’Lone v. Estate of
8 Shabazz, 482 U.S. 342, 348–50, (1987); Jones v. Williams, 791 F.3d 1023, 1031, 1033 (9th
9 Cir. 2015). A “[p]laintiff must allege conscious or intentional acts that burden his free
10 exercise of religion.” Lewis v. Mitchell, 416 F. Supp. 2d 935, 944 (S.D. Cal. 2005) (holding
11 negligence is insufficient to state a valid Section 1983 claim for the violation of free
12 exercise rights); see also Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1214 (9th Cir. 2017)
13 (Bybee, J., concurring) (“[I]t is now beyond question that § 1983 requires proof of
14 intentional, not merely negligent, acts depriving a party of his constitutional rights”).
15 “Threadbare recitals of the elements of a cause of action, supported by mere conclusory
16 statements, do not suffice.” Iqbal, 556 U.S. at 678.
17 Plaintiff has failed to plausibly allege that the Defendants substantially burdened his
18 exercise of a sincerely held religious belief. The Defendants sole involvement was their
19 review and denial of his grievance. (See ECF No. 26.) Participation in the grievance
20 procedure does not establish a sufficient causal connection to Plaintiff’s alleged
21 constitutional violation. See supra at Section III(B). Further, the Defendants were not
22 responsible for the transfer of Plaintiff’s RMA diet card to RJD. Plaintiff has also failed
23 to plausibly allege that Defendants, in denying his grievance, intended to burden Plaintiff’s
24 free exercise of religion.
25 Notwithstanding, Plaintiff has also failed to plausibly allege that the Defendants’
26 conduct in denying Plaintiff’s grievance was unreasonable. The Defendants’ reviewed
27 Plaintiff’s grievance and, given the negative results from a search for previous approvals
28 for RMA, applied the appropriate regulation. (ECF No. 26 at 30.) The Defendants deemed
1 Plaintiff’s request as a new request for an RMA and indicated that a notice was not required
2 for a new request. (Id.) The Second Level Appeal Response indicated that due to
3 Plaintiff’s undisputed violation by purchasing an item inconsistent with RMA, Plaintiff
4 had to wait 6 months to re-apply. (Id.) To the extent Plaintiff alleged that the Defendants
5 applied the wrong regulation in regard to his allegation that he did have a previous approval
6 for RMA, such a violation of the California Code of Regulations does not amount to
7 constitutional violation. See supra at Section III(C). Further, inmates do not maintain a
8 constitutional right to effective grievance procedure. Ramirez v. Galaza, 334 F.3d 850,
9 860 (9th Cir. 2003). Accordingly, IT IS THEREFORE RECOMMENDED that the Court
10 find that Plaintiff’s SAC be DISMISSED for failing to plausibly allege a claim under the
11 Free Exercise Clause.
12 E. Injunctive Relief
13 In his SAC, Plaintiff requested injunctive relief against the Defendants “to stop
14 hindering inmates from receiving or participating in the Religious Diet Program.” (ECF
15 26 at 5.) However, Judge Houston previously dismissed, without leave to amend as futile,
16 Plaintiff’s RLUIPA claims which included the same request for injunctive relief. (ECF
17 No. 14 at 9–10.)
18 Notwithstanding, Plaintiff currently resides at CEN. (ECF No. 26 at 1–2.) Claims
19 for non-monetary relief brought under 42 U.S.C. § 1983 are moot if the prisoner-plaintiff
20 is no longer subject to the alleged illegal conduct. Wiggins v. Rushen, 760 F.2d 1009,
21 1010–11 (9th Cir. 1985) (“In these circumstances, where the complainant was no longer
22 subject to the allegedly illegal activity, the complaint for an injunction became moot.”). In
23 particular, injunctive relief claims should be dismissed when a prisoner is transferred to
24 another prison that is not the subject of the underlying claim. See Johnson v. Moore, 948
25 F.2d 517, 519 (9th Cir. 1991); Dilley v Gunn, 64 F.3d 1365, 1369 (9th Cir. 1995) (prisoner-
26 plaintiffs must demonstrate a “reasonable expectation” that they will be transferred back
27 in order to receive injunctive relief.”)
28
1 The Plaintiff alleged no facts indicating he could be transferred back to RJD. (ECF
2 No. 26.) Plaintiff also added that he is seeking injunctive relief for future prisoners. (ECF
3 No. 33 at 7.) However, Plaintiff is no longer subject to the alleged illegal conduct from
4 RJD and has not demonstrated a “reasonable expectation” that he will be transferred back
5 to RJD, making his claim for injunctive relief moot. Therefore, it is recommended that
6 Plaintiff’s reasserted request for injunctive relief be DISMISSED.
7 F. Qualified Immunity
8 Defendants also moved to dismiss on the ground that they are entitled to qualified
9 immunity. Because the Court has found that Plaintiff has failed to state a claim against
10 them, it need not reach any issues regarding qualified immunity. See Saucier v. Katz, 533
11 U.S. 194, 201 (2001) (“If no constitutional right would have been violated were the
12 allegations established, there is no necessity for further inquiries concerning qualified
13 immunity.”); County of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998) (“[The better
14 approach to resolving cases in which the defense of qualified immunity is raised is
15 to determine first whether the plaintiff has alleged the deprivation of a constitutional right
16 at all.”); Ochoa v. City of Mesa, 26 F.4th 1050, 1058 (9th Cir. 2022) (“Because we agree
17 that there was no Fourteenth Amendment violation and affirm summary judgment on that
18 basis, we do not address the second prong of the qualified-immunity test described by the
19 Supreme Court in Saucier v. Katz[.]”).
20 II. CONCLUSION & RECOMMENDATION
21 For the reasons discussed, IT IS HEREBY RECOMMENDED that the District
22 Court issue an Order: (1) adopting this Report and Recommendation; (2) GRANTING
23 Defendants’ Motion to Dismiss (ECF No. 28); and (3) DISMISSING Plaintiff’s SAC with
24 prejudice.
25 IT IS ORDERED that no later than July 6, 2022, any party to this action may file
26 written objections with the Court and serve a copy on all parties. The document should be
27 captioned “Objection to Report and Recommendation.”
28
1 IT IS FURTHER ORDERED that any reply to the objections shall be filed with
2 Court and served on all parties no later than July 20, 2022. The parties are advised that
3 ||failure to file objections within the specified time may waive the right to raise those
4 objections may waive the right to raise those objections on appeal of the Court's order. See
5 || Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153,
6 (th Cir. 1991).
7 IT IS SO ORDERED.
8 ||Dated: June 14, 2022 p / /
? on. Bernard G. Skomal
10 United States Magistrate Judge
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10085920. Public record. Not legal advice.