(PC-G) Cejas v. Myers, et al., No. 1:2012cv00271 - Document 174 (E.D. Cal. 2016)

Court Description: FINDINGS and RECOMMENDATIONS recommending that 132 Defendants' Motion for Summary Judgment be GRANTED and that Judgment be Entered in Their Favor re 51 Amended Prisoner Civil Rights Complaint signed by Magistrate Judge Sandra M. Snyder on 4/19/2016. Referred to Judge Ishii. Objections to F&R due within thirty (30) days. (Jessen, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANDREW A. CEJAS, 12 Plaintiff, 13 v. 14 Case No. 1:12-cv-00271-AWI-DLB PC FINDINGS AND RECOMMENDATIONS REGARDING MOTION FOR SUMMARY JUDGMENT FILED BY DEFENDANTS MYERS, TRIMBLE, McGEE AND FISHER MYERS, et al., (Document 132) 15 Defendants. 16 17 Plaintiff Andrew A. Cejas (“Plaintiff”) is a California state prisoner proceeding pro se and in 18 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on 19 Plaintiff’s Third Amended Complaint for violation of his First Amendment right to practice his 20 religion against Defendants. On January 11, 2016, Defendants Myers, Trimble, McGee and Fisher filed a motion for 21 22 summary judgment.1 Plaintiff filed various documents opposing the motion, filing a main 23 opposition on March 17, 2016. Defendants filed their reply on March 24, 2016. On April 8, 2016, 24 Plaintiff filed a late response to Defendants’ statement of undisputed facts, and he filed additional 25 briefing on April 11, 2016. The motion is ready for decision pursuant to Local Rule 230(l).2 26 /// 27 1 28 Defendants Foston, Van Leer and Pimentel are represented by different counsel and have filed their own motion for summary judgment. The Court will address that motion by separate Findings and Recommendations. 2 Defendants provided the requisite notice required by Rand v. Rowland, 152 F.3d 952, 961-963 (9th Cir. 1998). 1 1 2 I. LEGAL STANDARD Any party may move for summary judgment, and the Court shall grant summary judgment if 3 the movant shows that there is no genuine dispute as to any material fact and the movant is entitled 4 to judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted); Washington Mutual 5 Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party’s position, whether it be that a fact is 6 disputed or undisputed, must be supported by (1) citing to particular parts of materials in the record, 7 including but not limited to depositions, documents, declarations, or discovery; or (2) showing that 8 the materials cited do not establish the presence or absence of a genuine dispute or that the opposing 9 party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1) (quotation 10 marks omitted). The Court may consider other materials in the record not cited to by the parties, but 11 it is not required to do so. Fed. R. Civ. P. 56(c)(3); Carmen v. San Francisco Unified School Dist., 12 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1017 13 (9th Cir. 2010). 14 Defendants do not bear the burden of proof at trial and in moving for summary judgment, 15 they need only prove an absence of evidence to support Plaintiff’s case. In re Oracle Corp. 16 Securities Litigation, 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 17 317, 323, 106 S.Ct. 2548 (1986)). If Defendants meet their initial burden, the burden then shifts to 18 Plaintiff “to designate specific facts demonstrating the existence of genuine issues for trial.” In re 19 Oracle Corp., 627 F.3d at 387 (citing Celotex Corp., 477 U.S. at 323). This requires Plaintiff to 20 “show more than the mere existence of a scintilla of evidence.” Id. (citing Anderson v. Liberty 21 Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505 (1986)). 22 In judging the evidence at the summary judgment stage, the Court may not make credibility 23 determinations or weigh conflicting evidence, Soremekun v. Thrifty PayLess, Inc., 509 F.3d 978, 984 24 (9th Cir. 2007) (quotation marks and citation omitted), and it must draw all inferences in the light 25 most favorable to the nonmoving party and determine whether a genuine issue of material fact 26 precludes entry of judgment, Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 27 657 F.3d 936, 942 (9th Cir. 2011) (quotation marks and citation omitted), cert. denied, 132 S.Ct. 28 1566 (2012). The Court determines only whether there is a genuine issue for trial, and Plaintiff’s 2 1 filings must be liberally construed because he is a pro se prisoner. Thomas v. Ponder, 611 F.3d 2 1144, 1150 (9th Cir. 2010) (quotation marks and citations omitted). 3 II. 4 5 6 SUMMARY OF PLAINTIFF’S ALLEGATIONS Plaintiff is incarcerated at the R.J. Donovan Correctional Facility. The events at issue occurred while Plaintiff was incarcerated at Pleasant Valley State Prison (“PVSP”). Plaintiff explains that he is a sincere practitioner of the Buddhist faith, which requires 7 meditation, chanting and prostration in an indoor space. Prisoners use the chapel space as a 8 “monastery,” where they can learn meditation techniques from more advanced prisoners or 9 volunteers. Plaintiff contends that the denial of chapel access from 2009 through 2012 has burdened 10 11 the practice of his religious faith. Plaintiff alleges that as of June 2008, PVSP Operations Manual Supplement section 10160 12 required that master chapel schedules be made to accommodate each religious group. Defendant 13 Myers is responsible for preparing the monthly schedules. Buddhists are afforded chapel time on 14 Mondays and Tuesdays from 1:00 p.m. to 4:00 p.m. 15 In 2009, Plaintiff was on C-status for 30 days. Defendants Myers, Fisher, Trimble and 16 McGee were responsible for placing restrictions on C-status prisoners, and Plaintiff was not allowed 17 to attend Buddhist services during this time. 18 On December 20, 2010, Plaintiff filed a group appeal regarding the years of denial of chapel 19 access caused by Defendant McGee not arriving for scheduled services. He contends that Defendant 20 McGee intentionally failed to provide chapel access from 2009 through 2012, which prohibited 21 Plaintiff from practicing his Buddhist faith. 