Mootry v. Flores et al

Filing 66

FINDINGS and RECOMMENDATIONS Regarding Defendants' Motion to Dismiss Plaintiff's Second Amended Complaint 64 , signed by Magistrate Judge Barbara A. McAuliffe on 3/25/13. Referred to Judge O'Neill; Objections due within 14-days. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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MICHAEL MOOTRY,

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CASE NO. 1:09-cv-01252-LJO-BAM PC

Plaintiff,

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FINDINGS AND RECOMMENDATIONS
REGARDING DEFENDANTS’ MOTION TO
DISMISS PLAINTIFF’S SECOND AMENDED
COMPLAINT

v.

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E. G. FLORES, et al.,

(ECF No. 64)

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Defendants.

OBJECTIONS DUE WITHIN FOURTEEN
DAYS

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I.

Background

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Plaintiff Michael Mootry (“Plaintiff”), a state prisoner proceeding pro se and in forma

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pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on July 20, 2009. This action is

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proceeding on the second amended complaint, filed on May 1, 2012, against Defendants Hedgpeth,

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Flores, Wegman, Lewis and Cabrera for denial of Jumu’ah services in violation of the Free Exercise

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Clause of the First Amendment.

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On July 5, 2012, Defendants Hedgpeth, Flores, Lewis and Wegman filed a motion to dismiss

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for failure to state a claim and for qualified immunity. Plaintiff did not file an opposition. The

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motion is deemed submitted. Local Rule 230(l).

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II.

Second Amended Complaint Allegations

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Plaintiff is a Muslim prisoner who was incarcerated at Kern Valley State Prison (“KVSP”)

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from June 2006 through July 20, 2010. In December 2007, Defendant Hedgpeth enforced a KVSP

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Department of Operations Manual (“DOM”) Supplement, which almost completely abolished the
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Muslim inmates’ rights and ability to practice their religion. Defendant Hedgpeth implemented a

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policy banning inmate ministers from leading religious services without the direct supervision of a

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hired chaplain or volunteer. From October 2007 until April 2009, KVSP Muslim inmates were not

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accommodated with a hired chaplain to supervise Jumu’ah prayer services.

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In March 2008, Defendant E.G. Flores, active warden and head of religious programming on

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“A” yard at KVSP, officially abolished Jumu’ah prayer services for Muslims, including Plaintiff.

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Defendant Flores enforced the ban on inmate ministers. Prior to that time, inmate minister Earnest

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Granberry was permitted to lead the Muslims in services with only correctional guard supervision.

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On March 28, 2008, Plaintiff filed an administrative appeal regarding denial of his rights to

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Jumu’ah prayer services and to a Muslim chaplain or inmate minister. The KVSP appeals

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coordinator improperly screened out his appeal.

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On August 4, 2008, Plaintiff was ordered to resubmit his appeal on a new form. Plaintiff

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resubmitted his appeal on August 6, 2008. On September 28, 2008, Defendant Wegman interviewed

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Plaintiff. Defendant M. Cabrera was present during the interview.

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Defendant Wegman partially granted Plaintiff’s appeal at the first level, stating that Jumu’ah

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services were scheduled for Friday at noon. Plaintiff objected to the response on that grounds that

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Jumu’ah services were not being conducted and that Defendant Wegman evaded the issue of an

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inmate minister being allowed to conduct Jumu’ah services in the absence of a chaplain or volunteer.

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On December 5, 2008, Defendant Lewis partially granted Plaintiff’s appeal at the second

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level. Defendant Lewis admitted that KVSP only had a Jewish Rabbi to conduct services for

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Jumu’ah on Friday, but the Rabbi did not work on Fridays due to religious beliefs. Defendant Lewis

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stated that when it was determined that a chaplain could not be obtained, then KVSP would

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accommodate Plaintiff’s spiritual needs.

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On December 28, 2008, Plaintiff requested a Director’s level review of his appeal. Plaintiff

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objected to Defendant Lewis’ response because it evaded the fact that Jumu’ah services were still

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being denied him and the law regarding inmate ministers was not being adhered to. On March 9,

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2009, N. Grannis provided a Director’s level response, claiming she spoke to Defendant Wegman

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who told her that only one hired chaplain is employed at KVSP (the Jewish Rabbi) and that there
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should be a Muslim chaplain hired in the near future. Defendant Wegman also told her that

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volunteers had discontinued volunteering for personal reasons. N. Grannis denied Plaintiff’s appeal.

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III.

