Oliver v. Adams et al

Filing 54

FINDINGS and RECOMMENDATIONS Regarding Defendants' Motion to Dismiss 37 and Plaintiff's MOtion to Amend the Complaint 50 , signed by Magistrate Judge Stanley A. Boone on 12/22/16. Referred to Judge O'Neill; 30-Day Deadline. (Verduzco, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KENNETH OLIVER, 12 Plaintiff, 13 v. 14 DARRYL ADAMS, et al., 15 Defendants. 16 ) ) ) ) ) ) ) ) ) ) Case No.: 1:14-cv-00088-LJO-SAB (PC) FINDINGS AND RECOMMENDATIONS REGARDING DEFENDANTS’ MOTION TO DISMISS AND PLAINTIFF’S MOTION TO AMEND THE COMPLAINT [ECF Nos. 37, 50] Plaintiff Kenneth Oliver is appearing pro se and in forma pauperis in this civil rights action 17 18 pursuant to 42 U.S.C. § 1983. Plaintiff declined United States Magistrate Judge jurisdiction; 19 therefore, this action was referred to the undersigned pursuant to 28 U.S.C. § 636(c).1 Defendants 20 have not consented or declined United States Magistrate Judge jurisdiction. Currently before the Court is Defendants’ motion to dismiss the first amended complaint, filed 21 22 March 14, 2016. 23 I 24 PROCEDURAL BACKGROUND This action is proceeding Plaintiff’s claim under the Religious Land Use and Institutionalized 25 26 Persons Act against Defendants Cates, Adams, Davis, Fields, Smith, El-Amin, Grannis, Kostecky, and 27 28 1 Plaintiff declined United States Magistrate Judge jurisdiction on February 28, 2014. (ECF No. 7.) 1 1 Does Four through Six; Plaintiff’s claim under the First Amendment for violation of the Free Exercise 2 of religion against Defendants Cate, Adams, Davis, Field, Smith, El-Amin, Grannis, Kostecky, and 3 Does Four through Six; Plaintiff’s claim under the First Amendment for violation of the Establishment 4 Clause against Defendants Cate, Adams, Davis, Field, Smith, El-Amin, Grannis, Kostecky, Van 5 Klaverer, and Does Four through Six; and Plaintiff’s claim for violation of the Equal Protection Clause 6 against Defendants Cates, Adams, Davis, Field, Smith, Van Klaverer, El-Amin, Grannis, Kostecky, 7 and Does Four through Six. On March 14, 2016, Defendants D. Adams, A. El-Amin, M. Cate, F. Field, R. Davis, B. Van 8 9 10 Klaverer, and J. Smith filed a motion to dismiss certain portions of the complaint. (ECF No. 37.) On this same date, Defendants also filed a request for judicial notice. (ECF No. 38.) 11 On May 19, 2016, Defendant K. Kostecky joined in the motion to dismiss.2 (ECF No. 47.) 12 After receiving two extensions of time, Plaintiff filed an opposition on June 29, 2016. (ECF 13 No. 48.) On this same date, Plaintiff submitted a third amended complaint which was lodged by the 14 Court. (ECF No. 49.) On July 18, 2016, Plaintiff filed a motion for leave to file a third amended 15 complaint. (ECF No. 50.) 16 Defendants filed a reply to Plaintiff’s opposition on July 21, 2016. (ECF No. 51.) 17 On August 8, 2016, Defendants filed an opposition to Plaintiff’s motion for leave to file a third 18 amended complaint. (ECF No. 52.) 19 II. 20 DISCUSSION 21 A. Motion to Dismiss Standard 22 A motion to dismiss brought pursuant to Rule 12(b)(6) tests the legal sufficiency of a claim, 23 and dismissal is proper if there is a lack of a cognizable legal theory or the absence of sufficient facts 24 alleged under a cognizable legal theory. Conservation Force v. Salazar, 646 F.3d 1240, 1241-42 (9th 25 Cir. 2011) (quotation marks and citations omitted). In resolving a 12(b)(6) motion, a court’s review is 26 generally limited to the operative pleading. Daniels-Hall v. National Educ. Ass’n, 629 F.3d 992, 998 27 28 2 Defendant N. Grannis waived service on October 5, 2016, but has not filed a response to the complaint. (ECF No. 53.) 2 1 (9th Cir. 2010); Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007); Schneider v. California Dept. of 2 Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). 3 To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as 4 true, to state a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing 5 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (quotation marks omitted); Conservation 6 Force, 646 F.3d at 1242; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The Court 7 must accept the factual allegations as true and draw all reasonable inferences in favor of the non- 8 moving party, Daniels-Hall, 629 F.3d at 998; Sanders, 504 F.3d at 910; Morales v. City of Los 9 Angeles, 214 F.3d 1151, 1153 (9th Cir. 2000), and in this Circuit, pro se litigants are entitled to have 10 their pleadings liberally construed and to have any doubt resolved in their favor, Wilhelm v. Rotman, 11 680 F.3d 1113, 1121 (9th Cir. 2012); Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); Silva v. 12 Di Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). 13 B. 14 Defendants’ request that the Court take judicial notice of the following documents: (1) 15 Plaintiff’s Transfer Endorsement, dated February 23, 2016, an electronically generated document 16 CDCR SOMA ICCT164, showing approved transfer from California State Prison—Corcoran to the 17 Correctional Training Facility in Soledad, California (Ex. A); (2) results of a California Department of 18 Corrections and Rehabilitation (CDCR) “Inmate Locator” search, showing that Plaintiff inmate 19 Kenneth Gale Oliver, CDCR # K54606, is currently housed at the Correctional Training Facility in 20 Soledad, California (Ex. B); (3) Plaintiff’s Abstract of Judgment and Amended Abstract of Judgment 21 showing his commitment offense and term of incarceration (Ex. C); and (4) a press release from 22 CDCR dated April 15, 2008, and a news article from the Sacramento Bee dated October 26, 2012, 23 regarding Defendant M. Cate (Ex. D). (ECF No. 38.) 