22 On January 27, 2011, Defendants Myers and Trimble denied the appeal at the First Level, 23 stating that if there is no state chaplain or religious volunteer, inmates can gather on the recreational 24 yard. Plaintiff explains that this is insufficient because of the risks of Valley Fever, as well as 25 dangers faced on the yard when an inmate’s eyes are closed. 26 On April 4, 2011, Defendants Trimble and Myers denied the appeal at the Second Level, 27 stating that Plaintiff was allowed to participate in Buddhist services and that there is a staff member 28 designated to assist Buddhist members. 3 1 2 Defendant Trimble revised section 101060.8 on April 29, 2011, though it still required custody staff to supervise chapel access in the absence of a chaplain or religious volunteer. On July 19, 2011, Defendants Van Leer and Foston denied the appeal at the Director’s Level, 3 4 stating that PVSP provided Plaintiff with a thorough response. 5 6 On August 9, 2011, Plaintiff submitted a group appeal because he was on C status again, and was not allowed to attend group religious services. 7 Defendant Trimble denied the appeal at the Second Level, explaining that Plaintiff was 8 permitted to worship during his allotted program time based on his work group/privilege 9 designation. 10 On December 29, 2011, Defendant Pimentel and Foston denied the appeal at the Third Level, 11 citing section 3201(a) of Title 15 of the California Code of Regulations, which requires that the 12 institution make every reasonable effort to provide for the religious and spiritual welfare of inmates. 13 Plaintiff contends that Defendants Fisher, Trimble, Foston, Van Leer and Pimentel knew of 14 the violations and were in a position to correct them, but failed to do so. From 2009 through 2012, 15 Defendants burdened the practice of Plaintiff’s sincerely held religious beliefs by preventing chapel 16 access. During this time, Jewish and Muslim inmates were permitted unsupervised chapel access, as 17 well as C-status chapel access. 18 III. 19 20 UNDISPUTED MATERIAL FACTS3 PVSP has a rated capacity of 2,308 inmates. Between 2008 and 2012, PVSP was over capacity, holding between 3,200 inmates and 3,500 inmates. Fisher Decl. ¶ 8; Myers Decl. ¶ 7. 21 Around 2010, a hiring freeze mandated by the governor of California limited the ability of 22 PVSP to hire new personnel.4 Trimble Decl. ¶ 7; Fisher Decl. ¶ 8; Myers Decl. ¶ 3; McGee Decl. ¶ 23 3. 24 3 25 26 27 28 Plaintiff filed his own separate statement of disputed facts, though he did not specifically admit or deny the facts set forth by Defendant as undisputed. Local Rule 56-260(b). Therefore, Defendants’ statement of undisputed facts is accepted except where brought into dispute by Plaintiff’s verified amended complaint or Plaintiff’s declaration in support of his disputed facts. ECF No. 161, at 20-27. Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004) (verified complaint may be used as an opposing affidavit if it is based on pleader’s personal knowledge of specific facts which are admissible in evidence). 4 Plaintiff attempts to create a disputed fact by arguing that prior to, and during, the hiring freeze, Defendants failed to hire new personnel to prevent a chaplain shortage. However, Plaintiff’s statement is based on speculation and lacks personal knowledge. Hexcel Corp. v. Ineos Polymers, Inc., 681 F.3d 1055, 1063 (9th Cir. 2012) (declarations “must be made with personal knowledge; declarations not based on personal knowledge are inadmissible and cannot raise a genuine issue of material fact”). 4 1 As a result of the hiring freeze and the fact that PVSP was above capacity, there was a 2 relative shortage of correctional officers between 2009 and 2012. Fisher Decl. ¶ 8. This shortage of 3 correctional officers placed strains on the allocation of personnel resources within the prison and 4 made it difficult to accommodate the special requests of inmates, including C-status inmates subject 5 to additional restrictions.5 Fisher Decl. ¶ 9. 6 Facility A Chapel Access 7 A correctional officer staff position was not assigned to supervise the Facility A chapel at 8 PVSP. Such position assignments were made at CDCR headquarters in Sacramento, and Defendants 9 were not involved in any of the assignments.6 Trimble Decl. ¶ 9; Myers Decl. ¶ 6. 10 PVSP was supposed to have five chaplains in 2008, and as of 2008, there were five chaplains 11 at PVSP. Myers Decl. ¶¶ 2-3; McGee Dec. ¶ 3. In July 2010, only two of the chaplain positions at 12 PVSP were filled. Trimble Decl. ¶ 7; Fisher Decl. ¶ 8; Myers Decl. ¶ 3; McGee Decl. ¶ 3. 