Shields v. Kahn et al

Filing 18

ORDER (1) Overruling Defendants' objections, (2) Adopting 15 Report and Recommendation, and (3) Granting in p[art and denying in part Defendants' motion to dismiss. Signed by Judge Janis L. Sammartino on 6/10/2019. (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,
CDCR #AY-3237,

Case No.: 17-CV-2597 JLS (MDD)
ORDER (1) OVERRULING
DEFENDANTS’ OBJECTIONS,
(2) ADOPTING REPORT AND
RECOMMENDATION, AND
(3) GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTION TO DISMISS

Plaintiff,

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vs.

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Chaplain KAHN; R. BROWN,
Community Resources Manager;
E. GARZA, Captain;
D. PARAMO, Warden,

(ECF Nos. 12, 15, 17)

Defendants.

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Presently before the Court is Defendants Chaplain Kahn, R. Brown, E. Garza, and

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D. Paramo’s Motion to Dismiss Plaintiff’s Complaint (“Mot.,” ECF No. 12). Also before

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the Court is Magistrate Judge Mitchell D. Dembin’s Report and Recommendation (“R&R,”

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ECF No. 15) advising the Court to grant in part and deny in part Defendant’s Motion, as

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well as Plaintiff’s Objections (“Objs.,” ECF No. 17) to Magistrate Judge Dembin’s R&R.

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Having considered the Parties’ arguments and the law, the Court OVERRULES

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Defendants’ Objections, ADOPTS the R&R in its entirety, and GRANTS IN PART AND

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DENIES IN PART Defendants’ Motion.

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BACKGROUND

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Magistrate Judge Dembin’s R&R contains a thorough and accurate recitation of the

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factual and procedural history underlying the instant Motion. See R&R 2–3. This Order

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incorporates by reference the background as set forth therein.

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Plaintiff Patrick Shields is a state prisoner proceeding pro se and in forma pauperis.

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See ECF Nos. 1, 5. On December 29, 2017, Plaintiff filed a Complaint pursuant to 42

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U.S.C. § 1983 alleging that his name was removed from the list of inmates allowed to

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celebrate Ramadan in violation of the First and Fourteenth Amendments. ECF No. 1

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(“Compl.”) at 2–4.

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On October 9, 2018, Defendants moved to dismiss the Complaint. See generally

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ECF No. 12.

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recommending that Defendants’ Motion be granted in part and denied in part. See

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generally ECF No. 15. The Parties were given until February 27, 2019, to file written

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objections to the R&R, and until March 6, 2019, to file any replies. See id. at 10.

On February 13, 2019, Magistrate Judge Dembin filed his R&R,

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On February 15, 2019, Defendants filed their Objections. See generally ECF No.

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17. Defendants object to the R&R’s findings that (1) all Defendants, as opposed to only

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Chaplain Khan, violated Plaintiff’s First Amendment right to practice Islam; (2) all

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Defendants, as opposed to only Chaplain Khan, violated Plaintiff’s Fourteenth Amendment

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rights to Equal Protection; and (3) no Defendants are entitled to Qualified Immunity. Id.

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at 2, 6–15. Plaintiff has filed no objections and no Party has filed a reply.

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LEGAL STANDARD
I.

Review of the Report and Recommendation

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Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district

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court’s duties in connection with a magistrate judge’s report and recommendation. The

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district court must “make a de novo determination of those portions of the report or

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specified proposed findings or recommendations to which objection is made,” and “may

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accept, reject, or modify, in whole or in part, the findings or recommendations made by the

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magistrate judge.” 28 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667,
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673–76 (1980); United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). In the absence

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of timely objection, however, the Court “need only satisfy itself that there is no clear error

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on the face of the record in order to accept the recommendation.” Fed. R. Civ. P. 72

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advisory committee’s note (citing Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th

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Cir. 1974)).

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II.

Motion to Dismiss

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Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the

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defense that the complaint “fail[s] to state a claim upon which relief can be granted,”

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generally referred to as a motion to dismiss. The Court evaluates whether a complaint

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states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil

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Procedure 8(a), which requires a “short and plain statement of the claim showing that the

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pleader is entitled to relief.”

