Patterson v. Schriro, et al

Filing 127

ORDER withdrawing the reference to the Magistrate Judge as to (Doc. 115). Granting 115 Defendants' Amended Motion to Dismiss RLUIPA and Injunction Claims with prejudice. Signed by Judge Robert C Broomfield on 8/26/11.(DMT) *Modified on 8/26/2011 to add text* (DMT).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Barry Northcross Patterson,

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Plaintiff,

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15

vs.
Charles L. Ryan, et al.,

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Defendants.

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No. CV 05-1159-PHX-RCB
O R D E R

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After more than six years of litigation, familiarity with

19

which is assumed, a single count remains in plaintiff pro se

20

Barry Northcross Patterson’s complaint. 1

21

count I plaintiff asserts claims against defendants Broderick

22

and Mason, 2 both of whom are Arizona Department of Corrections

23

(“ADOC”) chaplains.

24

free exercise rights under the First Amendment, and his rights

25

under the Religious Land Use and Institutionalized Persons Act

More specifically, in

Allegedly defendants violated plaintiff’s

26
27
28

1

All references to the complaint herein shall be read as referring to
the second amended complaint (“SAC”) (Doc. 106).
2

defendants.

Neither the complaint nor the answer provides the first names of these

1

(“RLUIPA”), 42 U.S.C. § 2000cc et seq., by not providing him

2

with a three meal a day kosher diet, despite the fact that he

3

is a Messianic Jew purportedly eligible for a kosher diet under

4

ADOC regulations.

5

well as compensatory and punitive damages.

6

Plaintiff is seeking injunctive relief as

Pending before the court is defendants’ motion for partial

7

dismissal.

8

defendants argue that they are entitled to dismissal of that

9

claim

Focusing

for

two

solely

reasons.

on

plaintiff’s

First,

defendants

RLUIPA

argue

claim,

that

the

10

Eleventh Amendment bars any RLUIPA claim for damages against

11

them in their official capacities.

12

that

13

damages against state officials, like them, in their individual

14

capacities.

15

entitled to qualified immunity from plaintiff’s RLUIPA claim for

16

monetary damages.

17

asserting

18

defendants contend that the court should dismiss as moot his

19

request for an injunction ordering defendants to provide him

20

with a completely kosher diet.

21

RLUIPA

does

his

not

provide

Alternatively,

a

Second, defendants argue

private

defendants

cause

argue

for

that

monetary

they

are

Lastly, regardless of whether plaintiff is

rights

under

the

First

Amendment

or

RLUIPA,

Essentially, plaintiff concedes that the issue of whether

22

RLUIPA

23

defendants in either their official or individual capacities is

24

a legal one, properly resolved on this motion.

25

(Doc. 124) at 1 (“Patterson leaves it to this Court or the

26

Supreme Court to decide whether or not he is allowed money

27

damages under RLUIPA.”); and at 3 (same).

28

discern

allows

for

exactly

the

what

recovery

of

plaintiff’s
-2-

monetary

position

damages

against

See Supp. Resp.

It is difficult to
is

regarding

the

1

defendants’

2

plaintiff

3

doctrine somehow contravenes the Ninth Circuit’s instructions

4

on remand. It is clear, however, that plaintiff disagrees that

5

his request for an injunction requiring that he be served three

6

kosher meals daily is moot.

invocation

believes

of

that

7

the

qualified

immunity.

defendants’

Evidently

reliance

upon

that

Background

8

The material facts, taken as true and construed in the

9 light most favorable to plaintiff as the non-moving party, see
10 Johnson v. Lucent Technologies Inc., 2011 WL 3332368, at *8 (9 th
11 Cir.

2011) (citation omitted), are

straightforward and

12 During his incarceration, plaintiff became a Messianic Jew.
13 (Doc. 106) at 3, ¶ 3.

few.
SAC

Thereafter, on approximately March 1,

14 2004, plaintiff filled out an ADOC form requesting a kosher
15 diet, which he claims “is common for many Messianic Judists
16 [sic] who follow many of the Jewish traditions.”

Id.

When he

17 received his first meal pursuant to that request, allegedly it
18 was “not the kosher meal given to Jewish believers[,]” but a
19 “vegetarian meal.”
20

Id.

