Oliver v. Adams et al

Filing 26

FINDINGS and RECOMMENDATIONS Recommending Dismissal of Certain Claims for Failure to State a Cognizable Claim Upon Which Relief May be Granted, signed by Magistrate Judge Stanley A. Boone on 5/7/2015, referred to Judge O'Neill. 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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KENNETH OLIVER,

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Plaintiff,

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v.

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DARRYL ADAMS, et al.,

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Defendants.

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FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF CERTAIN
CLAIMS FOR FAILURE TO STATE A
COGNIZABLE CLAIM UPON WHICH RELIEF
MAY BE GRANTED
[ECF No. 24]

pursuant to 42 U.S.C. § 1983.
Now pending before the Court is Plaintiff‟s second amended complaint, filed March 12, 2015.1

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Case No.: 1:14-cv-00088-LJO-SAB (PC)

Plaintiff Kenneth Oliver is appearing pro se and in forma pauperis in this civil rights action

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(ECF No. 24.)

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I.

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SCREENING REQUIREMENT

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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 legally

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A duplicate copy of the second amended complaint, minus the standard complaint form and exhibits was lodged with the
Court on March 19, 2015. (ECF No. 25.)

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“frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or that “seek[]

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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

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

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entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but

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

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do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally

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participated in the deprivation of Plaintiff‟s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir.

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2002).

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Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally

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construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121

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(9th Cir. 2012) (citations omitted). To survive screening, Plaintiff‟s claims must be facially plausible,

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which requires sufficient factual detail to allow the Court to reasonably infer that each named

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defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service,

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572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not

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sufficient, and “facts that are „merely consistent with‟ a defendant‟s liability” falls short of satisfying

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the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.

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II.

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COMPLAINT ALLEGATIONS

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Plaintiff is a faithful adherent to the African based spiritual practice commonly referred to as

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“Shetaut Neter.” Plaintiff has practiced Shetaut Neter since 2000. Shetaut Neter is an African

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derived spiritual system with roots that extend back to dynastic Egypt and has numerous followers

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around the world. The central aims and tenets enjoined in the Shetaut Neter practice involve men and

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woman seeking oneness with God in an effort to attain God-like consciousness through a life of virtue

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and cultivation of the spirit. This practice relies heavily on the study of scientific knowledge,

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meditation, and daily prayer practice, body discipline and maintaining an ascetic diet.

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As a practitioner of Shetaut Neter, Plaintiff is required to study the various texts and scriptures
related to its practice, worship through prayer and meditation using a prayer rug at least three times
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daily, maintain a specific and stringent vegetarian diet (commonly referred to as the “Kemetic Diet”),

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participate in group study, worship and service, and honor through recognition and practice specific

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religious holiday observances.

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The Kemetic Diet is a central tenet and component to the practice of Shetut Neter and prohibits

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the consumption of any meat or animal derived product, including dairy and egg products; wheat or

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products containing refined sugar or any genetically modified foods. In short, Plaintiff is required to

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maintain a diet that consists of 80% raw foods such as nuts, seeds, fruits and vegetables, and

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approximately 20% cooked foods such as legumes, tofu, soy, and other vegetarian sources of proteins,

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calories and vitamins.

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On February 26, 2009, Plaintiff was transferred from the California Men‟s Colony in San Luis

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Obispo to Corcoran State Prison, Security Housing Unit (SHU). Shortly after Plaintiff‟s arrival at

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Corcoran, he submitted a “request for interview” form to the Corcoran Chapel for religious services

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requesting an accommodation for his religious based dietary needs and for information regarding

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authorization on how he could obtain his personal prayer rug from his property and other materials

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related to his spiritual practice. Plaintiff received no response.

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In May of 2009, approximately 45 days after Plaintiff initially submitted the request for

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interview, Plaintiff submitted a second request to the Chapel in an effort to obtain approval for

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religious accommodations mentioned above. Plaintiff received no response.

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After Defendants failed to respond to Plaintiff‟s second written request, Plaintiff filed an

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administrative appeal regarding Defendants refusal to provide him with reasonable opportunity to

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exercise his religious practice when there was no meaningful or legitimate penological interest in

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doing so.

