Royzman v. Lopez

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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9 ARTEM ROYZMAN, Case No. 21-cv-1429-BAS-AHG

CDCR #AM-6676,

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Plaintiff,

ORDER:

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v.

12 (1) GRANTING DEFENDANTS’

REQUEST FOR JUDICIAL

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MIGUEL LOPEZ, Correctional Officer; NOTICE; AND

14 ALEJANDRO GONZALES, Correctional

Sergeant; EDGAR GARCIA, Correctional (2) GRANTING IN PART AND

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Captain, DENYING IN PART

16 Defendants. DEFENDANTS’ MOTION TO

DISMISS

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18 [ECF No. 17]

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22 Before the Court is Defendants’ Motion brought pursuant to Federal Rule of Civil

23 Procedure 12(b)(6) to dismiss this action. (Mot., ECF No. 17.) Plaintiff opposes (Opp’n,

24 ECF No. 19), and Defendants reply (Reply, ECF No. 20).

25 Plaintiff, a state inmate currently incarcerated at R.J. Donovan State Prison (“RJD”)

26 located in San Diego, California and proceeding pro se, filed a civil rights complaint

27 pursuant to 42 U.S.C. § 1983. (See Compl., ECF No. 1.) In his Complaint, Plaintiff alleges

28 Defendants Lopez, Garcia, and Gonzalez violated his constitutional and statutory rights

1 when they intentionally deprived him of tefillin, a religious item used for prayer. (Id. at

2 5.) Defendants move to dismiss (Mot. 1) and file a Request for Judicial Notice (ECF No.

3 17-1).

4 Having considered the parties’ filings, the Court GRANTS Defendants’ Request for

5 Judicial Notice, and GRANTS IN PART and DENIES IN PART Defendants’ Motion to

6 Dismiss.

7 I. BACKGROUND2

8 A. Plaintiff’s Allegations

9 Plaintiff is a religiously observant Jewish person. (Compl. 3.) On or about April 1,

10 2021, Plaintiff sent a letter to the ALEPH Institute,3 requesting he be provided with tefillin

11 in order “to fulfill the commandments of the Torah.” (Id. at 3.) Tefillin are listed as an

12 approved religious item by the California Department of Corrections and Rehabilitation

13 (“CDCR”) (see Ex. B to Req. Jud. Not. 15, ECF No. 17-1), and Plaintiff “verified that

14 ALEPH was an approved vendor to provide the Jewish inmates housed in the CDCR with

15 religious materials” (Compl. 3).

16 On April 21, 2021, Defendant Lopez, an RJD correctional officer, came to Plaintiff’s

17 housing unit to distribute “books and special purchase items.” (Id. at 3.) Lopez told Plaintiff

18 there were items on his distribution list. (Id.) He opened a box with Plaintiff’s name on it,

19 containing tefillin and religious books. (Id.) Lopez gave Plaintiff the books but refused to

20 give him the tefillin. (Id. at 3–4.) Lopez said that he would have to “check with his

21 supervisors.” (Id.) Plaintiff objected and explained that the tefillin were an “approved

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1 Tefillin (also known as Phylacteries) are two “black leather boxes containing scriptural passages which

24 are bound by black leather straps on the left hand and on the head and worn for the morning services on

all days of the year except Sabbaths and scriptural holy days.” 19 Encyclopedia Judaica 577 (Fred Skolnik

25 & Michael Berenbaum eds., 2d ed. 2007).

2 The facts are all taken from the Complaint (Compl., ECF No. 1). For the pending Motion, the Court

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accepts all of Plaintiff’s factual allegations as true. See Safe Air for Everyone v. Meyer, 373 F.3d 1035,

27 1039 (9th Cir. 2004).

3 ALEPH provides “religious artifacts and books to inmates incarcerated throughout the United States.”

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1 religious item” and “central to [his] religious beliefs in the practice of Judaism.” (Id. at 4.)

2 Lopez still refused to give Plaintiff the tefillin, stating he had “never heard of it being a

3 necessary religious item needed by a [J]ew.” (Id.) Plaintiff protested, “You’re going to pass

4 out religious beads to the Native Americans, and Muslim oils and prayer rugs to the

5 Muslims[,] but you won’t let me have my Jewish tefillin?” (Id.) Lopez did not reply,

6 repacked the tefillin, and left. (Id.)

7 After about 48 hours passed with no word, Plaintiff sent a “Request for Interview”

8 addressed to Lopez, in which he explained the importance of the tefillin to the practice of

9 his religion and inquired about its return. (Id.) When Plaintiff received no response, he sent

10 another “Request for Interview” on April 26, 2021, this time to the RJD rabbi, Fabrice

11 Hadjadj. (Id. at 4–5.) Plaintiff met with Rabbi Hadjadj shortly thereafter and explained the

12 situation. (Id. at 5.) The rabbi told Plaintiff that he would “look into the matter and inform

13 the proper parties that the Tefillin was an approved religious item.” (Id.) Plaintiff later

14 learned that the tefillin had been sent back to the vendor the day after Lopez refused to give

15 it to him.4 (Id.) Neither Lopez nor any other CDCR staff member informed Plaintiff the

16 item had been returned or consulted with Rabbi Hadjadj about the religious significance of

17 tefillin. (Id.)

18 After attempting to speak to RJD staff informally to no avail, Plaintiff submitted a

19 formal 602 Administrative Grievance on April 27, 2021. (Id.) About a week later, Plaintiff

20 saw Lopez and asked him about the tefillin. (Id.) Lopez responded, “I left it on the counter

21 in [Receiving and Release.] I don’t know who sent them back. There must have been a

22 reason it’s sent back[.] I guess you can’t have it. If you don’t like it or don’t agree, file

23 paperwork.” (Id.)

24 Subsequently, Lopez was working in Plaintiff’s housing unit and asked Plaintiff,

25 “Do you want to talk about that issue or are you done with trying to go any further?” (Id.

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4 Plaintiff alleges ALEPH shipped the tefillin to the prison three times before Plaintiff finally received it.

28 (Compl. 7.)

1 at 6.) Plaintiff replied, “You took an approved religious item from me, my tefillin, and I

2 am currently pursuing the issue further.” (Id.) This time, Defendant Lopez claimed the

3 tefillin had “exceeded $300 in cost” and therefore was not permitted. (Id.) Plaintiff

4 informed Lopez that the vendor, ALEPH, provided its items to incarcerated persons for

5 free. (Id.) Furthermore, Plaintiff asked Defendant Lopez to check the Receiving and

6 Release records because “unless the tefillin had been dangerous to the health and safety of

7 inmates, the CDCR has readily allowed Jewish inmates practicing their faith to receive

8 tefillin from ALEPH.” (Id.) Lopez asked Plaintiff, “How much time do you have?” (Id.)

