Harris v. Pimentel, et al.
FINDINGS and RECOMMENDATIONS to (1) Grant Defendant's Motion for Summary Judgment, (2) Deny Defendant's Motion to Strike Evidence Submitted by Plaintiff in Opposition 69 , signed by Magistrate Judge Michael J. Seng on 9/22/16. Referred to Judge Drozd; 14-Day Deadline. (Verduzco, M)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
FINDINGS AND RECOMMENDATIONS
Case No. 1:13-cv-1354-DAD-MJS (PC)
(1) GRANT DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT
(2) DENY DEFENDANT’S MOTION
TO STRIKE EVIDENCE
SUBMITTED BY PLAINTIFF IN
(ECF Nos. 69, 109-3)
FOURTEEN (14) DAY OBJECTION
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil
22 rights action brought pursuant to 42 U.S.C. § 1983. The case proceeds on Plaintiff’s
23 October 31, 2013, first amended complaint (“FAC”) against Defendant Escamilla for
24 violating Plaintiff’s First Amendment right to the free exercise of his religion. (ECF No.
Relevant Procedural History
Before the Court is Defendant’s February 8, 2016 motion for summary judgment.
1 (ECF No. 69.) On July 18, 2016, Plaintiff filed his opposition. (ECF No. 107.) On July
2 26, 2016, Defendant filed a reply. (ECF No. 109.) The matter is submitted pursuant to
3 Local Rule 230(/).
Within his reply, Defendant filed a motion seeking to strike several pieces of
5 evidence submitted by Plaintiff in support of his opposition. (ECF No. 109-3.)
6 has not responded to this request, nor has he sought leave to do so. That motion is also
7 pending before the Court.
The undisputed facts may be summarized as follows.
At the time of the events underlying this action, Plaintiff was incarcerated at
12 California State Prison (“CSP-Corcoran”) in Corcoran, California. (“Pl.’s Resp. to Def.’s
13 Req. for Admis. No. 1” (ECF No. 69-5 at 3.)) Plaintiff, who has been a practicing Muslim
14 for all of his adult life, was the inmate Imam at CSP-Corcoran. (FAC at 4; Harris Dep.
15 10:20-22, 46:13-19.)
On January 14, 2013, Defendant Escamilla and his partner, Officer Sanchez,
17 searched Plaintiff’s cell while Plaintiff was not present. (FAC at 3.) Plaintiff’s cellmate,
18 inmate Rudy Tellez, was present.
(FAC at 5; Tellez Decl.2 (ECF No. 107 at 62).)
19 Plaintiff received a “cell search slip” documenting the search. (Escamilla Decl. ¶ 5.)
Defendant argues in his reply brief (ECF No. 109 at 2) that Plaintiff’s failure to include a separate
response to Defendant’s Statement of Undisputed Facts justifies deeming all of Defendant’s facts
admitted pursuant to Local Rule 260(b). That Rule requires that a party opposing summary judgment
admit those facts that are undisputed, deny those that are disputed, and cite to a particular part of the
record in support of that denial. Plaintiff does, however, respond to Defendant’s Undisputed Facts in
substance by setting out his own version of the facts in the body of his opposition (ECF No. 107 at 3-29),
albeit without citing to specific portions of the record in support of each fact. However, Plaintiff’s factual
allegations made on personal knowledge and sworn to under penalty of perjury may be treated as
opposing affidavits. See McElroy v. Cox, Civil No. 1:08cv1221-JTM-MDD, 2011 WL 2580294, n. 4 (E.D.
Cal. June 23, 2011). Where the Court finds support for an asserted fact in a sworn portion of the record
based on personal knowledge, the Court will consider it.
Defendant moves to strike numerous items and portions of evidence submitted by Plaintiff with his
opposition, including portions of the Tellez Declaration. (ECF No. 109-3.) If and when the Court finds it
appropriate to consider evidence that Defendant has objected to, it will note and explain its reason for
considering such evidence. Unless so mentioned, the objected-to evidence was found not to be relevant
or material to the Court’s evaluation and conclusions.