Plaintiff received that vegetarian meal even though he “is

21 not . . . [and] has [n]ever been a vegetarian[.]” Id.

According

22 to plaintiff, he was being provided vegetarian breakfasts and
23 lunches,

but

“standard

kosher

dinner[s]”

because

ADOC

was

24 informed by a “Jewish Rabbi[] . . . [that] that should suffice
25 for [plaintiff’s] religious needs.”
26 count

is

plaintiff’s

belief

that

Id.
he

is

The thrust of this
being

discriminated

27 against because he is a Messianic Jew.
28

Plaintiff

Patterson

is

currently
-3-

housed

at

the

Central

1 Arizona Correction Facility (“CACF”) in Florence, Arizona.
2 (Doc. 106) at 1.

At the time

of

SAC

the events complained of

3 herein, however, he was housed at an ADOC facility, also in
4 Florence, Arizona.

Id. at 1, ¶ 2.

Defendants Broderick and

5 Mason maintain that they do not work at that CACF facility,
6 which they describe as a “private prison[.]” Reply (Doc. 125) at
7 3:24.

The SAC is silent, however, as to where defendants are

8 currently working.

And because this is a motion to dismiss, the

9 court must confine itself to the allegations in the SAC.
10 SAC

simply

alleges

that

plaintiff

encountered

The

those

two

11 defendants while at the ADOC facility in Florence, Arizona.

SAC

12 (Doc. 106) at 1, ¶ 2; and at 3, ¶ 3.
13
14 I.
15

Discussion
Governing Legal Standards
Defendants did not specify which Rule forms the basis for

16 their

dismissal

motion.

However,

because

defendants

are

17 challenging the legal sufficiency of plaintiff’s RLUIPA claim,
18 presumably they intended to rely upon Fed. R. Civ. P. 12(b)(6),
19 which allows for dismissal for “failure to state a claim upon
20 which

relief

can

be

granted[.]”

Fed.

R.

Civ.

P.

12(b)(6).

21 However, because defendants contend that plaintiff’s claim for
22 injunctive relief is moot, Fed. R. Civ. P. 12(b)(1), governing
23 motions to dismiss for lack of subject matter jurisdiction is
24 the proper procedural vehicle for this aspect of defendants’
25 dismissal motion.
26 at

*5

(C.D.Cal.

See Nasoordeen v. F.D.I.C., 2010 WL 1135888,
2010)

(citing

cases)

(“Federal

courts

lack

27 subject matter jurisdiction to hear claims that are moot.”)
28 Regardless of which Rule governs the present motion, plaintiff
-4-

1 is entitled to similar safeguards.
2

“A Rule 12(b)(6) motion tests the legal sufficiency of a

3 claim.”

Cook v. Brewer, 637 F.3d 1001, 1004 (9 th Cir. 2001).

“A

4 claim may be dismissed only if it appears beyond doubt that the
5 plaintiff can prove no set of facts in support of his claim
6 which would entitle him to relief.” Id. (internal quotation
7 marks and citations omitted).

“‘To survive a motion to dismiss,

8 a complaint must contain sufficient factual matter, accepted as
9 true, to ‘state a claim to relief that is plausible on its
10 face.’’” Hinds Investments, L.P. v. Angioli, 2011 WL 3250461, at
11 *2 (9 th Cir. 2011) (quoting Ashcroft v. Iqbal, ––– U.S. ––––, 129
12 S.Ct.

1937,

13 omitted).
14 however,

1949,

173

L.Ed.2d

868

(2009))

(other

citation

“Conclusory allegations and unwarranted inferences,
are

insufficient

to

defeat

a

motion

to

dismiss.”

15 Johnson, 2011 WL 3332368, at *8 (citation omitted).
16

“Dismissal is proper where there is either a lack of a

17 cognizable

legal

theory

or

the

absence

of

18 alleged under a cognizable legal claim.”

sufficient

facts

Hinds Investments,

19 2011 WL 3250461, at *2 (citation omitted).

