Rupe v. Cate et al

Filing 173

ORDER signed by Senior Judge Edward F. Shea on 12/23/13 GRANTING with prejudice Defendants' 164 Motion for Summary Judgment and Nunc Pro Tunc leave to exceed page limit; DENYING Plaintiff's 166 Motion to Strike. CASE CLOSED. (Manzer, C)

1
2
3
4
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
SACRAMENTO DIVISION

5
6
7

No.

PAUL ANTHONY RUPE,

CV-08-2454-EFS (PC)

8
Plaintiff,
ORDER GRANTING DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT

9
v.
10
11
12

JEFFREY BEARD, in his official
capacity as Secretary of the
California Department of
Corrections and Rehabilitation,
et al.,

13
Defendants.
14
I.

15
16

INTRODUCTION

Before the Court, without oral argument, is Defendants’ Motion

17

for Summary Judgment, ECF No. 164.

Defendants seek summary judgment

18

on Plaintiff’s claims against them.

Also pending before the Court is

19

the related matters of Plaintiff’s Motion to Strike, ECF No. 166, and

20

Defendants’ Nunc Pro Tunc Leave to Exceed Page Limit, ECF No. 167.

21

Having reviewed the parties’ submissions and the record in this

22

matter, and having consulted the applicable authority, the Court is

23

fully informed.

24

Defendants’

25

Defendants’ Nunc Pro Tunc Leave to Exceed Page Limit, ECF No. 167, and

26

denies Plaintiff’s Motion to Strike, ECF No. 166.

ORDER

- 1

For the reasons set forth below, the Court grants

Motion

for

Summary

Judgment,

ECF

No.

164,

grants

II.

1
2

BACKGROUND

Factual History1

A.

Plaintiff,

3

an

incarcerated

inmate

in

the

custody

of

the

4

California Department of Corrections and Rehabilitation (“CDCR”), is a

5

practicing Druid.

6

beliefs and practices of the druids — the religious and educational

7

leaders in ancient Gaul.

8

Bards, Ovates, and Druids (“OBOD”), a Druid organization based in

9

England, from which he obtained correspondence courses to aid his

Druidry is a neo-pagan religion that revives the

Plaintiff has communicated with the Order of

10

spiritual development.

11

courses related to Druidry, and he has written articles and attained

12

various

13

Druidry is Plaintiff’s sincerely held religious belief.

titles

Plaintiff

14

and

He has completed several OBOD educational

honorifics

voluntarily

within

associated

his

chosen

with

religious

members

of

other

order.

Pagan

15

denominations while incarcerated at Mule Creek State Prison (“MCSP”).

16

On March 17, 2007, he wrote to California State Senator Gloria Romero,

17

requesting various items necessary for Pagan religious worship.

A

18

copy of the letter was given to Defendant Subia, the MCSP warden.

On

19

the same day, Plaintiff filed an administrative grievance with MCSP

20

officials in which he requested accommodations for Pagan worship,

21

including a request for a sweathouse, fire pit, religious land, and

22
23
24

1

In ruling on the motion for summary judgment, the Court has considered
the facts and all reasonable inferences therefrom as contained in the
submitted affidavits, declarations, exhibits, and depositions, in the

25

light

26

Plaintiff.
1999).

ORDER

- 2

most

favorable

to

the

party

opposing

the

motion

–

here,

the

See Leslie v. Grupo ICA, 198 F.3d 1152, 1158 (9th Cir.

1

religious

2

Plaintiff’s grievance on April 2, 2007.

3

Long — an associate MCSP warden — informed Plaintiff that MCSP would

4

approve the Pagan group's practices and would grant them a worship

5

area,

6

accommodate the large number of Pagan inmates at once.

however

On

7

herbs

8
9

believed

the

June

Committee

and

1,

(RRC)
were

oils.

grounds

2007,

request

being

and

officials

provided

Plaintiff
regarding

placed

Takehara

MCSP

on

held

were

the

on

not

a

large

Religious

limitations

religion.

On

to

Review

that

Plaintiff

June

6,

11

connection with their investigation of a note threatening an assault

12

on Mule Creek staff by members of Kekau Ya Aset (HYA), to which

13

Plaintiff belonged.

On June 10, 2007, Plaintiff filed an inmate

14

grievance

the

15

stones, and crystals, and requesting a fence, fire pit, and sweathouse

16

for the Pagan religious grounds.

17

these requests for unauthorized religious items need to go through the

18

RRC.
June

14,

purchase

oils,

cell

herbs,

in

prayer

In response Plaintiff was informed

19

On

20

segregation.