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allegations,’ . . . it demands more than an unadorned, the-defendant-unlawfully-harmed-

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me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

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Twombly, 550 U.S. 544, 555 (2007)). In other words, “a plaintiff’s obligation to provide

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the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and

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a formulaic recitation of a cause of action’s elements will not do.” Twombly, 550 U.S. at

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555 (alteration in original). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’

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devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (alteration in original)

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(quoting Twombly, 550 U.S. at 557).

Although Rule 8 “does not require ‘detailed factual

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“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

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accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting

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Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible

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when the facts pled “allow[] the court to draw the reasonable inference that the defendant

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is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). That is not to

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say that the claim must be probable, but there must be “more than a sheer possibility that a

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defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556). “[F]acts that are

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‘merely consistent with’ a defendant’s liability” fall short of a plausible entitlement to
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relief. Id. (quoting Twombly, 550 U.S. at 557). Further, the Court need not accept as true

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“legal conclusions” contained in the complaint. Id. at 678–79 (citing Twombly, 550 U.S.

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at 555). This review requires “context-specific” analysis involving the Court’s “judicial

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experience and common sense.” Id. at 679. “[W]here the well-pleaded facts do not permit

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the court to infer more than the mere possibility of misconduct, the complaint has alleged—

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but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Id. (quoting Fed. R. Civ.

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P. 8(a)(2)).

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When a plaintiff appears pro se, the Court construes the pleadings liberally and

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affords the plaintiff any benefit of the doubt. See Erickson v. Pardus, 551 U.S. 89, 94

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(2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)); Thompson v. Davis, 295 F.3d

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890, 895 (9th Cir. 2002) (citing Oretz v. Wash. Cnty., Or., 88 F.3d 804, 807 (9th Cir.

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1996)). When giving liberal construction to a pro se complaint, however, the Court is not

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permitted to “supply essential elements of claims that were not initially pled.” Easter v.

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Cal. Dep’t of Corr., 694 F. Supp. 2d 1177, 1183 (S.D. Cal. 2010) (quoting Ivey v. Bd. of

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Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982)). “Vague and conclusory

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allegations of official participation in civil rights violations are not sufficient to withstand

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a motion to dismiss.” Id. (quoting Ivey, 673 F.2d at 268) (citing Jones v. Cmty. Redev.

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Agency, 733 F.2d 646, 649 (9th Cir. 1984)). The Court should allow a pro se plaintiff leave

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to amend “unless the pleading ‘could not possibly be cured by the allegation of other

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facts.’” Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003) (quoting Lopez v. Smith, 203

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F.3d 1122, 1130, 1131 (9th Cir. 2000)).

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ANALYSIS

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First, the Court reviews for clear error Magistrate Judge Dembin’s recommendation

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as to Defendants’ Request for Judicial Notice in support of their Motion. Next, the Court

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reviews for clear error those portions of Magistrate Judge Dembin’s R&R to which no

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objections were made: (1) his recommendation that the Court dismiss Plaintiff’s request

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for injunctive relief, (2) his recommendation that the Court deny Defendants’ Motion as to

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Plaintiff’s Free Exercise and Equal Protection claims against Chaplain Khan, and (3) his
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recommendation that Chaplain Khan is not entitled to qualified immunity. Finally, the

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Court reviews de novo those portions of Magistrate Judge Dembin’s R&R to which

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Defendants timely objected, i.e., the denial of Defendants’ Motion as to Defendants Brown,

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Paramo, and Garza, whom Defendants contend should be dismissed because no facts were

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alleged against them individually.

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I.

Judicial Notice

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Pursuant to Federal Rule of Evidence 201(b), Defendants requested that the Court

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take judicial notice of the results of a search conducted on the California Department of

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

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currently incarcerated at San Quentin State Prison. See ECF No. 12-2 (“RJN”). The Court

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agrees with Magistrate Judge Dembin’s recommendation that judicial notice should be

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taken of Plaintiff’s current incarceration location.

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In ruling on a motion to dismiss pursuant to Federal Rule of Civil Procedure

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12(b)(6), the Court may take judicial notice of “matters of public record” pursuant to

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Federal Rule of Evidence 201. Mack v. South Bay Beer Distribs., Inc., 798 F.2d 1279,

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1282 (9th Cir. 1986). Judicial notice is properly taken of the official records of the CDCR.

