Smith v. Tamayo et al

Filing 4

ORDER OF SERVICE; DIRECTING DEFENDANTS TO FILE DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION; INSTRUCTIONS TO CLERK. Dispositive Motion due by 8/12/2019. Signed by Judge Beth Labson Freeman on 5/13/2019. (Attachments: # 1 Certificate/Proof of Service)(tshS, COURT STAFF) (Filed on 5/13/2019)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JASON SMITH,
United States District Court
Northern District of California

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Plaintiff,

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v.

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A. TAMAYO, et al.,
Defendants.

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Case No. 19-00537 BLF (PR)
ORDER OF SERVICE; DIRECTING
DEFENDANTS TO FILE
DISPOSITIVE MOTION OR
NOTICE REGARDING SUCH
MOTION; INSTRUCTIONS TO
CLERK

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Plaintiff, a state prisoner at the Correctional Training Facility (“CTF”) in Soledad,

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filed the instant pro se civil rights action pursuant to 42 U.S.C. § 1983 against CTF prison

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officials and the Chief of the Office of Appeals in Sacramento. Plaintiff’s motion for leave

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to proceed in forma pauperis will be addressed in a separate order.

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DISCUSSION

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A.

Standard of Review
A federal court must conduct a preliminary screening in any case in which a

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prisoner seeks redress from a governmental entity or officer or employee of a

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governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any

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cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim

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upon which relief may be granted or seek monetary relief from a defendant who is immune

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from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally

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construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential

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elements: (1) that a right secured by the Constitution or laws of the United States was

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violated, and (2) that the alleged violation was committed by a person acting under the

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color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).

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B.

Plaintiff’s Claims
Plaintiff claims that he is a practicing member of the Rastafarian religion, i.e., “The

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House of the Lion of Judah.” (Compl. Attach. at 4.) On March 26, 2018, he applied for a

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United States District Court
Northern District of California

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Kosher diet which he claims is consistent with his religious beliefs. (Id.) On April 16,

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2018, Plaintiff was interviewed by Pastor B. D. Min, not a party to this action, who

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informed him that a decision would be made by the Religious Review Committee (“RRC”)

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which was comprised of Defendants A. Tamayo, Y. Friedman and “other unknown

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defendants.” (Id.) Plaintiff’s request was denied by Defendant Tamayo, the Community

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Resources Manager, on July 28, 2018, based on the fact that Plaintiff had purchased “non

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Kosher food.” (Id. at 5; Compl., Ex. A at 10.) Plaintiff asserts that it is his sincere belief

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that eating a Kosher diet is consistent with his faith, and that the lack of a Kosher diet has

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placed a substantial burden on him. (Compl. Attach. at 5, 7.) Plaintiff also claims that

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Defendants acted with an intent or purpose to discriminate against him, and that they failed

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to afford him the rights they afford other religions, i.e., Jews and Muslims. (Id. at 6.)

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Defendant Tamayo denied Plaintiff’s inmate appeal on the matter in the second level

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appeal decision, which was also reviewed by Defendant M. Atchley, Chief Deputy

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Warden. (Compl., Ex. A at 7-8.) Defendant M. Voong denied the appeal at the third level

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review. (Id. at 5-6.) Plaintiff claims that Defendant Y. Friedman is liable as a member of

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the RRC which denied his request for a Kosher diet. (Compl. Attach. at 3.) Based on the

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foregoing, Plaintiff claims that Defendants Tamayo, Friedman, Voong, and Atchley

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violated his rights under the First and Fourteenth Amendments and the Religious Land Use

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and Institutionalized Persons Act (“RLUIPA”). (Compl. Attach. at 2-3.)

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Based on these allegations, the Court finds the following claims are cognizable: (1)

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a violation of Plaintiff’s First Amendment right to the free exercise of his religion, see

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Shakur v. Schriro, 514 F.3d 878, 883-84 (9th Cir. 2008); (2) a violation of Equal

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Protection based on the allegation that Plaintiff was discriminated against and was denied

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rights that are afforded other religions, see Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir.

