Williams v. Diaz et al, No. 4:2019cv05685 - Document 33 (N.D. Cal. 2021)

Court Description: ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT by Judge Yvonne Gonzalez Rogers; granting 24 Motion for Summary Judgment. (fs, COURT STAFF) (Filed on 9/15/2021)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

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Williams v. Diaz et al Doc. 33 Case 4:19-cv-05685-YGR Document 33 Filed 09/15/21 Page 1 of 26 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 JAMES DAVID WILLIAMS, 4 Plaintiff, 5 v. 6 Defendants. 8 United States District Court Northern District of California ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT CHARLES RICHEY, et al., 7 9 Case No. 4:19-cv-05685 YGR (PR) I. INTRODUCTION 10 Plaintiff James David Williams, a state prisoner currently incarcerated at the Correctional 11 Training Facility (“CTF”), filed this pro se civil rights complaint under 42 U.S.C. § 1983. Dkt. 1. 12 On April 28, 2020, the Court determined that Plaintiff stated cognizable claims under the First 13 Amendment’s Free Exercise Clause, the Fourteenth Amendment, and the Religious Land Use and 14 Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1, against California Department 15 of Corrections and Rehabilitation (“CDCR”) Religious Programs Oversight Unit Manager Charles 16 Richey, CTF Warden C. Koenig, and CTF Protestant Chaplain B. D. Min (“Defendants”).1 Dkt. 7 17 at 4.2 Specifically, Plaintiff alleges that Defendants limited his ability to purchase religious oils or 18 musks for his “daily meditation/prayers” in violation of his rights under the constitution and 19 RLUIPA. Dkt. 1 at 3, 5-9. Plaintiff seeks monetary damages and injunctive relief. Id. at 3. 20 21 The parties are presently before the Court on Defendants’ motion for summary judgment. Dkt. 24. Plaintiff filed an opposition, and Defendants filed a reply. Dkts. 28, 32. Having read 22 23 24 25 26 27 28 1 The following Defendants were dismissed from this action for failure to state a cognizable claim pursuant to the Court’s April 28, 2020 Order of Partial Dismissal and Service: Ralph Diaz (CDCR Secretary); D. Chamberlain (Assistant Warden); Y. Friedman (Jewish Chaplain); and K. Hoffman (Chief Deputy Warden). Dkt. 7 at 4. The Court further found not cognizable Plaintiff’s claim that Defendants violated his rights under the Religious Freedom Restoration Act (“RFRA”) when they limited his access to religious oils or musks because the Supreme Court has declared the RFRA unconstitutional with respect to city and state governments. Id. (citing City of Boerne v. Flores, 521 U.S. 507, 536 (1997)). Page number citations refer to those assigned by the Court’s electronic case management filing system and not those assigned by the parties. 2 Dockets.Justia.com Case 4:19-cv-05685-YGR Document 33 Filed 09/15/21 Page 2 of 26 1 and considered the papers submitted and being fully informed, the Court hereby GRANTS 2 Defendants’ motion for summary judgment. 3 II. 4 A. 5 At all times relevant to this action, Plaintiff was a California prison inmate at CTF, The Parties 6 Defendant Richey was the Community Resources Manager (“CRM”) for the CDCR’s Religious 7 Programs Oversight Unit, Defendant Koenig was the CTF Warden, and Defendant Min was the 8 CTF Protestant Chaplain. See Oct. 26, 2020 Deposition of James David Williams attached as 9 Exhibit A to Declaration of Jean M. Trenbeath (Williams Depo.) at 6:22, 16:23; Declaration of C. 10 11 United States District Court Northern District of California BACKGROUND3 Richey (Richey Decl.) ¶ 4, Ex. A; Dkt. 1 at 2; Declaration of B. D. Min (Min Decl.) ¶ 1, Ex. B. B. Factual Background 12 Relevant Background and Procedure for Requesting to Purchase Religious Artifacts (Including Religious Oils or Musks) 13 The following relevant background on the procedure for requesting to purchase religious 14 artifacts (including religious oils or musks) is undisputed unless noted otherwise. 15 CTF is a Level I and II General Population prison comprised of three separate facilities: 16 Facility C (Central); Facilities A and B (North); and Facility D (South). Declaration of G. Romero 17 (Romero Decl.) ¶ 3. While each facility has its own dining hall, clothing distribution, canteen, 18 medical/dental/mental health services, education, library, chapel, and visiting areas, there is only 19 one Receiving and Release (“R&R”) Office that serves all three facilities. Id. 20 The R&R Office is located in Facility C of CTF and is responsible for the intake of new 21 inmates at CTF, discharge of inmates upon parole, inmate housing assignments, the processing of 22 23 24 25 26 27 28 3 This Order contains a few acronyms and abbreviations. Here, in one place, they are: CDCR CTF CRM DOM R&R RPPM RLUIPA RFRA California Department of Corrections and Rehabilitation Correctional Training Facility Community Resource Manager Department Operations Manual Receiving and Release Religious Personal Property Matrix Religious Land Use and Institutionalized Persons Act Religious Freedom Restoration Act 2 United States District Court Northern District of California Case 4:19-cv-05685-YGR Document 33 Filed 09/15/21 Page 3 of 26 1 an inmate’s personal property upon intake to and departure from CTF, and is responsible for the 2 review and processing of inmate special purchase orders, including non-food religious items. 3 Romero Decl. ¶ 4. 4 The CTF R&R Office has a “special purchase officer,” who is responsible for reviewing 5 special purchase order forms completed by inmates to ensure the allowable quantity of items are 6 ordered. Romero Decl. ¶ 6; Declaration of D. W. McGriff, Sr. (McGriff Decl.) ¶ 3. If the special 7 purchase involves the purchase of a religious artifact such as religious oils or musks, the special 8 purchase officer will also ensure that the items being ordered by the inmate: adhere to the 9 Religious Personal Property Matrix (“RPPM”)4; are purchased from an approved vendor; and 10 meet institutional security requirements. Id.; see also McGriff Decl. ¶ 14, Ex. D (true and correct 11 copy of RPPM, rev. June 23, 2013). 12 From October of 2014 to February of 2020, Correctional Officer D. W. McGriff, III, a 13 non-party, worked as the special purchase officer in the CTF R&R Office. McGriff Decl. ¶ 1. 14 Correctional Sergeant G. Romero, also a non-party, supervised Officer McGriff from May 2018 to 15 February 2020. Romero Decl. ¶ 7. As part of his duties, Officer McGriff kept a binder of all 16 special purchase order forms the office received from inmates for review and approval. Romero 17 Decl. ¶ 7; McGriff Decl. ¶ 4. Officer McGriff made copies of each order form received, whether 18 or not the form was approved or disapproved. Id. 19 CTF has a total of four chapels: two located in Facility C (Central), which are known as 20 Chapel I (for Protestant, Islamic, and Buddhist religions) and Chapel II (for Catholic, Jewish, 21 Quaker, and other religions); one located in Facilities A and B (North); and another located in 22 Facility D (South). Min Decl. ¶ 5. As mentioned above, Defendant Min served as the CTF 23 Protestant Chaplain, and he has held that position since 2014. Min Decl. ¶ 1. 24 On November 19, 2018, the CTF supplement to Department Operations Manual (“DOM”) 25 Section 101060, “Religious Programs,” was amended to include an addendum to Section 26 101060.10, “Sacramental Wine and Religious Artifacts” (“CTF DOM Supplement Addendum, 27 28 4 The RPPM applies to both male and female inmates, and it reflects personal religious property that inmates may possess. McGriff Decl., Ex. D. 3 Case 4:19-cv-05685-YGR Document 33 Filed 09/15/21 Page 4 of 26 1 101060”).5 Romero Decl. ¶ 8, Ex. A; McGriff Decl. ¶ 5, Ex. A; Min Decl. ¶ 4, Ex. B. The CTF 2 DOM Supplement Addendum, 101060 includes reference to a revised order form that inmates are 3 to use when attempting to purchase religious artifacts such as religious oils or musks. Romero 4 Decl. ¶ 8; McGriff Decl. ¶ 5. The special purchase order form for religious items contains three 5 signature blocks for the following officials: (1) the chaplain or community partnership manager; 6 (2) the R&R Office special purchase officer; and (3) the operations captain. Romero Decl. ¶ 8, 7 Ex. B; McGriff Decl. ¶ 5, Ex. B; Min Decl. ¶ 4, Ex. A. 8 9 United States District Court Northern District of California 10 Defendants allege that the special purchase order forms are available in each chapel at CTF, and that the list of CDCR-approved religious vendors for the current calendar year are also available in each chapel.6 Min Decl. ¶ 5; Romero Decl. ¶ 10; McGriff Decl. ¶ 7. 