Furnace v. Giurbino et al

Filing 79

ORDER ADOPTING 71 Findings and Recommendations and GRANTING Defendants' 60 Motion to Dismiss Certain Claims, signed by District Judge Lawrence J. O'Neill on 7/19/2013. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EDWARD FURNACE,

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Plaintiff,

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v.

Case No. 1:11-cv-00012-LJO-DLB PC
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND GRANTING
DEFENDANTS’ MOTION TO DISMISS
CERTAIN CLAIMS

GEORGE GIURBINO, et al.,

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Defendants.

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Plaintiff Edward Furnace (“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. This action proceeds on

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Plaintiff’s First Amended Complaint, filed August 12, 2011, against Defendants J. Bales, George

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Giurbino, M. Hodges-Wilkins, D. Leon, R. Lopez, R. Vella, L. Warren, and S. Fuentes for violation

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

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Amendment, and the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”).1

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On October 29, 2012, Defendants filed a Motion to Dismiss pursuant to the doctrine of

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collateral estoppel. The matter was referred to a United States Magistrate Judge pursuant to 28

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U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On May 20, 2013, the Magistrate Judge issued Findings and Recommendations to grant
Defendants’ Motion to Dismiss certain claims. The Findings and Recommendations were served on
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Defendants W. Haythorne and S. Summersett have not been served or appeared in this action. ECF No. 36.

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the parties and contained notice to the parties that any objections to the Findings and

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Recommendations were to be filed within fourteen days. After receiving an extension of time,

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Plaintiff filed objections on June 25, 2013. Defendants did not file a reply.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de

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novo review of this case. Having carefully reviewed the entire file, including Plaintiff’s objections,

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the Court finds that the Findings and Recommendations are supported by the record and proper

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analysis.
Plaintiff’s objections are based on his contention that “this suit is about fraud,” while his

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prior action was related to the denial of a transfer to another institution that could better

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accommodate his religious dietary requirements. Obj. 2. Plaintiff states that the Magistrate Judge

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“failed to even acknowledge the existence of the constitutional principle on which Plaintiff based his

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claim, i.e., the CDCR statewide religious vegetarian diet is a fraud and not related to religious

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dietary tenets to any degree whatsoever.” Obj. 2.

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Contrary to Plaintiff’s characterization, there is no separate cause of action for fraud in his

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First Amended Complaint. Although he may have alleged that Defendants “intentionally misled”

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him in his First Amended Complaint and referenced fraud, he very clearly listed his causes of action

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as arising under the First Amendment, Fourteenth Amendment and RLUIPA.2 In the Court’s

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November 18, 2011, order finding service appropriate, the Court found that Plaintiff stated

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cognizable claims for relief under the First Amendment, Fourteenth Amendment and RLUIPA.

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Similarly, in the Court’s Findings and Recommendations, the Court noted that Plaintiff

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asserted that this action also proceeded on claims for fraud, breach of contract, misappropriation of

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funds and deliberate indifference. The Court stated that Plaintiff “made no such claims in his First

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Amended Complaint.” Findings & Recomm. 2, n. 3.
Plaintiff’s attempt to distinguish his claims now, based on a theory of fraud, does not

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undermine the Magistrate Judge’s conclusion that the underlying arguments in both actions

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substantially overlap.

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By separate order, the Court denied Plaintiff’s June 20, 2013, Motion for Leave to Amend.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

The Findings and Recommendations, filed May 20, 2013, are ADOPTED in full;

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2.

Defendants’ Motion to Dismiss (Document 60) is GRANTED;

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3.

Plaintiff’s claims regarding receiving a Kemetic diet and CDCR’s religious

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vegetarian diet are DISMISSED on the grounds of collateral estoppel;

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4.

Plaintiff’s claims against Defendant Lopez in his official capacity for damages for

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denial of necessary religious items in violation of the First Amendment are

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DISMISSED;

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5.

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Plaintiff’s claims for damages against Defendants for violation of RLUIPA are
DISMISSED; and

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6.

This action SHALL proceed against Defendant Lopez in his individual capacity for

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damages and in his official capacity for injunctive relief for denial of necessary

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religious items in violation of the First Amendment, and against Defendants in their

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official capacity for prospective injunctive relief for violation of the RLUIPA.

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IT IS SO ORDERED.
Dated:

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/s/ Lawrence J. O’Neill

July 19, 2013

UNITED STATES DISTRICT JUDGE
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DEAC_Signature-END:

b9ed48bb

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