Lino v. Small et al

Filing 83

ORDER: Adopting 72 Report and Recommendation; Granting in Part and Denying in Part 63 Motion to Dismiss; and Denying as Moot 74 Motion to Amend the Complaint. Plaintiff shall have 21 days to file a Fourth Amended Complaint that properly names Defendant Powell and is otherwise consistent with the terms and conditions set forth by this order. Signed by Judge Michael M. Anello on 9/19/2011. (All non-registered users served via U.S. Mail Service)(leh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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OWEN LINO,

CASE NO. 09 CV 01834 MMA (PCL)
Plaintiff,

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ORDER ADOPTING REPORT
AND RECOMMENDATION OF
UNITED STATES MAGISTRATE
JUDGE

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[Doc. No. 72]

vs.

GRANTING IN PART AND
DENYING IN PART
DEFENDANTS’ MOTION TO
DISMISS

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[Doc. No. 63]

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L. SMALL et al.,

DENYING PLAINTIFF’S MOTION
FOR LEAVE TO AMEND HIS
THIRD AMENDED COMPLAINT
AS MOOT

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Defendants.
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[Doc. No. 74]
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Plaintiff Owen Lino, a state prisoner proceeding pro se and in forma pauperis, filed this

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civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to United States

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Magistrate Judge Peter C. Lewis pursuant to 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.3.

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On September 29, 2010, Plaintiff filed his Third Amended Complaint. [Doc. No. 61.] On October

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12, 2010, Defendants filed a Motion to Dismiss Plaintiff’s Third Amended Complaint. [Doc. No.

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63.] On December 22, 2010, Plaintiff filed an opposition to Defendants’ motion. [Doc. No. 70.]
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On March 11, 2011, Judge Lewis filed a well-reasoned and thorough Report containing findings

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and conclusions, upon which he bases his recommendation that the Court GRANT IN PART and

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DENY IN PART Defendants’ motion to dismiss. [Doc. No. 72.] Plaintiff filed objections to the

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Report and Recommendation on April 5, 2011. [Doc. No. 76.]

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On April 15, 2011, the undersigned issued an order deferring ruling on Defendants’ motion

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to dismiss the Third Amended Complaint while the parties participated in the Prisoner Settlement

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Program, including mediation proceedings before Judge Bianchini. [Doc. No. 78.] On August 18,

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2011, Defendants filed a notice indicating the case did not settle. [Doc. No. 82.]

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PLAINTIFF’S OBJECTIONS

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Under 28 U.S.C. § 636(b)(1)(C), in reviewing the magistrate judge’s report and

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recommendation, the district court “shall make a de novo determination of those portions of the

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report . . . to which objection is made,” and “may accept, reject, or modify, in whole or in part, the

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findings or recommendations made by the magistrate judge.” Here, Plaintiff objects to the Report

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on several grounds. First, Plaintiff asserts Judge Lewis incorrectly concluded that Plaintiff cannot

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seek monetary damages from the named Defendants in their official capacities because the State of

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California, the CDCR and the individual Defendants receive federal funds. [Doc. No. 76, p.1-2.]

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After reviewing the pertinent portion of the record and the Report de novo, the Court overrules

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Plaintiff’s objection and finds that Judge Lewis correctly recommended that all of Plaintiff’s

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claims for monetary relief against the Defendants in their official capacities should be dismissed.

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The cases Plaintiff relies on in his objections are not on point and otherwise distinguishable, and

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they do not support Plaintiff’s position that he is entitled to recover damages from Defendants. To

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the extent Plaintiff seeks monetary relief from state actors in their official capacities, Judge Lewis

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properly found Defendants have not waived their sovereign immunity, and therefore, Plaintiff’s

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claims are prohibited by the Eleventh Amendment.

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Second, Plaintiff objects to Judge Lewis’s finding that Plaintiff’s claims under RLUIPA

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should be dismissed against all Defendants in their individual capacities. Plaintiff asserts

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Defendants are subject to suit in their individual capacities because they act as custodians over

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Plaintiff and manage federal funds issued for religious programs under RLUIPA. [Doc. No. 76,
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p.2-3.] After reviewing the pertinent portion of the record and the Report de novo, the Court

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overrules this objection and finds Judge Lewis correctly recommended all claims under RLUIPA

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against Defendants in their individual capacities should be dismissed. Although the Ninth Circuit

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has not yet addressed this issue, Judge Lewis reasonably recommended the Court follow the other

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circuits which have held that, “because prison officials in their individual capacities are not the

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recipient[s] of federal funds to which RLUIPA applies, they may not be sued in their individual

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capacities under this statute.” [Doc. No. 72, p.5; see also Williams v. Beltran, 2011 U.S. App.

