Kindred v. Allenby et al

Filing 128

FINDINGS and RECOMMENDATIONS that Court Grant Defendants' 120 Motion for Summary Judgment signed by Magistrate Judge Jeremy D. Peterson on 8/23/2019. Referred to Judge Anthony W. Ishii. Objections to F&R due in 14 Days. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RICHARD S. KINDRED,

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Case No. 1:14-cv-01652-AWI-JDP

Plaintiff,

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FINDINGS AND RECOMMENDATIONS
THAT COURT GRANT DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT

v.

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OBJECTIONS DUE IN 14 DAYS

CLIFF ALLENBY, et al.,

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ECF No. 120

Defendants.

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Plaintiff Richard S. Kindred is a civil detainee proceeding without counsel in this civil

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rights action brought under 42 U.S.C. § 1983. Kindred alleges that defendants Kenneth Bell

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and Marisa Bigot, both employees at the California Department of State Hospitals Coalinga

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facility (“Coalinga”), denied him materials needed for practicing his Native American religion

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in violation of the First Amendment. See ECF No. 15 at 7-9. On December 6, 2018, Bell and

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Bigot moved for summary judgment under Federal Rule of Civil Procedure 56, arguing that

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Kindred lacks standing, that Kindred cannot demonstrate that a First Amendment violation

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occurred, that the defendants caused no injury, and that defendants are entitled to qualified

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immunity. See ECF No. 57. Kindred filed a short opposition on February 14, 2019, and the

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defendants filed a reply on February 22. See ECF Nos. 126 and 127.1

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As required by Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998), plaintiff was provided
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defendant’s motion for summary judgment. See ECF No. 120 at 2.
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I recommend granting defendants’ motion for summary judgment. Even if we accept

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Kindred’s version of facts as true, his First Amendment claims fail as a matter of law.

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Assuming Bigot and Bell denied Kindred certain materials, those denials—pursuant to

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undisputed Coalinga policies that require the exercise of some discretion—would not amount

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to a First Amendment violation. See Turner v. Safley, 482 U.S. 78, 89 (1987) (holding that,

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when a facility policy impinges on detainee constitutional rights, “the regulation is valid if it is

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reasonably related to legitimate penological interests”). Because there can be no First

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Amendment violation, I do not reach defendants’ other grounds for granting summary

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judgment.

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I. Factual Background

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Richard Kindred is a civil detainee housed at Coalinga under California’s Sexually

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Violent Predator Act. ECF No. 119 at 7. He practices a Native American religion for which

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he uses a variety of herbs, animal materials, and other items. Id. Coalinga, however, does not

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allow detainees unfettered access to outside materials and has policies and procedures designed

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to limit access to contraband and to ensure the safety and security of the facility. Id. at 1.

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Kindred’s second amended complaint alleges that Bell denied him “sacred/spiritual

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items” that “are used in the daily lives of those practicing the Native American Way of Life

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(Religion).” ECF No. 15 at 7.2 These included osha root, lavender, a turtle rattle kit, assorted

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needles, cedar, bearberry leaves, spearmint leaves, peppermint leaves, and white sage. Id. at 8.

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Kindred’s complaint likewise alleges that Bigot denied him certain items, including horse hair

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and leather. Id. at 9. On February 9, 2018, Kindred filed an “addendum” to his complaint,

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alleging that Bell also denied him certain additional materials, including bolo ties and some

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additional herbs. See ECF. No. 73.

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The court may consider Kindred’s allegations based on his personal knowledge and made
26 under penalty of perjury. See Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004); ECF No. 15
at 16; ECF No. 73 at 6.
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Kindred argues that many of the items Bell and Bigot denied him were in fact allowed

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under prison policies, or at least not specifically prohibited. See ECF No. 15 at 8-9; see also

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ECF No. 73 at 5 (“None of these items are specifically listed in either the Statewide

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Contraband List or the DSH-C Contraband List.”). But the record shows otherwise.3 Coalinga

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policies restrict Kindred’s access to certain items. These include policies that limit patient

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access to unlabeled or unsealed packages; policies that require the inspection of patient mail;

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policies that prohibit patient access to fruit and vegetable seeds that might be used to make

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alcohol; and policies that limit patient access to items that might be used as weapons. See ECF

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No. 119 at 1-12. In addition, Kindred does not dispute that Coalinga hospital administrators

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had discretion in applying these policies. See ECF No. 126 at 2 (stating that the relevant

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written policy “is unable to fully describe a list of all the herbs used by Native Americans and

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[is] unfamiliar [with] what each herb looks like or is used for”).

