Maloney v. Ryan et al

Filing 25

ORDER denying in all respects 16 Plaintiff's Motion for a Temporary Restraining Order and/or Preliminary Injunction. Signed by Senior Judge Robert C Broomfield on 7/31/2013.(TLB)

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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 Erik Scott Maloney, 13 Plaintiff, 14 15 vs. Charles L. Ryan, et al., 16 Defendants. ) ) ) ) ) ) ) ) ) ) No. CV 13-00314-PHX-RCB(BSB) O R D E R 17 18 19 Introduction Plaintiff pro se Erik Scott Maloney is a Muslim1 confined 20 in the Arizona State Prison Complex-Florence in Florence, 21 Arizona. 22 prayer and fasting during daylight hours. The Muslim holy month of Ramadan is observed by Meals are taken 23 24 1 The complaint contains no specific allegation that plaintiff Maloney is Muslim, although that is the obvious inference. Plaintiff Maloney’s supporting declarations explicitly state that he is a Muslim though. 26 Maloney Decl’n (Doc. 8) at 3:26, ¶ 2; Maloney Decl’n (Doc. 16), at 3:26-27, 27 ¶ 3. The defendants do not disagree, Resp. (Doc. 22) at 2:3; and, in fact, as in 2012, plaintiff Maloney is on the participation list for Ramadan this Mot., exh. I thereto 28 year.”28, 2013) at 3:16-17, ¶ (Doc. 22-1) Declaration of Michael Linderman (June 6. 25 1 pre-dawn and after sunset. 2 as Suhoor or Sahur, and the meal eaten after sunset as Iftar. 3 This year Ramadan began “on or about July 9, 2013" and 4 concludes on or about “August 7, 2013[,]” according to the 5 plaintiff. 6 The pre-dawn meal is referred to, Mot. (Doc. 16) at 1:24-25.2 In his second amended complaint (“SAC”), the plaintiff 7 alleges that just prior to Ramadan 2012, defendants created, 8 implemented or enforced a policy which inhibited the exercise 9 of his religion by knowingly setting the time for service of 10 breakfast at 5:00 a.m., after dawn, the religiously mandated 11 time for fasting had begun. 12 policy, plaintiff Maloney claims that during Ramadan 2012, he 13 was not provided with a nutritionally adequate diet, and he 14 was not allowed to engage in the exercise of “Sahur.”3 SAC 15 (Doc. 17) at 16 As a result of this alleged 11, ¶ 3. Presently before the court is plaintiff’s renewed motion 17 for a temporary restraining order “and/or” a preliminary 18 injunction.4 19 developed facts[,]” and focusing solely upon Ramadan 2013, 20 plaintiff Maloney is seeking injunctive relief requiring the 21 defendants to provide him with two hot meals per day, to Mot. (Doc. 16) at 1:13. Based upon “newly 22 2 23 24 All page number references are to the page numbers generated by the District Court’s electronic filing system, not to those hand-written by the plaintiff. 3 25 26 27 One of the seven necessary requirements to [a] proper Ramadan observance[]” is “Sahur[,]” defined as “the predawn meal[.]” Muhammad v. Klotz, 36 F.Supp.2d 240, 241 n. 3 (E.D.Pa. 1999); see also Rice v. Curry, 2012 WL 4902829, at *1 n. 2 (N.D.Cal. Oct. 12, 2012) (“Suhoor meals are eaten by Muslims before sunrise during the month of Ramadan.”) 4 28 Because the defendants have had notice of this motion it is more properly styled as one for a preliminary injunction. Compare Fed.R.Civ.P. 65(a) with Fed.R.Civ.P. 65(b). -2- 1 include fruits and vegetables. Declaration of Erik Scott 2 Maloney (July 9, 2013) (Doc. 16) at 3:24, ¶ 2; 6:1-5, ¶ 17. 3 Plaintiff also broadly seeks an injunction “requiring 4 defendants to allow for the religious exercise of Sahur. 5 at 6:7-8, ¶ 18. 6 being “given the opportunity to begin the days [sic] Fast 7 with the group prayer[.]” Mot. (Doc. 16) at 10:26-11:1. 8 9 Id. As plaintiff describes it, Sahur encompasses Defendants Charles L. Ryan, the Director of the Arizona Department of Corrections (“ADC”), and Michael Linderman, 10 ADC’s Administrator of Pastoral Activities,5 oppose this 11 motion arguing that they “are in compliance with their 12 constitutional obligations[]” because the plaintiff is 13 receiving nutritionally adequate meals during time frames 14 that allow for full compliance with Ramadan. 15 at 7:18-19. 16 it pertains to Sahur. Resp. (Doc. 22) Defendants did not address plaintiff’s motion as Background6 17 18 Factually, plaintiff’s motion differs markedly from his 19 SAC. 20 the SAC pertains to what transpired just prior to and during 21 Ramadan 2012, whereas the pending motion concerns Ramadan The primary, although not the only, difference is that 22 5 23 24 Counsel for defendants Ryan and Linderman executed a waiver of service of summons on behalf of defendant Mason on July 9, 2013 (Doc. 20), but defendants’ response does not include Mr. Mason. 6 25 26 27 28 “[C]onclusions reached at the preliminary injunction stage are subject to revision[.]” Walters v. National Ass’n of Radiation Survivors, 473 U.S. 305, 317, 105 S.Ct. 3180, 87 L.Ed.2d 220 (1985) (citing University of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 1834, 68 L.Ed.2d 175 (1981)), superseded by statute on other grounds as stated in Beamon v. Brown, 125 F.3d 965 (6th Cir. 1997). Therefore, “the findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding at trial on the merits[.]” Camenisch, 451 U.S. at 395, 101 S.Ct. 1830. -3- 1 2 2013. Count I of the SAC alleges violations of plaintiff’s 3 First Amendment rights based upon a policy supposedly 4 implemented just prior to Ramadan in July, 2012. 5 that policy set the time for service of breakfast at 5:00 6 a.m., after dawn, the religiously mandated time for fasting 7 had begun. 8 2012 he was forced to choose between eating breakfast or 9 violating the tenets of his religious beliefs. 10 Allegedly, As a result, plaintiff claims that during Ramadan That is not the situation this year, however. Currently, 11 ADC is serving Muslim practitioners, such as plaintiff 12 Maloney, with “a breakfast sack meal during the evening meal 13 prior to breakfast, so inmates can eat at whatever time they 14 choose in the morning.” 