Epps v. Grannis et al

Filing 139

ORDER Granting Defendants' 128 Motion for Summary Judgment. Signed by Judge Roger T. Benitez on 9/21/2013. (All non-registered users served via U.S. Mail Service)(knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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OMAR ERNEST EPPS,
vs.

Case No. 10cv1949 BEN (KSC)
Plaintiff,

ORDER GRANTING
DEFENDANTS’ MOTION
FOR SUMMARY
JUDGMENT

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N. GRANNIS, et al.,
Defendants.

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I. INTRODUCTION
Plaintiff Omar Ernest Epps, a prisoner at California’s Calipatria State Prison

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proceeding pro se, filed a First Amended Complaint on February 26, 2011. In his

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Amended Complaint he named fourteen defendants in six counts alleging fifteen

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claims for relief.

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Plaintiff’s claims for relief were grouped into two categories: (a) the § 1983

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claims; and (b) the Religious Land Use and Institutionalized Persons Act of 2000

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(“RLUIPA”) claims. Previously, all of the § 1983 claims were dismissed against all

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of the Defendants except the claim in Count Five against Defendant Meister in his

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individual capacity. At the same time the civil rights claims were dismissed, an

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Order to Show Cause was issued because it appeared that the RLUIPA claims might

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be moot. After both parties filed responses, the Court found that some of the

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RLUIPA claims were, in fact, moot. However, the RLUIPA claim in Count 2 about

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a prison policy of denying Plaintiff a Kosher diet, the RLUIPA claim in Count 5

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about a prison policy on Plaintiff’s purchasing through religious vendors, and the

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RLUIPA claim in Count 6 about a policy of retaining Plaintiff’s confiscated

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religious books described a continuing case or controversy and so the Court set the

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claims to be tried on the merits. The Defendants have now moved for summary

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judgment on each of these remaining claims.

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As an introductory matter, it is noted that Plaintiff has recently notified the
Court of a change of address. He indicates that he is no longer housed at Calipatria

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State Prison. The new address is Centinela State Prison. See Notice filed September

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9, 2013 (docket no. 138). As a result of the move, his RLUIPA claims seeking

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injunctive relief are probably moot. “An inmate’s release from prison while his

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claims are pending generally will moot any claims for injunctive relief relating to the

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prison’s policies unless the suit has been certified as a class action.” Alvarez v. Hill,

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667 F.3d 1061, 1064 (9th Cir. 2012) (quoting Dilley v. Gunn, 64 F.3d 1365, 1368 (9th

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Cir. 1995)). The same is true for a transfer from one prison to another. Rendelman

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v. Rouse, 569 F.3d 182, 186 (4th Cir. 2009) (“[A]s a general rule, a prisoner’s

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transfer or release from a particular prison moots his claims for injunctive and

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declaratory relief with respect to his incarceration there.”); Sossamon v. Lone Star

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State of Texas, 560 F.3d 316, 325-26 (5th Cir. 2009). “The reasons for finding

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mootness in such a context are clear. Once an inmate is removed from the

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environment in which he is subjected to the challenged policy or practice, absent a

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claim for damages, he no longer has a legally cognizable interest in a judicial

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decision on the merits of his claim.” Lee v. Gurney, Case No. 3:08cv99, 2010 WL

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5113782, at *10 (E.D. Va. Dec. 9, 2010) (dismissing RLUIPA claim upon plaintiff’s

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transfer to different prison). However, even if the claims are not moot because of his

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transfer, they fail for other reasons.

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II. DISCUSSION

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Summary judgment must be granted where the record shows “there is no

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genuine dispute as to any material fact and the movant is entitled to judgment as a

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matter of law.” FED. R. CIV. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S.

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317, 322 (1986). The moving party must “persuade the court that there is no

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genuine issue of material fact.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos.,

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Inc., 210 F.3d 1099, 1102 (9th Cir. 2000).

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A. The RLUIPA Claims

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RLUIPA provides that a government generally shall not “impose a substantial

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burden on the religious exercise of a person residing in or confined to an institution.”

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42 U.S.C. § 2000cc-1(a). This general prohibition is tempered. A burden is

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permissible if it is not substantial or if it is in furtherance of a “compelling

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government interest” and is the least restrictive means of furthering that interest. Id.