13 Starting in 2012, Defendant McGee was the only chaplain at PVSP and was responsible for 14 tending to the religious needs of over 3,200 inmates, with five separate yards and five separate 15 chapels.7 Fisher Decl. ¶ 8, Myers Decl. ¶ 5; McGee Decl. ¶ 3. The shortage of chaplains was 16 attributable to the hiring freeze, not the action or inaction of any Defendant. Trimble Decl. ¶ 7; 17 Fisher Decl. ¶ 8, Myers Decl. ¶ 5; McGee Decl. ¶ 4. Even though there were open positions in the 18 religious program at PVSP, it was difficult to recruit people to work there. Myers Decl. ¶ 3. Both 19 Defendant Myers and Defendant McGee also tried to get people to volunteer, but they were 20 unsuccessful. Myers Decl. ¶ 4; McGee Decl. ¶ 4. 21 22 23 24 5 Plaintiff disputes that there was a shortage of correctional officers and contends that the hiring freeze did not impact religious services. He cannot create a dispute of fact, however, by simply disagreeing with Defendants’ statements. Plaintiff also cites Operations Procedure 107 in arguing that religious services were supposed to continue in accordance with the chapel schedule. The policy states, however, that during staff shortages, impact to services shall be kept to a minimum. ECF No. 23-5, at 3. 6 25 26 27 28 Plaintiff states that from 2009-2012, correctional officers were assigned to supervise the Facility A chapel, and that such decisions were made by Defendants. To support his statement, he cites PVSP Departments of Operations Manual Section 101060.8. Trimble Decl., Ex. A. The section, entitled “Location and Use of Chapel,” does not set out any staffing assignments, nor does Plaintiff have personal knowledge of how staffing assignments are made. Hexcel Corp., 681 F.3d at 1063. 7 Plaintiff states that Defendant McGee was not the only chaplain in 2012 because “they” hired a Native American chaplain and a Muslim chaplain. He also states that Defendant McGee was not responsible for tending to the needs of all inmates because not all inmates participate in religious programs. There is no indication, however, that Plaintiff has personal knowledge of such issues. Hexcel Corp., 681 F.3d at 1063. 5 1 One of Defendant McGee’s responsibilities included supervising the Buddhist services in the 2 Facility A chapel. McGee Decl. ¶ 3. There were occasions when he was unable to supervise chapel 3 service. McGee Decl. ¶ 3; Pl.’s Decl. ¶ 6. The only times when Defendant McGee would not 4 supervise the Facility A Buddhist inmates’ time in chapel was when the program was cancelled by 5 the custody staff, he had an unavoidable conflict in his duties, or he was not working at the time. 6 McGee Decl. ¶ 3. 7 Plaintiff’s religious practices include reciting mantras approximately once per week, 8 meditating approximately twice per day, chanting once or twice per month and reading the dharma 9 (a collection of Buddhist teachings). Pl.’s Dep. 32:2-35:25 (attached to Jeffrey Decl. as Ex. A). 10 There are individual and group components to his practice. Pl.’s Decl. ¶ 1. For his “group practice,” 11 Plaintiff engages in group meditation and chanting in the chapel every week, “when available by 12 chapel schedule.” Pl.’s Decl. ¶ 1. While Plaintiff can perform his individual practice in his cell, he 13 cannot engage in group practice, i.e., group meditation and chanting, in his cell. Pl.’s Decl. ¶ 2. 14 During chapel time, therefore, Plaintiff engaged in meditation and chanting. Pl.’s Dep. 61:4-10. 15 Plaintiff and other inmates were able to chant and meditate in the yard when they were not 16 able to access the chapel. Pl.’s Dep. 45:23-25, 62:3-9, 64:1-23. All practices that could be 17 performed in the chapel could also be performed on the yard, and there was nothing about the yard 18 that prevented inmates from meditating and chanting.8 Pl.’s Dep. 61:21-62:9. 19 20 For the safety of staff, other inmates and the institution, inmates are not permitted to use the Facility A chapel without supervision.9 Trimble Decl. ¶ 9; Fisher Decl. ¶ 11; Myers Decl. ¶ 9. 21 8 22 23 Plaintiff argues that the yard was not a safe place to meditate or chant because it was not safe for inmates to close their eyes, as recommended. In his declaration, he states that he has witnessed stabbings, slicing and “a lot of blood pouring out of prisoners from 2008-2013.” Pl.’s Decl. ¶ 21. However, Plaintiff testified that he could, and did, perform all the same religious practices on the yard that he would have performed in the chapel. Pl.’s Dep. 61:22-62:9. 9 24 25 26 27 28 In attempting to dispute this fact, Plaintiff states that from 2009-2012, Defendants permitted Muslim and Jewish inmates to use the Facility A chapel without supervision. Pl.’s Decl. ¶ 4. To support his statement, he cites two institutional memoranda which indicate that in the absence of Jewish or Muslim chaplains, inmate representatives shall coordinate and lead the chapel services. ECF No. 163, at 115, 123. The documents do demonstrate, however, that Jewish and Muslim inmates were permitted to use the chapel without any supervision, as supervision could have been provided by non-chaplain staff. Plaintiff also states that he “spoke” to Inmates Goldstein and Memefield “regarding the issue of unsupervised chapel access.” Pl.’s Decl. ¶ 4. Plaintiff does not provide specifics about the conversations, however, and any such information would be inadmissible hearsay. See Jones v. Williams, 791 F.3d 1023, 1032 (9th Cir. 2015) (citing Fed. R. Evid. 801(c)); Block v. City of Los Angeles, 253 F.3d 410, 419 (9th Cir. 2001) (holding that it was an abuse of discretion for the district court, at the summary judgment stage, to consider information from an affidavit based on inadmissible hearsay rather than the affiant’s personal knowledge). The Court also notes that Plaintiff’s equal protection claim was dismissed from this action. 