15 (June 28, 2013) (Doc. 22-1) at 3:11-13, ¶ 5 (emphasis added). 16 Plaintiff Maloney readily acknowledges this, pointing out 17 that the defendants have “abandoned” their 2012 Ramadan 18 policy of providing breakfast at 5:00 a.m. Mot. (Doc. 16) at 19 8:1-3; see also Reply (Doc. 24) at 8:4 (“[P]laintiff now 20 receives Food inorder [sic] to start his Fast.”) 21 Accordingly, as the court and the defendants are construing 22 this motion, plaintiff Maloney is not seeking any preliminary 23 injunctive relief as to count I. 24 such relief because this claim is moot insofar as Ramadan 25 2013 is concerned, as defendants are no longer enforcing the 26 alleged policy during Ramadan 2012 of serving breakfast to 27 Muslim practitioners at 5:00 a.m. 28 evidence that plaintiff is likely to suffer future Declaration of Michael Linderman -4- In fact, he could not seek Thus, because there is no 1 irreparable harm during this Ramadan with respect to the time 2 when breakfast is served, he is not entitled to preliminary 3 injunctive relief as to that claim. 4 Schulteis, 2010 WL 3341888, at *3 (E.D.Cal. Aug. 25, 2010) 5 (declining to issue a preliminary injunction because “[t]he 6 purpose of [such relief] is to prevent future irreparable 7 harm, not to remedy past harm[,] [and] [the] Plaintiff . . . 8 has failed to identify any specific threat of future 9 irreparable harm). See Villegas v. 10 Count II of the SAC alleges that plaintiff has been 11 subjected to cruel and unusual punishment in violation of the 12 Eighth Amendment and denied his Fourteenth Amendment rights 13 to due process and equal protection. 14 count is that during Ramadan 2012, the defendants, among 15 other things, knowingly provided plaintiff with “a 16 nutritionally inadequate diet[,]” by providing him with only 17 two meal portions a day instead of three. 18 8:3-4, ¶ 3. 19 2013, Muslim practitioners 20 “‘mega sack’ for breakfast[,]” they “would ‘be given a lunch 21 sack for dinner,” Monday through Friday. 22 (Doc. 16) at 4:15-17. 23 practitioners would receive a hot meal for dinner, as well as 24 the “‘mega sack’ . . . breakfast.” 25 that change, the plaintiff claims he is “still be[ing] 26 deprived” of adequate nutrition during Ramadan because he and 27 other Muslim practitioners are “only receiv[ing] . . . 8 hot The basis for this SAC (Doc. 17) at Prior to Ramadan 2013, however, on June 21, were advised that along with a Maloney Decl’n On Saturdays and Sundays, Muslim 28 -5- Id. at 4:19-20. Despite 1 meals in 30 days, while receiving 547 cold meals in a bag 2 which are void of any fruits or vegitables [sic].” 3 4:21-25 (footnote added). 4 Id. at Count III of the SAC alleges a Religious Land Use and 5 Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000-cc, 6 violation against defendants Ryan and Linderman. 7 too, is premised upon the alleged ADC policy of serving 8 breakfast after dawn during Ramadan 2012. 9 alleges that that supposed policy “effectively rendered the 10 religious exercise of Sahur impracticable” because he had to 11 choose “between ad[e]quate nutrition and observance of the 12 tenets of his Faith.” 13 however, the plaintiff has shifted his focus away from that 14 nutrition argument. 15 “[d]efendants are still not allowing for the obligatory 16 religious exercise of Sahur, because allegedly they are not 17 allowing him to “begin[] [his] Fast with a congregational 18 prayer[,]” 19 maintains is an “integral aspect[] of Sahur[.]” Reply (Doc. 20 24) at 8:16; see also Mot. (Doc. 16) at 10:26-11:1 (“Muslim 21 practitioner[]s should be given the opp[o]rtunity to begin 22 the day[’s] Fast with the group prayer, in accordance with 23 the religious exercise of Sahur[.]”) Id. at 12:5-7. This count, Plaintiff Maloney For present purposes, Instead, he asserts that the Maloney Decl’n (Doc. 16) at 5:5, ¶ 9, which he 24 25 26 27 28 7 By the court’s calculations, under this scenario the plaintiff actually would be receiving 8 hot meals and 52 cold meals during the 30 day period of Ramadan. -6- 1 Discussion 2 Preliminary Injunction 3 4 I. Governing Legal Standard A preliminary injunction is ‘an extraordinary and drastic 5 remedy, one that should not be granted unless the movant, by 6 a clear showing, carries the burden of persuasion.” 7 Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (quoting Mazurek 8 v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 9 162 (1997) (per curiam) (citation omitted)) (emphasis added Lopez v. 10 by Mazurek Court); see also Winter v. Natural Res. Def. 11 Council, Inc., 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 12 (2008) (citation omitted) (“A preliminary injunction is an 13 extraordinary remedy never awarded as a matter of right.”) A 14 plaintiff seeking a preliminary injunction must show: 15 [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest. 16 17 18 19 Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1289 20 (9th Cir. March 12, 2013) (quoting Winter, 555 U.S. at 20, 129 21 S.Ct. 365), rehearing en banc denied, --— F.3d ----, 2013 WL 22 3456673 (9th Cir. July 10, 2013). 23 only show that there are ‘serious questions going to the 24 merits’ — a lesser showing than likelihood of success on the 25 merits — then a preliminary injunction may still issue if the 26 ‘balance of hardships tips sharply in the plaintiff's favor,’ 27 and the other two Winter factors are satisfied.” 28 (quoting “But if a plaintiff can Id. at 1291 Alliance for the Wild Rockies v. Cottrell, 632 F.3d -7- 1 1127, 1135 (9th Cir. 2011) (emphasis added by Shell Offshore 2 Court). 3 test, “[t]he elements . . . must be balanced, so that a 4 stronger showing of one element may offset a weaker showing 5 of another.” 