Porter v. Wegman et al

Filing 13

ORDER Dismissing Certain Claims signed by Magistrate Judge Dennis L. Beck on 09/23/2011. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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BRIAN PORTER,

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Plaintiff,

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CASE NO. 1:10-CV-01500-DLB PC
ORDER DISMISSING CERTAIN CLAIMS

v.

(DOC. 12)

CHERYLEE WEGMAN, et al.,

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Defendants.

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Screening Order
I.

Background

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Plaintiff Brian Porter (“Plaintiff”) is a prisoner in the custody of the California

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Department of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983 and the Religious Land

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Use and Institutionalized Persons Act of 2000 (“RLUIPA”). Plaintiff initiated this action by

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filing his complaint on August 19, 2010. Doc. 1. On April 22, 2011, the Court dismissed

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Plaintiff’s complaint for failure to state a claim, with leave to amend. Doc.11. On June 3, 2011,

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Plaintiff filed his first amended complaint. Doc. 12.

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The Court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are

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legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or

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that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.
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§ 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion thereof, that may have been

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paid, the court shall dismiss the case at any time if the court determines that . . . the action or

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appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. §

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1915(e)(2)(B)(ii).

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A complaint must contain “a short and plain statement of the claim showing that the

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pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing

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Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual

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matter, accepted as true, to ‘state a claim that is plausible on its face.’” Id. (quoting Twombly,

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550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.

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II.

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Summary Of Amended Complaint
Plaintiff is currently incarcerated at Kern Valley State Prison (“KVSP”) in Delano,

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California, where the events giving rise to this action occurred. Plaintiff names as Defendants:

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Cherylee Wegman, Community Resource/Partnership Manager of KVSP.

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Plaintiff alleges the following. Plaintiff is a practicing member of the House of Yahweh

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religion. Am Compl. ¶ 5. Plaintiff is required to keep all Sabbath days holy, and thus eat only

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kosher foods. Id. Plaintiff is also required to observe all holy days, including observing for 8

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days the Passover and Feast of Unleavened Bread. Id. Plaintiff cannot eat food that contains or

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has come in contact with leaven/yeast during this time. Id. ¶ 7. In 2008, Plaintiff applied to

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receive Kosher meals and was approved by Jewish Chaplain Mehlman and Defendant Wegman.

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Id. ¶ 9. On November 21, 2008, Defendant Wegman circulated a memo to several KVSP staff,

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including chaplain Mehlman, which stated that the House of Yahweh was a religious hate group.

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Id. ¶ 10.

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The Jewish Kosher diet program (“JKDP”) provides meals that adhere te the

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requirements for Yahweh’s Passover Feast of Unleavened Bread, also known as Passover. Id. ¶

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11. In February 10, 2009, Plaintiff and other House of Yahweh inmates in KVSP submitted a

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religious event package for April 10 through April 17 of 2009, in order to receive reasonable
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accommodations for this religious observance. Id. The event package included information of

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the required ceremonial foods for each meal and day of the religious feast, and the laws

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governing it. Id. ¶ 12. Plaintiff did not receive any communication regarding this feast. Id.

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On April 7, 2009,1 Plaintiff received a religious diet card for a vegetarian diet, signed and

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authorized by Defendant Wegman. Id. ¶ 14. Authorization for diet cards requires approval by a

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chaplain. Plaintiff did not request a vegetarian diet, but to be placed on the JKDP. Id. Plaintiff

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was not interviewed by Defendant Wegman prior to his placement on the vegetarian diet. Id.

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The vegetarian diet does not meet Plaintiff’s religious dietary needs. Id. ¶ 15. Plaintiff is

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required to eat the meat of the Passover sacrifice, and unleavened bread on Passover night. Id.

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Plaintiff is required to eat meats that have not been heated during the Sabbath, and is required to

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eat Kosher foods, including the vegetables. Id. The vegetarian diet does not meet any of these

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religious requirements. Id.

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On April 10, 2009, at sunset, the religious holiday of Yahweh’s Passover and Feast of

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Unleavened Bread began, lasting until sunset of April 17, 2009. Id. ¶ 16. Plaintiff was not

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provided Kosher meals until April 15. Id. Plaintiff was aware of the prison’s policy that

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forfeiture of meals may result in disciplinary action, and that taking regular meals may forfeit

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receiving religious meals. Id. Plaintiff thus took the regular meals but did not eat them, thus

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starving for several days. Id.

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Defendant Wegman contacted Plaintiff on April 15, 2009. Id. ¶ 18. Plaintiff’s parents

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had called the institution concerning Plaintiff being starved. Id. Plaintiff informed Defendant of

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his religious dietary requirements for the religious feast. Id. Defendant Wegman admitted that

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his rights were being violated. Id. The religious event package had apparently been misplaced.

