Kelly v. Warden et al

Filing 17

REPORT AND RECOMMENDATION re 11 MOTION to Dismiss Complaint. This Court recommends: The motion to dismiss all claims against Secretary Kernan be granted; the motion to dismiss as to defendants Buckel, Allen, and Voong be denied; the moti on to dismiss claims alleged against any defendant in his individual capacity be granted and the individual capacity claims be dismissed with prejudice; that Defendants Montgomery, Hedrick, Buckel, Allen, and Voong, in only their official capacities, be directed to file an answer. Objections to R&R due by 6/8/2018 Replies due by 6/15/2018. Signed by Magistrate Judge Nita L. Stormes on 5/24/2018.(All non-registered users served via U.S. Mail Service)(jdt)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 17-cv-1998-LAB-NLS

PATRICK KELLY,
Plaintiff,

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v.

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REPORT AND
RECOMMENDATION FOR ORDER
GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTION TO DISMISS

WARDEN MONTGOMERY, et al.,
Defendants.

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(Dkt. No. 11)

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Plaintiff Patrick Kelly (“Plaintiff”) is incarcerated at the California State Prison

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located in Calipatria, California. He is proceeding pro se and has filed a civil complaint

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pursuant to 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons

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Act (“RLUIPA”) relating to a name change request made while incarcerated at Calipatria

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State Prison. ECF No. 1. Before the Court is a motion to dismiss Plaintiff’s Complaint

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for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), filed by

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defendants S. Kernan, B. Hedrick, M. Voong, R. Buckel, W. Montgomery, and K. Allen

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(“Defendants”). ECF No. 11. Plaintiff filed an opposition, Defendants replied, and

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Plaintiff filed a surreply. ECF Nos. 12, 13, 14.1 This matter was referred to the

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To the extent any were made, the Court will not address new arguments raised for the first time in
Plaintiff’s surreply.
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undersigned for a report and recommendation under Local Civil Rule 72.3.f and 28

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U.S.C. § 636(b)(1)(B). For the reasons discussed below, the Court RECOMMENDS

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that Defendants’ motion be GRANTED IN PART and DENIED IN PART.

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I.

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On February 2, 2017, Plaintiff requested approval from Warden Montgomery to

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change his name from Patrick Kelly to Patrick Hernandez. ECF No. 1 at 10, 12. In his

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request, Plaintiff explained it was his sincerely held belief that he must change his name

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to that of his step-father, Mr. Hernandez, who raised him and recently passed away, in

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order to practice his Catholic faith and adhere to the Fourth Commandment’s direction to

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FACTUAL ALLEGATIONS

“honor thy father.” Id.
Plaintiff submitted the appropriate request to change his name. Id., Ex. B. On

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March 17, 2017, Plaintiff received a written response from Deputy Warden Hedrick, on

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behalf of Warden Montgomery, denying his name change request. Id. at 10, Ex. A.

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Hedrick’s denial explained that “[a]lthough there are no set criteria for eligibility for a

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name change, a strong effort was made to identify a legal base for the change.” Id.

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Hedrick’s response also made clear Plaintiff’s request “did not rise or constitute a safety

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or security concern,” and acknowledged that Plaintiff listed Mr. Hernandez as Plaintiff’s

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“father” during his initial processing and review. Id. at 10-11, Ex. A. However, Hedrick

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concluded that because the Abstract of Judgment for Plaintiff identified him as “Patrick

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Kelly,” the name change should be denied so the institutional name matched the abstract

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of judgment. Id. at Ex. A.

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Plaintiff appealed the denial, again expressing his religious reasons for seeking a

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name change, and was denied at the Second Level of Review by Chief Deputy Warden

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Buckel, agreeing with the rationale of the previous denial. Id. at 11, Ex. D. Plaintiff

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appealed again, arguing that the denial inhibited his religious belief and practice, and

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violated the First Amendment, RLUIPA, California Penal statutes, and California

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Correctional Regulations. Id. at 13-14. On August 31, 2017, Appeals Examiner Allen

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and Chief of Appeals Voong denied Plaintiff’s appeal at the Third Level of Review on
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behalf of Director Kernan, approving the findings of the previous reviewers and noting

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that no “new or compelling information” was provided to “warrant a modification of the

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decision reached by the institution.” Id. at 14, Ex. E. Having exhausted his

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administrative remedies, Plaintiff filed this action seeking injunctive and declaratory

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relief. ECF No. 1.