6 standard applies, the movant “has the burden of proof on each 7 element of the test.” 8 at *1 (D.Ariz. Dec. 20, 2012) (citing Environmental Council 9 of Sacramento v. Slater, 184 F.Supp.2d 1016, 1027 (E.D.Cal. 10 2000), citing in turn, Los Angeles Memorial Coliseum Comm’n 11 v. National Football League, 634 F.2d 1197, 1203 (9th 12 1980)). 13 Under this serious questions variant of the Winter Lopez, 680 F.3d at 1072. Regardless of which See Nance v. Miser, 2012 WL 6674404, Cir. Likewise, “[r]egardless of which test is applied, there 14 is a heightened burden where a plaintiff seeks a mandatory 15 preliminary injunction” as distinguished from a prohibitory 16 injunction. 17 (D.Ariz. Oct. 18, 2012). 18 subject to heightened scrutiny and should not be issued 19 unless the facts and law clearly favor the moving party.” 20 Dahl v. HEM Pharmaceuticals Corp., 7 F.3d 1399, 1403 (9th Cir. 21 1993) (internal quotation marks and citation omitted). 22 to determine whether there is a heightened burden in the 23 present case, the court must consider whether plaintiff 24 Maloney is seeking prohibitory or mandatory injunctive 25 relief. 26 See White v. Linderman, 2012 WL 5040850, at *2 “[M]andatory preliminary relief is Thus, An injunction which “‘prohibits a party from taking 27 action and preserves the status quo pending a determination 28 of the action on the merits[]’” is prohibitory. -8- Park Vill. 1 Apartment Tenants Ass’n v. Mortimer Howard Trust, 636 F.3d 2 1150, 1159 (9th Cir. 2011) (quoting Marlyn Nutraceuticals, 3 Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 878 (9th Cir. 4 2009) (alteration and internal quotation marks omitted)). 5 “The status quo means ‘the last, uncontested status which 6 preceded the pending controversy.’” N.D. ex rel. Parents 7 Acting as Guardians Ad Litem v. Haw. Dept’ of Educ., 600 F.3d 8 1104, 1112 n. 6 (9th Cir. 2010) (quoting Marlyn 9 Nutraceuticals, 571 F.3d at 879 (citation omitted)). In 10 contrast, “[a] mandatory injunction orders a responsible 11 party to take action,” and therefore “goes well beyond simply 12 maintaining the status quo[.]” Marlyn Nutraceuticals, 571 13 F.3d at 879 (internal quotation marks and citation omitted). 14 As such, mandatory injunctions are “‘particularly 15 disfavored.’” N.D., 600 F.3d at 1112 n. 6 (quoting Stanley v. 16 Univ. of S. California, 13 F.3d 1313, 1320 (9th Cir. 1994) 17 (citations omitted)). 18 Plaintiff Maloney is seeking an injunction requiring the 19 defendants to provide him with two hot meals daily, to 20 include fruits and vegetables, and allowing him to begin the 21 day’s fast with group prayer during Ramadan 2013. 22 the requested relief as to the provision of meals certainly 23 would change the status quo because presently, according to 24 plaintiff, over the course of Ramadan 2013 Muslim inmates 25 will receive a total of “only 8 hot meals[.]”8 26 (Doc. 16) at 4:21, ¶ 6. Granting Maloney Decl’n Likewise granting the requested 27 8 28 Presumably this is accurate given that defendants do not dispute or in any way refute this statement. -9- 1 relief as to group prayer, based upon the record as presently 2 constituted, also would change the status quo in that the 3 court would be ordering the defendants “to take action, . . . 4 go[ing] well beyond simply maintaining the status quo[.]” See 5 Marlyn Nutraceuticals, 571 F.3d at 879 (internal quotation 6 marks and citation omitted). 7 Maloney is seeking a disfavored mandatory injunction, his 8 motion “is subject to heightened scrutiny and should not be 9 issued unless the law and facts clearly favor [him].” See 10 11 Consequently, because plaintiff Dahl, 7 F.3d at 1403(emphasis added). Additionally, the Prison Litigation Reform Act imposes 12 requirements on prisoner litigants, such as plaintiff 13 Maloney, who are seeking preliminary injunctive relief 14 against prison officials. “Preliminary injunctive relief must 15 be narrowly drawn, extend no further than necessary to 16 correct the harm the court finds requires preliminary relief, 17 and be the least intrusive means necessary to correct that 18 harm.” 18 U.S.C. § 3626(a)(2). “Thus, § 3626(a)(2) limits the 19 courts power to grant preliminary injunctive relief to 20 inmates; ‘no longer may courts grant or approve relief that 21 binds prison administrators to do more than the 22 constitutional minimum.’” Nance, 2012 WL 6674404, at *1 23 (quoting Gilmore v. People of the State of Cal., 220 F.3d 24 987, 999 (9th Cir. 2000)). 25 Keeping these principles firmly in mind, the court will 26 consider whether plaintiff Maloney has met his burden of 27 proof as to each of the four preliminary injunction factors. 28 . . . - 10 - 1 II. 2 Going to the Merits Likelihood of Success on the Merits/Serious Questions 3 A. 4 “The Eighth Amendment’s prohibition against cruel and Eighth Amendment 5 unusual punishment protects prisoners not only from inhumane 6 methods of punishment but also from inhumane conditions of 7 confinement.” 8 Cir. 2006) (citing, inter alia, Farmer v. Brennan, 511 U.S. 9 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)). Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th As a 10 result, “prison officials may violate an inmate’s Eighth 11 Amendment rights when they deprive him of ‘a single 12 identifiable human need such as food, warmth, or exercise.’” 13 Thomas v. Ponder, 611 F.3d 1144, 1151 (9th Cir. 2010) (quoting 14 Wilson v. Seiter, 501 U.S. 294, 304, 111 S.Ct. 2321, 115 15 L.Ed.2d 271 (1991)). 16 prisoner sustains while in prison represents a constitutional 17 violation.” 18 (E.D.Cal. March 18, 2013) (citing Morgan v. Morgensen, 465 19 F.3d 1041, 1045 (9th Cir. 2006)), adopted, 2013 WL 1876142 20 (E.D.Cal. May 3, 2013). 