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On July 29, 2009, Defendant A. El-Amin, interviewed Plaintiff in regard to his grievance and

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request for religious accommodation. Defendant El-Amin informed Plaintiff that he would

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accommodate Plaintiff‟s request to be provided religious study materials and scriptural texts related to

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the practice of Shetaut Neter and that the Chapel would order the materials during its next purchase

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order. In regard to Plaintiff‟s other religious request, El-Amin informed Plaintiff that he would look

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into accommodating Plaintiff‟s requests with the “head chaplains.”
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On August 4, 2009, Defendants El-Amin and Field forwarded Plaintiff a memorandum that

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stated his administrative appeal was being “partially granted.” Specifically, the memorandum stated

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that Plaintiff‟s request for religious books and materials would be accommodated and expedited as

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soon as possible. Plaintiff‟s request for access to a Shetaut Neter priest or access via service on DVD

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or the institutional television channels was denied. Defendants informed Plaintiff that religious

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television programming was the responsibility of the “educational heads,” and his diet requirements

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had to be coordinated through the institution food services. Defendants denied all other

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accommodation requests made by Plaintiff.

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Plaintiff appealed Defendant El-Amin and Fields denial of his request for religious

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accommodations to the Warden of Corcoran, Defendant Derral Adams. Defendant R. Davis addressed

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Plaintiff‟s appeal on behalf of Derral Adams. Davis informed Plaintiff that he would not be allowed

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any type of group service because he is housed in the SHU and Plaintiff could worship individually

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within his cell. Davis denied Plaintiff‟s religious diet request, as well as all other requests for

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reasonable accommodations.

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Defendants N. Grannis and K. Kostecky, on behalf of Defendant Cate, denied all of Plaintiff‟s

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requests for reasonable religious accommodations, stating in essence that Plaintiff could put his

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blanket on the floor and worship/pray in his cell.

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Between October 2009 through June 2010, Plaintiff submitted multiple requests to Defendants

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El-Amin, M. Smith, and Van Klaverer, seeking confirmation of the religious scriptural texts, which

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were never received.

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Sometime between 2010 through 2011, Corcoran officials began broadcasting at least five

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separate Christian channels through its institutional closed-circuit television system. These channels

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broadcast Christian programming 24 hours a day, seven days a week, in both English and Spanish.

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These channels dedicated exclusively to Christian content were the sole religious programming

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broadcast through Corcoran‟s institutional television system.

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Upon information and belief the institutionally broadcast religious programming was

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facilitated by Defendants Van Klaverer, Smith, Adams, Davis, El-Amin, Field, Carron, and/or any of

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several Doe Defendants. These Defendants are directly responsible for the prison‟s religious and

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institutional television programming decisions.

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CDCR has promulgated rules and regulations that set forth its policies regarding religious

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programming for prisoners under its charge. Defendant Cate was responsible for the administration

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and implementation of CDCR‟s policies, practices, and procedures. Consequently, he had both the

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authority and responsibility to ensure that CDCR‟s religious programming policies were all inclusive

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and flexible enough to comply with and not choke the constitutional rights of all prisoners.

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Defendants Does Four and Five were responsible for all programming and policy formulation

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within CDCR‟s adult institutions and to ensure consistently and uniformity in their development and

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application. Moreover, these Defendants had managerial responsibility for the Office of Community

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Resources, who is responsible for providing policy and training to institutional staff regarding

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religious programming.

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Defendant Doe Six was responsible for all aspects of policy and programming formulation for

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CDCR‟s Division of Support Services, which includes the Department‟s religious programming. This

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Defendant has complete line authority over the approval or disapproval of religious programming

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policy and reports directly to the Secretary of CDCR.

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Defendant Doe Seven was charged with providing policy, supervision and training to the

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institution‟s staff who would be directly responsible for providing religious accommodations to

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prisoners.

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Defendants Cate and Does Four through Six have created, adopted, or enforced a religious

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service policy that provides for a Jewish Chaplain or Rabbi to have absolute autonomy and decision

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making authority over determining: (a) whether or not a prisoner is or isn‟t “Jewish” in accord with a

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subjective and bias criteria determined by the Jewish chaplain; and (b) who can and cannot participate

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in the Jewish Kosher Diet program. This policy does not take into account the actual religious faith of

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the prisoner applying, but rather is being determined based on proof of a so-called Jewish ethnicity.