9 Plaintiff replied that he had four years left on his sentence. (Id.) Lopez retorted, “You can

10 get any kind of tefillin you want when you get out, but not here, not while I’m working

11 here!” (Id.)

12 Sometime in May 2021, Plaintiff was summoned to Receiving and Release and

13 questioned by Defendant Lopez and Defendant Gonzalez, an RJD Sergeant and Defendant

14 Lopez’s supervisor, regarding Plaintiff’s 602 Administrative Grievance. (Id. at 6.) Plaintiff

15 again explained that the item was approved and obtained through a known vendor, and

16 Gonzalez said he would “look into it.” (Id. at 7.) After the meeting, Plaintiff saw Rabbi

17 Hadjadj, who told Plaintiff he would contact Defendant Garcia, an RJD Captain, about “the

18 issue of Jewish inmates being unable to receive tefillin in the CDCR.” (Id.) The rabbi called

19 Garcia, who purportedly refused to get involved despite being supervisor to Defendants

20 Gonzalez and Lopez. (Id.)

21 In late June, Plaintiff was called to the rabbi’s office where he was met by Chief

22 Deputy Warden Belinda Hedrick. She gave Plaintiff the tefillin and “apologized for the

23 officers’ actions in denying [him] the Tefillin.” (Id.) Hedrick conceded the item was “listed

24 as allowable religious personal property.” (Id.) She further stated that “this action would

25 never occur again from [Receiving and Release] personnel at [RJD]” and that “the officers

26 thus far named had been counseled on religious rights.” (Id.)

27 Plaintiff appends to his Complaint the final shipping receipt from ALEPH, dated

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1 June 22, 2021. (Ex. D to Compl. 24, ECF No. 1.) Thus, the Complaint alleges that from

2 April 21, 2021 to at least June 22, 2021, Plaintiff was deprived of his tefillin—a 62-day

3 deprivation.

4 B. Procedural Background

5 Plaintiff filed his Complaint and Motion to Proceed in forma pauperis in this case

6 on August 10, 2021. (ECF Nos. 1, 2.) The Court denied Plaintiff’s Motion to Proceed in

7 forma pauperis and directed him to pay the initial civil filing fee to proceed with this

8 matter. (ECF No. 4.) Plaintiff paid the filing fee, and the Court conducted the required pre-

9 answer screening pursuant to 28 U.S.C. § 1915A. (ECF No. 6.)

10 The Court found that Plaintiff’s Complaint contained factual allegations that

11 survived the “low threshold” for proceeding past the pre-answer screening required by 28

12 U.S.C. § 1915A(b). (ECF No. 6 at 5). Defendants filed a waiver of service (ECF No. 15)

13 and subsequently filed the present Motion (Mot).5

14 II. Legal Standard

15 A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the

16 claims asserted in the complaint. Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001). “A

17 Rule 12(b)(6) dismissal may be based on either a ‘lack of cognizable legal theory’ or ‘the

18 absence of sufficient facts alleged under a cognizable legal theory.’” Johnson v. Riverside

19 Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008) (quoting Balistreri v. Pacifica

20 Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)).

21 Courts hold the allegations of pro se plaintiffs to “less stringent standards than

22 formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972). Still, a

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25 5 Defendants also seek judicial notice of a CDCR document titled “Religious Personal Property Matrix

(Revised 6/27/13),” which is incorporated by reference into California Code of Regulations. (Req. Jud.

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Not., ECF No. 17-1.) The Court “may take judicial notice of a record of a state agency not subject to

27 reasonable dispute.” City of Sausalito v. O’Neill, 386 F.3d 1186, 1223 n.2 (9th Cir. 2004). Plaintiff does

not object to Defendants’ request, nor does there appear to be a “reasonable dispute” as to the accuracy of

28 these records. Thus, the Court GRANTS Defendants’ Request for Judicial Notice. (ECF No. 17-1.)

1 complaint must plead sufficient factual allegations to “state a claim for relief that is

2 plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (cleaned up); see also

3 Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995) (“Although we construe pleadings

4 liberally in their favor, pro se litigants are bound by the rules of procedure.”). The Court

5 must accept all factual allegations pleaded in the complaint as true and must construe them

6 and draw all reasonable inferences in favor of the nonmoving party. Cahill v. Liberty Mut.

7 Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996). The Court, however, need not accept

8 conclusory allegations as true. Rather, it must “examine whether conclusory allegations

9 follow from the description of facts as alleged by the plaintiff.” Holden v. Hagopian, 978

10 F.2d 1115, 1121 (9th Cir. 1992) (citations omitted). “A claim has facial plausibility when

11 the plaintiff pleads factual content that allows the court to draw the reasonable inference

12 that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.

13 III. ANALYSIS

14 Defendants contend: (1) Plaintiff has failed to properly exhaust his administrative

15 remedies, (2) he fails to state a First or Fourteenth Amendment claim, (3) he is not entitled

16 to money damages under RLUIPA, (4) Eleventh Amendment sovereign immunity bars his

17 official-capacity claims for damages, and (5) Defendants are entitled to qualified immunity.

18 The Court analyzes each in turn.

19 A. Exhaustion of Administrative Remedies

20 Defendants argue that Plaintiff did not fully exhaust his administrative remedies as

21 required by 42 U.S.C. § 1997e(a), because his Complaint includes allegations not raised in

22 his April 27, 2021 administrative appeal. Specifically, Defendants argue (1) although

23 Plaintiff may have exhausted some of his claims against Defendant Lopez, he failed to

24 exhaust any of his claims against Defendants Gonzalez and Garcia and (2) Plaintiff

25 exhausted only claims related to interactions with Defendant Lopez that predate his April

26 27, 2021 administrative appeal. (Mot. 9–10.) The Court disagrees.

27 “The Prison Litigation Reform Act of 1995 (PLRA) mandates that an inmate

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1 exhaust ‘such administrative remedies as are available’ before bringing suit to challenge

2 prison conditions.” Ross v. Blake, 578 U.S. 632, 635 (2016) (quoting 42 U.S.C.

3 § 1997e(a)). “There is no question that exhaustion is mandatory under the PLRA[.]” Jones

4 v. Bock, 549 U.S. 199, 211 (2007). The “administrative remedies” are defined, not by the

5 PLRA, but by the correctional institution’s regulations—here, the CDCR’s procedural

6 rules. See id. at 218 (“[I]t is the prison’s requirements, and not the PLRA, that define the

7 boundaries of proper exhaustion.”).