21

completed, Plaintiff was found guilty of a Rule Violation Report (RVR)

22

in connection with the note threatening Mule Creek staff members by

23

HYA.

On

2007,

to

Plaintiff’s

2007,

Defendants

ability

searched

enough

10

requesting

Lockhart

hearing

At the hearing, Defendant

submitted

his

a

Plaintiff

September

18,

was

2007,

placed

after

an

in

administrative

investigation

was

On November 15, 2007, Defendant Bueno and Green did not allow

24
25

non-Wiccans to use the Pagan religious grounds.

26

Druids were required to hold group worship on the general population

ORDER

- 3

Plaintiff and the

1

yard.

Between

November

2007

and

September

2008,

Plaintiff

sent

2

multiple request to the RRC requesting food for religious feasts,

3

religious grounds to accommodate more inmates, a sweathouse, fire pit,

4

and approval of some religious items.

5

reviewed Plaintiff’s requests and decided that only Native Americans

6

could use the sweathouse.

7

that MCSP personnel had been served with his complaint.

8

Allen told building staff on April 7, 2009, that the Druids were no

9

longer a recognized religious group.

On February 25, 2009, the RRC

On March 17, 2009, Plaintiff was informed
Defendant

On April 15, 2009, Defendant

10

Martel issued a memorandum stating that MCSP would no longer provide

11

food

12

Plaintiff was advised that he was being considered for a transfer to

13

the California State Prison in Lancaster (“LAC”).

14

to the transfer on numerous procedural and substantive grounds.

The

15

UCC

the

16

conversion of Mule Creek yards that made them incompatible with Level

17

three and four inmates.

18

to LAC.

19

and was placed on the waiting list to work as support staff.

20

2013, Plaintiff was transferred back to Mule Creek from LAC.

21

B.

for

any

hearing

prisoner

stated

the

religious

transfer

celebrations.

was

On

May

6,

2009,

Plaintiff objected

recommended

because

of

On June 17, 2009, Plaintiff was transferred

On July 22, 2009, Plaintiff attended his initial ICC hearing
In March

Procedural History
Plaintiff filed his initial Complaint on October 16, 2008, ECF

22
23

No. 1, and the Amended Complaint on July 24, 2009, ECF No. 31.

24

February

25

Defendants’ motion to dismiss.

26

Plaintiff filed another amended complaint, captioned as the First

ORDER

1,

- 4

2010,

the

Court

granted

in

part

ECF No. 48.

and

denied

in

On
part

On February 24, 2010,

1

Amended Complaint (“FAC”), ECF No. 51.

2

June 15, 2010.

3

Plaintiff’s motion for summary judgment, motion for leave to conduct

4

third-party discovery, and motion to compel discovery.
On

5

ECF No. 68.

December

14,

Defendants answered the FAC on

On October 13, 2011, the Court denied

2011,

Plaintiff

filed

the

ECF No. 96.
now-operative

6

complaint, captioned as the Second Amended Complaint (“SAC”), ECF No.

7

101.

8

The

9

Defendants.

Defendants answered the SAC on February 16, 2012.
SAC

asserts

nine

claims

and

names

ECF No. 105.

thirty-eight

individual

On January 26, 2012, the Court screened the SAC pursuant

10

to 28 U.S.C. § 1915A.

11

several of Plaintiff’s claims for mootness, the Court directed service

12

of the remaining claims.

13

Defendants moved to dismiss various claims.

14

June 3, 2013, the Court granted dismissal of the Fourth Claim against

15

Defendants Omeira and Bowen and granted dismissal of the Eighth Claim

16

against

157.

On

17

September 12, 2013, the Defendants filed for summary judgment.

ECF

18

No. 164.

Defendants

ECF No. 103.

After partially dismissing

On August 15, 2012, and March 25, 2013,

Cash,

Fortson,

and

ECF Nos. 128 & 151.

Sebok.

ECF

No.

On

III. PLAINTIFF’S MOTION TO STRIKE

19
Plaintiff

20

seeks

to

strike

Defendants’

Motion

for

Summary

21

Judgment, ECF No. 164, as Defendants’ brief exceeded the page limits

22

set in Local Rule 56.1 and 7.1.

23

brief was twenty-three pages long, when the limit was twenty pages.

24

Plaintiff notes that before filing the over-length brief Defendants’

25

did

26

Defendants filed a nunc pro tunc request for leave to exceed the page

not

ORDER

seek

- 5

leave

of

the

Under Local Rule 7.1, Defendants’

Court.