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II.

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A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil

LEGAL STANDARD

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Procedure 12(b)(6) tests the legal sufficiency of claims in a complaint. See Davis v.

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Monroe Cty. Bd. of Educ., 526 U.S. 629, 633 (1999). “To survive a motion to dismiss, a

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complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

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relief that is plausible on its face.’ A claim has facial plausibility when the plaintiff pleads

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factual content that allows the court to draw the reasonable inference that the defendant is

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liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

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Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)). The court accepts as true all

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material allegations in the complaint, as well as reasonable inferences to be drawn from

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them, and construes the complaint in the light most favorable to the plaintiff. Cholla

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Ready Mix v. Civish, 382 F.3d 969, 973 (9th Cir. 2004) (citing Karam v. City of Burbank,

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352 F.3d 1188, 1192 (9th Cir. 2003)). In addition, factual allegations asserted by pro se

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petitioners, “however inartfully pleaded,” are held “to less stringent standards than formal

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pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972). Thus, where

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a plaintiff appears pro se in a civil rights case, the court “must construe the pleadings

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liberally and must afford plaintiff the benefit of any doubt.” Karim-Panahi v. Los Angeles

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Police Dept., 839 F.2d 621, 623 (9th Cir. 1988); see also Wilhelm v. Rotman, 680 F.3d

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1113, 1121 (9th Cir. 2012); Watison v. Cater, 668 F.3d 1108, 1112 (9th Cir. 2012).

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A dismissal under Rule 12(b)(6) is generally proper only where there “is no

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cognizable legal theory or an absence of sufficient facts alleged to support a cognizable

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legal theory.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001) (citing Balistreri v.

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Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988)). The court need not accept
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conclusory allegations in the complaint as true; rather, it must “examine whether [they]

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follow from the description of facts as alleged by the plaintiff.” Holden v. Hagopian, 978

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F.2d 1115, 1121 (9th Cir. 1992) (citation omitted); see also Cholla Ready Mix, 382 F.3d

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at 973 (stating that on a Rule 12(b)(6) motion, a court “is not required to accept legal

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conclusions cast in the form of factual allegations if those conclusions cannot reasonably

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be drawn from the facts alleged” (quoting Clegg v. Cult Awareness Network, 18 F.3d

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752, 754-55 (9th Cir. 1994))).

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III.

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To state a § 1983 free exercise claim, a prisoner must allege the government action

DISCUSSION

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in question substantially burdens his sincerely held religious belief. 2 Jones v. Williams,

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791 F.3d 1023, 1031 (9th Cir. 2015); Shakur v. Schriro, 514 F.3d 878, 885 (9th Cir.

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2008) (finding that a prison's refusal to provide a kosher meat diet implicates the Free

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Exercise Clause because the plaintiff sincerely believed that he had to consume kosher

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meat to maintain his religious belief). “‘A substantial burden . . . place[s] more than an

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inconvenience on religious exercise; it must have a tendency to coerce individuals into

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acting contrary to their religious beliefs or exert substantial pressure on an adherent to

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modify his behavior and to violate his beliefs.’” Jones v. Williams, 791 F.3d 1023, 1031-

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32 (9th Cir. 2015) (quoting Ohno v. Yasuma, 723 F.3d 984, 1011 (9th Cir. 2013)). Thus,

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Plaintiff must claim an interference that is more than an inconvenience, isolated incident,

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or short-term occurrence. See Harris v. Schriro, 652 F. Supp. 2d 1024, 1034 (D. Ariz.

