Evans v. Brown et al

Filing 16

ORDER OF PARTIAL DISMISSAL AND ORDER OF SERVICE. Habeas Answer or Dispositive Motion due by 9/25/2017. Signed by Judge Yvonne Gonzalez Rogers on 7/26/17. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 7/26/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KENNETH EVANS,

Case No. 16-cv-07318-YGR (PR)

Plaintiff,
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ORDER OF PARTIAL DISMISSAL AND
SERVICE

v.
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EDMOND G. BROWN, et al.,
Defendants.

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I.

INTRODUCTION
Plaintiff, a state prisoner currently incarcerated at San Quentin State Prison (“SQSP”) and

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United States District Court
Northern District of California

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a practicing Muslim, has filed the instant pro se civil rights action pursuant to 42 U.S.C. § 1983.

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He alleges that prison officials at SQSP have denied him the opportunity to participate in the

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prison’s “Ramadan Diet Program,” in accordance with his Muslim religious beliefs and in

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violation of his constitutional rights and those guaranteed under the Religious Land Use and

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Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1. Dkt. 1 at 4. He has been

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granted leave to proceed in forma pauperis.

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In his complaint, Plaintiff names the following Defendants: Governor of the State of

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California Edmund G. Brown, Jr.; California Department of Corrections and Rehabilitation

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(“CDRC”) Secretary Scott Kernan; SQSP Muslim Chaplain Q. Kawsar Hossain; SQSP Appeals

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Coordinator L. Rangel; and SQSP Correctional Officer C. Koenig. Id. at 5. Plaintiff seeks

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declaratory and injunctive relief, as well as monetary and punitive damages. Id. at 8-10.
Venue is proper because certain events giving rise to the claims are alleged to have

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occurred at SQSP, which is located in this judicial district. See 28 U.S.C. § 1391(b).
II.

DISCUSSION

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A.

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A federal court must conduct a preliminary screening in any case in which a prisoner seeks

Standard of Review

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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims

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that are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek

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monetary relief from a defendant who is immune from such relief. Id. § 1915A(b)(1), (2). Pro se

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pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th

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Cir. 1988).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements:

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(1) that a right secured by the Constitution or laws of the United States was violated, and (2) that

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the alleged violation was committed by a person acting under the color of state law. West v.

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Atkins, 487 U.S. 42, 48 (1988).

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United States District Court
Northern District of California

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B.

Legal Claims
1. Religious Practices Claims

As mentioned above, Plaintiff is a practicing Muslim incarcerated at SQSP. He has been

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practicing Muslim since February 9, 2003. As part of his religious beliefs, Plaintiff must eat only

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Halal food. Because SQSP does not offer Halal food, Plaintiff received a CDCR-issued

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“Religious Diet Card” granting him access to a vegetarian “Religious Diet” and the “Jewish

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Kosher” meal plan, because “vegetarian and/or Kosher” food is the only acceptable substitute to

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eating strictly Halal recognized by his Muslim faith. Dkt. 1 at 5, 7, 14, 20. However, Plaintiff

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contends that as a result of obtaining these “Religious Diet Card[s]” and attending Jewish

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Services, Defendants have denied him of his right to participate in the 30-day “Ramadan Meal

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Plan” because of “[his] Jewish Diet.” Id. at 7, 22.

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In the present complaint, Plaintiff alleges that Defendants have denied him of the right to

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participate in the “Ramadan Meal Program” for the past two years. Id. at 22. Plaintiff has

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attached to his complaint copies of his requests to participate in the meal program, which include

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the grievances Plaintiff submitted to Defendants Hossain, Rangel, and Koenig, as well as

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Defendants’ responses and explanations with regards to the decision to deny Plaintiff’s request for

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entry into the Ramadan Meal Program. Id. at 13, 28, 33. As explained by a memorandum

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authored by SQSP Warden Ron Davis, and subsequently provided to Plaintiff in July 2015,

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Plaintiff’s aforementioned request was denied as follows: “The Religious Diet Program

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Agreement (CDC 3030A) states you may change your religious diet no more than once each year.
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It further states that you will eat only those food items served as part of the Religious Diet

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Program, which you indicated as the Jewish Kosher specific menu.” Id. at 38. Thus, Plaintiff

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claims that Defendants “determined the Ramadan once a year diet in the month of Ramadan is

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reserved exclusively for Muslims who did not have a court order[ed] diet.” Id. at 4. He argues

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that “[t]his religious discrimination is based upon violating Plaintiff’s [rights under the] First and

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Fourtee[nth] Amendment to the U.S. Constitution, the [RLUIPA] . . . .” Id.
Giving it the liberal construction to which it is entitled, the complaint states cognizable

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claims for violation of Plaintiff’s First Amendment right to the free exercise of religion, First

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Amendment Establishment Clause, Fourteenth Amendment equal protection rights, and rights

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under RLUIPA. The complaint adequately links Defendants Hossain, Rangel, and Koenig.

