FINDINGS AND RECOMMENDATIONS

ALLISON CLAIRE, Magistrate Judge.

I. Introduction

Plaintiff is a state prisoner currently incarcerated at the Sierra Conservation Center (SCC), under the authority of the California Department of Corrections and Rehabilitation (CDCR). Plaintiff proceeds pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. This action proceeds on plaintiff's First Amended Complaint (FAC) filed March 27, 2013, against defendant George J. Giurbino, former Director of CDCR's Division of Adult Institutions. See ECF No. 36; see also ECF Nos. 44, 45 (dismissing defendant Matthew Cate, former Secretary of CDCR, and directing defendant Giurbino to file an answer to the FAC).

Plaintiff, a practicing Muslim, challenges the Religious Meat Alternate Program (RMAP) provided by CDCR, as implemented by a March 18, 2010 memorandum authored by defendant Giurbino (the Giurbino Memorandum). Plaintiff contends that the RMAP fails to provide him and other Muslim inmates with a fully Halal diet that is comparable to the fully Kosher diet provided to Jewish inmates through CDCR's Jewish Kosher Diet Program (JKDP). Plaintiff contends, alternatively, that he and other Muslim inmates should be permitted to participate in the JKDP due to similarities in Halal and Kosher foods. Plaintiff asserts claims under the First Amendment's Free Exercise and Establishment Clauses, the Fourteenth Amendment's Equal Protection Clause, and the Religious Land Use and Institutionalized Persons Act (RLUIPA).

Defendant moves for summary judgment on the substance of plaintiff's legal claims and on grounds that defendant was not personally involved in the alleged violation of plaintiff's rights for purposes of an individual capacity suit; that defendant is immune from suit in his official capacity under the Eleventh Amendment; and defendant is entitled to qualified immunity. Plaintiff filed an opposition to the motion for summary judgment; defendant filed a reply and a supplemental brief.1

This action is referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B), Local Rule 302(c), and Local General Order No. 262. For the reasons that follow, this court recommends that defendant's motion for summary judgment be granted in part and denied in part.

II. Legal Standards for Summary Judgment Motions

Summary judgment is appropriate when the moving party "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Under summary judgment practice, the moving party "initially bears the burden of proving the absence of a genuine issue of material fact." Nursing Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Securities Litigation), 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party may accomplish this by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admission, interrogatory answers, or other materials" or by showing that such materials "do not establish the absence or presence of a genuine dispute, or that the adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1)(A), (B).

When the non-moving party bears the burden of proof at trial, "the moving party need only prove that there is an absence of evidence to support the nonmoving party's case." Oracle Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B). Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See Celotex, 477 U.S. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment ... is satisfied." Id. at 323.

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11. Moreover, "[a] Plaintiff's verified complaint may be considered as an affidavit in opposition to summary judgment if it is based on personal knowledge and sets forth specific facts admissible in evidence." Lopez v. Smith, 203 F.3d 1122, 1132 n.14 (9th Cir. 2000) (en banc).2

The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Assoc., 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).

In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 631. Thus, the "purpose of summary judgment is to `pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (citations omitted).

In evaluating the evidence to determine whether there is a genuine issue of fact," the court draws "all reasonable inferences supported by the evidence in favor of the non-moving party." Walls v. Central Costa County Transit Authority, 653 F.3d 963, 966 (9th Cir. 2011) (per curiam). It is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F.Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts.... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted).

In applying these rules, district courts must "construe liberally motion papers and pleadings filed by pro se inmates and ... avoid applying summary judgment rules strictly." Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). However, "[if] a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact, as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion. . . ." Fed. R. Civ. P. 56(e)(2).

III. Undisputed Facts

The following summary identifies relevant undisputed facts as agreed to by the parties3 or as determined by the court based on a thorough review of the record.

The Giurbino Memorandum provides in pertinent part:

IV. Plaintiff's Allegations

The court recounts plaintiff's allegations in detail to clarify plaintiff's competing concerns and his alternate requests for relief. This account also demonstrates defendant's selective construction of plaintiff's claims.

A. Plaintiff's Original Complaint and Motion for Preliminary Injunctive Relief

While incarcerated at High Desert State Prison (HDSP), plaintiff commenced this action by filing his original complaint on September 21, 2011. ECF Nos. 1, 1-1. Plaintiff alleged that he was a practicing Muslim and had been requesting "a Halal and or Kosher diet since October 2, 2008." ECF No. 1-1 at 1. Plaintiff alleged that defendant Giurbino and others were "(1) denying plaintiff [] an adequate Halal diet while allowing Jewish inmates full kosher meals at breakfast, lunch and dinner; (2) prohibiting [plaintiff] from a kosher diet made lawful to him in The Holy Qur'an; [and] (3) forcing him to be a vegetarian by lawfully substituting haram (unlawful) meat with peanut butter or beans. . . ." ECF No. 1 at 3.

Plaintiff averred that while his pertinent administrative grievance, Appeal Log No. HDSP-B-10-1140, was pending first formal level review, "CDCR proposed a policy change on or about January 16, 2009, that allowed an religious meat alternative entrée at dinner only. . . ." Id. However, alleged plaintiff, id.:

This diet is not adequate because the meat entrée may be halal but the rest of the food is haram (unlawful). What's more, Mr. Giurbino sent a memo only to Correctional Food Managers (hereafter C.F.M.) authorizing them to substitute haram (unlawful) meat with a vegetarian option i.e. peanut butter or beans. Said memo was not included in the Notice of Change of Regulation, not in the Department Operation Manual (D.O.M.) or California Code of Regulations Title 15 and was not heard by the public or a court[.]

Plaintiff alleged that receiving the Halal meat entrée at dinner only provides neither a Halal meal nor a Halal diet. Id. Plaintiff sought injunctive relief, including "ordering CDCR to provide him (1) full halal meals, i.e., entrée, vegetables, fruits, snacks etc. as halal requires and Jewish inmates receive; (2) accommodate [plaintiff] with a kosher diet until CDCR can provide him with a Halal diet; [and] (3) prevent CDCR from unlawfully substituting or changing religious diet without following lawful protocols. . . ." ECF No. 1 at 3; ECF No. 1-1 at 2.

Plaintiff's original complaint noted his attempt to obtain injunctive relief in the state courts. See ECF No. 1-1 at 1; see also ECF No. 19 at 3-4, 10; ECF No. 36 at 12-3. In a petition for writ of habeas corpus filed November 10, 2009, in the Lassen County Superior Court, plaintiff sought an order directing CDCR to provide him with Kosher meals. In response to the petition, respondent argued that plaintiff's claims should be denied as imminently moot because CDCR would be providing Halal meals by summer 2010. Respondent noted that "[a]lthough Robinson is seeking kosher meals as a temporary solution to not having halal meals, his ultimate goal is to obtain the latter," and "Kosher meals are reserved only for Jewish inmates under the regulations." On June 4, 2010, plaintiff's petition was denied based on the court's finding "that Petitioner's right to freely exercise his religion and equal protection has not been impinged, as a vegetarian meal has been offered to him, which is in accordance with the Muslim diet."5 See ECF No. 1-1 at 1; ECF No. 19 at 3, 4 and 10 (portion of respondent's brief); ECF No. 36 at 6, 12-3; and Docket, Lassen County Superior Court, In Re: Andre Robinson, Case No. CHW2730.6

Also in his original complaint, plaintiff referenced the success of another Muslim inmate who, in December 2008, obtained a state court order directing that he receive Kosher meals pending implementation of CDCR's Halal meal program.7

Defendant moved to dismiss plaintiff's original complaint. In response, plaintiff filed a motion for preliminary injunctive relief, pursuant to which he sought: (1) all Kosher meals until CDCR provides him with all Halal meals; (2) a Kosher/Halal meal at breakfast, lunch and dinner; (3) the separate processing, preparing and serving of Kosher/Halal foods to prevent contamination with Haram (unlawful) foods; and (4) Kosher/Halal meals served covered to protect from cross-contamination. See ECF No. 19. The court denied the motion, and dismissed plaintiff's original complaint with leave to file an amended complaint. See ECF Nos. 31, 35.

B. Plaintiff's Operative First Amended Complaint

In the operative First Amended Complaint (FAC), plaintiff alleges that he, a practicing Muslim, began in 2008 to request that he be provided a Kosher diet because CDCR did not offer a Halal diet. FAC, ECF No. 36 at 1. Plaintiff's requests were denied. On July 18, 2010, while incarcerated at HDSP, plaintiff challenged the matter in an administrative grievance, Appeal Log No. HDSP-B-10-01140. Although neither party has submitted a copy of plaintiff's original grievance, its content may be inferred by the resultant administrative decisions.8

The Informal Decision, issued July 21, 2010, by Correctional Supervising Cook L. Del Carlo, relied on the Giurbino Memorandum to deny plaintiff's request to "[i]mplement Halal meat alternatives for breakfast, lunch and dinner," but granted plaintiff's request to receive "peanut butter or any other vegetarian alternate" with his vegetarian meals at breakfast and/or lunch. ECF No. 79-1 at 22.

