Douglas v. Pearlstein et al
Filing
240
OPINION AND ORDER: Defendants' Motion for Summary Judgment 155 is GRANTED, Plaintiff's Motion for Partial Summary Judgment 160 is DENIED, and this action is DISMISSED. Any appeal from this Order or the Judgment dismissing this action would be frivolous or taken in bad faith, and Plaintiff's IFP status is REVOKED. Signed on 9/29/2023 by Judge Ann L. Aiken. (Deposited in outgoing mail to pro se party on 9/29/2023.) (ck)
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
DAMEION DOUGLAS,
Plaintiff,
Case No. 6:18-cv-00533-AA
OPINION AND ORDER
v.
A. PEARLSTEIN; KURUNA
THOMPSON; MELISSA DAVIDSON;
STUART YOUNG; DENNIS HOLMES;
K. SALING; JOHN DOE,
Defendants.
__________________________________
AIKEN, District Judge.
Plaintiff, an adult in custody (AIC) with the Oregon Department of Corrections (ODOC),
filed suit under 42 U.S.C. § 1983 alleging violations of the First and Fourteenth Amendments
and the Religious Land Use and Institutionalized Persons Act (RLUIPA). Now before the Court
are Defendants’ Motion for Summary Judgment and Plaintiff’s Cross-Motion for Partial
Summary Judgment. For the following reasons, Plaintiff’s motion is denied, Defendants’ motion
is granted, and this case is dismissed.
1 - OPINION AND ORDER
DISCUSSION
Plaintiff, an AIC housed at the Oregon State Penitentiary (OSP), is Muslim and a member
of the Nation of Islam (NOI). Plaintiff claims that Chaplains Thompson and Perlstein violated
his rights to religious freedom and equal protection by: 1) failing to provide halal meals prepared
by a third-party vendor; 2) prohibiting NOI members from watching DVD sermons of Louis
Farrakhan, the spiritual leader of NOI; 3) and denying Plaintiff’s requests for accommodations
related to his religious activities. Plaintiff also alleges that Defendants Davidson and Saling
denied him access to the courts and improperly confiscated his personal property. Finally,
Plaintiff alleges that the Defendants took many of these actions in retaliation for Plaintiff’s
complaints and grievances. See generally Am. Compl. (ECF No. 10). 1
To prevail on their respective motions for summary judgment, the parties must show that
there is no genuine dispute as to any material fact and they are entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party
1
The operative complaint in this action is the Verified Amended Complaint filed on June
12, 2018 (ECF No. 10). Pursuant to subsequent rulings, Plaintiff was not allowed to proceed on
Claims 1B, 2B, 3B, 4B, 5B, 6B, 7B, 8B, 9B, and 21, as those claims rely on theories of
supervisory liability. See Order dated July 2, 2019 (ECF No. 74); Minute Order dated Dec. 12,
2019 (ECF No. 94). Plaintiff was also denied leave to add proposed Claims 22 through 37 on
grounds of futility and prejudice. However, Plaintiff was permitted to file a Second Amended
Complaint with proposed Claims 38 and 39. Plaintiff did not do so. Therefore, the pending
claims in this action are Claims 1 through 20, as alleged in the Verified Amended Complaint.
To the extent Claims 1B, 2B, 3B, 4B, 5B, 6B, 7B, 8B, 9B, and 21 remain pending against
Defendants Young, Holmes, and Kelly, Plaintiff cannot defeat summary judgment. Liability
under § 1983 cannot arise from supervisory status, Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.
1989), and for the reasons explained infra, Plaintiff fails to establish a violation of his federal
constitutional rights.
In his Cross-Motion for Partial Summary Judgment, Plaintiff also alleges that ODOC
officials: 1) denied Plaintiff access to written religious sermons in March of 2018; 2) allowed
Sunni AICs a second Eid-al-Fitr feast on July 1, 2018; and 3) allowed Louis Farrakhan DVDs to
be moved from OSP to Mill Creek Correctional Facility in 2019. See Pl.’s Suppl. Mot. for Partial
Summ. J. (ECF No. 160); see also Pl.’s Reply (ECF No 237). These facts occurred well after the
events alleged in the Verified Amended Complaint and are not at issue in this action.
2 - OPINION AND ORDER
must present evidence of record, together with affidavits, if any, that demonstrate the absence of
a genuine issue of material fact. Celotex, 477 U.S. at 323. If the moving party meets this burden,
the burden shifts to the nonmoving party to demonstrate the existence of a genuine issue of fact
for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(internal citation omitted); see Fed. R. Civ. P. 56(c)(1).