8 However, because the failure to exhaust is an affirmative defense, defendants bear

9 the burden of raising it and proving the absence of exhaustion. Id. at 211–12; see also

10 Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014) (noting defendants must “present

11 probative evidence— . . . to ‘plead and prove’—that the prisoner has failed to exhaust

12 available administrative remedies under § 1997e(a)”). “In the rare event that a failure to

13 exhaust is clear from the face of the complaint, a defendant may move for dismissal under

14 Rule 12(b)(6).” Albino, 747 F.3d at 1166. Otherwise, defendants are not entitled to

15 dismissal under Rule 12(b)(6). See id. Rather, they must move for summary judgment

16 under Rule 56 and show that the undisputed evidence, viewed in the light most favorable

17 to plaintiff, demonstrates plaintiff’s failure to exhaust. See id.

18 To begin, Plaintiff plausibly alleges that he followed the proper administrative

19 appeal process. The Complaint asserts that he submitted an administrative grievance on

20 April 27, 2021. (Compl. 9.) He further alleges, “[A] response was returned from the [RJD]

21 Office of Grievances indicating that [it’d] failed to complete a response within their time

22 constraints of 60 calendar days. This concluded [the] inmate appeal process and exhaustion

23 of administrative remedies available to Plaintiff Artem Royzman.” (Id.) In corroboration,

24 Plaintiff appends to his Complaint a document entitled “Claimant Grievance Claims

25 Decision Response,” dated June 27, 2021, indicating that CDCR regulations “provide[] the

26 Office of Grievances 60 calendar days to complete a response” to an inmate grievance and

27 “[d]ue to the expiration of time, this response by the Office of Grievances will be the only

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1 response.” (Ex. C to Compl. 19, ECF No. 1.) Thus, Plaintiff plausibly alleges he exhausted

2 at least some claims, and Defendants concede as much (Mot. 16–17).

3 Defendants’ challenge, therefore, hinges on substance rather than procedure. First,

4 Defendants argue Plaintiff failed to exhaust claims against Defendants Gonzalez and

5 Garcia because Plaintiff failed to mention them in his April 27, 2021 administrative

6 grievance. (Mot. 17.) In support, Defendants cite the California regulations governing

7 inmate grievances to show that inmates must include the “names and titles of all involved

8 staff members (or a description of those staff members).” (Id. at 16 (citing Cal. Code Regs.

9 tit. 15 § 3482(c)(1)–(2)).) But Defendants selectively quote this regulation. It reads in full:

10 To submit a grievance, a claimant shall . . . describe all information known

and available to the claimant regarding the claim, including key dates and

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times, names and titles of all involved staff members (or a description of those

12 staff members), and names and titles of all witnesses, to the best of the

claimant’s knowledge.

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14 Cal. Code Regs. tit. 15, § 3482(c) (emphasis added). Plaintiff’s allegations indicate he

15 complied with these regulations. He provided the information known to him at the time of

16 the administrative appeal, including the name of Correctional Officer Lopez. Defendants

17 Gonzalez and Garcia became involved in withholding the tefillin after Plaintiff filed his

18 administrative grievance. As a result, the California regulations did not require Plaintiff to

19 name them in his grievance.

20 The PLRA requires plaintiffs to comply with the relevant “prison grievance

21 procedures” and no more. See Jones, 549 U.S. at 218 (“Compliance with prison grievance

22 procedures, therefore, is all that is required by the PLRA to ‘properly exhaust.’”).

23 “Exhaustion is not per se inadequate simply because an individual later sued was not

24 named in the grievances.” Id. at 219. “[T]he primary purpose of a grievance is to alert

25 prison officials to a problem, not to provide personal notice to a particular official that he

26 may be sued; the grievance is not a summons and complaint that initiates adversarial

27 litigation.” Johnson v. Johnson, 385 F.3d 503, 522 (5th Cir. 2004). Hence, the PLRA does

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1 not require Plaintiff to have named Defendants Gonzalez and Garcia in his administrative

2 appeal in order to state a claim against them in his Complaint.

3 Second, Defendants argue that because Plaintiff filed his administrative appeal six

4 days after his initial confrontation with Defendant Lopez, he only exhausted administrative

5 remedies with respect to a six-day deprivation. (Mot. 17.) Defendants misunderstand the

6 exhaustion requirement. Although the PLRA requires plaintiffs to exhaust administrative

7 remedies for each claim, it does not require exhaustion with respect to each interaction

8 alleged in the Complaint. Cf. Jones, 549 U.S. at 2018 (noting that the purpose of exhaustion

9 is to allow “a prison to address complaints about the program it administers before being

10 subjected to suit” and holding that the PRLA does not mandate a specific level of detail

11 necessary for exhaustion). The issue in Plaintiff’s administrative appeal is the same as the

12 issue in his Complaint: the withholding of tefillin in violation of his religious liberty. All

13 the subsequent interactions with Defendant Lopez also pertain to denial of tefillin. Thus,

14 the PLRA does not require the Court to lop off Plaintiff’s more recent allegations simply

15 because he promptly filed his administrative grievance. To do so would be to misconstrue

16 the purpose and effect of the PLRA exhaustion requirement.

17 Plaintiff’s April 27 administrative appeal plausibly alerted CDCR as to the nature of

18 the wrong that Plaintiff now seeks to redress. See Sapp v. Kimbrell, 623 F.3d 813, 824 (9th

19 Cir. 2010) (“A grievance suffices to exhaust a claim if it puts the prison on adequate notice

20 of the problem for which the prisoner seeks redress.”). This action is not “the rare event

21 that a failure to exhaust is clear from the face of the complaint” in which it can be resolved

22 with a Rule 12(b)(6) motion. See Albino, 747 F.3d at 1166.

23 Accordingly, the Court will not dismiss Plaintiff’s claims based on a failure to

24 exhaust under the PLRA.

25 B. First Amendment Claim

26 Defendants seek dismissal of Plaintiff’s First Amendment free exercise claim on the

27 ground that Defendants did not substantially burden his ability to practice his religion. They

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1 argue withholding the tefillin was a “simple error” and “nothing more than a de minimis

2 delay,” not rising to the level of a constitutional violation. (Mot. 18–21.) But the Court has

3 no trouble plausibly inferring that the 62-day delay in receiving an item necessary for

4 prayer was a substantial burden.