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Brown v. Valoff, 422 F.3d 926, 931 n.7 (9th Cir. 2004). Further, the Court may take judicial

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notice of information displayed on government websites where neither party disputes the

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accuracy of the information contained therein. Daniels-Hall v. National Educ. Ass’n, 629

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F.3d 992, 998-99 (9th Cir. 2010).

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Magistrate Judge Dembin concludes that Plaintiff’s current location of incarceration

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should be judicially noticed as it is a matter of public record. Defendants do not object to

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this portion of Magistrate Judge Dembin’s R&R, see generally Objs., and the Court finds

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no clear error in the recommendation. The Court therefore ADOPTS Magistrate Judge

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Dembin’s R&R and GRANTS Defendants’ RJN.

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II.

Injunctive Relief

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Defendants argue that Plaintiff’s request for injunctive relief should be dismissed as

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moot and without leave to amend as Plaintiff is no longer housed at the Richard J. Donovan
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Correctional Facility (“Donovan”) and he did not allege or present any evidence indicating

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an expectation of being transferred back there. Mot. at 10. The Court agrees with

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Magistrate Judge Dembin’s recommendation that Plaintiff’s request for injunctive relief

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should be dismissed as moot as to all Defendants.

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A prisoner challenging the conditions of confinement fails to present a viable claim

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for injunctive relief upon being transferred to a different institution. Johnson v. Moore,

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948 F.2d 517, 519 (9th Cir. 1991) (per curiam); Andrews v. Cervantes, 493 F.3d 1047,

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1053 n.5 (9th Cir. 2007). The unavailability of injunctive relief extends to free exercise

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claims. Epps v. Grannis, 606 F. App’x 329, 330 (9th Cir. 2015) (“The district court

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properly dismissed as moot [the plaintiff’s Religious Land Use and Institutionalized

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Persons Act] claims concerning [the] Prison’s package policy and his request for a Kosher

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diet, because [the plaintiff] was transferred to another prison during the pendency of his

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action.”).

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

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now housed at San Quentin State Prison. Further, there is no indication in Plaintiff’s

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Complaint that he expects to return to Donovan. Defendants do not object to this portion

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of Magistrate Judge Dembin’s R&R, see generally Objs., and the Court finds no clear error

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in his recommendation. Accordingly, the Court ADOPTS Magistrate Judge Dembin’s

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recommendation as to Plaintiff’s request for injunctive relief and DISMISSES that request

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as moot but without prejudice.

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III.

Free Exercise and Equal Protection Claims Against Chaplain Khan

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The Court agrees with Magistrate Judge Dembin’s recommendation that

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Defendants’ Motion be denied as to Plaintiff’s Free Exercise and Equal Protection claims

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against Chaplain Khan.

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The Free Exercise Clause of the First Amendment “requires government respect for,

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and noninterference with[,] . . . religious beliefs and practices.” Cutter v. Wilkinson, 544

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U.S. 709, 719 (2005). Prisoners retain the protections afforded by the First Amendment

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and do not forfeit all constitutional protections by reason of their conviction and
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confinement in prison.

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Nevertheless, “[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 loss of freedom

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concomitant with incarceration.’” Walker v. Beard, 789 F.3d 1125, 1138 (9th Cir. 2015)

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(citation omitted). The protections of the Free Exercise Clause may be implicated when

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prison officials substantially burden the practice of an inmate’s religion. See Jones v.

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Williams, 791 F.3d 1023, 1031–32 (9th Cir. 2015) (“A substantial burden . . . must have a

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tendency to coerce individuals into acting contrary to their religious beliefs or exert

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substantial pressure on an adherent to modify his behavior and to violate his beliefs.”).

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

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The Equal Protection clause of the Fourteenth Amendment “commands that no State

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shall deny to any person within its jurisdiction the equal protection of the laws, which is

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essentially a direction that all persons similarly situated should be treated alike.” City of

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Cleburne v. Cleburne 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 necessitated

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by legitimate penological interests.” Davis v. Powell, 901 F. Supp. 2d 1196, 1219 (S.D.

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Cal. 2012) (quoting Freeman v. Arpaio, 125 F. 3d 732, 737 (9th Cir. 1997)).