The First Level Decision partially granted plaintiff's grievance on the ground that plaintiff had been permitted to interview with a Correctional Food Manager, and was able to continue receiving Halal meat at dinner; however, plaintiff was informed that HDSP could "not serve you complete Halal meals three times daily per CDCR regulations as set forth by the Director, Mr. Giurbino." Id. at 21.

The Second Level Decision again informed plaintiff that "HDSP is complying with the direction of our Director, Division of Adult Institutions (see attached memorandum) per his memorandum dated March 18, 2010," and on this basis partially granted the grievance. Id. at 17.

The Director's Level Decision (DLD) issued on February 28, 2011. FAC, Ex. A, ECF No. 36 at 9-10. The DLD noted plaintiff's complaints that he received Halal meat only at dinner and not on Fridays; that he was required to take the Vegetarian Diet trays at breakfast and lunch; and that HDSP kitchen staff refused to provide plaintiff with peanut butter as a protein alternative at lunch. The DLD noted plaintiff's request that he be provided Halal meat at every meal.

The DLD denied plaintiff's grievance on the ground that his diet was in compliance with departmental policy, as set forth in the California Code of Regulations, Title 15, Section 3054; the Department Operations Manual (DOM), Section 54080.14; and the March 18, 2010 Giurbino Memorandum. In response to plaintiff's complaints of discrimination, the DLD ruled, ECF No. 36 at 9-10:

While housed at HDSP, plaintiff maintained a "Halal" Religious Diet Card. See FAC, Ex. C, ECF No. 36 at 15. He alleges, "however, the diet implemented was a Religious Meat Alternative that provides a Halal meat entrée at dinner only and may be substituted at the discretion of Food Management Staff with an vegetarian option." FAC, ECF No. 36 at 2.

Plaintiff was transferred to the California Substance Abuse Treatment Facility (CSATF) in October 2011. He alleges that there he "requested a Kosher diet twice and a R.M.A. [diet] once via C.D.C. [Form] 3030 [Religious Diet Request] and all request[s] went unanswered." FAC, ECF No. 36 at 2.

In April 2013, plaintiff was transferred to SCC. Plaintiff states in his opposition to the pending motion for summary judgment that, "[i]n April 2014, Defendant Giurbino's directive was again used to deny Plaintiff halal meals while residing at Sierra Conservation Center." ECF No. 79 at 2; see also id. at 23-8, Pl. Ex. D (Apr. 16, 2014 Second Level Decision in Appeal Log No. SCC-X-14-00336, with attached Giurbino Memorandum, denying plaintiff's requests that Halal meat be served at breakfast and lunch as well as dinner; that there be no Halal meat substitutes; and that fish be Halal).

At the core of plaintiff's FAC is his claim that existing CDCR regulations and policies fail to accord Muslim inmates with the same dietary deference accorded Jewish inmates. Plaintiff alleges that "nutrition is not the issue, being Halal (lawful) is the issue." FAC, ECF No. 36 at 4. Plaintiff explains, id. at 4-5:

In contrast, plaintiff alleges, Muslim inmates are offered only a Halal entrée with the dinner meal, and non-Halal vegetarian meals at breakfast and lunch. As alleged in the FAC, id. at 4-5:

The FAC alleges that defendant Giurbino is civilly liable based on his "memorandum to Associate Directors-Division of Adult Institutions, Wardens, [and] Correctional Food Managers that contains provisions on how the Halal meat is to be cooked, stored and purchased." FAC at 3. Plaintiff asserts that defendant "Mr. Giurbino's memorandum is a CDCR state-wide policy. Anywhere Mr. Robinson is subject to [be] transferred to, he will encounter the same religious impediments." FAC at 6. Plaintiff asserts that defendant Giurbino improperly added language in his memorandum that was later reflected in the DOM, but is not authorized by enabling regulation 15 Cal. Code Regs. § 3054.3, see FAC at 3-4:

Pursuant to the FAC, plaintiff seeks a fully Halal diet or, alternatively, a fully Kosher diet, and compensatory and punitive damages. FAC at 6-7.

C. Plaintiff's Deposition Testimony

Plaintiff testified as follows at his June 4, 2015 deposition. See ECF No. 71 (Lodged Transcript of Pl. Depo.). Plaintiff was initially incarcerated under the authority of CDCR in 2006, at R.J. Donovan Correctional Facility. Plaintiff was transferred to HDSP in December 2007, where he remained until August 2011, when he was transferred to CSATF. Plaintiff was transferred to SCC in April 2013. Pl. Depo. at 9:21-10:25.

Plaintiff converted to Islam in September 2007 and his sincerely held religious beliefs dictate that he follow a Halal diet.9 Id. at 12:11-2. A proper Halal diet includes raw or natural food and meat that has been slaughtered according to religious principles. Id. at 20:10-21:20. At a minimum, the meat must be certified Halal, and the vegetables need to be Halal or at least organic. Id. at 26:18-25; 27:12-6; 55:9-16. The packaging of properly certified Halal food bears the letter "M" and the symbol of a crescent moon. Id. at 22:6-18. Food bearing a crescent moon and the letter "H" may not be Halal. Id. at 22:19-23:8. Plaintiff has "been eating the Halal with the H because that's what they give us." Id. at 43:11-2. The only way Muslims can be certain that a particular food is Halal is by reviewing a list of the ingredients and seeing that it is certified with the letter "M" and a crescent moon. Id. at 23:14-9; 24:2, 19-21; 26:11-6; 27:3-5; 27:20-28:4; 33:3-25; 35:8-36:7; 37:2-38:10; 39:3-7; 43:6-8; 44:19-22. Plaintiff conceded that it is unlikely CDCR will provide an opportunity for such scrutiny. Id. at 23:20-3. However, when plaintiff was "back east," he received Halal food on a sealed tray, with an M or H for Halal, or J or K for Kosher, and a list of the ingredients for his review. Id. at 34:1-47.

The only Halal food provided by CDCR is the entrée at the dinner meal — usually a beef patty, chicken patty or two turkey franks, but sometimes fish, egg rolls or pizza. The Halal entrée is placed on the same meal tray as Haram (non-Halal) food items, thus contaminating the Halal food. Id. at 25:22-26:3; 32:5-25; 34:9, 13-24; 36:8-10; 39:22-40:4; 58:6. The fish is not necessarily Halal. When offered fish, plaintiff declines it, asks for another potato, or takes the regular tray instead. Id. at 68:24-70:12. Plaintiff also declines the fish as a personal choice because it previously made him ill. Id. at 70:14-71:15; 75:8-12. As a RMAP participant, plaintiff is provided the Vegetarian Diet at lunch and breakfast, which includes the option of obtaining Halal-certified peanut butter and/or cheese for additional protein. Id. at 34:25-35:7.

Plaintiff maintains that the RMAP does not provide a Halal diet. Id. at 59:10-60:13. He submitted a more recent administrative grievance clearly seeking a fully Halal diet, "for the whole food, all of the food, not just the meat. . . ." Id. at 39:13-21; see Pl. Oppo. to MSJ, Ex. D, ECF No. 79-1 at 24-5. Plaintiff seeks "a sealed tray that had the ingredients on it and the markings that it is certified Halal. . . . You see the ingredient[s]. You see that it's certified Halal, and it's sealed to protect it from cross-contamination. . . . with the crescent and the M." Id. at 40:8-15, 20. However, it may be acceptable to receive a fully-sealed Halal meal tray without the crescent and M certification, provided plaintiff receives a list of ingredients for review. Id. at 40:24-43:5.

Plaintiff is not seeking, by this action, to receive Halal meat when other inmates are not receiving meat; it is acceptable to plaintiff that he receive meat at the same frequency as other inmates. Hence, if the regular meal provides meat, then plaintiff believes he is entitled to be served Halal meat at that meal. Id. at 46:11-49:25; 50:4-10. However, plaintiff is not a vegetarian and eating the Vegetarian Diet at breakfast and lunch causes him physical distress, particularly constipation, as a result of eating cheese, soy and peanut butter as protein alternatives. Id. at 85:11-91:18.