However,

on

October

9,

2013,

1

limit, stating they had inadvertently filed the brief compliant with

2

the Eastern District of California Local Rules, but not complaint with

3

the Eastern District of Washington Local Rules, and requested leave be

4

granted.

5

over-length brief, as the brief, which was three pages over length,

6

addressed

nine

7

necessary

to

8

Plaintiff’s Motion to Strike is denied and Defendants’ request to

9

exceed the page limit is granted.

Ultimately, the Court finds good cause for permitting an

claims
adequately

IV.

10

against

thirty-one

address

all

the

Defendants,
issues.

which

was

Accordingly,

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

11

Defendants seek summary judgment on Plaintiff’s nine claims for

12

relief under the Religious Land Use and Institutionalized Persons Act

13

(RLUIPA) and the Civil Rights Act (§ 1983).

14

A.

Legal Standards

15

Summary judgment is appropriate if the “movant shows that there

16

is no genuine dispute as to any material fact and the movant is

17

entitled to judgment as a matter of law.”

18

Once a party has moved for summary judgment, the opposing party must

19

point to specific facts establishing that there is a genuine dispute

20

for trial.

21

the nonmoving party fails to make such a showing for any of the

22

elements essential to its case for which it bears the burden of proof,

23

the trial court should grant the summary judgment motion.

24

“When the moving party has carried its burden under Rule [56(a)], its

25

opponent must do more than simply show that there is some metaphysical

26

doubt as to the material facts.

ORDER

- 6

Fed. R. Civ. P. 56(a).

Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

If

Id. at 322.

. . . [T]he nonmoving party must come

1

forward with ‘specific facts showing that there is a genuine issue for

2

trial.’”

3

574, 586-87 (1986) (internal citation omitted) (emphasis in original).

4

When considering a motion for summary judgment, the Court does

5

not weigh the evidence or assess credibility; instead, “the evidence

6

of the non-movant is to be believed, and all justifiable inferences

7

are to be drawn in his favor.”

8

U.S. 242, 255 (1986).

9

B.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

Anderson v. Liberty Lobby, Inc., 477

Discussion

10

1.

RLUIPA

11

Plaintiff

alleges

Defendants

Beard

and

Jackson,

in

their

12

official capacity, violated his right to practice his religion under

13

RLUIPA.

14

Be Adjudicated, ECF No. 161, Plaintiff is no longer housed at LAC

15

making the injunctive relief sought against Jackson moot.

However, as Plaintiff acknowledges in his Notice of Claims to

16

As to Defendant Beard, Plaintiff bears the initial burden of

17

persuasion on whether the “government practice that is challenged by

18

the claim substantially burdens the plaintiff's exercise of religion.”

19

42 U.S.C.A. § 2000cc-2.

20

impose a substantial burden on the religious exercise of a person

21

residing in or confined to an institution . . . even if the burden

22

results from a rule of general applicability,” unless the government

23

shows that the burden is “in furtherance of a compelling government

24

interest” and “is the least restrictive means of furthering . . . that

25

interest.”

26

‘compelling governmental interest’ standard, ‘[c]ontext matters' in

ORDER

- 7

RLUIPA provides that “[n]o government shall

42 U.S.C. § 2000cc–1(a) (2012).

“While [RLUIPA] adopts a

1

the application of that standard.”

2

722-23 (2005).

3

“due deference to the experience and expertise of prison and jail

4

administrators in establishing necessary regulations and procedures to

5

maintain

6

consideration of costs and limited resources.”

7

defines “religious exercise” to include “any exercise of religion,

8

whether or not compelled by, or central to, a system of religious

9

belief.”

good

§

Cutter v. Wilkinson, 544 U.S. 709,

Courts are expected to apply RLUIPA's standard with

order,

security

2000cc–5(7)(A).

and

RLUIPA

discipline,

does

consistent

Id. at 723.

not

define

with
RLUIPA

“substantial

10

burden,” but the Ninth Circuit has held that in the context of a

11

prisoner’s

12

substantial burden occurs “where the state . . . denies [an important

13

benefit] because of conduct mandated by religious belief, thereby

14

putting substantial pressure on an adherent to modify his behavior and

15

to violate his beliefs.”

16

(9th Cir.2005) (alteration in original) (quotation omitted).

constitutional

challenge

to

institutional

policies

a

Warsoldier v. Woodford, 418 F.3d 989, 995

17

Here, Plaintiff fails to make any showing that his religious

18

exercise was so burdened as to pressure him to abandon his beliefs.

