WILLIAM V. GALLO, Magistrate Judge.
Presently before the Court is Defendants S. Rutledge, D. Strayhorn, and D. Jaime's (collectively "Defendants") Motion to Dismiss certain causes of action in Plaintiff Andrew Cejas' First Amended Complaint for failing to state a claim. (Mot., ECF No. 71.) Additionally, Defendant's move to have defendants Olson and Ramirez dismissed for failure to prosecute. (Id.)
After considering the Motion and Plaintiff's Opposition, the Court
Plaintiff Andrew Cejas, a state prisoner proceeding pro se, filed a First Amended Complaint ("FAC") pursuant to 42 U.S.C. § 1983 on May 17, 2018. (See ECF No. 59.) In his FAC, Plaintiff alleges that Defendants seized an "altered handkerchief" adorned with four swastikas, which Plaintiff identifies as an altar cloth, and a swastika pendant. (Id. at ¶ 24, 135.) At numerous points throughout the FAC, Plaintiff claims that the swastikas displayed on his altar cloth are not "Nazi swastikas," rather they are Buddhist swastikas. (See e.g., id. at ¶¶ 19, 21, 63.) Plaintiff explains that the swastikas are distinct because they face opposite directions. (Id. at ¶20.)
In his FAC, Plaintiff has set forth four causes of action. In the first cause of action, Plaintiff alleges that defendants Rutledge, Olson, Ramirez, and Strayhorn violated Plaintiff's First Amendment right to free speech by retaliating against Plaintiff for his filing of grievances. (FAC at ¶¶ 64-89.) In the second cause of action, Plaintiff alleges defendants Strayhorn, Rutledge, and Jaime violated Plaintiff's First Amendment right to free exercise and expression of religion by confiscating and refusing to return the altar cloth and pendant. (Id. at ¶¶ 96-97.) Also in the second cause of action is an allegation that defendants Olson and Ramirez violated Plaintiff's First Amendment right to access the federal courts. (Id. at ¶¶ 103-111.) In the third cause of action, Plaintiff alleges defendants Rutledge, Jaime, and Strayhorn violated Plaintiff's Fourteenth Amendment right to equal protection. (Id. at ¶¶ 112-122.) Plaintiff also alleges that defendants Rutledge, Jaime, Strayhorn, Olson, and Ramirez violated Plaintiff's Fifth and Fourteenth Amendment rights to due process by improperly confiscating Plaintiff's property. (Id. at ¶¶ 123-129.) In the fourth cause of action, Plaintiff alleges that defendants Rutledge, Jaime, and Strayhorn violated the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. §§ 2000cc, et seq., by seizing Plaintiff's religious property. (Id. at ¶¶ 130-136.) Plaintiff seeks declaratory judgment, injunctive relief, and monetary damages. (Id. at ¶ 138.)
As relevant here, Federal Rule of Civil Procedure 4(m) provides:
Fed. R. Civ. P. 4(m).
Federal Rule of Civil Procedure 12(b)(6) permits dismissal for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). Federal Rule of Civil Procedure 8(a)(2) provides "[a] pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "A district court's dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) is proper if there is a `lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.'" Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011) (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)).
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citation omitted). However, "a plaintiff's obligation to provide the `grounds' of his `entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (quoting Fed. R. Civ. P. 8(a)). A court is not "required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). "In sum, for a complaint to survive a motion to dismiss, the non-conclusory factual content, and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quotations omitted).
Where, as here, a plaintiff appears in propria persona in a civil rights suit, the Court also must be careful to construe the pleadings liberally and afford the plaintiff any benefit of the doubt. See Karim-Panahi v. L.A. Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988), abrogated in part as stated in Boarman v. County of Sacramento, No. 2:11-cv-0285, 2013 WL 1326196, at *7 (E.D. Cal. Mar. 29, 2013); Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985). This rule of liberal construction is "particularly important in civil rights cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). In construing a pro se civil rights complaint liberally, however, a court may not "supply essential elements of the claim that were not initially pleaded." Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). "Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss." Id.; see also Sherman v. Yakahi, 549 F.2d 1287, 1290 (9th Cir. 1977) ("Conclusionary allegations, unsupported by facts, [will be] rejected as insufficient to state a claim under the Civil Rights Act.") Thus, at a minimum, even the pro se plaintiff "must `allege with at least some degree of particularity overt acts which defendants engaged in' that support [his] claim." Jones v. Cmty. Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984) (quoting Powell v. Workmen's Comp. Bd., 327 F.2d 131, 137 (2d Cir. 1964)).