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II. Standard of Review
Summary judgment is appropriate when there is “no genuine dispute as to any material

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fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A

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factual dispute is genuine if a reasonable trier of fact could find in favor of either party at trial.

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See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). The disputed fact is material if

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it “might affect the outcome of the suit under the governing law.” See id. at 248.

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The party seeking summary judgment bears the initial burden of demonstrating the

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absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325

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(1986). Once the moving party has met its burden, the non-moving party may not rest on the

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For example, Kindred relies on Coalinga’s Administrative Directive No. 642, which provides
that a patient could have an animal bone “up to 4” inches, but the elk antler that he tried to
obtain was over 4 inches. Compare ECF No. 73 at 10, with ECF No. 119 at 9, and
ECF No. 126 at 3, ECF No. 119-1 at 88-89. Likewise, Kindred insists that he could have
beading needles, but the pertinent regulation prohibited patients from possessing beading
needles, except under supervision during a structured beading/leather work group. Compare
ECF No. 15 at 8, with ECF No. 73 at 10, and ECF No. 120-2 at 3-4, and ECF No. 120-3 at 14,
and ECF No. 120-4 at 4. Similar deficiencies appear throughout Kindred’s version of facts, and
we need not list every deficiency here.
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allegations or denials in its pleading, Anderson, 477 U.S. at 248, but “must come forward with

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‘specific facts showing that there is a genuine issue for trial.’” Matsushita Elec. Indus. Co.,

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Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)).

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In making a summary judgment determination, a court “may not engage in credibility

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determinations or the weighing of evidence,” Manley v. Rowley, 847 F.3d 705, 711 (9th Cir.

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2017) (citation omitted), and it must view the inferences drawn from the underlying facts in the

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light most favorable to the non-moving party. See United States v. Diebold, Inc., 369 U.S. 654,

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655 (1962) (per curiam); Orr v. Bank of America, NT & SA, 285 F.3d 764, 772 (9th Cir. 2002).

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Defendants have met their burden of showing the absence of a genuine issue of material
fact, and Kindred has not shown that there are issues for trial.
III. Analysis

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The First Amendment of the United States Constitution protects the free exercise of

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religion. Government detainees of all kinds are still protected by this right, albeit in a manner

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that requires balancing a detainee’s right against the practical realities of running a custodial

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facility. In the prison context, the Supreme Court articulated the contemporary framework for

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balancing constitutional rights against practical realities in Turner v. Safley, 482 U.S. 78.

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Turner offered a four-factor test for determining whether a prison regulation that burdens a

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constitutional right is “reasonably related to legitimate penological interests” and, thus,

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constitutional. Id. at 89. First, Turner requires that I look at whether there is a “valid, rational

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connection” between the regulation and the government interest; second, I must examine

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whether there are “alternate means” for the detainee to exercise the right in question; third, I

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must consider the effects that the desired accommodation would have on third parties and

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facility resources; and, fourth, I must look at whether there are “ready alternatives” to the

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regulation in question. See id. at 89-91. The Turner framework applies to civil detainees like

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Kindred as well as to prisoners. See, e.g., Herrick v. Strong, 745 F. App’x 287 (9th Cir. 2018);

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Hydrick v. Hunter, 500 F.3d 978, 991 (9th Cir. 2007), judgment vacated on other grounds, 556

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U.S. 1256 (2009); Lyon v. U.S. Immigration & Customs Enf’t, 171 F. Supp. 3d 961, 985 (N.D.

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Cal. 2016).

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Turner applies here because Kindred was denied materials pursuant to Coalinga policies.

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Indeed, all available evidence suggests that this is what happened, and no reasonable factfinder

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could conclude otherwise. While Kindred claims that many of the items he desired are in some

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circumstances permissible, he does not contend that employees at Coalinga lacked the

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discretion to deny or limit his access to unlabeled or potentially hazardous items, or lacked an

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obligation to enforce other Coalinga policies.