11 Defendants allege that from December 10, 2018 to March 14, 2019, all chaplains at CTF, 12 including Defendant Min, were tasked with reviewing and then approving or denying these order 13 forms completed by inmates requesting to purchase certain non-food religious items. Min Decl. 14 ¶ 4; Romero Decl. ¶ 9; McGriff Decl. ¶ 6. 15 A chapel clerk (an inmate at CTF) would review an order form to ensure that the religious 16 item or items sought for purchase is in accordance with the RPPM and that the addressed vendor is 17 on the approved vendor list. Min Decl. ¶ 6. After the form is reviewed for compliance, the chapel 18 clerk would then provide Defendant Min the order form to sign and date. Id. From there, the 19 chaplain-approved order form was sent to the R&R Office through institutional mail or was 20 delivered by hand. Romero Decl. ¶ 11; McGriff Decl. ¶ 8. During the time chaplains were 21 required to approve or deny these order forms—between December 10, 2018 and March 14, 22 2019—Defendant Min kept a book where he would record each time he approved an order form 23 24 5 25 26 27 28 Defendant Richey claims that he has no knowledge of the CTF DOM Supplement Addendum, 101060, as he took no part in drafting or reviewing it. Richey Decl. ¶ 9. 6 Plaintiff alleges that as of the date he signed his opposition on March 25, 2021, the chapel at CTF has been converted into COVID-19 isolation housing, and thus special purchase order forms are now unavailable and no other distribution area has been given to access these forms. Dkt. 28 at 8. However, Plaintiff does not contest the fact that these forms were available in 2019. 4 Case 4:19-cv-05685-YGR Document 33 Filed 09/15/21 Page 5 of 26 1 submitted by an inmate. Min Decl. ¶ 6. This book included the inmate’s name, assigned CDCR 2 number, assigned housing unit, chaplain name, and the date the order form was approved. Id. United States District Court Northern District of California 3 Once the R&R Office received the order form, Officer McGriff would check the inmate’s 4 property files to ensure the allowable quantity of items were ordered. Romero Decl. ¶ 11; McGriff 5 Decl. ¶ 8. Officer McGriff also ensured that the religious items sought for purchase were on the 6 RPPM and that the addressed vendor was an approved vendor for that calendar year. Id. If the 7 information was complete and in compliance with department rules and regulations, Officer 8 McGriff would then send the form to the Custody Operations Captain for final review and 9 approval. Id. Once approved, the Custody Operations Captain would then forward the form to the 10 trust account office for processing or return to the inmate, who would then mail the form to a 11 family member for processing. Id. If an inmate wanted a family member to process the order 12 form, the R&R Office would route the completed and approved order form back to the chapel for 13 the inmate to pick up. Id. 14 Defendants allege that if an order form did not contain a permissible quantity, was 15 addressed to a nonapproved vendor, and/or listed an item or items not adhering to the RPPM, the 16 order form would be returned to the inmate to give him the option of making necessary 17 corrections. Romero Decl. ¶ 12; McGriff Decl. ¶ 9. Defendants add that in some instances, 18 Officer McGriff would arrange to speak with the inmate to explain the discrepancy and let the 19 inmate know what needed to be corrected. McGriff Decl. ¶ 9. 20 On March 14, 2019, CDCR headquarters distributed a memorandum to all CDCR 21 institutions, clarifying that institution chaplains are not required to provide written approval for 22 inmates to purchase non-food personal religious items, and that written approval for these items is 23 provided through the RPPM. Min Decl. ¶ 11, Ex. G. The March 14, 2019 memorandum removed 24 the need for inmates to first obtain signature approval from a chaplain, and thus only a two- 25 signature process was necessary for ordering religious items using the order form. Id. 26 Defendants allege that since the March 14, 2019 memorandum, all chaplains at CTF, 27 28 5 United States District Court Northern District of California Case 4:19-cv-05685-YGR Document 33 Filed 09/15/21 Page 6 of 26 1 including Defendant Min, no longer review order forms for approval or disapproval.7 Min Decl. 2 ¶ 12. Defendants also allege that the special purchase order forms have not been revised to reflect 3 this change, and that if an inmate comes to the chapel to submit an order form, the chapel clerk 4 will forward the form to the R&R Office for review. Romero Decl. ¶ 9; McGriff Decl. ¶ 6; Min 5 Decl. ¶ 12. According to Defendants, if the special purchase officer receives an order form with 6 the chaplain signature block left blank, or with the notation “N/A” or “not applicable,” the special 7 purchase officer still processes the order form and ensures that the requested religious items are in 8 compliance with the RPPM, requested in the allowable quantity, and from an approved vendor. 9 Romero Decl. ¶ 13; McGriff Decl. ¶ 10. 10 It is undisputed that at all relevant times, Officer McGriff strictly adhered to the RPPM 11 when he reviewed the order forms for the types of religious items inmates sought for purchase. 12 McGriff Decl. ¶ 14, Ex. D. Plaintiff’s Version 13 14 15 The following background relating to Plaintiff’s claims is taken from the Court’s April 28, 2020 Order of Partial Dismissal and Service: 16 Plaintiff specifically alleges that CTF prison officials impermissibly burdened the practice of his religion by limiting his ability to order/purchase religious oil fragrances. See Dkt. 1 at 3, 5-8. Plaintiff does not specify his particular religion, but he states that Defendants [have] “been ordering [the religious oils] for 8 years at CTF . . . .” Id. at 14. He claims he uses these religious oils for his “daily meditation/prayers.” Id. at 6. He alleges that on January 3, 2019, Defendant Richey “sent a[n] e-mail via [Defendant] Min . . . addressed to [Community Resource Managers (“CRMs”)], Chaplains, and [R&R] Officers.” Id. at 3. Plaintiff explains that “[t]his e-mail . . . discussed how ‘changes[’] are being made to the departmentally approved religious vendors, and in [a]dvance of . . . [the] Religious Personal Property Matrix and [the Department Operations Manual] changes, which will be forthcoming in the near future.”[FN 2] Id. Then, the next day, on January 4, 2019, a second e-mail “instructs all of the Chaplains . . . [‘]Do not approve any forms[’] that were not in compliance with the new list which [D]efendants knew from the prior day was unauthorized to enforce.” 17 18 19 20 21 22 23 24 25 26 27 28 7 Contrary to these allegations, Plaintiff contends that the three-signature process for ordering religious items under CTF DOM Supplement Addendum, 101060 is still “local procedure.” Dkt. 28 at 8. Thus, according to Plaintiff, Defendant Min is still tasked with reviewing and then approving or denying order forms. Id. 6 Case 4:19-cv-05685-YGR Document 33 Filed 09/15/21 Page 7 of 26 1 2 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 Id. at 3, 5. Plaintiff alleges that Defendants “were aware that [the] CDCR could not yet just deny what Plaintiff was requesting, [i.e.,] religious oils.” Id. at 5. However, Plaintiff claims that Defendant Koenig, R&R staff, Chaplains and CRMs “changed the local procedures to get approval of Special Purchase Forms . . . facilitating the underground restrictions on [P]laintiff[’]s departmentally authorized religious items.” Id. Plaintiff has attached to his complaint copies of his requests to purchase certain religious oils and the limitations to his access to such oils, which also include the grievances Plaintiff submitted requesting to “have [his] special purchase for religious items processed for approval” and to “be free to select any scent of prayer oil.” Id. at 1135. Plaintiff’s exhibits indicates that one of his grievances, log no. CTF-19-00178, was “partially granted” but he had to submit [an] “Inmate/Parolee Request” form on April 28, 2019 because he had not “received the Approved Special Religious Purchase form that was granted,” and he “[could not] order until this occur[ed].” Id. at 35. The exhibit does not show a response to his request. Id. Thus, Plaintiff claims that “[t]hese unauthorized changes are burdensome, with no notice given, with malicious intent to deprive Plaintiff . . . [and] [t]hese changes] have had a discriminatory effect on [him] and [his] daily meditation/prayers.” Id. at 6. He argues that the aforementioned actions of Defendants violated his rights under RLUIPA, the RFRA, the Free Exercise Clause of the First Amendment and the Fourteenth Amendment. Id. at 7. [FN 2:] Plaintiff claims that as of the date of his complaint, “[n]o such change[s] have officially occurred . . . .” Dkt. 1 at 3. Dkt. 7 at 2-3 (footnote and brackets in original). 