6 1 C-Status 2 Inmates are placed on Confinement Status, or C-Status, by a Unit Classification Committee 3 for repeated program failures, including receiving one or more Rules Violations Reports. Trimble 4 Decl. ¶ 2; Fisher Decl. ¶ 3. Inmates may be placed on C-Status when they have demonstrated an 5 unwillingness to comply with institutional regulations, and a Unit Classification Committee 6 determines that they pose a threat to the institution.10 Trimble Decl. ¶ 2; Fisher Decl. ¶ 3. The Unit 7 Classification Committee also decides how long an inmate will remain on C-Status. Cal. Code Regs. 8 Tit. XV, §§ 3314-3315. 9 The restrictions placed on C-Status inmates are designed to limit their movements, as these 10 inmates have been found to present a threat to the safety and security of prison staff, other inmates 11 and/or the institution. Trimble Decl. ¶ 2; Fisher Decl. ¶ 3. 12 Plaintiff was placed on C-Status for periods in 2009 and 2011. Fisher Decl. ¶ 4, Ex. B and C; 13 Pl.’s Dep. 56:14-57:15. As a result of Plaintiff’s placement on C-Status, he was not permitted to 14 attend Buddhist group services for roughly five weeks in 2009, and four months in 2011. Pl.’s Dep. 15 56:14-57:15. 16 C-Status inmates were permitted to attend the chapel times that were scheduled during their 17 yard time, but they were not otherwise individually released from their cells to attend chapel times 18 that did not coincide with their yard time.11 Trimble Decl. ¶ 2; Fisher Decl. ¶ 2, Ex. A. 19 C-Status inmates could receive religious consultations by submitting requests to religious 20 leaders.12 Trimble Decl. ¶ 5; Fisher Decl. ¶ 6; McGee Decl. ¶ 7. While Plaintiff was on C-Status, he 21 never made a request for a religious consultation. McGee Decl. ¶ 7; Pl.’s Dep. 42:6-43:11. Rather, 22 he elected to file a group appeal regarding chapel access. Pl.’s Decl. ¶ 12. 23 10 24 25 26 27 28 Plaintiff disputes the fact that C-Status inmates are threat, simply stating that “from 2009 to 2012, C-Status prisoners did not pose a threat to the institution or security.” Pl.’s Decl. ¶7. Plaintiff has no foundation on which to make such a statement, and his belief is purely speculative. Such statements cannot create disputes of fact. 11 Plaintiff contends that a Jewish C-Status inmate, Loren Holsher, was individually released from his cell to attend chapel times that did not coincide with C-Status yard times. He states that he has personal knowledge of the fact because they were in the same cell on C-Status. Pl.’s Decl. ¶ 2. Despite Plaintiff’s claim of personal knowledge, he does not establish how he knew where inmate Holsher was going, or why he believed that he was going to chapel. Moreover, as noted above, Plaintiff’s equal protection claim was dismissed from this action. 12 Plaintiff speculates that because a Buddhist chaplain could not “show up to supervise chapel,” a chaplain would not likely come to his cell. Pl.’s Decl. ¶ 12. His conclusion does not render the fact disputed. 7 1 Defendant Myers did not have any role in the implementation of the C-Status policy, nor did 2 she have anything to do with the decision to release inmates to chapel on a daily basis.13 Myers 3 Decl. ¶ 2. Defendant McGee had no role in enacting or enforcing the C-Status policy at PVSP. 4 McGee Decl. ¶ 5. 5 6 While on C-Status, Plaintiff could still chant, meditate and read the dharma in his cell, or on the yard during his scheduled yard time. Trimble Decl. ¶ 5; Fisher Decl. ¶ 5; McGee Decl. ¶ 7. Although Defendant Trimble’s pre-printed signature appeals on Second Level Appeal, Log 7 8 No. PVSP-11-01228 and Second Level Appeal, Log No. PVSP-11-00006, he did not review or sign 9 either appeal.14 Trimble Decl. ¶¶4, 8. Defendant Fisher did not work at PVSP during 2009.15 Fisher Decl. ¶ 1. 10 11 IV. DISCUSSION 12 A. Legal Standard 13 The First Amendment provides that “Congress shall make no law respecting an establishment 14 of religion, or prohibiting the free exercise thereof.” U.S. Const., amend. I. Prisoners “retain 15 protections afforded by the First Amendment,” including the free exercise of religion. O’Lone v. 16 Estate of Shabazz, 482 U.S. 342, 348 (1987). The free exercise right is necessarily limited by the 17 fact of incarceration, and may be curtailed in order to achieve legitimate correctional goals or to 18 maintain prison security. Id. at 348-49. However, prison officials are not permitted to place 19 substantial burdens on the practice of an inmate’s religion by preventing him from engaging in 20 conduct which he sincerely believes is consistent with this faith. Shakur v. Schriro, 514 F.3d 878, 21 884-885 (9th Cir. 2008). “When a prison regulation impinges on inmates’ constitutional rights, the regulation is valid 22 23 if it is reasonably related to legitimate penological interests.” Id. (citing Turner v. Safley, 482 U.S. 24 25 26 13 Plaintiff argues that Defendant Myers, as the Community Resource Manager and Religious Review Committee Member, oversaw all policies related to religion. Pl.’s Decl. ¶ 10. Again, Plaintiff has no foundation to offer such an opinion. The exhibits he cites do not support his statement. 