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The standard is to be applied giving “‘due deference to the experience and expertise

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of prison and jail administrators in establishing necessary regulations and procedures

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to maintain good order, security and discipline, consistent with consideration of

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costs and limited resources.’” Hartmann v. Cal. Dep’t of Corrections, 707 F.3d

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1114, 1124 (9th Cir. 2013) (quoting Cutter v. Wilkinson, 544 U.S. 709, 723 (2005)).

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The plaintiff bears the initial burden of proof on whether a policy substantially

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burdens his exercise of religion. Id. For a plaintiff who is incarcerated, the Ninth

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Circuit Court of Appeals has held that, “a substantial burden occurs ‘where the state

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. . . denies an important benefit because of conduct mandated by religious belief,

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thereby putting substantial pressure on an adherent to modify his behavior and to

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violate his beliefs.’” Id. at 1125 (quoting Warsoldier v. Woodford, 418 F.3d 989, 995

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(9th Cir. 2005). If the Plaintiff bears his initial burden, then the burden shifts to the

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government. “Once the plaintiff establishes that the challenged state action

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substantially burdens his religious exercise, the government bears the burden of

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establishing that the regulation serves a compelling government interest and is the

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least restrictive means of achieving that interest.” Shakur v. Schriro, 514 F.3d 878,

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889 (9th Cir. 2008).

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1. Named Defendants Lack Authority

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The first question Defendants pose is about their limited official authority to

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change the policies Plaintiff challenges. RLUIPA does not provide for awards of

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money damages against prison officials. Alvarez, 667 F.3d at 1063 (RLUIPA does

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not provide for damages against state officials); Holley v. Cal. Dep’t of Corr., 599

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F.3d 1108, 1114 (9th Cir. 2010) (same); Rendelman v. Rouse, 569 F.3d 182, 189 (4th

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Cir. 2009) (RLUIPA does not provide for damages against individual capacity

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defendants for denial of Kosher meals); Sossamon v. Lone Star State of Texas, 560

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F.3d 316, 329 (5th Cir. 2009) (RLUIPA does not provide for damages against

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individual capacity defendants); Nelson v. Miller, 570 F.3d 868, 889 (7th Cir. 2009)

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(same); Smith v. Allen, 502 F.3d 1255, 1275 (11th Cir. 2007) (same). On the other

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hand, RLUIPA may provide injunctive relief.

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To win injunctive relief, a plaintiff need not prove a named official’s personal

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involvement in the alleged RLUIPA violation. Hartmann, 707 F.3d at 1127.

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Instead, a plaintiff must name as a defendant a government official who can

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appropriately respond and change policy if injunctive relief is ordered. Id. (“Rather,

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a plaintiff need only identify the law or policy challenged as a constitutional

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violation and name the official within the entity who can appropriately respond to

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injunctive relief.” (emphasis added)).

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Plaintiff has named a large number of prison officials as Defendants.

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However, Defendants have presented numerous declarations demonstrating that

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none of the sued Defendants have authority to change their actions or change the

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prison policies of which Plaintiff complains.

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Some Defendants have retired from their positions with the state prison

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system. More have transferred away from the prison where Plaintiff is incarcerated.

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Those who still work at Calipatria State Prison have neither the authority to change

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departmental policies or procedures nor the power to change, circumvent, or act

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contrary to those policies – according to the current Acting Warden, F. Chavez. See

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Declaration of F. Chavez, dated July 31, 2013 (Exhibit “G” to Defendants’ Motion

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for Summary Judgment). Plaintiff submits no evidence to the contrary beyond his

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own “understanding.” In Hartmann, the Ninth Circuit permitted RLUIPA claims to

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proceed against two individuals who did have authority to carry out injunctive relief,

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i.e., the Secretary of the California Department of Corrections and the Warden of the

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plaintiff’s prison. 707 F.3d at 1127 & n.2 (defendants admitted Secretary of CDCR

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and Warden were most appropriate defendants to execute court-ordered injunctive

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relief). Here, Epps has named neither the Secretary of the California Department of

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Corrections, nor the Warden of Calipatria State Prison. Therefore, Defendants’ joint

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motion for summary judgment on the RLUIPA claims is granted because there is no

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genuine issue as to each Defendant’s lack of authority to execute any possible

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RLUIPA court-ordered relief.