19

Plaintiff continues to have the opportunity to pray, use his Tarot

20

cards, purchase some religious oils and herbs, and have group worship.

21

Rather than being pressured to abandon his religious belief, Plaintiff

22

seeks

23

provided by the prison, namely sweathouse ceremonies and six yearly

24

feasts.

25

burden under RLUIPA.

26

//

ORDER

additional

religious

accommodations

beyond

those

already

Accordingly, Plaintiff fails to demonstrate a substantial

- 8

1

2.

§ 1983 Claims

2

Section 1983 imposes two essential proof requirements upon a

3

claimant: (1) that a person acting under color of state law committed

4

the conduct at issue, and (2) that the conduct deprived the claimant

5

of some right, privilege, or immunity protected by the Constitution or

6

laws of the United States.

7

(1981).

8

the

9

participates in another's affirmative acts, or omits to perform an act

10

which he is legally required to do that causes the deprivation of

11

which [the plaintiff complains].”

12

(9th Cir. 1978).

13

and

14

defendant

15

constitutional deprivation.

16

(1976).

17

superior liability.

18

690-92 (1978).

19

position and the claimed constitutional violation must be shown; vague

20

and conclusory allegations are insufficient.

21

607 F.2d 858, 862 (9th Cir. 1979); Ivey v. Bd. of Regents, 673 F.2d

22

266, 268 (9th Cir. 1982).

Parratt v. Taylor, 451 U.S. 527, 535

A person deprives another “of a constitutional right, within

meaning

focus

on

of

section

if

he

does

an

affirmative

act,

Johnson v. Duffy, 588 F.2d 740, 743

The inquiry into causation must be individualized

the

whose

1983,

duties

acts

or

and

responsibilities

omissions

are

alleged

of
to

each
have

individual
caused

a

See Rizzo v. Goode, 423 U.S. 362, 370-71

Liability for a violation will not arise from respondeat
Monell v. Dep’t of Social Servs., 436 U.S. 658,

A causal link between a person holding a supervisorial

See Fayle v. Stapley,

The Court takes up each of the alleged violations in turn.

23

a.

24

First Amendment, Free Exercise

25

Plaintiff alleges Defendants Jackson, Beard, Barnham, Baptista,

26

Muhammed, Kuric, Long, Lackner, R. Bueno, Green, Lockhart, Takehara,

ORDER

- 9

1

Martel, Subia, and Knipp violated his First Amendment right to freedom

2

of religion.

3

retain the protections of the First Amendment.

4

of Shabazz, 482 U.S. 342, 348 (1974).

5

exercise his religion, however, is limited by institutional objectives

6

and by the loss of freedom concomitant with incarceration.

7

348.

8

government denied him “a reasonable opportunity of pursuing [his]

9

faith comparable to the opportunity afforded fellow prisoners who

The Supreme Court has repeatedly held that prisoners
See O'Lone v. Estate

A prisoner's right to freely

Id. at

To prevail on his Free Exercise Claim, Plaintiff must show the

10

adhere to conventional religious precepts.”

Cruz v. Beto, 405 U.S.

11

319, 322 (1972).

12

require prison administration to provide inmates with the religious

13

provisions of their choice.

14

place of worship need not be provided for every faith regardless of

15

size; nor must a chaplain, priest, or minister be provided without

16

regard to the extent of the demand.”).

It is well-settled that the First Amendment does not

Id. at 322 n. 2 (“A special chapel or

17

Here, as to Defendants Beard and Jackson, Plaintiff alleges they

18

violated his First Amendment rights by failing to enforce or implement

19

a number of new policies.

20

Jackson are supervisory officials and Plaintiff has not demonstrated

21

any facts showing they, either through policies enacted or actions not

22

taken, deprived Plaintiff of his First Amendment rights.

23

record shows that at all times Plaintiff could, and did, avail himself

24

of the RRC to voice his concerns and seek accommodations for his

25

practices.

26

//

ORDER

- 10

See ECF No. 101 at 27.

However, Beard and

In fact, the

Defendants Barnham, Baptista, Muhammed, Kuric, Long and Lackner,

1
2

members

3

religious practice.

4

actions

5

comparable to the opportunity afforded fellow prisoners.

6

Mule Creek, Plaintiff did have access to some oils and herbs, could

7

read his tarot cards, pray, could attend group worship, and was even

8

let out of the yard with other Druids prior to the general population.

9

Accordingly, Plaintiff has not demonstrated how the RRCs actions or

10

of

the

denied

RRC,

him

allegedly

failed

to

recognize

Druidry

as

a

However, Plaintiff does not show how the RRCs
a

reasonable

opportunity

to

pursue

his

faith

While at

inactions deprived him of any First Amendment right.