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Id. Defendant Wegman blamed the lack of communication on her workload. Id. Defendant

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Wegman promised to get Plaintiff proper food that adhered to Plaintiff’s religious mandates. Id.

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Plaintiff then received one adequate meal the evenings of April 15 and April 16. Id. ¶¶
19-20. On April 17, 2009, Plaintiff participated in a special event in the Facility B chapel. Id. ¶

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Plaintiff lists 2010 as the year in his amended complaint. This appears to be error.
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21. In the Facility B Chapel, food was provided pursuant to the Religious Event Package

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prepared by Defendant Wegman. Id. The food provided was not Kosher according to the

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requirements drafted in the religious event package. Id. No House of Yahweh members knew

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whether the meal had been properly prepared, no unleavened bread was provided, and the meal

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came heated. Id. Culinary and custody staff brought the food at approximately 6:30 p.m. while

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House of Yahweh members were conducting service. Id. ¶ 22. The service of the religious event

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was interrupted by custody and culinary staff. Id. No House of Yahweh inmate was willing to eat

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the food because no inmate could ensure that the food was religiously permissible to eat. Id.

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Staff demanded that the service be halted and the inmates begin eating. Id. When the House of

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Yahweh inmates refused, custody staff then ended the religious event. Id. After sunset, several

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inmates were able to negotiate with custody staff to receive the food, as the religious event ended

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and the food restrictions were no longer required. Id. ¶ 23. Plaintiff also ate after sunset. Id.

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Plaintiff and other House of Yahweh inmates filed inmate grievances regarding this

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incident. Id. ¶ 24. Defendant Wegman responded to the grievances by stating that because

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House of Yahweh inmates are not Jews, they cannot receive the Jewish Passover celebration

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described in Title 15 of the California Code of Regulations. Id.

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Plaintiff encountered the same difficulties the following years. Plaintiff would request a

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reasonable accommodation to observe Yahweh’s Passover Feast of Unleavened Bread, and

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Defendant Wegman would create her own version, limiting it to a one day, one meal event. Id. ¶

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25. When Plaintiff filed an inmate grievance, Plaintiff would be denied because he is not a Jew.

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Id. ¶¶ 26-27. Plaintiff contends that Native Americans and Muslims are provided reasonable

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accommodations for their religious practices. Id. ¶¶ 30-31.

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Plaintiff alleges a violation of the Free Exercise Clause of the First Amendment, violation

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of the Equal Protection Clause of the Fourteenth Amendment, the Due Process Clause of the

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Fourteenth Amendment, and violation of RLUIPA. Plaintiff requests declaratory relief,

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compensatory and punitive damages, preliminary and permanent injunction enjoining Defendants

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from inhibiting Plaintiff’s ability to celebrate Yahweh’s Passover and Feast of Unleavened Bread

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and to receiving Kosher meals, appointment of counsel, and costs of suit.
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III.

Analysis

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A.

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“The right to exercise religious practices and beliefs does not terminate at the prison door.

First Amendment - Free Exercise

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The free exercise right, however, is necessarily limited by the fact of incarceration, and may be

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curtailed in order to achieve legitimate correctional goals or to maintain prison security.”

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McElyea v. Babbitt, 833 F.2d 196, 197 (9th Cir. 1987) (citing O’Lone v. Shabazz, 482 U.S. 342

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(1987)); see Bell v. Wolfish, 441 U.S. 520, 545 (1979). Only beliefs which are both sincerely

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held and rooted in religious beliefs trigger the Free Exercise Clause. Shakur v. Schriro, 514 F.3d

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878, 884-85 (9th Cir. 2008) (citing Malik v. Brown, 16 F.3d 330, 333 (9th Cir. 1994)); Callahan

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v. Woods, 658 F. 2d 679, 683 (9th Cir. 1981)). Under this standard, “when a prison regulation

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impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to

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legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987). First, “there must be

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a valid, rational connection between the prison regulation and the legitimate government interest

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put forward to justify it,” and “the governmental objective must itself be a legitimate and neutral

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one.” Id. A second consideration is “whether there are alternative means of exercising the right

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that remain open to prison inmates.” Id. at 90 (internal quotations and citation omitted). A third

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consideration is “the impact accommodation of the asserted right will have on guards and other

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inmates, and on the allocation of prison resources generally.” Id. “Finally, the absence of ready

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alternatives is evidence of the reasonableness of a prison regulation.” Id.

