Randolph v. Nevada Department of Corrections et al

Filing 84

ORDER - Plaintiff's Objection (ECF No. 82 ) is sustained in part and overruled in part. The Report and Recommendation of Magistrate Judge Carla L. Baldwin (ECF No. 75 ) is accepted in part. Defendant's Motion for Summary Judgment (ECF No. 69 ) is granted as to Counts II and III, but denied as to Count I. Signed by Chief Judge Miranda M. Du on 9/2/2020. (Copies have been distributed pursuant to the NEF - AB)

Case 3:17-cv-00085-MMD-CLB Document 84 Filed 09/02/20 Page 1 of 7
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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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LOUIS RANDOLPH a.k.a.
CLYDE LEWIS,

Case No. 3:17-cv-00085-MMD-CLB
ORDER

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Plaintiff,
v.

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NEVADA DEPARTMENT
OF CORRECTIONS, et al.,

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Defendants.
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I.

SUMMARY

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Plaintiff, who is in the custody of the Nevada Department of Corrections (“NDOC”),

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initiate this action under 42 U.S.C. § 1983. (ECF No. 1-1.) Before the Court is the Report

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and Recommendation (“R&R”) of United States Magistrate Judge Carla L. Baldwin (ECF

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No. 75), recommending that the Court grant Defendants’ motion for summary judgment

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(the “Motion”) (ECF No. 69). Plaintiff objected (the “Objection”) (ECF No. 82). 1 For the

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reasons discussed herein, the Court will overrule in part and sustain in part the Objection.2

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II.

BACKGROUND
The Court incorporates and adopts the facts outlined in the R&R (ECF No. 75 at 1-

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6) and does not recite them here.

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1Although

Plaintiff has filed a lengthy 29-page Objection, the Court will address
Plaintiff’s arguments beyond the Objection’s 24-page limit (LR 7-3).
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Court has also reviewed Defendants’ response (ECF No. 83).

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III.

LEGAL STANDARDS

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A.

Review of the Magistrate Judge’s Recommendations

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This Court “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party

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fails to object, however, the Court is not required to conduct “any review at all . . . of any

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issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985);

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see also United States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (“De novo review of

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the magistrate judges’ findings and recommendations is required if, but only if, one or both

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parties file objections to the findings and recommendations.”); Fed. R. Civ. P. 72, Advisory

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Committee Notes (1983) (providing that the court “need only satisfy itself that there is no

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clear error on the face of the record in order to accept the recommendation”).

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B.

Summary Judgment Standard

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“The purpose of summary judgment is to avoid unnecessary trials when there is no

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dispute as to the facts before the court.” Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 18

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F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when the pleadings,

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the discovery and disclosure materials on file, and any affidavits “show there is no genuine

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issue as to any material fact and that the movant is entitled to judgment as a matter of

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law.” Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). An issue is “genuine” if there is

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a sufficient evidentiary basis on which a reasonable fact-finder could find for the

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nonmoving party and a dispute is “material” if it could affect the outcome of the suit under

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the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986). Where

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reasonable minds could differ on the material facts at issue, however, summary judgment

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is not appropriate. See id. at 250-51. “The amount of evidence necessary to raise a

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genuine issue of material fact is enough ‘to require a jury or judge to resolve the parties'

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differing versions of the truth at trial.’” Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (9th

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Cir. 1983) (quoting First Nat’l Bank v. Cities Service Co., 391 U.S. 253, 288–89 (1968)).

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In evaluating a summary judgment motion, a court views all facts and draws all inferences

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Case 3:17-cv-00085-MMD-CLB Document 84 Filed 09/02/20 Page 3 of 7
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in the light most favorable to the nonmoving party. Kaiser Cement Corp. v. Fishbach &

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Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986).

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The moving party bears the burden of showing that there are no genuine issues of

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material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). Where the

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moving party does not have the ultimate burden of persuasion at trial the party can meet

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its burden of production by either producing evidence that negates an essential element

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of the nonmoving party’s case or by “showing” that the nonmoving party does not have

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enough evidence to meet an essential element of its claim or defense to carry its ultimate

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burden of persuasion at trial. Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210

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F.3d 1099 (9th Cir. 2000). Once the moving party satisfies Rule 56’s requirements, the

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burden shifts to the party resisting the motion to “set forth specific facts showing that there

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is a genuine issue for trial.” Anderson, 477 U.S. at 256. The nonmoving party “may not

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rely on denials in the pleadings but must produce specific evidence, through affidavits or

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admissible discovery material, to show that the dispute exists,” Bhan v. NME Hosps., Inc.,

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929 F.2d 1404, 1409 (9th Cir. 1991), and “must do more than simply show that there is

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some metaphysical doubt as to the material facts.” Orr v. Bank of Am., 285 F.3d 764, 783

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(9th Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

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586 (1986)). “The mere existence of a scintilla of evidence in support of the plaintiff’s

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position will be insufficient.” Anderson, 477 U.S. at 252.