14 27 28 Plaintiff argues that Defendant Trimble did read and review both appeals, though his cited exhibits do not support such a contention. Plaintiff has not set forth any indication that he has personal knowledge of what Defendant Trimble did or did not read. 15 In his disputed facts, Plaintiff states that “Defendant Fisher is still responsible for 2009 position he took as Associate Warden.” ECF No. 161, at 34. This is not a fact, however, and does not render Defendants’ fact disputed. 8 1 78, 89 (1987)). Turner sets forth four factors to be balanced in determining whether a prison 2 regulation is reasonably related to legitimate penological interests: (1) Whether there is a valid, 3 rational connection between the prison regulation and the legitimate governmental interest put 4 forward to justify it; (2) Whether there are alternative means of exercising the right that remain open 5 to prison inmates; (3) Whether accommodation of the asserted constitutional right will impact guards 6 and other inmates, and the impact on the allocation of prison resources generally; and (4) Whether 7 there is an absence of ready alternatives versus the existence of obvious, easy alternatives. Turner, 8 482 U.S. at 89-90. 9 B. Conduct Consistent with Faith Plaintiff emphasizes in his opposition that his claim is related only to “the denial of chapel 10 11 access to engage in group services.” ECF No. 163, at 2. Inherent in Plaintiff’s argument is his belief 12 that his faith requires indoor group worship. Defendants attempt to question Plaintiff’s belief, arguing that he provides no evidence to 13 14 show that indoor group worship is a component of Buddhist religious practices. However, this Court 15 may not engage in such an analysis. See Shakur, 514 F.3d at 884-85 (the plaintiff need not show that 16 the religious practice at issue is required as a central tenet of the religion, only that he believes that 17 the practice is consistent with his faith). Here, Plaintiff states that he converted to Buddhism in 18 2003, and that his group practice “is to engage in group meditation and chanting in the chapel every 19 week when available by chapel schedule.” Pl.’s Decl. ¶ 1.16 He also alleges in his verified Third 20 Amended Complaint that his Buddhist faith requires meditation, chanting and prostration in an 21 indoor space. ECF No. 51, at 7. These statements are sufficient to show a sincerely held belief, and 22 there is no dispute that on certain occasions, Plaintiff did not have access to an indoor space for 23 group worship. The Court therefore turns to the question of whether the denial of access to these 24 group religious services was reasonably related to legitimate penological interests. See O’Lone, 482 25 U.S. at 349 (citing Turner, 482 U.S. at 89)). 26 /// 27 28 16 Defendants’ objection to this statement in his declaration as unsupported is overruled. Plaintiff’s declaration is sufficient, and he need not provide additional evidence to show that conduct is mandated by his faith. 9 1 C. Chapel Access- 2009 through 2012 2 In this claim, Plaintiff contends that between 2009 and 2012, Defendant McGee failed to 3 appear to supervise scheduled chapel times. 17 He further contends that Defendants did not provide 4 any indoor accommodations to engage in group services, or permit unsupervised chapel access. 5 The first Turner factor asks whether there is a valid, rational connection between the prison 6 regulation and the legitimate governmental interest put forward to justify it. It is undisputed that 7 inmates cannot use the chapel without supervision, and that such a rule is required for the safety and 8 security of staff, other inmates and the institution. Prison security is unquestionably a legitimate 9 security interest. See Greene v. Solano County Jail, 513 F.3d 982, 988 (9th Cir.2008) (finding 10 prison security to be a compelling interest under RLUIPA). Indeed, the Ninth Circuit has recognized 11 that unsupervised religious services pose security threats to the prison system. See Anderson v. 12 Angelone, 123 F.3d 1197, 1199 (9th Cir.1997) (“Nevada’s prohibition on inmate-led religious 13 services does not violate the First Amendment.”); see also Mootry v. Flores, 2015 WL 5178376, *9 14 (E.D.Cal. 2015); Davis v. Flores, 2013 WL 969151, *1 (E.D.Cal. 2010). 