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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Erik Scott Maloney,

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Plaintiff,

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vs.
Charles L. Ryan, et al.,

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Defendants.

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No. CV 13-00314-PHX-RCB(BSB)
O R D E R

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Introduction
Plaintiff pro se Erik Scott Maloney is a Muslim1 confined

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in the Arizona State Prison Complex-Florence in Florence,

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Arizona.

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prayer and fasting during daylight hours.

The Muslim holy month of Ramadan is observed by
Meals are taken

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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.
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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.

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pre-dawn and after sunset.

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as Suhoor or Sahur, and the meal eaten after sunset as Iftar.

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This year Ramadan began “on or about July 9, 2013" and

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concludes on or about “August 7, 2013[,]” according to the

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plaintiff.

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The pre-dawn meal is referred to,

Mot. (Doc. 16) at 1:24-25.2

In his second amended complaint (“SAC”), the plaintiff

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alleges that just prior to Ramadan 2012, defendants created,

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implemented or enforced a policy which inhibited the exercise

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of his religion by knowingly setting the time for service of

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breakfast at 5:00 a.m., after dawn, the religiously mandated

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time for fasting had begun.

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policy, plaintiff Maloney claims that during Ramadan 2012, he

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was not provided with a nutritionally adequate diet, and he

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was not allowed to engage in the exercise of “Sahur.”3 SAC

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(Doc. 17) at

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As a result of this alleged

11, ¶ 3.

Presently before the court is plaintiff’s renewed motion

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for a temporary restraining order “and/or” a preliminary

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injunction.4

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developed facts[,]” and focusing solely upon Ramadan 2013,

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plaintiff Maloney is seeking injunctive relief requiring the

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defendants to provide him with two hot meals per day, to

Mot. (Doc. 16) at 1:13.

Based upon “newly

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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.
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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.”)
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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).

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include fruits and vegetables. Declaration of Erik Scott

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Maloney (July 9, 2013) (Doc. 16) at 3:24, ¶ 2; 6:1-5, ¶ 17.

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Plaintiff also broadly seeks an injunction “requiring

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defendants to allow for the religious exercise of Sahur.

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at 6:7-8, ¶ 18.

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being “given the opportunity to begin the days [sic] Fast

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with the group prayer[.]” Mot. (Doc. 16) at 10:26-11:1.

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Id.

As plaintiff describes it, Sahur encompasses

Defendants Charles L. Ryan, the Director of the Arizona
Department of Corrections (“ADC”), and Michael Linderman,

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ADC’s Administrator of Pastoral Activities,5 oppose this

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motion arguing that they “are in compliance with their

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constitutional obligations[]” because the plaintiff is

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receiving nutritionally adequate meals during time frames

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that allow for full compliance with Ramadan.

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at 7:18-19.

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it pertains to Sahur.

Resp. (Doc. 22)

Defendants did not address plaintiff’s motion as

Background6

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Factually, plaintiff’s motion differs markedly from his

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SAC.

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the SAC pertains to what transpired just prior to and during

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Ramadan 2012, whereas the pending motion concerns Ramadan

The primary, although not the only, difference is that

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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.
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“[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.

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2013.
Count I of the SAC alleges violations of plaintiff’s

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First Amendment rights based upon a policy supposedly

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implemented just prior to Ramadan in July, 2012.

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that policy set the time for service of breakfast at 5:00

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a.m., after dawn, the religiously mandated time for fasting

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had begun.

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2012 he was forced to choose between eating breakfast or

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violating the tenets of his religious beliefs.

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Allegedly,

As a result, plaintiff claims that during Ramadan

That is not the situation this year, however. Currently,

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ADC is serving Muslim practitioners, such as plaintiff

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Maloney, with “a breakfast sack meal during the evening meal

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prior to breakfast, so inmates can eat at whatever time they

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choose in the morning.”

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(June 28, 2013) (Doc. 22-1) at 3:11-13, ¶ 5 (emphasis added).

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Plaintiff Maloney readily acknowledges this, pointing out

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that the defendants have “abandoned” their 2012 Ramadan

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policy of providing breakfast at 5:00 a.m. Mot. (Doc. 16) at

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8:1-3; see also Reply (Doc. 24) at 8:4 (“[P]laintiff now

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receives Food inorder [sic] to start his Fast.”)

