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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1 WO 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 11 12 Barry Northcross Patterson, 13 Plaintiff, 14 15 vs. Charles L. Ryan, et al., 16 Defendants. ) ) ) ) ) ) ) ) ) No. CV 05-1159-PHX-RCB O R D E R ) 17 18 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

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