At the same time,

20 however, because plaintiff Patterson is proceeding pro se, the
21 court

“must

22 evaluating

it

construe
under

his

the

complaint[]

Iqbal

liberally

standard.”

even

Johnson,

when

2011

WL

23 3332368, at *9 (citation omitted).
24

Likewise, when, as here, defendants are facially attacking

25 subject

matter

jurisdiction,

“factual

allegations

of

the

26 complaint are presumed to be true and conflicts in the pleadings
27 are resolved in the plaintiff’s favor.”

Kelly v. Public Utility

28 Dist. No. 2, 2011 WL 294166, at *4 (E.D.Wash. 2011) (citing,
-5-

1 inter alia, Doe v. Holy See, 557 F.3d 1066, 1073 (9th Cir.2009)
2 (internal citations omitted)).

With these standards firmly in

3 mind, the court has carefully examined the complaint vis-a-vis
4 defendants’ motion for partial dismissal.
5 II.

RLUIPA

6

A.

7

“The Eleventh Amendment bars suits for money damages in

Official Capacity

8 federal court against a state, its agencies, and state officials
9 acting in their official capacities.”

Aholelei v. Dep’t of Pub.

10 Safety, 488 F.3d 1144, 1147 (9 th Cir. 2007) (citations omitted);
11 see also Krainski v. Nevada ex rel. Bd. of Regents of NV. System
12 of Higher Educ., 616 F.3d 963, 967 (9 th Cir. 2010) (citation
13 omitted)
14 officials

(“Eleventh Amendment immunity . . . shields state
from

official

capacity

suits.”)

“The

Eleventh

15 Amendment bars an action by a private citizen against a state
16 ‘unless Congress has abrogated state sovereign immunity under
17 its power to enforce the Fourteenth Amendment or [the] state has
18 waived it.’” Jachetta v. United States, 2011 WL 3250450, at *7
19 (9 th Cir. 2011) (quoting Holley v. Cal. Dep’t of Corr., 599 F.3d
20 1108, 1111 (9 th Cir. 2010)).
21

“To abrogate a state's sovereign immunity under § 5 of the

22 Fourteenth Amendment, Congress's intent must be ‘unequivocally
23 expressed.’” Id. (quoting

Tennessee v. Lane, 541 U.S. 509, 517,

24 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004) (internal quotation marks
25 omitted)).

“Similarly, a state will be deemed to have waived

26 its immunity ‘only where stated by the most express language or
27 by such overwhelming implications from the text as will leave no
28 room

for

any

other

reasonable
-6-

construction.’”

Id.

(quoting

1 Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 39 L.Ed.2d
2 662 (1974) (internal quotation marks and alteration omitted));
3 see also Sossamon v. Texas, ___ U.S. ___, 131 S.Ct. 1651, 1658,
4 179 L.Ed.2d 700 (2011) (“A State's consent to suit must be
5 ‘unequivocally expressed’ in the text of the relevant statute
6 ... [and] may not be implied.” (citations omitted)).
7

In moving for dismissal of the RLUIPA claim for damages

8 against them in their official capacities as ADOC chaplains,
9 initially defendants solely relied upon Holley v. Cal. Dep’t of
10 Corr., 599 F.3d 1108 (9 th Cir. 2010).

There, the Ninth Circuit,

11 “join[ing] five of the six circuits to have considered th[e]
12 question[,]” held that “RLUIPA’s ‘appropriate relief’ language
13 does

not

unambiguously

encompass

monetary

damages

so

as

to

14 effect a waiver of sovereign immunity from suit for monetary
15 claims[.]” Id. (internal quotation marks, citation and footnote
16 omitted).

Continuing, the Holley Court explained that “[t]he

17 phrase ‘appropriate relief’ does not address sovereign immunity
18 specifically at all, let alone ‘extend [a waiver of sovereign
19 immunity]

unambiguously

20 particular.”
21 2092).
22 that

to

.

.

.

monetary

claims’

in

Id. (quoting Lane, 518 U.S., at 192, 116 S.Ct.

Given that unequivocal holding, Holley supports the view

plaintiff

23 monetary

Patterson

damages

has

against

not

stated

defendants

a

RLUIPA

in

their

claim

for

official

24 capacities.
25

Not only that, the Supreme Court’s decision in Sossamon v.

