Solis v. Gonzales

Filing 46

FINDINGS and RECOMMENDATIONS recommending that Defendant's Motion for Summary Judgment be GRANTED 38 ; referred to Judge Unassigned DJ,signed by Magistrate Judge Jennifer L. Thurston on 06/28/2020. Objections to F&R due 21-Day Deadline (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERT O. SOLIS,
Plaintiff,

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v.

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R. GONZALES,

FINDINGS AND RECOMMENDATIONS
TO GRANT DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT
(Doc. 38)

Defendant.

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Case No. 1:18-cv-00015-NONE-JLT (PC)

21-DAY DEADLINE

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Before the Court is Defendant’s motion for summary judgment. (Doc. 38.) For the reasons

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set forth below, the Court recommends that Defendant’s motion be granted.
I.

PROCEDURAL BACKGROUND
On September 21, 2018, the Court screened Plaintiff’s complaint pursuant to 28 U.S.C. §

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1915A and found that it states cognizable claims under the Free Exercise Clause of the First

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Amendment and the Religious Land Use and Institutionalized Persons Act (RLUIPA), based on

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Defendant’s alleged confiscation of Plaintiff’s religious “rosette.” (Doc. 10.) The Court also

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found that Plaintiff states a cognizable retaliation claim. (Id.) Plaintiff elected to proceed only on

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the claims found cognizable by the Court. (Doc. 15; see also Doc. 16.)

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On October 10, 2019, Defendant filed a motion for summary judgment on the grounds

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that Plaintiff failed to exhaust administrative remedies with respect to his retaliation claim. (Doc.

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28.) On January 4, 2020, District Judge Lawrence J. O’Neill adopted the undersigned’s findings

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and recommendations (Doc. 35), recommending that Defendant’s motion be granted. (Doc. 36.)

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The Court allowed Plaintiff’s free exercise claims to proceed. (Id.)

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On February 5, 2020, Defendant filed a motion for summary judgment on the grounds that

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the undisputed evidence shows that she did violate the RLUIPA or Plaintiff’s free exercise rights

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under the First Amendment. (Doc. 38.) Plaintiff filed an opposition, to which Defendant filed a

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reply. (Docs. 44, 45.) Defendant’s motion is ripe for review.

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II.

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EVIDENTIARY MATTERS
Though Defendant provided Plaintiff with the requirements for opposing a motion for

summary judgment under Federal Rule of Civil Procedure 56 and Local Rule 260 (Doc. 38-5),

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Plaintiff has not submitted any evidence in support of his opposition to Defendant’s motion.

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Plaintiff has also failed to reproduce the itemized facts in Defendant’s statement of undisputed

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facts (Doc. 38-2) and to admit or deny those facts. Although the Court may grant Defendant’s

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motion on these grounds, see Fed. R. Civ. P. 56(e)(3), because Plaintiff is pro se and attests under

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penalty of perjury that the contents of his complaint are true and correct (Doc. 1 at 6), the Court

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will consider as evidence those parts of the complaint that are based on Plaintiff’s personal

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knowledge. See Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004) (citations omitted).

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III.

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SUMMARY OF RELEVANT FACTS
Mr. Solis is incarcerated at Valley State Prison, and his claims stem from events at the

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prison. Pl.’s Compl. at 1 (Doc. 1). On April 4, 2017, Correctional Officer Gonzales saw Plaintiff

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wearing a necklace with a medallion that appeared larger than 2 inches wide. Def.’s Separate

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Statement of Material Undisputed Facts (“SUF”) ¶ 5 (Doc. 38-2). Defendant told Plaintiff that the

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necklace was contraband because of its size. Id. ¶ 6. According to the “Religious Personal

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Property Matrix,” religious medallions may not exceed 1.5 inches in diameter. Gonzales Decl. ¶ 6

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(Doc. 38-3); Gonzales Decl. Ex. A; see also Cal. Code Regs. tit. 15, § 3190(b) (incorporating by

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reference the Religious Personal Property Matrix). Defendant advised Plaintiff that he could mail

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the necklace home, and he agreed to do so. SUF ¶ 7.