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Magistrate Judge Dembin notes that, while prisoners may not be entitled to clergy

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of their choice, as asserted by Defendants, see Mot. at 11, “the challenged conduct here . . .

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is that Defendant was removed from the Ramadan celebrant list.” R&R at 7, 13–14.

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Magistrate Judge Dembin concludes that Plaintiff adequately has alleged a violation of his

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constitutional rights because “[f]asting during Ramadan is one of the five Pillars of the

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Islamic faith,” id. at 7, 15–16, and “Plaintiff [has] the constitutional right to participate in

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religious holidays.” Id. at 7, 20–21. Further, although Defendants contend that the civil

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rights claim must fail because it was brought against a private party, an inmate facilitator,

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see Mot. at 7–8, Magistrate Judge Dembin responds by noting that “[Plaintiff] is suing the

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individuals to whom the inmate facilitators are ultimately responsible and who should have

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responded to Plaintiff’s Form 22 in time for Plaintiff to participate in Ramadan,”

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specifically Chaplain Kahn and prison staff. R&R at 7, 24–27. Further, Magistrate Judge
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Dembin concludes that Defendants failed to present a constitutionally valid basis for

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Plaintiff’s exclusion from the Ramadan celebrant list under the Equal Protection clause.

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Id. at 8, 8–10.

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Defendants object to the inclusion of Defendants Brown, Paramo, and Garza, see

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infra Section V.A, but do not appear to object otherwise to this portion of Magistrate Judge

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Dembin’s R&R, see generally Objs. The Court finds no clear error in the recommendation

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as to Chaplain Khan; consequently, the Court ADOPTS Magistrate Judge Dembin’s R&R

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and DENIES Defendants’ Motion as to Plaintiff’s Free Exercise and Equal Protection

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claims as to Defendant Khan.

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IV.

Qualified Immunity as to Chaplain Khan
The Court agrees with Magistrate Judge Dembin’s recommendation that Chaplain

Khan has not established that he is entitled to qualified immunity.

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

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established statutory or constitutional rights of which a reasonable person would have

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known.’” White v. Pauly, 580 U.S. ___, 137 S. Ct. 548, 551 (2017) (quoting Mullenix v.

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Luna, 577 U.S. ___, 136 S. Ct. 305, 308 (2015)). When considering whether an officer is

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entitled to qualified immunity, the Court considers “(1) whether there has been a violation

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of a constitutional right; and (2) whether that right was clearly established at the time of

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the officer’s alleged misconduct.” S.B. v. Cnty. 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 officials are not

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entitled to qualified immunity. Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1152 (9th Cir.

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2012).

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In the Ninth Circuit, “[w]hen . . . defendants assert qualified immunity in a motion

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

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determine, 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). “[T]he clearly

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established law must be ‘particularized’ to the facts of the case.” White, 137 S. Ct. at 552

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(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Although the court “does not
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require a case directly on point for a right to be clearly established, existing precedent must

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have placed the statutory or constitutional question beyond debate.” Id. at 551 (internal

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quotation marks omitted).

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Magistrate Judge Dembin recommends that qualified immunity should not be

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granted because “the actual challenged conduct was . . . that Plaintiff was prevented from

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participating in a monthlong fast in accordance with his Islamic faith” and Defendants

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failed to address that conduct, thereby failing to meet their burden to establish that Plaintiff

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has not alleged a violation of a constitutional right and that the right was not clearly

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established at the time of the alleged misconduct. R&R at 9, 18–21. Although Defendants

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object to Magistrate Judge Dembin’s recommendation as to Defendants Brown, Paramo,

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and Garza, see infra Section V.B, the Court finds no clear error as to Magistrate Judge

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Dembin’s recommendation that Chaplain Khan is not entitled to qualified immunity.

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Accordingly, the Court ADOPTS Magistrate Judge Dembin’s R&R and finds that

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Chaplain Khan is not entitled to qualified immunity.

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V.

Defendants Brown, Paramo, and Garza

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Magistrate Judge Dembin’s recommendation was made as to all Defendants. See

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generally R&R at 6–8 (recommending denial of Defendants’ Motion as to Plaintiff’s Free

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Exercise and Equal Protection claims as to all Defendants); id. at 8–9 (recommending

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denial of Defendants’ Motion on qualified immunity grounds as to all Defendants).