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Plaintiff sufficiently alleges a violation of the Free Exercise Clause for Defendant

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Wegman’s actions regarding Plaintiff’s religious observance of Yahweh’s Passover Feast of

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Unleavened Bread and for removing Plaintiff from the Jewish Kosher Diet Program.

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B.

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“The Equal Protection Clause . . . is essentially a direction that all persons similarly

Fourteenth Amendment - Equal Protection

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situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432,

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439 (1985) (citing Plyler v. Doe, 457 U.S. 202, 216 (1982)). A prisoner is entitled “to ‘a

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reasonable opportunity of pursuing his faith comparable to the opportunity afforded fellow

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prisoners who adhere to conventional religious precepts.’” Shakur, 514 F.3d at 891 (quoting
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Cruz v. Beto, 405 U.S. 319, 321-22 (1972) (per curiam)). To state a claim, a plaintiff must allege

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facts sufficient to support the claim that prison officials intentionally discriminated against him

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on the basis of his religion by failing to provide him a reasonable opportunity to pursue his faith

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compared to other similarly situated religious groups. Cruz, 405 U.S. at 321-22; Shakur, 514

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F.3d at 891; Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003); Lee v. City of L.A., 250

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F.3d 668, 686 (9th Cir. 2001); Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir. 1997), overruled

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in part on other grounds, Shakur, 514 F.3d at 884-85.

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Plaintiff sufficiently alleges a violation of the Equal Protection Clause for Defendant

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Wegman’s actions regarding Plaintiff’s religious observance of Yahweh’s Passover Feast of

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Unleavened Bread and for removing Plaintiff from the Jewish Kosher Diet Program.

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C.

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Plaintiff alleges a violation of the Due Process Clause of the Fourteenth Amendment.

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Fourteenth Amendment - Due Process

The Ninth Circuit has found that

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[t]o establish a violation of substantive due process . . . , a plaintiff is ordinarily
required to prove that a challenged government action was clearly arbitrary and
unreasonable, having no substantial relation to the public health, safety, morals, or
general welfare. Where a particular amendment provides an explicit textual
source of constitutional protection against a particular sort of government
behavior, that Amendment, not the more generalized notion of substantive due
process, must be the guide for analyzing a plaintiff’s claims.

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Patel v. Penman, 103 F.3d 868, 874 (9th Cir. 1996) (citations, internal quotations, and brackets

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omitted); see County of Sacramento v. Lewis, 523 U.S. 833, 842 (1998). In this case, the First

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Amendment and the Equal Protection Clause of the Fourteenth Amendment “provides [the]

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explicit textual source of constitutional protection . . . .” Patel, 103 F.3d at 874. Therefore, the

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First Amendment and the Equal Protection Clause rather than the Due Process Clause of the

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Fourteenth Amendment governs Plaintiff’s constitutional claims.

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D.

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The Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”) provides:

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No government shall impose a substantial burden on the religious exercise of a
person residing in or confined to an institution. . . , even if the burden results from
a rule of general applicability, unless the government demonstrates that imposition
of the burden on that person–

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RLUIPA

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(1) is in furtherance of a compelling government interest; and
(2) is the least restrictive means of furthering that compelling
government interest.

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42 U.S.C. § 2000cc-1. RLUIPA “mandates a stricter standard of review for prison regulations

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that burden the free exercise of religion than the reasonableness standard under Turner.” Shakur

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v. Schriro, 514 F.3d 878, 888 (9th Cir. 2008) (citing Warsoldier v. Woodford, 418 F.3d 989, 994

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(9th Cir. 2005)). The Supreme Court has noted “RLUIPA . . . protects institutionalized persons

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who are unable freely to attend to their religious needs and are therefore dependent on the

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government's permission and accommodation for exercise of their religion.” Cutter v. Wilkinson,

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544 U.S. 709, 721 (2005). RLUIPA defines religious exercise to include “any exercise of

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religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. §

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2000cc-5(7)(A); San Jose Christian College v. City of Morgan Hill, 360 F.3d 1024, 1034 (9th

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Cir. 2004).

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Plaintiff states a cognizable RLUIPA claim against Defendant Wegman for her actions

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regarding Plaintiff’s religious observance of Yahweh’s Passover Feast of Unleavened Bread and

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for removing Plaintiff from the Jewish Kosher Diet Program.

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IV.

Conclusion And Order

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

This action proceed against Defendant Cherylee Wegman for violation of the Free

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Exercise Clause of the First Amendment, the Equal Protection Clause of the

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Fourteenth Amendment, and the Religious Land Use and Institutionalized Persons

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Act of 2000; and

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2.

Plaintiff’s claim for violation of due process is dismissed.

IT IS SO ORDERED.
Dated:
3b142a

September 23, 2011

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

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