5 “The right to the free exercise of religion is a precious American invention,

6 distinguishing our Constitution from all prior national constitutions.” Ward v. Walsh, 1

7 F.3d 873, 876 (9th Cir. 1993). Under the First Amendment, government action may not

8 “substantially burden [a] person’s practice of [his] religion.” Jones v. Williams, 791 F.3d

9 1023, 1031 (9th Cir. 2015). Incarceration does not obliviate this right. Turner v. Safley, 482

10 U.S. 78, 84 (1987) (“Prison walls do not form a barrier separating prison inmates from the

11 protections of the Constitution.”). But courts are sensitive to the “inordinately difficult

12 undertaking” of running a prison. See id. at 85. Thus, the standard established in Turner v.

13 Safley strikes a balance: “[A] prisoner’s Free Exercise Clause claim will fail if the state

14 shows that the challenged action is ‘reasonably related to legitimate penological interests.’”

15 Walker v. Beard, 789 F.3d 1125, 1138 (9th Cir. 2015) (quoting Turner, 482 U.S. at 89). In

16 sum, to state a free exercise claim, an incarcerated person must show that a prison

17 regulation or condition (1) substantially burdened his practice of religion and (2) is not

18 reasonably related to a legitimate penological interest. See Shakur v. Schriro, 514 F.3d 878,

19 884–85 (9th Cir. 2008) (analyzing “substantial burden” before applying the Turner test).

20 Defendants only challenge the first prong. (Mot. 18–21.)

21 A “substantial burden” is more than “an inconvenience” and has “a tendency to

22 coerce individuals into acting contrary to their religious beliefs or exert substantial pressure

23 on an adherent to modify his behavior and to violate his beliefs.” Ohno v. Yasuma, 723

24 F.3d 984, 1011 (9th Cir. 2013) (cleaned up).6 Weighing a substantial versus de minimis

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6 In Shakur v. Schriro, the Ninth Circuit clarified the definition of “substantially burden.” 514 F.3d at 884–

85. The court confronted the question “whether a prisoner must objectively show that a central tenet of

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1 burden is fact intensive. See Patel v. Bureau of Prisons, No. CV 09-200 (RWR), 2011 WL

2 13253660, at *5 (D.D.C. Sept. 12, 2011) (“[The] adjudication of religious claims is a

3 highly fact-specific exercise.”); Kennedy v. Meacham, 540 F.2d 1057, 1061 (10th Cir.

4 1976) (vacating the district court’s dismissal because it was made without a responsive

5 pleading or “proof of the surrounding circumstances”); cf. United States v. Quaintance,

6 315 F. App’x 711, 713 (10th Cir. 2009) (unpublished) (“[W]hether a particular question is

7 ‘substantial’ [under the Religious Freedom Restoration Act] must be determined on a case-

8 by-case basis.”).

9 Defendants must convince the Court that withholding tefillin for 62-days, as alleged

10 in the Complaint, does not state a claim under the First Amendment.7 In an effort to do so,

11 they provide a series of string cites, highlighting decisions that determined isolated or

12 short-term deprivations were not substantial. (Mot. 18–21.) But each of Defendants’

13 authorities arose at the summary judgment stage or later. Given the fact-specific nature of

14 the “substantial burden” inquiry, the Court is not moved by these cases. At summary

15 judgment, the parties and the Court have the benefit of factual exposition, and the Court

16 may examine the evidence unearthed in discovery. That is not the case at the motion to

17 dismiss stage.

18 The Court cannot say that, as a matter of law, a 62-day deprivation of Plaintiff’s

19 tefillin was a de minimis burden on his religious practice. In his Complaint, Plaintiff alleges

20 that the tefillin are necessary to “fulfill the commandments of the Torah . . . for the Jewish

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23 his faith is burdened by a prison regulation to raise a viable claim under the Free Exercise Clause,” and

answered no. Id. A court need not analyze whether a religious practice is “central” to a plaintiff’s beliefs.

24 Id. Rather, all that is required is to decide that the plaintiff’s “proffered belief [is] sincerely held.” Malik

v. Brown, 16 F.3d 330, 333 (9th Cir. 1994); see Shakur, 514 F.3d at 885 (“Given the Supreme Court's

25 disapproval of the centrality test, we are satisfied that the sincerity test set forth in Malik . . . determines

whether the Free Exercise Clause applies.”). Thus, courts must determine that the belief is sincerely held,

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but need not inquire into how important or “central” the belief is to the religion.

27 7 Defendants attempt to argue that the relevant inquiry is whether a six-day delay is a substantial burden,

because Plaintiff only exhausted allegations of facts prior to April 27, 2021. As discussed above, the Court

28 rejects Defendants’ exhaustion argument, and therefore, analyzes the full 62-day deprivation.

1 male to don the tefillin in daily prayers.” (Compl. 3.) Drawing reasonable inferences in

2 favor of Plaintiff, the Court finds it plausible that a 62-day delay in receiving his tefillin

3 substantially burdened a sincerely held religious belief.

4 Accordingly, Defendants’ Motion to Dismiss Plaintiff’s First Amendment free

5 exercise claim is DENIED.

6 C. Fourteenth Amendment Equal Protection Claim

7 The “Equal Protection Clause of the Fourteenth Amendment commands that no State

8 shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is

9 essentially a direction that all persons similarly situated should be treated alike.” City of

10 Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (quoting Plyer v. Doe, 457

11 U.S. 202, 2016 (1982)). This means that “[p]risons must afford an inmate of a minority

12 religion ‘a reasonable opportunity of pursuing his faith comparable to the opportunity

13 afforded fellow prisoners who adhere to conventional religious precepts.’” Freeman v.

14 Arpaio, 125 F.3d 732, 737 (9th Cir. 1997) (quoting Cruz v. Beto, 405 U.S. 319, 322 (1972)

15 (per curiam)), overruled in part on other grounds by Shakur, 514 F.3d at 885.

16 To state a claim under the Equal Protection Clause, an incarcerated person must

17 plead (1) he was subject to intentional discrimination based on his religious beliefs and (2)

18 the difference in treatment was not reasonably related to a legitimate penological interest.

19 FDIC v. Henderson, 940 F.2d 465, 471 (9th Cir. 1991) (clarifying that the Equal Protection

20 Clause protects against intentional discrimination); Shakur, 514 F.3d at 891 (applying the

21 Turner standard, which inquires whether a prison condition or regulation is “reasonably

22 related to legitimate penological interests”).

