Shields v. Kahn et al

Filing 15

REPORT AND RECOMMENDATION re 12 MOTION to Dismiss. Objections to R&R due by 2/27/2019. Replies due by 3/6/2019. Signed by Magistrate Judge Mitchell D. Dembin on 2/13/2019. (cc: Patrick Shields, San Quentin State Prison).(All non-registered users served via U.S. Mail Service)(jpp)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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PATRICK SHIELDS,

Case No.: 17-cv-2597-JLS-MDD
Plaintiff,

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v.

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CHAPLAIN KHAN, et al.,
Defendant.

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REPORT AND
RECOMMENDATION GRANTING
IN PART AND DENYING IN PART
DEFENDANTS' MOTION TO
DISMISS
[ECF No. 12]

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This Report and Recommendation is submitted to United States

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District Judge Janis L. Sammartino pursuant to 28 U.S.C. § 636(b)(1) and

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Local Civil Rule 72.1(c) of the United States District Court for the Southern

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District of California.

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For the reasons set forth herein, the Court RECOMMENDS

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Defendants’ Motion to Dismiss be GRANTED IN PART and DENIED IN

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PART.

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I. PROCEDURAL HISTORY

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Plaintiff Patrick Shields (“Plaintiff”) is a state prisoner proceeding pro

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se and in forma pauperis. (ECF Nos. 1, 5). On December 29, 2017, Plaintiff
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filed a complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1). Plaintiff’s

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complaint sets forth claims against various staff at Richard J. Donovan

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Correctional Facility (“Donovan”) alleging that they allowed Plaintiff’s name

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to be removed from the list of those inmates celebrating Ramadan in violation

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of the First and Fourteenth Amendments. (Id. at 2-4).

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On October 9, 2018, Defendants moved to dismiss the Complaint. (ECF

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No. 12). Defendants contend that Plaintiff’s request for an injunction is moot

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as he has been moved from Donovan and that allowing inmates to facilitate

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religious services and remove Plaintiff from the Ramadan participant list did

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not violate Plaintiff’s civil rights. (Id. at 10-13). Additionally, Defendants

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argue that Plaintiff’s claims must also be dismissed as they are entitled to

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qualified immunity. (Id. at 13).

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A scheduling order was issued and Plaintiff was given until October 26,

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2018, to file his opposition. (ECF No. 13). As of the date of this Report and

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Recommendation, Plaintiff has not filed a response.

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II. FACTUAL BACKGROUND

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These facts, taken from the Complaint, should not be construed as

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findings of fact by the Court. Chaplain Khan was hired to facilitate Islamic

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services. (ECF No. 1 at 3). Defendants Paramo, Brown, and Garza—all

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Donovan staff—allowed Defendant Khan to violate his contract by permitting

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Defendant Khan’s infrequent visits to Plaintiff’s yard. Due to the

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infrequency of Defendant Khan’s visits, the regular Islamic services are

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facilitated by fellow inmates. (Id.). Plaintiff claims that these inmate

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facilitators have “lifestyles in conflict with Plaintiff’s beliefs and Islamic

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teachings.” (Id.). As such, Plaintiff does not regularly participate in the

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inmate-led services. (Id.).

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Plaintiff signed up to participate in month-long fasting in observance of
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Ramadan, however on the day the fast was set to begin, Plaintiff was told by

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an inmate facilitator that he was “scratched off the list” due to his infrequent

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participation. (Id.).

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Plaintiff immediately wrote a Form 22 (inmate request for interview,

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item, or service) to Chaplain Khan objecting to being removed from the

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Ramadan list. (Id.). Chaplain Khan was also notified via email by Sergeant

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Scharr. Plaintiff received no information or action on his Form 22 and was

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unable to participate in Ramadan for the entirety of the month-long holiday

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or attend the banquet celebrating the end of the fast. (Id.).

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Plaintiff filed a grievance that was “granted” by Donovan staff. (Id.).

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As a result of the grievance, staff indicated that “action would come.” (Id.).

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Plaintiff claims, however, that services are still facilitated by inmates and

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that Chaplain Khan never comes to Plaintiff’s yard to oversee services.

