Free Motion to Dismiss - District Court of California - California

Case 3:07-cv-02928-JSW

Document 26

Filed 06/23/2008

Page 1 of 34

1 EDMUND G. BROWN JR. Attorney General of the State ofCalifomia 2 DAVID S. CHANEY Chief Assistant Attorney General 3 FRANCEST.GRUNDER Senior Assistant Attorney General 4 MICHAEL W. JORGENSON Supervising Deputy Attorney General 5 LISA SCIANDRA, State Bar No. 246532 Deputy Attorney General 6 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 7 Telephone: (415) 703-5846 Fax: (415) 703-5480 8 Email: [email protected] 9 Attorneys for Defendants Curry, Chudy, Hill, Hedrick, Raghunath, Grannis, Aboytes, and Klein11 10
11

IN THE UNITED STATES DISTRICT COURT 12 FOR THE NORTHERN DISTRICT OF CALIFORNIA 13 SAN FRANCISCO DIVISION 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
1. To the best knowledge ofthe Attorney General's Office, Defendant Jannah has not been

RONALD BRATTON, Plaintiff,

Case No. C 07-2928 JSW

v.
BEN CURRY, et at, Defendants.

NOTICE OF MOTIONS AND MOTIONS TO DISMISS AND FOR SUMMARY JUDGMENT

served. Accordingly, the Attorney General's Office makes no appearance on his behalf.

Case 3:07-cv-02928-JSW

Document 26

Filed 06/23/2008

Page 2 of 34

1 2

TABLE OF CONTENTS Page
2 2

3 MEMORANDUM OF POINTS AND AUTHORITIES
4

PROCEDURAL BACKGROUND SUMMARY OF ARGUMENT

5

3 3
4

6 ISSUE STATEMENT

7 STATEMENT OF FACTS 8 ARGUMENT
9 10 11 12 I. PLAINTIFF'S EIGHTH AMENDMENT AND SUPPLEMENTAL CLAIMS SHOULD BE DISMISSED FOR FAlLURE TO EXHAUST ADMINISTRATIVE REMEDIES.

6

6
6

A. B.

Under the PLRA Inmates Must Exhaust Available Administrative Remedies. ~ Plaintiff s Administrative Appeals. Plaintiff Failed to Exhaust the Appeal Concerning His Eighth Amendment Claim. 1. 2. Plaintiff Failed to Follow Instructions from the Appeals Coordinator to Challenge a Screen-Out. Plaintiff Failed to Exhaust His Appeal Through the Requisite Third Level of Review.

7
7 8 9

13
C.

14 15 16

17
18 19 20 21 22 23 II. D.

Plaintiff Could Not Possibly Have Exhausted His Supplemental Claim Before He Filed this Action Because the Allegations in the Supplemental Claim Occurred After Plaintiff Filed this Action.

9 10 10

DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT.

A. B.

Legal Standard for Summary Judgment. Plaintiff s Eighth Amendment Claim Fails Because CDCR's Religious Vegetarian Diet Has Not Had Any Adverse Effects on His Health and it is Adequate to Maintain His Health. 1. Defendants Were Not Deliberately Indifferent to Plaintiffs Serious Medical Needs Because CDCR's Religious Vegetarian Diet Has Not Had Any Adverse Effects on Plaintiffs Health. . a. Plaintiffs Medical Records Show that He Does Not Have an Objectively Serious Medical Need to Eat Meat and that Defendants' Alleged Indifference Did Not Harm Him.

11

24
25

11

26
27 28

12

Not. of Motions & Motions to Dismiss & Summ. J.
1

R. Bratton v. B. Curry, et al. e 07-2928 JSW

Case 3:07-cv-02928-JSW

Document 26

Filed 06/23/2008

Page 3 of 34

TABLE OF CONTENTS (continued)
1

Page

2

1.
,2.

Plaintiffs Blood Tests Show He Does Not Have Any Nutritional Deficiencies and that His CLL is Stable.

12
13 13

4

CDCR's Religious Vegetarian Diet Does Not Violate the Eighth Amendment Because it is Adequate to Maintain Health. a. b. CDCR's, Religious Vegetarian Diet Exceeds Minimum Nutritional Requirements. CDCR's Religious Vegetarian Diet is Adequate to Maintain Plaintiffs Health.

5

6

7 8
9

14

'c.

Plaintiffs RLUIPA Claim Fails Because He Fails to Meet His Burden of Proofto Demonstrate Prima Facie Evidence of a "Substantial Burden" on His Religious Exercise.

14 15 15

10
11

1.

Plaintiff Fails to Meet His Burden of Proof that a Vegetarian Diet Constitutes a Substantial Burden on His Religious Exercise. a. b. Plaintiff Fails to Demonstrate Any Burden on His Religious Exercise.

12
13

14 15 16 c.

Plaintiff Fails to Demonstrate that the Religious Vegetarian Diet Has Any Adverse Health Effects that Substantially Burden His Religious Exercise. 16 CDCR's Religious Diet Program Does Not Intentionally Put Significant Pressure on Plaintiff to Abandon His Religious Beliefs. 16

17
18 19 20 3. 2. CDCR Has a Compelling Governmental Interest in Saving the Prohibitive Expense of Providing Jewish Kosher Meals to Muslim Inmates. CDCR's Religious Vegetarian Dietis the Least Restrictive Alternative to Accommodate Muslim Inmates.

17
18

21

'D.

22
23 24 25
26

Plaintiffs Equal Protection Claim Fails Because CDCR's Religious Diet Program is Reasonably Related to Legitimate Penological Interests. 19 1. 2. 3. CDCR Has a Valid, Rational Connection Between its Religious Diet Program and its Legitimate Governmental Interests 19

PlaintiffDoes Not Allege that He Lacks Alternative Means to Practice His Religion. 20 Providing Jewish Kosher Meals to Over Five Thousand Muslim Inmates Would Have a Substantial Impact on the Allocation of Prison Resources: '

27 28

, 20

Not. of Motions & Motions to Dismiss & Summ. J.
11

R. Bratton v. B. Curry, et at.
C 07-2928 JSW

Case 3:07-cv-02928-JSW

Document 26

Filed 06/23/2008

Page 4 of 34

TABLE OF CONTENTS (continued)
1

Page

2
3 4
5

E.

Plaintiff Fails to State Any Claim Against Defendants Curry or Hill Because there is No Respondeat Superior or Vicarious Liability Under 42 U.S.C. § 1983.

21

F.

6 7
8

Plaintiff Fails to State a Claim Against Defendants Grannis or Aboytes for their Handling of Inmate Appeals Because There is No Constitutional Right to a Prison Grievance System. 21 22

III. DEFENDANTS ARE ENTITLED TO QUALIFIED IMMUNITY.
A.

Defendants are Entitled to Qualified Immunity Because Plaintiff Failed to Show Defendants' Actions Violated a Constitutional Right. 23 Defendants are Entitled to Qualified Immunity Because It Would Not Have Been Clear to Reasonable Officials that the Conduct at Issue was Unlawful.

9 10
11

B.

23 24

CONCLUSION

12
13

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Not. of Motions & Motions to Dismiss & Summ. J.
111

R. Bratton v. B. Curry, et al.

e 07-2928 JSW

-~_._~._--_._-----

----

Case 3:07-cv-02928-JSW

Document 26

Filed 06/23/2008

Page 5 of 34

TABLE OF AUTHORITIES Page

10

22 22
10

23
)

18

19 10
11

11,12
10

22,23
13

23 12
6,7,9
R. Bratton v. B. Curry, et al. e 07-2928 JSW

Case 3:07-cv-02928-JSW

Document 26

Filed 06/23/2008

Page 6 of 34

TABLE OF AUTHORITIES (continued)
1 2

Page
11, 13 13 22
11

Keenan v. Hall 83 F.3d 1083 (9th Cir. 1996) 3 LaMaire v. Maass 12 F.3d 1444 (9th Cir. 1993)

4 5

Mann v. Adams 855 F.2d 639 (9th Cir. 1988) 6 McGuckin v. Smith 974F.2d 1050 (9th Cir. 1992) McKinney v. Carey 311 F.3d 1198 (9th Cir. 2002) Monell v. Dep 't ofSocial Services 436 U.S. 658 (1978)

7 8 9 10
11

6,9, 10 21 20 21 6 22 19 10 22,23 15, 16, 18, 19 22 10 21

o 'Lone v. Estate ofShabazz 12 482 U.S. 342 (1987)
13 14

Palmer v. Sanderson 9 F.3d 1433 (9th Cir. 1993)

Porter v. Nussle 534 U.S. 516 (2002) 15
16 17 18 19 20 21 22 23 24 25 26 27 28
Not. of Motions & Motions to Dismiss & Summ. J.