24 Request for Judicial Notice Although the Court’s review on a motion to dismiss is generally limited to the allegations in 25 the complaint, the Court may properly take judicial notice of matters of public record pursuant to 26 Federal Rule of Civil Procedure 201. Rule 201 of the Federal Rules of Evidence permits a court to 27 take judicial notice of any facts which may be “accurately and readily determined from sources whose 28 accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b) and (d). Judicial notice is 3 1 appropriate where the fact is not subject to reasonable dispute because it is “capable of accurate and 2 ready determination by resort to resources whose accuracy cannot reasonably be questioned.” Fed. R. 3 Evid. 201(b)(2). The Court may take judicial notice of matters of public record, including records and 4 reports of administrative agencies. United States v. 14.02 Acres of Land More or Less in Fresno 5 County, 547 F.3d 943, 955 (9th Cir. 2008) (quotations marks and citations omitted). A Court “must 6 take judicial notice if a party requests it and the court is supplied with the necessary information.” 7 Fed. R. Evid. 201(c)(2). 8 The Court grants Defendants’ request to take judicial of the above identified documentation as 9 documents in the public record not reasonably subject to dispute, because their accuracy can readily be 10 determined from sources whose accuracy cannot reasonably be questioned. (Req. for Judicial Notice 11 (RJN), Exs. A-D, ECF No. 38.) Complaint Allegations3 12 C. 13 Plaintiff is a faithful adherent to the African based spiritual practice commonly referred to as 14 “Shetaut Neter.” Plaintiff has practiced Shetaut Neter since 2000. Shetaut Neter is an African 15 derived spiritual system with roots that extend back to dynastic Egypt and has numerous followers 16 around the world. The central aims and tenets enjoined in the Shetaut Neter practice involve men and 17 woman seeking oneness with God in an effort to attain God-like consciousness through a life of virtue 18 and cultivation of the spirit. This practice relies heavily on the study of scientific knowledge, 19 meditation, and daily prayer practice, body discipline and maintaining an ascetic diet. As a practitioner of Shetaut Neter, Plaintiff is required to study the various texts and scriptures 20 21 related to its practice, worship through prayer and meditation using a prayer rug at least three times 22 daily, maintain a specific and stringent vegetarian diet (commonly referred to as the “Kemetic Diet”), 23 participate in group study, worship and service, and honor through recognition and practice specific 24 religious holiday observances. The Kemetic Diet is a central tenet and component to the practice of Shetaut Neter and 25 26 prohibits the consumption of any meat or animal derived product, including dairy and egg products; 27 28 3 This action is proceeding on Plaintiff’s second amended complaint, filed March 12, 2015. (ECF No. 24.) 4 1 wheat or products containing refined sugar or any genetically modified foods. In short, Plaintiff is 2 required to maintain a diet that consists of 80% raw foods such as nuts, seeds, fruits and vegetables, 3 and approximately 20% cooked foods such as legumes, tofu, soy, and other vegetarian sources of 4 proteins, calories and vitamins. 5 On February 26, 2009, Plaintiff was transferred from the California Men’s Colony in San Luis 6 Obispo to Corcoran State Prison, Security Housing Unit (SHU). Shortly after Plaintiff’s arrival at 7 Corcoran, he submitted a “request for interview” form to the Corcoran Chapel for religious services 8 requesting an accommodation for his religious based dietary needs and for information regarding 9 authorization on how he could obtain his personal prayer rug from his property and other materials 10 related to his spiritual practice. Plaintiff received no response. 11 In May of 2009, approximately 45 days after Plaintiff initially submitted the request for 12 interview, Plaintiff submitted a second request to the Chapel in an effort to obtain approval for 13 religious accommodations mentioned above. Plaintiff received no response. 14 After Defendants failed to respond to Plaintiff’s second written request, Plaintiff filed an 15 administrative appeal regarding Defendants refusal to provide him with reasonable opportunity to 16 exercise his religious practice when there was no meaningful or legitimate penological interest in 17 doing so. 18 On July 29, 2009, Defendant A. El-Amin, interviewed Plaintiff in regard to his grievance and 19 request for religious accommodation. Defendant El-Amin informed Plaintiff that he would 20 accommodate Plaintiff’s request to be provided religious study materials and scriptural texts related to 21 the practice of Shetaut Neter and that the Chapel would order the materials during its next purchase 22 order. In regard to Plaintiff’s other religious request, El-Amin informed Plaintiff that he would look 23 into accommodating Plaintiff’s requests with the “head chaplains.” 