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Courts must consider a pro se party's contentions offered in his pleadings as

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evidence in his opposition to a motion for summary judgment “where such contentions are

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based on personal knowledge and set forth facts that would be admissible in evidence,

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and where [he] attested under penalty of perjury that the contents of the motions or

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pleadings are true and correct.” Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004).

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IV.

DISCUSSION
In light of Plaintiff’s Objection, the Court conducts a de novo review to determine

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whether to adopt Judge Baldwin’s R&R.

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A.

Count I

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Judge Baldwin recommends dismissing Count I as barred under the two-year

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statute of limitations because the allegations concern events that occurred between

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August 20, 2013 through July 8, 2015. (ECF No. 75 at 9-11; see also ECF No. 69 at 5

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(arguing that “Count I [claims] are barred by the statute of limitations because he did not

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file this action on or before August 20, 2015”).) See Perez v. Seevers, 869 F.2d 425, 426

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(9th Cir. 1989); NRS § 11.190(4)(e). 3 Plaintiff argues that he filed an informal grievance

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on August 10, 2015 and did not receive a response until August 10, 2017, tolling the

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statute of limitations throughout that time. 4 (ECF No. 82 at 16-17.) See Brown v. Valoff,

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422 F.3d 926, 942-43 (9th Cir. 2005) (“the applicable statute of limitations must be tolled

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while a prisoner completes the mandatory exhaustion process.”) ; Wisenbaker v. Farwell,

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341 F. Supp. 2d 1160, 1165 (D. Nev. 2004). The Court agrees and will sustain the

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Objection. The Court thus rejects the R&R’s recommendation to dismiss Count I.

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B.

Count II

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As to Plaintiff’s Count II claims for religious exercise under First Amendment and

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RLUIPA, Judge Baldwin found respectively that: (1) Defendants had a compelling

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government interest in restricting Plaintiff from attending the Muslim services and Eid

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Feast due to security concerns and limited resources; and (2) Defendants’ denial of a

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double-portion meal to Plaintiff in a single incident does not amount to a substantial burden

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on Plaintiff’s rights. (ECF No. 75 at 19-22 (citing to Turner v. Safley, 482 U.S. 78, 89 (1987)

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3Count

I also includes a claim for violation of the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”), which the Motion does not address. (See ECF
No. 69 at 4-5.)
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are a total of six days in between the time Plaintiff received a response to
his grievances and when he appealed them—on October 28, 2015, Defendants denied
Plaintiff’s informal level grievance; on October 31, 2015, Plaintiff filed his first level
grievance, which Defendants denied on January 22, 2016; on January 25, 2016, Plaintiff
filed his second level grievance, but Defendants did not respond until after Plaintiff already
filed this action. (See ECF No. 82 at 17; ECF No. 74 at 39-40.) Those six days combined
with the time between August 20, 2013, and August 10, 2015, are within the two-year
statute of limitations.
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(First Amendment religious exercise) and Walker v. Beard, 789 F.3d 1125, 1134 (9th Cir.

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2015) (RLUIPA).)

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Plaintiff objects that Muslim inmates in the general population attended Muslim

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services and had double-portion meals. (ECF No. 82 at 21, 23.) But Judge Baldwin

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already—and correctly—rejected that argument. (ECF No. 75 at 21 (citing to Allen v.

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Toombs, 827 F.2d 563, 567 (9th Cir. 1987) (holding that, where there are security

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concerns, a prison may withhold certain religious exercises from inmates in a disciplinary

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segregation unit, even though such exercises are permitted for the general population).)

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Plaintiff also argues that Defendants’ security concerns are disingenuous and that not all

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of Plaintiff’s Unit 8 is a disciplinary segregated unit. (ECF No. 82 at 20-21.) However, in

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analyzing the legitimacy of regulation of a prisoners' religious expression, the Supreme

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Court has instructed courts to afford appropriate deference to prison officials, “who are

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actually charged with and trained in the running of the particular institution under

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examination.” O'Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987) (citation and internal

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quotes omitted). Such deference dictates that the Court overrule Plaintiff’s Objection.

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C.

Count III

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Judge Baldwin recommends dismissing Plaintiff’s First Amendment, RLUIPA, and

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equal protections claims in Count III concerning Defendants’ decision to place Plaintiff on

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the Common Fare Menu (“CFM”), rather than on a Jewish kosher or halal diet. (ECF No.