Ramirez v. Galaza 334 F3d 850 (9th Cir. 2003) Resnick v. Adams 348 F.3d 763 (9th Cir. 2003) Ruffin v. County ofLos Angeles 607 F.2d 1276 (9th Cir. 1979) . Saucier v. Katz 533 U.S. 194 (2001) Shakur v. Schriro 514 F.3d 878 (9th Cir. 2008) Smith v. Nonan 992 F.2d 987 (9th Cir. 1993) Stecki v. Motorola, Inc. 703 F.2d 392 (9th Cir. 1983) Taylor v. List 880 F.2d 1040 (9th Cir. 1989)

R. Bratton v. B. Curry, et at. C 07-2928 JSW

Case 3:07-cv-02928-JSW

Document 26

Filed 06/23/2008

Page 7 of 34

TABLE OF AUTHORITIES (continued)
1

Page 12 19-21 9, 10 15-19 11
6

2 Toguchiv. Chung 3 391 F.3d 1051 (9th Cir. 2004) Turner v. Safley 4 482 U.S. 78 (1987) 5 Vaden v. Summerhill 6 449 F.3d 1047 (9th Cir. 2006) Warsoldier v. Woodford 7 418 F.3d 989 (9th Cir. 2005)
8 WMX Techs., Inc. v. Miller 9 104 F.3d 1133 (9th Cir.. 1997)

Woodford v. Ngo 10 126 S. Ct. 2378 (2006)
11

Wyatt v. Terhune 12 315 F.3d 1108 (9th Cir. 2003)

2,6

13 Constitutional Provisions 14 United States Constitution Eighth Amendment 15 16 Statutes 17 United States Code, Title 28 § 1915A 18 19 United State Code, Title 42 § 200cc-1 § 1983 . 20 § 1997e(a) § 2000cc-1(a) 21 § 2000cc-2(b) § 2000cc-5(7)(A) 2-4,6,7,11-14,24

2
2 2,21,22 6,9,10 14 16 15

22

23 Court Rules 24 25 26 27 28
Not. of Motions & Motions to Dismiss & Summ. J.
VI

Rule 12(b) Rule 56 Rule 56(c)

1, 6 2 10

R. Bratton v. B. Curry, et al. e 07-2928 JSW

Case 3:07-cv-02928-JSW

Document 26

Filed 06/23/2008

Page 8 of 34

TABLE OF AUTHORITIES (continued)
1 2 3 4 5 6 7 8 9 10 California Code Regulations, Title 15 §§ 3054-3054.4 § 3054(a) § 3054.3(b)(I) § 3084.1(a) § 3084.2 § 3084.2(c) § 3084.3(d) § 3084.5 § 3084.5(d) \ § 3084.5(e)(2) § 3084.6(c) § 321O(a)
12~ 17 17, 19 17 8,9 8 8 8 8 9 8,9 8 20

Page Other Authorities

11 Prison Litigation Reform Act (PLRA) 12 Religious Land Use and Institutionalized Persons Act (RLUIPA)
13

2,3,6,9, 10,24 2-4, 14-17, 19,24

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Not. of Motions & Motions to Dismiss & Summ. J.
Vll

R. Bratton v. B. Curry, et al. e 07-2928 JSW

Case 3:07-cv-02928-JSW

Document 26

Filed 06/23/2008

Page 9 of 34

1 EDMUND G. BROWN JR. Attorney General of the State of California 2 DAVID S. CHANEY Chief Assistant Attorney General 3 FRANCEST.GRUNDER Senior Assistant Attorney General 4 MICHAEL W. JORGENSON Supervising Deputy Attorney General 5 LISA SCIANDRA, State Bar No. 246532 Deputy Attorney General 6 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 7 Telephone: (415) 703-5846 Fax: (415) 703-5480 8 Email: [email protected] 9 Attorneys for Defendants Curry, Chudy, Hill, Hedrick, Raghunath, Grannis, Aboytes, and Kleinl! 10
11

IN THE UNITED STATES DISTRICT COURT 12 FOR THE NORTHERN DISTRICT OF CALIFORNIA
13

SAN FRANCISCO DIVISION 14 15 16 17 18 19 20 21 22 23 TO PLAINTIFF RONALD BRATTON, PRO SE: PLEASE TAKE NOTICE that Defendants Curry, Chudy, Hill, Hedrick, Raghunath, Grannis, Aboytes and Klein (Defendants) move the Court to 'dismiss this action under the nonv.
BEN CURRY, et aI.,

RONALD BRATTON, Plaintiff,

Case No. C 07-2928 JSW NOTICE OF MOTIONS AND MOTIONS TO DISMISS AND FOR SUMMARY JUDGMENT

Defendants.

24 enumerated portion of Rule 12(b) of the Federal Rules of Civil Procedure because Plaintiff 25 Ronald Bratton (Plaintiff) failed to exhaust his administrative remedies before filing this action, 26 27 1. To the best knowledge of the Attorney General's Office, Defendant Jannah has not been 28 served. Accordingly, the Attorney General's Office makes no appearance on his behalf.
Not. of Motions & Motions to Dismiss & Summ. J.

R. Bratton v. B. Curry, et al. e 07-2928 JSW

1

Case 3:07-cv-02928-JSW

Document 26

Filed 06/23/2008

Page 10 of 34

1 as required by the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a). P1aintiffmay 2 provide evidence to the Court to dispute the evidence Defendants present. Wyatt v. Terhune, 315 3 F.3d 1108, 1119-20 n.14 (9th Cir. 2003). 4 PLEASE TAKE FURTHER NOTICE that under Rule 56 of the Federal Rules of Civil

5 Procedure, Defendants move this Court for summary judgment on the grounds that there are no 6 genuine issues of material fact, that Defendants are entitled to judgment as a matter oflaw, and 7 that Defendants are entitled to qualified immunity. 8 This motion is based on this Notice, the following Memorandum of Points and

9 Authorities, the declarations and exhibits filed in support of this motion and the pleadings and 10 records on file with the Court in this action. 11 12 13
MEMORANDUM OF POINTS AND AUTHORITIES PROCEDURAL BACKGROUND

Plaintiff, a state prisoner incarcerated in the California Department of Corrections and

14 Rehabilitation (CDCR) filed this action under 42 U.S.C. § 1983. He alleges that Defendants 15 have given him a religious vegetarian diet instead of a Jewish kosher diet in violation of his 16 constitutional rights and the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 17 U.S.C. § 200cc-1. (2d Am. CompI., Docket 18 2.) 19 This Court screened Plaintiffs Second Amended Complaint under 28 U.S.C. § 1915A
No.~5,

at 4-12; Order of Service, Docket No.8, at 1-

20 and recognized the following claims against Defendants Raghunath, Hedrick, Klein, Curry, Hill, 21 Jannah, Chudy, Aboytes, and Grannis: (1) claims under the Eighth Amendment for the 22 deprivation of a diet including meat that complies with his religious dietary restrictions and 23 meets his nutritional needs for his health condition (Docket No.8 at 4:16-20); (2) a claim under 24 RLUIPA for failure to provide halal meat (Id. at 6:16-18); and (3) an Equal Protection claim for 25 failure to provide a halal diet including meat to Muslims, while providing a Jewish kosher diet to 26 observant Jews (Id. at 6:1-3). 27 The Court dismissed Plaintiffs claims regarding Free Exercise, inmate appeals, dental

28 care, provision of glasses and prescription medication, work assignments, interference with
Not. of Motions & Motions to Dismiss & Summ. 1.

R. Bratton v. B. Curry, et al. e 07-2928 JSW

2

Case 3:07-cv-02928-JSW

Document 26

Filed 06/23/2008

Page 11 of 34

1 parole, and mental health care. (Id. at 5:13-19; 7:20-24; 8:7-11.) Additionally, the Court 2 dismissed the State of California and CDCR as defendants, along with all other named 3 defendants. (Id. at 8:26-9:1; 9:8-13.)
I

4

The CoJrt later granted Plaintiffs motion to add a supplemental claim concerning a

5 change in his classification status that occurred after Plaintiff filed this action. (See Docket Nos. 6 7 14, 16,21.) Defendants now move this Court to dismiss Plaintiff s Eighth Amendment claim and his

8 supplemental claim for failure to exhaust administrative remedies as required under the PLRA, 9 and because Defendants are entitled to judgment as a matter of law and qualified immunity on all

10 claims.