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2009) (citation omitted). “[T]he adoption of a religious name . . . is an exercise of

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religious freedom.” Malik v. Brown, 16 F.3d 330, 333 (9th Cir. 1994).
As compared to prisoners’ First Amendment rights, “RLUIPA provides greater

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protection.” Holt v. Hobbs, 135 S. Ct. 853, 862 (2015). To state a RLUIPA claim, a

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prisoner must allege “(1) he takes part in a ‘religious exercise,’ and (2) the State’s actions

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Defendants do not contest that Plaintiff’s religious belief is sincerely held.
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have substantially burdened that exercise.” Walker, 789 F.3d at 1134 (citing Shakur, 514

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F.3d at 888). RLUIPA broadly defines a religious exercise to include “any exercise of

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religion, whether or not compelled by, or central to, a system of religious belief.” 42

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U.S.C. § 2000cc–5(7)(A). RLUIPA also provides, in relevant part, that “[n]o government

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shall impose a substantial burden on the religious exercise of a person residing in or

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confined to an institution ... even if the burden results from a rule of general

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applicability,” unless the government establishes that the burden furthers “a compelling

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governmental interest” and does so by “the least restrictive means.” 42 U.S.C. §§

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2000cc–1(a)(1)-(2).

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The substantive allegations of Plaintiff’s complaint are identical for each of the

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Defendants, and broadly allege each required element for a § 1983 and RLUIPA claim:

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Plaintiff alleges a sincere religious belief that he must change his name to honor his

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father, ECF No. 1 at 11-13; Plaintiff requested a name change, id. at 10-11; and

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Defendants denied Plaintiff’s request, id. at 10-11, 13-14. Plaintiff alleges that by

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denying his request, Defendants have denied Plaintiff the ability to exercise his religious

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belief and that the denial is a substantial burden. Id. at 9, 11, 13-14.

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Defendants do not challenge the substantive allegations of the complaint as to

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defendants Warden Montgomery and Officer Hedrick in their official capacities.

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However, Defendants move to dismiss Director Kernan on the grounds the challenged

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regulation does not “substantially burden” Plaintiff’s religious exercise; and move to

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dismiss the claims as to defendants Allen, Buckel, and Voong in their official capacities

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on the ground that their involvement was limited to review of administrative grievances.

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Defendants also move to dismiss all the claims alleged against any defendant in their

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individual capacities.

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A. Secretary Kernan

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Defendants move to dismiss the claims against Secretary Kernan on the ground

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that the implementation of the regulation that requires a prisoner to obtain permission

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prior to changing their name, 15 Cal. Code Reg. § 3294.5, is not a substantial burden on
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the Plaintiff’s exercise of religion. ECF No. 11-1 at 4-5; Cochran v. Sherman,

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115CV01388DADBAMPC, 2017 WL 6538991, at *5 (E.D. Cal. Dec. 21, 2017), report

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and recommendation adopted, 115CV01388DADBAM, 2018 WL 466046 (E.D. Cal. Jan.

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18, 2018) (holding the regulation requiring a prisoner to gain permission prior to a name

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change does not substantially burden religious practice).

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Plaintiff’s opposition argues that the implementation the regulation and lack of

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criteria for eligibility for name change left the remaining defendants with “unfettered

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discretion” to grant or deny the request, and as a result, complying with the process

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“forced him to forego his sincerely held religious belief” and placed a “substantial

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unnecessary burden on the exercise of his sincerely held religious belief.” ECF No. 12 at

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3.

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Courts in the Ninth Circuit have recognized that a “‘substantial burden’ on

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‘religious exercise’ must impose a significantly great restriction or onus upon such

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exercise.” Warsoldier v. Woodford, 418 F.3d 989, 995 (9th Cir. 2005) (citing San Jose

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Christian Coll. v. City of Morgan Hill, 360 F.3d 1024, 1034 (9th Cir. 2004)). A

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substantial burden need not actually force a litigant to change his practices; a violation

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may occur “where the state ... denies [an important benefit] because of conduct mandated

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

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behavior and to violate his beliefs.” Warsoldier, 418 F.3d at 995 (quoting Thomas v.

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Review Bd. of the Ind. Emp't Sec. Div., 450 U.S. 707, 717–18, (1981). In Warsoldier, the

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Ninth Circuit held that a prison policy imposes a substantial burden when it “intentionally

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puts significant pressure on inmates . . . to abandon their religious beliefs.” 418 F.3d at

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996. Similarly, “an outright ban on a particular religious exercise is a substantial burden

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on that religious exercise.” Greene v. Solano Cnty. Jail, 513 F.3d 982, 988 (9th Cir.