The Court must construe the evidence and all reasonable inferences in favor of the
nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 255 (1986). Cross motions
for summary judgment are evaluated separately, with the non-moving party for each motion
given “the benefit of all reasonable inferences.” Am. Civil Liberties Union of Nev. v. City of Las
Vegas, 333 F.3d 1092, 1097 (9th Cir. 2003).
A. Religious Freedom, Equal Protection, and Establishment Clause Claims
1. Standards
An AIC alleging a free exercise claim must show that the action in question substantially
burdened the AIC’s practice of religion. Jones v. Williams, 791 F.3d 1023, 1031 (9th Cir. 2015);
see also Shakur v. Schriro, 514 F.3d 878, 884 (9th Cir. 2008). To constitute an impermissible
burden, the alleged conduct must do more than “inconvenience” a religious exercise; it “must
have a tendency to coerce individuals into acting contrary to their religious beliefs or exert
substantial pressure on an adherent to modify his behavior and to violate his beliefs.” Jones, 791
F.3d at 1031-32 (citations omitted). The AIC need not “objectively show that a central tenet of
his faith is burdened,” because it is the “sincerity of his belief rather than its centrality to his faith
that is relevant to the free exercise inquiry.” Shakur, 514 F.3d at 884. While AICs retain First
Amendment protections, “their rights under the Free Exercise Clause are necessarily limited by
‘institutional objectives and by the loss of freedom concomitant with incarceration.’” Al Saud v.
3 - OPINION AND ORDER
Days, 50 F.4th 705, 714 (9th Cir. 2022) (citation omitted). “To that end, a prisoner’s Free
Exercise Clause claim will fail if the State shows that the challenged action is ‘reasonably related
to legitimate penological interests.’” Walker v. Beard, 789 F.3d 1125, 1138 (9th Cir. 2015)
(quoting Turner v. Safley, 482 U.S. 78, 89 (1987)).
RLUIPA similarly prohibits prison officials from infringing on an AIC’s religious
practices. See Cutter v. Wilkinson, 544 U.S. 709, 721 (2005) (“RLUIPA thus protects
institutionalized persons who are unable freely to attend to their religious needs and are therefore
dependent on the government’s permission and accommodation for exercise of their religion.”).
To establish a RLUIPA claim, a plaintiff must show that the defendant imposed “a substantial
burden on [his] religious exercise.” 42 U.S.C. §§ 2000cc-1(a), 2000cc-2(b); Greene v. Solano
Cty. Jail, 513 F.3d 982, 988 (9th Cir. 2013) (finding that a complete prohibition against a
religious exercise constitutes a substantial burden). If the plaintiff makes this showing, the
burden then shifts to the defendant to prove that the burden imposed “serves a compelling
government interest and is the least restrictive means of achieving that interest.” Shakur, 514
F.3d at 889; 42 U.S.C. §§ 2000cc-1(a), 2000cc-2(b). “Only injunctive relief, not monetary
damages, is available pursuant to RLUIPA, and the claim must be against defendants in their
official capacities.” Al Saud, 50 F.4th at 709; see also Wood v. Yordy, 753 F.3d 899, 904 (9th
Cir. 2014).
Under the Equal Protection Clause, AICs are protected from intentional discrimination
based on their religion. See Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir. 1997) (citing Cruz v.
Beto, 405 U.S. 319, 321-22 (1972)), abrogated on other grounds by Shakur, 514 F.3d at 884-85.
To sustain an equal protection claim, an AIC must present evidence of discriminatory intent. See
Serrano v. Francis, 345 F.3d 1071, 1081-82 (9th Cir. 2003).
4 - OPINION AND ORDER
Finally, the Establishment Clause of the First Amendment “prohibits the enactment of a
law or official policy that ‘establishes a religion or religious faith, or tends to do so.’” Newdow v.
Lefevre, 598 F.3d 638, 643 (9th Cir. 2010) (quoting Lynch v. Donnelly, 465 U.S. 668, 678
(1984)). In the prison context, officials must use neutral criteria when allocating resources to
religious groups to avoid endorsing one religion over another. Hartmann v. Cal. Dep’t. of Corr.
& Rehab., 707 F.3d 1114, 1126 (9th Cir. 2013). A state regulation or practice “does not violate
the Establishment Clause if (1) the enactment has a secular purpose; (2) its principal or primary
effect neither advances nor inhibits religion; and (3) it does not foster an excessive entanglement
with religion.” Collins v. Chandler Unified Sch. Dist., 644 F.2d 759, 762 (9th Cir. 1981).