11
12

SUMMARY OF ARGUMENT
Plaintiffs Eighth Amendment and supplemental claims should be dismissed for failure to

13 exhaust his administrative remedies under the PLRA. Defendants are also entitled to summary 14 judgement on Plaintiffs Eighth Amendment, RLUIPA, and Equal Protection claims for these , . 15 reasons: (1) Plaintiffs Eighth Amendment claims fail because CDCR's religious vegetarian diet 16 has not had any adverse effects on his health and it is adequate to maintain his health; (2) 17 Plaintiffs RLUIP A claim fails because he fails to meet his burden of proof to demonstrate prima 18 facie evidence of a "substantial burden" on his religious exercise; and (3) Plaintiff s Equal 19 Protection claim fails because CDCR's Religious Diet Program is reasonably related to

.

(

20 21 22 23

legitimate. penological interests. Additionally, Plaintiff fails to state a claim against Defendants Curry, Hill, Grannis, or Aboytes, and all Defendants are entitled to qualified immunity.

ISSUE STATEMENT
1. The PLRA requires inmates to exhaust their available administrative remedies

24 before filing a federal civil rights action. Plaintiff failed to properly exhaust his administrative 25 remedies for his Eighth Amendment and supplemental claims before he filed this action. Should 26 27 this Court dismiss those claims for failure to exhaust under the PLRA?
2.

To establish an Eighth Amendment violation for deliberate indifference to serious

28 medical needs, a prisoner-plaintiff must show that defendants' alleged indifference caused the
Not. of Motions & Motions to Dismiss & Summ. 1.

R. Bratton v. B. Curry, et at.. C 07-2928 JSW

3

Case 3:07-cv-02928-JSW

Document 26

Filed 06/23/2008

Page 12 of 34

1 plaintiffhann. Plaintiffs medical records show that he has not been harmed by CDCR's 2 vegetarian diet. Were Defendants deliberately indifferent to Plaintiff s serious medical needs?

3

3.

To establish an Eighth Amendment violation for inadequate food, a prisoner-

4 plaintiff must show that the food is not adequate to maintain healtli. CDCR's vegetarian diet 5 6 7 exceeds minimum nutritional requirements. Did Defendants provide Plaintiff with inadequate food? 4. To establish a claim under the Religious Land Use and Institutionalized Persons

8 Act (RLUIPA), a prisoner-plaintiff has the burden of proof to demonstrate prima facie evidence 9 of a "substantial burden" on his religious exercise. Plaintiff fails to demonstrate any burden on

10 his religious exercise. Did Defendants substantially burden Plaintiff s exercise of religion in 11 12 violation ofRLUIPA? 5. To establish an Equal Protection claim, a prisoner-plaintiff must show that the

13 policy at issue is not reasonably related to legitimate penological interests, Plaintiff fails to show 14 that the Religious Diet Program is not reasonably related to legitimate penological interests.

15 Does the Religious Diet Program violate Equal Protection? 16 17 18

STATEMENT OF FACTS

1.

Plaintiff is incarcerated at the Correctional Training Facility and receives the religious vegetarian diet under CDCR's Religious Diet Program. (DecI. Sciandra at Ex. B.) In appeal log number CTF-07-00286, Plaintiff alleges that although CDCR's Jewish kosher diet is religiously acceptable to Muslims, only Jewish prisoners are being allowed to have the Jewish kosher diet. (DecI. Santiago at Ex. B; 2d Am. CompI. at Ex. A, A31.) This appeal was denied at the third level of review. (DecI. Grannis at 2 ~ 6a, Ex. C; 2d Am. CompI. at Ex. A, A41-42.)

19 2.
20 21

22
23 24 25 26 27 28 3.

In an unnumbered appeal that bears a stamp which says it was received by CTF Appeals on March 28,2007, Plaintiff alleges that the food manager is not honoring Plaintiffs medical chrono to receive Jewish kosher meals. (2d Am. CompI. at Ex. B, B44.) This appeal was screened out at the infonnallevel of review on March 30, 2007, because the appeals coordinators determined that it duplicated appeal log number CTF-07-00286.

Not. of Motions & Motions to Dismiss & Summ. J.

R. Bratton v. B. Curry, et al. e 07-2928 JSW

4

Case 3:07-cv-02928-JSW

Document 26

Filed 06/23/2008

Page 13 of 34

1 2 3 4 5 4. 6 7
'<,

(Decl. Santiago at 2,-r 5c; 2d Am. CompI. at Ex. B, B48.) This appeal was also screened out at the third, or Director's Level, of review on June 12, 2007, because Plaintiff failed to submit the appeal through the second level of review before seeking third level review. (Decl. Grannis at 3,-r 6b, Ex. C; 2d Am. CompI. at Ex. B, B49.) Laboratory results from Plaintiff's blood tests between 2002 and 2008 show that his liver, kidney, blood sugar, albumin, iron, cholesterol, and triglycerides are all within normal range. (Decl. Chudy at 2 ,-r 4, Ex. B.) Plaintiff's medical records show that his blood chemistry is consistent with chronic lymphocytic leukemia (CLL). (Decl. Chudy at 2,-r 3, Ex. A.) His recommended treatment plan has been to monitor his white blood count by taking a complete blood count about every four months. (Id.) Plaintiff's blood tests show that his white blood count has remained elevated but stable since 2002, which indicates that his eLL is not worsening. (Decl. Chudy at 2 ,-r 4a, Ex. B.) Plaintiff's medical records show that he has been diagnosed with thalassemia trait. (Decl. Chudy at 2,-r 5, Ex. C.) Individuals who have thalassemia trait generally have a low to normal iron level that is considered adequate. (Id. at 2,-r 5.) If those individuals take iron supplements, then periodic blood tests are needed to monitor their iron levels so that excessive iron does not lead to liver toxicity. (Id.) 8. CDCR's religious vegetarian diet contains 2898.63 calories and exceeds 100 percent of the nutritional standards for men, as set by the Food and Nutrition Board of the Institute of Medicine, National Academy of Sciences, for: calories, protein, carbohydrates, dietary fiber, fat, cholesterol, vitamin A, thiamin-Bl , riboflavin-B2, niacin-B3, vitamin B6, vitamin B12, vitamin C, vitamin D IV, folate, calcium, iron, magnesium, sodium, and zinc. (Decl. Summersett at 2,-r 2a, Ex. A.) The religious vegetarian diet provides 176 percent of the recommended daily protein and 280 percent of the recommended daily iron. (Id.) 9. CDCR's food costs per day, per inmate are as follows: (1) the religious vegetarian diet
R. Bratton v. B. Curry, et al. e 07-2928 JSW

8 ). 9 10 11 12 6.

13
14 15 7. 16 17 18 19 20 21 22 23 24 25 26 27 28

Not. of Motions & Motions to Dismiss & Summ. J.

5

Case 3:07-cv-02928-JSW

Document 26

Filed 06/23/2008

Page 14 of 34

1

costs $2.6268; (2) the regular diet costs $2.8066; and (3) the Jewish kosher diet costs $7.1840. (Decl. Summersett at 2,-r 3, Ex. A.) 10. There are approximately 10,000 Muslim inmates in the CDCR system. (Decl. Summersett at 2,-r 3.) None of the food CDCR serves contains any pork products or pork derivatives. (Decl. Summersett at 3 ,-r 4.) CDCR's religious vegetarian diet serves fish at least once a week in a dinner meal, and sometimes also serves tuna fish in lunch meals. (Decl. Summersett at 3 ,-r 4.)

2 3 4

5 11.
6

7 12.
8

9 10 11 12 13 14

ARGUMENT I. PLAINTIFF'S EIGHTH AMENDMENT AND SUPPLEMENTAL CLAIMS SHOULD BE DISMISSED FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES.

A.

Under the PLRA Inmates Must Exhaust Available Administrative Remedies.

The PLRA requires that inmates exhaust their available administrative remedies before

15 filing civil rights actions in federal courts. 42 U.S.C. § 1997e(a); Porter v. Nussle, 534 U.S. 516, 16 524 (2002); McKinney v. Carey, 311 F.3d 1198, 1199:1201 (9th Cir. 2002). The Supreme 'Court

17 has held that exhaustion of available remedies requires that a prisoner "properly exhaust," which 18 means that "prisoners must complete the administrative review process in accordance with the 19 applicable procedural rules, ... rules that are defined not bythe PLRA, but by the prison 20 21 22 23 24 25 26 27 28 grievance process itself." Jones v. Bock, 127 S. Ct. 910, 922 (2007) (internal citations and quotation marks omitted) (quoting Woodford v. Ngo, 126 S. Ct. 2378,2384 (2006)). Therefore, "[ c]ompliance with prison grievance procedures ... is all that is required by the PLRA to 'properly exhaust.'" Id. When an inmate-plaintiff fails to exhaust, a defendant may file a non-enumerated Rule 12(b) motion to dismiss. Wyatt, 315 F.3d at 1119-20 (9th Cir. 2003). In ruling on such a motion a court may look beyond the pleading to decide disputed issues of fact. Id. The proper disposition for failure to exhaust is dismissal without prejudice. Id. at 1120. If the court determines that any claims have not been exhausted, then the court should dismiss only those
Not. of Motions & Motions to Dismiss & Summ. J.
I

R. Bratton v. B. Curry, et al. C 07-2928 JSW

6

Case 3:07-cv-02928-JSW

Document 26

Filed 06/23/2008

Page 15 of 34

1 unexhausted claims. Jones, 127 S. Ct. at 924-25. 2 3 4

B.

