(PC) Wolcott v. Board of Rabbis of Northern and Southern California et al, No. 1:2014cv00936 - Document 18 (E.D. Cal. 2015)
Court Description: FINDINGS and RECOMMENDATIONS to Dismiss Action for Failure to State a Cognizable Claim re 16 Amended Prisoner Civil Rights Complaint, signed by Magistrate Judge Jennifer L. Thurston on 11/6/15. Referred to Judge Ishii. Objections to F&R Due Within Thirty Days. (Gonzalez, R)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BRANDON LEE WOLCOTT, 12 Plaintiff, 13 14 15 v. BOARD OF RABBIS OF NO. & SO. CALIFORNIA, et al., 18 FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION FOR FAILURE TO STATE A COGNZIABLE CLAIM (Doc. 16) 30-DAY DEADLINE Defendants. 16 17 Case No. 1:14-cv-00936-JLT (PC) I. Background Plaintiff has filed a Second Amended Complaint in which he has tailored his allegations 19 and narrowed the list to four Defendants against whom he seeks damages based on his inability to 20 convert to the Jewish faith. Based on the findings set forth below, the Court recommends that this 21 action be DISMISSED because of Plaintiff's failure to state a cognizable claim, despite the Court 22 repeatedly providing him the applicable legal standards. 23 A. 24 The Court is required to screen complaints brought by prisoners seeking relief against a Screening Requirement 25 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 26 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 27 frivolous, malicious, fail to state a claim upon which relief may be granted, or that seek monetary 28 1 1 relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2); 28 U.S.C. 2 § 1915(e)(2)(B)(i)-(iii). 3 B. Plaintiff=s Second Amended Complaint 4 Plaintiff complains of acts related to his inability to convert to the Jewish faith at 5 California Substance Abuse Treatment Facility (ASATF@) in Corcoran, California. In this 6 pleading, Plaintiff has narrowed the list of Defendants to four -- Former CDCR Secretary 7 Matthew Cate, Former Staff Jewish Chaplain Jared Sharon, Former Warden Kathleen Allison, 8 and Staff Jewish Chaplain Lon Moskowitz. Plaintiff seeks preliminary and permanent injunctive 9 relief allowing him to convert to Judaism and seeks monetary damages. 10 Plaintiff complains that his inability to convert to Judaism has violated his right to 11 "Freedom of Religion." (Doc. 16, 2ndAC, at p. 3.) Plaintiff alleges that the CDCR's 12 "Departmental Operations Manual ("DOM") Article 6, Section 101060.4 requires staff chaplains 13 to provide inmates with confirmations (i.e. conversions) as part of their pastoral duties." (Id.) 14 Plaintiff alleges that conversion is essential since Judaism worship is community based, like an 15 extended family, and he must go through conversion to "be regarded as Jewish in the view of the 16 religion." (Id.) Plaintiff alleges that he is serving a life sentence and has requested formal 17 conversion but that Chaplain Sharon has denied his request stating, "that the CDCR chaplain 18 policy does not allow inmates to convert to Judaism." (Id., at p. 4.) Because he has not been 19 allowed to convert to Judaism, Plaintiff alleges that he has suffered discrimination. (Id. at p. 5.) 20 Plaintiff also alleges that after Plaintiff sent Chaplain Sharon a proposal in June 2009, 21 Sharon informed Plaintiff that some of the senior Jewish chaplains, who attended the last state- 22 wide conference were sympathetic to Plaintiff's situation and felt inmates serving life sentences 23 should be afforded the opportunity to convert to Judaism while incarcerated. (Doc. 16, 2ndAC, at 24 p. 6) Sharon agreed to submit Plaintiff's proposal, but did not have authority to approve it. (Id.) 25 In August 2010, when it had been more than a year since this communication with 26 Chaplain Sharon and he had still not been allowed to convert, Plaintiff filed an Inmate Appeal 27 ("IA"). (Id.) That same month, Chaplain Sharon interviewed Plaintiff regarding his IA and 28 became upset at Plaintiff, but thereafter granted Plaintiff's appeal stating that he would provide 2 1 Plaintiff with a course of study and a para-rabbi "to prepare him for conversion and that upon 2 completion Plaintiff would be presented to a Beit Din (Jewish Court of Judgment) that is 3 approved by the Board of Rabbis." (Id., at p. 7.) 