24 On August 4, 2009, Defendants El-Amin and Field forwarded Plaintiff a memorandum that 25 stated his administrative appeal was being “partially granted.” Specifically, the memorandum stated 26 that Plaintiff’s request for religious books and materials would be accommodated and expedited as 27 soon as possible. Plaintiff’s request for access to a Shetaut Neter priest or access via service on DVD 28 or the institutional television channels was denied. Defendants informed Plaintiff that religious 5 1 television programming was the responsibility of the “educational heads,” and his diet requirements 2 had to be coordinated through the institution food services. Defendants denied all other 3 accommodation requests made by Plaintiff. 4 Plaintiff appealed Defendant El-Amin and Fields denial of his request for religious 5 accommodations to the Warden of Corcoran, Defendant D Adams. Defendant R. Davis addressed 6 Plaintiff’s appeal on behalf of Derral Adams. Davis informed Plaintiff that he would not be allowed 7 any type of group service because he is housed in the SHU and Plaintiff could worship individually 8 within his cell. Davis denied Plaintiff’s religious diet request, as well as all other requests for 9 reasonable accommodations. 10 Defendants N. Grannis and K. Kostecky, on behalf of Defendant Cate, denied all of Plaintiff’s 11 requests for reasonable religious accommodations, stating in essence that Plaintiff could put his 12 blanket on the floor and worship/pray in his cell. 13 Between October 2009 through June 2010, Plaintiff submitted multiple requests to Defendants 14 El-Amin, M. Smith, and Van Klaverer, seeking confirmation of the religious scriptural texts, which 15 were never received. 16 Sometime between 2010 through 2011, Corcoran officials began broadcasting at least five 17 separate Christian channels through its institutional closed-circuit television system. These channels 18 broadcast Christian programming 24 hours a day, seven days a week, in both English and Spanish. 19 These channels dedicated exclusively to Christian content were the sole religious programming 20 broadcast through Corcoran’s institutional television system. 21 Upon information and belief the institutionally broadcast religious programming was 22 facilitated by Defendants Van Klaverer, Smith, Adams, Davis, El-Amin, Field, Carron, and/or any of 23 several Doe Defendants. These Defendants are directly responsible for the prison’s religious and 24 institutional television programming decisions. 25 CDCR has promulgated rules and regulations that set forth its policies regarding religious 26 programming for prisoners under its charge. Defendant Cate was responsible for the administration 27 and implementation of CDCR’s policies, practices, and procedures. Consequently, he had both the 28 6 1 authority and responsibility to ensure that CDCR’s religious programming policies were all inclusive 2 and flexible enough to comply with and not choke the constitutional rights of all prisoners. 3 Defendants Does Four and Five were responsible for all programming and policy formulation 4 within CDCR’s adult institutions and to ensure consistently and uniformity in their development and 5 application. Moreover, these Defendants had managerial responsibility for the Office of Community 6 Resources, who is responsible for providing policy and training to institutional staff regarding 7 religious programming. 8 Defendant Doe Six was responsible for all aspects of policy and programming formulation for 9 CDCR’s Division of Support Services, which includes the Department’s religious programming. This 10 Defendant has complete line authority over the approval or disapproval of religious programming 11 policy and reports directly to the Secretary of CDCR. 12 Defendant Doe Seven was charged with providing policy, supervision and training to the 13 institution’s staff who would be directly responsible for providing religious accommodations to 14 prisoners. 15 Defendants Cate and Does Four through Six have created, adopted, or enforced a religious 16 service policy that provides for a Jewish Chaplain or Rabbi to have absolute autonomy and decision 17 making authority over determining: (a) whether or not a prisoner is or isn’t “Jewish” in accord with a 18 subjective and bias criteria determined by the Jewish chaplain; and (b) who can and cannot participate 19 in the Jewish Kosher Diet program. This policy does not take into account the actual religious faith of 20 the prisoner applying, but rather is being determined based on proof of a so-called Jewish ethnicity. 21 For example, a prisoner applicant who can show that his mother or father is “Jewish” would be 22 approved for receipt of a religious based Kosher diet. On the other hand, a prisoner who had studied 23 and adopted the Jewish faith, but who wasn’t considered by the Jewish Chaplain to be a so-called 24 “real” Jew by birth would be disapproved to participate in the program. 25 These Defendants created, adopted, or enforced this policy while not making the same or 26 similar requirements on other religious diet programs or its prisoner participants. No other faith-based 27 Chaplain has been given the autonomy and final decision making authority to determine the faith and 28 beliefs of a prisoner or the necessity of a particular religious diet relevant to his religious practice. 7 1 In addition, these Defendants created, adopted, or enforced a policy that advanced only two 2 real religious diets, Jewish and Islamic, while failing to promulgate a policy that allowed dietary 3 opportunities to prisoners who subscribe to other denominations or faiths. 