Avery v Virga

Filing 34

ORDER signed by Magistrate Judge Dale A. Drozd on 11/20/14 ordering plaintiff's request to withdraw his RLUIPA claim 32 is granted. Defendants' motion to dismiss plaintiff's RLUIPA claim for injunctive relief 31 is denied as moot i n light of plaintiff's voluntary withdrawal of that claim. Plaintiff's motion to compel 33 is denied as unnecessary. Within 30 days of the date of this order, defendants shall file a responsive pleading to plaintiff's remaining operative claims set forth in his amended complaint. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KYLE AVERY,

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No. 2:11-cv-1945 KJM DAD P
Plaintiff,

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v.

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T. VIRGA et al.,

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ORDER

Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis. Plaintiff seeks relief

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pursuant to 42 U.S.C. § 1983. Pending before the court is defendants’ motion to dismiss brought

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pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
BACKGROUND

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Plaintiff is proceeding on his amended complaint. Therein, he alleges that the named

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defendants have retaliated against him and interfered with his exercise of religion. At screening,

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this court found that plaintiff’s amended complaint stated a cognizable claim under the First

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Amendment for retaliation against defendants Dreager-Smith, Porter, Johnson, Guzman,

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McCumber, and Virga. The court also found that plaintiff’s amended complaint stated a

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cognizable claim under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”),

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the First Amendment, and the Fourteenth Amendment Equal Protection Clause against defendants

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Virga, Smith, Porter, Detlefsen, Carter, Johnson, Guzman, McCumber, and Elia. (Doc. Nos. 16,

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22 & 25.)

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DISCUSSION
In the pending motion to dismiss, defense counsel argues that plaintiff’s complaint fails to

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state a cognizable claim under RLUIPA. Specifically, defense counsel contends that RLUIPA

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only provides for injunctive relief and not damages, and that since plaintiff has been transferred

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out of California State Prison, Sacramento (“CSP-Sacramento”) where the alleged violations took

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place, his RLUIPA claim is now moot. (Defs.’ Mot. to Dismiss at 4-8.)

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In response to defendants’ motion, plaintiff states that he has “no problem” with

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defendants’ motion to dismiss and acknowledges that his RLUIPA claim for injunctive relief is

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now moot. Plaintiff also clarifies that he never requested monetary damages under RLUIPA. For

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all of these reasons, plaintiff moves to withdraw his RLUIPA claim. (Pl.’s Reply to Defs’ Mot. to

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Dismiss at 1-2.)

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In this case, the parties do not dispute that plaintiff’s complaint concerns conditions of

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confinement at CSP-Sacramento and that, on March 28, 2014, plaintiff transferred from CSP-

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Sacramento to R.J. Donovan Correctional Facility (“RJD”). (Doc. Nos. 11 & 16.) The parties

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also do not dispute that plaintiff, having transferred to RJD, is no longer subject to the alleged

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conditions he complained of at CSP-Sacramento, and his RLUIPA claim is now moot. See

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Weinstein v. Bradford, 423 U.S. 147, 149 (1975); Dilley v. Gunn, 64 F.3d 1365, 1368-69 (9th

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Cir. 1995). Under these circumstances, the court will honor plaintiff’s request to withdraw his

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RLUIPA claim. In addition, the court will deny defendants’ motion to dismiss as having been

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rendered moot.

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OTHER MATTERS
Plaintiff has filed a motion to compel a court ruling on defendants’ motion to dismiss.

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Plaintiff is advised that the court has a significant number of civil rights cases pending before it

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and rules upon submitted motions in due course. Accordingly, the court will deny plaintiff’s

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motion as unnecessary.

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CONCLUSION

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request to withdraw his RLUIPA claim (Doc. No. 32) is granted;

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2. Defendants’ motion to dismiss plaintiff’s RLUIPA claim for injunctive relief (Doc. No.

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31) is denied as moot in light of plaintiff’s voluntary withdrawal of that claim;

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3. Plaintiff’s motion to compel (Doc. No. 33) is denied as unnecessary; and

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4. Within thirty days of the date of this order, defendants shall file a responsive pleading

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to plaintiff’s remaining operative claims set forth in his amended complaint.

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Dated: November 20, 2014

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DAD:9
aver1945.mtd

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