Bartlett v. Wengler et al

Filing 43

MEMORANDUM DECISION AND ORDER granting 23 Defendants Vallard's and Thomas's MOTION for Summary Judgment. No later than 21 days after entry of this Order, Plaintiff shall file a brief regarding whether the Court should grant summar y judgment to Defendants Wengler and Kessler on Plaintiffs injunctive relief claims, as well as his RLUIPA claims for damages. No later than 14 days after service of Plaintiffs brief, Defendants Wengler and Kessler shall file a reply brief with accompanying affidavits as set forth above. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

BILLY RAY BARTLETT,
Case No. 1:12-cv-00312-EJL
Plaintiff,
MEMORANDUM DECISION AND
ORDER

v.
TIM WENGLER, TOM KESSLER,
COSMO ZIMIK, GRADY
ZICKEFOOSE, M. VALLARD, and
KEITH THOMAS,
Defendants.

Currently pending before the Court is Defendants Matt Vallard’s and Keith
Thomas’ Motion for Summary Judgment. Plaintiff Billy Ray Bartlett, a prisoner in the
custody of the Idaho Department of Correction (IDOC), is proceeding pro se in this civil
rights action. Having fully reviewed the record, the Court finds that the facts and legal
arguments are adequately presented in the briefs and record and that the decisional
process would not be significantly aided by oral argument. D. Idaho L. R. 7.1.
Accordingly, the Court enters the following order granting Defendants Vallard’s and
Thomas’s Motion for Summary Judgment.

INTRODUCTION
At the time of the events giving rise to Plaintiff’s claims, Plaintiff was incarcerated
at the Idaho Correctional Center (ICC). ICC was at that time operated by Corrections
Corporation of America (CCA), a private company that managed the prison under
contract with the IDOC.
Plaintiff, who is Jewish, alleges that ICC prison officials denied him a kosher diet
in violation of (1) the First Amendment of the United States Constitution and (2) the
Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc-1,
et seq.
FACTUAL BACKGROUND
This section includes facts that are undisputed and material to the resolution of the
issues in this case. Where material facts are in dispute, the Court has included Plaintiff’s
version of facts, insofar as that version is not contradicted by clear documentary evidence
in the record. See Scott v. Harris, 550 U.S. 372, 380 (2007) (“When opposing parties tell
two different stories, one of which is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt that version of the facts for
purposes of ruling on a motion for summary judgment.”)
In August 2011, Plaintiff filed a grievance complaining of IDOC’s and ICC’s
failure to provide a kosher diet. (Dkt. 32 at 3.) Defendant Thomas, the grievance
coordinator, routed the grievance to Cosmo Zimik (a former Defendant in this case), who
responded that he did not believe kosher diets were available. (Affidavit of Keith
MEMORANDUM DECISION AND ORDER - 2

Thomas, Dkt. 23-3, ¶ 3; Dkt. 32 at 3.) Defendant Tom Kessler agreed and denied
Plaintiff’s grievance, stating that kosher meals were “not an IDOC approved religious
diet.” (Id. at 4.) Plaintiff appealed the denial of his grievance, and Defendant Warden Tim
Wengler denied the appeal, informing Plaintiff, “At this time we have not received IDOC
authorization to change the contract approved menu.” (Id.)
Shortly after Plaintiff’s initial grievance was denied, he filed another. This second
grievance again complained of the lack of a kosher diet at ICC. Defendant Thomas routed
this second grievance to Defendant Vallard, the person who monitored the contract
between CCA and the IDOC to ensure compliance with IDOC policy. (Thomas Aff. ¶ 3;
Affidavit of Matt Vallard, Dkt. 23-4, ¶ 2.) Defendant Vallard determined that the issue
had already been grieved and instructed Defendant Thomas to return the grievance to
Plaintiff without action. (Thomas Aff. ¶ 3; Vallard Aff. ¶¶ 4-5; Dkt. 32; Dkt. 33.) Vallard
did not process this second grievance because the grievance policy did not allow an
inmate “to grieve an issue that they had already complained about and that had been fully
addressed and exhausted.” (Vallard Aff. ¶ 5.)
Plaintiff filed a third grievance about a week after he filed the second grievance.
(Dkt. 33 at 3.) Defendant Vallard again instructed Thomas to return this third grievance to
Plaintiff without action because the issue had already been addressed in the two previous
grievances. (Id.)
Other than handling these grievances, Defendants Vallard and Thomas were not
involved in denying Plaintiff’s request for a kosher diet. Defendants Vallard and Thomas
MEMORANDUM DECISION AND ORDER - 3