1 None of Plaintiff’s religious property, including his Quran, was taken from the cell during
2 the search, however a cloth book cover was seized. (“Cell Search Receipt,” Escamilla
3 Decl. Ex. A (ECF No. 69-6 at 4); Harris Dep. 139:21-140:3.) Ten days after the search,
4 Plaintiff obtained a replacement Quran from the prison chapel. (Harris Dep. 44:11-21,
5 49:13-20:10, 183:25-184:13.)
Random cell searches are necessary to maintain institutional security.
7 (Escamilla Decl. ¶¶ 2-3.) There are no prison policies or regulations against searching
8 an inmate’s religious property. (Id. at ¶ 4; Pl. Opp’n (ECF No. 107) at 4.)
The Cell Search
Defendant maintains that the cell search was routine and conducted according to
13 protocol. (Escamilla Decl. ¶¶ 3-5.) He claims that the items he confiscated from the cell
14 were contraband, he left the cell and its contents exactly as he found them, and he
15 never stepped on or kicked Plaintiff’s Quran. (Id. ¶ 5-6.)
Plaintiff states he returned to his cell to find his Quran on the floor under his
18 bunk. (FAC at 5.) Tellez’s declaration describes the events of in a single paragraph.
19 (See ECF No. 107 at 62.) Tellez says he saw Defendant pick up Plaintiff’s Quran,
20 remove its cloth cover, drop it on the floor, and kick it. (Harris Dep. 104:5-10; Tellez
21 Decl.) Plaintiff states a boot print was left on the Quran. (FAC at 5.)
Plaintiff submitted an Inmate Request Form 22 (“CDCR 22”) to Community
23 Resource Manager (“CRM”) Marlene Smith Robicheaux the same day as the search,
24 complaining about Defendant’s mistreatment of Plaintiff’s belongings, but making no
25 mention of a need for a new Quran. (Jan. 14, 2013 CDCR 22 (ECF No. 107 at 121)).
Desecration of the Quran
Defendant denies having desecrated Plaintiff’s Quran in any way. He asserts
4 that there is not now and has never been a boot print on it. (Harris Dep. 20:14-23:16.)
5 In support, he notes that neither Plaintiff’s January 14, 2013 CDCR 22 or his January
6 23, 2013 inmate grievance form mention any such boot print on the Quran. (ECF No.
7 107 at 64-69, 121) He also refers to the declaration of Imam A. Johnson, the Muslim
8 chaplain at Pleasant Valley State Prison (“PVSP”) (ECF No. 69-7), who submits that the
9 absence of physical proof of desecration (i.e., no visible boot print) establishes that the
10 Quran was not desecrated as defined by Islamic law. (Johnson Decl. ¶ 4.) (Imam
11 Johnson does not state how “desecration” is defined under Islamic law.)
Imam Johnson declares further that even if there had been a boot print which
13 deterred Plaintiff from reading his Quran, Islamic law does not require reading the
14 Quran daily; had such a law existed, Plaintiff could have read alternative religious texts
15 in his possession. (Johnson Decl. ¶ 3.)
Plaintiff states that the boot print that was once visible on his Quran has since
18 faded away. (Harris Dep. 21:19-24.) He also rejects the interpretation of Islamic law
19 proffered by Imam Johnson and cites to other religious texts and scholarly material to
20 support his own interpretation. (Pl.’s Opp’n at 9-10, 99-117.) According to Plaintiff, his
21 Quran was “desecrated”—that is, touched with dirt or feet—when Defendant stepped on
22 it and kicked it under the bed, and Plaintiff thus was unable to read it. (FAC at 7. Pl.
23 Opp’n at 105-17.)
Plaintiff also states that his Muslim faith requires him to read the Quran every day
25 and no other religious text is an adequate substitute. (Pl. Opp’n at 11-12, 99-104, and
Obtaining a New Quran
Plaintiff had requested and received religious books and materials from CRM
4 Robicheaux in the past. (Robicheaux Decl. (ECF No. 69-8) ¶¶ 3-4.) He did not request a
5 new Quran from CRM Robicheaux after the January 14 event. Thus, the failure to
6 obtain a new Quran promptly is attributable to Plaintiff’s failure to request one.
Plaintiff attributes his inability to immediately obtain a replacement Quran to
9 circumstances beyond his control. The day after the cell search, Plaintiff went to the
10 prison chapel to retrieve a new copy, but an unnamed prison official denied him access.