2. Halal Diet (Claims 1, 6, 7, and 9)
Plaintiff alleges that Chaplain Thompson refused to provide Muslim AICs with halal
meals prepared by a third-party vendor. Plaintiff claims that ODOC provides vendor-supplied
kosher meals to Jewish AICs, and the failure to provide Muslim AICs with “similar” halal meals
substantially burdens the exercise of his religion, violates his right to equal protection, and
constitutes the unlawful establishment of religion. Am. Comp. at 1-2, 17-18, 20.
AICs in ODOC custody have three dietary options: 1) mainline fare; 2) vegetarian trays;
and 3) kosher meals. Young Decl. ¶¶ 5-7, 9. Mainline fare and vegetarian trays are prepared in
ODOC kitchens and served from the mainline. Id. ¶ 7. For AICs who observe a kosher diet,
ODOC purchases prepared, frozen kosher entrees from vendors and supplements those meals
with additional kosher menu items. Id. ¶ 9. ODOC purchases prepared kosher meals because of
the difficulty in maintaining kosher kitchens and limited kitchen space in ODOC facilities. Id.
Muslim AICs who observe a halal diet are provided vegetarian trays, which consist of
rice, beans, vegetables, fruit, bread, and optional dairy items. Id. ¶ 7. Stuart Young, ODOC’s
5 - OPINION AND ORDER
Religious Services Manager, consulted with an Imam and confirmed that ODOC’s vegetarian
tray option conforms with halal requirements. Young Decl. ¶ 12. Muslim AICs may also selfselect food items from the mainline, which includes poultry and fish. Id. ¶¶ 10, 13. According to
Young, these items are prepared and served with properly sanitized cookware, tableware, and
utensils in a manner that avoids contact with pork or alcohol, in compliance with Muslim dietary
requirements. Id. ¶ 13. ODOC also provides Muslim AICs with sack lunches during Ramadan, to
accommodate the needs of fasting, and special meals for the celebrations of Eid al-Fitr and Eid
al-Adha. Id. ¶ 14. Halal products are also available for purchase through the canteen. Id. at ¶ 17.
a. Free Exercise Clause and RLUIPA Analysis
Defendants argue that the undisputed evidence of record set forth above makes clear that
ODOC provides Plaintiff with food items that conform with a halal diet. Defendants thus
contend that Plaintiff cannot show that their refusal to provide vendor-supplied halal meals
infringes on his religious beliefs or imposes a substantial burden in violation of the Free Exercise
Clause or RLUIPA. Jones, 791 F.3d at 1031-32; Shakur, 514 F.3d at 888-89.
In response to Defendants’ motion, Plaintiff argues that the vegetarian meals do not meet
his religious and dietary requirements, because they do not include halal meat and he cannot
otherwise obtain halal meat from mainline or the canteen. 2 In other words, Plaintiff now argues
that the failure to provide halal meat violates his rights to religious freedom. Notably, Plaintiff
did not assert this allegation in his Verified Amended Complaint or in his initial Motion for
Partial Summary Judgment. See Am. Compl. at 1 (alleging that Defendants failed “to institute a
Halal religious diet for Muslim inmates in an Equal fashion as they provide Jewish inmates a
2
Young maintains that the poultry on the mainline is halal compliant; Plaintiff contends
that Young cites no evidence to support that assertion and Plaintiff disputes it. Further, according
to evidence presented by Plaintiff, the halal food items available for purchase do not include
meat, although halal tuna is available as an alternative protein source. Pl.’s Decl. in Opp’n, Exs.
6-7. I do not find these facts to be material and simply note them for the record.
6 - OPINION AND ORDER
Kosher religious diet”); Pl.’s Brief in Support at 12-13, 16 (arguing that Defendants’ “refusal to
implement a Halal Diet in a similar fashion as the Jewish Kosher Diet causes a substantial
burden on my belief” and that Defendants refuse “to give Muslim inmates Halal trays at every
meal from an outside vendor.) (ECF No. 28). 3
Plaintiff also alleged for the first time in his response brief that the vegetarian meals
“irritate” his stomach and cause him to “have gas all day” and “defecate several times a day,”
placing him “in a continuous state of uncleanliness and being impure.” Pl.’s Opp’n to Mot.
Summ. J. at 2 (ECF No. 201). Plaintiff argues that the effects of the vegetarian meals interfere
with his ability to worship, because he “cannot maintain an Islamic state of being pure and
clean,” which he believes is “required.” Id. at 5; see Shakur, 514 F.3d at 885, 889 (finding a
prison’s refusal to provide a Muslim AIC with a kosher meat diet implicated the Free Exercise
Clause and potentially imposed a substantial burden under RLUIPA, when the AIC alleged “that
the gastrointestinal distress caused by the vegetarian diet substantially burdened his religious
activities and required him to find an alternative protein source consistent with Islam”). Again,
Plaintiff did not allege gastrointestinal distress in the Verified Amended Complaint or in
Plaintiff’s initial Motion for Partial Summary Judgment.