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Plaintiff’s necklace is a “Native American [s]piritual [a]rtifact …. known as a [r]osette,”
given to him by his grandmother. Pl.’s Compl. at 7; Pl.’s Dep. 47:3-6. On the date that Defendant
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confiscated the rosette, Plaintiff had a locker where he kept other spiritual items, “such as beads,

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medallions, bandanas, wristbands, chokers, and medicine bags.” SUF ¶ 8. Plaintiff is still allowed

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to keep these other spiritual items in the locker. Pl.’s Dep. 38:23-39-3, Vong Decl. Ex. B. (Doc.

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38-4). Plaintiff regularly sends spiritual items home, including rosettes, which is consistent with

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his religion. SUF ¶ 9; Pl.’s Dep. 64:19-21. After Defendant confiscated his rosette, Plaintiff was

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allowed to continue to “mediate, rub sage, and engage in prayer.” SUF ¶ 10. The prison spiritual

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advisor also advised Plaintiff that he may attend sweat-lodge ceremonies. Id. ¶ 11.

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IV.

LEGAL STANDARD

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Summary judgment is appropriate when the moving party “shows that there is no genuine

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dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

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Civ. P. 56(a). The moving party “initially bears the burden of proving the absence of a genuine

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issue of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing

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Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party may accomplish this by

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“citing to particular parts of materials in the record, including depositions, documents,

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electronically stored information, affidavits or declarations, stipulations …, admissions,

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interrogatory answers, or other materials,” or by showing that such materials “do not establish the

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absence or presence of a genuine dispute, or that an adverse party cannot produce admissible

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evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(A), (B). When the non-moving party bears

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the burden of proof at trial, “the moving party need only prove that there is an absence of

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evidence to support the non-moving party’s case.” Oracle Corp., 627 F.3d at 387 (citing Celotex,

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477 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B).

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Summary judgment should be entered against a party who fails to make a showing

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sufficient to establish the existence of an element essential to that party’s case, and on which that

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party will bear the burden of proof at trial. See Celotex, 477 U.S. at 322. “[A] complete failure of

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proof concerning an essential element of the nonmoving party’s case necessarily renders all other

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facts immaterial.” Id. at 322–23. In such a circumstance, summary judgment should be granted,

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“so long as whatever is before the district court demonstrates that the standard for the entry of

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summary judgment … is satisfied.” Id. at 323.
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If the moving party meets its initial responsibility, the burden then shifts to the opposing

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party to establish that a genuine issue as to any material fact does exist. See Matsushita Elec.

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Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the

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existence of a factual dispute, the opposing party may not rely upon the allegations or denials of

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his pleadings but is required to tender evidence of specific facts in the form of affidavits or

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admissible discovery material in support of its contention. See Fed. R. Civ. P. 56(c)(1);

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Matsushita, 475 U.S. at 586 n.11; Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir.

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2002) (“A trial court can only consider admissible evidence in ruling on a motion for summary

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judgment.”). The opposing party must demonstrate that the fact in contention is material, i.e., that

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it might affect the outcome of the suit under governing law, see Anderson v. Liberty Lobby, Inc.,

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477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626,

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630 (9th Cir. 1987), and that the dispute is genuine, i.e., that the evidence is such that a

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reasonable jury could return a verdict for the non-moving party, see Anderson, 477 U.S. at 250;

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Wool v. Tandem Computs. Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).

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To show a factual dispute, the opposing party need not prove a material fact conclusively.

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It is sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the

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parties’ differing versions of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the

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“purpose of summary judgment is to ‘pierce the pleadings and to assess the proof in order to see

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whether there is a genuine need for trial.’” Matsushita, 475 U.S. at 587 (citations omitted).

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“In evaluating the evidence to determine whether there is a genuine issue of fact,” the

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court draws “all inferences supported by the evidence in favor of the non-moving party.” Walls v.

