Morceli v. Meyers, et al.

Filing 66

FINDINGS and RECOMMENDATIONS Regarding Defendant's 44 Motion for Summary Judgment, signed by Magistrate Judge Barbara A. McAuliffe on 10/1/2014, referred to Judge Ishii. Objections to F&R Due Within Thirty Days. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ABDELKADER MORCELI,

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Plaintiff,

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v.
W. MEYERS, et al.,

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Defendants.

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Case No.: 1:11-cv-00685-AWI-BAM (PC)
FINDINGS AND RECOMMENDATIONS
REGARDING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT
(ECF No. 44)

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I.

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Plaintiff Abdelkader Morceli (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff’s

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complaint against Defendant Myers (erroneously sued as Meyers) for violation of the Free Exercise

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Clause of the First Amendment and Equal Protection in violation of the Fourteenth Amendment.

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(ECF No. 25.)

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Background

On November 4, 2013, Defendant Myers filed a motion for summary judgment. (ECF No. 44.)

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Following extensions of time, Plaintiff opposed the motion on September 8, 2014. (ECF No. 61.)

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Defendant Myers replied on September 19, 2014. (ECF Nos. 62-64.) The motion is deemed

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submitted. Local Rule 230(l).

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II.

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Defendant’s Motion for Summary Judgment
A. Legal Standard for Summary Judgment

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Pursuant to Federal Rule of Civil Procedure 56(a) summary judgment is appropriate when the

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movant shows that there is no genuine dispute as to any material fact and the movant is entitled to

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judgment as a matter of law. Summary judgment must be entered, “after adequate time for discovery

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and upon motion, against a party who fails to make a showing sufficient to establish the existence of

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an element essential to that party’s case, and on which that party will bear the burden of proof at trial.”

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Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). However, the court is to liberally construe the

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filings and motions of pro se litigants. Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). The

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“party seeking summary judgment always bears the initial responsibility of informing the district court

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of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to

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interrogatories, and admissions on file, together with the affidavits, if any, which it believes

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demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323 (internal

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quotations and citations omitted).
If the moving party meets its initial responsibility, the burden then shifts to the opposing party

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to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co.

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v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this

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factual dispute, the opposing party may not rely upon the denials of its pleadings, but is required to

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tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in

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support of its contention that the dispute exists. Fed. R. Civ. P. 56(c); Matsushita, 475 U.S. at 586

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n.11.

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The parties bear the burden of supporting their motions and oppositions with the papers they

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wish the Court to consider and/or by specifically referencing any other portions of the record for

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consideration. Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1031 (9th Cir. 2001).

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The Court will not undertake to scour the record for triable issues of fact. Simmons v. Navajo County,

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Arizona, 609 F.3d 1011, 1017 (9th Cir. 2010).

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In arriving at this order, the Court carefully reviewed and considered all arguments, points and
authorities, declarations, exhibits, statements of undisputed facts and responses thereto, if any,
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objections, and other papers filed by the parties. Omission of reference to an argument, document,

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paper, or objection is not to be construed to the effect that this Court did not consider the argument,

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document, paper, or objection. This Court thoroughly reviewed and considered the evidence it

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deemed admissible, material, and appropriate.
B. Summary of Relevant Allegations in Plaintiff’s First Amended Complaint

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On July 26, 2010, Plaintiff was informed by the second watch dining staff that, per Defendant

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Myers and others, he could not wear a kufi, even though a memo had previously been issued by

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Warden James Yates approving kufis to be worn within the institution. Plaintiff alleges that

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Defendant Myers ordered correctional officers to refuse to allow Muslim inmates to wear kufis in the

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dining hall and to refuse to allow inmates to purchase and wear black kufis anywhere within Pleasant

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Valley State Prison (“PVSP”), while Jewish inmates are allowed to wear yarmulkes. (ECF No. 1.)
C.

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1.

Defendant’s Statement of Undisputed Material Facts (“DUF”)

At the time relevant to this action, Defendant Myers, who is now retired, was employed

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by the California Department of Corrections and Rehabilitation (CDCR) as a correctional lieutenant

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and was assigned as the acting community resources manager (CRM) at PVSP. (Myers Dec. ¶ 1.)

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2.