It is religiously permissible for plaintiff to eat an Orthodox Kosher diet as an alternative to a fully Halal diet. Id. at 56:23-4. If a fully Halal diet is not available, then eating Kosher would be the option most aligned with plaintiff's religious beliefs. Id. at 56:7-11. Plaintiff explained that "Kosher is similar, close[r] than any other diet as far as what Islam practices." Id. at 59:1-3; see also 24:22-25; 58:14-21 (eating available food is permissible if plaintiff is not being willfully disobedient). Moreover, CDCR fully meets the religious dietary requirements of its Jewish inmates, by providing entire Kosher meals sealed in plastic to prevent cross contamination. Id. at 24:4-7; 39:18-21. Plaintiff described the differences between the RMAP and JKDP as follows, id. at 83:1-84:22; see also 84:23-85:10:

Plaintiff requested a Kosher diet in October 2008 because a Halal diet was not available and the RMAP had not yet been implemented. Id. at 57:17-58:6; 58:24-59:7; 60:14-8. Plaintiff's request for a Kosher diet was denied because plaintiff is not Jewish and it was anticipated that he would soon be receiving Halal meals. Id. at 59:10-1. In 2008 or 2009, while at HDSP, plaintiff received a diet card designated Halal, prior to the implementation of the RMAP. Id. at 60:18-61-63:22; see also FAC, Pl. Ex. C-A, ECF No. 36 at 15. Plaintiff later participated directly in the RMAP. Id. at 60:22-63:22. He continued to use the HDSP-issued diet card issued at CSATF and SCC, with the addition of a red sticker designating his participation in the RMAP. Id. at 65:21-68:23; 79:18-23.

However, at the time of his deposition on June 4, 2014, plaintiff testified that he was not then in the RMAP and had been taking the regular meal tray at SCC for the last month and a half. Id. at 34:10-1; 71:16-20; 73:20-4. This was due to an erroneous administrative determination, in response to a new grievance filed by plaintiff, that plaintiff had never been in the RMAP. Id. at 76:5-25; 77:16. Plaintiff testified that he had completed the necessary paperwork (CDC Form 3030) when he arrived at SCC to obtain the appropriate red sticker on his diet card, and that his name is on the SCC "Halal Religious Meal List" for Facility D. Id. 77:16-78:7; 79:18-24; see also FAC, Pl. Ex. D-A, ECF No. 36 at 17. At the time of his deposition, plaintiff had not requested that he be re-admitted to the RMAP because "[s]omebody [else] dropped the ball" and, in any case, the RMAP "is not Halal. So and in that case, it doesn't really matter what they give me if it's all Haram now." Id. at 77:5-14, 78:6.

Plaintiff is suing defendant Giurbino because he authored the subject March 18, 2010 Memorandum which established the directive policy for the RMAP. Plaintiff has never met defendant. Id. at 79:25-81:21. Plaintiff challenges the Giurbino Memorandum and RMAP on the following grounds: (1) the RMAP does not provide a Halal diet, only an Halal entrée with each evening meal; (2) the RMAP authorizes correctional food managers to substitute the vegetarian option for breakfast and lunch, id. at 81:22-82:25; and (3) the RMAP diet is not on "parity" with the Jewish Kosher Diet Program (JKDP). Plaintiff contends that neither of the first two grounds are authorized by the regulation establishing the RMAP, only by the Giurbino Memorandum and the resulting DOM provision.

Pursuant to this lawsuit, plaintiff has "wanted from the beginning [to have CDCR] observe my religious diet to the fullest." Id. at 91:22-5. The injunctive relief plaintiff seeks is to be served a complete Halal meal at breakfast, lunch and dinner, on a sealed tray that identifies all ingredients and is Halal certified with the "M" and crescent moon. Id. at 93:11-22. Alternatively, plaintiff seeks full participation in the JKSP, or the means to purchase his own food. Id. at 92:4-6. Although SCC would permit plaintiff to purchase and consume food from an outside Halal vendor, plaintiff doesn't have the money to do so. Id. at 93:8-10. Plaintiff seeks damages in the amount of one million dollars for "purchasing my own food for the rest of my life in CDC." Id. at 92:10-6; 92:25-93:10. Plaintiff also seeks declaratory relief pursuant to a finding that the RMAP is inadequate, and his costs in bringing this action. Id. at 93:23-94:16.

V. Analysis

A. Preliminary Considerations

Defendant seeks dismissal of plaintiff's damages claims on the merits or, alternatively, on qualified immunity grounds, and asserts that plaintiff's claims for declaratory and injunctive relief are moot and directed against the wrong official.10 Before turning to the substance of the claims, the court considers defendant's preliminary arguments.

1. Availability Of Injunctive Relief

Under RLUIPA, plaintiff may proceed against defendant only in his official capacity for prospective injunctive relief. See Jones v. Williams, 791 F.3d 1023, 1031 (9th Cir. June 26, 2015) (citing Sossamon v. Texas, 131 S.Ct. 1651, 1658-59 (2011); Wood v. Yordy, 753 F.3d 899, 903-04 (9th Cir. 2014); and Oklevueha Native Am. Church of Haw. v. Holder, 676 F.3d 829, 840-41 (9th Cir. 2012)). Money damages are not available under RLUIPA against state officials sued in their official capacities, Alvarez v. Hill, 667 F.3d 1061, 1063 (9th Cir. 2012), or in their individual capacities, Wood, 753 F.3d at 901. However, plaintiff may obtain declaratory relief on his RLUIPA and Section 1983 claims. See Mayweathers v. Swarthout, 2011 WL 2746067 at *10, 2011 U.S. Dist. LEXIS 76413 at *32 (E.D. Cal. July 14, 2011) (findings and recommendations, adopted by order filed Aug. 26, 2011) (collecting cases).

Under Section 1983, plaintiff may also seek prospective injunctive relief against defendant in his official capacity. See Thornton v. Brown, 757 F.3d 834, 839 (9th Cir. 2013) (citing cases). "Official-capacity suits . . . generally represent only another way of pleading an action against an entity of which an officer is an agent. As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity." Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (citing, inter alia, Monell v. Dept. of Soc. Servs. of N.Y.C., 436 U.S. 658, 690 n.55 (1978)).

In an official-capacity action, a governmental entity may be liable under Section 1983 if it was the "moving force" behind the alleged violation of constitutional rights, based on the entity's "policy or custom." Graham, 473 U.S. at 166-67 (citations and internal quotation marks omitted). As the Ninth Circuit Court of Appeals explained in Hartmann v. California Dept. of Corrections and Rehabilitation, 707 F.3d 1114, 1127 (9th Cir. 2013):

Defendant contends that plaintiff's claims for injunctive relief are moot because plaintiff was transferred from HDSP, where his claims arose. See ECF No. 82 at 8. This contention is without merit. A case is moot only "when it has lost its character as a present, live controversy of the kind that must exist if the court is to avoid advisory opinions on abstract propositions of law." Walker v. Beard, 789 F.3d 1125, 1132 (9th Cir. June 18, 2015) (citations, internal quotation marks and punctuation omitted). It is clear that plaintiff is challenging the RMAP as an ongoing state-wide policy applied to plaintiff at each of the institutions in which he has been incarcerated, and the Giurbino Memorandum as the "moving force" behind the policy. As this court previously found in dismissing plaintiff's original complaint with leave to amend, plaintiff's transfer did not moot his claims against defendant in his official capacity because plaintiff appeared to "be alleging that a CDCR policy prevents him from receiving a `full Halal meal.'" See ECF No. 31 at 9:20-6.

Accordingly, defendant is not entitled to summary judgment on plaintiff's requests for injunctive relief on the ground that such relief is moot.

Defendant also contends that, despite remaining a CDCR official and administrator, he is without authority to "change policy as it relates to the Religious Meat Alternate Program" or control the food service within particular institutions. Giurbino Decl., ECF No. 84-2 at 2. Defendant has filed a declaration in which he states that he retired from CDCR effective December 31, 2011, following a two-year term as Director of CDCR's Division of Adult Institutions. From January 1, 2012 to the present, defendant has been employed as a retired state annuitant in the capacity of Chief Deputy Administrator, Division of Adult Institutions. Defendant describes his current responsibilities as follows, Giurbino Decl., ECF No. 84-2 at 1-2:

When a prisoner is seeking injunctive or declaratory relief against prison officials, the court's inquiry into causation is "broader and more generalized" than when considering the more refined causal connection required in an individual damages claim. See Leer v. Murphy, 844 F.2d 628, 633-34 (9th Cir.1988) (citation omitted); accord, Peralta v. Dillard, 744 F.3d 1076, 1083-84 (9th Cir. 2014). In considering the appropriateness of granting injunctive relief, the court must "focus on whether the combined acts or omissions of the state officials responsible for operating the state's penal system created living conditions" that violate the Constitution. Leer, 844 F.2d at 633 (emphasis added).

The court finds it significant that defendant retains an administrative position in the same office — Division of Adult Institutions — from which he issued his challenged Memorandum. While defendant's direct responsibilities have changed, he remains a senior administrator overseeing the operations of CDCR's adult correctional institutions. It is unreasonable to assume that defendant is now precluded from effecting statewide CDCR policy and/or implementing injunctive relief ordered by the court. As the author of the subject Memorandum in his capacity as Director of the Division of Adult Institutions, and as a continuing administrator within the Division of Adult Institutions, defendant Giurbino remains the most appropriate prison official named, and remaining, as a defendant in this action.