Defendants object and argue that, because Plaintiff did not allege these facts in the
operative complaint, he cannot now assert them to defeat summary judgment. I agree.
As noted above, Plaintiff brought these claims and moved for summary judgment on the
specific ground that Defendants refuse to provide Muslim AICs with halal meals in the same
manner that kosher meals are provided to Jewish AICs – through a third-party vendor. See Am.
3
By Order dated March 9, 2022, Plaintiff’s Supplement Motion for Partial Summary
Judgment filed on January 3, 2022 (ECF No. 160) was construed as a Cross-Motion and
Plaintiff’s previously Motion for Partial Summary Judgment (ECF No. 28) was “reinstated” as a
companion brief to that motion. See Minute Order dated March 9, 2022 (ECF No 183).
7 - OPINION AND ORDER
Compl. at 18 (alleging a violation of the Free Exercise Clause arising from the “failure to
provide a Halal diet for me a Muslim inmate in a similar fashion as they provide a Kosher diet
for Jewish inmates”); see also Pl.’s Brief in Support at 11 (arguing that there “is no other
alternative for Muslim inmates to eat a Halal Diet tray[] from an outside vendor at every meal as
Jewish inmates are able to do”). Plaintiff did not allege that discomfort caused by vegetarian
meals substantially burdened his religious practices and left him with the choice of eating nonhalal foods or not eating at all.
Moreover, Plaintiff did not allege that the consumption of halal meat is rooted in a
sincerely held religious belief or that the unavailability of halal meat, or vendor-supplied meals
for that matter, forces him to engage in conduct contrary to his beliefs. Jones, 791 F.3d at 103132 (explaining that substantial burden exists where the AIC is pressured to modify his behavior
and violate his beliefs); Warsoldier v. Woodford, 418 F.3d 989, 995 (9th Cir. 2005) (describing
“a series of punishment designed” to coerce an AIC into violating his religious beliefs).
Plaintiff’s argument raises an entirely new theory of liability, and he cannot rely on it at this
stage of the litigation.
Even if Plaintiff’s newly raised allegations raised a genuine issue of fact as to whether
Defendants substantially burdened a sincerely held religious belief, Defendants are entitled to
qualified immunity.
“Qualified immunity attaches when an official’s conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.”
White v. Pauly, 580 U.S. 73, 78-79 (2017) (per curiam). The asserted constitutional right “must
be sufficiently clear that every reasonable official would have understood that what he is doing
violates that right.” Reichle v. Howards, 566 U.S. 658, 664 (2012) (brackets and quotation marks
8 - OPINION AND ORDER
omitted). Furthermore, “the clearly established right must be defined with specificity,” City of
Escondido v. Emmons, 139 S. Ct. 500, 503 (2019) (per curiam), and “‘particularized’ to the facts
of the case.” White, 580 U.S. at 79. When so applied, qualified immunity “gives government
officials breathing room to make reasonable but mistaken judgments about open legal questions”
and “protects ‘all but the plainly incompetent or those who knowingly violate the law.’” Ashcroft
v. al-Kidd, 563 U.S. 731, 743 (2011) (citation omitted).
Plaintiff cites no clearly established right that requires prison officials to provide halal
meat or meals supplied by third-party vendors. In fact, courts have held that “[p]risoners have no
right to any particular quantum of meat in their diets,” even religious diets. Fonseca v. Cal. Dep’t
of Corr. & Rehab., 2015 WL 4172194, at *4 (S.D. Cal. July 10, 2015) (serving fish more often
than beef did not substantially burden the plaintiff’s sincerely held religious beliefs); see also
Shoemaker v. Williams, 2013 WL 528306, at *2 (D. Or. Feb. 11, 2013) (rejecting an AIC’s claim
that a meat-free halal diet infringed on his religious rights when the plaintiff did not show that
“his religion requires the consumption of meat” or caused him to modify his behavior).
Further, Plaintiff does not assert that he told Defendants of his gastrointestinal distress
and requested alternative food items on that basis. Instead, Plaintiff complained about the
appearance and quality of vegetarian items, particularly cooked beans. Pl.’s Decl. in Opp’n Exs.