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For example, a prisoner applicant who can show that his mother or father is “Jewish” would be

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approved for receipt of a religious based Kosher diet. On the other hand, a prisoner who had studied

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and adopted the Jewish faith, but who wasn‟t considered by the Jewish Chaplain to be a so-called

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“real” Jew by birth would be disapproved to participate in the program.

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These Defendants created, adopted, or enforced this policy while not making the same or

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similar requirements on other religious diet programs or its prisoner participants. No other faith-based

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Chaplain has been given the autonomy and final decision making authority to determine the faith and

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beliefs of a prisoner or the necessity of a particular religious diet relevant to his religious practice.

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In addition, these Defendants created, adopted, or enforced a policy that advanced only two

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real religious diets, Jewish and Islamic, while failing to promulgate a policy that allowed dietary

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opportunities to prisoners who subscribe to other denominations or faiths.

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This policy also advanced preferential treatment to those “approved” Jewish diet prisoners and

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discriminated against those of other faiths, by allowing any prisoner, Muslim or non-Muslim to

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receive an Islamic Halal diet, while at the same time not allowing “non-Jewish” prisoners to receive a

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Jewish Kosher diet.

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Defendants Cate and Does Four through Six were responsible for the supervision, oversight,

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training and compliance of CDCR‟s Community Resource Unit (CRU). The CRU administers,

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interprets, and formulates religious policy and procedures; reviews chaplain selections prior to

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appointment; and advises on the conduct of religious programs and in-service training for chaplains.

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Defendants Cate and Does Four through Six have created, adopted, or enforced a policy that

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requires each institution to have a Religious Review Committee. This committee must be comprised

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of designated chaplains, and a correctional captain or their designee.

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This policy mandates that a Religious Review Committee shall not deny accommodations for

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religious services unless the denial is for reasons which would impact facility safety and security and

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orderly day to day operation of the institution.

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This provision of the policy is actually illusory and empty because Defendants Cate and Does

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Four through Six have promulgated and enforced a policy that confines any so-called Religious

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Review Committee‟s authority or discretion to approve a prisoner‟s request for religious service

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beyond that which Defendants have already approved and advanced.

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Defendant Cate and Does Four and Six have approved and advanced the Jewish Kosher diet

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and the Muslim Halal diet while failing to provide regulations that allow for the dietary provisions for

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prisoners of alternative faiths.

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This same regulatory restriction infects the type of spiritual advisors or chaplains CDCR

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dictates can be paid to enter the prisoner to administer service. Defendants have formulated and

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enforced a policy that prefers Western World religions while marginalizing and relegating alternative

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faiths to second class status. This preference manifests itself in the policy itself, which allows only

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paid spiritual advisor or chaplain positions for Islam, Judaism, Christianity, and Native American.

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Apart from the statewide mandates regarding particular religious services for particular

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denominations, CDCR has charged each institution Warden with the responsibility for the religious

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programming in their respective prisons. Chief Deputy Wardens or Associate Wardens are charged

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with the supervision of the staff chaplains.

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Defendant Adams formulated and enforced Corcoran‟s “Operational Procedure” No. 804

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“Religious Program.” This procedure set forth the policy directives for the accommodation of

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religious services. Defendants El-Amin, Carron, and Does One through Three, under the supervision

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of Defendant Smith, were responsible for the implementation of this procedure.

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Upon information and believe, neither CDCR or Corcoran has ever authorized an Institutions

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Food Services Division to approve or deny religious diet accommodation requests. Nor is Plaintiff

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aware of any policy instructing prisoners to pursue such channels.

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Plaintiff is aware, through observation and knowledge, that Defendants Smith and El-Amin

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regularly approve requests made by prisoners to receive a so-called vegetarian or Halal religious diet,

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whether or not the request is based on a religious practice or faith.

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Plaintiff is aware through observation and knowledge that Defendant Carron routinely denied

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prisoner‟s religious accommodation requests for a Jewish Kosher diet unless a prisoner could “prove”

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he was born Jewish or that he had been converted by a sanctioned Temple or Rabbi in free society,

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whether or not the request was based on the actual practice of Judaism.