11 (Harris Decl.3 (ECF No. 107 at 119.)) On Plaintiff’s next available chapel visit
12 opportunity, the prison was on lock-down. Plaintiff had to wait another week before he
13 could enter the chapel and request a new Quran. Id. Plaintiff finally obtained a new
14 Quran ten days after the incident.
Plaintiff claims that he did not need nor seek CRM Robicheaux’s assistance in
16 replacing the Quran because, as an inmate Imam, Plaintiff should have had the entire
17 chapel library at his disposal. (Pl.’s Opp’n at 14.) In any case, CRM Robicheaux never
18 responded to Plaintiff’s January 14, 2013 CDCR 22 complaining about the search or to
19 his “many” requests for materials and books. (Harris Decl. at 120.) Id. (He does not say
20 when these requests were made or what, specifically, was requested.)
Summary Judgement Standard
Any party may move for summary judgment, and “[t]he [C]ourt shall grant
23 summary judgment if the movant shows that there is no genuine dispute as to any
24 material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
Defendant moves to strike Plaintiff’s declaration (one of three) attached at pages 119-120 of Plaintiff’s
26 opposition. (ECF No. 109-3 at 6.) That declaration, made under penalty of perjury, sets forth reasons
Plaintiff could not obtain a new Quran until ten days after the search.
Defendant objects that this
27 information is “immaterial.” The Court finds the evidence to be a relevant, material and admissible
response to Defendant’s claim that the ten day delay was of Plaintiff’s own making. The objection as to
28 the Harris Declaration at ECF No. 107, at 119, is overruled. .
1 56(a). Each party’s position, whether it be that a fact is disputed or undisputed, must be
2 supported by (1) citing to particular parts of materials in the record, including but not
3 limited to depositions, documents, declarations, or discovery; or (2) “showing that the
4 materials cited do not establish the absence or presence of a genuine dispute, or that
5 an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ.
6 P. 56(c)(1).
The party seeking summary judgment “always bears the initial responsibility of
8 informing the district court of the basis for its motion, and identifying those portions of
9 the pleadings, depositions, answers to interrogatories, and admissions on file, together
10 with the affidavits, if any, which it believes demonstrate the absence of a genuine issue
11 of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation
12 marks omitted).
If the movant will have the burden of proof at trial, it also must
13 demonstrate, with affirmative evidence, that “no reasonable trier of fact could find other
14 than for the moving party.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th
15 Cir. 2007). In contrast, if the nonmoving party will have the burden of proof at trial, “the
16 movant can prevail merely by pointing out that there is an absence of evidence to
17 support the nonmoving party’s case.” Id. (citing Celotex, 477 U.S. at 323). Once the
18 moving party has met its burden, the nonmoving party must point to "specific facts
19 showing that there is a genuine issue for trial." Id. (quoting Anderson v. Liberty Lobby,
20 Inc., 477 U.S. 242, 250 (1986)).
In ruling on a motion for summary judgment, a court does not make credibility
22 determinations or weigh evidence. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
23 250 (1986).
Rather, “[t]he evidence of the non-movant is to be believed, and all
24 justifiable inferences are to be drawn in his favor.” Id. Only admissible evidence may
25 be considered in deciding a motion for summary judgment. Fed. R. Civ. P. 56(c)(2).
26 “Conclusory, speculative testimony in affidavits and moving papers is insufficient to
27 raise genuine issues of fact and defeat summary judgment.” Soremekun, 509 F.3d at
Here, Defendant has moved for summary judgement. As the party who will not
2 have the burden of proof at trial, Defendant “can prevail merely by pointing out that
3 there is an absence of evidence to support the [Plaintiff’s] case.” Id. (citing Celotex, 477
4 U.S. at 323). Assuming Defendant has met this burden, to defeat summary judgment,
5 Plaintiff must point to "specific facts showing that there is a genuine issue for trial." Id.
6 (quoting Liberty Lobby, Inc., 477 U.S. at 250). In any instance where there is a dispute
7 over a material fact, the Court must resolve any controversy in favor of the non-moving
8 party. Lujan v. National Wildlife Federation, 497 U.S. 871, 888 (1990).