28-32 (ECF No. 202). In these circumstances, a reasonable prison official would not have known
that providing halal compliant vegetarian meals violated a clearly established federal right.
b. Equal Protection Clause Analysis
As explained above, ODOC provides Muslim inmates with meals and food items that
comply with halal requirements. Further, Plaintiff presents no evidence plausibly suggesting that
ODOC’s failure to provide vendor halal meals evinces an intent to discriminate against Plaintiff
9 - OPINION AND ORDER
because of his faith. Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013). Granted, an AIC
is entitled “to ‘a reasonable opportunity of pursuing his faith comparable to the opportunity
afforded fellow prisoners who adhere to conventional religious precepts.’” Shakur, 514 F.3d at
891 (quoting Cruz, 405 U.S. at 322). However, “reasonable opportunities,” are not the same as
“identical” treatment. Cruz, 405 U.S. at 322, n.2. Equal protection does not require ODOC to
obtain halal meals or meats from a vendor simply because it obtains kosher meals in that manner.
See Hartmann, 707 F.3d at 1124.
c. Establishment Clause Analysis
For the same reasons, Plaintiff cannot sustain a claim under the Establishment Clause.
ODOC provides foods items to ensure that Muslim AICs have a halal diet, and its dietary
accommodations to meet other religious groups’ needs do not advance or inhibit religion or
foster an excessive entanglement with religion.
3. NOI Sermons
Plaintiff alleges that Chaplain Thompson prohibits him and other NOI members from
watching videorecorded sermons of Louis Farrakhan during their weekly Jumma prayer services.
Instead, they are given Farrakhan’s written materials to read and use. Plaintiff claims that this
prohibition substantially burdens the practice of his religion in violation of RLUIPA and the Free
Exercise and Establishment Clauses.
ODOC requires literature and videos from outside sources to be screened for security
reasons and to prevent “inflammatory” materials from coming into prison facilities. Young Decl.
¶ 20. Inflammatory materials are those “deemed by [ODOC] to constitute a direct and immediate
threat to the security, safety, health, good order, or discipline of the facility because it incites or
advocates physical violence against others.” Or. Admin. R. 291-131-0010(11). Defendants claim
10 - OPINION AND ORDER
that Louis Farrakhan has made “inflammatory statements and public calls to violence,” and OSP
chaplains will not provide his sermons to AICs without prior review. See Young Decl. ¶ 21 &
Ex. 1 at 3.
According to Defendants, “ODOC’s chaplains do not have the bandwidth to perform
reviews of all of Louis Farrakhan’s video sermons, which are around two hours per sermon.” Id.
¶ 22. Chaplains instead review Louis Farrakhan’s written materials, because “[w]ritten materials
are more efficient for chaplains to review without interfering with their other chaplaincy
obligations.” Id. ¶¶ 22-23. Once approved, the written materials are provided to NOI AICs for
their Friday Jumma prayer groups. Id. ¶ 24. Defendants maintain that ODOC Religious Services
takes the same approach for all religious groups. Id. at ¶ 25. According to Defendants, no
religious faith group regularly receives videotaped sermons due to the time required to review
videotaped materials and they are instead provided with written materials. Id.
a. Free Exercise Clause and RLUIPA Analysis
Defendants argue that the evidence of record fails to show a substantial burden on
Plaintiff’s exercise of religion arising from the prohibition against viewing Louis Farrakhan
DVDs. In response, Plaintiff vehemently disputes Defendants’ contention that OSP chaplains
lack the “bandwidth” to review the DVDs and argues that it is nonsensical to prohibit NOI
members from viewing DVD sermons if chaplains have approved a written transcript of the very
same sermon. See Pl.’s Opp’n to Mot. Summ. J. at 21, 24. 4 Plaintiff also contends that other
religious groups are regularly allowed to view DVD sermons and lessons. Id. at 23-26.
These disputed facts are not material and do not preclude summary judgment when
Plaintiff fails to meet his initial burden of showing that the general prohibition against viewing
4
The record is unclear whether Louis Farrakhan’s written materials reviewed by OSP
chaplains are verbatim transcripts from his DVD sermons.
11 - OPINION AND ORDER
Louis Farrakhan DVDs substantially burdens the exercise of his religious practices. In support of
his claim, Plaintiff argues that “Farrakhan’s guidance and religious instructions in his sermons
helps [Plaintiff] maintain and grow spiritually.” Pl.’s Mot. in Support at 7. However, the written
materials also provide Farrakhan’s “guidance and religious instructions,” and Plaintiff does not
explain how viewing the DVDs is rooted in a religious belief or mandated by his religion.
