Robinson v. Kate et al
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 12/27/2013 RECOMMENDING that defendants' 40 motion to dismiss be denied to the extent that it seeks dismissal of defendant Giurbino; and the 40 motion to dismiss be granted to the extent that it seeks dismissal of defendant Cate. Referred to Judge Morrison C. England, Jr.; Objections due within 21 days. (Yin, K)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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ANDRE JAMAL ROBINSON,
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Plaintiff,
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No. 2:11-cv-02555 MCE AC P
v.
FINDINGS & RECOMMENDATIONS
MATTHEW CATE, et al.,
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Defendants.
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Plaintiff, a Muslim prisoner at California Substance Abuse Treatment Facility, is
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proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. The first amended
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complaint alleges that plaintiff’s rights under the Fourteenth Amendment’s equal protection
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clause and the First Amendment’s free exercise and establishment clauses were violated based on
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the prison’s failure to provide him with a Halal diet for all three meals. Before the court is
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defendants’ fully-briefed motion to dismiss. See ECF No. 40 (motion); ECF No. 42 (opposition);
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ECF No. 43 (reply). For the reasons given below, the undersigned recommends that defendants’
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motion to dismiss be granted in part and denied in part.
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I.
Allegations of the First Amended Complaint
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Due to the California Department of Corrections and Rehabilitation’s lack of a Halal diet
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option in 2008, plaintiff requested that he be provided a Kosher diet while housed at High Desert
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State Prison. Plaintiff was subsequently provided a Halal diet card, but was given a Religious
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Meat Alternative (“RMA”) meal that only included a Halal meat entrée with dinner. The
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remaining breakfast and lunch meal was a vegetarian option. After plaintiff’s transfer to the
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Substance Abuse Treatment Facility in or around October 2011, plaintiff “requested a Kosher diet
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twice and a R.M.A. [diet] once via C.D.C. 3030 and all request[s] went unanswered.” ECF No.
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36 at 2. Plaintiff asserts that “Muslims are not religiously vegetarian, it is a personal health
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choice made by individual Muslims furthermore, the Holy Qur’an does not mention or encourage
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Muslims to be vegetarians.” ECF No. 36 at 3.
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Plaintiff contends that: (1) CDCR’s Halal diet program is inadequate to meet his religious
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needs because (a) plaintiff only receives a Halal meat entree at dinner which is served with other
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unlawful foods or utensils that have been cross-contaminated; and, (b) plaintiff is not a vegetarian
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but the non-Kosher/Halal “vegetable option” is forced on him, violating his first amendment
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rights; and (2) his equal protection rights have been violated, because Jewish inmates receive a
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“complete Kosher meal” at breakfast, lunch, and dinner, while plaintiff who is a practicing
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Muslim only receives a Kosher entree at dinner. ECF No. 36 at 1-6. By way of relief, plaintiff
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seeks injunctive relief as well as punitive and monetary damages. ECF No. 36 at 6-7.
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Named as defendants in the first amended complaint are Matthew Cates [sic], the
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Secretary of the CDCR, and George Giurbino, the Director of CDCR’s Division of Adult
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Institutions. In the body of his complaint, plaintiff states that he “explained through the
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administration up to Mr. Cates the inadequacy of the R.M.A. diet… and was still denied his
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religious dietary practice.” ECF No. 36 at 3. Plaintiff further argues that defendant Giurbino is
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civilly liable based on a “memorandum to Associate Directors-Division of Adult Institutions,
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Wardens, [and] Correctional Food Managers that contains provisions on how the Halal meat is to
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be cooked, stored and purchased. Id.
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II.
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Motion to Dismiss
Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, defendants argue that
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the first amended complaint should be dismissed because it fails to state a cause of action against
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either defendant Cate or defendant Giurbino since it was not alleged that either one of them had
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any personal participation in denying plaintiff a religious diet. Plaintiff only mentioned defendant
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Cate in his capacity as the CDCR administrator, and respondeat superior liability does not apply
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in a § 1983 context. Defendant Giurbino’s only alleged involvement was to author a
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memorandum concerning the preparation and handling of Halal meats. ECF No. 40 at 4-5.
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V.