15 Plaintiff contends that Defendants permit Muslim and Jewish inmates to have unsupervised 16 chapel access, and that this contradicts their claim that inmates must be supervised in the chapel at 17 all times. As explained above, however, Plaintiff’s evidence does not support his claim, and it 18 remains undisputed that inmates are not permitted chapel access without supervision. Plaintiff also suggests that Defendants’ argument fails because they did not set forth “what 19 20 CDCR policy requires supervision in the chapel…” ECF No. 163, at 43. Defendants have presented 21 the testimony of Defendant Trimble (Chief Deputy Warden and Associate Warden during the time at 22 issue), Defendant Myers (Acting Community Resource Manager) and Defendant Fisher (Associate 23 Warden for Central Operations), who all conclude that inmates are not permitted in the chapel 24 without supervision out of concern for the safety of staff, other inmates and the institution. They 25 also indicate that Title 15 requires constant supervision. Trimble Decl. ¶ 9; Myers Decl. ¶ 9; Fisher 26 Decl. ¶ 11. The Court will defer to the judgment of prison authorities, and rejects Plaintiff’s 27 17 28 Plaintiff does not provide an estimate of the number of times he was not able to attend chapel because of Defendant McGee’s failure to supervise the services. He simply states that is occurred from 2009-2012. Defendant McGee admits that “there were occasions” that he was not able to supervise chapel services. McGee Decl. ¶ 3. The Court must view all evidence in a light most favorable to Plaintiff, and therefore finds that Plaintiff satisfied his burden of showing a substantial burden. 10 1 argument that a specific policy must be offered. See Standing Deer v. Carlson, 831 F.2d 1525, 1528 2 (9th Cir.1987) (prison officials not required to demonstrate that the prisoners’ religious practices are 3 causally related to existing institutional problems; court restricts inquiry to considering whether the 4 challenged regulation is logically connected to legitimate penological concerns). 5 The second Turner factor, whether there are alternative means of exercising the right that 6 remain open to Plaintiff, also weighs in favor of Defendants.18 Initially, Plaintiff does not appear to 7 allege that Defendant McGee missed all chapel sessions during the years at issue, so it is likely that 8 he did have access to the chapel at times, and was able to perform his group worship indoors. In any 9 event, it is undisputed that Plaintiff was permitted to chant and meditate on the yard, and he testified 10 that there was nothing that he could do in the chapel that could not be done on the yard. Plaintiff 11 testified that the meditations and chants were the same, whether performed in the chapel or on the 12 yard, and that he often used the yard for services. Plaintiff was also able to practice his individual 13 worship in his cell at all times. See Chau v. Young, 2014 WL 4100635 (N.D.Cal. 2014) (“The denial 14 of access to group religious services did not deprive Chau of all means of exercising his religious 15 beliefs . . .Chau remained able to worship alone in his cell and had access, upon request, to Islamic 16 services to discuss spiritual matters”); Robins v. Lamarque, 2008 WL 744816 at *3-4 (N.D.Cal. 17 2008) (denial of Muslim group prayer services for approximately seven months due to violent threats 18 and security concerns did not violate the First Amendment, based in part on the fact that inmate was 19 free at all times to worship in his cell). 20 Plaintiff attempts to avoid this by arguing that inmates could contract Valley Fever on the 21 yard, and that the yard was not a safe place. However, as explained above, the fact remains that 22 despite his worries, he was able to use the yard for chanting and meditating. Plaintiff does not 23 present any evidence to suggest that concerns of a possible attack were anything more than 24 speculative. 25 constitutional right would have on guards and other inmates, and on the allocation of prison 26 resources generally. It is undisputed that a 2010 hiring freeze, combined with PVSP’s over-capacity 27 status, resulted in a staff shortage. By 2010, only two of the five chaplain positions at PVSP were 28 18 The third Turner factor examines the impact that accommodation of the asserted Plaintiff suggests that the alternate means must involve group worship. The Court does not read Turner this narrowly, however. 11 1 filled, and by 2012, Defendant McGee was the only chaplain left at PVSP. This means that 2 Defendant McGee was responsible for the religious needs of all inmates on five different yards. 3 Defendants did not cause or create the shortages. In fact, Defendants McGee and Myers tried to find 4 people to volunteer, but it was difficult to recruit people to assist at PVSP. While there were 5 occasions when Defendant McGee did not supervise chapel services, this only occurred when the 6 program was cancelled by staff, he had an unavoidable conflict in duties or he was not working at 7 the time of services. Moreover, a correctional officer position was not assigned to the Facility A 8 chapel, and Defendants had nothing to do with these assignments. Given these circumstances, it 9 would have been impracticable and nearly impossible to ensure that Plaintiff had access to the 10 11 chapel during every scheduled service time. Plaintiff cites Operations Procedure 107, and contends that Defendants were responsible for 12 enforcing the policy, and therefore ensuring that religious services continued in times of staff 13 shortages. Operations Procedure 107 addresses program modifications when a staff shortage exists 14 to ensure that critical posts are filled. As would be expected in a prison setting, “emergency 15 response shall remain the highest priority,” and “overall impact to daily operations shall be kept to a 16 minimum and academic and vocation classes shall continue, if possible.” ECF No. 23-5, at 3. The 17 policy further explains that “Medical, dental, psychiatric and religious services shall continue.” 