16 17 Defendants’ Version Plaintiff identifies as a “monotheist” and mostly follows the teachings of the Old 18 Testament and some form of the Koran. Williams Depo. at 55:12-17. As part of his religious 19 practice, Plaintiff engages in both prayer and meditation. Id. at 58:2. When either praying or 20 21 meditating, Plaintiff applies religious oils, such as a musk, “before coming into the presence of God.” Id. at 59:2-13. Plaintiff’s religious faith does not dictate that a particular musk scent be 22 used during prayer. Id. at 64:1-3. 23 Defendants point out that Plaintiff claims he submitted a special purchase order form for 24 certain musks dated on January 2, 2019 and addressed to Garden of Fragrance. Dkt. 1 at 22. The 25 CTF R&R Office has no record of ever receiving this January 2, 2019 order form addressed to 26 Garden of Fragrance. Romero Decl. ¶ 15; McGriff Decl. ¶ 11. Plaintiff has attached a copy of the 27 January 2, 2019 order form to his complaint, but it does not appear that this order form was 28 7 Case 4:19-cv-05685-YGR Document 33 Filed 09/15/21 Page 8 of 26 1 processed by the prison because it was neither signed by the R&R special purchase officer nor 2 marked as “approved/disapproved.” Dkt. 1 at 22. United States District Court Northern District of California 3 Defendants point out that attached to Plaintiff’s complaint is an e-mail dated January 3, 4 2019, which was drafted by Defendant Richey and distributed to CRMs, chaplains, and R&R 5 property officers. See Dkt. 1 at 3, 37. In the January 3, 2019 e-mail, Defendant Richey explained 6 that the CDCR was working with the approved religious vendors to bring about some changes in 7 the religious oil products being sold and how they are to be packaged. Id. Defendant Richey 8 further explained that although the changes would start taking place in January 2019, technically, 9 CDCR could not yet deny any oils that did not meet the new requirements. Id. Neither Sergeant 10 Romero nor Officer McGriff recall receiving or reviewing the January 3, 2019 e-mail. Romero 11 Decl. ¶ 17; McGriff Decl. ¶ 13. 12 Defendant Richey drafted and distributed another e-mail on January 4, 2019 to all CDCR 13 institution chaplains regarding signature authorization for inmates making religious property 14 purchases. Richey Decl. ¶ 4, Ex. A. In this e-mail, Defendant Richey informed chaplains to only 15 approve seven religious oils (kyphi, frankinmyrrh, sage, cedar, lavender, sandlewood, and rose) as 16 well as two types of musks (Egyptian and Arabian). Id. Defendant Richey explained that the 17 RPPM was in the process of being revised to limit approved musks to only Egyptian and Arabian, 18 and that all approved religious oil vendors were asked to only sell these two types of musks in 19 addition to the seven religious oils.8 Id. 20 Defendants claim that the anticipated changes to the RPPM were directly related to 21 ensuring the safety and security of CDCR institutions. Richey Decl. ¶ 5. The use of certain musk 22 scents, including designer musks, served as a way for inmates to bring contraband items, such as 23 controlled substances, into the prisons. Id. First, religious vendors were being asked by the 24 purchasers to change labels on oil bottles to reflect that its contents were musk when in fact its 25 actual contents were a non-approved or contraband item. Id. Second, certain types of musks have 26 strong smells that can mask the smell of some contraband items, such as marijuana. Id. Inmate 27 28 8 Plaintiff alleges that the RPPM was never in the process of being revised, and as of March 2021, it has still not been revised to limit any religious oils and musks. Dkt. 28 at 8. 8 Case 4:19-cv-05685-YGR Document 33 Filed 09/15/21 Page 9 of 26 1 use of certain musk scents to smuggle in contraband items has been an ongoing issue at multiple 2 CDCR institutions for the last few years. Id. United States District Court Northern District of California 3 On January 7, 2019, Plaintiff filed an inmate grievance, CTF Appeal Log No. CTF-19- 4 00178. Dkt. 1 at 13, 15. In this grievance, Plaintiff alleged that CTF made it “unreasonably 5 burdensome” to purchase and use religious oils. Dkt. 1 at 15. Plaintiff cites the January 3, 2019 6 and January 4, 2019 e-mails as evidence of “unauthorized changes” to the RPPM. Dkt. 1 at 13, 7 15, 37-38. Plaintiff also claimed that CTF’s Facility C placed “numerous stop gaps” in which 8 staff did one of the following: (1) took extremely long to process the approval of the special 9 purchase order forms; (2) denied them in violation of rules and regulations, the Administrative 10 Procedure Act, and the Fourteenth Amendment; or (3) did not respond to special purchase order 11 requests. Id. Plaintiff further argued that it appeared that religions that use prayer oil are being 12 discriminated against by prison officials. Id. 13 On January 7, 2019, Plaintiff also submitted a new special purchase order form for musks; 14 however, this time he addressed it to a different vendor—Madina Industrial Corporation—instead 15 of Garden of Fragrance. Dkt. 1 at 26. 16 Meanwhile, Defendant Richey eventually realized the error in asking institution chaplains 17 to restrict authorization to only two types of musk scents.9 Richey Decl. ¶ 6. Accordingly, on 18 January 23, 2019, Defendant Richey sent another e-mail to all institution chaplains clarifying 19 allowable religious items for purchase by inmates are those items listed in the current RPPM, 20 including any type of musk. Richey Decl. ¶ 6, Ex. B. Defendant Richey claims that he reached 21 out to some of the approved religious vendors, informing them that they could sell any musk 22 scents to inmates.10 Id. ¶ 7. For example, Defendant Richey claims that he called a representative 23 24 25 26 27 28 Contrary to Defendants’ allegations, Plaintiff claims that Defendant Richey’s actions were intentional when restricting RPPM items by sending the January 4, 2019 e-mail. Dkt. 28 at 9; Dkt. 1 at 37. Plaintiff points to Defendant Richey’s January 3, 2019 e-mail and argues that while Defendant Richey stated in that e-mail that “technically CDCR cannot yet deny oils,” this Defendant’s January 4, 2019 e-mail shows that he authorized the denial of requests for such oils the very next day. See id. 9 10 Plaintiff agrees with this contention, but claims that it took at least four months before Defendant Richey told the vendors to lift the unauthorized restrictions to RPPM musk items—not the twenty days Defendants claim. Dkt. 28 at 9; Dkt. 1 at 37. 9 Case 4:19-cv-05685-YGR Document 33 Filed 09/15/21 Page 10 of 26 1 from the vendor called Garden of Fragrance in April of 2019, informing that vendor to lift the 2 restrictions of selling only Egyptian and Arabian musks. Id. United States District Court Northern District of California 3 On February 12, 2019, Defendant Min responded to CTF Appeal Log No. CTF-19-00178 4 at the first level of review. Min Decl. ¶ 7, Ex. C. Defendant Min explained to Plaintiff that the 5 January 4, 2019 e-mail (which restricted chaplain approval to only nine types of religious oils and 6 two types of musks) was amended in a subsequent e-mail dated January 23, 2019. Min Decl. ¶ 7, 7 Ex. D. Defendant Min pointed out to Plaintiff that the January 23, 2019 e-mail clarified that 8 allowable religious items for purchase by inmates are those items listed in the current RPPM, 9 including any type of musk scents. Id. Defendant Min also explained to Plaintiff how the process 10 of approval for order forms follows the CTF DOM Supplement Addendum, 101060, dated 11 November 19, 2018. Id. Defendant Min subsequently denied Plaintiff’s January 7, 2019 special 12 purchase order form addressed to Madina Industrial Corporation.11 Min Decl. ¶ 8. Defendant Min 13 denied processing this order form because the listed vendor, Madina Industrial Corporation, was 14 not on the approved vendor list for 2019.12 Min Decl. ¶ 8, Ex. E.13 15 On March 22, 2019, Plaintiff appealed Defendant Min’s decision to the second level of 16 17 18 19 20 21 22 23 24 25 26 27 28 11 Defendant Min states he has no knowledge of the January 2, 2019 order form for musks addressed to the Garden of Fragrance, as he claims that Plaintiff never mentioned or presented this form to him at the first level review. Min Decl. ¶ 9. Meanwhile, Plaintiff alleges that it was not up to him to show Defendant Min this specific order form, nor to ensure that it was received by the R&R Office staff. Dkt. 28 at 10-11. 