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Plaintiff’s lawsuit requests an injunction preventing Defendants from

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“allowing inmates to run, dictate, and control the Islamic services, lists, and

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programs.” (Id. at 7). Plaintiff additionally requests damages in a sum to be

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determined. (Id.).

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III. LEGAL STANDARD
A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency

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of a claim. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “Under

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Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a short and

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plain statement of the claim showing that the pleader is entitled to relief.”

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Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (internal quotations omitted).

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The pleader must provide the Court with “more than an un-adorned, ‘the-

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defendant-unlawfully-harmed-me’ accusation.) Id. at 678 (citing Bell Atl.

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Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Threadbare recitals of the

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elements of a cause of action, supported by mere conclusory statements will
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not suffice.” Id. “Although for the purposes of a motion to dismiss [a court]

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must take all of the factual allegations in the complaint as true, [a court is]

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not bound to accept as true a legal conclusion couched as a factual

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allegation.” Id. (internal quotations omitted).

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A pro se pleading is construed liberally on a defendant’s motion to

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dismiss for failure to state a claim. Thompson v. Davis, 295 F.3d 890, 895

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(9th Cir. 2002) (citing Ortez v. Washington Cnty., 88 F.3d 804, 807 (9th Cir.

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1996)). The pro se pleader must still set out facts in his complaint that bring

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his claims “across the line from conceivable to plausible.” Twombly, 550 U.S.

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at 570. A court “may not supply essential elements of the claim that were not

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initially pled.” Ivey v. Bd. Of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

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A pro se litigant is entitled to notice of the deficiencies in the complaint

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and an opportunity to amend, unless the complaint’s deficiencies cannot be

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cured by amendment. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir.

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1987).
IV. DISCUSSION

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First, the Court will consider whether Defendants’ request for judicial

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notice in support of their motion to dismiss will be granted. Next, the Court

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will determine whether Defendants’ Motion to Dismiss should be granted.

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A. Judicial Notice

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Defendants request the Court take judicial notice of the results of a

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search conducted on the California Department of Corrections and

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Rehabilitation (“CDCR”) online Inmate Locator showing that Plaintiff is

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currently incarcerated at San Quentin State Prison pursuant to Federal Rule

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of Evidence 201(b). (ECF No. 12-2).

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In ruling on a motion to dismiss brought pursuant to Federal Rule of
Civil Procedure 12(b)(6), the Court may take judicial notice of “matters of
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public record” pursuant to Federal Rule of Evidence 201. Mack v. South Bay

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Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir. 1986). Judicial notice is

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properly taken of the official records of the CDCR. Brown v. Valoff, 422 F.3d

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926, 931 n.7 (9th Cir. 2004). The Court may take judicial notice of

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information displayed on government websites where neither party disputes

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the accuracy of the information contained therein. Daniels-Hall v. National

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Educ. Ass’n, 629 F.3d 992, 998-99 (9th Cir. 2010). Accordingly, this Court

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takes judicial notice of Plaintiff’s current incarceration as it is a matter of

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public record.

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B. Injunctive Relief
Defendant argues that Plaintiff’s request for injunctive relief should be

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dismissed as moot and without leave to amend as Plaintiff is no longer

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housed at Donovan and did not present any evidence indicating an

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expectation of being transferred back to Donovan. (ECF No 12-1 at 10).

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A prisoner challenging the conditions of confinement fails to present a

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viable claim for injunctive relief upon being transferred to a different

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institution. Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991) (per curiam);

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Andrews v. Cervantes, 493 F.3d 1047, 1053 n.5 (9th Cir. 2007). The

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unavailability of injunctive relief extends to free exercise claims. Epps v.

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Grannis, 606 F. App'x 329, 330 (9th Cir. 2015) (“The district court properly

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dismissed as moot Epps' RLUIPA claims concerning Calipatria State Prison's

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package policy and his request for a Kosher diet, because Epps was

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transferred to another prison during the pendency of his action.”).

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Here, the Court has taken judicial notice of public records indicating

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that Plaintiff is currently housed at San Quentin State Prison. Further,

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Plaintiff’s complaint does not indicate that expects to return to Donovan at

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any point in the future.
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As a result, the Court RECOMMENDS that Plaintiff’s request for

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injunctive relief be DISMISSED as moot but without prejudice.