21 “[B]ut[,] not every injury that a Norwood v. Cate, 2013 WL 1127604, at *4 “A prisoner’s claim does not rise to the level of an 22 Eighth Amendment violation unless (1) ‘the prison official 23 deprived the prisoner of the ‘minimal civilized measure of 24 life’s necessities,’’ and (2) ‘‘the prison official ‘acted 25 with deliberate indifference in doing so.’’” Norwood, 2013 WL 26 1127604, at *20 (quoting Toguchi v. Chung, 391 F.3d 1051, 27 1057 (9th Cir. 2004) (quoting, in turn, Hallett v. Morgan, 296 28 F.3d 732, 744 (9th Cir. 2002)). Thus, an inmate seeking to - 11 - 1 prove an Eighth Amendment violation must make both an 2 objective and a subjective showing. 3 must show “that the deprivation was ‘sufficiently serious’ to 4 form the basis for an Eighth Amendment violation.” 5 v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000)) (quoting Wilson, 6 501 U.S. at 298, 111 S.Ct. 2321), abrogated on other grounds 7 by Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 166 L.Ed.2d 8 798 (2007). 9 the deprivation occurred with deliberate indifference to the Objectively, an inmate Johnson Subjectively, an inmate must also show “‘‘that 10 inmate’s health or safety.’’” 11 (quoting Foster v. Runnels, 554 F.3d 807, 812 (9th Cir. 2009) 12 (quoting in turn Farmer, 511 U.S. at 13 Plaintiff Maloney has shown neither. 14 15 1. Thomas, 611 F.3d at 1150 834, 114 S.Ct. 1970). Objective Prong “Adequate food is a basic human need protected by the Keenan v. Hall, 83 F.3d 1083, 1091 (9th 16 Eighth Amendment.” 17 Cir. 1996) (citation omitted). 18 obligates prison officials “to provide inmates with 19 nutritionally adequate meals on a regular basis.” 20 554 F.3d at 810. 21 health.” 22 1993). 23 the defendants have met their Eighth Amendment obligation 24 with respect to the meals being served to plaintiff Maloney 25 during Ramadan 2013; and the plaintiff has failed to show 26 otherwise. 27 28 The Eighth Amendment thus Foster, Prison food must be “adequate to maintain LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. Here, despite the plaintiff’s contrary protestations, During this Ramadan, it is undisputed that plaintiff Maloney is daily being provided with a sack breakfast and a - 12 - 1 sack dinner. 2 see also 3 plaintiff declares that he is “still be[ing] deprived of 4 adequate nutrition” because the sack meals are “void of 5 fruits and vegitables [sic][,]” and he is receiving only two 6 hot meals per week. 7 acknowledges that during their weekend dinners, vegetables 8 are available to Muslim practitioners, but that “fruits and 9 vegitables [sic] are nowhere to be found during the week[.]” See Daniels Decl’n (Doc. 22-1), at 6:5-7, ¶ 4; Maloney Decl’n (Doc. 16) at 4:11-20, ¶ 5. Id. at 4:21-25. Yet, In his reply, plaintiff 10 Reply (Doc. 24) at 5:16-18. 11 are “sufficiently serious” to satisfy the objective prong of 12 an Eighth Amendment violation, however. 13 F.3d at 731 (internal quotation marks and citation omitted). 14 First of all, “[p]laintiff has no Eighth Amendment right 15 to meals of his choice.” Neither of these “deprivations” See Johnson, 217 Powers v. Washington Department of 16 Corrections, 2013 WL 1755790, at *14 (W.D.Wash. March 29, 17 2013), adopted by 2013 WL 175787 (W.D.Wash. April 24, 2013). 18 Nor, as plaintiff suggests in his reply, does he have a 19 constitutional right to “well-balanced meal[s]” comprised “of 20 the five basic food groups.” Reply (Doc. 24) at 5:15-16. 21 Rather, prison food simply “must be ‘adequate to maintain 22 health.’” 23 at 1456). Keenan, 83 F.3d at 1091 (quoting LeMaire, 12 F.3d And in fact, the plaintiff’s cited authority in his 24 reply adopts that same standard. See Smith v. Sullivan, 553 25 F.2d 373, 380 (5th Cir. 1977) (“A well-balanced meal, 26 containing sufficient nutritional value to preserve health, is 27 all that is required.”) ADC’s 2013 Ramadan meals easily meet 28 that standard, as defendants have shown, in that the - 13 - 1 plaintiff’s daily caloric and nutritional needs are being met. 2 Furthermore, nothing in the record even suggests that the 3 Ramadan 2013 meals are not sufficient to maintain plaintiff 4 Maloney’s health. 5 Angelo Daniels, ADC’s Deputy Warden of Security 6 Operations, is responsible for, among other things, 7 “oversight” of inmate meals, including “accommodation of the 8 religious standards in place for the specific faith to which 9 inmates in ADC’s custody belong.” Declaration of Angelo 10 Daniels (July 19, 2013) (Doc. 22-1) at 5:26-6:2, ¶ 3. 11 According to Mr. Daniels, “this year, ADC’s contractor for 12 inmate food services[] . . . adjusted [the Ramadan] meals 13 through the oversight of a dietician.” Id. at 6:3-5, ¶ 4. 14 “This adjustment involves an increase to the caloric value of 15 both the breakfast and dinner sack meals provided to Muslim 16 inmates participating in Ramadan.” Id. at 6:5-7, ¶ 4. This 17 “increase compensates for the lack of a mid-day lunch meal, in 18 compliance with Ramadan’s requirements[,]” and means that 19 “[i]n total, the calories and nutritional value of the two 20 Ramadan meals per day is the equivalent of three non-Ramadan 21 meals served to other inmates.” 22 Id. at 6:8-10, ¶ 4. In addition to this caloric increase, a registered 23 dietician employed by ADC’s contractor for inmate food 24 services analyzed ADC’s Ramadan 2013 menu, “for nutrition 25 adequacy . . . using the SQL Food Processor Analysis program 26 from the ESHA Corporation of Salem, Oregon.” 27 thereto (Doc. 22-1) at 8. Resp., exh. 3 After conducting that analysis, 28 ADC’s 2013 Ramadan menu was found to be in compliance with the - 14 - 1 contractual nutrition standards “(2900 calories +/-200)[,]” 2 and to “meet or exceed the recommended nutrient amounts as 3 specified by Recommended Dietary Allowance from the National 4 Academy of Science[.]” Id. 5 Additionally, ADC’s Inmate Datasearch indicates that 6 plaintiff Maloney’s date of birth is March 10, 1978.9 As a 35 7 year old male, the federal government recommends 2,400 8 calories daily for sedentary males; 2,600 calories daily for 9 moderately active males; and 3,000 calories daily for active 10 males. Resp., exh. 4 thereto (Doc. 22-1) at 10.10 ADC’s 2013 11 Ramadan menu comports with the federal government’s 12 recommended daily caloric intake for a 35 year old male like 13 the plaintiff. 