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Defendants contend that, because the R&R focuses on Chaplain Khan’s failure to respond

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to the Form 22, Defendants Brown, Paramo, and Garza should be dismissed. Objs. at 2–3.

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The Court therefore reviews de novo Magistrate Judge Dembin’s recommendations as to

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Defendants Brown, Paramo, and Garza.

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A.

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Defendants contend that, “[i]f the Court agrees that allowing inmates to lead Islamic

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services is not a civil rights violation, then Brown, Paramo, and Garza should be dismissed”

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because “[t]heir alleged conduct does not state a claim for violating the First Amendment

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Free Exercise Clause, or the Fourteenth Amendment Equal Protection Clause.” Objs. at 3.

Free Exercise and Equal Protection Claims

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But Plaintiff’s claims are not predicated solely on “permitting inmate facilitators to lead

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Islamic services.” See Objs. at 3. As Magistrate Judge Dembin explains, see R&R at 7–

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8; see also supra Section III, Plaintiff’s constitutional claims are predicated on his removal

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from the Ramadan celebrant list, not the use of inmate facilitators. Further, Plaintiff alleges

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that Defendants have allowed Chaplain Kahn to “violate [his] contract,” Compl. at 3, and

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“refuse to act and have allowed the denial of Equal Protection.” Id. at 4. Plaintiff further

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alleges that Sergeant Scharr “sent an email to Chaplin Kahn and CRM Brown” about his

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removal form the Ramadan celebrant list, id. at 3, and that “Warden Paramo, CRM Brown

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and Islamic Chapl[a]in Kahn are all aware of the contracted duty statement but they refuse

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to act and have allowed the denial of Equal Protection.” Id. at 4.

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Although Plaintiff’s allegations could be more detailed, at this stage, these

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allegations are sufficient to state plausible claims against Defendants Brown, Paramo, and

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Garza for violations of Plaintiff’s rights to Free Exercise and Equal Protection. See, e.g.,

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Rupe v. Cate, 688 F. Supp. 2d 1035, 1042 (E.D. Cal. 2010) (denying motion to dismiss as

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to supervisory defendants where the plaintiff alleged that they failed to prevent known

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violations). The Court therefore OVERRULES Defendants’ objection and ADOPTS

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Magistrate Judge Dembin’s recommendation that the Court deny Defendants’ Motion as

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to Plaintiff’s Free Exercise and Equal Protection claims against Defendants Brown,

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Paramo, and Garza.

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B.

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Defendants also contend that, even if there exists a plausible claim for violation of

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Plaintiff’s constitutional rights against Defendants Brown, Paramo, and Garza, they are

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entitled to qualified immunity. See Objs. at 3. On de novo review, the Court concludes

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that Magistrate Judge Dembin’s reasoning concerning qualified immunity, see supra

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Section III, applies equally to all Defendants.

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Defendants’ objection and ADOPTS Magistrate Judge Dembin’s recommendation that

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Defendants Brown, Paramo, and Garza have failed to establish their entitlement to

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qualified immunity at this stage.

Qualified Immunity

The Court therefore OVERRULES

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CONCLUSION

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In light of the foregoing, the Court:

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1.

OVERRULES Defendants’ Objections (ECF No. 17),

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2.

ADOPTS in its entirety Magistrate Judge Dembin’s R&R (ECF No. 15), and

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3.

GRANTS IN PART AND DENIES IN PART Defendants’ Motion (ECF

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No. 12).

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PREJUDICE Plaintiff’s request for injunctive relief. Defendants’ Motion is otherwise

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DENIED. Plaintiff MAY FILE an amended complaint to cure the specific deficiencies

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enumerated above within thirty (30) days of the date on which this Order is electronically

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docketed. Any amended complaint must cure the deficiencies noted herein and must be

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complete in itself without reference to the original complaint. See S.D. Cal. CivLR 15.1.

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Any claims not re-alleged in the amended complaint will be considered waived. See Lacey

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v. Maricopa Cnty., 693 F.3d 896, 925, 928 (9th Cir. 2012). Failure to file an amended

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complaint by this date shall result in this action proceeding on Plaintiff’s surviving claims.

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Specifically, the Court DISMISSES AS MOOT AND WITHOUT

IT IS SO ORDERED.

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Dated: June 10, 2019

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