Moreover, should defendant prove to be without authority to implement any injunctive relief that may be entered in this case, the court is authorized to substitute as a defendant herein Mr. Giurbino's successor Director of CDCR's Division of Adult Institutions,11 or other appropriate official. As set forth in Rule 25, Federal Rules of Civil Procedure:

Fed. R. Civ. P. 25(d); see Hoptowit v. Spellman, 753 F.2d 779, 781-82 (9th Cir. 1985) (authorizing continuation of a class action suit for injunctive relief against defendant official's successor). This option may be particularly applicable here, where it is clear that defendant's successor(s) continue to administer the RMAP as originally set forth in the Giurbino Memorandum.12

Finally, the court is cognizant that in cases brought by prisoners involving conditions of confinement, any grant of prospective injunctive relief "shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. . ., is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief." 18 U.S.C. § 3626(a)(1). See Oluwa v. Gomez, 133 F.3d 1237, 1239 (9th Cir. 1998). "In general, injunctive relief is to be used sparingly, and only in a clear and plain case. . . only when irreparable injury is threatened, and [without] unnecessary disruption to the state agency's normal course of proceeding." Gomez v. Vernon, 255 F.3d 1118, 1128 (9th Cir. 2001).

For these several reasons, the court finds that defendant is not entitled to summary judgment on plaintiff's requests for declaratory and prospective injunctive relief against defendant in his official capacity.

2. Plaintiff's Damages Claims

Defendant correctly contends that, in his official capacity, he is immune from plaintiff's damages claims. See Peralta v. Dillard, 744 F.3d 1076, 1083-84 (9th Cir. 2014) (official capacity suits under Section 1983 are immune from damages under the Eleventh Amendment's grant of sovereign immunity) (citing Quern v. Jordan, 440 U.S. 332, 345 (1979)); Jones, supra, 791 F.3d at 1031 (RLUIPA claims are appropriate only as official capacity suits for declaratory and prospective injunctive relief).

Defendant further contends that the FAC and record fail to demonstrate his personal involvement in the alleged violation of plaintiff's rights sufficient to render him liable for damages in his individual capacity. The FAC alleges that defendant Giurbino, "by his own authority" and as articulated in his March 10, 2010 Memorandum, established unconstitutional statewide policies governing the implementation and operation of the RMAP by defendant and his subordinates. This court previously denied defendant's motion to dismiss based on the contention that the FAC fails to sufficiently allege defendant Giurbino's personal involvement in implementing the RMAP. The court found:

Review of the record developed on summary judgment supports the court's initial assessment. The revised regulation, effective February 2, 2010, broadly directs that "[r]eligious meat alternates (meat that has been certified as halal) shall be available at all institutions," and the RMAP "shall be administered in accordance with the provisions of this Article." 15 Cal. Code Regs. § 3054.3. Defendant's Memorandum, issued March 18, 2010, narrowly construes and implements the revised regulation to limit the RMAP to Halal dinner entrées with the Vegetarian Diet for breakfast and lunch. The DOM provision, effective July 13, 2010, mirrored the language of the Giurbino Memorandum, directing that "[t]he RMAP is only offered at the dinner meal," and "participants in the RMAP shall receive the vegetarian option at breakfast and lunch." See DOM, Art. 51, § 54080.14; see also RFJN, Ex. F, ECF No. 72-5 at 43 (July 13, 2010 Notice of Change to DOM, Chap. 5, Art. 51, Food Service).

Defendant maintains that is was "the DOM, and not Defendant's memo, which set into motion the manner in which the RMAP is implemented. . . . Defendant's memo did not set establish (sic) policy; it simply announced a policy already put in place." ECF No. 72-2 at 11. However, the above-noted chronology of these matters demonstrates that defendant's Memorandum was issued between the effective dates of the pertinent regulation and the DOM provision. Defendant has submitted excerpts from the DOM describing the promulgation, review, approval and dissemination process for new DOM provisions. See RFJN, Ex. F, ECF No. 72-5 at 36-43. However, defendant has submitted no copy of the subject DOM provision in draft form, which would support defendants' assertion that his Memorandum only "announced a policy already put in place." Indeed, defendant has submitted no evidence contradicting plaintiff's allegation that the Giurbino Memorandum, which was "effective immediately" and intended to be specifically relied upon by all of CDCR's institutional Correctional Food Managers, itself established the statewide policy that was later reflected in the DOM.

"Personal-capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law. . . . [T]o establish personal liability in a § 1983 action, it is enough to show that the official, acting under color of state law, caused the deprivation of a federal right." Graham, 473 U.S. at 165-66 (citations omitted); see also Rizzo v. Goode, 423 U.S. 362, 371 (1976); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980). A supervisor "can be held liable in his individual capacity . . . [if] he set in motion a series of acts by others, or knowingly refused to terminate a series of acts by others, which he knew or reasonably should have known, would cause others to inflict the constitutional injury." Blankenhorn v. City of Orange, 485 F.3d 463, 485 (9th Cir. 2007) (citations, punctuation and internal quotation marks omitted); see also Preschooler II v. Clark County School Board, 479 F.3d 1175, 1182 (9th Cir. 2007); Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989).

Pursuant to these standards, the court finds that defendant's apparently exclusive authority in establishing the challenged policies pursuant to his Memorandum issued March 18, 2010, and reflected in the DOM, Art. 51, § 54080.14, effective July 13, 2010 — and as reflected in the March immediate implementation of his plan by subordinates — satisfies the personal involvement requirement for establishing individual liability under Section 1983. Accord, Shabazz v. Giurbino, 2014 WL 4344368, **1-3 (E. D. Cal. Aug. 28, 2014) ("The policy [Giurbino's Mar. 18, 2010 Memorandum] identified and upheld by all named Defendants is at the heart of Plaintiff's complaint regarding the [RMAP], and these Defendants were personally involved in the alleged constitutional violations[.]"); see also Mayweathers, 2011 WL 2746067 at *6, 2011 U.S. Dist. LEXIS 76413 at *20 ("Plaintiff is . . . challenging . . . the substance of the decisions, which were expressly based on CDCR policies" relied upon to deny plaintiff Halal meat or, alternatively, Kosher meat).

Nevertheless, for reasons later discussed, the court finds that defendant is entitled to qualified immunity and therefore will recommend summary judgment for defendant on plaintiff's damages claims. Before turning to the qualified immunity issue, however, the court will address the substance of plaintiff's claims and the state of the record before the court on summary judgment.

B. Plaintiff's Constitutional Claims Pursuant to 42 U.S.C. § 1983

1. Establishment Clause Claim

Defendant moves for summary judgment on plaintiff's claim that requiring plaintiff to eat vegetarian meals at breakfast and lunch, as a condition for obtaining an Halal entrée at dinner, violates the First Amendment's proscription against the establishment of religion, because a "[v]egetarian diet is an [sic] religious activity," and plaintiff "is not a vegetarian." FAC at 6. Defendant contends that CDCR's Vegetarian Diet neither advances nor inhibits religion,13 and meets the three-part test for evaluating an Establishment Clause claim set forth in Lemon v. Kurtzman, 403 U.S. 602 (1971).

The First Amendment's Establishment Clause, applied to the states by the Due Process Clause of the Fourteenth Amendment, prohibits governments from enacting a law "respecting an establishment of religion." U.S. Const. amend. I. "The clause `means at least' that `[n]either a state nor the Federal Government . . . can pass laws which aid one religion, aid all religions, or prefer one religion over another.'" Hartmann, 707 F.3d at 1125 (quoting Everson v. Board of Education, 330 U.S. 1, 15 (1947)). Thus, the Establishment Clause "`mandates governmental neutrality between religion and religion, and between religion and nonreligion.'" McCreary County, Ky. v. ACLU, 545 U.S. 844, 860 (2005) (quoting Epperson v. Arkansas, 393 U.S. 97, 104 (1968)). "The principle that government may accommodate the free exercise of religion does not supersede the fundamental limitations imposed by the Establishment Clause, which guarantees at a minimum that a government may not coerce anyone to support or participate in religion or its exercise[.]" Lee v. Welsman, 505 U.S. 577, 577-78 (1992).

The prevailing test for assessing whether a challenged policy violates the Establishment Clause is set forth in Lemon, supra, 403 U.S. 602.14 In Lemon, the Supreme Court adopted the following three-part test: "First, the statute [or challenged policy] must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute [or challenged policy] must not foster an excessive government entanglement with religion." 403 U.S. at 612-13 (citations and internal quotation marks omitted).