Further, no evidence suggests that the prohibition on viewing DVD sermons coerces
Plaintiff to forego sincerely held religious beliefs or to engage in conduct that violates those
beliefs. See id. at 22 (discussing the substantial burden requirement); Pl.’s Mot. in Support at 24; Jones, 791 F.3d at 1032. Louis Farrakhan teachings are not banned outright, and written
materials are provided for use during weekly NOI prayer services. Accordingly, Plaintiff cannot
establish an RLUIPA or Free Exercise claim arising from the decision to provide NOI members
with Farrakhan’s written materials.
At minimum, Defendants are entitled to qualified immunity. Plaintiff cites no caselaw,
and the Court is aware of none, holding that AICs possess a clearly established right to view
videorecorded sermons of religious leaders despite the availability of written materials. See City
of Escondido, 139 S. Ct. at 503 (reiterating that “the clearly established right must be defined
with specificity”).
b. Establishment Clause Analysis
Likewise, Plaintiff cannot sustain a claim under the Establishment Clause. Plaintiff and
NOI members have access to written Farrakhan materials and participate in prayer services.
Plaintiff presents no persuasive evidence that ODOC failed to employ neutral criteria or that the
prohibition on DVD sermons condones or inhibit the practice of a certain religion. See
Hartmann, 707 F.3d at 1126.
12 - OPINION AND ORDER
4. Participation in Chapel (Claims 2, 3, 10, 11, and 20)
Plaintiff alleges that Chaplain Perlstein refused to ask an outside volunteer to assist with
an NOI event and denied him access to the chapel after Plaintiff asked to speak with him.
Plaintiff also claims that Chaplain Thompson failed to add him to the call-out list for the Eid
prayer, causing him to miss the yearly event. Plaintiff contends that Defendants’ actions violated
his rights under the Equal Protection and Establishment Clauses and constituted unlawful
retaliation.
a. Establishment Clause Analysis
On July 2, 2017, at 1:00 p.m., Plaintiff asked Chaplain Perlstein to arrange for an outside
NOI volunteer to attend the Eid Feast scheduled for 5:30 p.m. that day. Young Decl. Ex. 3 at 7.
Chaplain Perlstein denied Plaintiff’s request because the request was untimely, and Chaplain
Perlstein was not the supervising chaplain for the NOI group. Id. ¶ 38 & Ex. 3 at 6. As of
November 2016, Chaplain Stahlnecker had been responsible for addressing the needs of the NOI
faith group. Id. at ¶ 30. Nonetheless, Plaintiff contends that Chaplain Perlstein violated his rights
under the Establishment Clause. I disagree.
These facts, when construed in Plaintiff’s favor, raise no plausible inference that
Chaplain Perlstein officially condoned a particular religion or religious belief at the time he
denied Plaintiff’s last-minute request for an outside religious volunteer.
b. Equal Protection Clause Analysis
Plaintiff also alleges that Chaplain Thompson failed to add his name to the Eid prayer
call out list on September 1, 2017 and that Chaplain Perlstein denied Plaintiff’s request to visit
the chapel on September 17, 2017 and inform Chaplain Perlstein that another AIC wanted to
attend a religious feast. Plaintiff alleges that these actions violated his right to equal protection.
13 - OPINION AND ORDER
Plaintiff cannot establish a violation of his equal protection rights on these facts. Plaintiff
admits that he did not personally ask Chaplain Thompson to add him to the call out list on
September 1, 2017. Rather, Plaintiff claims that “Sunni brother Deniz Aydiner wrote Thompson
a kyte requesting that all Sunni and NOI Muslims be added to the Eid prayer call-out.” Am.
Compl. at 4. Moreover, Chaplain Thompson was not in charge of scheduling NOI activities at
that time; as Chaplain Perlstein informed Plaintiff in response to a grievance, Chaplain
Stahlnecker was responsible for scheduling NOI events. Young Decl. ¶¶ 30, 39 & Ex. 3 at 6.
These facts do not plausible suggest religious discriminatory intent on the part of Chaplain
Thompson.
Likewise, the undisputed facts do not raise an inference that Chaplain Perlstein
discriminated against Plaintiff due to his religion. On September 17, 2017, Plaintiff asked Sgt.
Bowden to call Chaplain Perlstein and request permission for Plaintiff to speak with him about
an AIC who wished to attend the Eid feast later that evening. Young Decl. ¶ 16. According to
Plaintiff, Chaplain Perlstein told Sgt. Bowden that Plaintiff would not be granted permission to
go to the chapel because Plaintiff had filed a grievance against him. Chaplain Perlstein avers that
he denied Plaintiff’s request because it was made at the last minute and Plaintiff should have
directed the request to the supervising chaplain for the NOI group. Id. ¶ 42 & Ex. 4 at 8.