Motion to Dismiss Legal Standard

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In considering a motion to dismiss for failure to state a claim, the court generally considers

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only the pleadings and must accept as true the allegations in the complaint. Marder v. Lopez, 450

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F.3d 445, 448 (9th Cir. 2006); Shaver v. Operating Engineers Local 428 Pension Trust Fund, 332

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F.3d 1198, 1201, 1203 (9th Cir. 2002). A court may consider evidence that the complaint relies on,

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where the complaint refers to a document that is central to the complaint and no party questions the

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authenticity of the document. Marder, 450 F.3d at 448; see United States v. Ritchie, 342 F.3d 903,

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908 (9th Cir. 2003). Additionally, the court is to “construe the pleading in the light most favorable

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to the party opposing the motion, and resolve all doubts in the pleader’s favor. Hebbe v. Pliler, 627

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F.3d 338, 340 (9th Cir. 2010). Pro se pleadings are held to a less stringent standard than those

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drafted by attorneys. Hebbe, 627 F.3d at 342.

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A motion to dismiss for failure to state a claim is properly granted where the complaint lacks

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“a cognizable legal theory” or “sufficient facts alleged under a cognizable legal theory.”

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Conservation Force v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011) (quoting Balistreri v. Pacifica

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Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1988)). While accepting factual allegations in the

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complaint as true, the court is not required to accept legal conclusions as true, and the factual

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allegations must state a plausible claim for relief. Maya v. Centex Corp., 658 F.3d 1060, 1067-68

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(9th Cir. 2011).

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IV.

Argument

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A.

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Defendants contend that dismissal is appropriate because they had no direct or causal

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connection to Plaintiff’s claims aside from their involvement in the grievance process and they are

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entitled to qualified immunity.

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B.

Defendants’ Motion to Dismiss

Discussion
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Free Exercise

“Inmates . . . retain protections afforded by the First Amendment, including its directive that
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no law shall prohibit the free exercise of religion.” O’Lone v. Estate of Shabazz, 482 U.S. 342, 348,

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107 S. Ct. 2400, 2404 (1987) (internal quotations and citations omitted). The protections of the Free

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Exercise Clause are triggered when prison officials substantially burden the practice of an inmate’s

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religion by preventing him from engaging in conduct which he sincerely believes is consistent with

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his faith. Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008); Freeman v. Arpaio, 125 F.3d 732,

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736 (9th Cir. 1997), overruled in part by Shakur, 514 F.3d at 884-85.

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a.

Defendants Hedgpeth and Flores

Defendants argue that Plaintiff cannot state a claim against Warden Hedgpeth and Active
Warden Flores based on supervisory liability.

“It has long been clearly established that

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‘[s]upervisory liability is imposed against a supervisory official in his individual capacity for his own

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culpable action or inaction in the training, supervision, or control of his subordinates, for his

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acquiescence in the constitutional deprivations of which the complaint is made, or for conduct that

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showed a reckless or callous indifference to the rights of others.’” Preschooler II v. Davis, 479 F.3d

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1175, 1183 (9th Cir.2007) (citations omitted). A supervisor, such as the warden, may be liable under

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section 1983 upon a showing of (1) personal involvement in the constitutional deprivation or (2) a

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sufficient causal connection between the supervisor's wrongful conduct and the constitutional

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violation. Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th Cir.1991) (en banc) (citation

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omitted), abrogated in part on other grounds by Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970,

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128 L.Ed.2d 811 (1994). Indeed, “[s]upervisory liability exists even without overt personal

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participation in the offensive act if supervisory officials implement a policy so deficient that the

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policy “itself is a repudiation of constitutional rights” and is “the moving force of the constitutional

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violation.” Redman. 942 F.2d at 1146 (citations omitted).

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Here, Defendants assert that Plaintiff fails to allege facts showing that Warden Hedgpeth or

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Assistant Warden Flores were personally involved in any deprivation or that they implemented

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wrongful policies. As found in the court's prior order of service, a liberal reading of Plaintiff's

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complaint demonstrates that he properly states a cognizable claim against Defendants Hedgpeth and

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Flores for implementing and enforcing policies that essentially abolished Jumu’ah prayer services.

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Defendants argue that Plaintiff has not alleged facts showing that Defendants knew or
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reasonably should have known that the policy would cause a denial of Jumu’ah services. In so

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arguing, Defendants contend that the policy itself provides for a number of qualified individuals to

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supervise inmate religious activities and the prohibition on inmates leading religious services

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themselves exists only to the extent that inmates want to lead such services in the facility chapel

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without direct supervision of a facility Chaplain or Volunteer. Ex. A to Sec. Amend. Compl., DOM

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Supplement 101060.6.4., p. 4 (“No inmate will be authorized or allowed to conduct or lead any

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religious services, classes, or groups of any kind in the facility chapels, without being under the

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direct supervision of a facility chaplain or authorized volunteer.” ) Defendants’ argument apparently

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overlooks Plaintiff’s allegations that neither a Chaplain nor a volunteer were available to either lead

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or to supervise Jumu’ah services and that the policy was implemented generally to preclude inmates

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from leading Jumu’ah services. Sec. Amend. Compl. pp. 3-4.