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LEXIS 16710 (9th Cir. Aug. 4, 2011) (affirming dismissal of RLUIPA claims against defendants

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in their individual capacities).]

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Third, Plaintiff objects to Judge Lewis’s recommendation that Plaintiff’s claims for

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declaratory and injunctive relief be dismissed as moot because Plaintiff was transferred to another

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facility after he initiated the pending action. Plaintiff asserts he is entitled to equitable relief

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because he has a reasonable expectation that his rights will continue to be violated at the new

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facility and he is already experiencing alleged violations at the new location. [Doc. No. 76, p.3-4.]

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The Court has reviewed the relevant portion of the record and the Report de novo, and overrules

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Plaintiff’s objection. Judge Lewis appropriately recommended Plaintiff’s claims for declaratory

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and injunctive relief be dismissed as moot, as Plaintiff has not shown a reasonable expectation that

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the named Defendants in this action will cause the alleged injury again; Defendants have no

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control over the policies at Plaintiff’s current prison. [Doc. No. 72, p.5.]

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Plaintiff does not object to Judge Lewis’s recommendation that Defendants Mitchell and

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Vorise should be dismissed because Plaintiff has not named them in his Third Amended

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Complaint. Defendants also moved to dismiss Defendant Powell, however, Judge Lewis

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recommended that Defendants’ motion to dismiss Defendant Powell be denied, as Plaintiff asserts

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he inadvertently omitted Defendant Powell in the operative complaint. In addition, while

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Defendants’ motion to dismiss Plaintiff’s Third Amended Complaint was pending, Plaintiff filed a

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motion for leave to file a Fourth Amended Complaint to correct his unintended omission of

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Defendant Powell. [Doc. No. 74.] Plaintiff has attached his proposed Fourth Amended Complaint

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to his pending motion. However, because Plaintiff’s proposed amended complaint contains claims
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that the Court has determined cannot proceed, for the reasons stated above, Plaintiff’s motion to

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amend his Third Amended Complaint is DENIED AS MOOT. However, Plaintiff is granted

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leave to file an amended complaint that complies with the terms set forth herein.

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CONCLUSION
Pursuant to 28 U.S.C. § 636(b)(1)(C), the undersigned has conducted a de novo review of

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this case. Having carefully reviewed the entire file, the Court finds Judge Lewis’s Report and

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Recommendation to be supported by the record and based on a proper analysis. Accordingly, the

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Court ADOPTS the Report and Recommendation in its entirety [Doc. No. 72] and GRANTS IN

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PART and DENIES IN PART Defendants’ Motion to Dismiss [Doc. No. 63]. The Court

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therefore ORDERS as follows:
(i)

Defendants’ motion to dismiss all monetary claims against Defendants in their

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official capacities is GRANTED. Plaintiff’s monetary claims against Defendants

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in their official capacities are dismissed with prejudice, and without leave to amend;

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(ii)

Defendants’ motion to dismiss all RLUIPA claims against Defendants in their

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individual capacities is GRANTED. Plaintiff’s RLUIPA claims against

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Defendants in their individual capacities are dismissed with prejudice and without

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leave to amend;

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(iii)

Defendants’ motion to dismiss all claims for declaratory and injunctive relief is

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GRANTED. Plaintiff’s claims for declaratory and injunctive relief are dismissed

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as moot, without leave to amend;

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(iv)

Defendants’ motion to dismiss Mitchell and Vorise is GRANTED. Plaintiff’s

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claims against Defendants Mitchell and Vorise are dismissed with prejudice, and

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without leave to amend;

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(v)

Defendants’ motion to dismiss Powell is DENIED. Plaintiff shall have twenty-one

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(21) days to file a Fourth Amended Complaint that properly names Defendant

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Powell and is otherwise consistent with the terms and conditions set forth herein.

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Plaintiff’s Fourth Amended Complaint must be complete in itself without reference

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to the superseded pleading. See S.D. Cal. Civ. L. R. 15.1.
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(vi)

Plaintiff’s motion for leave to amend his Third Amended Complaint is DENIED
AS MOOT [Doc. No. 74].

IT IS SO ORDERED.

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DATED: September 19, 2011
Hon. Michael M. Anello
United States District Judge

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