11

Next, as to Defendants Martinez, Texeira, Machado, Knipp, Long,

12

Vanni, and Martel, Plaintiff concedes that Texeira, Knipp, and Vanni

13

were not present at the transfer meeting.

14

are dismissed.

15

the

16

Plaintiff was up for transfer by the ICC, and then was not actually

17

transferred, in any way impacted his ability to practice his religion.

18

Plaintiff also alleges that Defendants Long, Bueno, and Baptista

19

violated his First Amendment rights by ordering him to reduce the

20

number of Pagan practitioners.

21

the provided space was not large enough to accommodate all the Pagan

22

inmates at one time, did not tell Plaintiff he could not attend or

23

that he could not practice his religion.

24

no violation that could arise from this request as to Plaintiff’s

25

First Amendment rights.

26

//

Plaintiff

ORDER

- 11

Accordingly, those claims

As to Defendants Martinez, Machado, Long, and Martel,
fails

to

show

how

the

UCC’s

acknowledgement

that

However, the request to Plaintiff that

Accordingly, the Court finds

1

Defendants Bueno and Green allegedly violated Plaintiff First

2

Amendment rights by ordering Plaintiff off of the Pagan grounds due to

3

limited space and security concerns.

4

provided with the opportunity to worship with a group on the general

5

population yard.

In Cruz, the Supreme Court stated that “[a] special

6

chapel or place

of worship need not be provided for

7

regardless of size.”

8

Court finds that Defendants, in providing Plaintiff an area for group

9

worship, just not the specific area Plaintiff desired, did not violate

10

However, Plaintiff was still

Cruz, 405 U.S. at 322 n. 2.

every faith

Accordingly, the

his First Amendment rights.
On

11

June

6,

2007,

Defendants

Lockhart

and

Takehara

searched

12

Plaintiff’s cell taking a number of items.

13

not

14

investigation of threats against the prison staff, in any way affected

15

his ability to practice his religion.

demonstrate

how,

the

search

of

his

However, Plaintiff does
cell

due

to

an

ongoing

Finally, Plaintiff alleges Defendants Martel, Subia, Long, and

16
17

Knipp

violated

18

actions

19

actions.

20

between these supervisors and the claimed constitutional violations.

21

See Fayle, 607 F.2d at 862.

of

his

their
However,

First

Amendment

direct

rights

subordinates

Plaintiff

has

not

but

by

being

actively

demonstrated

aware

of

ignored
a

the

their

causal

link

Accordingly, Plaintiff’s claim fails.

22

Ultimately, the Court finds nothing in the record before it to

23

support the contention that Defendants denied Plaintiff a reasonable

24

opportunity

25

afforded fellow prisoners.

26

//

ORDER

- 12

of

pursuing

his

faith

comparable

to

the

opportunity

Therefore, Plaintiff’s claim is dismissed.

b.

1

Fourteenth Amendment, Equal Protection

2

Plaintiff alleges Defendants Beard, Jackson, Barnham, Baptista,

3

Muhammed, Kuric, Long, Lackner, Martinez, Teixera, Machado, Knipp,

4

Long, Vanni, Martel, R. Bueno, Green, Lockhart, and Takehara violated

5

his Fourteenth Amendment right to Equal Protection by treating other

6

religions differently from Druidry.
The Equal Protection Clause requires the State to treat all

7
8

similarly situated people equally.

See City of Cleburne v. Cleburne

9

Living Ctr., 473 U.S. 432, 439 (1985).

This does not mean, however,

10

that all prisoners must receive identical treatment and resources.

11

See Cruz v. Beto, 405 U.S. 319, 322 n.2 (1972); Ward v. Walsh, 1 F.3d

12

873, 880 (9th Cir. 1993); Allen v. Toombs, 827 F.2d 563, 568–69 (9th

13

Cir.

14

prisoners' Equal Protection claim because “the prison administration

15

is not under an affirmative duty to provide each inmate with the

16

spiritual

17

Protection claim brought under § 1983, Plaintiff must show that “the

18

defendants acted with an intent or purpose to discriminate against

19

[him] based upon membership in a protected class.”

20

City of St. Helens, 425 F.3d 1158, 1166 (9th Cir. 2005).

1987)

counselor

First,

21

(affirming

like

summary

of

his

his

Free

judgment

choice”).

Exercise

against

To

claim,

Native

prevail

on

American

an

Equal

See Thornton v.