4 5 6 Plaintiff alleges that in September 2010 he was diagnosed with central serious retinopathy and macular edema as a result of the stress he experienced from being denied conversion. (Id.) On an occasion between August and October 2010, Plaintiff was not allowed to don 7 Tefillin by the Aleph Institute because Chaplain Sharon indicated that he had not been allowed to 8 convert. (Id.) Likewise, the Aleph Institute does not allow Plaintiff to purchase religious 9 packages because he has not converted. (Id.) 10 In November 2010, Plaintiff was put in contact with a para-rabbi as a result of Chaplain 11 Sharon partially granting Plaintiff's August 2010 IA. (Id.) After corresponding with Plaintiff, the 12 para-rabbi indicated that she believed Plaintiff was prepared to make his conversion and she 13 emailed Chaplain Sharon advising of this fac. (Id.) However, Chaplain Sharon made no attempt 14 to present Plaintiff to a Beit Din for conversion, so Plaintiff filed a second IA which Chaplain 15 Sharon partially granted on February 1, 2011. (Id.) 16 In the partial grant, Chapalin Sharon indicted that, as of that date, the Board of Rabbis had 17 not officially approved the conversion of those serving life sentences to Judaism. Sharon noted 18 that the Board may grant approval on a case by case basis and that he would maintain contact 19 with the Board through Rabbi Moskowitz, and "would inform Plaintiff when and under what 20 conditions conversion to Judaism for lifers is approved." (Id., at pp. 7-8.) Later that same month, 21 Plaintiff learned that the loss of color and light in his vision was permanent. (Id., at p. 8.) 22 Plaintiff also alleges he has suffered four "mini strokes" because of not being allowed to convert 23 to Judaism. (Id., at pp. 8-9.) 24 On February 18, 2011, Plaintiff appealed his second IA to the Second Level, seeking 25 presentation to the Beit Din for conversion examination. (Id., at p. 8.) Warden Allison denied 26 Plaintiff's request stating that the Board of Rabbis had not officially approved conversion to 27 Judaism for lifers and that Chaplain Sharon was mistaken to have partially granted Plaintiff's IA. 28 (Id.) On April 12, 2011, Plaintiff appealed his second IA to the Third Level where Secretary Cate 3 1 denied it stating penological reasons existed for the denial and that the decision not to present 2 Plaintiff to the Beit Din for Judaism conversion was within the institution's scope of authority. 3 (Id.) 4 Between August and October of 2011, the Aleph Institute sent two rabbinic school 5 graduates to conduct services for Jewish inmates, but they did not allow Plaintiff to worship with 6 them because Chaplain Sharon indicated that he had not been allowed to convert. (Id.) 7 For the reasons discussed in greater detail below, these allegations do not state any 8 cognizable claims such that his action should be dismissed. Further, despite repeatedly providing 9 the applicable legal standards and opportunity to amend, and even having cognizable claims 10 identified in the prior screening order, Plaintiff fails to state any cognizable claims in the 2ndAC. 11 Thus, it appears futile and likely to encourage fabrication1 to grant Plaintiff further opportunity to 12 amend. Akhtar v. Mesa, 698 F.3d 1202, 1212-13 (9th Cir. 2012). 13 C. Legal Standards 14 The below legal standards for the claims Plaintiff is attempting to state were specifically 15 stated in the prior screening order. (Doc. 15.) They are restated herein since pivotal to the 16 dismissal of this action and in the hopes that by doing so, Plaintiff may be assisted in 17 understanding why he cannot pursue claims under § 1983 despite what seems to be a heart- 18 wrenching ordeal for him. 19 1. Religion Prisoners “do not forfeit all constitutional protections by reason of their conviction and 20 21 confinement in prison.” Bell v. Wolfish, 441 U.S. 520, 545, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). 22 Inmates retain the protections afforded by the First Amendment, “including its directive that no 23 law shall prohibit the free exercise of religion.” O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 24 (1987) (citing Cruz v. Beto, 405 U.S. 319, 322 (1972) (per curiam)). However, “ ‘[l]awful 25 incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a 26 retraction justified by the considerations underlying our penal system.’ ” Id. (quoting Price v. 27 1 28 As discussed in further detail below, some of the allegations in the 2ndAC directly contradict allegations in the 1stAC which supports that fabrication may have already taken place. 4 1 Johnston, 334 U.S. 266, 285 (1948)). 2 Claims for violation of the Free Exercise Clause of the First Amendment, RLUIPA, and 3 the Establishment Clause are used to challenge state or government statutes, regulations, and/or 4 established policies. Thus, in order to state a cognizable claim for their violation, a plaintiff must 5 identify an allegedly offending statute, regulation, or established policy. Claims regarding 6 independent actions by state actors who are not following a statute, regulation, or established 7 policy are not cognizable under § 1983 for violation of a plaintiff's rights under the Free Exercise 8 Clause, RLUIPA, or the Establishment Clause. However, a cognizable claim may be stated for 9 violation of a Plaintiff's rights under the Equal Protection Clause for discriminatory actions by 10 11 12 individual state actors who are not following a statute, regulation, or established policy. a. First Amendment -- Free Exercise The First Amendment, applicable to state action by incorporation through the Fourteenth 13 Amendment, Everson v. Bd. of Educ. of Ewing Twp., 330 U.S. 1, 8 (1947), “prohibits government 14 from making a law ‘prohibiting the free exercise [of religion].’ ” Cruz, 405 U.S. at 322 (alteration 15 in original). A prisoner's right to freely exercise his religion, however, is limited by institutional 16 objectives and by the loss of freedom concomitant with incarceration. O'Lone, 482 U.S. at 348. 17 A prison regulation may therefore impinge upon an inmate=s right to exercise his religion 18 if the regulation is Areasonably related to legitimate penological interests.@ Shakur v. Schriro, 514 19 F.3d 878, 884 (9th Cir. 2008) (citations omitted). In contesting the validity of a prison regulation, 20 an inmate must also show that his religious practice is Asincerely held@ and Arooted in religious 21 belief." Id. at 884-85. For screening purposes, it is assumed that Plaintiff's Jewish belief is 22 sincerely held and the practices he desires are rooted in his Jewish beliefs. 23 24 b. RLUIPA A prisoner=s ability to freely exercise his religion is also protected by the Religious Land 25 Use and Institutionalized Persons Act (ARLUIPA@). 42 U.S.C. ' 2000cc-1. Section 3 of RLUIPA 26 provides that “[n]o government shall impose a substantial burden on the religious exercise of a 27 person residing in or confined to an institution . . . even if the burden results from a rule of 28 general applicability,” unless the government shows that the burden is “in furtherance of a 5 1 compelling government interest” and “is the least restrictive means of furthering . . . that interest.” 2 42 U.S.C. § 2000cc–1(a) (2012). “While [RLUIPA] adopts a compelling governmental interest 3 standard, [c]ontext matters in the application of that standard.” Cutter v. Wilkinson, 544 U.S. 709, 4 722–23 (2005) (alteration in original) (internal quotation and citation omitted). Thus, “[c]ourts 5 are expected to apply RLUIPA’s standard with due deference to the experience and expertise of 6 prison and jail administrators in establishing necessary regulations and procedures to maintain 7 good order, security and discipline, consistent with consideration of costs and limited resources.” 8 Hartmann v. California Dep’t of Corr. & Rehab., 707 F.3d 1114, 1124-25 (9th Cir. 2013) (citing 9 Cutter, 544 U.S. at 723) (internal quotation marks omitted). 10 Under RLUIPA, plaintiffs bear the initial burden of persuasion on whether the Policy 11 “substantially burdens” their “exercise of religion.” § 2000cc–2(b). RLUIPA defines “religious 12 exercise” to include “any exercise of religion, whether or not compelled by, or central to, a 13 system of religious belief.” § 2000cc-5(7)(A). A "substantial burden" occurs “where the state ... 14 denies [an important benefit] because of conduct mandated by religious belief, thereby putting 15 substantial pressure on an adherent to modify his behavior and to violate his beliefs.” Warsoldier 16 v. Woodford, 418 F.3d 989, 995 (9th Cir.2005) (alteration in original) (quotation omitted). 