12 Contrary to these allegations, Plaintiff claims that at the interview, Defendant Min told him that he would approve the January 7, 2019 order form to Madina Industrial Corporation. Dkt. 28 at 10. Plaintiff alleges that the excuse that Madina Industrial Corporation was not an approved vendor was not brought up at the interview, and Plaintiff only learned about it when Defendant Min denied the first level of review. Dkt. 28 at 10; Dkt. 1 at 20. Plaintiff also alleges that no list of vendors or notice was posted in January 2019 and that the vendor Madina Industrial Corporation was previously approved for many years prior to that time frame. Dkt. 28 at 7-8. 13 On March 6, 2019, Defendant Min claims he approved a special purchase order form submitted by Plaintiff. Min Decl. ¶ 10. This approval is recorded in the book that Defendant Min kept in Chapel I during the period of December 10, 2018 and March 14, 2019. Min Decl. ¶ 10, Ex. F. Meanwhile, Plaintiff claims that Defendant Min did not approve and process a special purchase for Plaintiff on March 6, 2019. Dkt. 28 at 10. The record does not include a copy of this special purchase order form, and Defendant Min does not elaborate on whether this form was related to the purchase of religious oils or musks. See Min Decl. ¶ 10, Ex. F. Therefore, the Court cannot determine whether this form is relevant to the claims at issue. In any event, neither party relies on this form to support their side, and thus it seems irrelevant and will not be considered. 10 Case 4:19-cv-05685-YGR Document 33 Filed 09/15/21 Page 11 of 26 1 review. Dkt. 1 at 13-14. On April 16, 2019, the second level partially granted Plaintiff’s request 2 to have his January 2, 2019 special purchase order form addressed to Garden of Fragrance. Dkt. 1 3 at 19-21. 4 5 6 2019 special purchase order form be approved and returned to him.14 Dkt. 1 at 35. On May 8, 2019, Plaintiff appealed his grievance to the third level of review. Dkt. 1 at 14. 7 On August 9, 2019, the third level screened-out the grievance, and informed Plaintiff that he had 8 exhausted his administrative remedies. Id. at 11. 9 United States District Court Northern District of California On April 28, 2019, Plaintiff submitted a CDCR form 22 requesting that his January 2, On September 11, 2019, Sergeant Romero conducted an interview with Plaintiff regarding 10 CTF Appeal Log No. CTF-19-00178. Romero Decl. ¶ 14, Ex. C. The purpose of the interview 11 was to resolve the issue stated in his appeal by offering Plaintiff an expedited-approved 12 replacement order form to order products from the Garden of Fragrance, an approved religious 13 vendor.15 Id. Plaintiff declined Sergeant Romero’s offer and informed the sergeant that he had 14 filed a lawsuit and was no longer seeking a remedy through the CDCR appeals system. Id. 15 Although Plaintiff believes that he was denied due process when Defendant Richey made 16 “unauthorized changes” to the RPPM by directing institution chaplains to restrict approval to 17 certain “prayer oil scents and fragrances,” Plaintiff admits that there have been no changes to the 18 RPPM since 2013. Williams Depo. at 18:1-25, 19:1-21, 21:12-20. 19 As mentioned, Plaintiff also asserted that he was denied “due process” when CTF made 20 changes to the special purchase order forms for religious items by requiring three signatures for 21 approval. Id. at 23-25, 33:16-20. According to Plaintiff, if the administration makes any changes 22 23 24 25 26 27 28 14 As explained above, the R&R Office at CTF has no record of ever receiving this January 2, 2019 order form addressed to Garden of Fragrance. Romero Decl. ¶ 15; McGriff Decl. ¶ 11. The record only contains an unprocessed copy of the January 2, 2019 order form, which is attached to Plaintiff’s complaint. Dkt. 1 at 22. 15 Plaintiff claims that his administrative remedies were exhausted on August 9, 2019 when it was screened-out at the third level of review. Dkt. 28 at 11. Therefore, according to Plaintiff, the September 11, 2019 interview by Sergeant Romero was “no longer valid.” Id. Even so, Plaintiff claims that he asked for a copy of the January 2, 2019 order form to Garden of Fragrance, which he was granted, but Sergeant Romero could not provide it. Id. Plaintiff alleges that this is how the interview concluded. Id. Plaintiff does not explain when or how he received the copy of the January 2, 2019 order form that is attached to his complaint. See Dkt. 1 at 22. 11 Case 4:19-cv-05685-YGR Document 33 Filed 09/15/21 Page 12 of 26 1 to the DOM, inmates typically understand that it is their responsibility to keep up with such 2 changes by “go[ing] to the law library or read[ing] the bulletin boards” where these changes are 3 available to inmates to review. Id. at 27:24-25, 28:1-17 (brackets added). 4 5 the forms are available through the chapel clerk. Id. at 69:9-11. However, the order forms 6 provided to Plaintiff may not necessarily be the “proper” forms; in other words, it may be an old 7 order form. Id. at 69:11-25, 70:1-17. Regarding the list of approved vendors for the 2019 8 calendar year, Plaintiff testified that he had seen that list posted on the bulletin board of his 9 housing unit and in the law library. Id. at 67:15-25, 68:1. 10 United States District Court Northern District of California Describing the process of procuring the special purchase order form, Plaintiff alleged that The last time Plaintiff attempted to procure a special purchase order form was in the 11 beginning of 2020. Id. at 47:6-9. Plaintiff testified that he heard a “rumor” that there was a new 12 way to process the order forms in that the forms no longer go through the chaplain; instead, the 13 forms go from the R&R Office and then to the captain. Id. at 46:2-6. However, when Plaintiff 14 went to the chapel to pick up a special purchase order form, he realized that the order form did not 15 change. Id. at 47:6-9. Rather, it was the same order form with the three signature blocks. Id. 16 Plaintiff testified that a chapel clerk explained to him to write “N/A” on the chaplain signature 17 block and then send it straight to the R&R Office. Id. at 47:12-15. 18 Plaintiff further testified that he subsequently went to the law library to look into the DOM 19 to see if the rule changed. Id. at 48:12-13. When he saw there were no rule changes to the special 20 purchase order form process, he chose not to proceed with the method explained by the chapel 21 clerk. Id. at 48:8-15. Plaintiff felt he could not “circumvent a signature,” id. at 47:19-20, and 22 instead was going to “follow what the rule says,” id. at 48:15. 23 Plaintiff testified that some CTF inmates, most of whom follow the Islamic faith, have 24 been letting Plaintiff use some of their prayer oils. Id. at 71:21-24; 72:7-19; 77:1-3. According to 25 Plaintiff, some of these inmates are procuring their religious oils through, what the Plaintiff refers 26 to as, “the new process.” Id. at 72:20-25; 74:10-23. Even though some inmates at CTF were able 27 to get their special purchase order forms for religious oils processed by writing “N/A” or “not 28 applicable” in the chaplain signature block of the order form, Plaintiff decided against this course 12 Case 4:19-cv-05685-YGR Document 33 Filed 09/15/21 Page 13 of 26 1 of action. Id. at 74:20-25; 75:1-8. Plaintiff also testified that since January 2019, he continues his prayers and/or meditations, 2 3 but on a “limited” basis. Id. at 64:17-25; 65:1-4. For instance, Plaintiff might pray and/or 4 meditate two to five times a day, Id. at 65:1-12, and sometimes with the use of religious oils 5 provided to him from other inmates, Id. at 71:21-24; 72:7-15. Plaintiff clarified that he is alleging a violation of the Equal Protection Clause under the United States District Court Northern District of California 6 7 Fourteenth Amendment against Defendants Koenig, Min, and Richey. Id. at 75:13-17. Plaintiff 8 then testified that other inmates experiencing denials of their special purchase order forms for 9 religious oils are not necessarily members of the same religious group. Id. at 77:23-25; 78:1-7. 10 He testified that, “[i]t’s not the actual religion that’s the issue. The issue is they don’t want to 11 process [the order forms]. They don’t care what religion you are.” Id. at 78:7-9. 