did not participate or have any authority in developing or changing the contract between
CCA and the IDOC or any IDOC policy, such as which types of meals are provided to
prisoners. (Thomas Aff., ¶¶ 2, 4; Vallard Aff., ¶¶ 2, 7.)
DEFENDANTS VALLARD’S AND THOMAS’S
MOTION FOR SUMMARY JUDGMENT
1.

Summary Judgment Standard of Law
Summary judgment is appropriate where a party can show that, as to any claim or

defense, “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). One of the principal purposes of the
summary judgment rule “is to isolate and dispose of factually unsupported claims or
defenses.” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is not “a disfavored
procedural shortcut,” but is instead the “principal tool[] by which factually insufficient
claims or defenses [can] be isolated and prevented from going to trial with the attendant
unwarranted consumption of public and private resources.” Id. at 327.
“[T]he mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment . . . .” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Rather, there must be no genuine
dispute as to any material fact for a case to survive summary judgment. Material facts are
those “that might affect the outcome of the suit.” Id. at 248. “Disputes over irrelevant or
unnecessary facts will not preclude a grant of summary judgment.” T.W. Elec. Serv., Inc.
v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987).

MEMORANDUM DECISION AND ORDER - 4

The moving party is entitled to summary judgment if that party shows that each
material fact cannot be disputed. To show that the material facts are not in dispute, a party
may cite to particular parts of materials in the record, or show that the adverse party is
unable to produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1). The
Court must consider “the cited materials,” but it may also consider “other materials in the
record.” Fed. R. Civ. P. 56(c)(3). The Court is “not required to comb through the record
to find some reason to deny a motion for summary judgment.” Carmen v. San Francisco
Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001) (internal quotation marks
omitted). Instead, the “party opposing summary judgment must direct [the Court’s]
attention to specific triable facts.” So. Ca. Gas Co. v. City of Santa Ana, 336 F.3d 885,
889 (9th Cir. 2003).
If the moving party meets its initial responsibility, then the burden shifts to the
opposing party to establish that a genuine dispute as to a material fact actually does exist.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The
existence of a scintilla of evidence in support of the non-moving party’s position is
insufficient. Rather, “there must be evidence on which the jury could reasonably find for
the [non-moving party].” Anderson, 477 U.S. at 252.
Material used to support or dispute a fact must be capable of being “presented in a
form that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). Affidavits or
declarations submitted in support of or in opposition to a motion “must be made on
personal knowledge, set out facts that would be admissible in evidence, and show that the
MEMORANDUM DECISION AND ORDER - 5

affiant or declarant is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4).
If a party “fails to properly support an assertion of fact or fails to properly address
another party’s assertion of fact,” the Court may consider that fact to be undisputed. Fed.
R. Civ. P. 56(e)(2). The Court may grant summary judgment for the moving party “if the
motion and supporting materials—including the facts considered undisputed—show that
the movant is entitled to it.” Fed. R. Civ. P. 56(e)(3). The Court may also grant summary
judgment to a non-moving party, on a ground not raised by either party, or on its own
motion provided that the parties are given notice and a reasonable opportunity to respond.
Fed. R. Civ. P. 56(f).
The Court does not determine the credibility of affiants or weigh the evidence set
forth by the non-moving party. Although all reasonable inferences which can be drawn
from the evidence must be drawn in a light most favorable to the non-moving party, T.W.
Elec. Serv., Inc., 809 F.2d at 630-31, the Court is not required to adopt unreasonable
inferences from circumstantial evidence, McLaughlin v. Liu, 849 F.2d 1205, 1207-08 (9th
Cir. 1988).
2.

Discussion
A.