Defendant contends broadly that CDCR's Vegetarian Diet satisfies the Lemon test. However, plaintiff does not challenge the Vegetarian Diet per se, but the requirement that he obtain Vegetarian Diet meals at breakfast and lunch in order to obtain a Halal entrée at dinner. Plaintiff's claim is that the RMAP's vegetarian-breakfast-and-lunch-policy violates the Establishment Clause. This policy is not set forth in the regulations, but in the Giurbino Memorandum and in the DOM.

Application of the Lemon test to the RMAP's vegetarian-breakfast-and-lunch-policy fails to demonstrate a violation of the Establishment Clause. Despite plaintiff's protest that a "vegetarian diet is a religious activity," CDCR's Vegetarian Diet was intentionally revised for the express purpose of rendering it secular. As now framed, the "Vegetarian Diet" is broadly offered to all inmates for "religious, personal, or ethical dietary needs." See 15 Cal. Code Regs. § 3054.1. This revised regulation was enacted as a deliberate modification of CDCR's former "Religious Vegetarian Diet," and thus demonstrates an inherently secular legislative purpose, satisfying the first prong of the Lemon test.

Under Lemon's "primary effect" second prong, "[w]hat is crucial is that a government practice not have the effect of communicating a message of government endorsement or disapproval of religion." Lynch v. Donnelly, 465 U.S. 668, 692 (1984) (O'Connor, J., concurring). Because the revised Vegetarian Diet is secular by definition, requiring RMAP participants to obtain vegetarian meals when RMA meals are unavailable conveys no greater endorsement of religion that if the alternate meals were regular food trays. The revised "reason blind" nature of the Vegetarian Diet disavows the endorsement of any religion that may be premised on, or find expression in, a vegetarian diet. Because the RMAP's vegetarian-breakfast-and-lunch-policy neither advances nor inhibits religion, the second prong of the Lemon test is met.

Finally, because obtaining a CDCR vegetarian meal is not an inherently religious activity, the government is not entangled in religious expression or administration by requiring RMAP participants to obtain the Vegetarian Diet at breakfast and lunch, thus satisfying the third and final prong of the Lemon test.

For these reasons, the undersigned recommends that summary judgment be granted to defendant on the merits of plaintiff's Establishment Clause claim.

2. Free Exercise Claim

In the FAC, plaintiff contends that the denial of his request for a fully Kosher diet (because a fully Halal diet is not available) violates his First Amendment right to freely exercise his religion. See FAC, ECF No. 36 at 3-4. Plaintiff explains that "[t]o allow CDC to infringe on Mr. Robinson's free exercise of religion without similar infringement to other faiths tend to show favor to other faiths and or disdain for the Islamic faith." Id. at 4. At his deposition, plaintiff contended that the denial of his request for a fully Halal diet or, alternatively, a fully Kosher diet, violates his free exercise rights under the First Amendment. See Pl. Depo. at 56:7-11, 23-4; 57:17-58:6; 58:24-59:1-3, 7.

Defendant moves for summary judgment on plaintiff's free exercise claim on the ground that CDCR's provision of the RMAP-Vegetarian Diet in lieu of a fully Halal diet or fully Kosher diet is reasonably related to legitimate penological interests.15 The court's analysis proceeds under Turner v. Safley, 482 U.S. 78 (1987). Pursuant to Circuit authority reversing summary judgment in analogous cases, the court concludes that there remain triable issues related to the Turner analysis.

a. Legal Standards for Assessing a Free Exercise Claim

"Inmates clearly retain protections afforded by the First Amendment . . . including its directive that no law shall prohibit the free exercise of religion." O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987) (citations omitted). Nevertheless, "[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system." Id., 482 U.S. at 348. "Inmates . . . have the right to be provided with food sufficient to sustain them in good health that satisfies the dietary laws of their religion." McElyea v. Babbitt, 833 F.2d 196, 198 (9th Cir. 1987).

To implicate the Free Exercise Clause, plaintiff must demonstrate that prison officials substantially burdened the free exercise of his religion by preventing him from engaging in conduct which he sincerely believes is consistent with his faith. Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008). The underlying religious belief must be "sincerely held." Malik v. Brown, 16 F.3d 330, 333 (9th Cir. 1994); see also Shakur, 514 F.3d at 884-85 (noting that the "sincerity test," not the "centrality test," applies to a free exercise analysis).

Plaintiff must also demonstrate that the burden on the free exercise of his sincerely held religious beliefs is substantial. "In order to reach the level of a constitutional violation, the interference with one's practice of religion must be more than an inconvenience; the burden must be substantial[.]" Freeman v. Arpaio, 125 F.3d 732, 736 (9th Cir. 1997) (citation and internal quotation marks omitted), overruled in part on other grounds by Shakur, 514 F.3d at 884-85. A substantial burden exists where the state "put[s] substantial pressure on an adherent to modify his behavior and to violate his beliefs[.]" Thomas v. Review Board, 450 U.S. 707, 718 (1981).

A prison policy that substantially burdens a prisoner's right to freely exercise his religion will be upheld only if it is reasonably related to a legitimate penological interest. Id. As explained by the Ninth Circuit in Shakur, the following four factors, identified by the Supreme Court in Turner v. Safley, supra, must be balanced in determining whether a prison regulation is reasonably related to a legitimate penological interest:

Shakur, 514 F.3d at 884 (citing Turner, 482 U.S. at 89-90) (internal quotation marks and citation omitted).

b. Analysis of Turner Factors

Defendant does not challenge plaintiff's testimony that he sincerely believes eating Halal food, as exclusively as possible, is essential to his faith, or that, in the absence of a fully Halal diet, a fully Kosher diet provides meals most closely aligned with his faith. Nor does defendant refute plaintiff's testimony that the unavailability of a fully Halal or fully Kosher diet imposes a substantial burden on the exercise of his sincerely held religious beliefs. Defendant instead focuses on the Turner analysis.

i. Rational Connection Between Challenged Policies and Penological Interests

The first Turner factor requires the court to examine whether there is a "valid, rational connection" between the challenged prison policy and the "legitimate governmental interest put forward to justify it." Turner, 482 U.S. at 89 (citation and internal quotation marks omitted). The challenged policy "cannot be sustained where the logical connection between the regulation and the asserted goal is so remote as to render the policy arbitrary or irrational. Moreover, the governmental objective must be a legitimate and neutral one." Id. at 89-90.

Defendant asserts that the first Turner factor is satisfied by CDCR's "legitimate interest in running a simplified food service," Ward v. Walsh, 1 F.3d 873, 877 (9th Cir. 1992), while meeting the individual food preferences of its inmates. Defendant asserts that "by offering a halal meat alternative with dinner . . . CDCR is able to accommodate the religious dietary needs of Muslim inmates," and "by offering the Vegetarian Diet, CDCR is able to accommodate the religious dietary needs of Muslim inmates and also the needs of inmates with ethical and personal objections to eating meat." MSJ, ECF No. 72-2 at 7. Defendant contends that the RMAP, in tandem with the Vegetarian Diet, enables CDCR "to accommodate the religious dietary needs of all Muslim inmates in a secure and cost-effective manner." ECF No. 82 at 3. Thus, concludes defendant, "there is a valid rational connection between the RMAP and Vegetarian Diet and CDCR's interest in reasonably accommodating the dietary needs of its inmate population." MSJ, ECF No. 72-2 at 7.

Plaintiff asserts in opposition that "the legitimate interest of running a simplified food service process should be obsolete because CDCR has already in place a simplified food service process under the Jewish Kosher Diet Program that meets the same criteria o[f] [the] Halal Diet Program and most of the foods may be halal for the Plaintiff to consume." Oppo., ECF No. 79 at 6.

Defendant responds only that "[p]laintiff's argument does not acknowledge the reality that thousands of inmates have religious dietary needs that must be met." Reply, ECF No. 82 at 4.

Defendant has provided no substantive evidence in support of his assertion that the RMAP-Vegetarian Diet provides a "simplified food service process" for Muslim inmates, as compared to the food service process supporting Jewish inmates in the JDKP, or other inmates with regular diet plans. Nor has defendant provided any evidence comparing the simplicity or efficiency of providing the RMAP-Vegetarian Diet to Muslim inmates, instead of allowing Muslim inmates to have fully Kosher diets within the JKDP if they so request. Nevertheless, case law supports a finding that the first Turner factor weighs slightly in defendant's favor.

In Ward, despite remanding the case for specific findings on the second, third and fourth Turner factors, the Ninth Circuit found that "[t]he prison has a legitimate interest in running a simplified food service, rather than one that gives rise to many administrative difficulties. Since the policy of not providing special diets is related to simplified food service, the first [Turner] factor weighs in favor of the government." Ward, 1 F.3d at 877 (citation omitted); accord, Sefeldeen v. Alameida, 238 Fed. Appx. 204, 206 (9th Cir. 2007) ("the legitimate governmental interest [] to reasonably accommodate thousands of inmates' religious dietary needs while also considering budgetary, staff, and security limitations" satisfies the first Turner factor).