14 Plaintiff Maloney offers no evidence to rebut the 15 foregoing. For example, although he complains of “continued 16 physical/mental pain and suffering[,]” he has not come forth 17 with any medical evidence to support that vague assertion. 18 19 20 21 22 23 24 25 26 27 28 9 The court takes judicial notice of this fact as it “is not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned[,]” i.e., the Arizona Department of Corrections website at http://www.azcorrections./gov/Inmate-DataSearch/Index (last visited July 25, 2013). See Fed.R.Evid. 201(b)(2). 10 The court takes judicial notice of these daily caloric intakes because these facts “can be accurately and readily determined from [a] source[] whose accuracy cannot reasonably be questioned[,]” i.e., a federal government report. See Fed.R.Evid. 201(b)(2). More specifically, these estimated calorie needs per day by age, gender, and physical activity level are found in an appendix to the “Dietary Guidelines for Americans, 2010,” released by the United States Department of Agriculture and the United States Department of Health and Human Services. http:/ Guidelines/2010 (last visited July 31, 2013). Furthermore, as an “official publication” of “a public authority[,]” this exhibit is self-authenticating pursuant to Fed.R.Evid. 902(5), and falls within the public records exception to the hearsay rule. See Fed.R.Evid. 803(8). - 15 - 1 See Maloney Decl’n (Doc. 16) at 5:1. He also fails to explain 2 how those vague complaints resulted from the exclusion of 3 fruits and vegetables from his diet during the week. Nor has 4 he attempted to demonstrate that the provided food is not 5 adequate to maintain his health; and he would be hard pressed 6 to make such a showing given defendants’ proof. “At best, 7 Plaintiff’s allegations simply show that, during Ramadan, he 8 [is] not receiv[ing] in his pre-sunrise and post-sunset meals 9 certain foods he prefers to eat.” See Muhammad v. Arizona 10 Dep’t of Corrections, 2013 WL 3864253, at *6 (D.Ariz. July 25, 11 2013). These alleged deprivations are not, however, 12 “sufficiently serious to form the basis for an Eighth 13 Amendment violation.” See Johnson, 217 F.3d at 731 (internal 14 quotation marks and citation omitted). 15 Just as plaintiff Maloney has no constitutional right 16 to food of his choice, he has no constitutional right to hot 17 meals. See LeMaire, 12 F.3d at 1456 (emphasis added) (“The 18 fact that the food occasionally contains foreign objects or 19 sometimes is served cold, while unpleasant, does not amount to 20 a constitutional deprivation.”); see also Brown-El v. Delo, 21 969 F.2d 644, 649 (8th Cir. 1992) (citation omitted) (inmate 22 plaintiff’s “claim that his constitutional rights were 23 violated when he was served cold food is frivolous[]”); Smith 24 v. Washington Dep’t of Corrections, 2013 WL 1499084, at *6 25 (W.D.Wash. March 6, 2013) (“Nor does the prison official’s 26 decision to provide box meals instead of a hot meal for the 27 one season of Ramadan rise to the threshold level of an Eighth 28 Amendment violation.”), adopted, 2013 WL 1499064 (W.D.Wash. - 16 - 1 April 11, 2013); and Lewis v. Corcoran State Prison Food 2 Services Dep’t, 2011 WL 3438419, at *2 (E.D.Cal. Aug. 4, 2011) 3 (citations omitted) (“Plaintiff’s claim regarding the prison 4 serving room temperature food does not rise to the level of 5 constitutional proportions and, thus, fails to state a 6 claim.”) 7 Simply put, ADC’s Ramadan 2013 menu provides plaintiff 8 Maloney with “nutritionally adequate meals on a regular 9 basis[,]” Foster, 554 F.3d at 810, which are “adequate to 10 maintain [his] health.” See LeMaire, 12 F.3d at 1456. 11 Eighth Amendment requires nothing more. The Consequently, 12 plaintiff Maloney has not established, as he must, the 13 objective prong of an Eighth Amendment violation – either 14 with respect to the lack of fruits and vegetables in the 15 Ramadan 2013 meals or because he is being provided with only 16 eight hot meals during this time.11 Clearly, then, he cannot 17 18 19 20 21 22 23 24 25 26 27 28 11 In his reply, for the first time, the plaintiff contends that the breakfast sacks provided during Ramadan 2013 are not nutritionally adequate because they contain two items – “processed lunch meat and sometimes milk[,]” which he implies could spoil due to lack of “proper refrigeration[] for approximately ten . . . hours before consuming. Reply (Doc. 24) at 6:11-16 (emphasis added). Supposedly, “[by] this time, the meat in the sack and/or the milk are unable to be consumed as they expose Muslim practitioners[]” to unspecified “immediate danger.” Id. at 6:16-18. At the outset, the court is compelled to comment that it stretches the imagination to suggest or imply, as does the plaintiff, that under the circumstances just described “processed lunch meat” would become inedible. In any event, this belated assertion does not alter the court’s conclusion that on this record plaintiff Maloney has not shown the “threshold deprivation necessary to form the basis of an Eighth Amendment violation.” See LeMaire, 12 F.3d at *1456. Plaintiff Maloney’s preliminary injunction motion includes a detailed recitation of the contents of the sack breakfast which he received on the first day of Ramadan this year. That breakfast contained the following: “(6) slices of wheat bread, (1) 3/4 oz. bag of tortilla chips, (1) slice of T-ham, (1) small bag of turkey, (4) slices of cheese, (1) hard boiled egg, (1) cereal bar, (2) tea bags, (1) coffee pack, [and] (2) packets of salad - 17 - 1 show a likelihood of success on the merits, or serious 2 questions going to the merits, as to this aspect of his Eighth 3 Amendment violation. 