First Amendment Claims

Plaintiff brings his First Amendment claims under 42 U.S.C. § 1983, the civil
rights statute. To succeed on a claim under § 1983, a plaintiff must establish a violation of
rights protected by the Constitution or created by federal statute proximately caused by
conduct of a person acting under color of state law. Crumpton v. Gates, 947 F.2d 1418,
MEMORANDUM DECISION AND ORDER - 6

1420 (9th Cir. 1991). Prison officials are generally not liable for damages in their
individual capacities under § 1983 unless they personally participated in the alleged
constitutional violations. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); see also
Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) (“[E]ach Government official, his or her title
notwithstanding, is only liable for his or her own misconduct.”). “A defendant may be
held liable as a supervisor under § 1983 ‘if there exists either (1) his or her personal
involvement in the constitutional deprivation, or (2) a sufficient causal connection
between the supervisor’s wrongful conduct and the constitutional violation.’” Starr v.
Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (quoting Hansen v. Black, 885 F.2d 642, 646
(9th Cir. 1989)). This causal connection “can be established by setting in motion a series
of acts by others, or by knowingly refusing to terminate a series of acts by others, which
the supervisor knew or reasonably should have known would cause others to inflict a
constitutional injury.” Id. at 1207-08 (internal quotation marks, citation, and alterations
omitted).
The Free Exercise Clause of the First Amendment absolutely protects the right to
believe in a religion; it does not absolutely protect all conduct associated with a religion.
Cantwell v. Connecticut, 310 U.S. 296, 303-04 (1940). Inmates retain their free exercise
rights in prison. O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987). However,
challenges to prison restrictions that are alleged “to inhibit First Amendment interests
must be analyzed in terms of the legitimate policies and goals of the corrections system,
to whose custody and care the prisoner has been committed in accordance with due
MEMORANDUM DECISION AND ORDER - 7

process of law.” Jones v. N.C. Prisoners’ Labor Union, Inc., 433 U.S. 119, 125 (1977)
(internal quotation marks omitted).
Here, as to Defendants Thomas and Vallard, Plaintiff alleges his rights were
violated when they denied his requests for a kosher diet and failed to intervene and/or
direct his request to proper IDOC staff. (Compl., Dkt. 3, at 6-7.) However, Plaintiff has
failed to rebut the evidence presented by Defendants Vallard and Thomas that their
actions did not proximately cause any violation of Plaintiff’s First Amendment rights. See
Taylor, 880 F.2d at 1045.
Neither Thomas nor Vallard actually denied Plaintiff’s request for a kosher diet.
Defendant Thomas simply sent the grievances on to other prison officials for response,
and Defendant Vallard instructed Thomas to return the second and third grievances
without action because they were filed in contravention of the grievance policy—not
because these two grievances were denied on the merits. These actions do not constitute
personal participation in the alleged constitutional violations. Indeed, “liability under
§ 1983 must be based on active unconstitutional behavior.” Shehee v. Luttrell, 199 F.3d
295, 300 (6th Cir. 1999). Where defendants’ “only roles in [a civil rights] action involve
the denial of administrative grievances . . . they cannot be liable under § 1983.” Id.
Plaintiff has not provided any allegations, let alone any evidence, that Defendants
Thomas and Vallard were personally involved in the alleged constitutional violations.1

1

Neither has Plaintiff shown that an independent cause of action lies for Thomas’s and
Vallard’s actions in the fall of 2011. The law is clear that “[t]here is no legitimate claim of
MEMORANDUM DECISION AND ORDER - 8

Therefore, Plaintiff’s First Amendment claims against Defendants Thomas and Vallard
will be dismissed.
B.

RLUIPA Claims

RLUIPA provides that “[n]o government shall impose a substantial burden on the
religious exercise of a person residing in or confined to an institution . . . even if the
burden results from a rule of general applicability, unless the government demonstrates
that imposition of the burden on that person . . . is in furtherance of a compelling
governmental interest and . . . is the least restrictive means of furthering that compelling
governmental interest.” 42 U.S.C. § 2000cc-1(a). Under RLUIPA, the inmate bears the
initial burden of showing that the prison’s policy constitutes a substantial burden on the
exercise of the inmate’s religious beliefs. Warsoldier v. Woodford, 418 F.3d 989, 994 (9th
Cir. 2005).
The Ninth Circuit recently held that RLUIPA does not allow for monetary
damages against individual defendants. Wood v. Yordy, 753 F.3d 899, 902-04 (9th Cir.
2014). Therefore, Plaintiff’s claims for damages against Defendants Vallard and Thomas
must be dismissed.
With respect to the claim for injunctive relief under RLUIPA, a plaintiff may seek
injunctive relief from officials who have direct responsibility in the area in which the