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Plaintiff is aware through observation and knowledge that Defendants El-Amin, Carron, and

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Does One through Three have routinely approved requests by prisoners to possess prayer rugs for

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religious worship. These prisoners belonged to one of Corcoran‟s “approved” faith groups.

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Both CDCR and Corcoran have codified policies and allocated funds to fulfill the purchase of

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religious books, materials, video and audiotapes, and other religious items for the purpose of religious

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programing and accommodation. Upon information and belief, Defendants have allocated and used

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these funds primarily on the five “approved” denominations, and have failed or refused to provide

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funding for books, materials and other religious items for prisoners who practice alternative faiths.

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Upon information and belief Defendants Smith, El-Amin, Adams, Fields, Carron and Does

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One through Three were responsible for the budgeting, procurement, and allocation of religious books,

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audio and video tapes and other religious materials for prisoners at Corcoran.
Defendants Adams, Davis, Fields, Smith, El-Amin, Carron, and Does One through Three,

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have ordered, procured, allocated and approved the purchase of religious materials for the five

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“approved” faiths mentioned herein.

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Plaintiff is aware that sometime between 2010 and 2011, Defendants arranged and approved

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provisions for the installation of at least five separate Christian based broadcasting channels to be

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broadcast through Corcoran‟s institutional television system. These channels broadcast Christian

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religious services 24 hours a day, seven days a week, and were the only religious themed

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programming piped through the institution‟s television system.

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Prior to installation of the Christian broadcasting channels, Defendants denied Plaintiff‟s

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request for Shetaut Neter religious services to be broadcast on Corcoran‟s institutional television

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system.

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CDCR employs the use of “holding cages” throughout the prison system. These cages are used

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to hold and detain individual prisoners for both long and short periods of time. These cages are

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regularly used in the SHU for classification hearings, recreational and therapy groups, educational

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testing, mental health interviews, and television watching for prisoner‟s mental health treatment.

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These cages are situated inside a secure “dayroom” inside each SHU housing unit.

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Plaintiff contends he was forced to pray and worship on a concrete floor without the
cleanliness or devotional reverence provided by one‟s prayer rug.
Defendants have housed Plaintiff in the solitary confinement of the SHU for non-disciplinary

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reasons for close to seven years. During this time, Plaintiff has been denied all physical contact,

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including any visits with his family and loved ones. He has not been allowed a single phone call.

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Plaintiff has also been denied any opportunity for education, recreation, or any other form of

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rehabilitative program. He has been denied any sort of meaningful conversation with other human

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beings on a regular or even periodic basis.

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III.

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DISCUSSION

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A.

Religious Land Use and Institutionalized Persons Act (RLUIPA)

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To state a claim under RLUIPA a plaintiff must show that a person acting under color of state

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law “imposed a substantial burden on his religious exercise.”

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Shevuyim, N.A., 639 F.3d 916, 921 (9th Cir. 2011). Under RLUIPA a plaintiff bears the initial

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burden of setting forth a prima facie claim that there is a substantial burden on the exercise his

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religious beliefs. Warsoldier v. Woodford, 418 F.3d 989, 994 (9th Cir. 2005.) RLUIPA is to be

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broadly construed in favor of protecting the inmate‟s right to exercise his religious beliefs.

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Warsoldier, 418 F.3d at 995.

Florer v. Congregation Pidyon

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The first step is to identify the religious exercise that is being affected and then determine if the

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policy at issue is a substantial burden on that religious exercise. Greene v. Solano County Jail, 513

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F.3d 982, 987 (9th Cir. 2008). RLUIPA defines “religious exercise” as “any exercise of religion,

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whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C § 2000cc-5(7)(A).

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To violate RLUIPA, Plaintiff must show that the denial of services placed a substantial burden on his

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right to exercise his religion. “In the context of a prisoner's constitutional challenge to institutional

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policies, [the Ninth Circuit] has held that a substantial burden occurs „where the state ... denies [an

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important benefit] because of conduct mandated by religious belief, thereby putting substantial

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pressure on an adherent to modify his behavior and to violate his beliefs.‟ ” Hartman, 707 F.3d at

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1124-25 (quoting San Jose Christian Coll. v. City of Morgan Hill, 360 F.3d 1024, 1034 (9th Cir.
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2004)). An outright ban of a religious exercise has been held to place a substantial burden on an

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inmate‟s right to exercise his religious beliefs. Greene, 513 F.3d at 988.