Plaintiff

argues

the

22

request to reduce the number of Pagan practitioners, his removal from

23

Pagan grounds, and the

24

protection violation.

25

being treated differently from any other prisoner when space within

26

the prison is limited or when a prisoner is suspected of involvement

ORDER

- 13

searching of his

cell amount to

an equal

However, Plaintiff does not evidence how he is

1

in

threats

to

staff

members.

Additionally,

he

has

presented

2

no

evidence to indicate a discriminatory purpose for these actions.
Second, as the members of the ICC and UCC, Plaintiff concedes

3
4

that

“Defendants

5

claim” and that “[t]his is not an equal protection claim.”

6

166 at 11.

7

claim against the ICC and UCC Defendants.

Knipp,

and

Vanni

are

dropped

from

this

ECF No.

Accordingly, the Court dismisses the Equal Protection

Finally,

8

Texeira,

Plaintiff

maintains

that

the

prison

supervisors

and

9

members of the RRC failed to provide Pagan Chaplains, lands for Druid

10

practices, or sweathouses, amounting to an Equal Protection violation.

11

However, like in Toombs, here, the fact that Druids do not have a paid

12

Chaplain

13

Plaintiff is allowed to receive help with religious issues from other

14

paid Chaplains working at CDCR.

15

the

16

access to a volunteer Druid Chaplain if one was available.

17

Plaintiff acknowledges that the RRC did review and ultimately rejected

18

his request for land and a sweathouse.

19

Native

20

entitled to receive “identical treatment and resources.”

21

v. Cal. Dep't of Corr. & Rehab., 707 F.3d 1114, 1123 (9th Cir. 2013).

22

Plaintiff has not demonstrated that the denial by the RCC of his

23

request

is

not

Plaintiff

violation

indicates

Americans

to

a

have

are

a

of

that

Equal

Protection

clause,

as

Additionally, nothing presented by

Defendants

provided

separate

the

a

have,

or

would,

deny

Lastly,

ECF No. 166 at 28.

sweathouse,

sweathouse2

was

all

inmates

based

him

While

are

not

See Hartmann

solely

on

his

24
25
26

2

Plaintiff acknowledges there is no alternative to the construction of a
separate

sweathouse

considered sacred.

ORDER

- 14

noting

the

Native

Americans’

sweathouse

is

1

religious beliefs

and not upon

2

the RCC’s concern for the use

of

limited prison resources.

3

In the end, Plaintiff while providing evidence that Defendants

4

knew he was a Druid, has not demonstrated that the purpose of any

5

disparate treatment he allegedly received was due to his being a

6

Druid.

Accordingly, his claim is dismissed.
c.

7

Plaintiff

8
9

First Amendment, Freedom of Speech/Retaliation

Knipp,

Long,

claims
Vanni,

Burkard,

that

Defendants

Martel,
Green,

V.
R.

Martinez,

Bueno,

Bueno,

Texeira,

Rutherford,

Kudlata,

Allen,

Machado,
Takehara,

10

Chamberlain,

Rathjen,

11

Reaves, Nakanoto, Bradford, Beuchter, and Rushing violated the First

12

Amendment by retaliating against him to chill his speech.

13

Prisoners may not be retaliated against for exercising their

14

right of access to the courts, which extends to access to established

15

prison grievance procedures.

16

Cir. 1995).

17

evaluated in light of concerns over “excessive judicial involvement in

18

day-to-day

19

resources

20

Rowland, 65 F.3d 802, 807 (9th Cir. 1995) (quoting Sandin v. Conner,

21

515 U.S. 472, 482 (1995)).

22

appropriate deference and flexibility’ to prison officials in the

23

evaluation of proffered legitimate penological reasons for conduct

24

alleged to be retaliatory.”

25

To state a retaliation claim, a plaintiff must allege five basic

26

elements: “1) an assertion that a state actor took some adverse action

ORDER

However, retaliation claims brought by prisoners must be

prison
with

- 15

Bradley v. Hall, 64 F.3d 1276, 1279 (9th

management,

little

which

offsetting

‘often

benefit

to

squander[s]
anyone.’”

judicial
Pratt

v.

In particular, courts should “‘afford

Id. (quoting Sandin, 515 U.S. at 482).

1

against an inmate 2) because of 3) that prisoner’s protected conduct,

2

and that such action 4) chilled the inmate’s exercise of his First

3

Amendment Rights, and 5) the action did not reasonably advance a

4

legitimate correctional goal.”

5

68 (9th Cir. 2005).

