Elias v. Kinross et al

Filing 54

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 08/20/21 GRANTING IN PART 49 Motion for Extension of time, to the extent that plaintiffs opposition is deemed timely filed; however, the request for a court-ordered laptop is denied. Also, RECOMMENDING that defendants' motion for summary judgment be granted. Motion 40 referred to Judge William B. Shubb. Objections due within 21 days.(Plummer, M)

Case 2:17-cv-02106-WBS-DB Document 54 Filed 08/23/21 Page 1 of 8
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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KEIRON M. ELIAS,

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No. 2:17-cv-02106-WBS-DB P

Plaintiff,
v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

J. KINROSS, et al.,
Defendants.

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Defendants’ motion for summary judgment is before the court. (ECF No. 38.) For the

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reasons set forth, it is recommended the motion be granted.

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I. PROCEDURAL BACKGROUND

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On October 30, 2018, the court screened plaintiff's complaint pursuant to 28 U.S.C. §

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1915A and found it stated 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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the alleged confiscation of plaintiff’s bottled ink used for religious purposes. (ECF No. 11.) By

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order signed on April 2, 2019, the court ordered that this case proceed only on (1) a First

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Amendment free exercise claim against CO Kinross, Lt. Gilliam, and Lt. Appleberry, and (2) a

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claim under RLUIPA against Warden Fox. (ECF No. 23.)

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On March 11, 2021, defendants filed a motion for summary judgment arguing that under
the undisputed evidence, they did not violate the RLUIPA or plaintiff’s free exercise rights under
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the First Amendment. (ECF No. 40.) Plaintiff has filed an opposition to which defendants filed a

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reply. (ECF Nos. 51, 53.)

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II. LEGAL STANDARD

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Summary judgment is appropriate when the moving party shows 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). In order to obtain summary judgment, “[t]he moving party initially bears the burden

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of proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627

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F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The

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moving party may accomplish this by “citing to particular parts of materials in the record,

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including depositions, documents, electronically stored information, affidavits or declarations,

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stipulations (including those made for purposes of the motion only), admission, interrogatory

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

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

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support the fact.” Fed. R. Civ. P. 56(c)(1)(A), (B).

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“Where the non-moving party bears the burden of proof at trial, the moving party need

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only prove that there is an absence of evidence to support the non-moving party’s case.” Oracle

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Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B).

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Summary judgment should be entered “after adequate time for discovery and upon motion,

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against a party who fails to make a showing sufficient to establish the existence of an element

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essential to that party’s case, and on which that party will bear the burden of proof at trial.”

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Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential element of the

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nonmoving party’s case necessarily renders all other facts immaterial.” 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. Matsushita Elec. Indus.

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Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). In attempting to establish the existence

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of this factual dispute, the opposing party may not rely upon the allegations or denials of its

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pleadings but is required to tender evidence of specific facts in the form of af fidavits, and/or

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admissible discovery material, in support of its contention that the dispute exists. Fed. R. Civ. P.
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56(c)(1); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in

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contention is material, i.e., a fact “that might affect the outcome of the suit under the governing

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law,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific

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Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e.,

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“the evidence is such that a reasonable jury could return a verdict for the nonmoving party,”

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Anderson, 447 U.S. at 248.

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In the endeavor to establish the existence of a factual dispute, the opposing party need not

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establish a material issue of fact conclusively in its favor. It is sufficient that “‘the claimed factual

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dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at

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trial.’” T.W. Elec. Serv., 809 F.2d at 630 (quoting First Nat’l Bank v. Cities Serv. Co., 391 U.S.

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253, 288-89 (1968)). Thus, the “purpose of summary judgment is to pierce the pleadings and to

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assess the proof in order to see whether there is a genuine need for trial.” Matsushita, 475 U.S. at

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587 (citation and internal quotation marks omitted).
“In evaluating the evidence to determine whether there is a genuine issue of fact, [the

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court] draw[s] all inferences supported by the evidence in favor of the non-moving party.” Walls

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v. Central Contra Costa Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011) (citation omitted). It is

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the opposing party’s obligation to produce a factual predicate from which the inference may be

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drawn. Richards v. Nielsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to

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demonstrate a genuine issue, the opposing party “must do more than simply show that there is

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some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586 (citations

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omitted). “Where the record taken as a whole could not lead a rational trier of fact to find for the

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non-moving party, there is no ‘genuine issue for trial.’” Id. at 587 (quoting First Nat’l Bank, 391

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U.S. at 289).