To state a claim pursuant to 42 U.S.C. § 1983, a plaintiff must allege facts sufficient to show a person acting "under color of state law" committed the alleged conduct, and the conduct deprived the plaintiff of some right, privilege, or immunity protected by the Constitution or laws of the United States. 42 U.S.C. § 1983.
Defendants move to dismiss Olson and Ramirez for failure to serve. (Mot. at 3:19-24.) In his Opposition, Plaintiff argues Olson and Ramirez should not be dismissed because they "were named four years ago" and they have been properly served. (Opp'n, ECF No. 77 at 5.) Plaintiff's claim is belied by the record.
Plaintiff filed his original complaint on August 15, 2014. (See ECF No. 1.) On August 24, 2016, Plaintiff was on notice that defendants Ramirez and Olson were not served because both summons were returned unexecuted. (See ECF Nos. 9, 10.) Additionally, on October 26, 2016, in the Court's order denying Plaintiff's motion for default judgment, Plaintiff was again alerted to the fact that Olson and Ramirez had not been served. (See ECF No. 20 at 1:24-25.
Defendants argue they are entitled to qualified immunity in regards to the free exercise and free expression claims asserted in the second cause of action, the equal protection claim asserted in the third cause of action, and the RLUIPA claim asserted in the fourth cause of action "because they did not have fair warning that confiscating swastikas in prison is an unconstitutional action." (Mot. at 7:6-7.) In support of this argument, Defendants direct the Court's attention to three cases where it was found that "there is no violation of an inmate's religious rights when prison staff confiscate[] swastikas." (Id. at 7-9.)
Plaintiff argues Defendants did have fair warning that their actions were unconstitutional. (Opp'n at 15.) In the alternative, Plaintiff argues that the Court may deny qualified immunity in "novel circumstances," citing Mattos v. Agarano, 661 F.3d 433, 442 (9th Cir. 2011).
"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, 137 S.Ct. 548, 551 (2017) (quoting Mullenix v. Luna, 136 S.Ct. 305, 308 (2015)). When considering whether an officer is entitled to qualified immunity, the Court considers "(1) whether there has been a violation of a constitutional right; and (2) whether that right was clearly established at the time of the officer's alleged misconduct." S.B. v. County of San Diego, 864 F.3d 1010, 1013 (9th Cir. 2017). A plaintiff must prove both topics of inquiry to establish that officials are not entitled to qualified immunity. Marsh v. County of San Diego, 680 F.3d 1148, 1152 (9th Cir. 2012).
A district court may address these questions in the order most appropriate to "the circumstances of the particular case at hand." Pearson v. Callahan, 555 U.S. 223, 236, 242 (2009). Thus, if a court determines that Plaintiff's allegations do not support a statutory or constitutional violation, "there is no necessity for further inquiries concerning qualified immunity." Saucier v. Katz, 533 U.S. 194, 201 (2001). However, in the Ninth Circuit, "[w]hen. . .defendants assert qualified immunity in a motion to dismiss under Rule 12(b)(6), dismissal is not appropriate unless [the Court] can determine, based on the complaint itself, that qualified immunity applies." O'Brien v. Welty, 818 F.3d 920, 936 (9th Cir. 2016) (internal quotation omitted).
"[T]he clearly established law must be `particularized' to the facts of the case." White, 137 S.Ct. at 552 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987). Although the court "does not require a case directly on point for a right to be clearly established, existing precedent must have placed the statutory or constitutional question beyond debate." White, 137 S.Ct. at 551 (internal quotation omitted). However, the plaintiff "bears the burden of showing that the rights allegedly violated were clearly established." Shafer v. City of Santa Barbara, 868 F.3d 1110, 1118 (9th Cir. 2017). When considering qualified immunity, the Court is "limited to considering what facts the officer could have known at the time of the incident." Davis v. United States, 854 F.3d 594, 598 (9th Cir. 2017).
Defendants are entitled to qualified immunity on the religious claims because the right for an inmate to possess swastikas, even on religious grounds, was not clearly established at the time of Defendant's alleged misconduct. Plaintiff has not provided the Court with any case that clearly establishes that seizing an item with a swastika depiction, even a purported religious item, is violative of the Constitution and the Court is unaware of such a case. Most persuasive, however, are the cases Defendants cite which demonstrate not only that such a case does not exist but that courts have frequently found that seizing purportedly religious items with swastika depictions from inmates is not a violation of the First Amendment or RUILPA.