12 III. 13 LEGAL STANDARD Summary judgment is proper where the pleadings, discovery and affidavits demonstrate 14 that there is “no genuine issue as to any material fact and that the moving party is entitled to 15 judgment as a matter of law.” Fed. R. Civ. P. 56(c). Material facts are those which may affect the 16 outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a 17 material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for 18 the nonmoving party. Id. 19 The party moving for summary judgment bears the initial burden of identifying those 20 portions of the pleadings, discovery, and affidavits which demonstrate the absence of a genuine 21 issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving 22 party will have the burden of proof on an issue at trial, it must affirmatively demonstrate that no 23 reasonable trier of fact could find other than for the moving party. On an issue for which the 24 opposing party by contrast will have the burden of proof at trial, as is the case here, the moving 25 party need only point out “that there is an absence of evidence to support the nonmoving party’s 26 case.” Id. at 325. 27 Once the moving party meets its initial burden, the nonmoving party must go beyond the 28 pleadings and, by its own affidavits or discovery, “set forth specific facts showing that there is a 13 United States District Court Northern District of California Case 4:19-cv-05685-YGR Document 33 Filed 09/15/21 Page 14 of 26 1 genuine issue for trial.” Fed. R. Civ. P. 56(e). The court is only concerned with disputes over 2 material facts and “[f]actual disputes that are irrelevant or unnecessary will not be counted.” 3 Anderson, 477 U.S. at 248. It is not the task of the court to scour the record in search of a genuine 4 issue of triable fact. Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). The nonmoving party 5 has the burden of identifying, with reasonable particularity, the evidence that precludes summary 6 judgment. Id. If the nonmoving party fails to make this showing, “the moving party is entitled to 7 a judgment as a matter of law.” Celotex, 477 U.S. at 323. 8 For purposes of summary judgment, the court must view the evidence in the light most 9 favorable to the nonmoving party; if the evidence produced by the moving party conflicts with 10 evidence produced by the nonmoving party, the court must assume the truth of the evidence 11 submitted by the nonmoving party. See Leslie v. Grupo ICA, 198 F.3d 1152, 1158 (9th Cir. 1999). 12 The court’s function on a summary judgment motion is not to make credibility determinations or 13 weigh conflicting evidence with respect to a disputed material fact. See T.W. Elec. Serv., Inc. v. 14 Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). A district court may only consider admissible evidence in ruling on a motion for summary 15 16 judgment. See Fed. R. Civ. P. 56(e); Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002). 17 Submitted by Defendants in support of the motion for summary judgment are Plaintiff’s 18 deposition (Trenbeath Decl., Ex. A) as well as declarations by Defendants Richey and Min, 19 Deputy Attorney General Jean M. Trenbeath (Defendants’ attorney), Officer McGriff, and 20 Sergeant Romero, along with various supporting exhibits (Dkts. 24-2 through 24-11). Meanwhile, 21 Plaintiff has filed his verified complaint and a verified opposition to Defendants’ motion for 22 summary judgment. Dkts. 1, 28. The Court will construe these filings as affidavits under Federal 23 Rule of Civil Procedure 56, insofar as they are based on personal knowledge and set forth specific 24 facts admissible in evidence. See Schroeder v. McDonald, 55 F.3d 454, 460 & nn.10-11 (9th Cir. 25 1995). 26 IV. 27 28 DISCUSSION As mentioned above, on April 28, 2020, the Court determined that Plaintiff stated cognizable claims under the First Amendment’s Free Exercise Clause, the Fourteenth 14 Case 4:19-cv-05685-YGR Document 33 Filed 09/15/21 Page 15 of 26 1 Amendment, and RLUIPA against Defendants Richey, Koenig, and Min. Dkt. 7 at 4. 2 Specifically, Plaintiff alleges that Defendants limited his ability to purchase religious oils or 3 musks for his “daily meditation/prayers” by either sending an e-mail restricting the purchase of 4 certain musks or by denying/failing to process his special purchase order forms for his musks, in 5 violation of his rights under the First and Fourteenth Amendments and RLUIPA. Dkt. 1 at 3, 5-9. 6 Plaintiff claims that his special purchase order form was denied due to a change in policy 7 restricting the purchase of certain types of prayer oils and musks, in contravention of the RPPM 8 that has been in place since 2013. See id. 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In their motion for summary judgment, Defendants claim that they did not violate Plaintiff’s rights under the constitution or RLUIPA, stating as follows: . . . Although Defendant Richey did initially instruct institution chaplains to limit inmates to two types of musks in anticipation of upcoming changes to the RPPM, the RPPM was never amended. And Defendant Richey retracted this directive to the institution chaplains within 20 days of sending the initial directive. Therefore, any harm to Plaintiff was de minimis, and Defendant Richey’s conduct did not violate Plaintiff’s constitutional or statutory rights. Plaintiff also claims that all Defendants continued to deny Plaintiff his prayer oils, particularly musks, by implementing a “burdensome” special purchase order process at CTF. Although the special purchase order form for religious items required three signatures for a period of three months, again, any harm to plaintiff is de minimis. Moreover, any denial of Plaintiff’s special purchase orders for musks was due to his seeking to purchase the musks from an unapproved religious vendor for the 2019 calendar year. Plaintiff’s due-process claims also fail. No changes to the RPPM actually occurred, and the special purchase officer at CTF strictly adhered to the RPPM when reviewing inmate’s special purchase order forms for religious items, not any directive from Defendants. Plaintiff’s Free Exercise claim also fails because the purported harm he suffered is de minimis, if any, and the initial restrictions Defendant Richey placed on the types of musks that could be ordered were based on legitimate safety and security concerns. Additionally, Plaintiff, like other CTF inmates who use prayer oils and musks in their religious practice, is free to order any musk in accordance with the RPPM, so long as the order is placed with an approved religious vendor. Therefore, any demand for injunctive relief pursuant to RLUIPA is moot. Furthermore, Plaintiff’s Equal Protection claim fails because there is no evidence of discrimination by any Defendant, and Plaintiff testified at his deposition that order forms are denied regardless of the 15 Case 4:19-cv-05685-YGR Document 33 Filed 09/15/21 Page 16 of 26 inmate’s religion. immunity. 1 United States District Court Northern District of California 2 Lastly, Defendants are entitled to qualified Dkt. 24 at 6-7. 3 A. 4 RLUIPA provides that no state may impose a “substantial burden” on an inmate’s exercise RLUIPA 5 of religion unless the action or policy in question provides the least restrictive means of serving a 6 compelling governmental interest. 42 U.S.C. § 2000cc-1(a). RLUIPA does not define 7 “substantial burden.” See 42 U.S.C. § 2000cc-5. The Ninth Circuit, however, has held that a 8 “substantial burden” on “religious exercise” is one that imposes “a significantly great restriction or 9 onus upon such exercise.” Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1125 (9th 10 Cir. 2013) (emphasis added) (quoting San Jose Christian Coll. v. City of Morgan Hill, 360 F.3d 11 1024, 1034 (9th Cir. 2004)). “Religious exercise,” for RLUIPA purposes, includes “any exercise 12 of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. 13 § 2000cc-5(7)(A). The exercise of religion may involve not only the belief and profession, but the 14 performance of physical acts such as group assembly for worship. See Greene v. Solano County 15 Jail, 513 F.3d 982, 987 (9th Cir. 2008). 