23 1. Defendant Lopez

24 Plaintiff plausibly pleads that Defendant Lopez intentionally discriminated against

25 him based on his Jewish faith and that the discrimination was not reasonably related to a

26 legitimate penological interest. (Compl. 3–4.) After Plaintiff explained that the tefillin were

27 an “approved religious item” and “central to [his] religious beliefs in the practice of

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1 Judaism,” Defendant Lopez replied he had “never heard of it being a necessary religious

2 item needed by a [J]ew.” (Id.) Plaintiff argued, “You’re going to pass out religious beads

3 to the Native Americans, and Muslim oils and prayer rugs to the [M]uslims[,] but you

4 won’t let me have my Jewish tefillin?” (Id.) Still, Defendant Lopez returned the tefillin to

5 Receiving and Release, and they were sent back to ALEPH. (Id. at 4–5.) After Plaintiff

6 filed administrative grievance paperwork, Defendant Lopez confronted Plaintiff about the

7 “issue” of the tefillin grievance. (Id. at 6.) During this interaction, Plaintiff informed

8 Defendant that the tefillin were an approved item and that ALEPH provided them to him

9 for free. Defendant Lopez replied, “You can get any kind of tefillin you want when you get

10 out, but not here, not while I’m working here!” (Id.)

11 Making reasonable inferences in favor of Plaintiff, the Court finds it plausible that

12 Defendant Lopez treated Plaintiff differently than members of other faiths when he refused

13 to give Plaintiff an approved religious item, failed to inform Plaintiff that the tefillin had

14 been returned, and ignored Plaintiff’s explanation that ALEPH provided the tefillin at no

15 cost. Further, the Court can infer intentional discrimination from Defendant Lopez’s

16 actions and statements. Defendant Lopez promised that Plaintiff would never receive the

17 tefillin, seemingly regardless of their religious purpose, cost, and pre-approved status.

18 These allegations are sufficient to plausibly infer purposeful discrimination.

19 Plaintiff must also plausibly plead that the difference in treatment was not reasonably

20 related to a penological interest. Defendants argue Plaintiff cannot allege an equal

21 protection claim because he “conceded that RJD staff sent back the tefillin to the sender

22 because Receiving and Release staff believed it was worth over $300” and there is no

23 “allegation supporting a contention that any defendant discriminated against Plaintiff due

24 to his faith.” (Mot. 22.) But Defendants’ argument suffers from two layers of shortcomings.

25 First, it is not clear that the tefillin-value-limit regulation is reasonably related to a

26 legitimate penological interest. Defendants fail to identify such an interest, and gesturing

27 to prison regulations is insufficient. In Turner, the Supreme Court made clear that arbitrary

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1 regulations may impinge on incarcerated persons’ rights and, therefore, must be

2 underpinned by a legitimate penological interest. See Turner, 482 U.S. at 81 (determining

3 the constitutionality of a prison regulation). The prison regulations limit the value of tefillin

4 to less than $300 dollars but do not have a price limit for other potentially valuable religious

5 items, like rune tiles, beaded head bands, or altar cloths. (Ex. B 15, ECF No. 17-1.) It may

6 be that the prison has a legitimate penological reason for limiting tefillin to those valued

7 under $300, but it is not obvious what it is.

8 Second, it is not clear that Defendant Lopez’s actions were reasonably related to the

9 $300 value limit. Several allegations indicate otherwise. First, Plaintiff repeatedly

10 informed Defendant Lopez that the tefillin were provided to him for free. (Compl. 4–7.)

11 Second, Defendant Lopez stated that Plaintiff would not receive tefillin, “not while I’m

12 working here.” (Id. at 6.) Finally, the Chief Deputy Warden informed Plaintiff that the

13 Rabbi should have been consulted and the tefillin were listed as “allowable religious

14 personal property.” (Id. at 7.) Given these allegations, Plaintiff plausibly alleges that

15 Defendant Lopez’s actions depriving the tefillin were not reasonably related to a legitimate

16 penological interest.

17 Thus, the Complaint plausibly alleges an equal protection claim against Defendant

18 Lopez.

19 2. Defendants Gonzalez and Garcia

20 The same is not true of the equal protection claims against Defendants Gonzalez and

21 Garcia. After Ashcroft v. Iqbal, there is no supervisory liability under Section 1983. 556

22 U.S. 662, 676–77 (2009) (“Where the claim is invidious discrimination in contravention of

23 the First and Fifth Amendments, our decisions make clear that the plaintiff must plead and

24 prove that the defendant acted with discriminatory purpose.”). As such, Plaintiff must plead

25 intentional discrimination with respect to each Defendant. OSU Student All. v. Ray, 699

26 F.3d 1053, 1074 (9th Cir. 2012) (noting that “invidious discrimination under the Equal

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1 Protection Clause and the First Amendment Free Exercise Clause” requires specific intent).

2 Deliberate indifference is not enough; each Defendant must have acted with purpose. Id.

3 Plaintiff fails to plausibly allege intentional discrimination by Defendants Gonzalez

4 and Garcia. The only allegations as to Defendant Gonzalez are that he interviewed Plaintiff

5 following the filing of the administrative grievance, asked Plaintiff questions relating to

6 his grievance, and informed Plaintiff that he would communicate any further issues.

7 (Compl. 6–7.) As to Defendant Garcia, the only allegation is that the rabbi had a

8 conversation with him, and he refused to intervene in the situation. (Id. at 7.) To infer

9 intentional discrimination from these minimal allegations is too far a leap. Thus, the Court

10 finds Plaintiff’s allegations fail to support an equal protection claim against Defendants

11 Gonzalez and Garcia.

12

13 * * *

14 Accordingly, the Motion to Dismiss with respect to Plaintiff’s Fourteenth

15 Amendment Equal Protection Clause claim against Defendant Lopez is DENIED, and the

16 Motion to Dismiss with respect to Plaintiff’s Fourteenth Amendment Equal Protection

17 Clause claims against Defendants Gonzalez and Garcia is GRANTED.

18 D. Fourteenth Amendment Due Process Claim

19 Plaintiff’s last constitutional claim comes under the Due Process Clause of the

20 Fourteenth Amendment. “Ordinarily, due process of law requires an opportunity for ‘some

21 kind of hearing’ prior to the deprivation of a significant property interest.” Memphis Light,

22 Gas & Water Div. v. Craft, 436 U.S. 1, 19 (1978) (quoting Boddie v. Connecticut, 401 U.S.

23 371, 379 (1971)). However, the negligent deprivation of property does not necessarily form

24 a due process claim under Section 1983 if the deprivation was “unauthorized” by

25 “established state procedure.” See Parratt v. Taylor, 451 U.S. 527, 542–43 (1981) (finding

26 no due process violation because “[a]lthough [the plaintiff had] been deprived of property

27 under color of state law, the deprivation did not occur as a result of some established state

28

1 procedure”), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 330–

2 31 (1986). When a state provides an adequate post-deprivation remedy, through a state tort

3 action for example, the existence of that remedy satisfies the requirements of due process.