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All four Turner factors point in favor of the defendants. First, Coalinga’s policies of

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restricting access to unlabeled and potentially dangerous items is validly related to the facility’s

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interest in the health and safety of patients and employees. Second, Kindred has numerous

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alternate means by which he can exercise his right to practice his religion. He has access to

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religious services and a spiritual advisor; he has access to many herbs and materials to produce

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sacred Native American items; and he has potential access to even more plant materials—if he

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attempts to obtain them in labeled and sealed packages. Third, Kindred’s implicitly desired

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accommodation—the ability to access currently impermissible materials or unlabeled ones—

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would have deleterious effects on other employees and detainees at Coalinga, as it would

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effectively end the facility’s policies of restricting access to unknown or potentially dangerous

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materials. Fourth, I do not see ready alternatives to Coalinga’s policies that would strike a

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better balance between Kindred’s free exercise rights and the facility’s legitimate interest in

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promoting health and safety through an administratively feasible policy. For these reasons,

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Coalinga’s policies were constitutionally valid as applied to Kindred, and Kindred has no valid

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First Amendment claim against Bell and Bigot.

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This result accords with both the background motivations of the Turner test and with how

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courts in the Ninth Circuit have applied it. The Turner court was wary of “[s]ubjecting the

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day-to-day judgments” of government officials “to an inflexible strict scrutiny analysis [that]

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would seriously hamper their ability to anticipate security problems and to adopt innovative

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solutions to the intractable problems” that arise in the context of government detention.

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Turner, 482 U.S. at 89. A more restrictive test, the Turner Court reasoned, would “distort the

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decisionmaking process, for every administrative judgment would be subject to the possibility

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that some court somewhere would conclude that it had a less restrictive way of solving the

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problem at hand.” Id. The reluctance to police the administrative decisions of officials

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overseeing government detention is why the Ninth Circuit has, in similar contexts, upheld

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summary judgment in favor of defendants. See Sefeldeen v. Alameida, 238 F. App’x 204 (9th

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Cir. 2007) (upholding summary judgment against Islamic plaintiff alleging that vegetarian

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prison diet violated the First Amendment); Henderson v. Terhune, 379 F.3d 709 (9th Cir.

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2004) (upholding grant of summary judgment against Native American plaintiff alleging that

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prison limitation on hair length violated the First Amendment); Standing Deer v. Carlson, 831

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F.2d 1525 (9th Cir. 1987) (upholding grant of summary judgment against Native American

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prisoners alleging that prison regulation banning headgear violated First Amendment); Allen v.

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Toombs, 827 F.2d 563 (9th Cir. 1987) (upholding grant of summary judgment against Native

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American prisoners alleging that prison policy limiting prisoner access to “sweat lodge”

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violated First Amendment).4

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IV. Findings and Recommendations

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For the foregoing reasons, I recommend that:

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1. The court grant in defendant’s motion for summary judgment, ECF No. 120.

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2. The court grant judgment in favor of defendants and close the case.

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These findings and recommendations are submitted to the U.S. district judge presiding

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over the case under 28 U.S.C. § 636(b)(1)(B) and Local Rule 304. Within fourteen days of the

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service of the findings and recommendations, the parties may file written objections to the

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Kindred has brought First Amendment claims but not claims under the Religious Land Use
and Institutionalized Persons Act (“RLUIPA”). RLUIPA requires that “[n]o government shall
impose a substantial burden on the religious exercise of a person residing in or confined to an
institution . . . even if the burden results from a rule of general applicability” unless the
government can establish that the burden “is in furtherance of a compelling governmental
interest” and uses the “least restrictive means.” 42 U.S.C. § 2000cc-1(a). While I do not
express a view on the merits of such a claim, I note that it would be petitioner’s initial burden to
show that the restrictions and administrative decisions in question imposed a “substantial
burden” on his religious beliefs. See Sefeldeen, 238 F. App’x at 205-6.

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findings and recommendations with the court and serve a copy on all parties. That document

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must be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The

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presiding district judge will then review the findings and recommendations under 28 U.S.C.

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§ 636(b)(1)(C). If the parties fail to file objections within the specified time, they may waive

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their rights to object to factual findings on appeal. See Wilkerson v. Wheeler, 772 F.3d 834,

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839 (9th Cir. 2014).

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IT IS SO ORDERED.

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Dated:

August 23, 2019

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UNITED STATES MAGISTRATE JUDGE

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No. 205

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