6

institutional order, discipline, and security.

7

F.3d 813, 816 (9th Cir. 1994).

8

by showing adverse activity after the occurrence of protected speech,

9

but rather a plaintiff must show a nexus between the two events.

Rhodes v. Robinson, 408 F.3d 559, 567-

Legitimate penological goals include preserving
Barnett v. Centoni, 31

Retaliation is not established simply

10

Husky v. City of San Jose, 204 F.3d 893, 899 (9th Cir. 2000).

11

inmate claiming retaliation must allege that the actions caused some

12

injury, Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000), and has

13

the

14

correctional goals for the alleged conduct.

15

527, 532 (9th Cir. 1985).

burden

of

pleading

and

proving

the

absence

of

legitimate

Rizzo v. Dawson, 778 F.2d

Here, the Plaintiff has failed to meet this burden.

16

Plaintiff

18

retaliated against him by placing him up for transfer.

19

fact that he was not transferred after these 2007 hearings, Plaintiff

20

fails to establish that being put up for transfer was because of his

21

religious

22

maintaining security in the facility.

23

Defendants placed him into administrative segregation in retaliation

24

for his religious beliefs and filing of grievances.

However, aside

25

from

the

beliefs

fact

26

ORDER

- 16

the

and

that

members

not

the

for

of

the

segregation

the

UCC

legitimate

and

ICC

First,

17

the

maintains

An

committees

Aside from the

penological

goal

of

Next, Plaintiff maintains that

occurred

after

filing

of

1

grievances,

Plaintiff

fails

to

show

any

nexus

2

between

the

administrative segregation and his religious beliefs.

3

Additionally, Plaintiff further alleges retaliation by Defendant

4

Rutherford and Defendant Allen by having to undergo strip searches and

5

having

6

conclusory allegations are not support by evidence demonstrating a

7

connection between these events and his religious beliefs, other than

8

that they occurred after complaining about religious services, which

9

is insufficient to maintain a retaliation claim.

his

cousin

placed

into

a

holding

cell.

However,

these

10

Finally, Plaintiff alleges that Defendants further retaliated

11

against him by removing him from the Pagan grounds, transferring him

12

to LAC, and failing to place him on the assignment list.

13

evidence

14

transferred due to yard conversion at Mule Creek, and was placed on

15

the waiting list for assignment to the support staff.

16

provided nothing but conclusory allegations that these events had any

17

nexus to his religious beliefs or grievances.

shows

he

Ultimately,

18

was

removed

Plaintiff

because

fails

to

of

space

However, the

limitations,

demonstrate

was

Plaintiff has

how

any

of

19

Defendants’ actions were actually retaliatory because of his religious

20

beliefs or grievances, and not for a legitimate penological goal.

21

Accordingly, Plaintiff’s retaliation claims are dismissed.
d.

22

Plaintiff

23

Fourteenth Amendment, Due Process
alleges

due

process

Rutherford,

rights

under

V.
the

Bueno,

and

Kudlata,

25

Amendment.

26

a constitutionally protected liberty or property interest, and (2) a

- 17

his

Defendants

24

ORDER

violated

that

Fourteenth

Procedural due process claims require (1) a deprivation of

1

denial of adequate procedural protections.

2

F.3d 1142, 1150 (9th Cir. 2001).

3

proceeding where a liberty interest is at stake, due process requires

4

that

5

Superintendent v. Hill, 472 U.S. 445, 455 (1985).

6

also receive: “(1) advance written notice of the disciplinary charges;

7

(2) an opportunity, when consistent with institutional safety and

8

correctional goals, to call witnesses and present documentary evidence

9

in his defense; and (3) a written statement by the fact-finder of the

“some

evidence”

Hufford v. McEnaney, 249

In the context of a disciplinary

support

the

disciplinary

decision.

The inmate must

10

evidence relied on and the reasons for the disciplinary action.”

Id.

11

at 454.

12

criminal prosecution, and the full panoply of rights due a defendant

13

in such proceedings does not apply.”

14

539, 556 (1974).

However, “prison disciplinary proceedings are not part of a

Wolff v. McDonnell, 418 U.S.

15

Here, Plaintiff’s allegations are 1) that Rutherford threatened

16

to charge him with misconduct if he did not accuse another, 2) V.

17

Bueno falsely charged him with misconduct, and 3) Kudlata failed to

18

provide him with an impartial hearing officer.

19

fails

20

protection before being placed in administrative segregation.

21

Plaintiff maintains that he was charged with false reports, the Due

22

Process Clause does not make one free from false accusations, but

23

merely

24

accusations.