18 Plaintiff reads Operations Procedure 107 as mandating that religious services must be conducted 19 even in instances of staff shortages, but the statement, taken in the context of the purpose of the 20 policy, does not require anything. Rather, it prioritizes the prison’s functions and sets out how 21 modifications should be implemented. Operations Procedure 107 certainly does not, as Plaintiff 22 suggests, require staffing of the Facility A chapel at all times. 23 Finally, under the fourth and final Turner factor, whether the regulation is an “exaggerated 24 response” to the prison’s concerns, Plaintiff must show there are “obvious, easy alternatives” to the 25 regulation that “fully accommodate [his] rights at de minimis cost to valid penological interests.” 26 Turner, 482 U.S. at 90-91. It is Plaintiff’s burden to show that there are obvious and easy 27 alternatives to the challenged policy. See Mauro v. Arpaio, 188 F.3d 1054, 1061 (9th Cir. 1999). 28 The proper inquiry is “whether the prisoner has pointed to some obvious regulatory alternative that 12 1 fully accommodates the asserted right while not imposing more than a de minimis cost to the valid 2 penological goal.” Overton v. Bazzetta, 539 U.S. 126, 135-36 (2003). 3 Plaintiff has failed to meet this burden. While he suggests that Defendants could permit 4 unsupervised access to the chapel, this is far from an “obvious and easy” alternative with de minimus 5 cost to valid penological goals. He also suggests that Defendants had the ability to force Defendant 6 McGee, or other officers, to supervise the Facility A chapel. Again, however, suggesting that staff 7 cover the Facility A during times of staff shortages is not an obvious and easy alternative, and has 8 more than de minimus cost to valid penological goals. 9 Plaintiff has therefore failed to raise a genuine dispute of material fact as to whether the 10 policy against unsupervised chapel access was reasonably related to legitimate penological interests, 11 and Defendants are entitled to summary judgment on the issue. 12 13 To the extent that Plaintiff names Defendants in their capacity as appeal reviewers, there can be no such liability where there is no underlying constitutional violation. 14 D. Chapel Access on C-Status 15 Plaintiff next argues that Defendants implemented an “underground” policy that “prohibited 16 C-Status access to group services, and the ability to exercise his religion in a group indoors” at the 17 chapel. ECF No. 163, at 2. 18 As an initial matter, the Court questions whether, as a matter of law, the temporary nature of 19 this claim constitutes a substantial burden on Plaintiff’s religious practices. As a result of Plaintiff’s 20 placement on C-Status, he was not permitted to attend Buddhist group services for roughly five 21 weeks in 2009, and four months in 2011. Plaintiff missed two services per week during these time 22 periods, suggesting that the policy led to “relatively short-term and sporadic” intrusions that do not 23 amount to a substantial burden. See Canell v. Lightner, 143 F.3d 1210, 1215 (9th Cir. 1998) 24 (affirming summary judgment on claim that defendant violated Free Exercise Clause by interrupting 25 inmate’s prayer time no more than eighteen times over the course of two months because it was 26 “relatively short-term and sporadic,” and not a “substantial burden”). 27 28 Even assuming that Plaintiff has shown a substantial burden, he cannot satisfy his burden under Turner. The first Turner factor, whether there is a valid, rational connection between the 13 1 prison regulation and the legitimate governmental interest, weighs strongly in favor of Defendants. 2 It is undisputed that C-Status inmates have had repeated program failures, and have been found to 3 present a threat to the safety and security of prison staff, other inmates and/or the institution. As a 4 result, C-Status restrictions are designed to limit their movements. In this regard, while C-Status 5 inmates are given one hour of yard time, CDCR policy otherwise prohibits individual release to 6 attend chapel times. If chapel time does not overlap with the yard time, C-Status inmates are not 7 released from their cell at other times. A valid, rational connection therefore exists between the 8 policy and the prison’s interest in security and safety. 9 Plaintiff suggests that C-Status prisoners do not present a security risk for various reasons, 10 but as discussed above, his is unable to create a dispute of fact on the issue. Again, the Court will 11 not question the judgment of those who operate the prison where there is no evidence to undermine 12 their actions. 