Similarly, in Shakur, despite remanding the case for specific findings on the third and fourth Turner factors, the Ninth Circuit found that "the reduction of administrative and budgetary burdens" were legitimate penological interests upon which the Arizona Department of Corrections (ADOC) "could rationally conclude that denying Muslim prisoners kosher meals would simplify its food service and reduce expenditures." Shakur, 514 F.3d at 885-86. "Although the marginal cost and administrative burden of adding [plaintiff] to the roster of kosher-diet inmates would be small or even negligible, we cannot conclude that no rational nexus exists between ADOC's dietary policies and its legitimate administrative and budgetary concerns.... Hence, the first Turner factor weighs slightly in favor of ADOC." Id. at 886.

Pursuant to these cases, the court finds that CDCR's legitimate interests in minimizing costs and operating a simplified food service program are rationally related to the maintenance of its current diet options, including maintenance of the RMAP-Vegetarian Diet as the only diet option available to Muslim inmates. Therefore, the court finds that the first Turner factor weighs slightly in defendant's favor in maintaining the status quo.

ii. Alternate Means for Plaintiff to Practice His Religion

"The second Turner factor requires us to consider whether [plaintiff] has alternative means by which he can practice his religion. The relevant inquiry under this factor is not whether the inmate has an alternative means of engaging in the particular religious practice that he or she claims is being affected; rather, we are to determine whether the inmates have been denied all means of religious expression." Ward, 1 F.3d at 877 (citing O'Lone, 482 U.S. at 351-52).

Plaintiff testified that, diet aside, he practices his religion in several ways, including reading the Quran, Sunnah and Hadith, Pl. Depo. at 14:23-4; regularly attending the religious services Jummah and Talim, id. at 30:22-31:18; and observing the religious holy days Ramadan and Eid A-Fitr, id. at 31:19-21:4. Plaintiff does not contend that he is restricted in any of these activities, or that he is otherwise circumscribed in practicing his religion. Plaintiff's ability "to participate in other religious observances" of his faith supports the second Turner factor. O'Lone, 482 U.S. at 352; see also Shakur, 514 F.3d at 886.

Accordingly, the court finds that the second Turner also weighs in defendant's favor.

iii. Impact of Accommodation

The third Turner factor examines "the impact that accommodation of [plaintiff's] asserted right would have on other inmates, on prison personnel, and on allocation of prison resources generally." O'Lone, 482 U.S. at 352 (citing Turner, 482 U.S. at 90). "When accommodation of an asserted right will have a significant `ripple effect' on fellow inmates or on prison staff, courts should be particularly deferential to the informed discretion of corrections officials." Turner, 482 U.S. at 90 (citation omitted).

Defendant contends that "[g]iven the number of inmates in the custody of CDCR, and the wide variety of religions practiced by them, there could be a significant `ripple effect' if Plaintiff is offered a halal meat alternative at every meal when he concedes that his religion does not require him to eat meat at every meal. The potential for other inmates to demand meat at every meal when their religion does not require it weighs in Defendant's favor as to the third Turner factor." MSJ, ECF No. 72-2 at 7.

Defendant misconstrues plaintiff's asserted right — he is not seeking Halal meat at every meal; rather he is seeking a fully Halal diet, served in a sealed tray, with meat provided at the same frequency it is provided to other inmates. Alternatively, plaintiff seeks a Kosher diet.

Plaintiff responds, Oppo., ECF No. 79 at 7:

In reply, defendant again misconstrues plaintiff's asserted right. Defendant asserts, "[p]laintiff offers no argument on the potential for detrimental impact on CDCR's operations. Instead, Plaintiff's opposition argues that because Jewish inmates receive Kosher meals for breakfast, lunch, and dinner, he should receive meat at all three meals as well." Reply, ECF No. 82 at 5.

In Shakur, the Ninth Circuit found insufficient record evidence and district court findings in support of Turner's third and fourth factors, and remanded for further findings on these matters. In considering the third Turner factor, the Ninth Circuit considered the arguments of defendant ADOC that accommodating Shakur's request for a Kosher diet "could look like favoritism to other inmates and could lead to a hostile prison environment," and "lead inmates to request diets that their religions did not require, increasing ADOC's costs for meals by exorbitant amounts." Shakur, 514 F.3d at 886 (internal quotation marks omitted). The Ninth Circuit discounted the favoritism argument, noting that this effect "`is present in every case that requires special accommodations for adherents to particular religious practices.'" Id. (quoting Ward, 1 F.3d at 878). Pursuant to Shakur and Ward, the court discounts defendant's favoritism argument here.

Additionally in Shakur, ADOC provided only the affidavit of its Pastoral Administrator in support of its assertion that accommodating plaintiff's request for Halal or Kosher meals would increase ADOC's costs "by exorbitant amounts." The Ninth Circuit criticized the affidavit's "conclusory assertion that providing all 850 of its Muslim prisoners with kosher meals would cost `an additional $1.5 million annually,' and providing them with Halal meat would `be in the millions of dollars annually.'" Id. at 887. The court found no evidentiary support for these statements, noting as follows, id.:

The Ninth Circuit concluded that it was unable to determine whether ADOC could prevail on the third Turner factor without further findings. Shakur, 514 F.3d at 886-87 (citing Ward, 1 F.3d at 878-79).

Previously, in Ward, the Ninth Circuit found insufficient evidence to support the general statements offered by a Nevada Warden that granting plaintiff's request for a Kosher diet would result in prohibitive increased costs. After acknowledging but minimizing the Warden's favoritism argument, the Ninth Circuit found, 1 F.3d at 878-79:

Similarly, in the present case, defendant has offered no evidence concerning the relative costs associated with providing plaintiff alone with a fully Kosher diet or a fully Halal diet, in lieu of the RMAP-Vegetarian Diet, nor any statistics showing the number of Muslim inmates who might pursue either of these options if plaintiff prevailed.17 Defendant has provided no declarations from any CDCR administrator or Correctional Food Manager addressing the costs associated with purchasing, storing, preparing and serving any type of inmate meal.

In light of the absence of any evidence demonstrating the logistical and financial impacts of accommodating plaintiff's requests for a fully Halal or fully Kosher diet, the court is unable to assess the merits of the third Turner factor. As in Shakur and Ward, further evidentiary development is required to enable this court to make specific findings concerning the impact of accommodating plaintiff's requests on other inmates, correctional staff, and prison resources generally.

iv. Readily Available Alternatives

The fourth Turner factor requires courts to consider whether there is an "absence of ready alternatives" to the challenged prison policy. Turner, 482 U.S. at 90. This factor requires the court to consider whether "there are ready alternatives to the prison's current policy that would accommodate [plaintiff ] at de minimis cost to the prison." Ward, 1 F.3d at 879. The "existence of obvious, easy alternatives may be evidence that the [challenged policy] is not reasonable, but is an `exaggerated response' to prison concerns." Turner, 482 U.S. at 90; see also Shakur, 514 F.3d at 887. The burden is on plaintiff to show that there are obvious, easy alternatives to the challenged policy. O'Lone, 482 U.S. at 350.

Defendant contends that plaintiff cannot meet this burden because, "[i]n his deposition, he conceded that the Vegetarian Diet is an acceptable alternative for Muslim inmates. He also testified that the Kosher Diet would not be an acceptable option." MSJ, ECF No. 72-2 at 8; Reply, ECF No. 82 at 5. Defendant directs the court to excerpts of plaintiff's deposition. See MSJ, Ex. A, ECF No. 72-4 at 11-12. Defendant misconstrues plaintiff's testimony. Review of the cited testimony, in the context of defendant's related questioning and plaintiff's complete deposition testimony and briefing in this action, demonstrates that plaintiff believes vegetarian food is permissible to eat "if it's Halal," but he does not want an exclusively vegetarian diet. Plaintiff testified that his faith requires (and that he physically requires) that he eat meat, and seeks Halal meat with same frequency as other inmates are served meat. In the absence of a fully Halal diet, plaintiff clearly seeks a fully Kosher diet, although he acknowledges it may not meet all the requirements of Halal.

Defendant has submitted no other evidence in support of the fourth Turner factor.

In contrast, as earlier noted, plaintiff attempts to meet his burden of demonstrating that there is an obvious, easy alternative to the RMAP-Vegetarian Diet — namely the fully Kosher diet offered by the existing JKDP. See Oppo., ECF No. 79 at 7 ("CDCR already has a simplified food service process in the CDCR Kosher Meal Provision Plan . . . . This provision meets halal requirements."). Plaintiff avers that his participation in the JKDP would "not jeopardize the safety or security of any institution, facility, staff, inmates and or the public." Id. However, plaintiff has no access to information concerning the actual logistical and financial impacts of authorizing this alternative.