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Cent. Contra Costa Cty. Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011). However, the opposing

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party must still produce a factual predicate from which the inference may be drawn. See Richards

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v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902

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(9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than

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simply show that there is some metaphysical doubt as to the material facts…. Where the record

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taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no

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‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted).
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V.

DISCUSSION

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A. Religious Land Use and Institutionalized Persons Act

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The RLUIPA provides that “[n]o government shall impose a substantial burden on the

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religious exercise of a person residing in or confined to an institution, … unless the government

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demonstrates that imposition of the burden on that person … is in furtherance of a compelling

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governmental interest … and is the least restrictive means of furthering that … interest.” 42

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U.S.C. § 2000cc-1(a). “RLUIPA defines ‘religious exercise’ to include ‘any exercise of religion,

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whether or not compelled by, or central to, a system of religious belief.’” Hartmann v. California

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Dep’t of Corr. & Rehab., 707 F.3d 1114, 1124 (9th Cir. 2013); 42 U.S.C. § 2000cc-5(7). The

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government imposes a “substantial burden” on religious exercise when it puts “substantial

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

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1125 (internal quotation marks and citation omitted).

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The Court therefore “begin[s] by identifying the ‘religious exercise’ allegedly impinged

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upon.” Greene v. Solano Cty. Jail, 513 F.3d 982, 987 (9th Cir. 2008). As explained in Cutter v.

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Wilkinson, “[T]he ‘exercise of religion’ often involves not only the belief and profession but the

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performance of ... physical acts [such as] assembling with others for a worship service [or]

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participating in sacramental use of bread and wine.” 544 U.S. 709, 720 (2005) (internal quotation

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marks and citation omitted). In Greene, the Ninth Circuit held that the religious exercise at issue

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was “group worship, not Christianity” more generally. 513 F.3d at 988. In Shakur v. Schriro, the

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religious exercise at issue was the practice of abstaining from eating haram meat. See 514 F.3d

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878, 888 (9th Cir. 2008).

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In his opposition, Plaintiff states, “Native Americans have different ways of praying….

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Here, Plaintiff’s (Rosette) was sent away…. Plaintiff has possessed his spiritual artifact and at

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times has worn it. In order for Plaintiff not to loose [sic] focus on his traditional ways he uses his

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spiritual artifacts as a symbolic way to have a connection to the spiritual world.” Pl.’s Opp’n at 4.

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Plaintiff implies that he used the rosette for prayer and that he wore the rosette “at times,”

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meaning that he did not wear it at other times. Plaintiff has other rosettes in addition the one that

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Defendant confiscated. See Pl.’s Dep. 64:19-21.
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Plaintiff appears to use rosettes to remind him of his spirituality and, as he puts it, to have

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a symbolic connection to the “spiritual world.” Plaintiff provides no evidence that he uses his

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rosettes for particular religious ceremonies, or specific religious practices, such as the way he

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uses sage during his morning mediation ritual, see Pl.’s Dep. 46:10-18. Based on this, the Court

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finds that the religious exercise at issue is Plaintiff’s access to his spiritual artifacts, including his

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rosettes, as opposed to a particular practice for which he could use the rosettes.

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Next, the Court “must ask whether the prison regulation at issue ‘substantially burdens’”

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the religious exercise at issue. Greene, 513 F.3d at 987. A “‘substantial burden’ on ‘religious

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exercise’ … impose[s] a significantly great restriction or onus upon such exercise.” Warsoldier v.

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Woodford, 418 F.3d 989, 995 (9th Cir. 2005) (internal quotation marks and citation omitted). In

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addition, a substantial burden exists “where the state ... denies [an important benefit] because of

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conduct mandated by religious belief, thereby putting substantial pressure on an adherent to

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modify his behavior and to violate his beliefs.” Id. (internal quotation marks and citation omitted).