Plaintiff's Administrative Appeals.

In his Second Amended Complaint, Plaintiff alleges that he exhausted his inmate appeals, and he attaches sixteen inmate appeals in. Exhibits A through H. (2d Am. Compl. at 1 ~~ D-F;

5 Exs. A-H.) Most of the appeals attached to the Second Amended Complaint either concern
I

6 7

claims that the Court already dismissed in this action or which are irrelevant to any claim in this action. Only the following two appeals that Plaintiff attaches to his Second Amended Complaint,

8 are relevant to the recognized claims in this action: 9 .. In appeal log number CTF-07-00286, Plaintiff alleges that although CDCR's Jewish

10 kosher diet is religiously acceptable to Muslims, only Jewish prisoners are being allowed to have 11 the Jewish kosher diet. (DecI. Santiago at Ex. B; 2d Am. CompI. at Ex. A, A31.) This appeal

12 was denied at the third level of review. (Decl, Grannis at 2 ~ 6a, Ex. C; 2d Am. CompI. at Ex. A, 13 A41-42.) 14 15 In an unnumbered appeal that bears a stamp which says it was received by CTF Appeals on March 28, 2007, Plaintiff alleges that the food manager is not honoring Plaintiff s medical

16 chrono to receive Jewish kosher meals. (2d Am. CompI. at Ex. B, B44.) This appeal was 17 screened out at the informal level of review on March 30, 2007, because the appeals coordinators

18 determined that it duplicated appeal log number CTF-07-00286. (DecI. Santiago at 2 ~ 5c; 2d 19 20 21 22 23 Am. CompI. at Ex. B, B48.) This appeal was also screened out at the third, or Director's Level, of review on June 12,2007, because Plaintiff failed to submit the appeal through the second level of review before seeking third level review. (DecI. Grannis at 3 ~ 6b, Ex. C; 2d Am. CompI. at Ex. B, B49.)

C.
24 25 26 27 28

Plaintiff Failed to Exhaust the Appeal Concerning His Eighth Amendment Claim.

In his Second Amended Complaint, Plaintiff admits that he failed to follow prison grievance procedures for the submission of his inmate appeal concerning the alleged denial of a medically adequate diet. Therefore Plaintiff failed to properly exhaust. Jones v. Bock, 127 S. Ct. at 922.
Not. of Motions & Motions to Dismiss & Summ. J.

R. Bratton v. B. Curry, et al. e 07-2928 JSW

7

Case 3:07-cv-02928-JSW

Document 26

Filed 06/23/2008

Page 16 of 34

1

The prison grievance process in California consists of an informal level of review and

2 three formal levels of review. Cal. Code Regs. tit. 15, § 3084.5. A decision at the third formal 3 level, or Director's Level, is final and exhausts all available administrative remedies. Id. §§ 4 3084.1(a),3084.5(e)(2). To initiate the inmate appeal process, inmates must use a CDC Form 5 602 to describe the problem complained of and the action requested. Id. § 3084.2; (see Decl. 6 Grannis at Ex. B). Inmates must submit appeals to the Appeals Coordinator at the institution 7 within fifteen working days of the event or decision being appealed, or of receiving an 8 unacceptable lower level appeal decision. Cal. Code Regs. tit. 15, §§ 3084.2(c), 3084.6(c); 9 (Decl. Santiago at 2 ~ 2). 10/
1.
11

Plaintiff Failed to Follow Instructions from the Appeals Coordinator to Challenge a Screen-Out.

12

The Appeals Coordinator screened out Plaintiffs unnumbered appeal (concerning the

13 alleged refusal to serve Plaintiff Jewish kosher meals) at the informal level of review on March 14 30,2007, because the Appeals Coordinator determined that the appeal duplicated appeal log 15 number CTF-07-00286. (Decl. Santiago at 2 ~ 5c; 2d Am. Compl. at Ex. B,B48.) Plaintiff 16 alleges in his Second Amended Complaint that he disagrees with this action. (2d Am. Compl. at 17 6 ~ V.) The screen-out form, however, states that if an inmate believes the screen-out is in error, 18 then the inmate should return the screen-out form to the Appeals Coordinator with an 19 explanation of why the inmate believes the screen-out to be in error, along with supporting 20 documents. (Decl. Santiago at 2 ~ 4; 2d Am. Compl. at Ex. B, B48); see also Cal. Code Regs. tit. 21 15, § 3084.3(d). Although there is a typewritten paragraph on the screen-out form that appears to

22 have been written by Plaintiff in which he discusses the screen-out, this paragraph is not dated 23 and there is no indication whether it was Written at the time of the screen-out or ifit was added for litigation purposes. (2d Am. Compl. at Ex. B, B48.) Moreover, Plaintiffs Exhibit B does

14

25 not contain any response to this paragraph from the Appeals Coordinator, which indicates that 26 Plaintiff did not challenge the screen-out. 27 .28 Thus Plaintiff failed to comply with the prison grievance procedure for challenging a screen-out. Cal. Code Regs. tit. 15, § 3084.3(d). Because Plaintiff failed to comply with prison
Not. of Motions & Motions to Dismiss & Summ. J.

R. Bratton v. B. Curry, et al. C 07-2928 JSW

8

Case 3:07-cv-02928-JSW

Document 26

Filed 06/23/2008

Page 17 of 34

1 grievance procedures, he failed to properly exhaust. Jones v. Bock, 127 S. Ct. at 922.
2

2.
3

Plaintiff Failed to Exhaust His Appeal Through the Requisite Third Level of Review.

4

Plaintiff failed to exhaust this appeal to the requisite third level of review. This appeal

5 was not only screened out at the informal level of review as discussed above, but it was also 6 screened out at the third, or Director's Level, of review. (Decl. Grannis at 3 ~ 6b, Ex. C; 2d Am. 7 Compl. at Ex. B, B49.) The appeal was screened out at the third level of review because Plaintiff 8 failed to submit it through the second level of review before seeking third level review, as 9 required by prison regulations. Cal. Code Regs. tit. 15, § 3084.5(d); (Decl. Grannis at 3 ~ 6b, Ex.
<;

10 C; 2d Am. Compl. at Ex. B, B49). Thus Plaintiff failed to exhaust this appeal through the 11 requisite third level of review, and he failed to comply with the prison grievance procedures for 12 filing a third-level appeal. Therefore he failed to properly exhaust. Cal. Code Regs. tit. 15, §§
13 3084.1(a), 3084.5(e)(2); Jones v. Bock, 127 S. Ct. at 922.

14 15 16

D.

Plaintiff Could Not Possibly Have Exhausted His Supplemental Claim Before He Filed this Action Because the Allegations in the Supplemental Claim Occurred After Plaintiff Filed this Action.

Under the PLRA, "no action shall be brought ... until such administrative remedies as

17 are available are exhausted." 42 U,S.c. § 1997e(a). Courts have interpreted this provision to 18 mean that exhaustion of administrative remedies must be completed before the complaint is filed.
19 McKinney, 311 F.3d at 1199. The Ninth Circuit recognizes that "the PLRA requires that a

20 prisoner exhaust his administrative remedies before submitting any papers to the federal courts," 21 noting that "[t]he bottom line is that a prisoner must pursue the prison administrative process as 22 the first and primary form for redress of grievances." Vaden v. Summerhill, 449 F.3d 1047, 23 1048-50 (9th Cir. 2006). Allowing prisoners to exhaust administrative appeals any later in the

24 process "would be inconsistent with the objectives ofthe [PLRA]." Id. at 1051. 25 Here, Plaintiff brought this action on June 5, 2007. In his supplemental claim, Plaintiff

26 alleges that unspecified defendants changed his classification status after this action was filed. 27 (Docket No. 16 at 2 ~ 4.) In a request for injunction that this Court denied, Plaintiff previously

28 made similar but substantially more detailed factual allegations concerning this claim, in which
Not. of Motions & Motions to Dismiss & Summ. 1. R. Bratton v. B. Curry, et al. e 07-2928 JSW

9

Case 3:07-cv-02928-JSW

Document 26

Filed 06/23/2008

Page 18 of 34

1 he alleged that unspecified defendants changed his classification status during his annual 2 classification review on March 26, 2008-which occurred almost 10 months after Plaintiff 3 brought this action. (See Docket No. 21 at 2:7-13; Docket No. 14 at 1.) 4 5 Therefore, because the alleged actions in Plaintiff s supplemental claim occurred almost 10 months after he brought this action, he cannot possibly have exhausted the supplemental