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Opposition to Motion to Dismiss
In his opposition, plaintiff asserts that defendant Cate should be held liable because the
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plaintiff informed him of the inadequacy of the R.M.A. diet during his CDCR 602 appeal process.
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ECF No. 42 at 3. Additionally, plaintiff concedes that defendant Giurbino is named on the basis
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of the memo he authored which “authorized a change in the R.M.A. [diet] that was not an
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approved regulatory change.” Id.
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VI.
Fed .R. Civ. P. 12(b)(6) Legal Standards
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A motion to dismiss under Fed. R. Civ. P. 12(b)(6) tests the sufficiency of a complaint.
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See Fed. R. Civ. P. 12(b)(6); see also Ileto v. Glock, Inc., 349 F.3d 1191, 1199–1200 (9th Cir.
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2003). A complaint may be dismissed as a matter of law for two reasons: (1) lack of a cognizable
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legal theory, or (2) insufficient facts under a cognizable theory. See Navarro v. Block, 250 F.3d
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729, 732 (9th Cir. 2001).
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In reviewing a Fed. R. Civ. P. 12(b)(6) motion, the Court will only ascertain whether the
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nonmoving party has sufficiently alleged claims that would entitle him or her to relief. Jackson v.
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Carey, 353 F.3d 750, 756 (9th Cir. 2003). In doing so, the Court assumes the truth of all factual
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allegations and construes factual allegations in the light most favorable to the nonmoving party.
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See Gompper v. VISX, Inc., 298 F.3d 893, 895 (9th Cir. 2002). However, the court is not bound
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to accept as true a legal conclusion couched as a factual allegation. “When there are well-pleaded
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factual allegations, a court should assume their veracity and then determine whether they
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plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662 (2009). However,
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the conclusions contained in the pleading “are not entitled to the assumption of truth.” Id.
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VI.
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Analysis
Attached to the first amended complaint is a copy of the March 18, 2010 Giurbino
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Memorandum which forms the putative basis of defendant Giurbino’s liability. ECF No. 36 at
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21-23. This memorandum is relied upon in the Director’s Level Appeal Decision of plaintiff’s
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602 grievance concerning the implementation of the Religious Meat Alternative Program by High
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Desert State Prison. ECF No. 36 at 9-10. While defendants allege otherwise, the memorandum
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specifically states that the vegetarian meal option is to be served for breakfast and lunch with the
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Religious Meat Alternate to be offered only at the dinner meal. See ECF No. 36 at 21-23. This
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policy lies at the heart of plaintiff’s complaint regarding the Religious Meat Alternative Program,
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and Giurbino is the policy’s author. For that reason, it is recommended that the motion to dismiss
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be denied with respect to defendant Giurbino.
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With respect to defendant Cate, the documents attached to plaintiff’s complaint merely
establish that he was sent a copy of the regulatory action adding the Religious Meat Alternate
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Program as a religious diet within California state prisons. ECF No. 36 at 19. That is insufficient
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to establish his personal liability under section 1983. See Taylor v. List, 880 F.2d 1040, 1045
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(9th Cir. 1989). “A supervisor is only liable for constitutional violations of his subordinates if the
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supervisor participated in or directed the violations, or knew of the violations and failed to act to
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prevent them. There is no respondeat superior liability under section 1983.” Id. (citing Ybarra v.
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Reno Thunderbird Mobile Home Village, 723 F.2d 675, 680-81 (9th Cir. 1984)). Plaintiff has not
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made any showing that defendant Cate directed or participated in the creation or provision of his
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religious diet. Since defendant Cate had no personal involvement in the creation of the Religious
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Meat Alternative Program, but was merely provided a copy of it once it was enacted into state
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law, it is recommended that the motion to dismiss be granted with respect to defendant Cate.
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IT IS HEREBY RECOMMENDED that:
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1. Defendant’s motion to dismiss be denied to the extent that it seeks dismissal of
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defendant Giurbino.
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2. The motion to dismiss be granted to the extent that it seeks dismissal of defendant
Cate.
These findings and recommendations are submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days
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after being served with these findings and recommendations, any party may file written
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objections with the court and serve a copy on all parties. Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the
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objections shall be served and filed within fourteen days after service of the objections. The
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parties are advised that failure to file objections within the specified time may waive the right to
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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DATED: December 27, 2013
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