Plaintiff’s Miscellaneous Arguments
The Court first addresses two arguments propounded by Plaintiff in his
12 opposition. First, Plaintiff seeks to submit evidence of Defendant’s character as proof
13 that he committed a constitutional violation in this case. (Pl.’s Opp’n at 6; “Proof of
14 Reprisals and 602’s Related Cases” (ECF No. 107 Ex. B-8 at 80-96.)) Since such
15 evidence is inadmissible character evidence and not dispositive of whether Defendant
16 behaved inappropriately during the cell search at issue in this case, the Court will not
17 consider it.
Fed. R. Evid. 404(a) (“Evidence of a person’s character or a trait of
18 character not admissible for the purpose of proving action in conformity therewith on a
19 particular occasion”); Perez v. Woodford, No. CV-1-06-610-MHM, 2010 WL 3943536, at
20 *8 (E.D. Cal. Oct. 1, 2010) (“The Court cannot consider inadmissible evidence in its
21 summary judgment analysis”) (citing Orr v. Bank of Am., 285 F.3d 764, 773 (9th Cir.
Plaintiff also challenges the validity of the cell search. Issues of whether the
24 search was conducted in accordance with established protocol or whether non-religious
25 contraband was improperly removed from the cell are not before this Court at this time.
First Amendment Free Exercise of Religion
The First Amendment to the United States Constitution provides that “Congress
4 shall make no law respecting the establishment of religion, or prohibiting the free
5 exercise thereof . . . .” U.S. Const. amend. I. “[P]risoners retain the protections of the
6 First Amendment” but their “right to freely exercise [their] religion is limited by
7 institutional objectives and by the loss of freedom concomitant with incarceration.”
8 Hartmann v. California Dep’t of Corr. & Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013)
9 (citing O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1997)). The protections of the
10 Free Exercise Clause are triggered when prison officials substantially burden the
11 practice of an inmate’s religion by preventing him from engaging in conduct which he
12 sincerely believes is consistent with his faith, but an impingement on an inmate’s
13 constitutional rights will be upheld “‘if it is reasonably related to legitimate penological
14 interests.’” Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008) (quoting Turner v.
15 Safley, 482 U.S. 78, 89 (1987)).
In order to reach the level of a constitutional violation, the interference with one's
19 practice of religion “must be more than an inconvenience; the burden must be
20 substantial and an interference with a tenet or belief” sincerely held by Plaintiff.
21 Freeman, 125 F.3d at 736-37. Defendant propounds several arguments in support of
22 his assertion that Plaintiff’s religious exercise was not “substantially burdened.”
Evidence Quran Was Stepped On or Kicked
Defendant first argues that Plaintiff has produced no competent evidence that his
25 Quran was kicked or stepped on or otherwise desecrated. Indeed, Plaintiff’s failure to
26 mention any such claim in his earlier grievances suggests he contrived it purely for
27 litigation purposes.
On the other hand, witness Tellez avers that he saw Defendant drop the Quran
2 on the floor and kick it. Plaintiff claims he saw a foot print on the Quran immediately
3 after the search.
This dispute of fact precludes summary resolution of that fact.
Requirement to Read the Quran Every Day
Defendant relies on Imam Johnson’s statement to prove that Islamic law does
7 not require Plaintiff to read the Quran every day. Plaintiff disagrees.
The Court cannot resolve that religious dispute. It need not do so hear.
It is well-settled that “it is the sincerity of the inmate’s belief rather than its
10 centrality to his faith that is relevant to the free exercise inquiry.” Shakur, 514 F.3d at
11 884-85 (overruling holding in Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir. 1997), that
12 a plaintiff asserting a free exercise claim must show that the defendants prevented the
13 plaintiff from engaging in conduct mandated by his faith); Malik v. Brown, 16 F.3d 330,
14 333 (9th Cir. 1994). Here, Plaintiff asserts that his interpretation of Islam imposes such
15 a requirement. As it is the sincerity, and not centrality, of Plaintiff’s belief that controls,
16 summary resolution of that issue is unavailing.
Defendant Did Not Cause the Ten-Day Delay in
Obtaining a New Quran
Defendant argues that he did not cause the ten-day deprivation of Plaintiff’s
Quran and that, in any event, a ten-day delay is a minor, insubstantial burden on
Plaintiff’s religious exercise.