26 Texas, 131 S.Ct. 1651, 79 L.Ed.2d 700 (2011), which defendants
27 note in a supplemental filing, leaves no doubt that plaintiff
28 Patterson’s RLUIPA claim for monetary damages against defendants
-7-

1 in

their

official

capacities

cannot

survive

this

motion

to

2 dismiss. “[G]rounded on the line of Eleventh Amendment authority
3 requiring ‘clear expression’ to abrogate the sovereign immunity
4 of

states

from

damages

claims[,]”

Center

Familiar

Cristiano

5 Buenas Nuevas v. City of Yuma, 2011 WL 2685288, at *3 (9 th Cir.
6 2011),
7 federal

the

Sossamon

funding,

do

Court
not

held

“that

consent

to

States,
waive

in

accepting

their

sovereign

8 immunity to private suits for money damages under RLUIPA because
9 no statute expressly and unequivocally includes such a waiver.
10 Sossamon, 131 S.Ct. at 1663, 79 L.Ed.2d 700.

Therefore, this

11 court

bars

plaintiff

seeking

monetary

finds

12 Patterson’s

that
RLUIPA

the

Eleventh

claim

insofar

Amendment
as

he

is

13 damages from defendants Broderick and Mason in their official
14 capacities.

As such, defendants are entitled to dismissal of

15 that claim.
16

B.

17

Construing the complaint as alleging a RLUIPA claim for

Individual Capacity

18 damages against them in their individual capacities, 3 defendants
19 argue that the court should dismiss that claim because it is not
20 cognizable.
21 precedential

The Ninth Circuit has not yet “ruled . . . in a
opinion[]” 4

on

the

issue

of

whether

RLUIPA

22
3

23
24
25
26

It is beyond peradventure that pro se complaints must be “liberally
construed[.]” Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d 916, 923 n.
4 (9 th Cir. 2011).
So, even though plaintiff Patterson’s complaint does not
explicitly allege that defendants are being sued both in their official and
individual capacities, that is a reasonable inference based upon a liberal
construction of the complaint. Thus, as did the defendants, this court is treating
plaintiff’s claims against defendants Broderick and Mason as being brought against
them in both capacities.
4

27
28

As the Fifth Circuit observed in Sossamon, “[t]he Ninth Circuit appears
to have assumed that a cause of action for monetary relief against state actors in
their individual capacities exists, but its cases contain no analysis and are
unpublished.” Sossamon, 560 F.3d at 372 n. 23 (citing Campbell v. Alameida, 295

-8-

1 “appli[es]

to

private

2 individual capacity.”

actors

sued

for

damages

Florer, 639 F.3d at 922 n. 3.

in

their

Indeed, as

3 recently as April 15, 2011, the Ninth Circuit has continued to
4 “reserve” on that “question for another day.”

Id.

Likewise,

5 the Supreme Court has not yet decided whether persons can be
6 sued in their individual capacities for damages under RLUIPA. 5
7 Nonetheless, given the weight of soundly reasoned authority set
8 forth herein, the court agrees with defendants and dismisses
9 plaintiff’s RLUIPA claims against them for monetary damages in
10 their individual capacities.
11

As

the

Ninth

Circuit

has

acknowledged,

“[t]he

Fifth,

12 Seventh, and Eleventh Circuits have held that RLUIPA does not
13 provide an action for damages for individual-capacity claims.”
14 Florer, 639 F.3d at 922 n. 3 citing Sossamon v. Lone Star State
15 of Tex., 560 F.3d 316, 327-28 & n. 23 (5 th Cir. 2009); Nelson v.
16 Miller, 570 F.3d 868, 889 (7 th Cir. 2009); Smith v. Allen, 502
17 F.3d 1255,

1272-75 (11 th Cir. 2007)); see also Rendelman v.