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Further, Defendants contend that Plaintiff alleges no facts showing that Defendant Flores was

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aware of any deprivation occurring or personally took any action to deny Plaintiff’s rights. However,

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Plaintiff clearly alleges that Defendant Flores officially abolished Jumu’ah prayer services for

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Muslims, including Plaintiff. Sec. Amend. Compl. p. 4 Plaintiff has alleged sufficient facts to

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support a claim that Defendant Flores burdened his practice of Jumu’ah by preventing him from

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attending prayer services. Shakur, 514 F.3d at 884-85.

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For the reasons stated, Defendants’ motion to dismiss Plaintiff’s claims against Defendants
Hedgpeth and Flores should be denied.
b.

Defendant Wegman

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Defendants argue that Plaintiff’s own evidence demonstrates that he cannot state a claim

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against Defendant Wegman because Defendant Wegman partially granted his appeal and was

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“responsive” to Plaintiff’s concerns by telling Plaintiff that KVSP was in the process of hiring a new

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Muslim chaplain and the Jewish chaplain could provide Plaintiff services in the meantime. (ECF

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No. 64, p. 9; Ex. D to Sec. Amend. Compl.)

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Discovery and summary judgment motions - not motions to dismiss - “define disputed facts”

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and “dispose of unmeritorious claims.” Alvarez v. Hill, 518 F.3d 1152, 1157 (9th Cir. 2008). “‘The

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issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer
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evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is

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very remote and unlikely but that is not the test.’” Jackson v. Carey, 353 F.3d 750, 755 (9th Cir.

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2003) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)); see also Austin v. Terhune, 367 F.3d

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1167, 1171 (9th Cir. 2004) (“‘Pleadings need suffice only to put the opposing party on notice of the

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claim . . . .’”) (quoting Fontana v. Haskin, 262 F.3d 871, 977 (9th Cir. 2001)). As previously stated,

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on a motion to dismiss, the factual allegations of the complaint must be accepted as true, Marder,

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450 F.3d at 448, and resolve all doubts in the pleader’s favor, Hebbe, 627 F.3d at 340.

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In his complaint, Plaintiff alleges that Defendant C. Wegman, the Community Partnership

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Manager (“CPM”), interviewed Plaintiff in connection with his inmate appeal. Plaintiff explained

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to Defendant Wegman that his rights to Jumu’ah were being denied due to the lack of a Muslim

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Chaplain to conduct services and the refusal to appoint an inmate minister while KVSP did not have

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a hired chaplain or volunteer to supervise Jumu’ah. Defendant Wegman partially granted his appeal,

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admitting that KVSP did not have a Muslim Chaplain, but that Jumu’ah services were scheduled for

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Fridays at noon. Plaintiff objected to Defendant Wegman’s response because Jumu’ah services were

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still not being conducted and Defendant Wegman evaded the issue of an inmate minister being

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allowed to conduct Jumu’ah in the absence of a chaplain or volunteer. Plaintiff alleges that

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Defendant Wegman had the authority, as CPM and head of religious programming, to ensure that

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Plaintiff’s religious practice was not needlessly and intentionally burdened. (Sec. Amend. Compl.

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pp. 6-7, 16-20; Exhibit D to Sec. Amend. Compl.) Plaintiff also alleges that Defendant Wegman

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told N. Grannis that there was no Muslim chaplain and volunteers had stopped volunteering. (Sec.

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Amend. Compl. p. 8.)

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Construing the allegations in a light favorable to Plaintiff, it is clear that he has alleged

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Defendant Wegman knew that he was not allowed to participate in or to attend Jumu’ah services on

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Fridays in the absence of a Muslim chaplain or volunteer, that this lack of participation was ongoing

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and that Defendant Wegman had the authority to correct it. As the Court previously determined,

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Plaintiff states a cognizable claim for a violation of the Free Exercise Clause of the First Amendment

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against Defendant Wegman. Accordingly, Defendants motion to dismiss Plaintiff’s claims against

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Defendant Wegman should be denied.
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c.