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Accordingly, as the court and the defendants are construing

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this motion, plaintiff Maloney is not seeking any preliminary

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injunctive relief as to count I.

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such relief because this claim is moot insofar as Ramadan

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2013 is concerned, as defendants are no longer enforcing the

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alleged policy during Ramadan 2012 of serving breakfast to

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Muslim practitioners at 5:00 a.m.

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evidence that plaintiff is likely to suffer future

Declaration of Michael Linderman

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In fact, he could not seek

Thus, because there is no

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irreparable harm during this Ramadan with respect to the time

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when breakfast is served, he is not entitled to preliminary

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injunctive relief as to that claim.

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Schulteis, 2010 WL 3341888, at *3 (E.D.Cal. Aug. 25, 2010)

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(declining to issue a preliminary injunction because “[t]he

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purpose of [such relief] is to prevent future irreparable

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harm, not to remedy past harm[,] [and] [the] Plaintiff . . .

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has failed to identify any specific threat of future

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irreparable harm).

See Villegas v.

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Count II of the SAC alleges that plaintiff has been

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subjected to cruel and unusual punishment in violation of the

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Eighth Amendment and denied his Fourteenth Amendment rights

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to due process and equal protection.

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count is that during Ramadan 2012, the defendants, among

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other things, knowingly provided plaintiff with “a

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nutritionally inadequate diet[,]” by providing him with only

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two meal portions a day instead of three.

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8:3-4, ¶ 3.

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2013, Muslim practitioners

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“‘mega sack’ for breakfast[,]” they “would ‘be given a lunch

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sack for dinner,” Monday through Friday.

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(Doc. 16) at 4:15-17.

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practitioners would receive a hot meal for dinner, as well as

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the “‘mega sack’ . . . breakfast.”

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that change, the plaintiff claims he is “still be[ing]

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deprived” of adequate nutrition during Ramadan because he and

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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

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Id. at 4:19-20.

Despite

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meals in 30 days, while receiving 547 cold meals in a bag

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which are void of any fruits or vegitables [sic].”

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4:21-25 (footnote added).

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Id. at

Count III of the SAC alleges a Religious Land Use and

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Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000-cc,

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violation against defendants Ryan and Linderman.

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too, is premised upon the alleged ADC policy of serving

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breakfast after dawn during Ramadan 2012.

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alleges that that supposed policy “effectively rendered the

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religious exercise of Sahur impracticable” because he had to

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choose “between ad[e]quate nutrition and observance of the

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tenets of his Faith.”

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however, the plaintiff has shifted his focus away from that

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nutrition argument.

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“[d]efendants are still not allowing for the obligatory

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religious exercise of Sahur, because allegedly they are not

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allowing him to “begin[] [his] Fast with a congregational

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prayer[,]”

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maintains is an “integral aspect[] of Sahur[.]” Reply (Doc.

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24) at 8:16; see also Mot. (Doc. 16) at 10:26-11:1 (“Muslim

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practitioner[]s should be given the opp[o]rtunity to begin

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the day[’s] Fast with the group prayer, in accordance with

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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

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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.

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Discussion

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Preliminary Injunction

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I.

Governing Legal Standard
A preliminary injunction is ‘an extraordinary and drastic

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remedy, one that should not be granted unless the movant, by

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a clear showing, carries the burden of persuasion.”

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Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (quoting Mazurek

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v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d

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162 (1997) (per curiam) (citation omitted)) (emphasis added

Lopez v.

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by Mazurek Court); see also Winter v. Natural Res. Def.

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Council, Inc., 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249

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(2008) (citation omitted) (“A preliminary injunction is an

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extraordinary remedy never awarded as a matter of right.”) A

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plaintiff seeking a preliminary injunction must show:

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[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.

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Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1289

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(9th Cir. March 12, 2013) (quoting Winter, 555 U.S. at 20, 129

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S.Ct. 365), rehearing en banc denied, --— F.3d ----, 2013 WL

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3456673 (9th Cir. July 10, 2013).

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only show that there are ‘serious questions going to the

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merits’ — a lesser showing than likelihood of success on the

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merits — then a preliminary injunction may still issue if the

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‘balance of hardships tips sharply in the plaintiff's favor,’

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and the other two Winter factors are satisfied.”