18 Rouse, 569 F.3d 182, 184 (4 th Cir. 2009) (holding that “when
19 invoked as a spending clause statute, RLUIPA does not authorize
20 a

claim

for

money

damage

against

an

official

sued

in

her

21
22
23
24
25
26
27
28

Fed.Appx. 130, 131 (9 th Cir. 2008) (mem.) (unpublished); Von Staich v. Hamlet, Nos.
04-16011 & 06-17026, --- Fed.Appx. ----, ----, 2007 WL 3001726, at *2 (9 th Cir. Oct.
16, 2007) (mem.) (unpublished)); see also Shilling v. Crawford, 377 Fed.Appx. 702,
705 (9 th Cir. 2010) (declining to “settle th[e] question” of “whether money damages
for RLUIPA claims are available against state actors sued in their individual
capacities because even assuming arguendo that such damages would otherwise be
available, the defendants in this case are entitled to qualified immunity[]”).
5

The Supreme Court’s grant of certiorari in Sossamon was limited to the
following question: “Whether an individual may sue a State or state official in his
official capacity for damages for violations of the Religious Land Use and
Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq. (2000 ed.).” Sossamon v.
Texas, 130 S.Ct. 3319, 176 L.Ed.2d 1218 (2010).
Necessarily then, the Supreme
Court did not address the Fifth Circuit’s further holding in Sossamon there is no
cause of action under RLUIPA for individual capacity claims.

-9-

1 individual capacity[]”).

Consequently, even in the absence of

2 Ninth Circuit case law squarely addressing the issue, numerous
3 district courts within this Circuit likewise have declared that
4 RLUIPA does not provide for damages claims against officials
5 sued

in

their

individual

capacities.

See,

e.g.,

Florer

v.

6 Bales-Johnson, 752 F.Supp.2d 1185, 1205-1206 (W.D.Wash. 2010)
7 (footnote

omitted)

8 kosher

meals

9 liable

in

10 RLUIPA[]”);

(dismissing

because

their

claim

“individual

individual

regarding,

Defendants

capacities

in

inter

cannot
an

alia,

be

action

held
under

Parks v. Brooks, 2010 WL 5186071, *1–*2 (D.Nev.

11 2010); Sokolsky v. Voss, 2010 WL 2991522, *2–*4 (E.D.Cal. 2010);
12 Alvarez v. Hill, 2010 WL 582217, *11 (D.Or. 2010); Harris v.
13 Schriro, 652 F.Supp.2d 1024, 1030 (D.Ariz. 2009).
14

There is no reason here for the court to depart from this

15 weight of soundly reasoned authority.
16 is

the

Spending

Clause

17 Eleventh Circuits.

analysis

of

Particularly persuasive
the

Fifth,

Seventh

and

Following that reasoning, in Harris v.

18 Schriro, 652 F.Supp.2d 1024 (D.Ariz. 2009), the court cogently
19 wrote:
20
21
22
23
24
25
26
27
28

RLUIPA creates a cause of action for suits against
‘a government’; government is defined as ‘(i) a State
county, municipality, or other governmental entity
created under the authority of a State; (ii) a
branch,
department, agency, instrumentality, or official
of an
entity listed in [that] clause . . . ; and (iii)
any
other person acting under color of state law
. . . . ’
42 U.S.C. § 2000cc-5. As the court in Sossamon
noted,
this language appears to create a right
against state
actors in their individual capacities
and it even mirrors
the ‘under color of’ language in §
1983. 560 F.3d at
327-28. But the Fifth, Seventh
and Eleventh Circuits
nevertheless held that
individuals may not be sued for
damages under RLUIPA.
The Eleventh Circuit reasoned that
RLUIPA was enacted
pursuant to Congress's Spending Clause
p o w e r ,
n o t
pursuant to the Section 5 power of the
Fourteenth
- 10 -

1 Amendment, citing Cutter v. Wilkinson, 544
U.S. 709, 715-16, 125 S.Ct. 2113, 161 L.Ed.2d 1020
2
(2005), and that Spending Clause legislation is
not
legislation in its operation but operates like
3 a
contract, see Pennhurst State Sch. & Hosp. v.
Halderman,
451 U.S. 1, 17, 101 S.Ct. 1531, 67 L.Ed.2d 694
4 (1981).
Smith, 502 F.3d at 1273-75. Individual RLUIPA
defendants
are not parties to the contract in their
5 individual
capacities, and therefore, only the grant
recipient-that
is, the state-may be liable for its
6 violation. Id.
The Fifth Circuit also concluded that RLUIPA was passed
7
pursuant to the Spending Clause and noted that it also
followed the same rule for Spending Clause legislation.
8
Sossamon, 560 F.3d at 328-29. Likewise, the Seventh
Circuit reasoned that ‘[c]onstruing RLUIPA to
9 provide
for damages actions against officials in their
10 individual
capacities would raise serious questions
regarding
whether
Congress
had
exceeded its
11 authority under the
Spending Clause,’ and so the
court declined to read
RLUIPA as allowing damages
12 against defendants in their
individual capacities.
Nelson, 570 F.3d at 889.
13
14 Id. at 1029-1030.