17 Damages claims are not available under the RLUIPA against prison officials in their 18 individual capacity, Wood v. Yordy, 753 F.3d 899 (9th Cir. 2014); nor in their official capacity 19 because of sovereign immunity, Sossamon v. Texas, --- U.S. ---, 131 S.Ct. 1651 (2011); Alvarez v. 20 Hill, 667 F.3d 1061, 1063 (9th Cir. 2012). 21 22 c. The Establishment Clause A government act is consistent with the Establishment Clause if it: (1) has a secular 23 purpose; (2) has a principal or primary effect that neither advances nor disapproves of religion; 24 and (3) does not foster excessive governmental entanglement with religion. Vasquez v. Los 25 Angeles ("LA") County, 487 F.3d 1246, 1255 (9th Cir. 2007) citing Lemon v. Kurtzman, 403 U.S. 26 602 (1971). It is appropriate to test the viability of a plaintiff's claim of violation of the 27 Establishment Clause under Lemon upon screening. Vasquez, 487 F.3d at 1255. 28 Under Lemon, a government act is consistent with the Establishment Clause if it: (1) has a 6 1 secular purpose; (2) has a principal or primary effect that neither advances nor disapproves of 2 religion; and (3) does not foster excessive governmental entanglement with religion. See Lemon, 3 403 U.S. at 612-13; Brown v. Woodland Joint Unified Sch. Dist., 27 F.3d 1373, 1378 (9th 4 Cir.1994). 5 In considering the appropriate balance of these factors, evaluation of penological 6 objectives is committed to the considered judgment of prison administrators, “who are actually 7 charged with and trained in the running of the particular institution under examination.” Bell, 441 8 U.S. at 562. See Turner, 482 U.S., at 86-87. To ensure that courts afford appropriate deference 9 to prison officials, prison regulations alleged to infringe constitutional rights are judged under a 10 “reasonableness” test which is less restrictive than that ordinarily applied to alleged infringements 11 of fundamental constitutional rights. See, e.g., Jones v. North Carolina Prisoners' Labor Union, 12 Inc., 433 U.S. 119, 128 (1977). The proper standard is that “when a prison regulation impinges 13 on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate 14 penological interests.” Turner, 482 U.S. at 89. 15 16 d. Fourteenth Amendment -- Equal Protection “The Equal Protection Clause requires the State to treat all similarly situated people 17 equally.” Shakur v. Schriro, 514 F.3d 878, 891 (9th Cir.2008) (citation omitted). This does not 18 mean, however, that all prisoners must receive identical treatment and resources. See Cruz, 405 19 U.S. at 322 n. 2; Ward v. Walsh, 1 F.3d 873, 880 (9th Cir. 1993); Allen v. Toombs, 827 F.2d 563, 20 568–69 (9th Cir. 1987). 21 “To state a ' 1983 claim for violation of the Equal Protection Clause a plaintiff must show 22 that the defendants acted with an intent or purpose to discriminate against the plaintiff based upon 23 membership in a protected class.” Thornton v. City of St. Helens, 425 F.3d 1158, 1166-67 (9th 24 Cir. 2005) (citation and quotations omitted). “The first step in equal protection analysis is to 25 identify the [defendants’ asserted] classification of groups.” Id. (quoting Freeman v. City of 26 Santa Ana, 68 F.3d 1180, 1187 (9th Cir.1995)). The groups must be comprised of similarly 27 situated persons so that the factor motivating the alleged discrimination can be identified. Id. An 28 equal protection claim will not lie by “conflating all persons not injured into a preferred class 7 1 receiving better treatment” than the plaintiff. Id. (quoting Joyce v. Mavromatis, 783 F.2d 56, 57 2 (6th Cir.1986)). 3 If the action in question does not involve a suspect classification, a plaintiff may establish 4 an equal protection claim by showing that similarly situated individuals were intentionally treated 5 differently without a rational relationship to a legitimate state purpose. Village of Willowbrook v. 6 Olech, 528 U.S. 562, 564 (2000); San Antonio School District v. Rodriguez, 411 U.S. 1 (1972); 7 Squaw Valley Development Co. v. Goldberg, 375 F.3d 936, 944 (9th Cir.2004); Sea River Mar. 8 Fin. Holdings, Inc. v. Mineta, 309 F.3d 662, 679 (9th Cir. 2002). To state an equal protection 9 claim under this theory, as a "class of one" a plaintiff must allege that: (1) the plaintiff is a 10 member of an identifiable class; (2) the plaintiff was intentionally treated differently from others 11 similarly situated; and (3) there is no rational basis for the difference in treatment. Village of 12 Willowbrook, 528 U.S. at 564. To establish any violation of the Equal Protection Clause, the 13 prisoner must present evidence of discriminatory intent. See Washington v. Davis, 426 U.S. 229, 14 239-240 (1976); Serrano v. Francis, 345 F.3d 1071, 1081-82 (9th Cir. 2003); Freeman v. Arpio, 15 125 F.3d 732, 737 (9th Cir. 1997). Further, where a challenged government policy is facially 16 neutral, disproportionate impact on an identifiable group will satisfy the intent element, but only 17 if it tends to show that some invidious or discriminatory purpose underlies the policy. See Lee v. 18 City of Los Angeles, 250 F.3d 668, 686-87 (9th Cir. 2001). 