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2. The Halal/Kosher Diet Claim

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Even if Plaintiff had sued a proper defendant, the defendant would be entitled

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to summary judgment. For example, Count Two asserts that the prison denies

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Plaintiff a Kosher diet. Prison policy provides for a Kosher diet for inmates of the

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Jewish faith. However, Plaintiff has asserted not that he is Jewish, but Muslim. He

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is provided a “Religious Meat Alternative” (“RMA”) diet; it is a diet designed to be

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respectful of practicing Muslims. “The RMA diet was designed to conform to the

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Islamic faith. It includes Islamic Halal meat for dinner and vegetarian meals for

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breakfast and lunch.” See Declaration of S. Andersen (Associate Warden), dated

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July 30, 2013 (Exhibit “F” to Defendants’ Motion for Summary Judgment). In his

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opposition, Plaintiff cites his deposition evidencing that he has been receiving the

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RMA diet, but questions whether it is in fact a Halal diet. See Opposition of

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Plaintiff, at 16.

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While he offers reasons for why he questions whether the RMA diet is Halel,

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he does not go further and declare that the prison’s provision of the RMA diet has

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pressured Plaintiff to abandon his religious beliefs. Instead, like the unsuccessful

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plaintiffs in Hartmann, “[r]ather than claiming [he] has been pressured to abandon

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[his] religious beliefs, Plaintiff[] seek[s] additional religious accommodations

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beyond those already provided by the prison. . . .” 707 F.3d at 1125.

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Epps claims that he is entitled to a Kosher diet because, he says, a Kosher diet

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is also Halal. In his Amended Complaint Epps says that the RMA diet causes him

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chronic constipation, persistent gas, bloating, abdominal cramps, and chest pains,

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“all of which places [him] in a state of ritual impurity.” The Complaint suggests the

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Kosher diet would relieve all of that. Except that there is no evidence in the record

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about whether a Kosher diet would have any effect on his physical condition. Epps

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offers only his own speculation that a Kosher diet would cure his gastrointesinal

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maladies. There is no evidence that Epps has either presented his physical

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complaints to medical staff or that medical staff have prescribed a Kosher diet to

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address his ills.

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Epps’ claim stands in contrast to the plaintiff’s claim in Shakur v. Schriro. In

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Shakur, the prisoner was not offered a Halal diet. Instead, he was offered only a

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vegetarian diet with no meat. Shakur, 514 F.3d at 881. The other contrast is that in

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Shakur, the only evidence of the expense of a kosher meal was from a prison

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chaplain. Id. at 889-90. Here, Defendants provide a declaration from the

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Correctional Food Manager at Calipatria explaining that the cost of a RMA diet is

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$3.10/day while a Kosher diet costs the prison $8.70/day per inmate. See

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Declaration of A. Covarrubias, dated July 31, 2013 (Exhibit “H” to Defendants’

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Motion for Summary Judgment). There are 176 inmates receiving the RMA diet

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while only 6 receive the Kosher diet. Id. The food manager also states that,

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“[i]nmates who suffer from physical ailments because of their diet may obtain an

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order from a physician that directs the food management team to alter their diet to

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resolve the problem.” Id.

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This is sufficient uncontested evidence to demonstrate that the Defendants’

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provision of a RMA diet is the least restrictive means of furthering its interests in

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containing the costs of simultaneously feeding inmates and accommodating inmates’

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religious beliefs. Epps simply seeks an additional accommodation beyond what the

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prison provides. There is, of course, no issue raised about whether Epps’ religious

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belief is sincerely held. However, he has not submitted evidence creating a genuine

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issue about whether his religious belief has been substantially burdened or showing

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that if it has been, that there is no compelling interest for the burden or that there is

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another less restrictive means available to serve the compelling interest. Defendants

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are entitled to summary judgment on Count Two.

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3. The Quarterly Package Policy

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Even if Plaintiff had sued a proper defendant, the defendant would be entitled

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to summary judgment on Count Five challenging the quarterly package policy.

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Under the policy, an inmate may order products or food once a quarter to be

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received in prison. Any time packages from outside a prison are delivered to an

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inmate inside a prison, the package presents security and safety concerns. To

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ameliorate those concerns, inmates may order from approved vendors who agree to

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work with the prison. “[T]he religious purchase policy works to limit the

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introduction of contraband into the institution by pre-approving vendors who are

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willing to meet specific requirements designed to ensure safety and security.” See

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Declaration of S. Andersen (Associate Warden), dated July 30, 2013 (Exhibit “F” to

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Defendants’ Motion for Summary Judgment). In addition, an inmate may order a

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religious item from a non-approved vendor if a Chaplain approves. The item then

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must pass a safety analysis. Id. These extra packages for religious items do not

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count against an inmates’ quarterly package allowance. Id.