16 The first step in a RLUIPA inquiry is to define the religious exercise at issue. Greene v. 17 Solano County Jail, 513 F.3d 983, 987 (9th Cir. 2008). The plaintiff bears the burden of coming 18 forward with evidence demonstrating the state’s action or policy constituted a substantial burden 19 on his exercise of religion. Warsoldier v. Woodford, 418 F.3d 989, 994-95 (9th Cir. 2005). The 20 focus of this initial inquiry necessarily is on the manner in which the plaintiff’s religious exercise 21 is impacted, rather than on the reasonableness of the facility’s policy or regulation. Id. at 995. A 22 de minimis injury does not suffice to make a claim under RLUIPA because it does not constitute a 23 “significantly great restriction or onus” upon the plaintiff’s exercise of his religious rights. See 24 McKenzie v. Ellis, No. 10-1490, 2012 U.S. Dist. LEXIS 130973, *10 (S.D. Cal. 2012). Once the 25 plaintiff has met his initial burden of showing a substantial burden on his exercise of religion, the 26 burden shifts to the government to show that the burden imposed is in furtherance of a 27 “compelling” government interest (rather than simply a legitimate penological interest), and that it 28 achieves the compelling interest by the least restrictive means. See 42 U.S.C. § 2000cc-1(a); 16 Case 4:19-cv-05685-YGR Document 33 Filed 09/15/21 Page 17 of 26 1 United States District Court Northern District of California 2 Shakur v. Schriro, 514 F.3d 878, 889 (9th Cir. 2008). On the evidence in the record, no rational trier of fact could find in Plaintiff’s favor on a 3 RLUIPA claim. While Plaintiff believes that the two e-mails dated January 3 and 4, 2019 (sent to 4 institution chaplains and R&R property officers, see Dkt. 1 at 37-38) set in motion an ongoing 5 prohibition of his purchasing any type of musk scent, he fails to provide any evidence that his 6 religious practice was substantially burdened by Defendants’ actions. See Warsoldier, 418 F.3d at 7 994-95. As further explained below, Defendants are entitled to judgment as a matter of law on the 8 RLUIPA claim. 9 First, the record shows that within 20 days of sending the January 4, 2019 e-mail to 10 institution chaplains, Defendant Richey sent another e-mail, dated January 23, 2019, to institution 11 chaplains clarifying that the allowable religious items for purchase by inmates are those items 12 listed in the current RPPM, including any type of musk. See Richey Decl. ¶ 6, Ex. B. 13 Second, neither Sergeant Romero nor Officer McGriff from CTF’s R&R Office recall 14 receiving or reviewing the January 3, 2019 e-mail cited by Plaintiff in his complaint, and 15 therefore, they did not rely on that e-mail when processing special purchase order forms. See 16 Romero Decl. ¶ 17; McGriff Decl. ¶ 13; Dkt. 1 at 37. Rather, at all relevant times, Officer 17 McGriff strictly adhered to the RPPM when reviewing inmates’ special purchase order forms for 18 religious items. See McGriff Decl. ¶ 14, Ex. D. 19 Third, in April of 2019, Defendant Richey notified Garden of Fragrance to lift the initial 20 restrictions on selling only Egyptian and Arabian musks to inmates. See Richey Decl. ¶ 7. 21 Defendant Richey’s corrective actions in this regard would not have negatively impacted 22 Plaintiff’s attempt to order any type of musk scent from this vendor. See Dkt. 1 at 19-22. 23 Thus, the record shows that CTF still permits inmates to purchase and use prayer oils, 24 including any type of musk, in accordance with the current RPPM. See Romero Decl. ¶ 13; 25 McGriff Decl. ¶¶ 10, 14, Ex. D; Min Decl. ¶ 7. This is true despite the brief directive caused by 26 Defendant Richey’s January 4, 2019 e-mail restricting the types of musks inmates could order, 27 which was furthered by a legitimate governmental interest related to safety and security of the 28 17 Case 4:19-cv-05685-YGR Document 33 Filed 09/15/21 Page 18 of 26 1 institution (as explained in more detail in the following section below16). See Richey Decl. ¶ 5. 2 And the inconvenience Plaintiff may have experienced (when trying to order musk scents for his 3 daily mediations and/or prayers) does not violate RLUIPA. See Lewis v. Ollison, 571 F. Supp. 2d 4 1162, 1171-72 (C.D. Cal. 2008) (dismissing RLUIPA claims upon finding that denial of prisoner’s 5 request to obtain and possess more oil than stated amounts permitted for religious oil did not 6 impose substantial burden on religious exercise because facility permitted inmates to possess 7 sufficient amount of prayer oil, even though plaintiff averred that limited amount permitted did not 8 suffice to cover demands of oil usage required in Islam). United States District Court Northern District of California 9 Furthermore, even if the January 4, 2019 e-mail led to a temporary restriction on 10 purchasing religious musks, Plaintiff’s exercise of his religious rights were not significantly 11 restricted, as his religious faith does not dictate that a particular musk be used during prayer. 12 Williams Depo. at 64:1-3. Thus, Plaintiff has shown no harm, or at most, de minimis harm, to his 13 religious beliefs due to Defendant Richey’s actions of sending the January 4, 2019 e-mail 14 temporarily restricting the purchase of religious musks. 15 Finally, Plaintiff also demands injunctive relief pursuant to RLUIPA “from contested 16 policy moves of defendants.” Dkt. 1 at 3. However, his request for injunctive relief is moot 17 because the record shows that the RPPM was never revised, and the special purchase order forms 18 now only need two signatures and still continue to be reviewed in accordance with the current 19 RPPM. Richey Decl. ¶ 8, Ex. C; Romero Decl. ¶ 13; McGriff Decl. ¶¶ 10, 14, Ex. D. 20 In sum, on the evidence in the record, no rational trier of fact could find in Plaintiff’s favor 21 on a RLUIPA claim because Plaintiff fails to provide any evidence that the denial of his special 22 purchase order forms substantially burdened his exercise of religion. See Warsoldier, 418 F.3d at 23 994-95. Defendants are thus entitled to judgment as a matter of law on the RLUIPA claim. 24 B. 25 The First Amendment provides that “Congress shall make no law respecting an 26 establishment of religion, or prohibiting the free exercise thereof.” U.S. Const. amend. I. “The First Amendment Free Exercise 27 28 16 See infra DISCUSSION Part IV.B. 18 Case 4:19-cv-05685-YGR Document 33 Filed 09/15/21 Page 19 of 26 1 first of the two Clauses, commonly called the Establishment Clause, commands a separation of 2 church and state. The second, the Free Exercise Clause, requires government respect for, and 3 noninterference with, the religious beliefs and practices of our Nation’s people.” Cutter v. 4 Wilkinson, 544 U.S. 709, 719 (2005). The free exercise right is necessarily limited by the fact of 5 incarceration, and may be curtailed in order to achieve legitimate correctional goals or to maintain 6 prison security. See O’Lone v. Shabazz, 482 U.S. 342, 348-49 (1987). In order to prevail on a 7 free exercise claim, a prisoner must show a defendant burdened the practice of his religion without 8 any justification reasonably related to legitimate penological interests. See Shakur v. Schriro, 514 9 F.3d 878, 883-84 (9th Cir. 2008). United States District Court Northern District of California 10 The Supreme Court has identified four factors for courts to consider when determining 11 whether a regulation or practice is reasonably related to legitimate penological interests: 12 (1) whether there is a “‘valid, rational connection’ between the prison regulation and the legitimate 13 governmental interest put forward to justify it,” (2) “whether there are alternative means of 14 exercising the right that remain open to prison inmates,” (3) “the impact accommodation of the 15 asserted constitutional right will have on guards and other inmates, and on the allocation of prison 16 resources generally,” and (4) the “absence of ready alternatives,” or, in other words, whether the 17 rule at issue is an “‘exaggerated response’ to prison concerns.” Turner v. Safley, 482 U.S. 78, 89- 18 90 (1987) (citation omitted). The task in considering the Turner factors is not to balance the four 19 factors, but, rather, to determine whether the state shows a “reasonable” relation between the 20 policy and legitimate penological objectives, rather than simply a “logical” one. Beard v. Banks, 21 548 U.S. 521, 533 (2006). While all justifiable inferences must be drawn in the nonmoving 22 party’s favor with respect to matters of disputed fact, the court’s inferences must accord deference 23 to the views of prison authorities in disputed matters of professional judgment. See id. at 529-30. 24 Unless a prisoner can point to evidence showing the policy is not reasonably related to legitimate 25 penological objectives, sufficient to allow him to prevail on the merits, he cannot prevail at the 26 summary judgment stage. Id. at 530. 