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C. Free Exercise and Equal Protection Claims

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Defendants argue that Plaintiff’s claims should be dismissed because

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allowing inmates to facilitate religious services is not a civil rights violation.

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(ECF No. 12-1 at 11). Additionally, Defendants argue that a cause of action

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under 42 U.S.C. § 1983 cannot stand against a private party unless as part of

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a conspiracy allegation. (Id. at 12).

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The Free Exercise Clause of the First Amendment “requires

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government respect for, and noninterference with ... religious beliefs and

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practices ....” Cutter v. Wilkinson, 544 U.S. 709, 719 (2005). Prisoners retain

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the protections afforded by the First Amendment and do not forfeit all

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constitutional protections by reason of their conviction and confinement in

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prison. O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987). Nevertheless,

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“[a]lthough prisoners enjoy First Amendment protection, their rights under

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the Free Exercise Clause are limited by ‘institutional objectives and by the

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loss of freedom concomitant with incarceration.’” Walker v. Beard, 789 F.3d

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1125, 1138 (9th Cir. 2015) (citation omitted). The protections of the Free

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Exercise Clause may be implicated when prison officials substantially burden

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the practice of an inmate’s religion. See Jones v. Williams, 791 F.3d 1023,

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1031 (9th Cir. 2015)

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“A substantial burden ... place[s] more than an inconvenience on

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

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contrary to their religious beliefs or exert substantial pressure on an

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adherent to modify his behavior and to violate his beliefs.” Jones, 791 F.3d at

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1031-32 (citations omitted).

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The Equal Protection clause of the Fourteenth Amendment “commands
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that no State shall deny to any person within its jurisdiction the equal

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protection of the laws, which is essentially a direction that all persons

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similarly situated should be treated alike.” City of Cleburne v. Cleburne

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Living Ctr., 473 U.S. 439 (1985) (internal quotation omitted). Equal

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protection applies to prisoners as well, “subject to restrictions and limitations

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necessitated by legitimate penological interests.” Davis v. Powell, 901 F.

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Supp. 2d 1196, 1219 (S.D. Cal. 2012) (quoting Freeman v. Arpaio, 125 F. 3d

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732, 737 (9th Cir. 1997)).

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Here, Defendants point to authority establishing that “prison officials

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have no affirmative duty to provide clergy, and that when they are provided,

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prisoners are not entitled to the clergy of their choice,” in an effort to affirm

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the validity of inmate facilitators. (ECF No. 12-1 at 11). What Defendants do

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not address, however, is that the challenged conduct here—more so than the

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use of inmate facilitators—is that Defendant was removed from the Ramadan

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celebrant list. Fasting during Ramadan is one of the five Pillars of the

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Islamic faith. This is the exercise of religion that Plaintiff alleges he was

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denied, and ultimately the basis for his claims. Additionally, Plaintiff’s Form

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22 request went unanswered for the entirety of the month-long celebration.

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While it may be true that Plaintiff does not have a constitutional right to the

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clergy of his choice, Plaintiff does have the constitutional right to participate

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in religious holidays and on this Defendants’ Motion to Dismiss is silent.

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Defendants’ contention that it was not a civil rights violation to remove

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Plaintiff from the Ramadan list as it was done by a private party also fails.

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Plaintiff did not name the inmate facilitator(s) in his lawsuit. He is suing the

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individuals to whom the inmate facilitators are ultimately responsible and

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who should have responded to Plaintiff’s Form 22 in time for Plaintiff to

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participate in Ramadan. While an inmate removed Plaintiff from the
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Ramadan list, ultimately responsibility remains with Chaplain Khan and

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prison staff, whose actions are not discussed in the Motion to Dismiss.

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Further, as Plaintiff signed up to participate in fasting, it would appear

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that he was at least somewhat tolerant of inmate facilitation, otherwise he

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would not have signed up in the first place. Plaintiff’s Complaint alleges that

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he was treated differently from other similarly situated prisoners, that he

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didn’t meet the inmate facilitator’s standards to participate in Ramadan, and

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was therefore excluded. Defendants’ do not argue that there was a

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constitutionally valid basis for that exclusion under the Equal Protection

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clause.
Therefore, the Court RECOMMENDS that the Motion to Dismiss

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Plaintiff’s Free Exercise and Equal Protection claims be DENIED.

