(PC) Feiger v. Smith et al, No. 1:2014cv01920 - Document 38 (E.D. Cal. 2016)

Court Description: FINDINGS and RECOMMENDATIONS recommending that 21 MOTION to DISMISS be granted in part and denied in part signed by Magistrate Judge Erica P. Grosjean on 11/16/2016. Referred to Judge Dale A Drozd; Objections to F&R due by 12/22/2016.(Lundstrom, T)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 ROBERT FEIGER, Plaintiff, 8 v. 9 10 MARLENE SMITH, et al., Defendants. 11 Case No. 1:14-cv-01920-DAD-EPG (PC) FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANTS’ RULE 12(b)(6) MOTION TO DISMISS BE GRANTED IN PART AND DENIED IN PART OBJECTIONS, IF ANY, DUE WITHIN THIRTY DAYS 12 13 14 I. BACKGROUND 15 Robert Feiger (“Plaintiff”), is a state prisoner proceeding pro se in this civil rights action 16 pursuant to 42 U.S.C. § 1983 and California Civil Code § 52 and 52.1. Plaintiff also asserts a 17 claim for intentional infliction of emotional distress for alleged problems with the Jewish Kosher 18 Diet Program and religious services at California State Prison-Corcoran, as well as a claim for 19 declaratory relief under California Code of Civil Procedure § 1060. The § 1983 claims include 20 violation of Plaintiff’s First Amendment rights to exercise his religion, and retaliation in violation 21 of the First Amendment. 22 This action was initiated by civil complaint filed by Plaintiff in the Kings County Superior 23 Court on August 25, 2014 (Case #14-C0243). On December 1, 2014, Defendants Clark, Graves, 24 and Robicheaux-Smith (collectively “Defendants”) removed the case to federal court (ECF No. 1) 25 and requested the Court to screen the complaint under 28 U.S.C. § 1915A. (EFC No. 7). On 26 December 12, 2014, the Court granted Defendants’ request for the Court to screen the complaint. 27 (EFC No. 8). The Court found in its screening order that Plaintiff stated a claim for violation of 28 his First Amendment right to free exercise of religion and for retaliation in violation of the First 1 1 Amendment. (EFC No. 18). The Court also determined that it had supplemental jurisdiction over 2 Plaintiff’s state law claims. (Id.). However, the Court stated that it did not make a determination 3 about the validity of Plaintiff’s state law claims. (Id.). Defendants’ motion to dismiss certain state law claims (ECF No. 21) is now before the 4 5 Court. 6 II. SUMMARY OF PLAINTIFF’S COMPLAINT 7 Plaintiff is a state prisoner incarcerated at California State Prison-Corcoran (“COR”). 8 Plaintiff names as defendants Marlene Smith1 (Community Resource Manager), Natalie Clark 9 (Community Resource Manager), and Antoneya Graves (Correctional Food Manager). All 10 Defendants were employees or contract employees of the CDCR at the time of the events at issue. 11 Plaintiff’s factual allegations follow. 12 Plaintiff practices the Jewish religion and participates in the CDCR’s Jewish Kosher Diet 13 Program (JKDP). He alleges that Defendants are in charge of operating that program at COR. 14 Plaintiff alleges that COR failed to provide kosher meals and Jewish services on many occasions 15 during his incarceration. Those failures include: failing to use kosher microwaves that were 16 dedicated to meat-only or dairy-only; failing to create a roster of attendance for weekly in-chapel 17 communal religious services when no Jewish chaplain was on staff; failing to provide proof of 18 kosher meal entitlement to Plaintiff for eighteen months; obstructing Plaintiff from participating 19 in in-chapel communal services; failing to maintain frozen food items needed to preserve kosher 20 meals and prevent rotting and spoiling; failing to provide uncooked meals and unchopped 21 vegetables on the Sabbath; prohibiting religious head covering; failing to hold Saturday Sabbath 22 services; and failing to order sufficient Passover meals for Jewish prisoners transferring to the 23 prison. Plaintiff claims that Rabbi Y. Carron previously complained about “Grievous Kosher 24 Concerns” to the prison but the problems went unremedied. 25 Plaintiff alleges that he suffered from physical and emotional distress from his inability to 26 properly practice his faith. He claims that he experiences episodes of anger, fear, anxiety, 27 anguish, moral trepidation, depression, and self-loathing as well as physical symptoms including 28 1 Defendants refer to this defendant with last name Robicheaux-Smith. (ECF No. 21-1, p. 1.) 2 1 sleeplessness stemming from nightmares. Plaintiff also alleges various attempts by Defendants to 2 cover-up these deficiencies, thwart appeals, and backdate procedures to feign compliance. 