This evidence reflects no intent to discriminate against Plaintiff or treat him differently
because of his religion. In fact, Plaintiff’s own allegations do not assert discriminatory intent but
instead claim only retaliation. See Am. Compl. at 6.
c. First Amendment Retaliation Analysis
As noted, Plaintiff alleges that Chaplains Thompson and Perlstein unlawfully retaliated
against him on September 1 and 17, 2017, because of his prior grievances.
14 - OPINION AND ORDER
To state a viable claim of First Amendment retaliation, a plaintiff must allege five basic
elements: “(1) An assertion that a state actor took some adverse action against an inmate (2)
because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s
exercise of his First Amendment rights, and (5) the action did not reasonably advance a
legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005)
(footnote omitted). Plaintiff fails to establish these elements.
First, Plaintiff fails to establish that either chaplain took adverse action against him,
action that must cause more than “minimal” harm. Id. at 567-69 & n.11. Chaplain Thompson
was not in charge of call outs for the NOI group, and Plaintiff presents no evidence that she
received a request to place Plaintiff on the list and intentionally ignored it. Plaintiff also fails to
show that Chaplain Perlstein’s denial of Plaintiff’s request to visit the chapel was adverse;
Plaintiff alleges no harm that arose from the denial. Second, Plaintiff fails to present any
admissible evidence showing that either chaplain denied the requests “because of” Plaintiff’s
protected conduct. Instead, Plaintiff relies on speculation and hearsay statements. Finally,
Plaintiff fails to show that Defendants’ conduct failed to advance legitimate correctional goals,
given that Plaintiff’s requests should have been directed to the chaplain overseeing NOI
activities.
In sum, Plaintiff fails to show that Chaplains Thompson and Perlstein violated his rights
under the First and Fourteenth Amendments.
B. Law Library Claims (Claims 12 through 17)
Plaintiff next alleges that on January 19, 2017, he was in the OSP law library and asked
Defendant Davidson to make copies of documents to support a Notice of Appeal and an
Application for Leave to Proceed in Forma Pauperis he was required to file with the Ninth
15 - OPINION AND ORDER
Circuit. Ms. Davidson denied his request, and Plaintiff alleges that her refusal caused him to miss
the Notice of Appeal deadline of deadline of January 19, 2017. Plaintiff further alleges that on
January 30, 2017, he asked Ms. Davidson to make addition copies in an unrelated case. Ms.
Davidson again refused to make copies for Plaintiff and allegedly caused him to miss the January
30, 2017 deadline in that case. 5 Plaintiff alleges that Ms. Davidson’s refusals denied him access
to the courts and constituted unlawful retaliation in violation of the First Amendment. 6
a. Access to the Courts Analysis
To state a denial of access to the courts, a plaintiff must allege facts giving rise to a
reasonable inference that he suffered an actual injury to contemplated or existing litigation.
Lewis v. Casey, 518 U.S. 343, 351 (1996); Nevada Dep’t of Corr. v. Greene, 648 F.3d 1014,
1018 (9th Cir. 2011) (explaining that actual injury requires prejudice, “such as the inability to
meet a filing deadline or to present a claim”). Further, “the underlying cause of action and its lost
remedy must be addressed by allegations in the complaint,” and “be described well enough to
apply the ‘nonfrivolous’ test and to show that the ‘arguable’ nature of the underlying claim is
more than hope.” Christopher v. Harbury, 536 U.S. 403, 416 (2002); see also Rogers v.
Giurbino, 625 Fed. App’x 779, 782 (9th Cir. Aug. 31, 2015) (affirming dismissal of access to the
courts claim for failure to allege an arguably meritorious “lost” cause of action).
Plaintiff fails to present evidence of actual injury to a nonfrivolous cause of action.
Plaintiff does not provide sufficient facts about either underlying action to show that they had
5
OSP is not a participant in the state or federal courts’ electronic filing programs and
self-represented AICs must file all legal work by mail. Polk Decl. ¶ 9. Under the mailbox rule,
documents are deemed filed the day the document is given to prison officials for mailing.
Houston v. Lack, 487 U.S. 266, 276 (1988).
6
Plaintiff also alleges that Ms. Davidson’s refusal to provide copies on January 19 and
30, 2017 violated his rights to equal protection. Plaintiff presents no facts that remotely implicate
the Equal Protection Clause and summary judgment is granted on these claims without further
discussion. See Am. Compl. at 22-25; Pl.’s Decl. in Opp’n at 18-19.