United States District Court
Northern District of California

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2.

Supervisory Liability Claims

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Plaintiff also has named Defendants Brown and Kernan for their alleged supervisory

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liability. Dkt. 1 at 5. However, Plaintiff does not claim that the aforementioned Defendants

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personally violated his constitutional rights. Rather, Plaintiff seems to contend that these

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Defendants are liable based on the conduct of their subordinates—Defendants Hossain, Rangel,

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and Koenig. Respondeat superior liability is not available under section 1983. See Taylor v. List,

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880 F.2d 1040, 1045 (9th Cir. 1989). Instead, Plaintiff must allege that the supervisory liability

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Defendants “participated in or directed the violations, or knew of the violations and failed to act to

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prevent them.” Id. Here, no facts are alleged to establish supervisorial liability on the part of

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these Defendants. Accordingly, Plaintiff’s supervisory liability claims against Defendants Brown

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and Kernan are DISMISSED without prejudice.

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III.

CONCLUSION

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For the foregoing reasons, the Court orders as follows:

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1.

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The complaint, liberally construed, states cognizable religious practices claims

under section 1983 against Defendants Hossain, Rangel, and Koenig.
2.

Plaintiff’s supervisory liability claims against Defendants Brown and Kernan are

DISMISSED without prejudice.
3.

The Clerk of the Court shall mail a Notice of Lawsuit and Request for Waiver of
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Service of Summons, two copies of the Waiver of Service of Summons, a copy of the complaint

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and all attachments thereto (dkt. 1), and a copy of this Order to the following Defendants: SQSP

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Muslim Chaplain Q. Kawsar Hossain; SQSP Appeals Coordinator L. Rangel; and SQSP

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Correctional Officer C. Koenig. The Clerk also shall mail a copy of the complaint and a copy of

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this Order to the State Attorney General’s Office in San Francisco. Additionally, the Clerk shall

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mail a copy of this Order to Plaintiff.

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4.

Defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure

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requires them to cooperate in saving unnecessary costs of service of the summons and complaint.

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Pursuant to Rule 4, if Defendants, after being notified of this action and asked by the Court, on
behalf of Plaintiff, to waive service of the summons, fail to do so, Defendants will be required to

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United States District Court
Northern District of California

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bear the cost of such service unless good cause be shown for the failure to sign and return the

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waiver form. If service is waived, this action will proceed as if Defendants had been served on the

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date that the waiver is filed, except that pursuant to Rule 12(a)(1)(B), Defendants will not be

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required to serve and file an answer before sixty (60) days from the date on which the request for

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waiver was sent. (This allows a longer time to respond than would be required if formal service of

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summons is necessary.) Defendants are asked to read the statement set forth at the foot of the

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waiver form that more completely describes the duties of the parties with regard to waiver of

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service of the summons. If service is waived after the date provided in the Notice but before

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Defendants personally have been served, the Answer shall be due sixty (60) days from the date on

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which the request for waiver was sent or twenty (20) days from the date the waiver form is filed,

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whichever is later.

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5.

Defendants shall answer the complaint in accordance with the Federal Rules of

Civil Procedure. The following briefing schedule shall govern dispositive motions in this action:
a.

No later than sixty (60) days from the date their answer is due, Defendants

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shall file a motion for summary judgment or other dispositive motion. The motion must be

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supported by adequate factual documentation, must conform in all respects to Federal Rule of

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Civil Procedure 56, and must include as exhibits all records and incident reports stemming from

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the events at issue. A motion for summary judgment also must be accompanied by a Rand1 notice

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so that Plaintiff will have fair, timely, and adequate notice of what is required of him in order to

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oppose the motion. Woods v. Carey, 684 F.3d 934, 935 (9th Cir. 2012) (notice requirement set out

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in Rand must be served concurrently with motion for summary judgment). A motion to dismiss

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for failure to exhaust available administrative remedies must be accompanied by a similar notice.

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However, the Court notes that under the new law of the circuit, in the rare event that a failure to

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exhaust is clear on the face of the complaint, Defendants may move for dismissal under Rule

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12(b)(6), as opposed to the previous practice of moving under an unenumerated Rule 12(b)

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motion. Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (overruling Wyatt v. Terhune, 315
F.3d 1108, 1119 (9th Cir. 2003), which held that failure to exhaust available administrative

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United States District Court
Northern District of California

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remedies under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), should be raised by a

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defendant as an unenumerated Rule 12(b) motion). Otherwise, if a failure to exhaust is not clear

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on the face of the complaint, Defendants must produce evidence proving failure to exhaust in a

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motion for summary judgment under Rule 56. Id. If undisputed evidence viewed in the light most

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favorable to Plaintiff shows a failure to exhaust, Defendants are entitled to summary judgment

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under Rule 56. Id. But if material facts are disputed, summary judgment should be denied and the

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district judge rather than a jury should determine the facts in a preliminary proceeding. Id. at

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1168.