3 Plaintiff asserts four causes of action. First, he asserts a claim under 42 U.S.C. § 1983 for 4 deprivation of right of religious exercise in violation of the First Amendment to the U.S. 5 Constitution. 6 California Civil Code §§ 52 and 52.1. Third, he asserts a state law claim for intentional infliction 7 of emotional distress. Fourth, he asserts a claim for declaratory relief under C.C.P. § 1060 8 III. Second, he asserts a state law claim for interference with civil rights under DEFENDANTS’ MOTION TO DISMISS 9 Defendants move to dismiss Plaintiff’s state law claims under California Civil Code §§ 10 51, 52, and 52.1 because Defendants are not a business establishment, and because Defendants 11 did not use threats, intimidation, or coercion. (ECF No. 21-1, p. 2). Additionally, Defendants 12 assert that they are immune from all of Plaintiff’s state claims under California Government Code 13 § 845.2, to the extent those claims are premised on the failure to provide equipment, facilities, 14 and personnel for the Jewish Kosher Diet and religious services. (Id.). 15 A. Legal Standard 16 A motion to dismiss for failure to state a claim is properly granted where the complaint 17 lacks “a cognizable legal theory” or “sufficient facts alleged under a cognizable legal theory.” 18 Conservation Force v. Salazar, 646 F.3d 1240, 1241–42 (9th Cir. 2011) (quoting Balistreri v. 19 Pacifica Police Dep't., 901 F.2d 696, 699 (9th Cir. 1988)). While accepting factual allegations in 20 the complaint as true, the Court is not required to accept legal conclusions as true, and the factual 21 allegations must state a plausible claim for relief. Maya v. Centex Corp., 658 F.3d 1060, 1067–68 22 (9th Cir. 2011). 23 In considering a motion to dismiss for failure to state a claim, the Court generally 24 considers only the contents of the complaint and accepts as true the facts alleged in the complaint. 25 Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006); Shaver v. Operating Engineers Local 428 26 Pension Trust Fund, 332 F.3d 1198, 1201, 1203 (9th Cir. 2002). 27 construes the pleading in the light most favorable to the party opposing the motion, and resolves 28 all doubts in the pleader's favor. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Pro se 3 Additionally, the Court 1 pleadings are held to a less stringent standard than those drafted by attorneys. Id. 2 B. Discussion 3 1. California Civil Code § 512 4 California Civil Code § 51, commonly known as the Unruh Civil Rights Act, states “[a]ll 5 persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, 6 color, religion, ancestry, national origin, disability, medical condition, genetic information, 7 marital status, sexual orientation, citizenship, primary language, or immigration status are entitled 8 to the full and equal accommodations, advantages, facilities, privileges, or services in all business 9 establishments of every kind whatsoever.” Defendants assert that they are not business entities, but are instead employees of state 10 11 operated prisons. 12 Rehabilitation (“CDCR”) is a business entity. Plaintiff further asserts that as Defendants are 13 employees of the CDCR, Defendants are employees of a business entity and act under the 14 direction of a business entity. Defendants are correct that they are individuals--not business establishments. Defendants’ 15 16 Plaintiff asserts that the California Department of Corrections and motion to dismiss on this basis should therefore be granted. 17 Although Plaintiff raises the possibility that the CDCR could qualify as a business 18 establishment under this section, the CDCR is not currently a party to this action and Plaintiff has 19 not moved to amend his complaint. 20 Although the question is not before the Court, it is worth noting that amendment to add 21 the CDCR to assert a § 51 claim in this Court would face substantial hurdles. First of all, the 22 CDCR is immune from suits for monetary damages in federal court under the Eleventh 23 Amendment. Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 24 (1993); Savage v. Glendale Union High Sch., Dist. No. 205, Maricopa Cty., 343 F.3d 1036, 1040 25 (9th Cir. 2003). Additionally, the § 51 claim is a state claim not ordinarily subject to federal court 26 2 27 28 The Court notes that it does not appear that Plaintiff has asserted a claim under California Civil Code § 51 in his complaint. (ECF Nos. 1 & 18). However, Defendants have moved to dismiss Plaintiff’s claim under § 51, and Plaintiff has replied arguing it should go forward. Additionally, section 51 is related to other claims that Plaintiff asserted. So, the Court will address the validation of a claim under section 51. 