4 See Hudson v. Palmer, 468 U.S. 517, 533 (1984) (holding that intentional destruction of

5 inmate’s property does not violate the Fourteenth Amendment Due Process Clause when

6 an adequate post-deprivation state remedy exists); Zinermon v. Burch, 494 U.S. 113, 128

7 (1990) (“In some circumstances, however, the Court has held that a statutory provision for

8 a postdeprivation hearing, or a common-law tort remedy for erroneous deprivation,

9 satisfies due process.” (citations omitted)).

10 Here, an adequate post-deprivation remedy exists. The Ninth Circuit has recognized

11 that “California law provides such an adequate post-deprivation remedy for any property

12 deprivations.” Barnett v. Centoni, 31 F.3d 813, 816–17 (9th Cir. 1994) (citing Cal. Gov’t

13 Code §§ 810–95). The California Government Code makes a public employee “liable for

14 injury caused by his act or omission to the same extent as a private person.” Cal. Gov’t

15 Code § 820; see also id. § 844.6(d) (“Nothing in this section [titled ‘Injuries by and to

16 prisoners’] exonerates a public employee from liability for injury proximately caused by

17 his negligent or wrongful act or omission.”). Plaintiff’s Complaint is bereft of any

18 allegation that the post-deprivation remedy provided under state law is inadequate.

19 Therefore, Plaintiff has failed to plead a colorable due process claim.

20 The Court GRANTS Defendants’ Motion to Dismiss Plaintiff’s Fourteenth

21 Amendment due process claims.

22 E. Claim for Money Damages under RLUIPA

23 Plaintiff also claims damages for statutory violations under RLUIPA, naming

24 Defendants in their individual and official capacities. (Compl. 3.) Defendants move to

25 dismiss his RLUIPA claim, arguing RLUIPA does not “authorize money damages against

26 state officials, whether sued in their official or individual capacities.” (Mot. 23.) The Court

27 agrees.

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1 Sovereign immunity blocks Plaintiff’s claim for damages against Defendants in their

2 official capacities. In 2011, the Supreme Court held that states do not “consent to waive

3 their sovereign immunity to private suits for money damages under RLUIPA because no

4 statute expressly and unequivocally includes such a waiver.” Sossamon v. Texas, 563 U.S.

5 277, 293 (2011). Because sovereign immunity extends to individuals in their official

6 capacities, “[t]he Eleventh Amendment bars [a prisoner’s] suit for official-capacity

7 damages under RLUIPA.” Holley v. Cal. Dep’t of Corr., 599 F.3d 1108, 1112 n.4, 1114

8 (9th Cir. 2010).

9 Nor does RLUIPA provide for money damages against state officials in their

10 individual capacities. “[T]here is nothing in the language or structure of RLUIPA to

11 suggest that Congress contemplated liability of government employees in an individual

12 capacity.” Wood v. Yordy, 753 F.3d 899, 904 (9th Cir. 2014). Therefore, Plaintiff cannot

13 state an individual-capacity claim for damages under RLUIPA either.

14 Thus, Plaintiff’s claim for monetary damages against Defendants under RLUIPA

15 fails. Defendants’ Motion to Dismiss Plaintiff’s claim for monetary damages under

16 RLUIPA is GRANTED without leave to amend as futile.

17 F. Official Capacity Claims and Sovereign Immunity

18 Defendants argue that Plaintiff’s constitutional claims for monetary damages against

19 them in their official capacities are also barred by Eleventh Amendment sovereign

20 immunity. (Mot. 24.) The Court agrees.

21 “[A] suit against a state official in his or her official capacity is not a suit against the

22 official but rather is a suit against the official’s office.” Will v. Michigan Dep’t of State

23 Police, 491 U.S. 58, 71 (1989). As a result, an official-capacity suit for damages is the

24 same as a suit against the state itself with respect to sovereign immunity. Id. The Eleventh

25 Amendment bars such suits absent state waiver or congressional abrogation. Id. at 66. Here,

26 California has not waived nor has Congress abrogated sovereign immunity. See id. 66–67

27 (holding Congress did not abrogate state sovereign immunity in passing Section 1983).

28

1 Therefore, sovereign immunity bars Plaintiff’s claims for damages against Defendants in

2 their official capacities.

3 Moreover, there is an even more fundamental flaw in Plaintiff’s pleading: state

4 actors sued in their official capacities are not “persons” under Section 1983, and therefore

5 are not liable. Id. at 71. Thus, an official-capacity suit for damages under Section 1983

6 cannot go forward.

7 Section 1983 does, however, cover state officials sued in their individual capacities,

8 and sovereign immunity does not apply to individual-capacity defendants. Hafer v. Melo,

9 502 U.S. 21, 31 (1991) (holding officials sued in their individual capacities are “persons”

10 under Section 1983); Pena v. Gardner, 976 F.2d 469, 472–73 (9th Cir. 1992) (“It is thus

11 clear that the eleventh amendment will bar [plaintiff] from bringing his claims in federal

12 court against the state officials in their official capacities. It will not, however, bar claims

13 against the state officials in their personal capacities.”).

14 Consequently, the Court GRANTS Defendants’ Motion to Dismiss on Eleventh

15 Amendment grounds, but only to the extent that Plaintiff seeks damages against them in

16 their official capacities.

17 G. Individual Capacity and Qualified Immunity

18 What remains are Plaintiff’s constitutional claims against Defendants in their

19 individual capacities. Defendants argue they are entitled to qualified immunity. (Mot. 25.)

20 Qualified immunity is an affirmative defense that partially shields state actors from being

21 sued for money damages. See Groten v. California, 251 F.3d 844, 851 (9th Cir. 2001).

22 “Government officials enjoy qualified immunity from civil damages unless their conduct

23 violates ‘clearly established statutory or constitutional rights of which a reasonable person

24 would have known.’” Jeffers v. Gomez, 267 F.3d 895, 910 (9th Cir. 2001) (quoting Harlow

25 v. Fitzgerald, 457 U.S. 800, 818 (1982)). When presented with a qualified immunity

26 defense, the central questions for the court are: (1) whether the facts alleged, taken in the

27 light most favorable to the plaintiff, demonstrate that the defendants conduct violated a

28

1 statutory or constitutional right; and (2) whether the right at issue was “clearly established”

2 at the time it is alleged to have been violated. Saucier v. Katz, 533 U.S. 194, 201 (2001),

3 overruled in part on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009).