27 28 Turning to the instant action, with respect to the first Turner factor, the undisputed evidence shows a rational and valid connection between a legitimate government interest in 19 United States District Court Northern District of California Case 4:19-cv-05685-YGR Document 33 Filed 09/15/21 Page 20 of 26 1 maintaining prison order and security and Defendant Richey’s initial decision on January 4, 2019 2 to temporarily restrict the types of musk inmates could order. Courts recognize that preserving the 3 safety and security of a prison, staff, and inmates is a legitimate penological interest. Mauro v. 4 Arpaio, 188 F.3d 1054, 1059 (9th Cir. 1999); Procunier v. Martinez, 416 U.S. 396, 413 (1974) 5 (holding that legitimate penological interests include “security, order, and rehabilitation”), 6 overruled on other grounds, Thornburgh v. Abbott, 490 U.S. 401, 413-14 (1989). The record 7 shows that the anticipated changes to the RPPM were directly related to ensuring the safety and 8 security of CDCR institutions. Richey Decl. ¶ 5. According to Defendant Richey, the “use of 9 certain musk scents, including designer musks, served as a way for inmates to bring contraband 10 items, such as controlled substances, into the prisons.” Id. For example, Defendant Richey points 11 out that “religious vendors were being asked by the purchasers to change labels on oil bottles to 12 reflect that its contents were musk when in fact its actual contents were a non-approved or 13 contraband item.” Id. He adds that “certain types of musks have strong smells that can mask the 14 smell of some contraband items, such as marijuana.” Id. He also states that “[i]nmate use of 15 certain musk scents to smuggle in contraband items has been an ongoing issue at multiple CDCR 16 institutions for the last few years.” Id. These aforementioned reasons, as set forth in Defendant 17 Richey’s declaration, establishes a reasonable relationship between the temporary restrictions on 18 an inmate’s possession of certain musk scents and the penological interests of maintaining 19 institutional safety, security, and rehabilitation. Accordingly, this factor weighs in favor of 20 Defendants. 21 As noted earlier, the second Turner factor is “whether there are alternative means of 22 exercising the right that remain open to prison inmates.” Turner, 482 U.S. at 89-90. The 23 restrictions on Plaintiff’s use of musk scents did not deprive Plaintiff of all means of exercising his 24 religious beliefs. Even if Defendant Richey’s restrictions on Plaintiff’s use of musk scents had 25 actually remained in place, alternatives would have been immediately available to Plaintiff. 26 Plaintiff still had access to Egyptian and Arabian musks, as well as seven other oils. Richey Decl. 27 ¶ 4, Ex. A. Indeed, Plaintiff even testified at his deposition that his religious faith does not dictate 28 that a particular musk scent be used during prayer. Williams Depo. at 64:1-3. Therefore, this 20 Case 4:19-cv-05685-YGR Document 33 Filed 09/15/21 Page 21 of 26 1 factor weighs in favor of Defendants, as Plaintiff had alternative means of exercising his right to 2 practice his religion. United States District Court Northern District of California 3 The third Turner factor requires the Court to consider the “impact accommodation of the 4 asserted constitutional right will have on guards and other inmates, and on the allocation of prison 5 resources generally.” Turner, 482 U.S. at 90. Here, the third factor under Turner has not been 6 borne out as inmates are permitted to continue to purchase and use any musk scent in accordance 7 with the current RPPM. Richey Decl. ¶ 8, Ex. C. Accordingly, neither Defendant Richey’s 8 conduct nor the current CDCR special purchase order procedure have had significant negative 9 effects on other inmates or guards. Thus, this factor weighs in favor of Defendants. 10 The fourth Turner factor requires the Court to consider whether there is an “absence of 11 ready alternatives” to the prison policy. Turner, 482 U.S. at 90. The burden is on the prisoner 12 challenging the regulation to show that there are obvious, easy alternatives to the regulation. 13 See O'Lone, 482 U.S. at 350; see also Mauro v. Arpaio, 188 F.3d 1054, 1063 (9th Cir. 1999). 14 Ultimately, this factor weighs in favor of Defendants because Defendant Richey’s short-lived 15 restrictions on inmates’ purchase of musks were not an exaggerated response to prison concerns 16 because inmate use of certain musk scents to smuggle in contraband items had been an ongoing 17 issue at multiple CDCR institutions for the last few years. Richey Decl. ¶ 5. Moreover, as 18 mentioned above, such restrictions would still allow inmates to purchase and use Egyptian and 19 Arabian musks, in addition to seven other types of prayer oils. Richey Decl. ¶ 4, Ex. A. 20 Having considered the various Turner factors, the Court concludes that Defendant 21 Richey’s conduct was reasonably related to the legitimate penological interests in staff and inmate 22 safety. Plaintiff does not show or raise a triable issue of fact that his right to free exercise of 23 religion was improperly impinged upon by Defendants. Defendants are therefore entitled to 24 judgment in their favor on Plaintiff’s First Amendment claim. 25 C. 26 “The Equal Protection Clause of the Fourteenth Amendment commands that no State shall Fourteenth Amendment Equal Protection 27 ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a 28 direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne 21 Case 4:19-cv-05685-YGR Document 33 Filed 09/15/21 Page 22 of 26 1 Living Center, 473 U.S. 432, 439 (1985). In the prison or jail context, the Equal Protection Clause 2 requires that an inmate who is an adherent of a minority religion be afforded a “reasonable 3 opportunity of pursuing his faith comparable to the opportunity afforded fellow prisoners who 4 adhere to conventional religious precepts,” Cruz v. Beto, 405 U.S. 319, 322 (1972) (Buddhist 5 inmates must be given opportunity to pursue faith comparable to that given Christian inmates), as 6 long as the inmate’s religious needs are balanced against the reasonable penological goals of the 7 prison, O’Lone, 482 U.S. at 349. An inmate cannot prevail on his equal protection claim “if the 8 difference between the defendants’ treatment of him and their treatment of [other] inmates is 9 ‘reasonably related to legitimate penological interests.’” Shakur, 514 F.3d at 891 (citations United States District Court Northern District of California 10 omitted). 11 To survive summary judgment on his equal protection claim, Plaintiff must show a triable 12 issue of fact that Defendants intentionally treated him differently from similarly situated inmates. 13 See McCollum v. Cal. Dep’t of Corr. and Rehab., 647 F.3d 870, 880-81 (9th Cir. 2011) (granting 14 summary judgment for prison officials on Wiccan prison chaplain’s equal protection claim where 15 plaintiff-chaplain, among other things, had failed to articulate which clergy were similarly situated 16 to him). Plaintiff fails to do so. 17 In his deposition, Plaintiff testified that, “[i]t’s not the actual religion that’s the issue. The 18 issue is they don’t want to process [the order forms]. They don’t care what religion you are.” 19 Williams Depo. at 78:7-9. Based on Plaintiff’s own aforementioned statements, Defendants did 20 not violate Plaintiff’s rights under the Equal Protection Clause of the Fourteenth Amendment. No 21 evidence exists showing that any other similarly situated inmates were unable to purchase 22 religious oils or musks that were in accordance with the RPPM and CTF’s policies. The mere fact 23 that Plaintiff reportedly had a religion and that he was restricted from purchasing certain musk 24 scents from a restricted vendor does not lead to any reasonable inference that the latter happened 25 because of the former. Nor does the denial of Plaintiff’s special purchase order forms support an 26 inference of intent to discriminate against Plaintiff because of his religion. The record also shows 27 that even after his January 7, 2019 order form was denied (as it involved an unapproved vendor), 28 Sergeant Romero offered Plaintiff an expedited-approved replacement order form to order the 22 United States District Court Northern District of California Case 4:19-cv-05685-YGR Document 33 Filed 09/15/21 Page 23 of 26 1 products he desired from an approved religious vendor. Romero Decl. ¶ 14, Ex. C. As for the 2 failure to process Plaintiff’s January 2, 2019 order form, the record shows that Defendants claim 3 they never received this form. See Romero Decl. ¶ 15; McGriff Decl. ¶ 11. Moreover, the record 4 shows Defendants eventually offered Plaintiff an expedited-approved replacement order form to 5 order his musks, but Plaintiff declined such an offer and instead decided to pursue this lawsuit. 6 See Romero Decl. ¶, Ex. C. Therefore, on the evidence in the record, no reasonable jury could 7 find that Defendants denied or failed to process Plaintiff’s special purchase order forms due to 8 impermissible discriminatory intent against inmates who were of his religion. 