4 1 jurisdiction. While the Court may choose to exercise jurisdiction over state law claims under 2 supplemental jurisdiction,3 the Court may decline to do so here because there are no federal 3 claims against the CDCR pending in this lawsuit. Finally, other courts have held that prisons are 4 not considered business establishments for purposes of section 51. Taormina v. California Dep't 5 of Corr., 946 F. Supp. 829, 834 (S.D. Cal. 1996), aff'd and remanded sub nom. Taormina v. Corr. 6 Dep't, State of Cal., 132 F.3d 40 (9th Cir. 1997); Wilkins-Jones v. Cty. of Alameda, 859 F. Supp. 7 2d 1039, 1049 (N.D. Cal. 2012). 8 considered a business establishment (Wilkins-Jones, 859 F. Supp. 2d at 1049–50), there have 9 been no allegations that Defendants are a private business entity acting within the prison. While private businesses acting within a prison can be 2. California Civil Code § 52 10 11 California Civil Code § 52 is not an independent cause of action. Instead, it provides 12 remedies for violations of California Civil Code section 51, 51.5, 51.6, 51.7, and 51.9. Cal. Civ. 13 Code § 52; Los Angeles Cty. Metro. Transp. Auth. v. Superior Court, 123 Cal. App. 4th 261, 269 14 (2004); Archibald v. Cinerama Hawaiian Hotels, Inc., 73 Cal. App. 3d 152, 159 (1977), 15 disapproved on other grounds in Koire v. Metro Car Wash 40 Cal.3d 24 (1985). For the reasons 16 stated above, a § 51 claim is not viable. Accordingly, the Court finds that Defendants’ motion to 17 dismiss Plaintiff’s cause of action under section 52 should be granted. 3. California Civil Code § 52.1 18 19 Plaintiff’s claim under California Code § 52.1 is based on the allegation that Defendants 20 retaliated against Plaintiff for exercising his right to utilize the appeals process regarding 21 Defendants’ conduct. Defendants moves to dismiss this claim on the ground that Plaintiff’s 22 complaint fails to allege threat, coercion, or intimidation, as required for a section 52.1 claim. 23 (ECF No. 21-1, p. 7). Specifically, Defendants assert that their alleged failure to respond to 24 3 25 26 27 28 Pursuant to 28 U.S.C. § 1367(a), in any civil action in which the district court has original jurisdiction, the district court “shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution,” with specific exceptions. "Pendent jurisdiction over state claims exists when the federal claim is sufficiently substantial to confer federal jurisdiction, and there is a 'common nucleus of operative fact between the state and federal claims.'" Brady v. Brown, 51 F.3d 810, 816 (9th Cir. 1995) (quoting Gilder v. PGA Tour, Inc., 936 F.2d 417, 421 (9th Cir.1991)). “[O]nce judicial power exists under § 1367(a), retention of supplemental jurisdiction over state law claims under 1367(c) is discretionary.” Acri v. Varian Assoc., Inc., 114 F.3d 999, 1000 (9th Cir. 1997). 5 1 grievances and requests does not amount to a threat, intimidation, or coercion under § 52.1 and 2 that asking an inmate to withdraw an appeal is not something that a reasonable person would 3 believe was a threat of violence. (Id.). 4 In Plaintiff’s opposition, Plaintiff argues that “[c]learly in the filed complaint, plaintiff has 5 stated a case under[] [§ 52.1].” (ECF No. 25, p. 7). Plaintiff alleges that Defendant Smith had the 6 authority to grant his appeal in full and cure all ongoing violations. Plaintiff further alleges that 7 on October 25, 2013, Defendant Smith used this authority to coerce Plaintiff to withdraw his 8 appeal. 9 deliberately not cure the violations unless Plaintiff withdrew his appeal or until court action. 10 (ECF No. 1-1, pgs. 18-19). Plaintiff alleges that Defendant Graves, upon replacing Defendant 11 Smith, attempted the same coercion through inmate Hauser on January 28, 2014. (Id. at p. 19). 12 Plaintiff also alleges that Defendant Clark, who had the authority to cure the microwave service 13 violation, attempted a similar coercion through inmate Hauser on February 28, 2014. (Id. at p. 14 20). Specifically, through inmate Hauser,4 Defendant Smith threatened that she would 15 Plaintiff further alleges that after the aforementioned coercions, Defendants continued to 16 interfere with his rights. Specifically, Plaintiff alleges that Defendant Clark refused to properly 17 prepare kosher foods on at least 15 occasions between February 28, 2014 and March 15, 2014; 18 Defendant Smith continued to violate Plaintiff’s right to attend weekly in-chapel religious 19 services (16 violations), receive SPOs (1 violation),5 and obtain kosher meals (44 violations) from 20 October 25, 2013 and December 16, 2013; and Defendant Graves continued to violate Plaintiff’s 21 right to attend weekly in-chapel religious services (26 violations), receive SPOs (2 violations), 22 and obtain kosher meals (32 violations) from January 28, 2014 and May 16, 2014. (ECF No. 1, 23 pgs. 21-22). In Plaintiff’s reply to Defendants’ reply to Plaintiff’s opposition to Defendants’ 24 motion to dismiss,6 Plaintiff states “Plaintiff has stated that he was coerced by the defendants and 25 4 26 27 28 Inmate Hauser was the primary appellant for two group appeals Plaintiff participated in. (ECF No. 1-1, p. 20). Hauser allegedly provided Plaintiff with a declaration under penalty of perjury attesting to the dealings with Smith. (Id. at p. 19). 