As the acting CRM, Myers was an ex officio member of PVSP’s Religious Review

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Committee (RRC), as was the warden and others. Myers’ role on the RRC was to gather questions

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and concerns from inmates and staff concerning religious issues with inmates at PVSP and to present

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the agenda at RRC meetings. (Myers Dec. ¶ 2.)

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3.

The RRC did not make prison policies, but rather made recommendations that the

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warden would determine whether and how to act upon. The RRC did not require Myers’ approval to

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make a policy recommendation to the warden, and the warden did not require her approval to

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determine whether and how to act upon an RRC recommendation. (Myers Decl. ¶ 3.)

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Plaintiff attempts to dispute the fact that the RRC did not make prison policies, arguing that

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Defendant Myers conceded that the RRC was “a group comprised of various CDCR personnel and

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thus collectively discussed various issues and would then make prison policies to submit to the PVSP

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warden for approval.” (ECF No. 61, p. 59.) In support of this argument, Plaintiff cites to Defendant

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Myers’ interrogatory responses. However, Defendant Myers’ interrogatory responses do not support
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Plaintiff’s argument. Defendant Myers expressly responded that the “RRC did not make policies,

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procedures, and practices” and that they only made recommendations. (ECF No. 61, Ex. A at p. 5.)

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The warden determined whether and how to act on any recommendation. (Id.) As discussed more

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fully below, Plaintiff’s own evidence establishes that the warden was responsible for issuing policy

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memoranda. (See ECF No. 61, Pl’s Exs. B, E.)

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4.

On or about August 3, 2010, the warden signed a memorandum formalizing a

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modification of the policy concerning religious headwear following the RRC meeting on July 19,

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2010. The memorandum provided in pertinent part: “Allowable colors for religious headwear will be

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white and/or grey only. Inmates are allowed to wear their religious artifacts going to, during and

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coming from religious services/events and in their cell/bunk areas only.” (Myers Dec. ¶ 4 & Ex. A,

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Memorandum dated August 3, 2010.)

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7.

Under other regulations addressing headwear and clothing in general, no inmates were

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permitted to wear headwear, religious or not, in the dining hall without specific permission and no

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inmates were permitted to wear black clothing of any kind. (Myers Dec. ¶ 6.)

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In addition to being permitted to wear their kufis in their cell or bunk area and going to,

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during, and coming from religious services, Muslim inmates were permitted to keep a Qur’an, to

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attend religious services, and to celebrate Muslim holy days. They were provided with a religious diet,

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allowed to have religious oils, and permitted to wear facial hair in the manner that Plaintiff feels is

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necessary to express his faith. (Myers Dec. ¶ 11; Morceli Depo. 30:9–32:8.)

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10.

The only religious practice or expression that Plaintiff feels that he was not permitted

was the restriction on where he could wear his kufi. (Morceli Depo. 31:18–32:5.)
11.

Myers did not have any supervisory role over the staff at Plaintiff’s housing facility or

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dining hall, and she did not direct any staff to prohibit kufis from being worn in the dining hall on or

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before July 26, 2010. (Myers Dec. ¶ 8.)

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Although Plaintiff contends that Defendant Myers maintained a supervisory role over all PVSP

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staff, he provides no supporting evidence to raise a genuine dispute of material fact. (ECF No. 61, Pl’s

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Brief, p. 7.) Conclusory allegations are not sufficient to defeat summary judgment. See Rivera v.

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Nat’l R.R. Passenger Corp., 331 F.3d 1074, 1078 (9th Cir. 2003).
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Plaintiff’s “belief” that the PVSP warden delegated to Myers the exclusive authority over all

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PVSP religious matters does not raise a genuine dispute of material fact. Further, Plaintiff’s evidence

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belies his belief that PVSP’s warden delegated any authority to Myers regarding PVSP religious

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matters. At best, the evidence cited by Plaintiff confirms that the PVSP warden, not Myers, issued

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religious policy. According to the evidence supplied by Plaintiff, PVSP’s warden issued a policy

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memorandum on January 21, 2011, addressed to all staff and inmates, regarding the wearing of

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religious artifacts. In that memorandum, the warden merely indicated that if staff or inmates had

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questions or concerns, then those questions or concerns should be conveyed to Defendant Myers. In

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relevant part, the warden wrote, “If you have any questions or concerns, please contact W. K. Myers,

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Community Resources Manager (A), at extension 7801; or by way of Prison mail.” (ECF No. 61, Pl’s

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Ex. E.) The warden’s statement was not an express or implied delegation of authority to Defendant

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Myers regarding all religious policy matters at PVSP.

