ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION; GRANTING RECONSIDERATION OF COURT'S APRIL 15, 2015 DISMISSAL OF DEFENDANT CHAPPELL; AND REQUIRING SERVICE ON DEFENDANT CHAPPELL

YVONNE GONZALEZ ROGERS, District Judge.

Plaintiff, a state prisoner at San Quentin State Prison ("SQSP"), filed the instant pro se civil rights action pursuant to 42 U.S.C. § 1983, alleging that prison officials at SQSP have refused to provide him with a diet that accommodates his religious beliefs in violation of his constitutional rights. Plaintiff seeks injunctive relief as well as declaratory and monetary damages.

According to the complaint, Plaintiff submitted a religious diet request on February 29, 2012 wherein he identified himself as a "Messianic Jew" and requested participation in the Jewish Kosher Diet Program ("JKDP") to accommodate his religious dietary laws. Dkt. 1 at 3. The Jewish chaplain, Defendant Carole Hyman, denied his request, stating that Plaintiff would have to "convert" to her sect of Judaism to avail of the JKDP. Id. In its April 15, 2015 Order of Partial Dismissal; Serving Cognizable Claim; and Denying Plaintiff's Request for Consolidation, the Court found that the aforementioned allegation of Defendant Hyman's denial of Plaintiff's request to participate in the JKDP infringed upon his right to exercise his religious practices and beliefs and appeared to state a cognizable 42 U.S.C. § 1983 claim. Dkt. 10 at 2.

Plaintiff had also named Defendant Former SQSP Warden Kevin Chappell in his complaint. Dkt. 1 at 1, 2. However, the Court found that Plaintiff had not claimed that Defendant Chappell personally violated his constitutional rights. Dkt. 10 at 2-3. Rather, Plaintiff seemed to contend that Defendant Chappell was liable based on the conduct of his subordinate, Defendant Hyman. Id. Because there is no respondeat superior liability under Section 1983, the Court dismissed without prejudice Plaintiff's supervisory liability claim against Defendant Chappell in its April 15, 2015 Order. Id. (citing Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989)). The Court further noted that no facts were alleged by Plaintiff to establish supervisorial liability on the part of Defendant Chappell, i.e., that he "participated in or directed the violations, or knew of the violations and failed to act to prevent them." Id.

Before the Court is Plaintiff's motion entitled "Request for Reconsideration of this Court's April 15, 2015 `Partial Dismissal' (Defendant Chappell)" (Dkt. 14), which is construed as a motion for leave to file a motion for reconsideration pursuant to Local Rule 7-9(a). See Civil L.R. 7-9(a). Specifically, Plaintiff asks the Court to reconsider its dismissal of his supervisory liability claims against Defendant Chappell.

Also before the Court is Defendant Hyman's motion to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Dkt. 24.

For reasons outlined below, the Court GRANTS Plaintiff leave to file a motion for reconsideration, GRANTS his request for the Court to reconsider its April 15, 2015 Order dismissing the supervisory claim against Defendant Chappell, VACATES the relevant portion of its April 15, 2015 Order dismissing the supervisory claim against Defendant Chappell, and directs service of the complaint on Defendant Chappell as directed below. Defendant Hyman's pending motion to dismiss will be resolved in a separate written Order.

DISCUSSION

Where a district court's ruling has not resulted in a final judgment or order, reconsideration of the ruling may be sought under Rule 54(b) of the Federal Rules of Civil Procedure, which provides that any order which does not terminate the action is subject to revision at any time before the entry of judgment. See Fed. R. Civ. P. 54(b). "Reconsideration is appropriate if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law." School Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).

In the Northern District of California, no motion for reconsideration may be brought without leave of court. See Civil L.R. 7-9(a). Under Civil Local Rule 7-9, the moving party must specifically show: (1) that at the time of the motion for leave, a material difference in fact or law exists from that which was presented to the court before entry of the interlocutory order for which the reconsideration is sought, and that in the exercise of reasonable diligence the party applying for reconsideration did not know such fact or law at the time of the interlocutory order; or (2) the emergence of new material facts or a change of law occurring after the time of such order; or (3) a manifest failure by the court to consider material facts which were presented to the court before such interlocutory order. See Civil L.R. 7-9(b). Unless otherwise ordered by the court, no response need be filed to a motion under the Local Rule. See Civil L.R. 7-9(c).