5 The Court infers from Plaintiff’s complaint that SPO refers to Special Purchase Order. 6 Plaintiff was not given leave to file a surreply, but in light of the fact that there was no objection, the Court will consider it. 6 1 this will be clearly explained and supported by witnesses.” (ECF No. 31, p. 3). i. 2 Legal Standard 3 California Civil Code § 52.1, commonly known as the Bane Act, provides a cause of 4 action for “[a]ny individual whose exercise or enjoyment of rights secured by the Constitution or 5 laws of the United States, or of rights secured by the Constitution or laws of this state, has been 6 interfered with, or attempted to be interfered with,” (Cal. Civ. Code § 52.1(b)) “by threat, 7 intimidation, or coercion” (Cal. Civ. Code § 52.1(a)) (emphasis added). 8 Also according to the statutory language, “[s]peech alone is not sufficient to support an 9 action brought pursuant to [the Bane Act], except upon a showing that the speech itself threatens 10 violence against a specific person or group of persons; and the person or group of persons against 11 whom the threat is directed reasonably fears that, because of the speech, violence will be 12 committed against them or their property and that the person threatening violence had the 13 apparent ability to carry out the threat.” Cal. Civ. Code § 52.1(j). A court in this jurisdiction has 14 held that “[i]n evaluating the threatening or coercive conduct, the Court must consider whether a 15 reasonable person, standing in the shoes of the plaintiff, would have been intimidated by the 16 actions of the defendants and have perceived a threat of violence.” Muhammad v. Garrett, 66 F. 17 Supp. 3d 1287, 1296 (E.D. Cal. 2014) (internal quotations omitted).7 ii. 18 Analysis 19 The Court agrees with Defendants that Plaintiff has failed to allege threat, intimidation, or 20 coercion under the Bane Act, because none of Plaintiff’s allegations involve violence or the threat 21 of violence. Further, when responding to this motion to dismiss, Plaintiff once again did not 22 allege violence or the threat of violence. 23 Because Plaintiff did not allege violence or the threat of violence, the Court finds that 24 Plaintiff has failed stated a claim under § 52.1. See, e.g., Gottschalk, 964 F. Supp. at 1164 25 7 26 27 28 The Court takes note that one unpublished case from the Ninth Circuit Court of Appeals seems to suggest that violence or the threat of violence is not required. Moreno v. Town of Los Gatos, 267 F. App'x 665, 666 (9th Cir. 2008). However, Moreno is an unpublished case and is not precedential. Further, Moreno seems to be dealing with the issue of whether there needs to be a separate threat of violence, in addition to the constitutional violation. Finally, after Moreno was decided, district courts in the Ninth Circuit have held that violence or the threat of violence is still required. Muhammad v. Garrett, 66 F. Supp. at 1296; Gottschalk v. City & Cty. of San Francisco, 964 F. Supp. 2d 1147, 1163 (N.D. Cal. 2013); Richardson v. City of Antioch, 722 F. Supp. 2d 1133, 1147 (N.D. Cal. 2010). 7 1 (economic coercion and character assassination do not constitute violence or threats of violence 2 within the meaning of § 52.1); Brook v. Carey, 352 F. App'x 184, 185 (9th Cir. 2009) (failure to 3 timely respond to a prisoner’s requests, grievances, and appeals does not constitute threats, 4 intimidation, or coercion within the meaning of § 52.1). Therefore, the Court finds that Plaintiff’s 5 claim under § 52.1 should be dismissed. 4. Immunity Under California Government Code § 845.2 6 7 Defendants assert they are immune from all of Plaintiff’s state law claims under Cal. Gov. 8 Code § 845.2, including his claim for intentional infliction of emotional distress, because the 9 claims are premised on the failure of Defendants to provide sufficient equipment, personnel, and (ECF No. 21-1, pgs. 11-12). Plaintiff does not address Defendants’ immunity 10 facilities. 