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In other words, “a prison policy that ‘intentionally puts significant pressure on inmates ... to

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abandon their religious beliefs ... imposes a substantial burden on [the inmate’s] religious

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practice.’” Shakur, 514 F.3d at 889 (citation omitted). In Warsoldier, the Ninth Circuit held that a

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prison’s grooming policy substantially burdened the plaintiff’s religious beliefs by pressuring him

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to cut his hair and thereby abandon those beliefs. 418 F.3d at 996. In Greene, the court held that a

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prison’s policy of prohibiting the plaintiff “from attending group religious worship services

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substantially burdened his ability to exercise his religion.” 513 F.3d at 988.

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Based on the uncontested facts, the Court finds that Defendant did not substantially

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burden Plaintiff’s exercise of religion by forcing him to mail his rosette home. The Court

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acknowledges that the rosette appears to have special significance to Plaintiff because it was

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given to him by his grandmother. See Pl.’s Dep. 49:17-50:9. However, the evidence does not

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show that mailing the rosette home substantially burdened Plaintiff’s religious beliefs or

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practices. Plaintiff admitted in his deposition that he regularly mails his spiritual artifacts home,

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including rosettes, and that doing so is consistent with his religion. Pl.’s Dep. 64:15-65:16.

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Plaintiff testified that he still has access to other spiritual artifacts, such as “beads and …
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medallions that [he] wear[s] for ceremony” as well as bandanas, wristbands, and chokers. Id.

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38:23-39:3. The evidence does not show that Defendant’s action pressured Plaintiff to engage in

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conduct that violated his religious beliefs or hindered his engagement in ceremonies or other

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religious practices. Based on the evidence presented, Defendant’s confiscation of one of

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Plaintiff’s rosettes did not substantially burden the religious exercise at issue here—Plaintiff’s

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general access to his rosettes and other spiritual artifacts.
Because the Court finds that Defendant’s actions did not substantially burden Plaintiff’s

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exercise of religion, the Court need not reach whether those actions furthered a compelling

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government interest or whether they were the least restrictive means of doing so.

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B. Free Exercise Clause of the First Amendment

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As with RLUIPA claims, a prisoner asserting a First Amendment “free exercise claim

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must show that the government’s action … substantially burdens the … practice of her religion.”

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Jones v. Williams, 791 F.3d 1023, 1031 (9th Cir. 2015) (citation omitted). Under the First

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Amendment, “[a] substantial burden … place[s] more than an inconvenience on religious

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exercise; it must have a tendency to coerce individuals into acting contrary to their religious

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beliefs or exert substantial pressure on an adherent to modify his behavior and to violate his

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beliefs.” Id. (internal quotation marks and citations omitted). “[A]lleged infringements of

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prisoners’ free exercise rights [are] ‘judged under a “reasonableness” test less restrictive than that

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ordinarily applied to alleged infringements of fundamental constitutional rights.’” Id. at 1032

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(quoting O’Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987)). “The challenged conduct is

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valid [under the First Amendment] if it is reasonably related to legitimate penological interests.”

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Id. (internal quotation marks and citations omitted).
For the same reasons discussed above, the uncontested facts show that Defendant’s action

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did not substantially burden Plaintiff’s practice of religion and thereby impinge on his First

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Amendment rights. The Court therefore does not reach whether such action was reasonably

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related to a legitimate penological interest. The Court also does not address Defendant’s argument

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that she is entitled to qualified immunity.

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VI.

CONCLUSION AND RECOMMENDATION

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Based on the foregoing, the Court RECOMMENDS that Defendant’s motion for

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summary judgment be GRANTED. These Findings and Recommendations will be submitted to

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the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. §

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636(b)(l). Within 21 days of the date of service of these Findings and Recommendations,

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Plaintiff may file written objections with the Court. The document should be captioned,

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“Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff’s failure to file

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objections within the specified time may result in waiver of his rights on appeal. Wilkerson v.

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Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th

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Cir. 1991)).

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IT IS SO ORDERED.
Dated:

June 28, 2020

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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