4 The above analysis demonstrates Plaintiff has pleaded plausible constitutional

5 violations against Defendants—against all three Defendants under the Free Exercise

6 Clause and against only Defendant Lopez under the Equal Protection Clause. Therefore,

7 the issue is whether the free exercise and equal protection rights at issue were “clearly

8 established” when Defendants withheld the tefillin in 2021.

9 A right is “clearly established” when its bounds are “sufficiently clear that a

10 reasonable official would understand that what he is doing violates that right.” Id. at 202.

11 The Supreme Court does “not require a case directly on point, but existing precedent must

12 have placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd,

13 563 U.S. 731, 741 (2011). Indeed, “in an obvious case, [highly generalized] standards can

14 ‘clearly establish’ the answer, even without a body of relevant case law.” Brosseau v.

15 Haugen, 543 U.S. 194, 199 (2004).

16 Deciding a motion to dismiss based on qualified immunity requires “[b]alancing []

17 competing rules.” Keates v. Koile, 883 F.3d 1228, 1235 (9th Cir. 2018). On the one hand,

18 the Supreme Court “repeatedly [has] stressed the importance of resolving immunity

19 questions at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227

20 (1991). On the other hand, however, the Ninth Circuit has found that “[d]etermining claims

21 of qualified immunity at the motion-to-dismiss stage raises special problems for legal

22 decision making.” Keates, 883 F.3d at 1234. A motion to dismiss based on qualified

23 immunity requires the court “to decide these weighty questions aided only by the skeletal—

24 at best—factual picture sketched out in the complaint.” Wong v. United States, 373 F.3d

25 952, 956 (9th Cir. 2004), overruled in part on other grounds, Wilkie v. Robbins, 551 U.S

26 537 (2007). “When, as here, defendants assert qualified immunity in a motion to dismiss

27 under Rule 12(b)(6), dismissal is not appropriate unless we can determine, based on the

28

1 complaint itself, that qualified immunity applies.” O’Brien v. Welty, 818 F.3d 920, 936 (9th

2 Cir. 2016) (cleaned up); see also Keates, 883 F.3d at 1235 (“[O]ur decision at the motion-

3 to-dismiss stage sheds little light on whether the government actors might ultimately be

4 entitled to qualified immunity ‘were the case permitted to proceed, at least to the summary

5 judgment stage’ and the court is presented with facts providing context for the challenged

6 actions.” (citation omitted)).

7 Here, the Court cannot determine, based on the complaint itself, that qualified

8 immunity applies to Plaintiff’s equal protection or free exercise claim:

9 First, qualified immunity does not apply to Plaintiff’s equal protection claim because

10 equal protection violations require intentional discrimination. The Ninth Circuit has

11 determined that “a government official is not entitled to qualified immunity from a Section

12 1981 or 1983 action that is based on a claim of intentional discrimination.” Gutierrez v.

13 Mun. Ct. of Se. Jud. Dist., 838 F.2d 1031, 1050–51 (9th Cir. 1988), vacated on mootness

14 grounds sub nom. Mun. Ct. of Se. Jud. Dist. v. Gutierrez, 490 U.S. 1016 (1989); see also

15 Yoshikawa v. Seguirant, 41 F.4th 1109, 1118 (9th Cir. 2022) (“We have long held that a

16 public official is not entitled to qualified immunity in a § 1981 case if he is accused of

17 intentional racial discrimination.” (citing id.)).8 The Court found supra that Plaintiff

18 plausibly pleads Defendant Lopez intentionally discriminated against him. Therefore,

19 Defendant Lopez cannot assert qualified immunity as a shield against plausible allegations

20 of intentional discrimination under the Equal Protection Clause.

21 Second, Defendants are not entitled to qualified immunity on the face of Plaintiff’s

22 free exercise allegations. Supreme Court precedent paints the free exercise right in broad

23 strokes, but Ninth Circuit precedent adds detail and contour. Discussing the Free Exercise

24 Clause, the Supreme Court has proclaimed, “[I]f [a prisoner] was denied a reasonable

25 opportunity of pursuing his faith comparable to the opportunity afforded fellow prisoners

26

27

8 The Court notes that Yoshikawa was decided in 2022, after the relevant conduct in this case. Yoshikawa

28 does not create clearly established law, but rather describes a “long held,” clearly-established principle.

1 who adhere to conventional religious precepts, then there was palpable discrimination by

2 the State.” Cruz, 405 U.S. at 322. Further, Turner mandates, “[T]here must be a ‘valid,

3 rational connection’ between the prison regulation and the legitimate governmental interest

4 put forward to justify it.” 482 U.S. at 89–90 (quoting Block v. Rutherford, 468 U.S. 576,

5 586 (1984)).

6 The Ninth Circuit has clearly established that denying prisoners the means to follow

7 sincerely held beliefs, absent a legitimate penological interest, violates the Free Exercise

8 Clause. Shakur, 514 F.3d at 885 (“Given his sincere belief that he is personally required to

9 consume kosher meat to maintain his spirituality, we are satisfied, as a threshold matter,

10 that the prison’s refusal to provide a kosher meat diet implicates

11 the Free Exercise Clause.”); Williams, 791 F.3d at 1034 (holding that forcing a Muslim

12 inmate to handle pork meat in violation of his sincerely held religious beliefs violated free

13 exercise); McElyea v. Babbitt, 833 F.2d 196, 199 (9th Cir. 1987) (“Certainly, the

14 defendants cannot erect a barrier to an inmate’s access to religious reading material absent

15 a security or penological interest.”).

16 Moreover, to determine clearly established law, courts “may look at unpublished

17 decisions and the law of other circuits, in addition to Ninth Circuit precedent.” Jessop v.

18 City of Fresno, 936 F.3d 937, 941 (9th Cir. 2019) (quoting Prison Legal News v. Lehman,

19 397 F.3d 692, 702 (9th Cir. 2005)). In Boles v. Neet, the Tenth Circuit considered a similar

20 issue. 486 F.3d 1177 (10th Cir. 2007). The complaint alleged the prison warden refused

21 the plaintiff’s request to wear certain religious garments while being transported to a

22 hospital. Id. at 1179–80. The court emphasized, “To be valid, a regulation must be

23 ‘reasonably related to legitimate penological interests.’” Id. at 1184 (quoting Turner, 482

24 U.S. at 89). The defendant in Boles failed to identify a legitimate penological interest. Id.

25 As a result, the analysis was “uncomplicated,” and the court affirmed the district court’s

26 denial of qualified immunity. Id. at 1179–80. Thus, Boles not only clearly established the

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1 law moving forward, but persuasively reasoned that the law was already clearly established

2 under Turner.