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III. UNDISPUTED FACTS 1

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At all times relevant to this action, plaintiff was housed at California Medical Facility
(“CMF”). On October 16, 2016, defendant Correctional Officer Kinross conducted a search of

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The facts discussed are undisputed except where otherwise noted.
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plaintiff’s cell and confiscated two bottles of colored ink- one blue and the other red. (Plaintiff’s

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Response to Defendants’ Undisputed Facts (ECF No. 51 at 24-29) (hereinafter “UF”) 7, 8.)

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Officer Kinross issued plaintiff a rules violation report (“RVR”)- designated log number

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1153126- charging possessing tattoo paraphernalia in violation of Title 15 of the California Code

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of Regulations section 3006(c)(16). (UF 10.)

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Plaintiff had not requested permission or any accommodation to possess a bottle of ink

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prior to Officer Kinross’ ink confiscation on October 16, 2016. (UF 21.) Plaintiff submits

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evidence in support of his position that he did not need to request such permission or an

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accommodation to possess pen ink blown into eyedrop bottles, because pen ink and eyedrop

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bottles were both allowable items in the institution. (UF 21.) Defendants maintain that the ink,

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once removed from pens and bottled, constituted tattoo paraphernalia and thus contraband

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(Kinross Decl. (ECF No. 40-4 at 29) at ¶ 8.)

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Plaintiff appeared for a hearing on November 6, 2016 pertaining to RVR log number

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1153126. (UF 11.) Defendant Gilliam was the senior hearing officer who presided over the

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November 6, 2016 RVR hearing. (UF 12.) During the hearing, plaintiff pled not guilty, stating, in

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part, his defense that the ink was not tattoo paraphernalia, but rather, was used for religious

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purposes, and further that the ink inside the bottles was not tattoo paraphernalia because it was

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nothing more than pen ink that had been blown into bottles with a small amount of oil added for

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the purpose of drawing sacred pentacle of Solomon in a religious ritual. (UF 13.) Defendant

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Gilliam found plaintiff guilty as charged in the RVR based on Officer Kinross’ written RVR

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statement and plaintiff’s admission that he possessed the bottles, notwithstanding his explanation

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that he possessed the ink for religious purposes. (UF 14-15.)

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Plaintiff subsequently submitted appeal log number CMF-M-16-03389 in which he

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grieved that the ink confiscation and adjudication of RVR log number 1153126 were improper.

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(UF 16.) Defendant Appleberry conducted the second-level review of appeal log number CMF-

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M-16-03389. (UF 17.) As part of this review, Appleberry interviewed plaintiff and various staff,

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including the chaplain. (UF 18-19.) Appleberry denied plaintiff’s appeal and affirmed the guilty

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finding in RVR log number 1153126. (UF 20.)
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At the time in question, tattoo paraphernalia was prohibited because the practice of

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tattooing poses significant public health risks to inmate population, including contributing to the

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spread of Hepatitis C or diseases stemming from unsanitary practices. (UF 4; Kinross Decl., ¶ 8.)

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Given the institutional interest in preventing the spread of disease, CDCR adopted a policy

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prohibiting tattooing and possession of related paraphernalia, codified in Department of

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Operations Manual (“DOM”) section 52080.5. (Id.) The policy prohibiting tattooing and

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possession of related paraphernalia does not prohibit the possession of any and all ink, such that

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inmates are allowed to possess ink for legitimate uses such as writing and drawing. (UF 5.) It is

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only when the ink possessed amounts to tattoo paraphernalia that it is contraband. (UF 5.)

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Under defendants’ evidence, bottled ink is problematic because of its ready use for

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tattooing. (Kinross Decl., ¶ 7.) Under plaintiff’s evidence, bottled, colored pen ink of the type

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confiscated from his cell would not be used for tattooing because of toxicity and because an

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experienced tattoo artist would know that such ink is oil based, and thus could not be used to

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achieve a lasting tattoo. (UF 2, 3, 5-7.) Under plaintiff’s evidence, prison tattoo artists use ink

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such as Higgins or Black Cat, which is prohibited in California prisons, or homemade “soot” ink

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made by burning plastic or a candle to collect soot, and mixing soot with water and a binding

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agent, rather than bottled, colored pen ink. (UF 2, 3, 5-7.)