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In Count Five, Plaintiff claims that a package from an exclusively Muslim

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vendor should fall under the extra religious package exception. Epps submits his

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own declaration and the declaration of Brandon Holsey (a Calipatria inmate). He

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describes how, in his opinion, the prison does not comply with state regulations and

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the department operation manual. Yet, Epps does not go further and declare that the

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prison’s quarterly package policy has pressured Plaintiff to abandon his religious

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beliefs. Instead, like the unsuccessful plaintiffs in Hartmann, “[r]ather than claiming

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[he] has been pressured to abandon [his] religious beliefs, Plaintiff[] seek[s]

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additional religious accommodations beyond those already provided by the prison. . .

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.” 707 F.3d at 1125. Summary judgment is the time for each party to present

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evidence sufficient to carry their own burden of proof or cast substantial doubt on

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the other’s proof. Here, Plaintiff’s proof that the policy works a substantial burden

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is lacking. Also lacking is any evidence that the quarterly package policy does not

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serve a compelling government interest by a least restrictive means. There is

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evidence that permitting inmates to receive packages through the mail implicates

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security and safety concerns. One way to maintain security is to prohibit all

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packages. The prison has a more generous policy. The more generous policy does

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not impose a substantial burden on Epps’ religious practice. Defendants are entitled

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to summary judgment on Count Five. See also Davis v. Powell, 901 F. Supp. 2d

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1196, 1232 (S.D. Cal. 2012) (dismissing RLUIPA claim that California prison

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quarterly package policy may have made purchases from favorite vendor more

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difficult, but did not rise to a substantial burden).

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Written Materials

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4. Seized Religious

Here again, even if Plaintiff had sued the proper Defendants, the Defendants

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would be entitled to judgment on Count Six challenging the seizure and retention of

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some of Plaintiff’s religious written materials. The defect in this claim for relief is

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that it is now moot. According to the Amended Complaint, written materials were

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seized from Epps’ cell in 2010. Some were religious papers; some were self-defense

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papers. He does not complain of the withholding of the self-defense manual. He

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does complain of the retention of the religious writings and seeks their return.

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However, in his recent declaration, Epps states that the religious papers were

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returned to him in November 2012. See Declaration of O. Epps, ¶ 56, dated August

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15, 2013 (Attachment to Plaintiff’s Opposition to Motion for Summary Judgment).

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Mootness is the doctrine of standing set in a time frame. That is, standing

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“must continue throughout” the case. Friends of the Earth, Inc. v. Laidlaw Envtl.

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Servs. (TOC), Inc., 528 U.S. 167, 189 (2000); Sanford v. MemberWorks, Inc., 625

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F.3d 550, 556 (9th Cir. 2010). Because Epps’ materials have been returned to him

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(albeit two years after they were first seized) and there is no other evidence that the

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prison has a policy of seizing and retaining an inmate’s religious writings or that

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Epps’ same papers will be re-seized in the future, this RLUIPA claim is moot. “A

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claim is moot when the issues presented are no longer live.” Alvarez, 667 F.3d at

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1064 (citations omitted) (finding moot a prisoner’s RLUIPA claim).

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B. The § 1983 Claim Against Defendant Meister

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Count Five stated a claim against Defendant Meister acting in his individual

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capacity. Epps claims that Meister deprived him of a special package mailed to him

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for the observance of Ramadan in 2008. According to the Complaint, Ramadan took

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place during September and October 2008, ending on October 2, 2008. Epps claims

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that a Ramadan package addressed to him arrived at the prison on October 10th but

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Meister refused acceptance of the package. He claims the refusal was in violation of

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a prison policy that permitted inmates to receive Ramadan packages as late as ten

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days after the end of Ramadan. The package was eventually returned to the sender.

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Epps claims that he was denied “the expression of my religion through eating

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Halal/Kosher foods.” He seeks $318 in damages from Defendant Meister “for

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inappropriately refusing to accept plaintiff’s special religious Ramadan package.”