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Based on Plaintiff‟s allegations in the first amended complaint, Plaintiff states a cognizable

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claim under RLUIPA against Defendants Cates, Adams, Davis, Field, Smith, El-Amin, Grannis,

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Kostecky, and Does Four through Six.

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B.

Free Exercise of Religion

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“Prison walls do not form a barrier separating prison inmates from the protections of the

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Constitution.” Turner v. Safley, 482 U.S. 78, 84 (1987). Nevertheless, prisoners‟ constitutional rights

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are subject to substantial limitations and restrictions in order to allow prison officials to achieve

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legitimate correctional goals and maintain institutional security. O‟Lone v. Estate of Shabazz, 482

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U.S. 342, 348 (1987); Bell v. Wolfish, 441 U.S. 529, 546-47 (1979).

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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, 482 U.S. at 348 (internal quotations and

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citations omitted). The protections of the Free Exercise Clause are triggered when prison officials

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substantially burden the practice of an inmate‟s religion by preventing him from engaging in conduct

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which he sincerely believes is consistent with his faith. Shakur v. Schriro, 514 F.3d 878, 884-85 (9th

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Cir. 2008); Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir. 1997), overruled in part by Shakur, 514

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F.3d at 884-85. However, an inmate‟s rights and privileges are necessarily limited by the fact of

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incarceration and may be curtailed to achieve legitimate correctional goals or maintain institutional

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security. O‟Lone, 482 U.S. at 348. To prevail on his free exercise claim, Plaintiff must allege facts to

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plausibly show that the government denied him a “reasonable opportunity of pursuing [his] faith

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comparable to the opportunity afforded fellow prisoners who adhere to conventional religious

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precepts.” Hartmann v. California Dep‟t of Corrections and Rehabilitation, 707 F.3d 1114, 1122 (9th

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Cir. 2013) (quoting O‟Lone, 482 U.S. at 348).

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Based on Plaintiff‟s allegations in the first amended complaint, Plaintiff states a cognizable

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claim under the Free Exercise Clause against Defendants Cate, Adams, Davis, Field, Smith, El-Amin,

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Grannis, Kostecky, and Does Four through Six, relating to Plaintiff‟s religious diet, prayer rug,

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religious materials, worship service, and other programming.
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C.

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The Establishment Clause of the First Amendment “prohibits the enactment of a law or official

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policy that „establishes a religion or religious faith, or tends to do so.‟” Newdow v. Lefevre, 598 F.3d

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638, 643 (9th Cir. 2010) (quoting Lynch v. Donnelly, 465 U.S. 668, 678, 104 S.Ct. 1355 (1984)). The

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clause applies to official condonement of a particular religion or religious belief, and to official

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disapproval or hostility towards religion. American Family Ass‟n, Inc. v. City and County of San

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Francisco, 277 F.3d 1114, 1120-21 (9th Cir. 2002) (quotation marks and citations omitted).

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First Amendment Establishment Clause

Here, liberally construed, Plaintiff‟s allegations in the second amended complaint as to the

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preferential treatment of “conventional” religions such as Judaism and Christianity states a cognizable

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Establishment Clause claim against Defendants Cate, Adams, Davis, Field, Smith, El-Amin, Grannis,

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Kostecky, Van Klaverer, and Does Four through Six.

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D.

Equal Protection

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The Equal Protection Clause requires that all persons who are similarly situated should be

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treated alike. Lee v. City of Los Angeles, 250 F.3d 668, 686 (2001); City of Cleburne v. Cleburne

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Living Center, 473 U.S. 432, 439 (1985). An equal protection claim may be established by showing

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that the defendant intentionally discriminated against the plaintiff based on the plaintiff‟s membership

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in a protected class, Lee, 250 F.3d at 686; Barren v. Harrington, 152 F.3d 1193, 1194 (1998), or that

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similarly situated individuals were intentionally treated differently without a rational relationship to a

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legitimate state purpose, Thornton v. City of St. Helens, 425 F.3d 1158, 1167 (2005); Village of

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Willowbrook v. Olech, 528 U.S. 562, 564 (2000).