4 This policy also advanced preferential treatment to those “approved” Jewish diet prisoners and 5 discriminated against those of other faiths, by allowing any prisoner, Muslim or non-Muslim to 6 receive an Islamic Halal diet, while at the same time not allowing “non-Jewish” prisoners to receive a 7 Jewish Kosher diet. 8 Defendants Cate and Does Four through Six were responsible for the supervision, oversight, 9 training and compliance of CDCR’s Community Resource Unit (CRU). The CRU administers, 10 interprets, and formulates religious policy and procedures; reviews chaplain selections prior to 11 appointment; and advises on the conduct of religious programs and in-service training for chaplains. 12 Defendants Cate and Does Four through Six have created, adopted, or enforced a policy that 13 requires each institution to have a Religious Review Committee. This committee must be comprised 14 of designated chaplains, and a correctional captain or their designee. 15 This policy mandates that a Religious Review Committee shall not deny accommodations for 16 religious services unless the denial is for reasons which would impact facility safety and security and 17 orderly day to day operation of the institution. 18 This provision of the policy is actually illusory and empty because Defendants Cate and Does 19 Four through Six have promulgated and enforced a policy that confines any so-called Religious 20 Review Committee’s authority or discretion to approve a prisoner’s request for religious service 21 beyond that which Defendants have already approved and advanced. 22 Defendant Cate and Does Four and Six have approved and advanced the Jewish Kosher diet 23 and the Muslim Halal diet while failing to provide regulations that allow for the dietary provisions for 24 prisoners of alternative faiths. 25 This same regulatory restriction infects the type of spiritual advisors or chaplains CDCR 26 dictates can be paid to enter the prisoner to administer service. Defendants have formulated and 27 enforced a policy that prefers Western World religions while marginalizing and relegating alternative 28 8 1 faiths to second class status. This preference manifests itself in the policy itself, which allows only 2 paid spiritual advisor or chaplain positions for Islam, Judaism, Christianity, and Native American. 3 Apart from the statewide mandates regarding particular religious services for particular 4 denominations, CDCR has charged each institutional Warden with the responsibility for the religious 5 programming in their respective prisons. Chief Deputy Wardens or Associate Wardens are charged 6 with the supervision of the staff chaplains. 7 Defendant Adams formulated and enforced Corcoran’s “Operational Procedure” No. 804 8 “Religious Program.” This procedure set forth the policy directives for the accommodation of 9 religious services. Defendants El-Amin, Carron, and Does One through Three, under the supervision 10 11 of Defendant Smith, were responsible for the implementation of this procedure. Upon information and believe, neither CDCR or Corcoran has ever authorized an Institutions 12 Food Services Division to approve or deny religious diet accommodation requests. Nor is Plaintiff 13 aware of any policy instructing prisoners to pursue such channels. 14 Plaintiff is aware, through observation and knowledge, that Defendants Smith and El-Amin 15 regularly approve requests made by prisoners to receive a so-called vegetarian or Halal religious diet, 16 whether or not the request is based on a religious practice or faith. 17 Plaintiff is aware through observation and knowledge that Defendant Carron routinely denied 18 prisoner’s religious accommodation requests for a Jewish Kosher diet unless a prisoner could “prove” 19 he was born Jewish or that he had been converted by a sanctioned Temple or Rabbi in free society, 20 whether or not the request was based on the actual practice of Judaism. 21 Plaintiff is aware through observation and knowledge that Defendants El-Amin, Carron, and 22 Does One through Three have routinely approved requests by prisoners to possess prayer rugs for 23 religious worship. These prisoners belonged to one of Corcoran’s “approved” faith groups. 24 Both CDCR and Corcoran have codified policies and allocated funds to fulfill the purchase of 25 religious books, materials, video and audiotapes, and other religious items for the purpose of religious 26 programing and accommodation. Upon information and belief, Defendants have allocated and used 27 these funds primarily on the five “approved” denominations, and have failed or refused to provide 28 funding for books, materials and other religious items for prisoners who practice alternative faiths. 9 1 Upon information and belief Defendants Smith, El-Amin, Adams, Fields, Carron and Does 2 One through Three were responsible for the budgeting, procurement, and allocation of religious books, 3 audio and video tapes and other religious materials for prisoners at Corcoran. 4 Defendants Adams, Davis, Fields, Smith, El-Amin, Carron, and Does One through Three, have 5 ordered, procured, allocated and approved the purchase of religious materials for the five “approved” 6 faiths mentioned herein. 7 Plaintiff is aware that sometime between 2010 and 2011, Defendants arranged and approved 8 provisions for the installation of at least five separate Christian based broadcasting channels to be 9 broadcast through Corcoran’s institutional television system. These channels broadcast Christian 10 religious services 24 hours a day, seven days a week, and were the only religious themed 11 programming piped through the institution’s television system. 