Defendants move to dismiss Plaintiff's second cause of action claims that they violated Plaintiff's First Amendment right to free exercise and expression of religion because "Plaintiff fails to allege a substantial burden on the exercise of his religion." (Mot. 4:19-22; 7.)
The Free Exercise Clause of the First Amendment states, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." U.S. Const. amend. 1. "Inmates retain the protections afforded by the First Amendment, including its directive that no law shall prohibit the free exercise of religion." Shakur v. Schriro, 514 F.3d 878, 883-84 (9th Cir. 2008) (internal quotation omitted). "The free exercise right, however, is necessarily limited by the fact of incarceration, and may be curtailed in order to achieve legitimate correctional goals or to maintain prison security." Ward v. Walsh, 1 F.3d 873, 876 (9th Cir. 1993) (internal quotation omitted). Prison inmates also retain limited First Amendment rights to free expression. See Thornburgh v. Abbott, 490 U.S. 401, 407 (1989); Shaw v. Murphey, 532 U.S. 223, 229 (2001).
"[W]hen a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Turner v. Safely, 482 U.S. 78, 89 (1987). Four factors are to be considered when determining the reasonableness of a prison rule: (1) whether there is a "valid, rational connection between the prison regulation and the legitimate government interest put forward to justify it"; (2) "whether there are alternative means of exercising the right that remain open to prison inmates"; (3) "the impact accommodation of the asserted constitutional right will have on guards and other inmates and on the allocation of prison resources generally"; and (4) the "absence of ready alternatives[.]" Turner, 482 U.S. at 89. The burden is on the plaintiff to demonstrate that a restriction on expression is not reasonable. See Overton v. Bazzetta, 539 U.S. 126, 132 (2003).
Regarding the first factor, Plaintiff does not appear to challenge a prison regulation. Rather, Plaintiff claims that prison regulations allow his altar cloth and pendant, that Defendants acted in a manner inconsistent with prison regulations and thus improperly confiscated Plaintiff's property. (See e.g., FAC at ¶¶ 18, 96, 99.) As explained further below, such conduct is not actionable pursuant to § 1983. Even construing the allegations as if he were challenging a regulation, Plaintiff fails to identify which regulation he is challenging. Given this, Plaintiff has failed to plead facts showing the applicable restriction or limitation, and the lack of a legitimate penological interest. Thus, this factor favors dismissal.
Regarding the second factor, Plaintiff articulates at great length that meditation is a "major" component of the Buddhist religion. (Id. at ¶ 92.) Plaintiff maintains that he engages in the mandated meditation, chanting, and prostration as required by the Buddhist faith. (Id. at ¶ 95.) However, Plaintiff fails to articulate how the confiscation of the altar cloth has prevented him from engaging in meditation, chanting, and prostration, or any other facet of the Buddhist faith. Moreover, Plaintiff fails to articulate how an altar cloth and pendant, with or without swastikas, is required for these activities. Given this, Plaintiff has failed to allege that Defendants have substantially burdened his exercise of the Buddhist religion and this factor favors dismissal.
Given Plaintiff's failure to plead which regulation is being challenged, the Court is unable to address the remaining two factors. However, it is clear Plaintiff has failed to meet the pleading standard sufficient to state a claim. Plaintiff has not identified a prison regulation and a lack of penological interest. Nor has he sufficiently pled his religious practices have been substantially burdened. Accordingly, the Court
Defendants seek the dismissal of Plaintiff's Fourteenth Amendment equal protection claims contained in Plaintiff's third cause of action. Defendants argue that Plaintiff has not alleged that other groups were allowed to possess items containing a swastika and, more generally, that Plaintiff has not alleged that he was denied all altar cloths and pendants while others were permitted to possess such items. (Mot. at 3:7-18.)
"The Equal Protection Clause of the Fourteenth Amendment commands that no State shall `deny to any person within its jurisdiction the equal protection of the laws,' which is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982). Prisoners are protected by the Equal Protection Clause from intentional discrimination on the basis of their religion. See Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir. 1997) abrogated in part on other grounds by Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008); see also Davis v. Powell, 901 F.Supp.2d 1196, 1218-19 (S.D. Cal. 2012).
However, conclusory allegations of discrimination are insufficient to withstand a motion to dismiss, unless they are supported by facts that may prove discriminatory intent or purpose. Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977). Therefore, when an equal protection violation is alleged, the plaintiff must plead facts to show that the defendant "acted in a discriminatory manner and that the discrimination was intentional." FDIC v. Henderson, 940 F.2d 465, 471 (9th Cir.1991) (citations omitted); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (a "plaintiff must show that the defendants acted with an intent or purpose to discriminate against the plaintiff based upon membership in a protected class").