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75 at 11.)

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As to Plaintiff’s First Amendment claim, Judge Baldwin found that Defendants’

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policy was reasonably related to legitimate penological interests because: (1) the policy

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related to administrative and budgetary concerns (ECF No. 69-5 at 2-3 (Administrative

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Regulation (“AR”) 814.02(2))); (2) Plaintiff can still practice significant aspects of his

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religion such as conduct Qur’an readings, possess a prayer rug, and pray five times daily

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within his cell; and (3) Plaintiff is already receiving a kosher diet through the CFM, which

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is therefore a reasonable alternative to Halal meals. (ECF No. 75 at 11-14 (citing to Turner,

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482 U.S. at 89-91).) Plaintiff insists that Judge Baldwin improperly concluded the CFM is
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a kosher diet when in fact it is not, and the evidence does not support such a conclusion.

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(ECF No. 82 at 25-26.) Even accepting Plaintiff’s arguments, the first two factors still

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support a finding that Defendants’ policy was reasonably related to legitimate penological

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interests. As such, the Court overrules Plaintiff’s Objection.

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As to Plaintiff’s RLUIPA claim, Judge Baldwin found there is no evidence that

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placing Plaintiff on a CFM diet places a substantial burden on his religious exercise

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because: (1) the CFM diet appears to be kosher compliant; and (2) Plaintiff has not shown

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how CFM violates Halal restrictions. (ECF No. 75 at 16.) Plaintiff disagrees with Judge

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Baldwin’s first finding. (ECF No. 82 at 25-26.) Moreover, in Plaintiff’s response to the

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Motion, he asserted under penalty of perjury that the CFM violates his sincerely held

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religious beliefs because the meat is not handled by an Islamic representative. (ECF No.

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74 at 14.) However, Plaintiff does not dispute Defendants’ assertion that “Plaintiff was

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placed on a Kosher CFM diet to maintain good order, security and discipline consistent

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with the consideration of costs and limited resources.” (ECF No. 69 at 9 (emphasis added)

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(quoting Cutter v. Wilkinson, 544 U.S. 709, 723, (2005)); see also ECF No. 69-5 at 2-3

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(AR 814.02(2)).) More importantly, Plaintiff does not disagree that these considerations

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constitute a compelling government interest. (ECF No. 69 at 9 (citing to Cutter, 544 U.S.

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at 723); see also ECF No. 82 at 25-26; ECF No. 74 at 11-14.) 42 U.S.C. § 2000cc-1(a)(1)-

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(2) (“No government shall impose a substantial burden on the religious exercise of a

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person . . . unless the government demonstrates that . . . [it] is in furtherance of a

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compelling governmental interest”). As such, the Court will overrule Plaintiff’s Objection

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and grant summary judgment in favor of Defendants on his RLUIPA claim.

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Finally, Judge Baldwin recommends dismissal of the equal protection claim in

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Count III because there is no evidence of discriminatory intent, and complaints concerning

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differential treatment between Muslim and Jewish inmates are insufficient. (Id. at 17-18

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(citing to Hartmann v. California Dep't of Corr. & Rehab., 707 F.3d 1114, 1123 (9th Cir.

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2013) and Thornton v. City of St. Helens, 425 F.3d 1158, 1167 (9th Cir. 2005)).

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Plaintiff objects that Judge Baldwin improperly applied a rational basis test, under

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Turner, 482 U.S. 78, to his Free Exercise and equal protection claims, whereas strict

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scrutiny should have applied instead. (ECF No. 82 at 27.) Plaintiff cites to Johnson v.

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California, 543 U.S. 499, 500 (2005) where the Supreme Court rejected the application of

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Turner to equal protection claims regarding race-based classification in prison. (ECF No.

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82 at 27.) However, Judge Baldwin never applied Turner to Plaintiff’s equal protection

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claim. (See ECF No. 75 at 17-18.) Furthermore, the Ninth Circuit has applied Turner to a

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Free Exercise claim concerning denial of a Muslim inmate’s request for Kosher diet. (ECF

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No. 75 at 13 (citing to Shakur v. Schriro, 514 F.3d 878, 891-92 (9th Cir. 2008)).) As such,

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the Court overrules Plaintiff’s Objection.

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V.

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CONCLUSION
It is therefore ordered that Plaintiff’s Objection (ECF No. 82) is sustained in part

and overruled in part.

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It is further ordered that the Report and Recommendation of Magistrate Judge Carla

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L. Baldwin (ECF No. 75) is accepted in part. Defendant’s motion for summary judgment

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(ECF No. 69) is granted as to Count II and III, but denied as to Count I.

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DATED THIS 2nd day of September 2020.

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MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE

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