Plaintiff challenges the Court's dismissal of Plaintiff's supervisory liability claim, arguing that in its April 15, 2015 Order the Court "erroneous[ly]" dismissed Defendant Chappell because it had overlooked material facts which were presented on the same day the complaint was filed. Dkt. 14 at 3. Specifically, Plaintiff had submitted the 602 inmate appeal challenging Defendant Hyman's decision to deny Plaintiff's request to participate in JKDP. Dkt. 2 at 6-17. Plaintiff argues that the 602 appeal serves as evidence that Defendant Chappell knew of the violations and failed to act to prevent them because he denied and "signed the final level of appeal at his prison." Id. at 8, 12-13. The Court confirms that Defendant Chappell was responsible for denying Plaintiff's 602 appeal at the second level of review upon finding that the "decision not to include [Plaintiff] in the JKDP was based on current rules and regulations." Id. at 13. The Court acknowledges that it failed to consider this evidence because the 602 appeal itself was not attached to the complaint, and, instead, it was filed as an attachment to a separate document entitled, "Introductory Memo to Clerk of Court." Dkt. 2. Therefore, as mentioned above, the Court previously found that Plaintiff had not established supervisorial liability on the part of Defendant Chappell by showing that he "participated in or directed the violations, or knew of the violations and failed to act to prevent them." Dkt. 10 at 2-3 (citing Taylor, 880 F.2d at 1045). However, in his motion for leave to file a motion for reconsideration, Plaintiff insists that he has established supervisory liability on Defendant Chappell's part based on this Defendant's failure to act to correct the constitutional violation despite being made aware of Defendant Hyman's denial of Plaintiff's request to participate in JKDP, stating: "[Defendant] Chappell knew what was going on no later than when he signed the explicit and well documented Inmate Appeal as `Reviewer' [at the second level of review]." Dkt. 14 at 5.

Upon careful review of Plaintiff's supervisory liability claim against Defendant Chappell, the Court acknowledges that it failed to consider material facts, which were presented prior to the Court's April 15, 2015 Order. The Court therefore erred in finding that Plaintiff had failed to establish supervisory liability on the part of Defendant Chappell. Plaintiff's motion for leave to file a motion for reconsideration is GRANTED. See Civil L.R. 7-9(b).

Accordingly, Plaintiff's request for the Court to reconsider its April 15, 2015 Order dismissing the supervisory claim against Defendant Chappell is GRANTED; therefore, the Court VACATES the portion of its April 15, 2015 Order dismissing the supervisory claim against Defendant Chappell. The Clerk shall serve the complaint on this Defendant, as directed below.

CONCLUSION

For the foregoing reasons, the Court orders as follows:

1. Plaintiff's motion entitled "Request for Reconsideration of this Court's April 15, 2015 `Partial Dismissal' (Defendant Chappell)" (Dkt. 14), which has been construed as his motion for leave to file a motion for reconsideration, is GRANTED. Furthermore, Plaintiff's request for the Court to reconsider its April 15, 2015 Order dismissing the supervisory claim against Defendant Chappell is GRANTED.

2. The Court VACATES the portion of its April 15, 2015 Order dismissing the supervisory claim against Defendant Chappell.

3. Plaintiff's complaint states a cognizable supervisory liability claim against Defendant Chappell.

4. The Clerk of the Court shall mail a Notice of Lawsuit and Request for Waiver of Service of Summons, two copies of the Waiver of Service of Summons, a copy of the complaint and all attachments thereto (Dkts. 1, 2) and a copy of this Order to Former SQSP Warden Kevin Chappell at SQSP. The Clerk shall also mail copies of this Order to Defendant Hyman's Attorney, Deputy Attorney General William P. Buranich, and to Plaintiff.

5. Defendant Chappell is cautioned that Rule 4 of the Federal Rules of Civil Procedure requires them to cooperate in saving unnecessary costs of service of the summons and complaint. Pursuant to Rule 4, if Defendant Chappell, after being notified of this action and asked by the Court, on behalf of Plaintiff, to waive service of the summons, fail to do so, he will be required to bear the cost of such service unless good cause be shown for the failure to sign and return the waiver form. If service is waived, this action will proceed as if Defendant Chappell had been served on the date that the waiver is filed, except that pursuant to Rule 12(a)(1)(B), Defendant Chappell will not be required to serve and file an answer before sixty (60) days from the date on which the request for waiver was sent. (This allows a longer time to respond than would be required if formal service of summons is necessary.) Defendant Chappell is asked to read the statement set forth at the foot of the waiver form that more completely describes the duties of the parties with regard to waiver of service of the summons. If service is waived after the date provided in the Notice but before Defendant Chappell has been personally served, the Answer shall be due sixty (60) days from the date on which the request for waiver was sent or twenty (20) days from the date the waiver form is filed, whichever is later.

6. Defendant Chappell shall answer the complaint in accordance with the Federal Rules of Civil Procedure. No later than twenty-eight (28) days from the date the answer is due, Defendant Chappell shall either file a joinder to Defendant Hyman's pending motion to dismiss or file his own motion for summary judgment or other dispositive motion. If Defendant Chappell chooses to file his own dispositive motion, the following briefing schedule shall govern dispositive motions in this action:

a. No later than twenty-eight (28) days from the date the answer is due, Defendant Chappell file his own motion for summary judgment or other dispositive motion. The motion must be supported by adequate factual documentation, must conform in all respects to Federal Rule of Civil Procedure 56, and must include as exhibits all records and incident reports stemming from the events at issue. A motion for summary judgment also must be accompanied by a Rand1 notice so that Plaintiff will have fair, timely and adequate notice of what is required of him in order to oppose the motion. Woods v. Carey, 684 F.3d 934, 935 (9th Cir. 2012) (notice requirement set out in Rand must be served concurrently with motion for summary judgment). A motion to dismiss for failure to exhaust available administrative remedies must be accompanied by a similar notice. However, the Court notes that under the new law of the circuit, in the rare event that a failure to exhaust is clear on the face of the complaint, Defendant Chappell may move for dismissal under Rule 12(b)(6) as opposed to the previous practice of moving under an unenumerated Rule 12(b) motion. Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (overruling Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003), which held that failure to exhaust available administrative remedies under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), should be raised by a defendant as an unenumerated Rule 12(b) motion). Otherwise if a failure to exhaust is not clear on the face of the complaint, Defendant Chappell must produce evidence proving failure to exhaust in a motion for summary judgment under Rule 56. Id. If undisputed evidence viewed in the light most favorable to Plaintiff shows a failure to exhaust, Defendant Chappell is entitled to summary judgment under Rule 56. Id. But if material facts are disputed, summary judgment should be denied and the district judge rather than a jury should determine the facts in a preliminary proceeding. Id. at 1168.

If Defendant Chappell is of the opinion that this case cannot be resolved by summary judgment, Defendant Chappell shall so inform the Court prior to the date the summary judgment motion is due. All papers filed with the Court shall be promptly served on Plaintiff.

b. Plaintiff's opposition to the dispositive motion shall be filed with the Court and served on Defendant Chappell no later than twenty-eight (28) days after the date on which Defendant Chappell's motion is filed.

c. Plaintiff is advised that a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you must do in order to oppose a motion for summary judgment. Generally, summary judgment must be granted when there is no genuine issue of material fact—that is, if there is no real dispute about any fact that would affect the result of your case, the party who asked for summary judgment is entitled to judgment as a matter of law, which will end your case. When a party you are suing makes a motion for summary judgment that is properly supported by declarations (or other sworn testimony), you cannot simply rely on what your complaint says. Instead, you must set out specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, as provided in Rule 56(c), that contradicts the facts shown in the defendant's declarations and documents and show that there is a genuine issue of material fact for trial. If you do not submit your own evidence in opposition, summary judgment, if appropriate, may be entered against you. If summary judgment is granted, your case will be dismissed and there will be no trial. Rand, 154 F.3d at 962-63.

Plaintiff also is advised that—in the rare event that Defendant Chappell argues that the failure to exhaust is clear on the face of the complaint—a motion to dismiss for failure to exhaust available administrative remedies under 42 U.S.C. § 1997e(a) will, if granted, end your case, albeit without prejudice. To avoid dismissal, you have the right to present any evidence to show that you did exhaust your available administrative remedies before coming to federal court. Such evidence may include: (1) declarations, which are statements signed under penalty of perjury by you or others who have personal knowledge of relevant matters; (2) authenticated documents— documents accompanied by a declaration showing where they came from and why they are authentic, or other sworn papers such as answers to interrogatories or depositions; (3) statements in your complaint insofar as they were made under penalty of perjury and they show that you have personal knowledge of the matters state therein. As mentioned above, in considering a motion to dismiss for failure to exhaust under Rule 12(b)(6) or failure to exhaust in a summary judgment motion under Rule 56, the district judge may hold a preliminary proceeding and decide disputed issues of fact with regard to this portion of the case. Albino, 747 F.3d at 1168.

(The notices above do not excuse Defendant Chappell's obligation to serve similar notices again concurrently with motions to dismiss for failure to exhaust available administrative remedies and motions for summary judgment. Woods, 684 F.3d at 935.)

d. Defendant Chappell shall file a reply brief no later than fourteen (14) days after the date Plaintiff's opposition is filed.

e. The motion shall be deemed submitted as of the date the reply brief is due. No hearing will be held on the motion unless the Court so orders at a later date.

7. Discovery may be taken in this action in accordance with the Federal Rules of Civil Procedure. Leave of the Court pursuant to Rule 30(a)(2) is hereby granted to Defendant Chappell to depose Plaintiff and any other necessary witnesses confined in prison.

8. All communications by Plaintiff with the Court must be served on Defendant Chappell or his counsel, once counsel has been designated, by mailing a true copy of the document to them.

9. It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the Court informed of any change of address and must comply with the Court's orders in a timely fashion. Pursuant to Northern District Local Rule 3-11 a party proceeding pro se whose address changes while an action is pending must promptly file a notice of change of address specifying the new address. See L.R. 3-11(a). The Court may dismiss without prejudice a complaint when: (1) mail directed to the pro se party by the Court has been returned to the Court as not deliverable, and (2) the Court fails to receive within sixty days of this return a written communication from the pro se party indicating a current address. See L.R. 3-11(b).

10. Extensions of time are not favored, though reasonable extensions will be granted. Any motion for an extension of time must be filed no later than fourteen (14) days prior to the deadline sought to be extended.

11. Defendant Hyman's pending motion to dismiss will be resolved in a separate written Order.

12. This Order terminates Docket No. 14.

IT IS SO ORDERED.