That Spending Clause analysis is particularly

15 apropos given that the Ninth Circuit has “upheld RLUIPA as a
16 constitutional exercise of Congress’ spending power.”

San Jose

17 Christian College v. City of Morgan Hill, 360 F.3d 1024, 1034
18 (9 th Cir. 2004) (citation omitted).
19

Moreover,

although noting RLUIPA’s “ostensibl[e] . . .

20 Commerce Clause underpinnings[,]” in Nelson the Seventh Circuit
21 “interpret[ed] RLUIPA as an exercise of Congress's power under
22 the Spending Clause[]” where there was “no evidence . . . that
23 plaintiff’s denial of a religious diet affect[ed] . . . commerce
24 with foreign nations, among the several States, or with Indian
25 tribes.”

Nelson, 570 F.3d at 886 (internal quotation marks and

26 citation

omitted)

(citing

Smith,

502

F.3d

at

1274

n.

9

27 (reasoning that RLUIPA should be analyzed as an exercise of
28 Congress's Spending Clause authority when there is no evidence
- 11 -

1 of an effect on interstate or international commerce); Sossamon,
2 560 F.3d at 328 n. 34 (same)).
3

Similarly, here, plaintiff Patterson’s allegations that he

4 has been denied a three meal a day kosher diet do not appear to
5 implicate the Commerce Clause.

See Mahone v. Pierce County,

6 2011 WL 3298898, at *5 (W.D.Wash. May 23, 2011), adopted in full
7 by 2011 WL 3298528 (W.D.Wash. Aug. 1, 2011)(treating RLUIPA as
8 an exercise of Congress’s Spending Clause power where there was
9 “no

evidence

of

an

effect

on

interstate

or

international

10 commerce by an alleged denial of [“Jewish Kosher Meals three
11 times a day”] to indicate that RLUIPA should be interpreted
12 under the Commerce Clause[]”); Sokolsky v. Voss, 2010 2991522,
13 at *4 n. 4 (“Plaintiff’s allegations that he was denied a proper
14 Kosher . . . for Passover diet do not appear to implicate the
15 Commerce

Clause.”);

Harris,

652

F.Supp.2d

at

1030

(citation

16 omitted) (Jewish inmate’s claim, inter alia, that prison refused
17 to modify his kosher diet meals did “not appear to implicate the
18 Commerce

Clause

and

so

the

Court

19 Spending Clause enactment[]”).
20 first

set

forth

by

the

interpret[ed]

RLUIPA

as

a

Thus, following the rationale

Eleventh

Circuit

in

Smith,

and

21 subsequently adopted by the Fourth, Fifth and Seventh Circuits,
22 the court holds that plaintiff Patterson cannot obtain monetary
23 relief

against

24 individual

defendants

capacities

for

Broderick
allegedly

and

Mason

violating

in

their
RLUIPA.

25 Accordingly, the court grants defendants’ motion to dismiss in
26 that regard.
27 III.
28

Qualified Immunity
Having found that the complaint fails to state a RLUIPA
- 12 -

1 claim for damages against defendants in either their official or
2 individual capacities, there is no need to consider defendants’
3 alternative

argument

that

4 immunity on such claim.

they

are

entitled

to

qualified

See Sokolsky, 2010 WL 2991522, at *4

5 (“[B]ecause this court finds that RLUIPA creates no right to
6 recovery for damages against state officials acting in their
7 individual

capacities,

the

Court

declines

to

reach”

the

8 qualified immunity “question.”) (citing Sossamon, 560 F.3d at
9 327 (“Of course, if no private right of action exists against
10 the defendants in their individual capacities, then a qualified
11 immunity ... analysis would be unnecessary.”); see also Alvarez,
12 2010

WL

582217,

13 court's

at

decision

14 analysis

once

it

*11

to

(citing

decline

found

to

that

Sossamon

in

reach

qualified

a

individual

15 available against defendants)).

support

damages

of

the

immunity
were

not

If the court were to consider

16 this argument, though, it would grant defendants’ request for
17 qualified immunity primarily because it was not until nearly
18 four years after the events complained of herein that the Ninth
19 Circuit interpreted RLUIPA with respect to the provision of
20 kosher meals.
21 2008).