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(quoting

“But if a plaintiff can

Id. at 1291

Alliance for the Wild Rockies v. Cottrell, 632 F.3d
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1127, 1135 (9th Cir. 2011) (emphasis added by Shell Offshore

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Court).

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test, “[t]he elements . . . must be balanced, so that a

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stronger showing of one element may offset a weaker showing

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of another.”

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standard applies, the movant “has the burden of proof on each

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element of the test.”

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at *1 (D.Ariz. Dec. 20, 2012) (citing Environmental Council

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of Sacramento v. Slater, 184 F.Supp.2d 1016, 1027 (E.D.Cal.

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2000), citing in turn, Los Angeles Memorial Coliseum Comm’n

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v. National Football League, 634 F.2d 1197, 1203 (9th

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1980)).

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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

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is a heightened burden where a plaintiff seeks a mandatory

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preliminary injunction” as distinguished from a prohibitory

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injunction.

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(D.Ariz. Oct. 18, 2012).

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subject to heightened scrutiny and should not be issued

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unless the facts and law clearly favor the moving party.”

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Dahl v. HEM Pharmaceuticals Corp., 7 F.3d 1399, 1403 (9th Cir.

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1993) (internal quotation marks and citation omitted).

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to determine whether there is a heightened burden in the

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present case, the court must consider whether plaintiff

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Maloney is seeking prohibitory or mandatory injunctive

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relief.

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See White v. Linderman, 2012 WL 5040850, at *2
“[M]andatory preliminary relief is

Thus,

An injunction which “‘prohibits a party from taking

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action and preserves the status quo pending a determination

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of the action on the merits[]’” is prohibitory.
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Park Vill.

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Apartment Tenants Ass’n v. Mortimer Howard Trust, 636 F.3d

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1150, 1159 (9th Cir. 2011) (quoting Marlyn Nutraceuticals,

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Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 878 (9th Cir.

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2009) (alteration and internal quotation marks omitted)).

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“The status quo means ‘the last, uncontested status which

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preceded the pending controversy.’” N.D. ex rel. Parents

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Acting as Guardians Ad Litem v. Haw. Dept’ of Educ., 600 F.3d

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1104, 1112 n. 6 (9th Cir. 2010) (quoting Marlyn

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Nutraceuticals, 571 F.3d at 879 (citation omitted)).

In

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contrast, “[a] mandatory injunction orders a responsible

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party to take action,” and therefore “goes well beyond simply

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maintaining the status quo[.]” Marlyn Nutraceuticals, 571

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F.3d at 879 (internal quotation marks and citation omitted).

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As such, mandatory injunctions are “‘particularly

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disfavored.’” N.D., 600 F.3d at 1112 n. 6 (quoting Stanley v.

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Univ. of S. California, 13 F.3d 1313, 1320 (9th Cir. 1994)

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(citations omitted)).

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Plaintiff Maloney is seeking an injunction requiring the

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defendants to provide him with two hot meals daily, to

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include fruits and vegetables, and allowing him to begin the

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day’s fast with group prayer during Ramadan 2013.

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the requested relief as to the provision of meals certainly

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would change the status quo because presently, according to

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plaintiff, over the course of Ramadan 2013 Muslim inmates

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will receive a total of “only 8 hot meals[.]”8

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(Doc. 16) at 4:21, ¶ 6.

Granting

Maloney Decl’n

Likewise granting the requested

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Presumably this is accurate given that defendants do not dispute
or in any way refute this statement.

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relief as to group prayer, based upon the record as presently

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constituted, also would change the status quo in that the

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court would be ordering the defendants “to take action, . . .

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go[ing] well beyond simply maintaining the status quo[.]” See

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Marlyn Nutraceuticals, 571 F.3d at 879 (internal quotation

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marks and citation omitted).