4 5 2. Subjective Prong Having found that plaintiff Maloney did not establish the 6 objective component of his Eighth Amendment claim, “the court 7 need not inquire as to the existence of the other[,]” 8 subjective component. See Powers, 2013 WL 1755790, at *11 9 (citing Helling v. McKinney, 509 U.S. 25, 35, 113 S.Ct. 2475, 10 125 L.Ed.2d 22 (1993)). Nonetheless, for the sake of 11 completeness, the court will proceed to the second prong – 12 deliberate indifference. 13 “‘Deliberate indifference’” has both subjective and 14 objective components.” Labatad v. Corrections Corp. of 15 America, 714 F.3d 1155, 1160 (9th Cir. 2013). “A prison 16 official must ‘be aware of facts from which the inference 17 could be drawn that a substantial risk of serious harm exists, 18 and . . . must also draw the inference. Id. (quoting Farmer, 19 511 U.S. at 837, 114 S.Ct. 1970). “Liability may follow only 20 if a prison official ‘knows that inmates face a substantial 21 risk of serious harm and disregards that risk by failing to 22 take reasonable measures to abate it.” Id. (quoting Farmer, 23 511 U.S. at 847, 114 S.Ct. 1970). 24 The record here is completely void of any evidence of 25 26 27 28 dressing.” Mot. (Doc. 16) at 5:15-18. Even if on the occasion when milk is included in these breakfast sacks for some reason it could not be consumed, the court fails to see how on this record that would establish the nutritional inadequacy of the Ramadan sack breakfasts. Consequently, this belated claim cannot salvage the plaintiff’s Eighth Amendment claim. - 18 - 1 deliberate indifference – subjective or objective. That 2 omission is understandable given, as the record demonstrates, 3 that during Ramadan 2013, plaintiff Maloney is being provided 4 with nutritionally adequate meals, which are adequate to 5 maintain his health. Thus, even if the plaintiff had been able 6 to establish (which he has not) that the Ramadan 2013 meals 7 denied him “the minimal civilized measure of life’s 8 necessities,” LeMaire, 12 F.3d at 1456 (internal quotation 9 marks omitted), he has not come forth with any evidence 10 whatsoever to show that defendants acted with deliberate 11 indifference. Accordingly, the plaintiff also has failed to 12 establish the subjective prong of an Eighth Amendment 13 violation. 14 In sum, plaintiff has not shown that he is likely to 15 succeed on the merits, or that there are serious questions 16 going to the merits, as to either element of his claimed 17 Eighth Amendment violation. 18 B. 19 Plaintiff Maloney’s reliance upon the Equal Protection Fourteenth Amendment 20 Clause of the Fourteenth Amendment is similarly unavailing. 21 The Equal Protection Clause requires that persons who are 22 similarly situated be treated alike. City of Cleburne v. 23 Cleburne Living Center, Inc., 473 U.S. 432, 439, 105 S.Ct. 24 3249, 87 L.Ed.2d 313 (1985). “To state a claim . . . for a 25 violation of the Equal Protection Claus . . . a plaintiff must 26 show that the defendants acted with an intent or purpose to 27 discriminate against him based on his membership in a 28 protected class.” Furnace v. Sullivan, 705 F.3d 1021, 1030 - 19 - 1 (9th Cir. 2013) (quotation marks and citations omitted). 2 “Prisoners are protected by the Equal Protection Clause from 3 intentional discrimination on the basis of their religion.” 4 Davis v. Flores, 2010 WL 2673458, at *13 (E.D.Cal. July 2, 5 2010) (citing, inter alia, Freeman v. Arpaio, 125 F.3d 732, 6 737 (9th Cir. 1997)). 7 Plaintiff Maloney contends that as a Muslim practitioner 8 he is “not being treated equal[]” to other inmates with 9 respect to his meals during Ramadan. 10 at 5:9-10, ¶ 10. Maloney Decl’n (Doc. 16) Plaintiff claims that he is being “fed less 11 than those housed in Level 5, max[imum] custody,” who receive 12 “Mega Sack” meals for breakfast and lunch, Monday through 13 Sunday, and hot meals for dinners, Monday through Sunday. 14 at 5:10-13, ¶ 10; and 15 Id. exh. II thereto (Doc. 16) at 21. Admittedly the plaintiff is receiving only two meals per 16 day during Ramadan. But, significantly, as explained earlier, 17 “the calories and nutritional value of th[os]e two . . . meals 18 . . . [are] the equivalent of three non-Ramadan meals served 19 to other inmates.” Daniels Decl’n (Doc. 22-1) at 6:5-10, ¶ 4. 20 This is fatal to plaintiff’s Equal Protection claim. Moreover, 21 the record is devoid of any facts which suggest defendants 22 intentionally discriminated against him by treating him 23 differently than other similarly situated inmates. Thus, as 24 with this Eighth Amendment claim, plaintiff has not met his 25 burden of showing either a likelihood of success on the 26 merits, or serious questions going to the merits, with respect 27 to his Fourteenth Amendment Equal Protection Claim. 28 . . . - 20 - 1 C. 2 In his supporting declaration, the plaintiff broadly RLUIPA 3 seeks a preliminary injunction, “requiring defendants to allow 4 for the religious exercise of Sahur.” 5 16) at 6:7-8, ¶ 18. Maloney Decl’n (Doc. As his motion makes clear, however, the 6 relief which plaintiff Maloney is seeking is actually quite 7 specific. He is seeking injunctive relief requiring the 8 defendants to allow for congregational or group prayer prior 9 to the beginning of the day’s fast during Ramadan 2013. See 10 Mot. (Doc. 16) 10:25-11:1. 11 Plaintiff’s reframing of his RLUIPA claim since the 12 filing of his SAC is understandable. As earlier noted, the 13 ADC is providing Muslim practitioners with their pre-dawn 14 meals in the evening, “so inmates can eat at whatever time 15 they choose in the morning.” 