3 Here too, Defendants do not identify a penological interest. Like in Shakur and

4 Williams, the alleged conditions of incarceration plausibly prevented Plaintiff from

5 conducting religious practices rooted in sincerely held beliefs. The analysis might be more

6 nuanced if a penological interest was clear from the pleadings. But in the absence of one,

7 this case is clear cut. The Court cannot determine on the face of the Complaint that qualified

8 immunity applies.

9 Defendants also argue that a “reasonable but mistaken belief about the facts or about

10 what the law requires” does not foreclose qualified immunity. (Mot. 26 (citing Est. of Ford

11 v. Ramirez-Palmer, 301 F.3d 1043, 1049 (9th Cir. 2002)).) Defendants aver they made a

12 “reasonable mistake as to the tefillin’s value,” and so the allegations do not “rise to an

13 actionable claim.” (Reply at 6.) This argument is unavailing for two reasons.

14 First, it is not clear that a reasonable mistake of fact rule preserves qualified

15 immunity in this case. It is true that qualified immunity doctrine leaves room for state actors

16 to make factual mistakes. But a mistake of fact is not a blank check. Estate of Ford stands

17 for the principle that a reasonable mistake of fact does not foreclose a qualified immunity

18 defense, so long as that fact, if the mistaken understanding were true, would absolve

19 defendants of violating clearly established law. See 301 F.3d at 1049. In other words, if an

20 officer would have violated clearly established law under either the actual facts or the

21 mistaken facts, then qualified immunity does not apply. cf. Saucier, 533 U.S. at 205 (“If an

22 officer reasonably, but mistakenly, believed that a suspect was likely to fight back, for

23 instance, the officer would be justified in using more force than in fact was needed.”).

24 It is plausible that Defendants’ conduct violated the Free Exercise Clause under

25 clearly established law whether or not the tefillin was valued over $300 dollars. If the

26 regulation limiting only tefillin, and not other religious items, to a value less than $300

27 dollars is not reasonably related to a penological interest, then adhering to that regulation

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1 violates the Constitution. As noted above, Defendants fail to identify the penological

2 interest at stake in enforcing a $300 dollar value limit on tefillin, and the penological

3 interest is not apparent on the face of the pleadings. Therefore, taking all reasonable

4 inferences in favor of Plaintiff, a mistake of fact would not shield Defendants from the gaze

5 of clearly established law.

6 Second, it is not clear that Defendants’ mistake of fact was reasonable. To reiterate,

7 Plaintiff alleges (1) he informed Defendants the tefillin was provided to him at no cost

8 (Compl. 6–7), (2) Defendants failed to follow procedure in sending it back without

9 consulting the prison rabbi or Plaintiff (id. at 7), (3) ALEPH was a pre-approved vendor

10 and sent Plaintiff the tefillin “in accordance with the ALEPH providing Judaic religious

11 artifacts and books to inmates incarcerated throughout the United States” (id. at 3), and

12 (4) Defendant Lopez indicated that Plaintiff would not receive tefillin regardless of their

13 cost—“not while I’m working here” (id. at 6). In light of these allegations, the Court can

14 plausibly infer that mistaking the value of the tefillin was not reasonable.9

15 In sum, given the procedural posture of the motion to dismiss, the Court cannot

16 determine on the face of the pleadings that qualified immunity applies. Defendants’

17 arguments to the contrary are unconvincing. Hence, the Court DENIES Defendants’

18 Motion to Dismiss on qualified immunity grounds.

19 IV. CONCLUSION AND ORDER

20 Accordingly, the Court:

21 (1) GRANTS Defendants’ Request for Judicial Notice;

22 (2) DENIES Defendants’ Motion to Dismiss for failure to exhaust under the

23 PLRA;

24

25

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9 Defendants also argue without citation, “Each Defendant did not cause the entirety of the alleged

27 deprivation. Under the circumstances alleged as pleaded by Plaintiff, no Defendant violated clearly

established law, and as a result they are each entitled to qualified immunity.” (Mem. 26.) It is unclear what

28 exactly Defendants are arguing. Without more, the Court is unconvinced.

1 (3) DENIES Defendants’ Motion to Dismiss with respect to Plaintiff’s First

2 Amendment free exercise claim;

3 (4) DENIES Defendants’ Motion to Dismiss with respect to Plaintiff’s

4 Fourteenth Amendment equal protection claim against Defendant Lopez;

5 (5) GRANTS Defendants’ Motion to Dismiss with respect to Plaintiff’s

6 Fourteenth Amendment equal protection claim against Defendants Gonzalez

7 and Garcia and GRANTS Plaintiff leave to amend;

8 (6) GRANTS Defendants’ Motion to Dismiss with respect to Plaintiff’s

9 Fourteenth Amendment due process claim and GRANTS Plaintiff leave to

10 amend;

11 (7) GRANTS Defendants’ Motion to Dismiss with respect to Plaintiff’s claim for

12 monetary damages under RLUIPA without leave to amend as futile;

13 (8) GRANTS Defendants’ Motion to Dismiss with respect to Plaintiff’s claims

14 for monetary damages against Defendants in their official capacities without

15 leave to amend as futile;

16 (9) DENIES Defendants’ Motion to Dismiss on qualified immunity grounds.

17 IT IS FURTHER ORDERED that:

18 Plaintiff is GRANTED forty-five (45) days leave from the date of this Order in

19 which to either (1) notify the Court of his intention to proceed with the claims that remain

20 in this action; or (2) file a First Amended Complaint that cures the deficiencies of pleading

21 noted in this Order. If Plaintiff chooses to file an amended pleading, it should be complete

22 by itself without reference to any previous version of his Complaint. Any Defendants not

23 re-named and any claims not re-alleged in the First Amended Complaint will be considered

24 waived. See CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d

25 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”); Lacey v.

26 Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with

27 leave to amend which are not re-alleged in an amended pleading may be “considered

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| || waived if not repled.”’). Plaintiff is cautioned that he may not re-allege the claims that the

2 || Court has dismissed without leave to amend and may not add any new claims or allegations.

3 || If Plaintiff chooses the first option to move forward with the remaining claims, the Court

4 || will issue an order directing Defendants to file a responsive pleading pursuant to Rule

5 || 12(a)(4)(B).

6 IT IS SO ORDERED.

7 /

8 || DATED: February 15, 2023 (pil A (Lyohaa 6

9 United States District Judge

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