The evidence before the Court establishes that Plaintiff did not receive a
replacement Quran until ten days after the incident either because (1) he did not ask for
one from CRM Robicheaux, (2) an unidentified officer denied Plaintiff access to the
chapel the day after the incident, and/or (3) a prison lock down prevented him from
accessing the chapel until ten days after the incident.
Common law of torts provides the causation element applicable to civil rights
violations. Stevenson v. Koskey, 877 F.2d 1435, 1438 (9th Cir. 1989) “The requisite
1 causal connection can be established not only by some kind of direct personal
2 participation in the deprivation, but also by setting in motion a series of acts by others
3 which the actor knows or reasonably should know would cause others to inflict the
4 constitutional injury.” Id. at 1438-89 (quoting Johnson v. Duffy, 588 F.2d 740, 743-44
5 (9th Cir. 1978)); see also Van Ort v. Estate of Stanwich, 92 F.3d 831, 837 (9th Cir.
6 1996) (discussing the requirement under section 1983 that the alleged unconstitutional
7 conduct must be the proximate cause of the section 1983 injury).
In this case, there is no evidence that Defendant was directly responsible for the
9 ten day delay. The question thus is whether he knew or reasonably should have known
10 that desecration of Plaintiff’s Quran would result in Plaintiff having to go without a Quran
11 for an extended, ten day period. There is no evidence to support such a conclusion.
12 Plaintiff’s failure to immediately request a new Quran, the unidentified officer’s refusal to
13 allow Plaintiff into the chapel, and the prison lock down were not reasonably
14 foreseeable consequences of Defendant’s conduct.
To the extent a defendant might anticipate that desecration of a Quran could
16 deprive its owner of access to a replacement for a day or so, such a delay would not
17 constitute a substantial burden. Canell v. Lightner, 143 F.3d 1210, 1215 (9th Cir. 1998)
18 (interference that is “relatively short-term” is not substantial); Freeman, 125 F.3d at 73619 37; see, e.g., Green v. Sneath, 508 Fed. App’x 106, 110 (3d Cir. 2013) (no substantial
20 burden where officials offered prisoner a replacement Quran within one day of seizing
21 his and any delay in obtaining prisoner’s preferred translation of the Quran was for
22 administrative reasons not attributable to the defendants); Marsh v. Corrections Corp of
23 America, 134 F.3d 383, 383 (10th Cir. 1998) (table decision) (fifteen-day deprivation of
24 prisoner’s religious property did not amount to a First Amendment violation).
Since the Court finds that no facts before it justify holding Defendant responsible
26 for a ten-day deprivation of Plaintiff’s access to the Quran, the Court need not determine
27 whether the ten day absence constituted a substantial burden on Plaintiff’s religious
Thus, the Court finds that even if the evidence supported Plaintiff’s claims that
2 Defendant desecrated Plaintiff’s Quran, a despicable act in and of itself, and even if
3 Plaintiffs’ beliefs dictated that he read from the Quran daily, it cannot support a finding
4 that Defendant caused an extended delay in Plaintiff replacing his Quran and thus
5 caused a substantial burden on Plaintiff’s religious exercise. Accordingly, the
6 undersigned will recommend that summary judgment be entered for Defendant. Given
7 this recommendation, the Court sees no need to, and will not, address Defendant’s
8 alternative arguments, including his entitlement to qualified immunity.
Based on the foregoing, it is HEREBY RECOMMENDED that:
1. Defendant’s motion for summary judgment (ECF No. 69) be GRANTED;
2. Defendant’s motion to strike (ECF No. 109-3) be DENIED.
These Findings and Recommendations are submitted to the United States
15 District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1).
16 Within fourteen (14) days after being served with these Findings and Recommendation,
17 any party may file written objections with the Court and serve a copy on all parties.
18 Such a document should be captioned “Objections to Magistrate Judge’s Findings and
Any reply to the objections shall be served and filed within
20 fourteen (14) days after service of the objections. The parties are advised that failure
21 to file objections within the specified time may result in the waiver of rights on appeal.
22 Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923
23 F.2d 1391, 1394 (9th Cir. 1991)).
IT IS SO ORDERED.
September 22, 2016
Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
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