16 3:12-13, ¶ 5. Linderman Decl’n (Doc. 22-1) at As a result, plaintiff Maloney is not, as he 17 allegedly was during Ramadan 2012, being deprived of his pre18 dawn meal, i.e. Sahur. Therefore, this aspect of plaintiff’s 19 RLUIPA claim is moot, at least as it pertains to Ramadan 2013. 20 In turn, at this point, the alleged 2012 Ramadan policy cannot 21 be the basis for any injunctive relief. 22 Plaintiff’s RLUIPA claim cannot form the basis for a 23 preliminary injunction for another reason. “Any injunctive 24 relief must be tailored to the specific harm being complained 25 of[.]” Rhoades v. Reinke, 671 F.3d 856 860 (9th Cir. 2011) 26 (citations omitted) (emphasis added). Indeed, it would be an 27 abuse of this court’s discretion to issue an overbroad 28 injunction. See Rodriguez v. Robbins, 715 F.3d 1127, 1133 (9th - 21 - 1 Cir. 2013) (citation omitted). 2 In the present case, the nature of the injunction which 3 plaintiff Maloney is seeking reaches beyond the scope of the 4 SAC. That is so because the sought injunctive relief, being 5 allowed to engage in congregational prayer prior to the 6 beginning of the day’s fast, is not the specific harm of which 7 he complains in his SAC. Rather, as previously explained, the 8 harm, as the SAC alleges, is inadequate nutrition as a result 9 of ADC’s policy of not providing Muslim practitioners with 10 breakfast prior to dawn during Ramadan 2012. 11 17) at 11-12. See SAC (Doc. Accordingly, the court finds that there is not 12 a likelihood of success on the merits, nor are there serious 13 questions going to the merits, of plaintiff’s RLUIPA claim as 14 he frames it for purposes of this motion. See Hylton v. 15 Anytime Towing, 2012 WL 3563874, at *1 (S.D.Cal. Aug. 17, 16 2012) (denying injunction motion “because the relief sought is 17 beyond the scope of the operative complaint” in that the 18 injunction and the first amended complaint were “based on 19 entirely different facts and circumstances”); see also 20 Quiksilver, Inc. v. Kymsta Corp., 466 F.3d 749, 754 n. 4 (9th 21 Cir. 2006) (district court’s inclusion in an injunction of 22 prohibition going “beyond the claims asserted in the 23 complaint” was “in contravention of well-settled Ninth Circuit 24 authority holding that a court may not, without the consent of 25 all persons affected, enter a judgment which goes beyond the 26 claim asserted in the pleadings[]”) (internal quotation marks 27 and citation omitted). 28 . . . - 22 - 1 III. 2 Likelihood of Irreparable Harm In general, “a court of equity should not act, . . . , 3 when the moving party . . . will not suffer irreparable injury 4 if denied equitable relief.” Younger v. Harris, 401 U.S. 37, 5 44, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). The burden is on the 6 plaintiff to “establish that irreparable harm is likely, not 7 just possible, in order to obtain a preliminary injunction.” 8 Center for Food Safety v. Vilsack, 636 F.3d 1166, 1172 (9th 9 Cir. 2011) (internal quotation marks and citation omitted) 10 (emphasis added by Vilsack Court). Additionally, where, as 11 here, the moving party is seeking a mandatory injunction, 12 ordinarily such an injunction will not be “granted unless 13 extreme or very serious damage will result[.]” Park Village, 14 636 F.3d at 1160 (internal quotation marks and citation 15 omitted). 16 In seeking to demonstrate irreparable harm, plaintiff 17 Maloney contends that in the absence of a preliminary 18 injunction requiring that during Ramadan 2013 he be provided 19 with two hot meals a day, he “faces a . . . very . . . real[] 20 threat of denial of adequate nutrition . . . i[n] . . . 21 violation of” the Eighth Amendment. 22 (citations omitted). clear Mot. (Doc. 16) at 8:22-26 In a similar vein, the plaintiff 23 sweepingly contends that this purported “continuing 24 deprivation of [his] constitutional rights constitutes 25 irreparable harm.” 26 Id. at 9:5-6 (citations omitted). To be sure, “‘‘the deprivation of constitutional rights 27 ‘unquestionably constitutes irreparable injury.’’” Rodriguez, 28 715 F.3d at 1144 (quoting Melendres v. Arpaio, 695 F.3d 990, - 23 - 1 1002 (9th Cir. 2012) (quoting in turn Elrod v. Burns, 427 U.S. 2 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976)). As already 3 explained though, the plaintiff has not shown a deprivation of 4 his constitutional rights. Hence, he cannot establish 5 irreparable injury on that basis. 6 Plaintiff fares no better with his bald assertion that he 7 will “suffer irreparable harm in the form of continued 8 physical and mental pain and suffering[]” if, during Ramadan 9 2013, he is not provided two hot meals a day. 10 (Doc. 16) at 4:26-5:1. Maloney Decl’n This wholly unsubstantiated and vague 11 claim does not show the resultant extreme or very serious 12 damage which usually must be shown before a mandatory 13 injunction will issue. 14 See Park Village, 636 F.3d at 1160. Lastly, plaintiff Maloney’s motion is completely silent 15 as to how he will sustain irreparable harm in the absence of 16 an injunction requiring ADC to allow for group or 17 congregational prayer as part of Sahur during Ramadan 2013. 18 Plaintiff, therefore, has not meet his burden of showing 19 irreparable harm as to either aspect of his preliminary 20 injunction motion. 21 IV. Balance of Equities 22 Before addressing this factor, some clarification is 23 necessary. In arguing that “[t]he balance of equities lies in 24 Defendants’ favor, not Plaintiff’s[,]” the defendants are 25 assuming that if the court were to issue an injunction, it 26 would require “ADC to provide hot meals to all Muslim inmates 27 throughout the State of Arizona[.]” See Resp. (Doc. 22) at 28 6:24-25; and at 7:2. - 24 - 1 For two reasons, however, the court would not issue such 2 a broad injunction. First, the SAC does not seek class 3 certification, or even suggest that possibility. While his 4 pending motion does seek “class-wide relief[,]”12 Mot. (Doc. 5 16) at 12:19 (emphasis omitted), because the court has not 6 certified a class herein, such a sweeping injunction would be 7 impermissibly overbroad. 