6 claim before he brought this action. 42 U.S.C. § 1997e(a); McKinney, 311 F.3d at 1199; Vaden, 7 449 F.3d at 1048-50. Thus Plaintiff s supplemental claim should be dismissed for failure to 8 exhaust under the PLRA. 9 10
11

II. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT. A. Legal Standard for Summary Judgment.
I,

12

Summary judgment is appropriate "where there is no genuine issue as to any material

13 fact, and the movant is entitled to judgment as a matter oflaw." Fed. R. Civ. P. 56(c). Material 14 facts are those that may affect the outcome of the action. Anderson v. Liberty Lobby, Inc., 477 15 U.S. 242,248 (1986). The party moving for summary judgment bears the initial burden of 16 identifying those portions of the pleadings, discovery, and affidavits that demonstrate the absence 17 of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 18 Once the moving party meets its initial burden, entry of summary judgment is mandated

19 where the nonmoving party fails to "set forth specific facts showing that there remains a genuine 20 issue for trial" and evidence "significantly probative as to any [material] fact claimed to be 21 22 23 disputed." Steckl v. Motorola, Inc., 703 F.2d 392,393 (9th Cir. 1983) (internal quotation marks omitted) (citing Ruffin v. County ofLos Angeles, 607 F.2d 1276, 1280. (9th Cir. 1979». If the evidence presented by the nonmoving party is "merely colorable, ... or is not
!

24 sufficiently probative, ... summary judgment may be granted." Anderson, 477 U.S. at 249-50 25 (internal citations omitted; citing Dombrowski v. Eastland, 387 U.S. 82 (1967) (per curiam), and

26 First Nat 'I Bank ofAriz. v. Cities Servo Co., 391 U.S. 253,290 (1968». There is no triable issue 27 of fact unless the nonmoving party submits sufficient evidence for a jury to return a verdict in the 28 nonmoving party's favor. Id. at 249.
Not. of Motions & Motions to Dismiss & Summ. 1.

R. Bratton v. B. Curry, et al. C 07-2928 JSW

10

Case 3:07-cv-02928-JSW

Document 26

Filed 06/23/2008

Page 19 of 34

1

2
3
4

B.

Plaintiff's Eighth Amendment Claim Fails Because CDCR's Religious Vegetarian Diet Has Not Had Any Adverse Effects on His Health and it is Adequate to Maintain His Health.

In its Order of Service, this Court found that Plaintiff stated an Eighth Amendment claim

5 "with regard to the deprivation of a diet including meat that complies with his religious dietary 6 restrictions and meets his nutritional needs with regard to his health condition" against all 7 Defendants. (Docket No. 8at 4:16-20.) Even if, arguendo, the Court finds that Plaintiff 8 exhausted his Eighth Amendment claim, then Defendants are still entitled to judgment as a 9 matter oflaw on this claim. The Eighth Amendment's prohibition on cruel and unusual 10 punishment extends to deliberate indifference to serious medical needs and to adequate food. 11 Estelle v. Gamble, 429 U.S. 97,104 (1976); Keenan v. Hall, 83 F.3d 1083,1091 (9th Cir. 1996). 12 Here, Plaintiff's Eighth Amendment claim fails because CDCR's religious vegetarian diet has 13 not had any adverse effects on his health and it is adequate to maintain his health. 14 15 16

1.

Defendants Were Not Deliberately Indifferent to Plaintiff's Serious Medical Needs Because CDCR's Religious Vegetarian Diet Has Not Had Any Adverse Effects on Plaintiff's Health.

To establish an Eighth Amendment claim arising out of inadequate medical care, a

17 prisoner-plaintiff must prove "deliberate indifference to serious medical needs." Estelle, 429 18 U.S. at 104. In the Ninth Circuit, deliberate indifference is shown by a two-prong test.

19 McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992) overruled on other grounds by WMX 20
21 22 23 24 25 26 27 28 Techs., Inc. v. Miller, 104F.3d 1133 (9th Cir. 1997) (en bane). First, the plaintiff must show an objectively "serious medical need" by demonstrating that "failure to treat a prisoner's condition could result in further significant injury or the 'unnecessary and wanton infliction of pain.'" Id. at 1059 (citing Estelle, 429 U.S. at 104). Second, the plaintiff must show that the defendant acted with deliberate indifference, which is a subjectively "sufficiently culpable state of mind" that is more than mere negligence but less than conduct undertaken for the very purpose of causing harm. Farmer v. Brennan, 511 U.S. 825, 837 (1994). This second prong is satisfied by showing: (a) a purposeful act or failure to respond to a prisoner's pain or possible medical need; and (b) harm caused by the indifference.
Not. of Motions & Motions to Dismiss & Summ. J.

R. Bratton v. B. Curry, et al. e 07-2928 JSW

11

Case 3:07-cv-02928-JSW

Document 26

Filed 06/23/2008

Page 20 of 34

1 Jett v. Penner, 439 F.3d 1091,1096 (9th Cir. 2006). Indeed, a prison official is only liable under
2 the Eighth Amendment if the official "knows that inmates face a substantial risk of serious harm 3 and disregards that risk by failing to take reasonable measures to abate it." Farmer, 511 U.S. at 4 847. Allegations of negligence, gross negligence, civil recklessness, and medical malpractice are

5 all insufficient to establish a constitutional violation. Toguchi v. Chung, 391 F.3d 1051, 1060 6 (9th Cir. 2004); Farmer, 511 U.S. at 836.

7
8

a.

Plaintiff's Medical Records Show that He Does Not Have an Objectively Serious Medical Need to Eat Meat and that Defendants' Alleged Indifference Did Not Harm Him.

9

In his Second Amended Complaint, Plaintiff alleges that he has Chronic Lymphocytic

10 Leukemia (CLL) for which he needs to eat meat and take iron supplements. (2d Am. CompI. at 11 5-6, 8-9, 12, 14.) As this Court noted in its Order of Service, Plaintiff alleges that Plaintiffs 12 "dietary and healthpreference is to have a religiously permissible diet that includes meat."
"

13 (Docket No.8 at 5:17-19; emphasis added.) Plaintiffs medical records, however, show that he
14 does not have an objectively serious medical need to eat meat, because the vegetarian diet he 15 receives under CDCR's Religious Diet Program (see Cal. Code Regs. tit. 15, §§ 3054-3054A) 16 has not resulted in any injury or unnecessary and wanton infliction of pain. Moreover, Plaintiffs 17 medical records show that the vegetarian diet has not had any adverse effects on his health. 18
1.

19 20

Plaintiff's Blood Tests Show He Does Not Have Any Nutritional Deficiencies and that-His eLL is Stable.

Laboratory results from Plaintiffs blood tests between 2002 and 2008 show that his liver,

21 kidney, blood sugar, albumin, iron, cholesterol, and triglycerides are all within normal range. 22 23 (Stmt. Facts at ~ 4.) This indicates that Plaintiff does not have any nutritional deficiencies and is consuming adequate amounts of protein and iron, among other nutrients. (DecI. Chudy at 2 ~ 4.)

24 This further indicates that his vegetarian diet has not adversely affected him. (Id.) Additionally, 25 Plaintiffs blood tests show that his white blood count has remained elevated but stable since 26 2002, which indicates that his CLL is not worsening. (Stmt. Facts at ~ 6.) Finally, Plaintiffs

27 medical records show that he has thalassemia trait, which means that he is likely to have an iron 28 level that is in the low to normal range but which is considered adequate for an individual with
Not. of Motions & Motions to Dismiss & Summ. 1. R. Bratton v. B. Curry, et al. e 07-2928 JSW

12

Case 3:07-cv-02928-JSW

Document 26

Filed 06/23/2008

Page 21 of 34

1 thalassemia trait. (Stmt.Facts at ~ 7.) If people with thalassemia trait take iron supplements, 2 3 4 then periodic blood tests are needed to monitor their iron levels so that excessive iron does not cause liver toxicity. (Stmt. Facts at ~ 7.) Thus Plaintiff fails to show that he has an objectively serious medical need to eat meat,

5 the denial of which could result in significant injury or the unnecessary and wanton infliction of 6 pain. Plaintiff also fails to show that he has been harmed by Defendants' alleged indifference. 7 Therefore Defendants' are entitled to summary judgment on Plaintiffs claim as a matter oflaw.

8

2.
9 10

CDCR's Religious Vegetarian Diet Does Not Violate the Eighth Amendment Because it is Adequate to Maintain Health.