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Maloney is seeking a disfavored mandatory injunction, his

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motion “is subject to heightened scrutiny and should not be

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issued unless the law and facts clearly favor [him].” See

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Consequently, because plaintiff

Dahl, 7 F.3d at 1403(emphasis added).
Additionally, the Prison Litigation Reform Act imposes

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requirements on prisoner litigants, such as plaintiff

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Maloney, who are seeking preliminary injunctive relief

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against prison officials. “Preliminary injunctive relief must

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be narrowly drawn, extend no further than necessary to

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correct the harm the court finds requires preliminary relief,

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and be the least intrusive means necessary to correct that

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harm.” 18 U.S.C. § 3626(a)(2). “Thus, § 3626(a)(2) limits the

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courts power to grant preliminary injunctive relief to

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inmates; ‘no longer may courts grant or approve relief that

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binds prison administrators to do more than the

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constitutional minimum.’” Nance, 2012 WL 6674404, at *1

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(quoting Gilmore v. People of the State of Cal., 220 F.3d

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987, 999 (9th Cir. 2000)).

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Keeping these principles firmly in mind, the court will

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consider whether plaintiff Maloney has met his burden of

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proof as to each of the four preliminary injunction factors.

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II.

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Going to the Merits

Likelihood of Success on the Merits/Serious Questions

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A.

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“The Eighth Amendment’s prohibition against cruel and

Eighth Amendment

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unusual punishment protects prisoners not only from inhumane

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methods of punishment but also from inhumane conditions of

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confinement.”

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Cir. 2006) (citing, inter alia, Farmer v. Brennan, 511 U.S.

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825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)).

Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th

As a

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result, “prison officials may violate an inmate’s Eighth

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Amendment rights when they deprive him of ‘a single

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identifiable human need such as food, warmth, or exercise.’”

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Thomas v. Ponder, 611 F.3d 1144, 1151 (9th Cir. 2010) (quoting

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Wilson v. Seiter, 501 U.S. 294, 304, 111 S.Ct. 2321, 115

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L.Ed.2d 271 (1991)).

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prisoner sustains while in prison represents a constitutional

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violation.”

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(E.D.Cal. March 18, 2013) (citing Morgan v. Morgensen, 465

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F.3d 1041, 1045 (9th Cir. 2006)), adopted, 2013 WL 1876142

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(E.D.Cal. May 3, 2013).

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“[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

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Eighth Amendment violation unless (1) ‘the prison official

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deprived the prisoner of the ‘minimal civilized measure of

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life’s necessities,’’ and (2) ‘‘the prison official ‘acted

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with deliberate indifference in doing so.’’” Norwood, 2013 WL

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1127604, at *20 (quoting Toguchi v. Chung, 391 F.3d 1051,

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1057 (9th Cir. 2004) (quoting, in turn, Hallett v. Morgan, 296

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F.3d 732, 744 (9th Cir. 2002)).

Thus, an inmate seeking to

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prove an Eighth Amendment violation must make both an

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objective and a subjective showing.

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must show “that the deprivation was ‘sufficiently serious’ to

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form the basis for an Eighth Amendment violation.”

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v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000)) (quoting Wilson,

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501 U.S. at 298, 111 S.Ct. 2321), abrogated on other grounds

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by Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 166 L.Ed.2d

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798 (2007).

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the deprivation occurred with deliberate indifference to the

Objectively, an inmate

Johnson

Subjectively, an inmate must also show “‘‘that

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inmate’s health or safety.’’”

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(quoting Foster v. Runnels, 554 F.3d 807, 812 (9th Cir. 2009)

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(quoting in turn Farmer, 511 U.S. at

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Plaintiff Maloney has shown neither.

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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

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Eighth Amendment.”

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Cir. 1996) (citation omitted).

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obligates prison officials “to provide inmates with

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nutritionally adequate meals on a regular basis.”

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554 F.3d at 810.

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health.”

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1993).

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the defendants have met their Eighth Amendment obligation

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with respect to the meals being served to plaintiff Maloney

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during Ramadan 2013; and the plaintiff has failed to show

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otherwise.

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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
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sack dinner.

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see also

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plaintiff declares that he is “still be[ing] deprived of

4

adequate nutrition” because the sack meals are “void of

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fruits and vegitables [sic][,]” and he is receiving only two

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hot meals per week.

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acknowledges that during their weekend dinners, vegetables

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are available to Muslim practitioners, but that “fruits and

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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

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Reply (Doc. 24) at 5:16-18.

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are “sufficiently serious” to satisfy the objective prong of

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an Eighth Amendment violation, however.

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F.3d at 731 (internal quotation marks and citation omitted).

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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
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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
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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.
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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:/www.cnpp.usda.gov/Publications/Dietary 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 -