See Shakur v. Schriro, 514 F.3d 878 (9 th Cir.

Thus, it is entirely plausible that defendants Broderick

22 and Mason had no notice of the evolving status of the law in
23 this Circuit on this question until after the conduct complained
24 of herein.
25 IV.

Injunctive Relief

26

In

addition

to

seeking

monetary

damages,

plaintiff

is

27 seeking “[a] Court Order requiring 3 [three] Kosher meals or the
28 equivalent for all Kosher diets[.]” SAC (Doc. 106) at 13, ¶ E.
- 13 -

1 Defendants offer several reasons for dismissing as moot this
2 claim for injunctive relief.

There is no need to address each

3 of those reasons, however, because one is dispositive; that is,
4 plaintiff Patterson “is receiving precisely the diet that he is
5 seeking by way of injunctive relief in this action.”

See Reply

6 (Doc. 124) at 4:11 (emphasis added).
7

As defendants stress, and plaintiff concedes, he has been

8 “given his main request
9 at 4.

- 3 kosher meals[.]” Resp. (Doc. 124)

Indeed, plaintiff acknowledges that he was granted that

10 request

“about

6

months

after

he

filed

this

case[,]”

i.e.,

11 roughly six months after April 15, 2005, or, more than six years
12 ago.

See

id.

Not

only

that,

presumably

based

upon

the

13 foregoing, in April, 2010, plaintiff sought an order, inter
14 alia, “enjoining the ADC from discontinuing the 3-meal-a-day
15 kosher diet that he currently receives,” and “‘moot[ing] his
16 action as complete[.]’”

Patterson v. Schriro, 2010 WL 3522500,

17 at *1 (D.Ariz. 2010) (emphasis added) (citing Mot. (Doc. 87)). 6
18 In

denying

that

preliminary

injunction

motion,

this

court

19 explained that plaintiff did not “set forth any facts indicating
20 that he [wa]s subject to a threat of irreparable harm” where he
21 did “not explain why an order to maintain his kosher diet [wa]s
22 necessary

nor

d[id]

he

present

any

facts

showing

that

his

23
6

24
25
26
27
28

The court takes judicial notice of plaintiff’s earlier motion and the
court’s decision relating thereto, as well as plaintiff’s response to the pending
motion. See Spectravest, Inc. v. Mervyn’s Inc., 673 F.Supp. 1486, 1490 (N.D.Cal.
1987) (citation omitted) (“Court may take judicial notice of the existence of an
earlier pleading, particularly when the same parties are involved.”) The court
may take judicial notice in its discretion even absent a specific request for
judicial notice (“RJN”) by a party. See Rodriguez v. SGLC, Inc., 2010 WL 2943128,
at *1 n. 4 (E.D.Cal. 2010) (granting defendants’ RJNs, although such requests where
“unnecessary for pleadings in ths same case[]”). By taking judicial notice, there
is no need, as defendants suggest, to convert this aspect of their dismissal motion
to one for summary judgment. See Mot. (Doc. 115) at 10:20, n. 4.

- 14 -

1 current kosher diet is likely to be discontinued or changed in
2 the future.”

Id. at *2 (emphasis added).

As to plaintiff’s

3 request to moot the action, the court found that because it had
4 recently granted plaintiff leave to amend his complaint, that
5 “indicate[d] his desire to proceed with this litigation[.]”

Id.

6 (citation omitted).
7

Given that plaintiff is receiving the kosher diet that he

8 is seeking through an injunction, defendants argue that this
9 claim is moot because no case or controversy exists as Article
10 III requires.

Plaintiff disagrees, arguing that “ADOC & CACF

11 regularly take his diet for false reasons and an injunction
12 might prevent him from such abuse.”
13 1.