Although Plaintiff has a preference for a diet that includes meat, CDCR' s religious

11 vegetarian diet is adequate to maintain his health. "Adequate food is a basic human need 12 13 protected by the Eighth Amendment." Keenan, 83 F.3d at 1091 (citingHoptowitv. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982)). "While prison food need not be 'tasty or aesthetically

14 pleasing,' it must be 'adequate to maintain health. '" Id. at 1091 (citing LaMaire v. Maass, 12 15 F.3d 1444, 1456 (9th Cir. 1993)). Thus for purposes of the Eighth Amendment, it is irrelevant 16 whether Plaintiff has a dietary preference for meat, as long as the vegetarian diet he is offered is 17 18 adequate to maintain his health.

a.
19 20 21 22 23 24 25 26 27 28

CDCR's Religious Vegetarian Diet Exceeds Minimum Nutritional Requirements.

CDCR's religious veget8;ri~ diet is more than adequate to maintain health. It contains 2898.63 calories and exceeds 100 percent ofthe nutritional standards for men, as set by the Food and Nutrition Board of the Institute of Medicine, National Academy of Sciences, for: calories, protein, carbohydrates, dietary fiber, fat, cholesterol, vitamin A, thiamin-B 1, riboflavin-B2, niacin-B3, vitamin B6, vitamin B12, vitamin C, vitamin D IV, folate, calcium, iron, magnesium, sodium, and zinc. (Stmt. Facts at
~

8.) More specifically, the religious vegetarian diet provides

176 percent of the recommended daily protein and 280 percent of the recommended daily iron. (Stmt. Facts at ~ 8.) Therefore the religious vegetarian diet exceeds minimum nutritional requirements and is thus adequate to maintain health under the Eighth Amendment.
Not. of Motions & Motions to Dismiss & Summ. J.

R. Bratton v. B. Curry, et at. . C 07-2928 JSW

13

Case 3:07-cv-02928-JSW

Document 26

Filed 06/23/2008

Page 22 of 34

1

b.

2 3

CDCR's Religious Vegetarian Diet is Adequate to Maintain Plaintiff's Health.

The religious vegetarian diet is also adequate to maintain Plaintiff s health. As discussed

4 in part n.B .1.a. above, Plaintiff s medical condition does not require that he consume meat for 5 the following reasons: (1) his liver, kidney, blood sugar, albumin, iron, cholesterol, and 6 triglycerides are all within normal range, which indicates that he is receiving adequate nutrition; 7 (2) his white blood count is elevated but stable, which means that his CLL is not worsening. 8 (Stmt. Facts

at,-r,-r 4-6.)

These factors taken together suggest that the religious vegetarian diet is

9 adequate to maintain Plaintiffs health despite his diagnosis of CLL. Thus the religious 10 vegetarian diet does not deprive Plaintiff of adequate nutrition in violation of the Eighth 11 Amendment. Therefore Defendants are entitled to summary judgment on Plaintiff s claim as a 12 matter oflaw. 13 14 15
C. Plaintiff's RLUIPA Claim Fails Because He Fails to Meet His Burden of Proof to Demonstrate Prima Facie Evidence of a "Substantial Burden" on His Religious Exercise.

In its Order of Service, this Court recognized Plaintiff s RLUIPA claim, but noted that

16 "[w]hile it is certainly questionable whether the failure to provide halal meat constitutes a

17 substantial burden on the exercise of Plaintiffs religion, the claim is sufficient to be served
18 against the ... Defendants." (Docket No.8 at 6:16-18.) Indeed, Plaintiff fails to meet his burden 19 of proof to demonstrate a prima facie claim that CDCR's Religious Diet Program constitutes a 20 substantial burden on the exercise of his religious beliefs. 21 The Religious Land Use and Institutionalized Persons Act (RLUIPA) provides that, "No

22 government shall impose a substantial burden on the religious exercise of a person residing in or 23 confined to an institution ... even if the burden results from a rule of general applicability," 24 unless the government demonstrates that the burden. is "in furtherance of a compelling 25 governmental interest" and "is the least restrictive means of furthering that compelling

26 governmental interest." 42 U.S.C. § 2000cc-l(a). 27 To state a claim under RLUIPA, the plaintiff bears the burden of proof to demonstratea
I

28 prima facie claim that a policy constitutes a substantial burden on his exercise of religion.
Not. of Motions & Motions to Dismiss & Summ. J.

R. Bratton v. B. Curry, et al. C 07-2928 JSW

14

Case 3:07-cv-02928-JSW

Document 26

Filed 06/23/2008

Page 23 of 34

1 Warsoldier v. Woodford, 418 F.3d 989,994-95 (9th Cir. 2005). If the plaintiff establishes a 2 substantial burden, then the defendants must establish that the policy serves a compelling 3 government interest. Id. at 995-96. If the defendants establish that the policy serves a 4' compelling governmental interest, then the defendants must also establish that the policy is the 5 least restrictive alternative to achieve that interest. Id. at 998. Here, Plaintiff fails to meet his 6 burden to prove that he has been substantially burdened in the exercise of his religion, and so the 7 RLUIPA analysis should end after the "substantial burden" inquiry. Warsoldier, 418 F.3d at 995.

8

1.
9
10

Plaintiff Fails to Meet His Burden of Proof that a Vegetarian Diet Constitutes a Substantial Burden on His Religious Exercise.

RLUIP A defines "religious exercise" as "any exercise of religion, whether or not
RLUIPA~

11 compelled by, or central to, a system of religious belief." 42 U.S.C. § 2000cc-5(7)(A).

12 does not define "substantial burden," but the Ninth Circuit has explained that "a burden is

13 substantial under.RLUIPA when the state denies an important benefit because of conduct
14 mandated by religious belief, thereby putting substantial pressure on an adherent to modify his 15 behavior and to violate his beliefs." Shakur.v. Schriro, 514 F.3d 878,888 (9th 'Cir, 2008) (citing 16 Warsoldier, 418 F.3d at 995) (internal quotation marks and brackets omitted). . 17

a.
18 19

Plaintiff Fails to Demonstrate Any Burden on His Religious Exercise.

Plaintiff does not allege any sort of burden-substantial or insubstantial-on the exercise

20 of his religion. Instead, Plaintiff alleges medical rather than religious concerns. As this Court 21 observed in its Order of Service, "Plaintiff has not alleged that his religion requires the 22 consumption of meat, only that his dietary and health preference is to have a religiously 23 permissible diet-that includes meat." (Docket No.8 at 17-19.) 24 More specifically, Plaintiff alleges that "[a] substantial burden was imposed on plaintiff

25 due to exercising of his religion." (2d Am. CampI. at 10.) Plaintiff does not clearly allege the 26 cause or effect of the alleged substantial burden, but he requests relief in the form of an 27 injunction to receive the "diet as first ordered by the doctor" and any medication or vitamin 28 supplements he may need. (Id.) Thus Plaintiff alleges an unsubstantiated medical concern, not a
Not. of Motions & Motions to Dismiss & Summ. J. R. Bratton v. B. Curry, et al. C 07-2928 JSW

15

Case 3:07-cv-02928-JSW

Document 26

Filed 06/23/2008

Page 24 of 34

1 substantial burden on his religious exercise. 2 Additionally, Plaintiff alleges that in violation ofRLUIPA's section 2000cc-2(b)he was

3 not given vitamins or diet supplements for his alleged anemic condition. (2d Am. Compl. at 11.) 4 Here again, Plaintiff alleges an unsubstantiated medical concern and not a substantial burden on 5 his religious exercise. 6 7 8 9 Thus Plaintiff fails to demonstrate any sort of burden on the exercise of his religion.

b.

. Plaintiff Fails to Demonstrate that the Religious Vegetarian Diet Has Any Adverse Health Effects that Substantially Burden His Religious Exercise.
I

\

The Ninth Circuit has found that "adverse health effects from a prison diet can be relevant

10 to the substantial burden inquiry." Shakur, 514 F.3d at 888-'89. In Shakur, the prisoner-plaintiff
11 alleged that the prison's vegetarian diet had an adverse health effect that burdened his religious

12 exercise because it gave him gas and irritated his hiatal hernia, which in tum interfered with the
13 state of "purity and cleanliness" he needed for Muslim prayer. Id. at 882.
/

14

By contrast, Plaintiff does not allege that CDCR's religious vegetarian diet has any

15 adverse health effects that burden his religious exercise in any way. Instead, as discussed 16 immediately above, Plaintiff only alleges unsubstantiated medical concerns. His medical records 17 show, however, that: (1) his liver, kidney, blood sugar, albumin, iron, cholesterol, and .---., 18 triglycerides are all within normal range, which indicates that he is receiving adequate nutrition; 19 and (2) his white blood count is elevated but stable, which means that his CLL is not worsening. 20 (Stmt. Facts at ~ 4-6.) Thus Plaintiff fails to demonstrate that the religious vegetarian diet has 21 any adverse health effects that substantially burden his religious exercise. 22 23 24

c.