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2008) (citations omitted). A substantial burden may also be found where “alternatives

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require substantial ‘delay, uncertainty, and expense.’” Int’l Church of Foursquare Gospel

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v. City of San Leandro, 673 F.3d 1059, 1068 (9th Cir. 2011) (citation omitted). To state a

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claim an inmate must plausibly allege that a prison official’s actions substantially
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burdened—meaning more than inconvenienced—the inmate’s exercise of a sincerely

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held religious belief, and did so in an unreasonable manner—i.e., that the official’s

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actions were not rationally related to legitimate penological interests. Cochran v.

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Sherman, 2017 WL 6538991, at *5; Jones v. Williams, 791 F.3d 1023, 1031-32 (9th Cir.

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2015) (substantial burden requires more than an inconvenience on religious exercise).

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Review of Plaintiff’s complaint reveals Plaintiff challenges only the outcome of his

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name change request, the ultimate denial he received, as a substantial burden. See ECF

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No. 1 at 2-3, 4, 14 (see also, ¶ 16 “failed to provide for religious and spiritual welfare by

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denying…”; ¶ 17 “The Defendants’ denial is truly pressuring Plaintiff to significantly

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modify his religious behavior…”). As in Cochran, “the fact that Plaintiff disagrees with

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the decision made under the procedure set forth in the regulation does not show that the

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enactment of the regulation itself violated his religious rights.” Cochran v. Sherman,

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2017 WL 6538991 at *5. Plaintiff’s complaint offers no facts to plausibly suggest that

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the requirement he ask permission to change his name was a substantial burden, at most

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compliance with the regulation presented an inconvenience. Plaintiff also concedes that

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the regulation supports a legitimate penological interest by preventing “capricious,

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incessant, casual, sudden, harassing, on-the-spot name changes.” ECF No. 12 at 4; State

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v. People of State of Cal., No. C93-0731 EFL, 1993 WL 106892, at *1 (N.D. Cal. Apr. 5,

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1993); see also, ECF No. 11-1 at 5.

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The remaining allegations of the complaint involve Plaintiff’s appeal to the

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“Director’s Level of Review,” but do not involve Secretary Kernan. The undersigned

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RECOMMENDS the motion to dismiss as to Secretary Kernan be GRANTED.

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B. Defendants Allen, Buckel, and Voong

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Defendants move to dismiss the claims as to Allen, Buckel, and Voong on the

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ground that they cannot be pursued in their official capacities because they were not

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personally involved in the decision to deny Plaintiff a legal name change. Defendants

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Allen, Buckel and Voong’s involvement was limited to review of inmate appeals.

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Defendants argue California law does not authorize them to grant Plaintiff’s requested
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relief of a name change. ECF No. 11-1 at 5-6. In his opposition, Plaintiff counters that

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each Defendant has the authority to grant his relief for the same reasons that they had the

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authority to grant the name change during the initial review process. ECF No. 12 at 4-5.

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Typically, a prisoner’s claim that a prison official denied a grievance, standing

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alone, is not sufficient to state a claim for a constitutional violation. Denegal v.

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Brazelton, No. 1:14-CV-01410-AWI, 2015 WL 5601278 (E.D. Cal. Sept. 22, 2015)

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(holding that reviewing administrative grievances “cannot provide a basis for a claim

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under either the First Amendment or RLUIPA.”); Riley v. Dunn, No. CV 09-8850-JFW

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(MLG), 2011 WL 4940855 at *7 (C.D. Cal. Oct. 14, 2011) (“Plaintiff has no

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constitutional right to an effective grievance or appeal procedure.”). However, the Ninth

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Circuit holds there are limited circumstances where reviewing an inmate appeal can state

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a claim because prison administrators cannot willfully turn a blind eye to constitutional

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violations. See Greene v. Solano Cty. Jail, 513 F.3d 982, 988 (9th Cir. 2008) (liability

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may be found where conduct results in a prohibition or outright ban on religious exercise,

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such as group worship); Gray v. Lewis, No. 13-cv-04929, 2015 WL 3957865, at *5 (N.D.

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Cal. June 29, 2015) (finding prison officials could be held liable for involvement in

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review process of religious accommodation requests, including name change); Furance v.