In Shakur, the Ninth Circuit found that it "cannot determine whether the alternative kosher diet requested by Shakur places more than a de minimis burden on ADC." Shakur, 514 F.3d at 888. Again noting that the district court had made insufficient findings concerning the costs and feasibility of providing plaintiff with Kosher meals, requiring remand, the Ninth Circuit observed, id. at 887:

See also Ward, 1 F.3d at 879 (remanding for further development of the record on Turner's fourth factor because, "[o]n the record before us, we simply are unable to determine whether reasonable alternatives to this policy exist . . . . The district court . . . made no findings regarding the feasibility of such alternatives [and] we cannot speculate about their existence or the impact they would have on culinary services.").

In the present case, defendant has provided no relevant evidence. Based on this record, the court is unable to assess the merits of the fourth Turner factor. Further evidentiary development is required in order for this court to determine whether the existing JKDP is an obvious, easy alternative to the RMAP-Vegetarian Diet and a reasonable, feasible accommodation to plaintiff's sincerely held religious beliefs.

c. Summary of Free Exercise Analysis

In the absence of any significant evidence relative to the third and fourth Turner factors, the court declines to speculate whether CDCR is precluded by the practical considerations reflected in those factors from according plaintiff a Kosher or fully Halal diet. While the first and second Turner factors weigh in defendant's favor, the court cannot make a determination on the third and fourth Turner factors. As the Ninth Circuit concluded in Shakur, absent an adequate record permitting full assessment of these factors, the court cannot determine the merits of plaintiff's First Amendment Free Exercise claim. Accord, Mayweathers, supra, 2011 WL 2746067 at *9-10, 2011 U.S. Dist. LEXIS 76413 at *28-30.

Because defendant has not produced evidence sufficient to support judgment in his favor, and because significant material factual disputes remain, defendant's motion for summary judgment on the merits of plaintiff's Free Exercise claim should be denied.

3. Equal Protection Claim

Plaintiff contends that he, a Muslim observant of Islamic Dietary Laws, is not accorded the same opportunity to practice his religious beliefs as Jewish inmates, in violation of the Fourteenth Amendment's Equal Protection Clause. Jewish inmates receive fully Kosher foods at each meal, in covered trays to prevent cross-contamination with non-Kosher foods. Plaintiff, under the RMAP, receives a Halal entrée at dinner only, on the same tray as Haram food, and the Vegetarian Diet at lunch and dinner. Plaintiff seeks a fully Halal diet or, alternatively, a fully Kosher diet, which he asserts is religiously acceptable to him, as set forth in his FAC, ECF No. 36 at 5:

Defendant moves for summary judgment on this claim based on the following, Reply, ECF No. 82 at 6:

The Equal Protection Clause of the Fourteenth Amendment provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV. This directive establishes the rule that "all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985). Prisoners are protected by the Equal Protection Clause from intentional discrimination based upon their religion. Shakur, 514 F.3d at 891. However, prisons are not required to provide identical resources to different religions. They need only make a "good faith accommodation of the [prisoner's] rights in light of practical considerations." Allen v. Toombs, 827 F.2d 563, 569 (9th Cir. 1987) (citation omitted); accord, Freeman,125 F.3d at 737.

"`To state a claim under 42 U.S.C. § 1983 for a violation of the Equal Protection Clause of the Fourteenth Amendment 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.'" Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013) (quoting Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.1998)). Focusing on this requirement of discriminatory intent, defendant argues that neither the RMAP nor the Vegetarian Diet are so premised, MSJ, ECF No. 72-2 at 9:

However, the appropriate analysis for assessing the merits of a prisoner's Equal Protection claim turns not on defendant's intent but on whether the resulting disparate policy is reasonably related to legitimate penological interests, as determined pursuant to a Turner analysis. DeHart v. Horn, 227 F.3d 47, 61 (3rd Dist. 2000), cited with approval by the Ninth Circuit in Shakur, 514 F.3d at 891. "Under the Turner test, [plaintiff] cannot succeed `if the difference between the defendants' treatment of him and their treatment of Jewish inmates is "reasonably related to legitimate penological interests."` DeHart, 227 F.3d at 61 (quoting Clark v. Groose, 36 F.3d 770, 773 (8th Cir. 1994))." Shakur, 514 F.3d at 891. "Prisoners enjoy religious freedom and equal protection of the law subject to restrictions and limitations necessitated by legitimate penological interests." Freeman, 125 F.3d at 737 (citing Bell v. Wolfish, 441 U.S. 520, 545-46 (1979)).

Given the absence of sufficient evidence to support a conclusion under Turner in the Free Exercise context, the court is also unable to determine whether limiting plaintiff to the RMAP-Vegetarian Diet is reasonably related to legitimate penological interests under plaintiff's Equal Protection claim. As found by the district court in Hudson v. Maloney, 326 F.Supp.2d 206, 213-14 (D. Mass 2004) (quoted with approval in Shakur, 514 F.3d at 892):

See also Shakur, 514 F.3d at 891 (reversing district court's grant of summary judgment for defendant on plaintiff's Equal Protection claim due to inadequate Turner findings, noting that "[f]urthermore, it is not at all clear that the prison's purported cost justification is even valid given the large expense it already undertakes to provide its Jewish inmates with costly kosher meals (and in some cases, even costlier orthodox kosher meals)."); accord, Mayweathers, supra, 2011 WL 2746067 at *11, 2011 U.S. Dist. LEXIS 76413 at *33-5 (denying summary judgment on plaintiff's Equal Protection and Free Exercise claims due to lack of evidence on the third and fourth Turner factors).

Accordingly, because material factual disputes remain whether legitimate penological interests justify CDCR's disparate treatment of Muslims concerning their observation of Islamic dietary laws, defendant's motion for summary judgment on the merits of plaintiff's Equal Protection claim should be denied.

4. Qualified Immunity on Section 1983 Damages Claims

The RMAP, as implemented by the Giurbino Memorandum, may or may not have struck a constitutionally acceptable balance between plaintiff's religious dietary needs and legitimate institutional considerations. For the reasons already explained, that question cannot be answered on the present record. However, the question remains whether the doctrine of qualified immunity protects defendant Giurbino from individual liability in the event that a constitutional violation is ultimately found.

"Qualified immunity is an affirmative defense to damage liability; it does not bar actions for declaratory or injunctive relief." Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518, 527 (9th Cir. 1989); see also Vance v. Barrett, 345 F.3d 1083, 1091 n.10 (9th Cir. 2003) ("a defense of qualified immunity is not available for prospective injunctive relief"); accord, Thornton v. Brown, 757 F.3d 834, 839 (9th Cir. 2013). Accordingly, plaintiff's Section 1983 claims should go forward insofar as plaintiff seeks declaratory and injunctive relief. Defendant's damages liability is another matter.

"Qualified immunity shields government officials from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct." Reichle v. Howards, 132 S.Ct. 2088, 2093 (2012) (citing Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2080 (2011)). In analyzing a qualified immunity defense, the court must consider the following: (1) whether, viewed in the light most favorable to plaintiff, the alleged facts demonstrate that defendant's conduct violated a constitutional right and (2) whether the right at issue was clearly established at the time of the incident and "in light of the specific context of the case." Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009). These questions may be addressed in the order most appropriate to "the circumstances in the particular case at hand." Pearson, 555 U.S. at 236. In the present case, the dispositive issue is the second one.

A correctional official "enjoys qualified immunity . . . unless he has violated a `clearly established' right, such that `it would [have been] clear to a reasonable officer that his conduct was unlawful in the situation he confronted.'" Kingsley v. Hendrickson, 135 S.Ct. 2466, 2474 (June 22, 2015) (quoting Saucier, 533 U.S. at 202). "[W]hether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the `objective legal reasonableness' of the action, assessed in light of the legal rules that were `clearly established' at the time it was taken." Anderson v. Creighton, 483 U.S. 635, 639 (1987) (citation omitted). The determination whether a right was clearly established "must be undertaken in light of the specific context of the case, not as a broad general proposition." Saucier, 533 U.S. at 201. "The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful; but it is to say that in the light of pre-existing law the unlawfulness must be apparent." Anderson, 483 U.S. at 640 (citations omitted).

The Supreme Court has defined "clearly established" as follows:

Reichle, 132 S. Ct. at 2093 (citations and internal quotation marks omitted).