16 - OPINION AND ORDER
merit and were not frivolous. In fact, the Notice of Appeal related to Case No. 6:14-cv-01285AA, and there, this Court found that “any appeal from the order granting defendants’ motion for
summary judgment would be frivolous and not made in good faith.” Douglas v. Cruz, et al., Case
No. 6:14-cv-01285-AA (ECF Nos. 52, 65). Thus, Plaintiff fails to present evidence that he
suffered actual prejudice to non-frivolous claim because of Ms. Davidson’s actions, and he
cannot defeat summary judgment.
b. First Amendment Retaliation Analysis
Plaintiff also fails to raise a plausible inference of retaliation by Ms. Davidson. Plaintiff
alleges and the evidence reflects that Ms. Davidson denied his copy requests because she felt
they were untimely and voluminous, and because Plaintiff did not present a court order
establishing a deadline for the requested documents. Am. Compl. 22-23; Pl.’s Decl. in Opp’n at
18-19; Polk Decl. Ex. 1 at 9. Plaintiff presents no evidence suggesting that Ms. Davidson took
adverse action “because of” Plaintiff’s protected complaints and grievances.
C. Loss of Property (Claims 18 and 19)
Finally, Plaintiff alleges that Officer Saling improperly confiscated “2 Big Bags of
Supplement Powders” after Plaintiff was sent to the disciplinary segregation unit (DSU) on June
5, 2016. Am. Compl. at 25-26. Plaintiff contends that Officer Saling deprived him of a property
interest and did so in retaliation for Plaintiff’s grievances. Officer Saling maintains that he did
not collect Plaintiff’s property and only inventoried it after Plaintiff was sent to DSU, and he did
not see the supplements. Saling Decl. ¶¶ 5-6, 8.
Plaintiff fails to establish a retaliation claim against Saling, as Plaintiff presents no
evidence plausibly suggesting that Saling knew of Plaintiff’s grievances and took adverse action
against Plaintiff because of them.
17 - OPINION AND ORDER
Plaintiff also fails to establish a § 1983 claim arising from the unlawful confiscation of
his property. Generally, the deprivation of a protected property interest requires a meaningful
opportunity to be heard at a meaningful time. Zinermon v. Burch, 494 U.S. 113, 126-27 (1990).
When a state official’s deprivation of property is authorized by established state procedures,
regulations, or statutes, a pre-deprivation hearing is typically required. See id. at 127, 132; Piatt
v. MacDougall, 773 F.2d 1032, 1036 (9th Cir. 1985). However, when the alleged deprivation of
property arises from an unauthorized action by a prison official, whether intentional or negligent,
the Supreme Court “has held that a statutory provision for a postdeprivation hearing, or a
common-law tort remedy for erroneous deprivation, satisfies due process.” Zinermon, 494 U.S.
at 128; see Hudson v. Palmer, 468 U.S. 511, 533 (1984); Barnett v. Centoni, 31 F.3d 813, 816
(9th Cir. 1994) (per curiam).
Plaintiff does not allege that the confiscation of his property was authorized by Oregon
law or carried out in accordance with an established ODOC procedure. Instead, Plaintiff alleges
that Officer Saling confiscated his property for retaliatory purposes. Based on these allegations,
the Oregon Tort Claims Act provides Plaintiff with an adequate post-deprivation remedy for the
alleged confiscation of his property and satisfies his right to procedural due process. Gutierrez v.
Williams, 505 Fed. App’x 659, 660 (9th Cir. Jan. 17, 2013) (citing Or. Rev. Stat. § 30.260).
Finally, Plaintiff cannot pursue a state law claim for conversion in this Court. The sole
cause of action under Oregon law for any tort of ODOC officers or employees acting within the
scope of their employment or duties, as alleged here, is an action against ODOC under the
Oregon Tort Claims Act. Or. Rev. Stat. § 30.265(1). However, ODOC is an arm of the State and
is immune from suit in federal court for pendent state law claims. Pena v. Gardner, 976 F.2d
469, 474 (9th Cir. 1992). Accordingly, Plaintiff cannot defeat summary judgment.
18 - OPINION AND ORDER
CONCLUSION
Defendants’ Motion for Summary Judgment (ECF No. 155) is GRANTED, Plaintiff’s
Motion for Partial Summary Judgment (ECF No. 160) is DENIED, and this action is
DISMISSED. Any appeal from this Order or the Judgment dismissing this action would be
frivolous or taken in bad faith, and Plaintiff’s IFP status is REVOKED.
IT IS SO ORDERED.
DATED this 29th
____ day of September, 2023.
__________________________
/s/Ann Aiken
ANN AIKEN
United States District Judge
19 - OPINION AND ORDER
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