Supp. Resp. (Doc. 124) at

Defendants retort that the issue of whether those “previous

14 suspensions and delays . . . were justified is not . . . before
15 the Court.”

Reply (Doc. 125) at 4:9-10.

Even if they were,

16 defendants reiterate that an injunction requiring plaintiff to
17 receive a “‘complete daily’ kosher diet (when available)[,]”
18 nonetheless is moot due to the lack of a case or controversy.
19 See Resp. (Doc. 116) at 2.
20

Article III of the Constitution limits the jurisdiction of

21 the federal courts to “Cases” or “Controversies.”
22 Const. art. III, § 2, cl. 1.

See U.S.

“The doctrine of mootness, which

23 is embedded in Article III's case or controversy requirement,
24 requires that an actual, ongoing controversy exist at all stages
25 of federal court proceedings.”

Pitts v. Terrible Herbst, Inc.,

26 2011 WL 3449473, at *3 (9 th Cir. 2011) (citing Burke v. Barnes,
27 479

U.S.

361,

363,

107

S.Ct.

734,

93

L.Ed.2d

732

(1987)).

28 “Whether ‘the dispute between the parties was very much alive
- 15 -

1 when suit was filed . . . cannot substitute for the actual case
2 or controversy that an exercise of this [c]ourt's jurisdiction
3 requires.’” Id. (quoting Honig v. Doe, 484 U.S. 305, 317, 108
4 S.Ct. 592, 98 L.Ed.2d 686 (1988)).

“A case becomes moot ‘when

5 the issues presented are no longer ‘live’ or the parties lack a
6 legally cognizable interest in the outcome’ of the litigation.”
7 Id. (quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct.
8 1944,

23

L.Ed.2d

9 subsequent

to

491

the

(1969)).

filing

of

the

“In

other

case

words,

resolve

if

the

events

parties’

10 dispute,” the court “must dismiss the case as moot” because the
11 court does “not have the constitutional authority to decide moot
12 cases[.]” Id.

(internal quotation marks and citations omitted)

13 (emphasis added).
14

Applying those well-settled rules to the present case, it

15 is patently obvious that plaintiff Patterson’s request for “[a]
16 court order requiring 3 kosher meals or the equivalent for all
17 kosher diets, no vegetarian[,]” SAC (Doc. 106 at 6, ¶ E(1), is
18 moot.

Since shortly after the filing of this lawsuit, plaintiff

19 Patterson has been receiving the very kosher diet for which he
20 requests

injunctive

relief.

Hence,

there

is

no

longer

any

21 “present controversy as to which [that] relief can be granted.”
22 See Johnson v. Rancho Santiago Cmty. Coll. Dist., 623 F.3d 1011,
23 1018 (9 th Cir. 2010) (citation omitted), cert. denied, 131 S.Ct.
24 2096, 179 L.Ed.2d 891 (U.S. 2011).

Consequently, the court

25 GRANTS defendants’ motion to dismiss for lack of subject matter
26 jurisdiction insofar as plaintiff is seeking injunctive relief
27 requiring

that

he

be

provided

28 particular claim is moot.
- 16 -

three

kosher

meals.

That

1
2 be

Because the court finds that none of these three claims can
cured

by

allegations

of

other

3 herein is granted with prejudice.

facts,

defendants’

motion

See Balsam v. Tucows Inc.,

4 627 F.3d 1158, 1163 n. 3 (9 th Cir. 2010) (citation omitted)
5 (“because no amendment could cure the defect in [plaintiff’s]
6 claims[,] [t]he district court did not err in dismissing the
7 complaint with prejudice[]”).
8

For the foregoing reasons, IT IS ORDERED that:

9

(1) the reference to the Magistrate Judge is WITHDRAWN as

10 to defendants’ “Amended Motion to Dismiss RLUIPA and Injunction
11 Claims” (Doc. 115);
12

(2)

Defendants’

“Amended

Motion

to

Dismiss

RLUIPA

13 Injunction Claims” (Doc. 115) is GRANTED with prejudice.
14

DATED this 26 th day of August, 2011.

15
16
17
18
19
20
21
22 copies to counsel of record and plaintiff pro se
23
24
25
26
27
28
- 17 -

and