Although it is clearly established that"[i]nmates . . . have the right to be provided with food sufficient to sustain them in good health that satisfies the dietary laws of their religion," McElyea, 833 F.2d at 198; see also Ward, 1 F.3d at 877, the contours of this right are determined in any particular case by the specific accommodations requested and the penological justifications for maintaining the status quo. Defendant issued his Memorandum on March 18, 2010; the Ninth Circuit Court of Appeals had issued its decision in Shakur, 514 F.3d 878, on January 23, 2008. Shakur held in relevant part that the denial of a Kosher diet or Kosher meat to a Muslim inmate, on the grounds that he is not Jewish, must be justified by legitimate institutional considerations. See Shakur, 514 F.3d at 886-91. Shakur did not address whether there is a clearly established right for Muslim inmates to obtain Halal food. Neither did the opinion hold that Muslim inmates have to a right to a Kosher diet as an alternative to a Halal diet. Shakur put prison officials on notice (if further notice was needed) that Muslim inmates' requests for Halal and/or Kosher dietary accommodation are subject to the Turner factors. A reasonable prison official could therefore have concluded that institutional budgetary and administrative considerations may permissibly limit such accommodations.

Prior to Shakur, courts within this circuit expressly found that prison officials who refused to provide Muslim inmates with a Halal diet were entitled to qualified immunity on the ground that prisoners had no such clearly established right. Thus, for example, in Lewis v. Ryan, 2008 WL 1944112 at *31, 2008 U.S. Dist. LEXIS 64335 (S.D. Cal. May 1, 2008), the district court opined:

Lewis, 2008 WL 1944112 at *31 (collecting cases); accord, Thompson v. Williams, 320 Fed. Appx. 678, 679 (9th Cir. 2009), cert. denied, 558 U.S. 1150 (Jan. 19, 2010) (defendants entitled to qualified immunity "because it was not clearly-established at the time of the violation [2004 and 2005] that the defendants were required to provide [plaintiff] with either Halal or Kosher meals with meat in lieu of an ovo-lacto [vegetarian] diet").

After Shakur, numerous district courts throughout the circuit have continued to find that Muslim inmates' right to Halal meals or their Kosher equivalent is not clearly established. See, e.g., Johnson v. Nevada ex rel. Board of Prison Commissioners, 2013 WL 5428423 at *6, 2013 U.S. Dist. LEXIS 139426 at *18 (D. Nev. Sept. 26, 2013); McDaniels v. Elfo, 2013 U.S. Dist. LEXIS 174301 at * 70-71 (W.D. Wash. Aug. 19, 2013). Although some courts have expressed different views,18 and although the underlying constitutional questions remain open, this legal landscape illustrates that there was nothing clearly established about the contours of the rights plaintiff here seeks to enforce. Certainly there was no clearly established constitutional right in the Ninth Circuit for Muslim inmates to obtain Halal or Kosher diets.19 Accordingly, defendant is entitled to qualified immunity from damages even if the RMAP, as implemented, fails to adequately respect plaintiff's free exercise or equal protection rights.

Jones v. Williams, 791 F.3d 1023, 1031 (9th Cir. 2015), does not require a contrary conclusion. In Jones, the Court of Appeals recently reversed a grant of qualified immunity to defendant prison officials who had directed a Muslim inmate to personally handle pork as part of his kitchen job duties. The qualified immunity analysis in Jones is readily distinguishable from the present case. The inmate in Jones was affirmatively required to handle pork, conduct which a reasonable officer would have known constituted "conduct directly violative of [the inmate's] religious beliefs." Id. at 1033. Here, in contrast, plaintiff was not required to defile himself in a way that would have been obvious to a reasonable administrator in defendant's position. Plaintiff was provided a diet free of pork, and including Halal meat, as part of a program specifically intended to accommodate Muslim inmates' religious dietary needs. The contours of the right asserted by the Jones plaintiff, to be free from forced contact with a forbidden substance, were clearly established. Id.20 The right asserted here is a different one, and the Circuit has not clearly established it.

For all the reasons explained above, the court finds that at the time of defendant's challenged conduct, there was no clearly established constitutional right supporting plaintiff's claims that he was entitled to obtain a fully Halal diet or, alternatively, a fully Kosher diet. A reasonable prison administrator in defendant's position would not have had reason to believe that the RMAP, on its face or as implemented by the Giurbino Memorandum, was unconstitutional. Accordingly, the court finds that qualified immunity shields defendant from liability for damages on plaintiff's free exercise and equal protection claims. The court therefore recommends that these claims, as well as plaintiff's RLUIPA claim, should proceed only as claims for declaratory and prospective injunctive relief.

C. Religious Land Use and Institutionalized Persons Act (RLUIPA) Claim

Section 3 of RLUIPA provides that "[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution . . ., even if the burden results from a rule of general applicability," unless the government establishes that imposition of the burden furthers "a compelling governmental interest" by "the least restrictive means." 42 U.S.C. § 2000cc-1(a), (b). Section 3 applies "in any case" in which "the substantial burden is imposed in a program or activity that receives Federal financial assistance." Id., § 2000cc-1(b)(1). This standard is to be applied by the courts with "due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good order, security and discipline, consistent with consideration of costs and limited resources." Hartmann, 707 F.3d 1114 at 1124 (citations and internal quotation marks omitted).

Under RLUIPA, a burden is substantial if it is "`oppressive' to a `significantly great' extent. That is, a `substantial burden' on `religious exercise' must impose a significantly great restriction or onus upon such exercise." Warsoldier v. Woodford, 418 F.3d 989, 995 (9th Cir. 2005) (quoting San Jose Christian College v. City of Morgan Hill, 360 F.3d 1024, 1034 (9th Cir. 2004)). "In addition, the Supreme Court has found a substantial burden as `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.' Although such `compulsion may be indirect, the infringement upon free exercise is nonetheless substantial.'" Warsoldier, 418 F.3d at 995 (quoting Thomas v. Review Board, 450 U.S. 707, 717-18 (1981)).

Plaintiff bears the initial burden of demonstrating that the challenged policy constitutes a "substantial burden on the exercise of his religious beliefs." Warsoldier, 418 F.3d at 994. If plaintiff meets his initial burden, then the burden shifts to the government. "Once the plaintiff establishes that the challenged state action substantially burdens his religious exercise, the government bears the burden of establishing that the regulation serves a compelling government interest and is the least restrictive means of achieving that interest." Shakur, 514 F.3d at 889.

Defendant initially contends that his actions did not impose a substantial burden on the exercise of plaintiff's religious beliefs. Defendant argues that plaintiff is still able to practice other aspects of his religion, even without participating in the RMAP, and that plaintiff is not obligated to participate in the RMAP. Hence, asserts defendant, neither the Giurbino Memorandum nor "the mere existence of the RMAP" can be said to impose a substantial burden on plaintiff's religious exercise. Moreover, to the extent that plaintiff has chosen to participate in the RMAP, defendant argues that plaintiff cannot complain that it provides only limited Halal food, explaining that "the RMAP was never intended to provide halal vegetables or other foods." In other words, according to defendant, the RMAP provides an opportunity for plaintiff to expand the exercise of his religion. Defendant does not address plaintiff's exclusion from the JKDP.

Defendant further contends that, should the court find a substantial burden on plaintiff's religious exercise, the RMAP serves a compelling governmental interest through the least restrictive means. Defendant identifies the compelling governmental interest as "providing an acceptable religious diet for all Muslim inmates in CDCR custody." ECF No. 84 at 5. Defendant asserts that "the RMAP is a generally nonrestrictive way of providing such a diet; CDCR could have provided only the vegetarian diet (which complies with the tenets of Islam) but instead chose to provide an option that allows Plaintiff and other Muslim inmates to eat halal meat." Id.

In Shakur, the Court of Appeals decried the government's failure to submit an affidavit "of an official specializing in food service or procurement," resulting in a record "which contains no competent evidence as to the additional cost of providing Halal or kosher meat to ADOC's Muslim prisoners." 514 F.3d at 889-90. The court also found no evidence of actual inquiry into the least restrictive alternatives. The Ninth Circuit concluded that it was unable to address the RLUIPA claim on the existing record, id. at 891:

Based on this court's findings that the record is inadequate to address plaintiff's Free Exercise and Equal Protection claims, and because defendants' burden is even greater under RLUIPA, it is recommended that defendant's motion for summary judgment on plaintiff's RLUIPA claim also be denied due to the material factual disputes on this claim.

VI. Conclusion

For the reasons set forth above, IT IS HEREBY RECOMMENDED that defendant's motion for summary judgment, ECF No. 72, be granted in part and denied in part as follows:

1. GRANTED on plaintiff's claim under the Establishment Clause of the First Amendment.

2. GRANTED on plaintiff's claims for money damages under the Free Exercise Clause of the First Amendment, and the Equal Protection Clause of the Fourteenth Amendment.

3. DENIED on plaintiff's claims for declaratory and prospective injunctive relief under the Free Exercise Clause of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Religious Land Use and Institutionalized Persons Act (RLUIPA), upon which this action should proceed.

These findings and recommendations are submitted to the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court, which shall be captioned "Objections to Magistrate Judge's Findings and Recommendations." No extensions of time will be granted, due to exigencies of time within the court.21 A copy of any objections filed with the court shall also be served on all parties. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).