In the FAC, Plaintiff alleges that he "was treated differently from other similarly situated" inmates of other religions because Defendants did not confiscate the altar cloths and pendants from inmates of other religions. (FAC at ¶ 116.) However, the crux of this case, as Plaintiff describes it at numerous occasions in the FAC, is the swastikas and not simply altar cloths and pendants generally. Here, Plaintiff fails to allege that worshipers of other faiths were allowed to keep their property, religious or otherwise, containing swastikas. Even if viewed generally, Plaintiff fails to allege that all of his religious altar cloths and pendants were confiscated while others were allowed to keep theirs. Thus, Plaintiff has failed to allege that Defendants have acted in a discriminatory manner and the Court
Defendants moves to dismiss Plaintiff's claims of Fifth and Fourteenth Amendment Due Process violations as alleged in the third cause of action based on the confiscation of the altar cloth and pendant because deprivation of property is not actionable under § 1983.
The Due Process Clause prohibits states from "depriving any person of life, liberty, or property, without the due process of law." U.S. Const. amend. XIV. However, where a prisoner alleges the deprivation of property caused by an unauthorized action of a prison official, there is no claim cognizable pursuant to § 1983 if the state has an adequate post-deprivation remedy. See Zinermon v. Burch, 494 U.S. 113, 129-32 (1990); Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994). An available state common law tort claim procedure to recover the value of property is an adequate remedy. See Zinermon, 494 U.S. at 128-29. The Ninth Circuit has unequivocally stated that "California Law provides an adequate post-deprivation remedy for any property deprivations" suffered by inmates. Barnett, 31 F.3d at 816-17 (citing Cal. Gov't Code §§ 810-895).
Plaintiff's allegation that "each defendant wrongfully deprived Plaintiff of religious property" is not actionable pursuant to § 1983. (FAC at ¶ 126.) Accordingly, the Court
Defendants move to dismiss Plaintiff's fourth cause of action claim that Defendants substantially burdened Plaintiff's ability to practice Buddhism in violation of RLUIPA. (Mot. at 5:24-6:13.) Defendants argue that Plaintiff does not sufficiently assert that the "confiscation of a single altar cloth and pendant with swastikas" places a substantial burden on his religious beliefs. (Mot. at 6:11-13.) The Court agrees.
"RLUIPA protects prisoners and other institutionalized people from government infringement on their practice of religion." Mayweathers v. Newland, 314 F.3d 1062, 1065 (9th Cir. 2002). The Act provides, in relevant part:
42 U.S.C. § 2000cc-1(a).
A plaintiff asserting a RLUIPA violation has the initial burden of alleging a prima facie claim that the challenged state action constitutes a "substantial burden on the exercise of his religious beliefs." Warsoldier v. Woodford, 418 F.3d 989, 994 (9th Cir. 2005). If the plaintiff meets his burden, the state must then prove that "any substantial burden . . . is both in furtherance of a compelling governmental interest and the least restrictive means of furthering that compelling governmental interest." Id. at 995 (emphasis in original). "RLUIPA is to be construed broadly in favor of protecting an inmate's right to exercise his religious beliefs." Id. "Nonetheless, a prison's accommodation of religious observances should not be elevated over an institution's need to maintain order and safety." Davis v. Powell, 901 F.Supp.2d 1196, 1230 (S.D. Cal. 2012) (internal quotation omitted). "Prison security constitutes a compelling state interest, and courts must give deference to prison officials' expertise in this area." Id. (citing Cutter v. Wilkinson, 544 U.S. 709, 725 n. 13 (2005)).
A "substantial burden" on religious exercise "must impose a significantly great restriction or onus upon such exercise" or `"where the state denies an important benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs.'" Id. (quoting Warsoldier, 418 F.3d at 995).
In Plaintiff's FAC, he, in conclusory fashion, states the confiscation of his altar cloth "imposed a substantial burden on his mandatory religious exercise and worship." (FAC at ¶ 131.) Plaintiff then adds that Defendants "did not have a compelling government interest" when seizing Plaintiff's altar cloth and pendant. (FAC at ¶ 132.) Here, all Plaintiff has done is drafted a "formulaic recitation of the elements of a cause of action" which "will not do" without something more. Twombly, 550 U.S. at 555. Accordingly, the Court
For the reasons set forth above, it is
This Report and Recommendation will be submitted to the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b).