CDCR's Religious Diet Program Does Not Intentionally Put Significant Pressure on Plaintiff to Abandon His Religious Beliefs.

Plaintiff does not allege that CDCR's Religious Diet Program puts substantial pressure on

25 him to modify his behavior in violation of his religious beliefs. Indeed, a burden is substantial 26 when the state "denies an important benefit because of conduct mandated by religious belief, 27 thereby putting substantial pressure on an adherent to modify his behavior and to violate his 28 beliefs." Warsoldier, 418 F.3d at 995 (internal brackets omitted).
Not. of Motions & Motions to Dismiss & Summ, J.

R. Bratton v. B. Curry, et al. e 07-2928 JSW

16

Case 3:07-cv-02928-JSW

Document 26

Filed 06/23/2008

Page 25 of 34

1

In Warsoldier, a Native American inmate refused to cut his hair in compliance with the

2 prison's grooming policy because it violated his tribe's religious beliefs. Id. at 991-92. The 3 prison responded by taking several punitive measures against the inmate, including: loss of out4 of-cell time; imposition of additional duty hours; reclassification into a workgroup with lesser 5 privileges; loss of telephone privileges; expulsion from vocational classes; removal from 6 leadership roles; prohibitions on yard recreation; reduced monthly draw at the prison store; 7 prohibition from making special purchases at the prison store. Id. at 992. The Ninth Circuit held 8 that by withholding such important benefits, the prison substantially burdened the inmate's 9 religious exercise by intentionally putting significant pressure on him to abandon his religious 10 beliefs by cutting his hair. Id. at 995-96. 11 Unlike the prisoner-plaintiff in Warsoldier, Plaintiff does not allege that he has been ,

12 subjected to any sort of punishment or loss of privileges for following his religious beliefs. 13 Moreover, CDCR's Religious Diet Program is not punitive in nature. See Cal. Code Regs. tit. 14 15, §§ 3054-3054.4. Instead, the Religious Diet Program is intended to accommodate inmates

15 who have been determined to require a religious diet. Id. at §§ 3054(a), 3054.3(b)(1). 16 Plaintiff fails-to meet his burden of proof under RLUIPA to demonstrate prima facie

17 evidence of a substantial burden on his religious exercise because: (1) he fails to demonstrate any 18 burden on his religious exercise; (2) he fails to demonstrate that the religious vegetarian diet has 19 any adverse health effects that substantially burden his religious exercise; and (3) CDCR's 20 religious diet program does not intentionally put significant pressure on Plaintiff to abandon his

21 religious beliefs. Therefore the RLUIP A analysis should end here, and summary judgment 22 23 24 25 26 27 should be granted in Defendants' favor as a matter oflaw.

2.

CDCR Has a Compelling Governmental Interest in Saving the Prohibitive Expense of Providing Jewish Kosher Meals to Muslim Inmates.

A plaintiffs failure to meet his burden of proof to demonstrate a substantial burden on religious exercise ends the RLUIPA analysis in the defendants' favor. Warsoldier, 418 F.3d at 995. Although the RLUIPA analysis in this action need not proceed further, Defendants assert

28 -for the sake of preserving their argument-that there is a compelling governmental interest for
Not. of Motions & Motions to Dismiss & Summ. J.

R. Bratton v. B. Curry, et al. C 07-2928 JSW

17

Case 3:07-cv-02928-JSW

Document 26

Filed 06/23/2008

Page 26 of 34

1 the policy at issue. 2 More specifically, Defendants assert that the cost of providing a Jewish kosher diet to all

3 Muslim inmate who requested it would be prohibitive. The Supreme Court has acknowledged 4 that '''maintain[ing] good order, security and discipline, consistent with consideration ofcosts

5 and limited resources,' is a compelling government interest." Shakur, 514 F.3d at 889 (citing 6 Cutter v. Wilkinson, 544 U.S. 709, 722 (2005» (emphasis added).
7 Here, the food costs per day, per inmate are as follows: (1) the religious vegetarian diet

8 costs $2.6268; (2) the regular diet costs $2.8066; and (3) the Jewish kosher diet costs $7.1840. 9 (Stmt. Facts at ~ 9.) There are approximately 10,000 Muslim inmates in the CDCR system. 10 (Stmt. Facts at ~ 10.) If all 10,000 Muslim inmates chose the religious vegetarian diet option, 11 then this would cost $9,587,820 per year, and if only 5,000 Muslim inmates chose the religious 12 vegetarian diet option, then this would cost $4,793,910. (Decl. Summersett at 2 ~ 3a.) By 13 contrast, if all 10,000 Muslim inmates chose the Jewish kosher diet, then this would cost 14 $26,221,600 per year, and if only 5,000 Muslim inmates chose the Jewish kosher diet, then this 15 would cost $13,11 0,800 per year. (Dec!. Summersett at 2 ~ 3b.) 16 Thus the Jewish kosher diet would cost CDCR $16,633,780 more per year than the

17 religious vegetarian diet for 10,000 Muslim inmates. (Decl. Summersett at 2 ~ 3c.) For only 18 5,000 Muslim inmates, the Jewish kosher diet would cost CDCR $8,316,890 more per year than 19 the religious vegetarian diet. (Id.) This substantial cost makes it prohibitively expensive to offer 20 21 the Jewish kosher diet to Muslim inmates.

3.
22 23 24 25 26 27 28

CDCR's Religious Vegetarian Diet is the Least Restrictive Alternative to Accommodate Muslim Inmates.

If the defendants establish that the policy serves a compelling governmental interest, then the next step is for the defendants to establish that the policy is the least restrictive alternative to achieve that interest. Warsoldier, 418 F.3d at 998. Here, Defendants assert for the sake of preserving their argument that CDCR's religious vegetarian diet is the least restrictive alternative to accommodate Muslim inmates because it exceeds nutritional requirements, contains no pork or pork derivatives, and provides fish at least once a week. (Stmt. Facts at ~~ 11-12.)
Not. of Motions & Motions to Dismiss & Summ. J.

R. Bratton v. B. Curry, et at. C 07-2928 JSW

18

Case 3:07-cv-02928-JSW

Document 26

Filed 06/23/2008

Page 27 of 34

1

D.
2

Plaintiff's Equal Protection Claim Fails Because CDCR's Religious Diet Program is Reasonably Related to Legitimate Penological Interests.

3

'The Ninth Circuit has instructed that the proper standard for analyzing a prisoner-

4 plaintiffs Equal Protection claim is the four-part balancing test required by Turner v. Safley.

5 Shakur, 514 F.3d at 891 (citing Turner v. Safley, 482 U.S. 78 (1987)). Under the Turner test,
6 Plaintiff "can succeed only 'if the difference between the defendants' treatment of him and their 7 treatment of Jewish inmates is 'reasonably related to legitimate penological interests. '" Shakur, 8 514 F.3d at 891 (citing DeHart v. Horn, 227 F.3d 47,51 (3d Cir. 2000) (en bane)). This is a 9 lower standard than RLUIPA's "compelling government interest" standard. Warsoldier, 418 10 F.3dat998.
11

1. 12 13

CDCR Has a Valid, Rational Connection Between its Religious Diet Program and its Legitimate Governmental Interests.

The first Turner factor requires a "'valid, rational connection' between the prison

14 regulation and the legitimate governmental interest put forward to justify it." Turner, 482 U.S. at 15 89-90. Here, the legitimate government interest is the efficient administration the Religious Diet 16 Program to accommodate the religious dietary needs of thousands of prisoners within CDCR's 17 budgetary constraints. The Ninth Circuit has recognized that administrative and budgetary 18 concerns are legitimate governmental interests in the context of the Turner test-as applied to 19 religious diets. See Resnick v. Adams, 348 F.3d 763, 769 (9th Cir. 2003). Under the Religious 20 Diet Program, CDCR strives to "make reasonable efforts, as required by law, to accommodate

21 those inmates who have been determined ... to require a religious diet." Cal. Code Regs. tit. 15, 22
§ 3054(a) (emphasis added). As discussed in part II.C.2. above, it would be prohibitively

23 expensive and would cost at least an additional $8,316,890 more per year to provide the Jewish 24 kosher diet instead of the religious vegetarian diet to a minimum of five thousand Muslim 25 inmates. (Decl. Summersett at 2 ~ 3c.) Thus the first Turner factor is satisfied.