9 Finally, even if the denial of Plaintiff’s January 7, 2019 order form resulted in unequal 10 treatment of those who are of his religion and other inmates, to the extent that the decision to deny 11 that order form resulted from Defendant Richey’s January 4, 2019 initial decision to temporarily 12 restrict the purchase of certain musks—such a denial passes muster under the Turner test as 13 explained above. See supra DISCUSSION Part IV.B. The same Turner analysis that requires 14 rejection of Plaintiff’s free exercise claim also requires rejection of his equal protection claim. See 15 id. 16 Accordingly, Plaintiff has not raised a triable issue of fact that his right to equal protection 17 was improperly impinged upon by Defendants. Defendants are therefore entitled to judgment in 18 their favor on Plaintiff’s claim under the Fourteenth Amendment’s Equal Protection Clause. 19 D. 20 The Due Process Clause of the Fourteenth Amendment protects individuals against 21 governmental deprivations of “life, liberty or property,” as those words have been interpreted and 22 given meaning over the life of our republic, without due process of law. Board of Regents v. Roth, 23 408 U.S. 564, 570-71 (1972); Mullins v. Oregon, 57 F.3d 789, 795 (9th Cir. 1995). 24 Fourteenth Amendment Due Process The touchstone of due process is protection of the individual against arbitrary action of 25 government, whether the fault lies in a denial of fundamental procedural fairness (i.e., denial of 26 procedural due process guarantees) or in the exercise of power without any reasonable justification 27 in the service of a legitimate governmental objective (i.e., denial of substantive due process 28 guarantees). See County of Sacramento v. Lewis, 523 U.S. 833, 845-46 (1998). 23 Case 4:19-cv-05685-YGR Document 33 Filed 09/15/21 Page 24 of 26 1 2 personal property that may be purchased from various contracted vendors by California state 3 prison inmates at their own expense. See Cal. Code Regs. tit. 15, § 3190. Section 3190, 4 subsection (b), of Title 15 states that, “[a]ll changes to the [RPPM] shall be adopted in accordance 5 with the rulemaking requirements of the Administrative Procedure Act (Government Code 6 Sections 11340 through 11350.3) and, if applicable, Penal Code 5058.3.” See id. (brackets added). 7 Thus, any anticipated changes to the RPPM must first go through the notice, comment, and 8 hearing procedures of the California Administrative Procedure Act, which would afford the 9 opportunity to oppose any anticipated changes. 10 United States District Court Northern District of California Title 15 of the California Code of Regulations outlines the procedures for determining the Defendant Richey did not follow the correct process for making changes to the RPPM 11 when he e-mailed institution chaplains about limiting the types of musks inmates can order from 12 approved vendors in anticipation of changes to the RPPM. Dkt. 1 at 13, 15, 38; Richey Decl. ¶ 4, 13 Ex. A. However, once Defendant Richey realized the error, he sent a follow-up e-mail to 14 institution chaplains on January 23, 2019, clarifying allowable religious items for purchase by 15 inmates are those items listed in the current RPPM, including any type of musk. Richey Decl. ¶ 6, 16 Ex. B. Defendant Richey also reached out to one of the approved vendors, Garden of Fragrance, 17 in April of 2019, informing this vendor to lift the restrictions on selling only Egyptian and Arabian 18 musks to inmates. Richey Decl. ¶ 7. No changes have been made to the RPPM since it was last 19 finalized on December 9, 2013. Richey Decl. ¶ 8, Ex. C. 20 As mentioned, Sergeant Romero and Officer McGriff cannot recall receiving or reviewing 21 an e-mail dated January 3, 2019 (cited by Plaintiff in his complaint, see Dkt. 1 at 37), in which 22 Defendant Richey explained that the CDCR was working with the approved religious vendors to 23 bring about some changes in the religious oil products being sold and how they are to be 24 packaged. Romero Decl. ¶ 17; McGriff Decl. ¶ 13; Dkt. 1 at 37. Ex. C. Officer McGriff, who was 25 the special purchase officer for the CTF R&R Office from October 2014 to February 2020, would 26 ensure that the religious items sought for purchase were on the RPPM. McGriff Decl. ¶¶ 1, 8. 27 This demonstrates that any proposed restrictions on the types of musks an inmate could order did 28 not affect Officer McGriff’s actions as a special purchase officer when he reviewed inmates’ 24 Case 4:19-cv-05685-YGR Document 33 Filed 09/15/21 Page 25 of 26 1 special purchase order forms requesting the purchase of any musk scent. Thus, since the 2 anticipated changes to the RPPM never occurred, Plaintiff’s due process rights were not violated. United States District Court Northern District of California 3 Furthermore, there is no constitutionally recognized procedure for noticing inmates of 4 changes to the departmental procedure of a particular prison or correctional facility. While any 5 proposed changes to the RPPM must be adopted in accordance with the rulemaking requirements 6 of the Administrative Procedure Act, Defendant Koenig was not required to go through that 7 process when he approved changes to CTF DOM Supplement Addendum, 101060 on November 8 19, 2018. At most, Plaintiff is only owed access to updated versions of the DOM at CTF, 9 including any revised special purchase order forms. Plaintiff testified at his deposition that he has 10 accessed the DOM by going to the law library, and that “it’s on [him]” to go to the law library to 11 research the DOM or any changes made to it. Williams Depo. at 27:24-25, 28:1-17, 48:12-13. 12 Under section 3190(k)(4) of Title 15 of the California Code of Regulations, “Special 13 purchases of religious items will be from departmentally-approved vendors of religious items 14 only,” the latter of which “will be at the determination of the Statewide Religious Review 15 Committee.” Additionally, “[t]he institution head or designated staff shall ensure approved 16 vendor catalogs and order forms are available to inmates who qualify.” California Code of 17 Regulations, tit. 15, §3190(k). The special purchase order forms, as well as the list of CDCR- 18 approved religious vendors for the current calendar year, are available in each chapel at CTF. Min 19 Decl. ¶ 5. Plaintiff admits that the order forms were available through the chapel clerk, see 20 Williams Depo. at 69:9-11, and that Plaintiff had seen the approved-vendor list for 2019 on the 21 bulletin board of his housing unit and in the law library, see id. at 67:15-25, 68:1. 22 Moreover, there is no connection between the order form process implemented by 23 Defendant Koenig’s and Defendant Richey’s actions in early January 2019. Defendant Richey 24 had no knowledge of the CTF DOM Supplement Addendum, 101060, as he took no part in 25 drafting or reviewing it. Richey Decl. ¶ 9. In addition, Sergeant Romero and Officer McGriff, 26 (both of whom have direct knowledge and experience following the procedure outlined in the CTF 27 DOM Supplement Addendum, 101060) state that they have no recollection of seeing the January 28 3, 2019 e-mail drafted by Defendant Richey about anticipated changes to the RPPM. Romero 25 Case 4:19-cv-05685-YGR Document 33 Filed 09/15/21 Page 26 of 26 1 Decl. ¶ 17; McGriff Decl. ¶ 13; Dkt. 1 at 37, Ex. C. More importantly, Officer McGriff stated that 2 he strictly adhered to the RPPM when reviewing and processing special purchase order forms 3 while working as the special purchase officer in the CTF R&R Office. McGriff Decl. ¶ 14, Ex. D. 4 Thus, based on the foregoing, Plaintiff did not suffer any violation of his due process rights 5 under the Fourteenth Amendment. Accordingly, Defendants are entitled to judgment as a matter 6 of law regarding Plaintiff’s Fourteenth Amendment Due Process claim. 7 V. 8 United States District Court Northern District of California 9 CONCLUSION For the reasons stated above, the Court GRANTS Defendants’ motion for summary judgment.17 Dkt. 24. 10 The Clerk shall terminate all pending motions and close the file. 11 This Order terminates Docket No. 24. 12 IT IS SO ORDERED. 13 Dated: September 15, 2021 14 15 JUDGE YVONNE GONZALEZ ROGERS United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 The Court’s finding that Defendants are entitled to summary judgment as a matter of law as to Plaintiff’s claims obviates the need to address their alternative arguments regarding an entitlement to qualified immunity. 26 17

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