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Gipson, No. 1:14-cv-00814-LJO-MJS (PC), 2015 WL 3541123, at *6 (E.D. Cal. June 4,

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2015) (finding plaintiff stated valid claim against warden and appeals coordinators for

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their denial of name change request); Ashanti v. Cal. Dep’t of Corr., No. CIV S-03-0474

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LKK GGH P, 2006 WL 2695337, at *1 (E.D. Cal. Sept. 20, 2006) (permitting prisoner

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seeking projective injunctive relief under § 1983 to proceed against Director and

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Warden); Norsworthy v. Beard, 87 F. Supp. 3d at 1115 (N.D. Cal. Mar. 31, 2015)

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(finding injunctive relief claims were proper against appeal administrators who denied

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name change in part because “their role in reviewing Norsworthy’s administrative

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requests for . . . a name change suggest that they are in a position to approve

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administrative requests”).

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Here, Plaintiff alleges with specificity that each of defendants Buckel, Allen, and

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Voong had the authority to grant (either directly or by reversing the denial) Plaintiff’s

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request for a name change. ECF No. 1 at 10-11, 13-14; ECF No. 12 at 4-5. Plaintiff also

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alleges Defendants’ denials at each level of review were an independent constitutional

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violation under the First Amendment and RLUIPA because each was made after the

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defendants Buckel, Allen and Voong reviewed Plaintiff’s request based on Plaintiff’s

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claim of a sincerely held belief and religious need and Plaintiff alleges that each denial

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restricted his ability to exercise his religion. ECF No. 1 at 11, 13-14, 22-25. Plaintiff

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alleges the repeated denials are a substantial burden on his religious practice, tantamount

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to an outright ban, or alternatively, requiring substantial delay before he can change his

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name. Greene v. Solano Cnty. Jail, 513 F.3d 982, 988 (9th Cir. 2008) (“an outright ban

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on a particular religious exercise is a substantial burden on that religious exercise.”).

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Plaintiff adequately alleges facts to plausibly suggest that defendants Buckel, Allen, and

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Voong had the authority to grant the requested relief and the denials constituted a

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substantial burden and thus, an independent constitutional violation.

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Nonetheless, an otherwise unconstitutional impingement on an inmate’s First

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Amendment rights will still be held “valid if it is reasonably related to penological

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interests.” Jackson v. Sullivan, 692 Fed. Appx. 437, 441 (9th Cir. 2017) (citing Shakur,

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514 F.3d at 884 (citing Turner v. Safley, 482 U.S. 78, 89 (1987))). Courts consider four

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factors to determine whether a prison regulation is reasonably related to a legitimate

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penological interest: (1) whether there is a valid, rational connection between the prison

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regulation and the legitimate governmental interest put forward to justify it; (2) whether

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there are alternative means of exercising the right that remain open to prison inmates; (3)

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whether accommodation of the right would impact guards and other inmates and the

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allocation of prison resources in general; and (4) whether or not there are easy, obvious

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alternatives to the denial of the right. Turner, 482 U.S. at 89-90; Shakur, 514 F.3d at 884;

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Malik v. Brown, 16 F.3d 330, 334 (9th Cir. 1994). Turner, 482 U.S. at 89-90; Shakur, 514

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F.3d at 884.
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Reviewing the Turner factors, the denial, and the resulting appeals, identify only

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the record-keeping aspect of the name on the abstract of judgment matching the name of

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the individual as the basis for the denial. ECF No. 1 at 10-14, 16 (Ex. A). The denial

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eliminates any safety or security concern raised by the requested name change. Id. at 16

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(“The reasons you provided did not rise or constitute a safety or security concern.”). The

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complaint also alleges the appeals each confirm this denial as appropriate. ECF No. 1 at

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10-14, see also, Exs. D, E.

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While there may be legitimate penological reasons that the names on the abstract
of judgment should match the incarcerated individual, the Ninth Circuit has held that

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“[u]sing both the religious and the committed name is a satisfactory alternative means for

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an inmate to freely exercise his religion.” Malik, 16 F.3d at 334. Here, there is no

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indication Defendants considered a two-name solution. “Without considering a two-

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name solution, Defendants' reasoning for the denial does not survive application of

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the Turner factors.” Furnace v. Gipson, 1:14-CV-00814-LJO, 2015 WL 3541123, at *4

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(E.D. Cal. June 4, 2015), report and recommendation adopted in part, 1:14-CV-00814-

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LJO, 2015 WL 4394641 (E.D. Cal. July 16, 2015) (permitting free exercise claim to

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proceed against defendants, including reviewers of inmate appeals).