26 III
27 III 28 III
Not. of Motions & Motions to Dismiss & Summ. 1.
R. Bratton v. B. Curry, et al. e 07-2928 JSW

19

Case 3:07-cv-02928-JSW

Document 26

Filed 06/23/2008

Page 28 of 34

1

2.
2

Plaintiff Does Not Allege that He Lacks Alternative Means to Practice His Religion.

3

The second Turner factor requires the Court to consider whether there are alternative

4 means by which an inmate can practice his religion. Turner, 482 U.S. at 90. Here, although 5 Plaintiff alleges that the prison has interfered with the practice of his religion by providing him 6 with a vegetarian diet, he does not allege that he has been denied any other means of practicing 7 his religion. (See 2d Am. Compl. at 4-14.) Defendants assert that, as required by prison 8 regulations, they "make every reasonable effort to provide for the religious and spiritual welfare 9 of all interested inmates." Cal. Code Regs. tit. 15, § 3210(a). Therefore Plaintiff is afforded 10 alternative means by which he can practice his religion. Thus the second Turner factor is 11 satisfied. 12 13
\

3.

Providing Jewish Kosher Meals to Over Five Thousand Muslim Inmates Would Have a Substantial Impact on the Allocation of Prison Resources.

14

The third Turner factor requires the Court to consider "the impact accommodation of the

15 asserted constitutional right will have on guards and other inmates, and on the allocation of 16 prison resources generally." Turner, 482 U.S. at 90. As discussed above in parts II.Co2. and 17 II.D.1., providing Jewish kosher meals to upwards of five thousand Muslim inmates would have 18 a substantial impact on the allocation of prison budgetary resources. Thus the third Turner factor 19 is satisfied. 20 4. 21 22 Plaintiff Fails to Meet His Burden to Show Any Obvious, Easy Alternatives to the Religious Diet Program.

The fourth and final Turner consideration is the availability of "obvious, easy

23 alternatives." Turner, 482 U.S. at 90. The burden is on the prisoner who is challenging the 24 regulation-not on the prison officials-to show that there are obvious, easy alternatives to the 25 policy. See

o 'Lone v. Estate ofShabazz, 482 U.S.

342, 350 (1987). Here, Plaintiff does not

26 allege that his religion requires the consumption of meat, only that his dietary and health 27 preference is to have a religiously permissible diet that includes meat. (Docket No.8, 5:17-19.) 28 As discussed above, Plaintiff is being provided with a diet that includes fish and vegetarian meatNot. of Motions & Motions to Dismiss & Summ. 1.

R. Bratton v. B. Curry, et al. C 07-2928 JSW

20

Case 3:07-cv-02928-JSW

Document 26

Filed 06/23/2008

Page 29 of 34

1 alternatives that are adequate to maintain his health. Moreover, Plaintiff fails to meet his burden 2 to show any obvious, easy alternatives to the Religious Diet Program that would accommodate 3 his perceived dietary needs and Defendants' legitimate penological interests. Thus, the fourth

4 Turner factor is 'satisfied.
5 Because Defendants have satisfied all four Turner factors, they are entitled to summary

6 judgment on Plaintiffs claim as a matter of law. 7
8

E.

Plaintiff Fails to State Any Claim Against Defendants Curry or Hill Because there is No Respondeat Superior or Vicarious Liability Under 42 U.S.C. § 1983.

9

Plaintiff fails to state any claim against Defendants Curry or Hill because he alleges only

10 respondeat superior or vicarious liability. 'The law is clear that there is not any respondeat
11 superior or vicarious liability in actions, such as this one, that are brought under 42 U.S.C. § 12 1983. Monell v. Dep 't ofSocial Services, 436 U.S. 658, 692 (1978); Palmer v. Sanderson, 9
13 F.3d 1433, 1437-38 (9th Cir. 1993). A supervisor, like wardens Curry or Hill, is "only liable for

14 constitutional violations of his subordinates if the supervisor participated in or directed the 15 violations, or knew of the violations and failed to prevent them." Taylor v. List, 880 F.2d 1040, 16 1045 (9th Cir. 1989). 17 Here, however, Plaintiff does not allege that Defendants Curry or Hill participated in or

18 directed the alleged constitutional violations. Instead, Plaintiff merely alleges that Defendant 19 Curry is responsible for religious and medical programs at CTF, and Defendant Hill is 20 responsible for religious programs at CTF. (See 2d Am. CompI. at 3,6,8.) Plaintiff does not 21 make any other allegations against either Defendant Curry or Hill. Thus Plaintiff fails to state a 22 claim against Defendants Curry or Hill under a theory of either respondeat superior or vicarious 23 liability, and so Defendants Curry and Hill should be dismissed with prejudice. 24 25 26

F.

Plaintiff Fails to State a Claim Against Defendants Grannis or Aboytes for their Handling of Inmate Appeals Because There is No Constitutional Right to a Prison Grievance System.

Plaintiff fails to state a claim against Defendants Grannis (as Chief of CDCR's Inmate

27 Appeals Branch) or Aboytes (as Appeals Coordinator) because, as this Court noted in the Order 28 of Service, there is no constitutional right to a prison administrative appeal or grievance system.
Not. of Motions & Motions to Dismiss & Summ. J:

R. Bratton v. B. Curry, et al. e 07-2928 JSW

21

Case 3:07-cv-02928-JSW

Document 26

Filed 06/23/2008

Page 30 of 34

1 Ramirez v. Galaza, 334 F.3d 850,860 (9th Cir. 2003); Mann v. Adams, 855 F.2d 639,640 (9th 2 Cir. 1988); (see also Docket No.8 at 6-7; 2d Am. Compl. at 3-5). Under California Code of

3 Regulations, title 15, prisoners have a purely procedural right to prison appeals that cannot form 4 the basis of a constitutionally cognizable liberty interest and therefore is not actionable under 42 5 U.S.C. § 1983. See Smith v. Nonan, 992 F.2d 987,989 (9thCir. 1993); see also Antonelli v.

6 Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996); Ramirez, 334 F.3d at 860; (see also Docket No.8
7 at 6-7). Additionally, this Court already dismissed Plaintiffs claim that his appeal was denied.

8 (Docket No. 8 at 6-7.) 9 10 11

III. DEFENDANTS ARE ENTITLED TO QUALIFIED IMMUNITY.
The defense of qualified immunity applies to "government officials performing

12 discretionary functions," who are "generally are shielded from liability for civil damages insofar

13 as their conduct does not violate clearly established statutory or constitutional rights of which a
14 reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (citation 15 omitted). The rule of qualified immunity "provides ample protection to all but the plainly 16 incompetent or those who knowingly violate the law." Burns v. Reed, 500 U.S. 478, 494-495 17 18 (1991) (citation omitted). In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court set forth a sequence of

19 questions to be considered in determining whether qualified immunity is applicable. First, a 20 21 22 23 24 25 Court must consider this threshold question: "Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" ld. at 201. Ifno constitutional right was violated under the alleged facts, the inquiry ends and defendants prevail. ld. If, however, "a violation could be made out on a favorable view of the parties' submissions," then the next sequential step is to ask whether the right was clearly established. ld.

26 III 27 III 28 III
Not. of Motions & Motions to Dismiss & Sumrn. J.

R. Bratton v. B. Curry, et at. C 07-2928 JSW

22

Case 3:07-cv-02928-JSW

Document 26

Filed 06/23/2008

Page 31 of 34

1
A.
2

Defendants are Entitled to Qualified Immunity Because Plaintiff Failed to Show Defendants' Actions Violated a Constitutional Right.

3

The first step under Saucier is to determine whether, taken in the light most favorable to

4 the party asserting the injury, the facts alleged show that the officer's conduct violated a 5 constitutional right. Saucier, 533 U.S. at 201. As discussed in detail in section II above, Plaintiff 6 fails to show that any Defendants' actions violated his constitutional rights. 7

B.
8

Defendants are Entitled to Qualified Immunity Because It Would Not Have .Been Clear to Reasonable Officials that the Conduct at Issue was Unlawful.

9

Assuming arguendo that a constitutional violation could be found, then the next step

10 under Saucier is to ask whether the right violated was a clearly established right. More 11 specifically, the "relevant, dispositive inquiry in determining whether a right is clearly 12 established is whether it would be clear to a reasonable officer that his conduct was unlawful in
1'3

the situation he confronted." Id. at 202. Additionally, the Ninth Circuit has held that to prevail on a motion for summary

14

15 judgment a plaintiff "must put forward specific, nonconclusory factual allegations that establish 16 improper motive causing cognizable injury." Jeffers v. Gomez, 267 F.3d895, 911 (9th Cir. 2001) ! 17 (internal quotation marks omitted) (citing Crawford-EI v. Britton, 523 U.S. 574, 598 (1998)). 18 The Supreme Court further held that to deny summary judgment any time a material issue of fact 19 remains on a claim could undermine the goal of qua