Todd v. California Department of Corrections and Rehabilition et al

Filing 46

ORDER ADOPTING 44 FINDINGS AND RECOMMENDATIONS, signed by District Judge Dale A. Drozd on 03/21/16. Mayo, Mussellman and Carron added. California Department of Corrections and Rehabilition and California State Prison, Corcoran terminated. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL ANTHONY TODD,

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No. 1:12-cv-01003-DAD-DLB

Plaintiff,
v.

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS

CDCR, et al.,
(Doc. No. 44)
Defendants.

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Plaintiff Michael Anthony Todd 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. Plaintiff filed his complaint in

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this action on June 21, 2012. (Doc. No. 1.) After obtaining leave of court, he filed a second

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amended complaint (“SAC”) on February 24, 2016. (Doc. No. 43.) The matter was referred to a

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United States magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On February 24, 2016, the assigned magistrate judge issued findings and

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recommendations recommending the action go forward on certain claims and that the remaining

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claims and defendants be dismissed. (Doc. No. 44.) Those findings and recommendations were

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served on plaintiff and contained notice that any objections must be filed within thirty days.

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Plaintiff filed his objections on March 4, 2016. (Doc. No. 45.)

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a
de novo review of this case. Having carefully reviewed the entire file, including plaintiff’s
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objections, the court finds the findings and recommendations to be supported by the record and

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by proper analysis.

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Plaintiff argues in his objections that his transfer from California State Prison - Corcoran

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did not moot his claims for injunctive and declaratory relief. He argues the issues he complained

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of are ongoing issues existing throughout the California Department of Corrections and

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Rehabilitation (“CDCR”), and have existed from the moment plaintiff embraced the Creativity

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religion. He states he has been housed at no less than seven CDCR institutions, and that the

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issues he complains of have existed at each one. Plaintiff also states the issues exist at his current

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place of incarceration, California State Prison - Sacramento. According to plaintiff, he has

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already been transferred back to CSP-Corcoran on one occasion since this action was first filed in

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2012, and he believes he could be transferred again to CSP-Corcoran again at any time.

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In Alvarez v. Hill, 667 F.3d 1061, 1064–65 (9th Cir. 2012), the Ninth Circuit set out the

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parameters governing two mootness exceptions in the context of a former prisoner’s Religious

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Land Use and Institutionalized Persons Act (“RLUPIA”) claim: (1) where claims are capable of

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repetition, yet will continue to evade review; and (2) where claims challenge ongoing prison

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policies to which other inmates will remain subject.

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The mootness exception for claims capable of repetition, yet evading review, is limited to

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extraordinary cases in which (1) the duration of the challenged action is too short to be fully

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litigated before it ceases, and (2) there is a reasonable expectation the plaintiff will be subjected to

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the same action again. Alvarez, 667 F.3d at 1064 (internal citations omitted). Here, plaintiff has

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made no showing suggesting that the alleged restrictions were implemented for such a short

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period of time their constitutionality could not be fully litigated. In fact, plaintiff states the issues

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have existed for years. Moreover, nothing in the record before the court indicates there is a

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“reasonable expectation” plaintiff will be returned to CSP-Corcoran. Id.; see also Johnson v.

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Moore, 948 F.2d 517, 519 (9th Cir. 1991) (concluding that an inmate’s challenges to his

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conditions of confinement at a particular prison were moot because, after he had been transferred

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to another institution, he had failed to establish a “reasonable expectation of returning [to the first

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prison]”). Finally, while plaintiff suggests he has faced similar issues at numerous different
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CDCR institutions, the activities which underlie this action are the taking of allegedly religious

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material by a correctional officer at CSP-Corcoran as well as a number of issues surrounding his

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requests at CSP-Corcoran to be put on a specific type of diet purportedly necessary for his

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religious practices. These complaints focus on the alleged past activities of specific employees at

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CSP-Corcoran, not on policies allegedly adopted throughout the CDCR. Therefore, this

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exception to the mootness doctrine does not apply.

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The second mootness exception, recognized in United States v. Howard, 480 F.3d 1005

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(9th Cir. 2007), was substantially limited by the Ninth Circuit’s holding in Alvarez, where the

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court explained that the exception had never been applied beyond circumstances involving short-

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lived pretrial proceedings in criminal prosecutions, where civil class actions would not be

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conducive to obtaining the relief sought. Alvarez, 667 F.3d at 1065. The court in Alvarez

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continued, however, that even if the holding in Howard applied more broadly, it would not apply

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to the inmate’s RLUIPA claims. “While we have assumed, for purposes of this appeal, that at

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least some of the policies and practices Alvarez challenged remain ongoing and, thus, will

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continue to affect current ODOC inmates, those inmates can bring their own RLUIPA claims

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challenging those policies.” Id.

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This case is controlled by the holding of the court in Alvarez. Other inmates practicing the

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Creativity religion who are currently subject, or may become subject, to the allegedly unlawful

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practices and policies placed at issue by plaintiff in this action can bring their own claims in

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separate actions.

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Therefore, because plaintiff’s transfer from CSP-Corcoran renders injunctive and

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declaratory relief unavailable in this case, the magistrate judge correctly recommended dismissing

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plaintiff’s RLUIPA claims and defendants CDCR and CSP-Corcoran from the suit.

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To the extent plaintiff requests that he be permitted to address the issues by way of a class

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action lawsuit, he is advised a pro se litigant generally cannot “fairly and adequately protect the

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interests of the class.” Fed. R. Civ. P. 23(a)(4); Fymbo v. State Farm Fire & Casualty Co., 213

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F.3d 1320, 1321 (10th Cir. 2000). While a non-attorney proceeding pro se may bring his own

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claims to court, he generally may not pursue claims on behalf of others in a representative
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capacity. E.g., Simon v. Hartford Life, Inc., 546 F.3d 661, 664–65 (9th Cir. 2008); Fymbo, 213

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F.3d at 1321.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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The findings and recommendations dated February 26, 2016 (Doc. No. 44), are
ADOPTED IN FULL;

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2.

This action SHALL PROCEED only on plaintiff’s First Amendment,

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Establishment Clause and equal protection claims against defendants Albitre,

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Smith, Indermill, Mayo, Mussellman, Ruiz, and Carron; and

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Defendants CDCR and CSP are DISMISSED from this action.

IT IS SO ORDERED.
Dated:

March 21, 2016
UNITED STATES DISTRICT JUDGE

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