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1997), abrogated on other grounds by Shakur, 514 F.3d at 884-85; and (3) a violation of

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Plaintiff’s rights under RLUIPA based on his claim that the denial of a Kosher diet created

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a “substantial burden” on the exercise of his religion, 42 U.S.C. § 2000cc-1(a).

United States District Court
Northern District of California

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CONCLUSION

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For the reasons state above, the Court orders as follows:

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1.

The Clerk of the Court shall mail a Notice of Lawsuit and Request for

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Waiver of Service of Summons, two copies of the Waiver of Service of Summons, a copy

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of the complaint, all attachments thereto, and a copy of this order upon Defendants

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Deputy Warden M. Atchley, A. Tamayo, and Y. Friedman at the Correctional

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Training Facility (P.O. Box 686, Soledad, CA 93960-0686), and M. Voong at the Office

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of Appeals (P.O. Box 942883, Sacramento, CA 94283-0001). The Clerk shall also mail

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a copy of this Order to Plaintiff.

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2.

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

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Procedure requires them to cooperate in saving unnecessary costs of service of the

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summons and the amended complaint. Pursuant to Rule 4, if Defendants, after being

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notified of this action and asked by the Court, on behalf of Plaintiff, to waive service of the

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summons, fail to do so, they will be required to bear the cost of such service unless good

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cause shown for their failure to sign and return the waiver form. If service is waived, this

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action will proceed as if Defendants had been served on the date that the waiver is filed,

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except that pursuant to Rule 12(a)(1)(B), Defendants will not be required to serve and file

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an answer before sixty (60) days from the day on which the request for waiver was sent.

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(This allows a longer time to respond than would be required if formal service of summons

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

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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

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

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from the date on which the request for waiver was sent or twenty (20) days from the date

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the waiver form is filed, whichever is later.

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3.

No later than ninety-one (91) days from the date this order is filed,

United States District Court
Northern District of California

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Defendants shall file a motion for summary judgment or other dispositive motion with

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respect to the claims in the amended complaint found to be cognizable above.
a.

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Any motion for summary judgment shall be supported by adequate

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factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of

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Civil Procedure. Defendants are advised that summary judgment cannot be granted, nor

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qualified immunity found, if material facts are in dispute. If any Defendant is of the

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opinion that this case cannot be resolved by summary judgment, he shall so inform the

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Court prior to the date the summary judgment motion is due.
b.

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In the event Defendants file a motion for summary judgment, the

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Ninth Circuit has held that Plaintiff must be concurrently provided the appropriate

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warnings under Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc). See

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Woods v. Carey, 684 F.3d 934, 940 (9th Cir. 2012).

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4.

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 from the date Defendants’

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motion is filed.

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Plaintiff is also advised to read Rule 56 of the Federal Rules of Civil Procedure and

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Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment

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must come forward with evidence showing triable issues of material fact on every essential

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element of his claim). Plaintiff is cautioned that failure to file an opposition to

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Defendants’ motion for summary judgment may be deemed to be a consent by Plaintiff to

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the granting of the motion, and granting of judgment against Plaintiff without a trial. See

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Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir. 1995) (per curiam); Brydges v. Lewis, 18

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F.3d 651, 653 (9th Cir. 1994).

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United States District Court
Northern District of California

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5.

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

Plaintiff’s opposition is filed.
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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.
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All communications by the Plaintiff with the Court must be served on

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Defendants, or Defendants’ counsel once counsel has been designated, by mailing a true

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copy of the document to Defendants or Defendants’ counsel.

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8.

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

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Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local

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Rule 16-1 is required before the parties may conduct discovery.

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9.

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

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court informed of any change of address and must comply with the court’s orders in a

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timely fashion. Failure to do so may result in the dismissal of this action for failure to

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prosecute pursuant to Federal Rule of Civil Procedure 41(b).

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10.

Extensions of time must be filed no later than the deadline sought to be

extended and must be accompanied by a showing of good cause.
IT IS SO ORDERED.
May 13, 2019
Dated: _____________________

________________________
BETH LABSON FREEMAN
United States District Judge

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Order of Service
PRO-SE\BLF\CR.19\00537Smith_svc

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