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IV. DISCUSSION

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A. RLUIPA

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The RLUIPA provides “[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 U.S.C.

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

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

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Corr. & Rehab., 707 F.3d 1114, 1124 (9th Cir. 2013); 42 U.S.C. § 2000cc-5(7). The government

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

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adherent to modify his behavior and to violate his beliefs.” Hartmann, 707 F.3d at 1125 (internal
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quotation marks and citation omitted).

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A court reviewing a claim under the RLUIPA “begin[s] by identifying the ‘religious

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exercise’ allegedly impinged upon.” Greene v. Solano Cty. Jail, 513 F.3d 982, 987 (9th Cir.

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2008). As explained in Cutter v. Wilkinson, “[T]he ‘exercise of religion’ often involves not only

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the belief and profession but the performance of ... physical acts [such as] assembling with others

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for a worship service [or] participating in sacramental use of bread and wine.” 544 U.S. 709, 720

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(2005) (internal quotation marks and citation omitted). In Shakur v. Schriro, for example, 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 this case, plaintiff puts forth evidence that he used bottled pen ink in the colors of red

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and blue for drawing sacred pentacles of Solomon as part of a religious rite for his practice of the

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Wicca religion. The court finds the religious exercise at issue is drawing.

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The next inquiry is “whether the prison regulation at issue ‘substantially burdens’” the

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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). A

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

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

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

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

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religious beliefs ... imposes a substantial burden on [the inmate’s] religious practice.’” Shakur,

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514 F.3d at 889 (citation omitted). In Warsoldier, for example, 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 defendant did not substantially burden

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plaintiff’s exercise of religion by confiscating plaintiff’s possession of bottled ink, deeming it
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tattoo paraphernalia, and disciplining him accordingly. The evidence is undisputed that plaintiff

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may possess pen ink for drawing, just not bottles of ink such as those found in his cell.

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Plaintiff puts forth evidence that bottled pen ink of the type confiscated from his cell

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would not be used for tattooing, but this evidence and argument fails to show that defendants’

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actions substantially burdened his religious practice, because it remains undisputed that plaintiff

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may possess and use non-bottled pen ink for the purpose of drawing. The fact that plaintiff’s

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preferred ink for drawing may be pen ink blown into bottles with a small amount of oil added

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does not necessitate a finding that plaintiff’s exercise of religion was substantially burdened ,

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because there is no evidence that plaintiff’s religious beliefs mandate him to use bottled ink of the

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type confiscated. Although the confiscation of the ink and the resulting disciplinary action was

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without a doubt inconvenient and undesirable to plaintiff, there is no evidence that defendants’

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actions put substantial, or any, pressure on him to violate his religious beliefs.

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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

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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 exercise;

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it must have a tendency to coerce individuals into acting contrary to their religious beliefs or exert

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substantial pressure on an adherent to modify his behavior and to violate his beliefs.” Id. (internal

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quotation marks and citations omitted). “[A]lleged infringements of prisoners’ free exercise rights

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[are] ‘judged under a “reasonableness” test less restrictive than that ordinarily applied to alleged

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infringements of fundamental constitutional rights.’” Id. at 1032 (quoting O’Lone v. Estate of

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Shabazz, 482 U.S. 342, 349 (1987)). “The challenged conduct is valid [under the First

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Amendment] if it is reasonably related to legitimate penological interests.” Id. (internal quotation

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marks and citations omitted).
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For the same reasons discussed above, the uncontested facts show that defendants’ actions

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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 actions were reasonably

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related to a legitimate penological interest.

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VI. CONCLUSION AND RECOMMENDATION

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In accordance with the above, IT IS ORDERED that plaintiff’s request for an extension of

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time to file his opposition (ECF No. 49) is GRANTED, in part, to the extent that plaintiff’s

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opposition is deemed timely filed; however, the request for a court-ordered laptop is denied.

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In addition, IT IS RECOMMENDED that defendants’ motion for summary judgment be
GRANTED.
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 (21)

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days 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 filed and served within seven (7) 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: August 20, 2021

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