12 Prior to installation of the Christian broadcasting channels, Defendants denied Plaintiff’s 13 request for Shetaut Neter religious services to be broadcast on Corcoran’s institutional television 14 system. 15 16 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’ Motion to Dismiss 17 D. 18 Defendants move to dismiss portions of Plaintiff’s action on the ground that (1) all claims for 19 declaratory and injunctive relief are moot; (2) any claims for monetary damages against Defendants in 20 their official capacity are barred by the Eleventh Amendment; (3) any claim for damages against 21 Defendants in their individual capacities under the Religious Land Use and Institutionalized Persons 22 Act (RLUIPA) for damages are barred as a matter of law; and (4) certain claims are barred by the 23 statute of limitations. 24 1. Dismissal of Injunctive and Declaratory Claims Under Rule 12(b)(1) 25 Defendants argue that the Court should dismiss Plaintiff’s suit for injunctive and declaratory 26 relief, which alleges that prison officials failed to provide him with various religious accommodations 27 while he was at his former prison, Corcoran, because he is no longer housed at that institution. 28 10 A case becomes moot if the “issues presented are no longer ‘live’ or the parties lack a legally 1 2 cognizable interest in the outcome.” Murphy v. Hunt, 455 U.S. 478, 481 (1982). The Supreme Court 3 has held that an actual controversy must exist at all stages of review, not merely at the time the 4 complaint is filed. Preiser v. Newkirk, 422 U.S. 395, 401 (1975). In his prayer for relief, Plaintiff seeks declaratory relief finding that his constitutional rights 5 6 were violated, and that Defendants be enjoined “from subjecting Plaintiff to the unconstitutional and 7 unlawful acts omission, deprivations, policies, and conditions described[.]” (Compl. at p. 56, ECF No. 8 24.)4 Defendants submit evidence that Plaintiff is no longer housed at Corcoran, and his claims for 9 relief are therefore moot. An inmate’s transfer to another prison while his claims are pending 10 generally will moot any claims for injunctive relief relating to the conditions at that particular facility. 11 See Dilley v. Gunn, 64 F.3d 1365, 1368 (9th Cir. 1995) (citing Preiser, 422 U.S. at 402-03 and 12 Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991)). Plaintiff argues that his declaratory and injunctive relief claims are not moot because they 13 14 involve issues that are likely to reoccur, his transfer has not eradicated the effects of the alleged 15 violations and harm that persists at his current location, and the harm emanates from system-wide 16 policies. (Opp’n at p. 5, ECF No. 48.) When a prisoner is seeking injunctive or declaratory relief against prison officials, the Court’s 17 18 inquiry into causation is “broader and more generalized” than when considering the more refined 19 causal connection required in an individual damages claim. See Leer v. Murphy, 844 F.2d 628, 633- 20 34 (9th Cir. 1988) (citation omitted). The Court finds that Plaintiff’s claims for declaratory and 21 injunctive relief are not moot. Plaintiff’s allegations, or at least a portion of his allegations, are based 22 on CDCR policies regarding religious practices which have impeded Plaintiff’s ability to practice his 23 religion. Thus, Plaintiff may sue for injunctive relief to the extent he claims systemic discrimination 24 against Shetaut Neter throughout the CDCR. Rupe v. Cate, 688 F.Supp.2d 1035, 1043 (E.D. Cal. 25 2010); see also Hartmann v. Cal. Dep’t of Corr., 707 F.3d 1114, 1127 (9th Cir. 2013) (“a plaintiff need 26 only identify the law or policy challenged as a constitutional violation and name the official within the 27 4 28 The pages numbers cited herein refer to the page numbers appearing in the header of documents filed in the Court’s electronic filing program (ECF). 11 1 entity who can appropriately respond to injunctive relief.”) (citing L.A. Cnty v. Humphries, 562 U.S. 2 29 (2010); Hafer v. Melo, 502 U.S. 21, 25 (1991).) Indeed, Plaintiff is proceeding on his religious 3 claims against Defendant Cate, former Secretary of CDCR. The fact that Cate is no longer the 4 Secretary of CDCR, does not render Plaintiff’s official capacity claims against him moot. See Fed. R. 5 Civ. P. 25(d) (the Court is authorized to substitute as a defendant Mr. Cate’s successor Secretary of 6 CDCR, or other appropriate official.) As such, Plaintiff’s requests for declaratory and injunctive relief 7 are not moot in that respect, and Defendants’ motion to dismiss these prayers for relief should be 8 denied. See Nelson v. Heiss, 271 F.3d 891, 897 (9th Cir. 2001). However, because Plaintiff is no 9 longer housed at Corcoran State Prison, and he has failed to demonstrate a reasonably likelihood that 10 he will be transferred back to the Corcoran, his claims for declaratory and injunctive relief specific to 11 Corcoran State Prison should be dismissed. 12 2. 13 In the operative complaint, Plaintiff seeks monetary damages against Defendants, who are sued 14 15 Monetary Claims Against Defendants in Official Capacity in both their individual and official capacities. (Compl. at pp. 13, 56, ECF No. 24.) The Eleventh Amendment prohibits suits for monetary damages against a State, its agencies, 16 and state officials acting in their official capacities. Aholelei v. Dep’t of Public Safety, 488 F.3d 1144, 17 1147 (9th Cir. 2007). Thus, as Plaintiff concedes, he may not bring a suit for monetary damages 18 against Defendants in their official capacities, and Defendants’ motion to dismiss all claims for 19 monetary damages against them in their official capacities should be granted. 