Robinson v. Kate et al

Filing 94

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 3/11/16 recommending that plaintiff's motion for preliminary injunctive relief 93 be denied. MOTION for PRELIMINARY INJUNCTION 93 referred to Judge Morrison C. England Jr. Objections due within 14 days. (Plummer, M)

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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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No. 2:11-cv-02555 MCE AC P

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

MATTHEW CATE, et al.,

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Defendants.

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Plaintiff is a state prisoner incarcerated at the Sierra Conservation Center (SCC), under the

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authority of the California Department of Corrections (CDCR). Plaintiff proceeds pro se and in

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forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983, in which plaintiff, a

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Muslim, seeks a fully Halal diet or, alternatively, a fully Jewish Kosher Diet. The current dietary

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options available to plaintiff are the Halal meat dinner entrée and/or the vegetarian Religious

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Meat Alternative Diet (RMAD). This action proceeds on plaintiff’s First Amended Complaint

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filed March 27, 2013, against defendant George J. Giurbino, former Director of CDCR’s Division

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of Adult Institutions, on plaintiff’s claims for declaratory and prospective injunctive relief under

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the Free Exercise Clause of the First Amendment, the Equal Protection Clause of the Fourteenth

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Amendment, and the Religious Land Use and Institutionalized Persons Act (RLUIPA). See ECF

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Nos. 85-6.

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Following this court’s decision on defendant’s motion for summary judgment, the court

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found that appointment of counsel is warranted to assist plaintiff with the further proceedings in

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this action. See ECF No. 89. The court’s Alternative Dispute Resolution Coordinator is currently

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seeking an attorney willing to accept this appointment.

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Plaintiff previously filed a motion for preliminary injunctive relief seeking to obtain a

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fully Halal diet pending resolution of this case. See ECF No. 90. Plaintiff’s motion was denied

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on February 17, 2016. See ECF Nos. 90-2.

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Plaintiff now moves for preliminary injunctive relief seeking to obtain a fully Jewish

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Kosher Diet as a “stopgap” measure, pending final resolution of this case. See ECF No. 93 at 2.

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Plaintiff contends that he is likely to succeed on the merits of this action, and addresses the merits

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of each of his legal theories. Plaintiff also contends that Kosher food is a religiously acceptable

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alternative to Halal food but acknowledges, nevertheless, that “there is a high likelihood he will

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consume haram meat with a kosher symbol.” Id. at 9; see also id. at 7 (“[e]at[ing] the Jewish

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Kosher Diet . . . may not meet halal requirements”). Finally, plaintiff contends that “denying

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[him] kosher meals denies him all means of religious practice.” Id. at 6-7, 9.

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As previously noted by this court, “[a] preliminary injunction is an ‘extraordinary and

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drastic remedy,’ 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2948, p.

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129 (2d ed.1995) [] (footnotes omitted); it is never awarded as of right, Yakus v. United States,

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321 U.S. 414, 440 (1944).” Munaf v. Geren, 553 U.S. 674, 689-90 (2008). “The sole purpose of

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a preliminary injunction is to “preserve the status quo ante litem pending a determination of the

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action on the merits.” Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1023 (9th Cir. 2009) (citing

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L.A. Memorial Coliseum Comm’n v. NFL, 634 F.2d 1197, 1200 (9th Cir.1980)); see also 11A

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Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, § 2947 (2d ed. 2010)

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In evaluating the merits of a motion for preliminary injunctive relief, the court considers

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whether the movant has shown that “he is likely to succeed on the merits, that he is likely to

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suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his

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favor, and that an injunction is in the public interest.” Winter v. Natural Resources Defense

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Council, 555 U.S. 7, 20 (2008); Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009)

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(quoting Winter). The propriety of a request for injunctive relief hinges on a significant threat of
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irreparable injury that must be imminent in nature. Caribbean Marine Serv. Co. v. Baldridge, 844

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F.2d 668, 674 (9th Cir. 1988). A preliminary injunction is appropriate when a plaintiff

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demonstrates . . . “serious questions going to the merits and a hardship balance [] tips sharply

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toward the plaintiff, . . . assuming the other two elements of the Winter test are also met.”

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Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 2011). An injunction

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against individuals who are not parties to the action is strongly disfavored. Zenith Radio Corp. v.

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Hazeltine Research, Inc., 395 U.S. 100 (1969).

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Additionally, in cases brought by prisoners involving conditions of confinement, any
preliminary injunction “must be narrowly drawn, extend no further than necessary to correct the

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harm the court finds requires preliminary relief, and be the least intrusive means necessary to

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correct the harm.” 18 U.S.C. § 3626(a)(2).

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As this court has previously noted, plaintiff has a reasonable opportunity to succeed on the

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merits of his claims. See ECF No. 91 at 3. A reasonable opportunity, however, is not the same as

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a likelihood of success. Moreover, as the court has also previously noted, “the harm that plaintiff

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alleges is neither imminent (plaintiff alleges that the harm has been ongoing since 2008 [when he

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converted to Islam]), nor clearly irreparable (plaintiff’s continuing efforts to obtain a fully Halal

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diet reflect some confidence that any prior diet transgressions may be forgiven within his

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religion).”1 Id. Additionally, despite his instant arguments to the contrary, plaintiff has

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previously acknowledged that “diet aside, he practices his religion in several ways, including

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reading the Quran, Sunnah and Hadith, Pl. Depo. at 14:23-4; regularly attending the religious

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services Jummah and Talim, id. at 30:22-31:18; and observing the religious holy days Ramadan

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and Eid A-Fitr, id. at 31:19-21:4.” Findings and Recommendations, ECF No. 85 at 32.

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CDCR policy currently limits the Jewish Kosher Diet to Jewish inmates, “as determined

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by a Jewish Chaplain.” 15 Cal. Code Regs. tit. 15, § 3054.1(a). Pending a final decision on

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plaintiff’s challenges to this regulation and related regulations, this policy is supported by

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Plaintiff testified at his deposition that he may eat non-Halal food if it is the only food available
and he is not being willfully disobedient. See Findings and Recommendations (discussion and
citations), ECF No. 85 at 16-7.
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legitimate considerations concerning CDCR’s budget and management. Granting plaintiff

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individual temporary relief could result in CDCR being inundated with requests for the same

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relief by other Muslim inmates. Moreover, these legitimate penological considerations outweigh

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plaintiff’s equivocal arguments seeking temporary relief. Significantly, preliminary injunctive

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relief is not necessary to preserve the court’s authority to render a meaningful decision this case.

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For these reasons, this court finds that the balance of equities tips clearly in favor of defendant.

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Accordingly, this court recommends that plaintiff’s motion for preliminary injunctive
relief, ECF No. 93, be denied.
These findings and recommendations are submitted to the United States District Judge

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assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 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.” The parties are advised that

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failure to file objections within the specified time may waive the right to appeal the District

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Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: March 11, 2016

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