Defendant Lewis

Defendants contend that Plaintiff cannot state a claim against Defendant Lewis because

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Plaintiff alleges no facts showing that Defendant Lewis had any involvement in the Yard A

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religious services other than his review of Plaintiff’s grievance. Defendants also contend that

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Defendant Lewis was responsive to Plaintiff’s grievance and there are no allegations that

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Defendant Lewis was aware that Plaintiff could not attend Jumu’ah services.

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In his second amended complaint, Plaintiff alleges that Defendant Lewis responded to his

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grievance by stating that volunteers sometimes volunteered to conduct services, that the hired

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Rabbi did not conduct services on Friday, and that when it was clear that spiritual leaders could

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not be obtained, then accommodations would be made. Plaintiff also alleges that Defendant

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Lewis had the authority to accommodate Plaintiff, but failed to address Plaintiff’s issue that

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KVSP was denying him religious services by not obtaining an authority figure who could

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supervise Jumu’ah services and by denying Plaintiff an inmate minister to lead him in Jumu’ah

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services in the absence of a hired chaplain. (Sec. Amend. Compl. pp. 19-21.)

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As this Court previously determined, Plaintiff’s allegation that Defendant Lewis partially

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granted Plaintiff’s appeal, was aware that Muslim inmates were being denied access to Jumu’ah

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services, and failed to act to correct the violation while having the authority to do so states a

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cognizable claim for a violation of the Free Exercise Clause of the First Amendment. Shakur,

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514 F.3d at 884-85. Defendants’ motion to dismiss the claims against Defendant Lewis should

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be denied.

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2.

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Defendants argue that they are entitled to qualified immunity because their actions were

Qualified Immunity

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reasonable under the circumstances. The doctrine of qualified immunity protects government

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officials from civil liability where “their conduct does not violate clearly established statutory or

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constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555

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U.S. 223, 231, 129 S. Ct. 808, 815 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102

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S.Ct. 2727, 2738 (1982)). Qualified immunity protects “all but the plainly incompetent or those

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who knowingly violate the law.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2085 (2011) (citations
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omitted). To determine if an official is entitled to qualified immunity the court uses a two part

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inquiry. Saucier v. Katz, 533 U.S. 194, 200, 121 S. Ct. 2151, 2155 (2001) overruled in part by

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Pearson v. Callahan, 555 U.S. at 236, 129 S.Ct. at 818. The court determines if the facts as

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alleged state a violation of a constitutional right and if the right is clearly established so that a

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reasonable official would have known that his conduct was unlawful. Ashcroft, 131 S.Ct. at

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2080. This does not require that the same factual situation must have been decided, but that

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existing precedent would establish the statutory or constitutional question beyond debate. Id. at

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2083; Mattos v. Agarano, 661 F.3d 433, 442 (9th Cir. 2011). The inquiry as to whether the right

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was clearly established is “solely a question of law for the judge.” Dunn v. Castro, 621 F.3d

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1196, 1199 (9th Cir. 2010) (quoting Tortu v. Las Vegas Metro. Police Dep’t., 556 F.3d 1075,

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1085 (9th Cir. 2009)). District courts are “permitted to exercise their sound discretion in deciding

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which of the two prongs of the qualified immunity analysis should be addressed first in light of

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the circumstances in the particular case at hand.” Pearson, 555 U.S. at 236, 129 S.Ct. at 818.

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Defendants argue that they are entitled to qualified immunity because none of their

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actions amounted to a constitutional violation. (ECF No. 64, p. 13.) At this stage of the action,

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Defendants’ argument is unsupported given the Court’s determination that Plaintiff has stated

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claims against them for violations under the First Amendment to the United States Constitution.

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Defendants next argue that they are entitled to dismissal of Plaintiff’s claims because

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reasonable prison staff could have believed that Defendants’ conduct was not unlawful.

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However, Plaintiff has alleged a complete denial of his access to Jumu’ah services. At a basic

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level, a denial of access to such services would violate the clearly established protections of the

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Free Exercise Clause. Shakur, 514 F.3d at 884-85. Accordingly, there is no basis to determine,

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at this stage, that Defendants are entitled to qualified immunity.

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VI.

Conclusion and Recommendation

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Based on the foregoing, the Court HEREBY RECOMMENDS as follows:

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Defendants’ motion to dismiss for failure to state a claim, filed July 5, 2012, be
DENIED; and

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Defendants’ motion to dismiss based upon qualified immunity be DENIED
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without prejudice.
These findings and recommendations will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within

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fourteen (14) days after being served with these findings and recommendations, the parties may

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file written objections with the Court. The document should be captioned “Objections to

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Magistrate Judge’s Findings and Recommendations.” The parties are advised that failure to file

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objections within the specified time may waive the right to appeal the District Court’s order.

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Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:
10c20k

March 25, 2013

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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