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D.

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Myers was not present in the PVSP dining room on July 26, 2010. (Myers Dec. ¶ 9.)

1.

Plaintiff’s Statement of Undisputed Material Facts (“PUH”)

Plaintiff is an Algerian native who was born Muslim and has practiced Islam his entire

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life. As such, Plaintiff believes the Holy Qur’an (Arabic text) to be the complete and unaltered Word

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of Allah (God), and thus is an adherent thereof as well as the Sunnah (i.e., legal ways, orders acts of

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worship, statements, etc.) of Prophet Muhammad (PBUH). (ECF No. 61, Morceli Dec. ¶ 4.)

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2.

Every Muslim has been ordered by Allah to follow the Sunnah of Prophet Muhammad

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(PBUH) as he is the Messenger of Allah and an exemplary example for mankind to follow (Holy

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Qur’an 33:21) due to his words and actions being inspired by Allah (46:9). Specifically, the English

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translation of the Holy Qur’an says: “O you who believe! Obey Allah, and obey the Messenger and

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render not vain your deeds.” (47:33); “This is because they defied and disobeyed Allah and His

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Messenger. And whoever defies and disobeys Allah and His Messenger, then verily, Allah is Severe

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in Punishment.” (8:13)

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3.

The Sunnah of Prophet Muhammad (PBUH) are manifested in the Ahadith (collection

of Sunnah) of which there are six Sahih (highly authentic) compilers of Ahadith that Muslims rely

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upon to ascertain the Prophet’s (PBUH) Sunnah. Within the Ahadith, the Muslim man is commanded

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to always cover his head with a kufi wrapped in a turban. (ECF No. 61, Ex. D at p. 3.)
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As a Muslim, it is Plaintiff’s sincerely-held religious belief that he must learn and

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adhere to the decrees of Allah as manifested in the Holy Qur’an, as well as adhere to the Sunnah of

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Prophet Muhammad (PBUH) as outlined in books like Sahih Ahadith. Plaintiff’s adherence to the

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Sunnah includes, but is not limited to, praying five (5) times daily; praying the way Prophet

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Muhammad (PBUH) prayed; wearing a kufi/turban; wearing a full beard; using miswak stick; wearing

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prayer oil; performing ablution; etc.
5.

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Plaintiff is currently incarcerated in the CDCR pursuant to criminal convictions

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unrelated to the instant case pending before the Court. From 2008 through 2012 Plaintiff was housed

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at PVSP and was acknowledged by PVSP staff as an active member of the Islamic Faith.
6.

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Defendant Myers was acting Community Resources Manager (CRM) and a member of

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PVSP’s Religious Review Committee (RRC) from October 2008 to March 2012. Myers was

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promoted from correctional officer to correctional sergeant in October 1995 and from correctional

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sergeant to correctional lieutenant in June 2001 and remained so until her March 2012 retirement. As

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a correctional lieutenant, Myers had one or more correctional sergeant(s) and an unspecified number

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of correctional officers under her authority as subordinates that would carry out and enforce any/all

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directives issued by her. (ECF No. 61, Ex. G at § 33010.18.1.)
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On July 26, 2010, Plaintiff entered a PVSP dining hall wearing his kufi during the

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feeding process whereupon he was confronted by an unidentified correctional officer and given a

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direct order to remove his kufi as it was a new policy.1 (ECF No. 61, Morceli Dec. ¶ 8.)
E.

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Discussion

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Defendant argues that summary judgment should be granted because: (1) Defendant Myers

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did not order staff to prohibit Plaintiff’s headwear, and the warden of PVSP, not Defendant Myers,

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created the policy regarding headwear; (2) the policies prohibiting headwear in the dining hall and

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prohibiting black clothing served legitimate penological purposes without substantially burdening

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Defendant objects to Plaintiff’s statement that “an unidentified correctional officer . . . advised me the new policy was
‘per lieutenant Meyers’” as hearsay. Defendant’s objection is SUSTAINED. Fed. R. Evid. 801-802.