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If Defendants are of the opinion that this case cannot be resolved by summary judgment,

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Defendants shall so inform the Court prior to the date the summary judgment motion is due. All

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papers filed with the Court shall be served promptly on Plaintiff.
b.

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Plaintiff’s opposition to the dispositive motion shall be filed with the Court

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and served on Defendants no later than twenty-eight (28) days after the date on which

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Defendants’ motion is filed.
c.

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Plaintiff is advised that a motion for summary judgment under Rule 56 of

the Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you

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Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998).
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must do in order to oppose a motion for summary judgment. Generally, summary judgment must

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be granted when there is no genuine issue of material fact—that is, if there is no real dispute about

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any fact that would affect the result of your case, the party who asked for summary judgment is

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entitled to judgment as a matter of law, which will end your case. When a party you are suing

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makes a motion for summary judgment that is supported properly by declarations (or other sworn

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testimony), you cannot rely simply on what your complaint says. Instead, you must set out

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specific facts in declarations, depositions, answers to interrogatories, or authenticated documents,

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as provided in Rule 56(c), that contradict the facts shown in the defendant’s declarations and

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documents and show that there is a genuine issue of material fact for trial. If you do not submit
your own evidence in opposition, summary judgment, if appropriate, may be entered against you.

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United States District Court
Northern District of California

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If summary judgment is granted, your case will be dismissed and there will be no trial. Rand, 154

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F.3d at 962-63.

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Plaintiff also is advised that—in the rare event that Defendants argue that the failure to

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exhaust is clear on the face of the complaint—a motion to dismiss for failure to exhaust available

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administrative remedies under 42 U.S.C. § 1997e(a) will, if granted, end your case, albeit without

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prejudice. To avoid dismissal, you have the right to present any evidence to show that you did

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exhaust your available administrative remedies before coming to federal court. Such evidence

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may include: (1) declarations, which are statements signed under penalty of perjury by you or

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others who have personal knowledge of relevant matters; (2) authenticated documents—

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documents accompanied by a declaration showing where they came from and why they are

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authentic, or other sworn papers such as answers to interrogatories or depositions; and

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(3) statements in your complaint insofar as they were made under penalty of perjury and show that

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you have personal knowledge of the matters state therein. As mentioned above, in considering a

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motion to dismiss for failure to exhaust under Rule 12(b)(6) or failure to exhaust in a summary

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judgment motion under Rule 56, the district judge may hold a preliminary proceeding and decide

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disputed issues of fact with regard to this portion of the case. Albino, 747 F.3d at 1168.

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The notices above do not excuse Defendants’ obligation to serve similar notices again
concurrently with motions to dismiss for failure to exhaust available administrative remedies and
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motions for summary judgment. Woods, 684 F.3d at 935.
d.

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date Plaintiff’s opposition is filed.
e.

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Defendants shall file a reply brief no later than fourteen (14) days after the

The motion shall be deemed submitted as of the date the reply brief is due.

No hearing will be held on the motion unless the Court so orders at a later date.
6.

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Discovery may be taken in this action in accordance with the Federal Rules of Civil

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Procedure. Leave of the Court pursuant to Rule 30(a)(2) is hereby granted to Defendants to

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depose Plaintiff and any other necessary witnesses confined in prison.
7.

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All communications by Plaintiff with the Court must be served on Defendants or

Defendants’ counsel, once counsel has been designated, by mailing a true copy of the document to

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United States District Court
Northern District of California

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them.

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8.

It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court

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informed of any change of address and must comply with the Court’s orders in a timely fashion.

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Pursuant to Northern District Local Rule 3-11, a party proceeding pro se whose address changes

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while an action is pending must file a notice of change of address promptly, specifying the new

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address. See L.R. 3-11(a). The Court may dismiss without prejudice a complaint when: (1) mail

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directed to the pro se party by the Court has been returned to the Court as not deliverable, and

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(2) the Court fails to receive within sixty days of this return a written communication from the pro

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se party indicating a current address. See L.R. 3-11(b).

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9.

Upon a showing of good cause, requests for a reasonable extension of time will be

granted provided they are filed on or before the deadline they seek to extend.
IT IS SO ORDERED.
Dated: July 26, 2017
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YVONNE GONZALEZ ROGERS
United States District Judge

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