entitlement to a [prison] grievance procedure.” Mann v. Adams, 855 F.2d 639, 640 (9th Cir.
1988); see Sandin v. Connor, 515 U.S. 472 (1995) (noting that liberty interests are generally
limited to freedom from restraint).
MEMORANDUM DECISION AND ORDER - 9

plaintiff seeks relief. See Rounds v. Oregon State Bd. of Higher Education, 166 F.3d
1032, 1036 (9th Cir. 1999); Ex parte Young, 209 U.S. 123, 157-58 (1908). Defendants
Thomas and Vallard do not have any authority to decide which types of meals are
provided to inmates at ICC in general or to Plaintiff in particular. Simply put, these
Defendants are not the proper defendants for Plaintiff’s RLUIPA claims for injunctive
relief.
REMAINING DEFENDANTS
As a result of the Court’s grant of Defendants Vallard’s and Thomas’s Motion for
Summary Judgment and the Court’s previous dismissal of all claims against Defendants
Cosmo Zimik and Grady Zickefoose (Dkt. 21), the only Defendants remaining in this
action are Tim Wengler and Tom Kessler. The Ninth Circuit’s decision in Wood that
monetary damages are not available under RLUIPA, see 753 F.3d at 902-04, applies
equally to these Defendants. Further, it appears that Plaintiff is no longer incarcerated at
ICC (Dkt. 42) and that Defendants Wengler and Kessler may no longer work at the prison
in which Plaintiff is confined, either of which would render Plaintiff’s injunctive relief
claims moot.2 See, e.g., Preiser v. Newkirk, 422 U.S. 395, 402-03 (1975); Johnson v.
Moore, 948 F.2d 517, 519 (9th Cir. 1991).
Accordingly, the Court gives the parties notice that it intends to grant summary

2

The State of Idaho recently took over operation of ICC from CCA. Thus, it is unclear
whether CCA employees who worked at ICC prior to the change in management remain
employed at ICC.
MEMORANDUM DECISION AND ORDER - 10

judgment to Defendants Wengler and Kessler on Plaintiff’s claims for injunctive relief, as
well as on Plaintiff’s claims for monetary damages under RLUIPA. See Fed. R. Civ. P.
56(f). If summary judgment as to these claims is granted, the only claims remaining in
this action will be Plaintiff’s claims for monetary damages under the First Amendment
against Defendants Wengler and Kessler.
Plaintiff shall file a response to this Order within 21 days, setting forth any reasons
why the Court should not grant summary judgment to Defendants Wengler and Kessler
with respect to Plaintiff’s injunctive relief claims and his RLUIPA claims for monetary
damages.
Defendants Wengler and Kessler shall file a reply brief no later than 14 days after
service of Plaintiff’s response brief. Defendants’ reply shall be accompanied by affidavits
regarding the current employment status of Defendants Wengler and Kessler and whether
they work at the prison in which Plaintiff is currently confined.
ORDER
IT IS ORDERED:
1.

Defendants Vallard’s and Thomas’s Motion for Summary Judgment (Dkt.
23) is GRANTED. All claims against Defendants Thomas and Vallard are
DISMISSED with prejudice.

2.

No later than 21 days after entry of this Order, Plaintiff shall file a brief
regarding whether the Court should grant summary judgment to Defendants
Wengler and Kessler on Plaintiff’s injunctive relief claims, as well as his

MEMORANDUM DECISION AND ORDER - 11

RLUIPA claims for damages. No later than 14 days after service of
Plaintiff’s brief, Defendants Wengler and Kessler shall file a reply brief
with accompanying affidavits as set forth above.
DATED: September 24, 2014

Honorable Edward J. Lodge
U. S. District Judge

MEMORANDUM DECISION AND ORDER - 12