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D. Qualified Immunity

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Defendants argue that “even if the Court finds that Defendants violated

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a constitutional right, they are still entitled to qualified immunity” because

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CDCR allows for inmates to serve as religious facilitators (ECF No. 12-1 at

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13-14).

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“Qualified immunity attaches when an official’s conduct ‘does not

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violate clearly established statutory or constitutional rights of which a

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reasonable person would have known.’” White v. Pauly, 137 S.Ct. 548, 551

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(2017) (quoting Mullenix v. Luna, 136 S.Ct. 305, 308 (2015)). When

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considering whether an officer is entitled to qualified immunity, the Court

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considers “(1) whether there has been a violation of a constitutional right;

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and (2) whether that right was clearly established at the time of the officer’s

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alleged misconduct.” S.B. v. County of San Diego, 864 F.3d 1010, 1013 (9th

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Cir. 2017). A plaintiff must prove both topics of inquiry to establish that

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officials are not entitled to qualified immunity. Marsh v. County of San
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Diego, 680 F.3d 1148, 1152 (9th Cir. 2012).
A district court may address these questions in the order most

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appropriate to “the circumstances of the particular case at hand.” Pearson v.

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Callahan, 555 U.S. 223, 236, 242 (2009). Thus, if a court determines that

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Plaintiff’s allegations do not support a statutory or constitutional violation,

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“there is no necessity for further inquiries concerning qualified immunity.”

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Saucier v. Katz, 533 U.S. 194, 201 (2001). However, in the Ninth Circuit,

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“[w]hen ... defendants assert qualified immunity in a motion to dismiss under

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Rule 12(b)(6), dismissal is not appropriate unless [the Court] can determine,

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based on the complaint itself, that qualified immunity applies.” O'Brien v.

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Welty, 818 F.3d 920, 936 (9th Cir. 2016) (internal quotation omitted).

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“[T]he clearly established law must be ‘particularized’ to the facts of the

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case.” White, 137 S.Ct. at 552 (quoting Anderson v. Creighton, 483 U.S. 635,

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640 (1987)). Although the court “does not require a case directly on point for

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a right to be clearly established, existing precedent must have placed the

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statutory or constitutional question beyond debate.” White, 137 S.Ct. at 551

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(internal quotation omitted).

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Here, as stated above, the actual challenged conduct was not the use of

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inmate facilitators for Islamic services, but rather that Plaintiff was

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prevented from participating in a monthlong fast in accordance with his

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Islamic faith. Defendants do not address this challenged conduct, its

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constitutionality, or provide a clearly established basis upon which

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Defendants may have relied. As such the Court RECOMMENDS that they

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are not entitled to qualified immunity.

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V. CONCLUSION

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For the reasons set forth herein, it is RECOMMENDED that:

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1) Defendants’ Motion be GRANTED IN PART and Plaintiff’s request
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for injunctive relief be DISMISSED;

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2) Defendants’ Motion be DENIED as to Plaintiff’s free exercise and

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equal protection claims and Defendants’ claim of qualified immunity.

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3) While Plaintiff has not updated his mailing address of record, in the

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interests of justice the Clerk is ORDERED to mail a copy of this Report

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and Recommendation to Plaintiff’s address as judicially noticed:

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Patrick Shields

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CDCR Number AY3237

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San Quentin State Prison

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San Quentin, California 94974
This Report and Recommendation will be submitted to the United

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States District Judge assigned to this case, pursuant to the provisions of 28

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U.S.C. § 636(b)(1). Any party may file written objections with the court and

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serve a copy on all parties by February 27, 2018. The document shall be

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captioned “Objections to Report and Recommendation.” Any reply to the

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objections shall be served and filed by March 6, 2019.

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The parties are advised that failure to file objections within the

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specified time may waive the right to raise those objections on appeal of the

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

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IT IS SO ORDERED.
Dated: February 13, 2019

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