11 argument in either his opposition to Defendant’s motion to dismiss or in his surreply. 12 i. Legal Standard 13 California Government Code § 845.2 states “[e]xcept as provided in Chapter 2 14 (commencing with Section 830), neither a public entity nor a public employee is liable for failure 15 to provide a prison, jail or penal or correctional facility or, if such facility is provided, for failure 16 to provide sufficient equipment, personnel or facilities therein.” The California Supreme Court 17 explained that Government Code § 845.2 “was designed to prevent political decisions of policy- 18 making officials of government from being second-guessed by judges and juries in personal 19 injury litigation. [Citation.] In other words, essentially budgetary decisions of these officials 20 were not to be subject to judicial review in tort litigation.” Zelig v. Cty. of Los Angeles, 27 Cal. 21 4th 1112, 1142 (2002) (citing Mann v. State of California, 70 Cal. App. 3d 773, 778-79) 22 (alteration in original). 23 Courts have applied § 845.2 to bar claims for faulty equipment, insufficient equipment 24 and staff, and denying prisoners access to existing programs in light of budget or policy 25 deficiencies. Taylor v. Buff, 172 Cal. App. 3d 384, 387 (Ct. App. 1985) (applying § 845.2 to bar 26 claims for nonfunctioning locking system on cell doors when funds were insufficient to make 27 necessary repairs); Estate of Abdollahi v. County of Sacramento, 405 F.Supp.2d 1194 28 (E.D.Cal.2005) (applying § 845.2 to bar claims for failure to provide personnel to perform safety 8 1 checks when jail was understaffed and policies were inadequate); Ashker v. Schwarzenegger, No. 2 05–3286, 2009 WL 801557, at * 1, 24 (N.D.Cal. Mar.25, 2009) (applying § 845.2 to bar claims 3 for failing to provide access to programs that were available to inmates housed in a different area 4 because of higher security risk presented by inmates placed in Security Housing Unit). 5 ii. Analysis 6 Section 845.2 only allows immunity from Plaintiff’s claims that involve insufficient 7 equipment or supplies due to budgetary issues or policy decisions. 8 allegations in Plaintiff’s complaint that Plaintiff was denied Kosher meals and religious services 9 because of budgetary issues or for policy reasons. As such, the Court finds that § 845.2 does not 10 apply at this stage in the case. Defendants may be able to raise this defense based on evidence to 11 come, but a finding that Defendants are immune based on the face of the complaint is 12 unwarranted. 13 14 15 IV. However, there are no CONCLUSION AND RECOMMENDATIONS The Court finds that Plaintiff’s claims under California Civil Code §§ 51, 52, and 52.1 should be dismissed. 16 With respect to Defendants’ motion to dismiss all of Plaintiff’s state law claims based on 17 immunity under California Government Code § 845.2, the Court finds that Defendants are not 18 entitled to immunity at this stage in the proceedings. 19 Therefore, Defendants’ motion to dismiss should be granted in part and denied in part. 20 Accordingly, based on the foregoing, IT IS HEREBY RECOMMENDED that: 21 1) Defendant’s motion to dismiss be granted in part and denied in part; 22 2) To the extent that Plaintiff asserted a cause of action under California Civil Code § 23 51, Defendants’ motion to dismiss be GRANTED as to Plaintiff’s cause of action 24 under California Civil Code § 51; 25 26 27 28 3) Defendants’ motion to dismiss be GRANTED as to Plaintiff’s cause of action under California Civil Code § 52; 4) Defendants’ motion to dismiss be GRANTED as to Plaintiff’s cause of action under California Civil Code § 52.1; and 9 5) Defendants are not entitled to immunity under California Government Code § 1 845.2 at this stage in the case. 2 3 These Findings and Recommendations will be submitted to the United States District 4 Court Judge assigned to this action pursuant to the provisions of 28 U.S.C. § 636 (b)(1). Within 5 thirty (30) days after being served with a copy of these Findings and Recommendations, any 6 party may file written objections with the court and serve a copy on all parties. Such a document 7 should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any 8 reply to the objections shall be served and filed within ten (10) days after service of the 9 objections. The parties are advised that failure to file objections within the specified time may 10 result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 11 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 12 IT IS SO ORDERED. 13 14 15 Dated: November 16, 2016 /s/ UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 10

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