13 Plaintiff also argues that some C-Status prisoners on other yards are able to attend their 14 scheduled chapel time, showing that the policy is not applied evenly. This ability, however, is only 15 because their yard time and chapel time coincidentally overlap. In other words, the policy remains 16 applicable, but it may not impact all prisoners in the same way. 17 The second Turner factor also weighs in favor of Defendants. As was the case with 18 Plaintiff’s chapel access claim, it is undisputed that Plaintiff was permitted to chant and meditate on 19 the yard, and he testified that there was nothing that he could do in the chapel that could not be done 20 on the yard. Plaintiff testified that the meditations and chants were the same, whether performed in 21 the chapel or on the yard, and that he often used the yard for services. Plaintiff was also able to 22 practice his individual worship in his cell at all times, and he could have requested the services of a 23 chaplain to tend to his specific religious needs. Plaintiff was therefore left with numerous alternative 24 means to practice his religion. 25 Third, accommodating Plaintiff’s desire to attend chapel while on C-Status would have 26 required officers to release him individually from his cell during times that did not coincide with 27 yard time, and to ensure that he was taken back to his cell at the conclusion of chapel. Again, it is 28 undisputed that there was a staff shortage during this period, and that PVSP was over capacity. 14 1 Under these circumstances, making accommodations for Plaintiff would negatively impact the 2 allocation of PVSP’s resources. 3 Plaintiff argues that Defendants have permitted other inmates to leave their cells at times that 4 did not coincide with yard times, but he has not set forth evidence to support his contention. 5 Finally, under the fourth Turner factor, Plaintiff suggests that Defendants could have 6 changed his yard time to overlap with his chapel time. Given the staff shortage and number of 7 prisoners at PVSP, suggesting that C-Status yard times be altered to ensure that the yard time 8 overlaps with the chapel time preferences of one prisoner it is not an “obvious, easy” alternative. It 9 is undisputed that the staff shortages and number of prisoners made it difficult to accommodate 10 special requests of inmates, especially those on C-Status subject to additional security-related 11 restrictions. 12 Plaintiff has therefore failed to create a genuine dispute of material fact as to whether the C- 13 Status policy was reasonably related to legitimate penological interests, and Defendants are entitled 14 to summary judgment on the issue. 15 16 To the extent that Plaintiff names Defendants in their capacity as appeal reviewers, there can be no such liability where there is no underlying constitutional violation. 17 E. Qualified Immunity 18 Government officials enjoy qualified immunity from civil damages unless their conduct 19 violates “clearly established statutory or constitutional rights of which a reasonable person would 20 have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “Qualified immunity balances two 21 important interests - the need to hold public officials accountable when they exercise power 22 irresponsibly and the need to shield officials from harassment, distraction, and liability when they 23 perform their duties reasonably,” Pearson v. Callahan, 555 U.S. 223, 231 (2009), and protects “all 24 but the plainly incompetent or those who knowingly violate the law,” Malley v. Briggs, 475 U.S. 25 335, 341 (1986). 26 In resolving a claim of qualified immunity, courts must determine whether, taken in the light 27 most favorable to the plaintiff, the defendant’s conduct violated a constitutional right, and if so, 28 whether the right was clearly established. Saucier v. Katz, 533 U.S. 194, 201 (2001); Mueller v. 15 1 Auker, 576 F.3d 979, 993 (9th Cir. 2009). While often beneficial to address in that order, courts 2 have discretion to address the two-step inquiry in the order they deem most suitable under the 3 circumstances. Pearson, 555 U.S. at 236, 129 S.Ct. at 818 (overruling holding in Saucier that the 4 two-step inquiry must be conducted in that order, and the second step is reached only if the court 5 first finds a constitutional violation); Mueller, 576 F.3d at 993-94. 6 As the Court has found that no constitutional violation occurred in the first instance, it will 7 not further address qualified immunity. 8 V. 9 FINDINGS AND RECOMMENDATIONS Based on the foregoing, the Court HEREBY RECOMMENDS that the motion for summary 10 judgment filed by Defendants Myers, McGee, Fisher and Trimble be GRANTED, and that judgment 11 be entered in their favor. 12 These Findings and Recommendations will be submitted to the United States District Judge 13 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) 14 days after being served with these Findings and Recommendations, the parties may file written 15 objections with the Court. Local Rule 304(b). The document should be captioned “Objections to 16 Magistrate Judge’s Findings and Recommendations.” Any response to the objections must be filed 17 within fourteen (14) days from the date of service of the objections. Local Rule 304(d). The parties 18 are advised that failure to file objections within the specified time may waive the right to appeal the 19 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 20 21 22 IT IS SO ORDERED. Dated: April 19, 2016 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 16

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