20 3. Claim for Monetary Damages Under RLUIPA 21 Defendants argue that Plaintiff’s claim for monetary damages under RLUIPA is barred as a 22 matter of law. Plaintiff concedes that monetary damages are not available against individual 23 defendants under RLUIPA’s Spending Clause jurisdiction. (Opp’n at p. 10, ECF No. 48; see Wood v. 24 Yordy, 753 F.3d 899 (9th Cir. 2014). However, Plaintiff argues that his claim against Defendants is 25 brought under RLUIPA’s Commerce Clause which entitles him to monetary damages, citing Cotton v. 26 Cate, 578 Fed. Appx. 712, 714 (9th Cir. 2014). The Court does not find Plaintiff’s argument 27 persuasive given the limited law on the issue. 28 12 1 In Woods, the Ninth Circuit addressed only the Spending Clause implications under RLUIPA 2 and explained “pursuant to its spending powers, Congress may place conditions on the disbursement 3 of federal funds[,] … [and] states agree to adhere to any attached conditions. These conditions, 4 however, must be clearly stated. Otherwise, states cannot be said to have knowingly accepted them.” 5 Woods, 753 F.3d at 903 (citations omitted). In addition, “there is nothing in the language or structure 6 of RLUIPA to suggest that Congress contemplated liability of government employees in an individual 7 capacity.” Id. at 904. Accordingly, RLUIPA “does not authorize suits against a person in anything 8 other than an official or governmental capacity, for it is only in that capacity that funds are received.” 9 Id. 10 Subsequent to the decision in Wood, the Ninth Circuit noted in an unpublished decision that it 11 remained an open question whether damages might be available if RLUIPA were invoked under the 12 Commerce Clause versus the Spending Clause. See Cotton v. Cate, 578 Fed. Appx 712, 714 (9th Cir. 13 2014). In a later unpublished decision by the Ninth Circuit, the Court did not mention the possible 14 distinction between the two clauses and cited Wood to find that RLUIPA does not allow damages 15 against defendants in their individual capacities. See Hypolite v. California Dept. of Corr., 585 16 Fed.Appx. 628 (9th Cir. 2014). 17 In a published decision issued by the Sixth Circuit Court of Appeals after Cotton, it was 18 determined that damages claims are barred under RLUIPA’s Commerce Clause provision. Haight v. 19 Thompson, 763 F.3d 554 (6th Cir. 2014). There, the Sixth Circuit Court stated: 20 21 22 23 [W]hen Congress invokes more than once source of federal power to enact a law, it does so as a form of insurance—on the off chance that the first source of authority exceeds its grasp. It does not invoke two sources of authority in order to permit two interpretations of the same phrase. Otherwise, the general presumption that language in a statute means the same thing in all setting would be an exception, not a rule. See Clark v. Martinez, 543 U.S. 371, 380 (2005). Where possible, and it is eminently possible here, courts avoid treating statutes like chameleons that turn green in some settings but not others. 24 25 26 27 28 Id. at 569. The Court also determined that a Commerce Clause analysis has a “clear statement” rule similar to that for the Spending Clause analysis that RLUIPA did not satisfy. Id. Whether enacted under the Spending Clause or the Commerce Clause, a statute must make “unmistakably clear” that the requested relief is available. Id. at 568-70. However, RLUIPA does not unequivocally 13 1 authorize damages claims against individual defendants, instead stating that a plaintiff may obtain 2 “appropriate relief” against a “government,” which is not so broadly defined as to include monetary 3 damages against individual state employees. Id.; see also 42 U.S.C. § 2000cc-2(a). 4 Given the absence of authority from the Ninth Circuit and the Sixth Circuit’s published 5 decision in Haight, the Court finds that Plaintiff’s claim for monetary damages whether brought under 6 the Spending Clause or Commerce Clause of RLUIPA to be barred as a matter of law. See also Gray 7 v. Lewis, No 13-cv-04929-SI, 2015 WL 3957865 (N.D. Cal.) (adopting reasoning of Haight and 8 finding no cognizable claim for monetary damages under RLUIPA’s Commerce Clause). 9 10 11 4. Statute of Limitations Bar as to Claims Before January 2010 Defendants argue that Plaintiff’s claims that accrued before January 2010 are time-barred and should be dismissed with prejudice. 12 Federal law determines when a claim accrues, and “[u]nder federal law, a claim accrues when 13 the plaintiff knows or should know of the injury that is the basis of the cause of action.” Douglas v. 14 Noelle, 567 F.3d 1103, 1109 (9th Cir. 2009) (citation omitted); Maldonado v. Harris, 370 F.3d 945, 15 955 (9th Cir. 2004); Fink v. Shedler, 192 F.3d 911, 914 (9th Cir. 1999). Because section 1983 16 contains no specific statute of limitations, federal courts should apply the forum state’s statute of 17 limitations for personal injury actions. 18 Maldonado, 370 F.3d at 954; Fink, 192 F.3d at 914. California=s statute of limitations for personal 19 injury actions was extended to two years effective January 1, 2003. Cal. Civ. Proc. Code ' 335.1; 20 Jones, 393 F.3d at 927; Maldonado, 370 F.3d at 954-55. Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004); 21 In actions where the federal court borrows the state statute of limitations, courts should also 22 borrow all applicable provisions for tolling the limitations period found in state law. Jones, 393 F.3d 23 at 927. Under California law, prisoners who at the time the cause of action accrued were either 24 imprisoned on a criminal charge or serving a sentence of less than life for a criminal conviction 25 benefit from a two-year tolling provision for damages actions. Cal. Civ. Proc. Code ' 352.1; see also 26 Martinez v. Gomez, 137 F.3d 1124, 1126 (9th Cir. 1998) (per curium). 27 In addition, California=s equitable tolling doctrine “applies when an injured person has several 28 legal remedies and, reasonably and in good faith, pursues one.” McDonald v. Antelope Valley 14 1 Community College Dist., 45 Cal.4th 88, 100 (Cal. 2008) (citation and internal quotation marks 2 omitted). The equitable tolling of statutes of limitations is a judicially created, nonstatutory doctrine 3 designed to prevent unjust and technical forfeitures of the right to a trial on the merits when the 4 purpose of the statute of limitations - timely notice to the defendant of the plaintiff=s claims - has been 5 satisfied, McDonald, 45 Cal.4th at 99 (quotation marks and citations omitted), and pursuit of 6 administrative remedies equitably tolls the statute of limitations so long as there was timely notice, 7 lack of prejudice to the defendant, and reasonable, good faith conduct on the part of the plaintiff, id. at 8 101-103. 9 The Ninth Circuit has held that prisoners are entitled to equitable tolling of the statute of 10 limitations while completing the mandatory exhaustion process. Brown v. Valoff, 422 F.3d 926, 942- 11 943 (9th Cir. 2005). The equitable tolling of statutes of limitations is a judicially created, nonstatutory 12 doctrine designed to prevent unjust and technical forfeitures of the right to a trial on the merits when 13 the purpose of the statute of limitations-timely notice to the defendant of the plaintiff’s claims-has 14 been satisfied, McDonald, 45 Cal.4th at 99 (quotation marks and citations omitted), and pursuit of 15 administrative remedies equitably tolls the statute of limitations so long as there was timely notice, 16 lack of prejudice to the defendant, and reasonable, good faith conduct on the part of the plaintiff. Id. 17 at 101-03. 18 If running of the statute of limitations is apparent on the face of a complaint, a claim may be 19 dismissed under Federal Rule of Civil Procedure 12(b)(6). Von Saher v. Norton Simon Museum of 20 Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010). 21 ordinarily limited to the face of the complaint. Van Buskirk v. Cable News Network, Inc., 284 F.3d 22 977, 980 (9th Cir. 2002). “Because the applicability of the equitable tolling doctrine often depends on 23 matters outside the pleadings, it is not generally amenable to resolution on a Rule 12(b)(6) motion.” 24 Supermail Cargo, Inc. v. U.S., 68 F.3d 1204, 1206 (9th Cir. 1995) (internal citations and quotation 25 marks omitted); see also Daviton v. Columbia/HCA Healthcare Corp., 241 F.3d 1131, 1140 (9th Cir. 26 2001) (stating that, “only in the rare case” could the analysis of California’s equitable tolling doctrine 27 proceed at the pleading stage). “A motion to dismiss based on the running of the statute of limitations 28 period may be granted only if the assertions of the complaint, read with the required liberality, would 15 In deciding a motion to dismiss, the court is 1 not permit the plaintiff to prove that the statute was tolled.” Supermail Cargo, Inc. v. United States, 68 2 F.3d 1204, 1206 (9th Cir. 1995) (internal citations and quotation marks omitted). 3 Here, Plaintiff was sentenced to a term of 52 years to life. (RJN, Ex. C.) Therefore, under 4 section 352.1 and Martinez, statutory tolling applies and the effective statute of limitations for 5 Plaintiff’s civil rights claims in a California federal court action is four years. 6 In this case, Defendants argue that some of Plaintiff’s claims against them are time-barred. 7 Defendants specifically argue that Plaintiff alleges that Defendant El-Amin interviewed him on July 8 29, 2009 concerning his inmate administrative grievance seeking reasonable accommodations for his 9 religious practice. (Compl. at pp. 16-17, ECF No. 24.) Plaintiff further alleges that in responding to 10 this grievance, Defendants El-Amin and Field denied many of his religious accommodation requests 11 on August 4, 2009. (Id. at p. 17.) Defendant Davis then responded to the grievance on behalf of 12 Defendant Adams on September 28, 2009, denying Plaintiff’s requested religious accommodations. 13 (Id. at pp. 18, 68.) Defendants argue “[i]t is clear from his allegations that some of [Plaintiff’s] claims 14 against these Defendants accrued on the day that they denied his requested accommodations.” (Mot. at 15 11:21-22.) Defendants submit that Plaintiff therefore had until August 5, 2013 and September 29, 16 2013, respectively, to file his action seeking damages for those claims. However, Plaintiff did not file 17 suit until January 16, 2014. (ECF No. 1.) Thus, Plaintiff’s claims against Defendants El-Amin, Field, 18 Davis, and Adams concerning their alleged actions in 2009 are time-barred. 19 In his opposition, Plaintiff argues that his claims against Defendants El-Amin, Field, Davis, 20 and Adams are timely because he is entitled to tolling during the exhaustion of the administrative 21 remedies and he commenced this action on January 10, 2014, by handing his complaint to prison staff 22 for mailing, which was within four years of the date his actions accrued against them. (Opp’n at pp. 23 11-12, ECF No. 48.) 