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Plaintiff’s exercise of religion; (3) the policies applied equally to all headwear, including that of other

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religions, not just kufis; and (4) Defendant Myers is entitled to qualified immunity, because there was

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no clearly established right of a Muslim inmate to wear a kufi at all times and in all places without

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restriction or to wear a black kufi in particular.

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As noted above, this action proceeds on Plaintiff’s complaint against Defendant Myers for

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violation of the Free Exercise Clause of the First Amendment and Equal Protection in violation of the

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Fourteenth Amendment. However, Plaintiff has requested that his Equal Protection Claim be

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withdrawn. (ECF No. 61, p. 4) (“Due to a lack of evidence, Morceli hereby seeks the Court’s leave to

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withdraw his Equal Protection claim.”). Accordingly, the Court limits its consideration to Plaintiff’s

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Free Exercise claim against Defendant Myers.

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First Amendment – Free Exercise Clause

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Plaintiff alleges that his First Amendment rights were violated by Defendant Myers when she

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denied him the right to wear his kufi in the dining hall and denied him the right to purchase and wear

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black kufis anywhere within PVSP. (ECF No. 1.)

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“Inmates . . . retain protections afforded by the First Amendment, including its directive that no

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law shall prohibit the free exercise of religion.” O’Lone v. Estate of Shabazz, 482 U.S. 342, 348

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(1987) (internal quotations and citations omitted). The protections of the Free Exercise Clause are

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triggered when prison officials substantially burden the practice of an inmate’s religion by preventing

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him from engaging in conduct which he sincerely believes is consistent with his faith. Shakur v.

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Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008).

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Here, Plaintiff fails to point to any evidence indicating that Defendant Myers ever prevented

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Plaintiff from wearing his kufi in the dining hall. According to the undisputed evidence, Defendant

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Myers was not present in the dining hall on July 26, 2010, when Plaintiff contends that a correctional

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officer ordered him to remove his kufi. (DUF 11, 12; ECF No. 61, Pl’s Brief, p. 4.) The undisputed

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evidence also demonstrates that Defendant Myers did not have any supervisory role over the staff in

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Plaintiff’s housing facility or dining hall and did not direct any staff to prohibit kufis from being worn

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in the dining hall on or before July 26, 2010. (DUF 11, 12.)

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Plaintiff also fails to point to any evidence indicating that Defendant Myers was responsible for

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policies regarding religious headwear. Even if prison policy during the relevant time period prevented

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inmates from wearing headgear in the dining hall or wearing black articles of clothing, this alone

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cannot form the basis of an actionable claim against Defendant Myers because she was not responsible

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for the policy or policies at issue. Indeed, the undisputed evidence, including that supplied by

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Plaintiff, establishes that the PVSP warden, not Defendant Myers, was responsible for policies

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regarding religious headwear. (DUF 2, 3, 4; ECF No. 61, Pl’s Exs. B, E.) There is no evidence that

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Defendant Myers had any ability to stop the implementation of the warden’s policies, including those

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policies prohibiting the wearing of a kufi in the dining hall or the wearing of black clothing. (DUF 3.)

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Thus, it cannot be said that she denied Plaintiff his First Amendment rights or caused Plaintiff any

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injury resulting from prison-wide implementation of the policy. See Estate of Brooks v. United States,

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197 F.3d 1245, 1248 (9th Cir. 1999) (discussing causation as necessary element of section 1983

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claim).

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For these reasons, the Court finds that Plaintiff has not established a genuine issue of material

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fact as to whether his right to the free exercise of his religion was violated by Defendant Myers. The

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Court will therefore recommend that Defendant Myers’ motion for summary judgment be granted.

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Given this determination, it is unnecessary for the Court to undertake an analysis of the underlying

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policies and their constitutionality. It also is unnecessary for the Court to consider whether Defendant

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Myers is entitled to qualified immunity.

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III.

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For the reasons discussed above, IT IS HEREBY RECOMMENDED that

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1. Defendant Myer’s motion for summary judgment, filed on November 4, 2013, be granted;

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Conclusion and Order

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2. Judgment be entered in favor of Defendant Myers.

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These Findings and Recommendations will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) days

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after being served with these Findings and Recommendations, the parties may file written objections

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with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and
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Recommendations.” The parties are advised that failure to file objections within the specified time

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may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir.

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1991).

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IT IS SO ORDERED.

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Dated:

/s/ Barbara

October 1, 2014

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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