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In order to establish a First Amendment violation, Epps must prove that

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Defendant Meister “burdened the practice of his religion, by preventing him from

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engaging in conduct mandated by his faith, without any justification reasonably

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related to legitimate penological interests.” Freeman v. Arpaio, 125 F.3d 732, 736

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(9th Cir. 1997) (citing Turner v. Safley, 482 U.S. 78, 89 (1987)). Defendant Meister

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points out several shortcomings in Plaintiff’s evidence. First, there is a lack of

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evidence that Meister burdened Epps’ practice of his religion. There is no question

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that Epps’ package arrived on October 10, 2008, at the earliest. That was a week

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after the observance of Ramadan had concluded. If Meister had picked up and not

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rejected the package on the 10th day of October, it would still have been too late for

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Epps’ Ramadan observance. That the prison had a policy of accepting Ramadan

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packages for several days after Ramadan had ended is more than what is required by

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Epps’ faith. That the policy may not have been followed does not make it a First

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Amendment violation. Moreover, Epps offers no evidence about what he expected

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to find in the contents of the returned package. He does declare, without explaining

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the connection, that he was deprived of “the use and benefit of the Halal and Kosher

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meat and fish.” See Declaration of O. Epps, ¶ 19, dated August 15, 2013

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(Attachment to Plaintiff’s Opposition to Motion for Summary Judgment). Even at

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that, Epps does not explain how meat and fish were mandated by his religion on

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October 10th or later, after Ramadan had ended.

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Second, Epps offers no evidence to cast doubt on the explanation that

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Meister’s actions were reasonably related to legitimate penological interests. As

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noted earlier, mail packages to inmates present issues of prison safety and security.

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There is no evidence suggesting Meister was acting out of personal animus or an

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institutional policy designed to deter Epps from practicing his faith.

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More importantly, the evidence paints a different picture in which Meister

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never had a chance to reject Epps’ Ramadan package on October 10, 2008. Meister

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offers the declaration of Sgt. B. Bentley who worked as the mail room Sergeant

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during October 2008. See Declaration of B. Bentley, dated July 30, 2013 (Exhibit

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“I” to Defendants’ Motion for Summary Judgment). Bentley explains that he would

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travel to the local post office Monday through Friday, arriving between 9:00 a.m.

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and 9:30 a.m. to pick up mail addressed for Calipatria State Prison. He says he did

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this on October 10, 2008 and left between 10:00 a.m. and 10:30 a.m. Bentley says

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that days later he informed Plaintiff that a package had arrived at the local post

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office at 11:09 a.m. on Friday, October 10, 2008 -- after he had already returned to

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the prison. Bentley says that there was no mail picked up on either Saturday or

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Sunday following Friday, October 10, 2008, as was the usual custom. The inference

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is that Meister could not have rejected Epps’ package on October 10, 2008, because

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the package had not yet been brought to the prison.

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The inference is borne out by Meister’s own declaration. Meister recalls that

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he worked in the mail room at the prison in 2008. See Declaration of W. Meister,

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dated July 26, 2013 (Exhibit “Q” to Defendants’ Motion for Summary Judgment).

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Meister says, “I know that I never personally rejected a Ramadan package intended

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for Plaintiff on or before October 12, 2008.” Id. He explains that during the

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following week he filled out a form with the remark: “Ramadan expired 10-10-08.”

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Meister offers that he believed the period for inmates to receive Ramadan packages

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ended on October 10, 2008. Id. Meister’s memory comports with that of inmate

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Brandon Holsey, according to a declaration submitted by Plaintiff. The Court is not

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weighing competing evidence. It finds that there is no genuine issue because all of

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the evidence is consistent. Plaintiff’s package was not picked up from the local post

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office on October 10, 11, or 12. Likewise, Defendant Meister, who worked only

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inside the prison mail room, did not have the opportunity to reject Plaintiff’s

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package on October 10, 11, or 12. There is no evidence demonstrating that Meister

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personally burdened Epps’ religious practice. There is evidence that Meister was

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simply acting in accordance with prison policy reasonably related to legitimate

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penological interests. Therefore, Defendant Meister, sued in his individual capacity,

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is entitled to summary judgment on Count Five.

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III. CONCLUSION

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Defendant Meister is entitled to summary judgment on the § 1983 claim

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against him. The remaining RLUIPA claims may now be moot as a result of

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Plaintiff’s prison transfer. Even if all of the RLUIPA claims are not moot, the claim

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in Count Six challenging the seizure and retention of some of Plaintiff’s religious

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written materials is now moot. Finally, even if the claim in Count Six is not moot,

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Defendants are entitled to summary judgment on all of the RLUIPA claims.

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Plaintiff has not prevailed on any of his claims and judgment may be entered in

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favor of all Defendants. The Clerk of Court may close the case.

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IT IS SO ORDERED.
DATED: September 21, 2013

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Hon. Roger T. Benitez
United States District Judge

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