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Accordingly, the undersigned RECOMMENDS the motion to dismiss as to
defendants Buckel, Allen, and Voong be DENIED.

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C. Plaintiff Cannot Proceed against any Defendants in their Individual

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Capacities

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Plaintiff asserts claims against Defendants in their individual capacities for

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declaratory and injunctive relief under § 1983 and RLUIPA. In their motion to dismiss,

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Defendants assert Plaintiff’s claims against them in their individual capacities are barred

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because Plaintiff may seek only equitable relief under § 1983 and RLUIPA against

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Defendants in their official capacities. ECF No. 11-1 at 6-7.

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The Ninth Circuit holds that RLUIPA does not authorize suits against state actors
acting in their individual capacity. Woody v. Yordy, 753 F.3d 899, 904 (9th Cir. 2014).
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The Ninth Circuit explained that RLUIPA was enacted pursuant to Congress’s spending

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and commerce powers and the language of RLUIPA does not suggest Congress

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contemplated holding government employees liable in their individual capacity. Id. Thus,

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RLUIPA “does not authorize suits against a person in anything other than an official or

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governmental capacity, for it is only in that capacity that funds are received.” Id.

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Plaintiff’s RLUIPA based claims asserted against Defendants in their individual

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capacities are properly dismissed.

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Likewise, “[a] state official may be sued under § 1983 only in his official capacity
for prospective injunctive relief, or in his individual capacity for damages.” Jacobs v.

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Tanchek, No. 2:09-CV-00832-PMP-GWF, 2009 WL 10678774, at *2 (S.D. Cal. Sept. 23,

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2009); see also, Will v. Michigan Dept. of State Police, 491 U.S. 58, 93 (1989) (“a state

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official in his or her official capacity, when sued for injunctive relief, would be a person

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under § 1983 because ‘official-capacity actions for prospective relief are not treated as

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actions against the State.’”)(quoting Kentucky v. Graham, 473 U.S. 159, 167, n. 14

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(1985)); Thornton v. Brown, 757 F.3d 834, 839 (9th Cir. 2013) (limiting official capacity

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claims to injunctive relief); Flint v. Dennison, 488 F.3d 816, 825 (9th Cir. 2007); Doe v.

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Lawrence Livermore Nat’l Lab., 131 F.3d 836, 840 (9th Cir. 1997) (holding that “state

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officials sued in their official capacities are not ‘persons' within the meaning of § 1983”

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except when “sued for prospective injunctive relief” (emphasis in original)). Here,

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Plaintiff’s claim does not seek damages, and so he may not proceed against any official in

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his individual capacity under § 1983.

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The undersigned RECOMMENDS that Defendants’ motion to dismiss the claims
alleged against all Defendants in their individual capacities be GRANTED.

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IV.

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For the reasons stated above, this Court RECOMMENDS:

RECOMMENDATION

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1. The motion to dismiss all claims against Secretary Kernan be GRANTED;

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2. The motion to dismiss as to defendants Buckel, Allen, and Voong be

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DENIED;
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3. The motion to dismiss claims alleged against any defendant in his individual

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capacity be GRANTED and the individual capacity claims be dismissed

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with prejudice;

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4. That Defendants Montgomery, Hedrick, Buckel, Allen, and Voong, in only

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their official capacities, be directed to file an answer.
V.

CONCLUSION

The Court submits this Report and Recommendation to the United States District

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Judge assigned to this case pursuant to 28 U.S.C. § 636(b)(1). No later than June 8, 2018,

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any party to this action may file written objections with the court and serve a copy on all

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parties. The document should be captioned “Objections to Report and Recommendation.”

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Any reply to the objections shall be filed with the Court and served on all parties

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no later than June 15, 2018. The parties are advised that failure to file objections within

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the specified time may waive the right to those objections on appeal of the Court’s order.

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Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated: May 24, 2018

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