25

rights were violated is dismissed.

26

//

ORDER

to

establish

provides

- 18

the

he

procedural

was

not

provided

protections

to

However, Plaintiff
adequate

defend

procedural

against

While

false

Accordingly, Plaintiff’s claim that his due process

e.

1

Fourth Amendment, Unlawful Search and Seizure

Plaintiff

2

argues

violated

Defendants

Fourth

Lockhart,

Amendment

right

Takehara,

to

be

free

and

3

Rutherford

4

unreasonable searches and seizures by searching his cell in connection

5

with an ongoing investigation into threats against prison staff.

6

U.S. Supreme Court has held, however, that “the Fourth Amendment has

7

no applicability to a prison cell.”

8

536 (1984).

9

his

prison

his

that

from

The

Hudson v. Palmer, 468 U.S. 517,

An inmate has no “reasonable expectation of privacy in
cell

entitling

him

to

the

protection

of

the

Fourth

10

Amendment against unreasonable searches and seizures.”

11

The Supreme Court noted, “[p]rison officials must be free to seize

12

from cells any articles which, in their view, disserve legitimate

13

institutional interests.”

14

Plaintiff did not have a reasonable expectation of privacy in his

15

prison

16

dismissed.

cell.

f.

17

Id. at 528 n.8.

Accordingly,

Eighth

Plaintiff

Amendment,

Id. at 519.

Here, the Court finds that

Fourth

Amendment

Cruel

claim

is

and

Unusual

Rathjen,

Bennett,

Punishment/Deliberate Indifference

18
Finally,

19

Plaintiff

alleges

that

Defendants

20

Reaves, Nakanoto, Bradford, Beuchter, and Rushing violated his Eighth

21

Amendment rights.

22

take reasonable measures to guarantee the safety of prisoners.

23

v. Brennan, 511 U.S. 825, 832 (1994).

24

to protect inmates from dangerous conditions at the prison violates

25

the Eighth Amendment only when two requirements are met: (1) the

26

deprivation alleged is, objectively, sufficiently serious; and (2) the

ORDER

- 19

The Eighth Amendment requires that prison officials
Farmer

The failure of prison officials

1

prison official is, subjectively, deliberately indifferent to inmate

2

safety.

3

she knows that a prisoner faces a substantial risk of serious harm and

4

disregards that risk by failing to take reasonable steps to abate it.

5

Id. at 837.

6

deliberate indifference.

Id. at 834.

A prison official is deliberately indifferent if

Neither negligence nor gross negligence will constitute
Id. at 835-36 & n.4.

7

Here, Plaintiff maintains that Defendants either transferred him

8

to LAC knowing he would be subject to cruel or unusual punishment at

9

LAC or did not place Plaintiff on the assignment list so that he could

10

be

given

a

work

11

demonstrate

12

subjectively aware of a risk to Plaintiff’s safety.

13

Plaintiff has not demonstrated any violations of his Eight Amendment

14

rights.

15

C.

any

assignment.

evidence

that

However,
could

show

Plaintiff
that

any

has

failed

Defendant

to
was

Accordingly,

Conclusion

16

For the foregoing reasons, taking the evidence in the light most

17

favorable to the Plaintiff, the Plaintiff failed to demonstrate that a

18

violation

19

Accordingly, the Court grants Defendants’ Motion for Summary Judgment.

of

his

constitutional

V.

20

rights

or

the

RLUIPA

occurred.

CONCLUSION

21

Accordingly, IT IS HEREBY ORDERED:

22

1.

Defendants’ Motion for Summary Judgment, ECF No. 164, is
GRANTED.

23
2.

24

Defendants’ Nunc Pro Tunc Leave to Exceed Page Limit, ECF
No. 167, is GRANTED.

25
3.

26

ORDER

Plaintiff’s Motion to Strike, ECF No. 166, is DENIED.

- 20

4.

1

The

Clerk’s

Office

is

directed

to

enter

JUDGMENT

in

Defendants’ favor with prejudice.

2
3

5.

All pending deadlines and hearings are STRICKEN.

4

6.

The Clerk’s Office shall CLOSE this file.

5

IT IS SO ORDERED.

6

Order and provide copies to Mr. Rupe and to defense counsel.

7

DATED this

23rd

The Clerk’s Office is directed to enter this

day of December 2013.

8
s/ Edward F. Shea
EDWARD F. SHEA
Senior United States District Judge

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C:\Windows\Temp\notes87944B\08.2454.grant.msj.lc2.docx

ORDER

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