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Based on Plaintiff‟s allegations in the first amended complaint, Plaintiff states a cognizable

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claim under the Equal Protection clause against Defendants Cates, Adams, Davis, Field, Smith, Van

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Klaverer, El-Amin, Grannis, Kostecky, and Does Four through Six.

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E.

Due Process Violation

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Plaintiff contends he has a state-created liberty interest by statute, as well as a liberty interest

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protected by the Due Process Clause of the United States Constitution to have the ability to freely

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exercise his religious beliefs, and Defendants denial of this interest has created an atypical and

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significant hardship on Plaintiff.
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Plaintiff‟s claims of denial of religious accommodation do not arise under the Due Process

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clause, but are subsumed within his First Amendment and RLUIPA claims. Accordingly, Plaintiff

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fails to state a cognizable due process violation.

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F.

Cruel and Unusual Punishment

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Plaintiff contends that the denial of his religious rights is cruel and unusual punishment in

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violation of the Eighth Amendment. To constitute cruel and unusual punishment in violation of the

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Eighth Amendment, prison conditions must involve “the wanton and unnecessary infliction of pain.”

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Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Where a particular amendment provides an explicit

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textual source of constitutional protection against a particular sort of government behavior, that

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Amendment, . . . must be the guide for analyzing a plaintiff‟s claims.” Patel v. Penman, 103 F.3d 868,

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874 (9th Cir. 1996) (citations, internal quotations, and brackets omitted) overruled on other grounds by

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Unitherm Food Systems, Inc. V. Swift –Eckrick, Inc., 546 U.S. 394 (2006); County of Sacramento v.

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Lewis, 523 U.S. 833, 842 (1998).

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Plaintiff contends that Defendants were deliberately indifferent to Plaintiff‟s constitutional

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right to basic life necessities, such as personal contact with others, phone calls, education, and

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rehabilitation program, by his long-term indeterminate placement in non-disciplinary solitary

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confinement for close to seven years. An indeterminate sentence in segregated housing, without more,

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does not constitute cruel and unusual punishment in violation of the Eighth Amendment.

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Toussaint v. Yockey, 722 F.2d 1490, 1494 n.6 (9th Cir. 1984) (placement and retention of a plaintiff

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in segregated housing, even for an indeterminate period of time, does not in and of itself implicate the

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Eighth Amendment.); Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995) (holding that

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conditions associated with administrative segregation, such as confinement in a single cell for most of

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the day, did not violate the Eighth Amendment); see also Perkins v. Crum, 476 Fed. Appx. 136, 137

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(9th Cir. 2012) (affirming dismissal of Eighth Amendment claim directed to conditions of confinement

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in security housing unit); Pina v. Scavetta, 467 Fed. Appx. 605, 606 (9th Cir. 2012) (same); Ruiz v.

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Cate, 436 Fed. Appx. 760, 761 (9th Cir. 2011) (affirming dismissal of prisoner‟s Eighth Amendment

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claim that his security housing unit sentence was disproportionate to his conduct). Accordingly,

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Plaintiff fails to state a cognizable claim for violation of the Eighth Amendment.
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See

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G.

Further Leave to Amend

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In light of the fact that the Court previously notified Plaintiff of the deficiencies and granted

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leave to amend, further amendment is not warranted. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.

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2000); Noll v. Carlson, 809 F.2d 1446, 1448-1449 (9th Cir. 1987).

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IV.

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RECOMMENDATIONS

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Based on the foregoing, it is HEREBY RECOMMENDED that:

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Plaintiff‟s due process and cruel and unusual punishment claims be DISMISSED, with
prejudice, for failure to state a cognizable claim for relief; and

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2.

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This action shall proceed on Plaintiff‟s RLUIPA, First Amendment and Equal
Protection claims against the above mentioned defendants.

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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 result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir.

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2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.

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Dated:

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May 7, 2015
UNITED STATES MAGISTRATE JUDGE

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