24 In reply, Defendants argue that Plaintiff fails to provide proof that he delivered his original 25 complaint to prison authorities on January 10, 2014. “He neither produces a declaration attesting to 26 these facts, nor includes a copy of the mailing envelope containing his complaint or any other 27 document allegedly signed by prison staff on January 10, 2014.” (Reply, at 6:14-16, ECF No. 51.) 28 16 1 Defendants do not dispute that Plaintiff is entitled to tolling during exhaustion of the administrative 2 remedies, which was complete on January 11, 2014-by denial at third and final level of review. 3 Under the mailbox rule, the date that Plaintiff submitted the complaint in this action to prison 4 authorities for mailing is the constructive filing date for timeliness purposes. Houston v. Lack, 487 5 U.S. 266, 275-76 (2988); Douglas v. Noelle, 567 F.3d 1103, 1109 (9th Cir. 2009). In this instance, 6 there is no proof of service attached to Plaintiff’s original complaint which was filed stamped with the 7 Court on January 16, 2015. (ECF No. 1.) However, Plaintiff’s complaint is self-dated as December 8 31, 2013, and by way of opposition Plaintiff attests under penalty of perjury that he handed his 9 original complaint to prison officials for mailing on January 10, 2014-one day prior to expiration of 10 the statute of limitations on January 11, 2014. The Court finds that Plaintiff’s statement in his verified 11 opposition is sufficient to presume that he handed his complaint to prison officials for mailing on 12 January 10, 2014, and Defendants fail to rebut this presumption. See, e.g., Payan v. Aramark 13 Management Services Ltd. Partnership, 495 F.3d 1119, 1122 (9th Cir. 2007) (because the statute of 14 limitations is an affirmative defense, the defendant bears the burden of proving that the plaintiff filed 15 beyond the limitations period); see also Supermail Cargo, Inc., 68 F.3d at 1206 (“A motion to dismiss 16 based on the running of the statute of limitations period may be granted only if the assertions of the 17 complaint, read with the required liberality, would not permit the plaintiff to prove that the statute was 18 tolled.”) Accordingly, Defendants’ motion to dismiss certain claims as time-barred should be denied. Plaintiff’s Motion to Amend 19 E. 20 As previously stated, Plaintiff filed a motion to file a third amended complaint on July 18, 21 22 2016. Defendants filed an opposition to Plaintiff’s motion on August 8, 2016. Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend the party’s 23 pleading once as a matter of course at any time before a responsive pleading is served. Otherwise, a 24 party may amend only by leave of the court or by written consent of the adverse party. Rule 15(a) is 25 very liberal and leave to amend ‘shall be freely given when justice so requires.’” AmerisourceBergen 26 Corp. v. Dialysis West, Inc., 465 F.3d 946, 951 (9th Cir. 2006) (quoting Fed. R. Civ. P. 15(a)). 27 However, courts “need not grant leave to amend where the amendment: (1) prejudices the opposing 28 17 1 party; (2) is sought in bad faith; (3) produces an undue delay in the litigation; or (4) is futile.” 2 AmerisourceBergen Corp., 465 F.3d at 951. 3 Having carefully reviewed Plaintiff’s motion to amend and proposed third amended complaint, 4 Plaintiff’s motion should be denied. Plaintiff seeks leave to amend the jurisdictional basis of his 5 RLUIPA claim against Defendants in an effort to pursue individual claims against them under the 6 United States Constitution’s Commerce Clause and seeks to withdraw his monetary claims in their 7 official capacities. (Pl.’s Mot. Amend at pp. 2-3, ECF No. 50.) For the reasons explained above in 8 subsection 3, amendment would be futile because regardless of whether the RLUIPA claim is invoked 9 under the Spending Clause or Commerce Clause, monetary damages claim are foreclosed. Moreover, 10 as explained above in subsection 2, all monetary claims against Defendants in their official capacities 11 will be dismissed from Plaintiff’s second amended complaint and amendment is not necessary to 12 withdraw such claims. Accordingly, for the reasons explained herein, Plaintiff’s motion to file a third 13 amended complaint should be denied. 14 III. 15 RECOMMENDATIONS 16 Based on the foregoing, it is HEREBY RECOMMENDED that: 17 1. Defendants’ motion to dismiss be granted in part and denied in part as follows: 18 a. Denied as to dismissal of Plaintiff’s claims for declaratory and injunctive relief based on policy of CDCR; 19 20 b. Granted as to dismissal of all claims for monetary damages against Defendants in their official capacities; 21 22 c. Granted as to dismissal of monetary damages against all Defendants under RLUIPA; 23 d. Denied for dismissal as barred by the statute of limitations; and 24 2. Plaintiff’s motion to amend should be denied as futile. 25 These Findings and Recommendations will be submitted to the United States District Judge 26 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty (30) days after 27 being served with these Findings and Recommendations, the parties may file written objections with 28 the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 18 1 Recommendations.” The parties are advised that failure to file objections within the specified time 2 may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 3 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 5 IT IS SO ORDERED. 6 Dated: 7 December 22, 2016 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19

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