8 Second, to the extent plaintiff’s motion can be read as 9 seeking class certification pursuant to Fed.R.Civ.P. 23, the 10 court denies such request. Plaintiff Maloney is not an 11 attorney; he is appearing pro se in this action. 12 “Accordingly, although [p]laintiff may appear on his own 13 behalf, he may not appear as an attorney for other persons in 14 a class action.” Chapa v. Arpaio, 2013 WL 474367, at *6 15 (D.Ariz. Feb. 7, 2013) (citing McShane v. United States, 366 16 F.2d 286, 288 (9th Cir. 1966) (nonlawyer had no authority to 17 appear as an attorney for other persons in a purported class 18 action); Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 19 1975) (plain error to permit an inmate proceeding pro se to 20 represent fellow inmates in a class action)); see also Johns 21 v. County of San Diego, 114 F.3d 874, 876 (9th Cir. 1997) 22 (“While a non-attorney may appear pro se on his own behalf, 23 ‘[h]e has no authority to appear as an attorney for others 24 than himself.’”) (quoting C.E. Pope Equity Trust v. United 25 States, 818 F.2d 696, 697 (9th Cir. 1987)). 26 27 28 12 More specifically, “to provide complete relief to the Plaintiff[,]” he asserts that this court’s order should “include all [M]uslim practitioners within [ADC][.]” Mot. (Doc. 16) at 12:21-22. - 25 - 1 Even if the court were to issue a preliminary injunction 2 requiring the defendants to provide only the plaintiff with 3 two hot meals a day during Ramadan 2013, there is a 4 possibility of harm to the defendants in that other inmates, 5 particularly Muslim practitioners, who might perceive that 6 plaintiff Maloney is receiving preferential treatment. More 7 importantly, though, there is no possibility of harm to the 8 plaintiff, and he has not shown otherwise, if he is not 9 provided with two hot meals daily during Ramadan 2013. That 10 is because his current Ramadan meals are nutritionally 11 adequate and provide him with enough calories to allow the 12 plaintiff to maintain his health. Therefore, the court finds 13 that the balance of equities factor is neutral, or tips 14 slightly in favor of defendants, but certainly not sharply in” 15 plaintiff’s favor, as would be required, assuming he had met 16 the lesser standard of serious questions going to the merits 17 (which he has not). See Shell Offshore, 709 F.3d at 1291 18 (internal quotation marks and citation omitted) (emphasis 19 added by Shell Offshore Court). 20 V. 21 Public Interest Plaintiff Maloney asserts that an injunction is in the 22 public interest “because it is always in the public interest 23 for public officials to obey the law, especially the 24 constitution.” Mot. (Doc. 16) at 12:9-11 (citations omitted). 25 Plaintiff is correct: “[I]t is always in the public interest 26 to prevent the violation of a party’s constitutional rights.” 27 Melendres, 695 F.3d at 1002 (internal quotation marks and 28 citations omitted). Of course, in this case, as previously - 26 - 1 discussed, the defendant public officials are obeying the 2 constitution. 3 In any event, the court must take into account that 4 “[t]he public interest inquiry primarily addresses [the] 5 impact on non-parties rather than parties.” Sammartano v. 6 First Judicial Dist. Court, in & for County of Carson City, 7 303 F.3d 959, 974 (9th Cir. 2002). “When the reach of an 8 injunction is narrow, limited only to the parties, and has no 9 impact on non-parties, the public interest will be at most a 10 neutral factor in the analysis rather than one that favor[s] 11 [granting or] denying the preliminary injunction.” Stormans, 12 Inc. v. Selecky, 586 F.3d 1109, 1138–39 (9th Cir. 2009) 13 (internal quotation marks and citation omitted). Here, 14 because the proposed preliminary injunction addresses ADC’s 15 2013 Ramadan meals, and it would not impact non-parties, this 16 factor is largely neutral. To the extent that this factor 17 affects the court’s analysis, however, it favors the 18 defendants because the court would be requiring a change in 19 the status quo with respect to prison administration. Thus, 20 as with the other three preliminary injunction factors, 21 plaintiff Maloney has not met his burden on this one either. 22 Conclusion 23 For the reasons discussed herein, the court finds that 24 plaintiff has not met his heightened burden of showing that he 25 is entitled to “the extraordinary and drastic remedy” of a 26 preliminary injunction because he has not met his burden of 27 proof as to any of the four preliminary injunction factors. 28 See Lopez, 680 F.3d at 1071 (internal quotation marks and - 27 - 1 citations omitted). Plaintiff Maloney has not shown that: 2 (1) he is likely to succeed on the merits, or that there are 3 serious questions going to the merits as to his Eighth 4 Amendment, Fourteenth Amendment Equal Protection and RLUIPA 5 claims; (2) he is likely to suffer irreparable harm in the 6 absence of preliminary relief; (3) the balance of equities 7 tips in his favor; and (4) an injunction is in the public 8 interest. 9 Thus, IT IS HEREBY ORDERED that plaintiff Erik Scott Maloney’s 10 “Motion for a Temporary Restraining Order and/or Preliminary 11 Injunction” (Doc. 16) is DENIED in all respects.13 12 DATED this 31st day of July, 2013. 13 14 15 16 17 18 19 20 21 22 23 24 25 Copies to counsel of record and plaintiff pro se 26 27 13 28 This court’s holding renders moot plaintiff’s argument that he should not be required to post security. - 28 -

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