19 The first step in determining whether prison staff violated Plaintiff's right to equal 20 protection is to identify the relevant class to which he belonged. See Thornton v. City of St. 21 Helens, 425 F.3d 1158, 1166 (9th Cir.2005). “The groups must be comprised of similarly 22 situated persons so that the factor motivating the alleged discrimination can be identified.” Id. at 23 1167. "An equal protection claim will not lie by 'conflating all persons not injured into a 24 preferred class receiving better treatment' than the plaintiff." Id., quoting Joyce v. Mavromatis, 25 783 F.2d 56, 57 (6th Cir.1986). 26 3. Plaintiff's Inability to Convert to Judaism 27 The prior screening order specified why Plaintiff could not proceed on claims against 28 Chaplains Sharon and Moskowitz, among others, and specifically directed Plaintiff to neither 8 1 name them, nor again attempt to state any claims against them. Despite this, Plaintiff persisted to 2 name Chaplains Sharon and Moskowitz as Defendants in the 2ndAC. Thus, the Court again 3 recites the reasons why Plaintiff may not proceed against them. 4 An initial determination must be made whether Chaplains Sharon and Moskowitz were 5 "state actors" or acting "under color of state law" in order for Plaintiff to proceed against them in 6 this action both on his claims under § 1983 and RLUIPA -- for which the same standard applies. 7 Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d 916, 922 (9th Cir. 2011). The first step 8 in the determination is whether the deprivation is the result of a governmental policy. Id. ref 9 Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir. 1999) citing Lugar v. 10 Edmondson Oil, Co., 457 U.S. 922, 937 (1982). In all three versions of his allegations, Plaintiff 11 alleges that his religious exercise was burdened by not being allowed to convert to the Jewish 12 faith. 13 However, in both the Original Complaint and 1stAC Plaintiff made it very clear that the 14 policy that prohibited inmates from converting to Judaism was the policy of the Jewish 15 organization/structure -- not the CDCR. In the 1stAC, Plaintiff alleged, and attached exhibits that 16 made it clear, that his inability to convert to Judaism was the policy of the Southern California 17 Board of Rabbis and the California Commission of Jewish Chaplains -- to whom the various 18 Jewish Chaplains who operate within the CDCR report. (See Doc. 13, 1stAC, at pp. 6:13-9:26, 19 177, 179, 184, 205.) Whether Chaplains Sharon and Moskowitz (under the Board of Rabbis) 20 were the only Jewish organization/structure operating in the CDCR does not transform their 21 internal, religious policy into government policy. Florer, 639 F.3d at 923-24. Thus, in the 22 Original Complaint and 1stAC, the Court found that Plaintiff did not show that his inability to 23 convert to the Jewish faith was the result of governmental policy.2 24 25 Now, in the 2ndAC, Plaintiff alleges that "the CDCR chaplain policy does not allow inmates to convert to Judaism." (Doc. 16, p.4.) The change in Plaintiff's pleading to allege that it 26 27 28 2 The fact that Plaintiff is an inmate also does not entitle him greater consideration by the governing board of his religion than a person not incarcerated. Thus, conversion may only be obtained by compliance with the requirements adopted by his religious leaders. 9 1 is a CDCR policy that is preventing him from converting to Judaism is disingenuous and need not 2 be accepted since clearly contradictory to both his prior allegations and the supporting exhibits he 3 submitted therewith. The policy prohibiting inmates from converting to Judaism is not a 4 governmental policy, so it does not provide a basis for a cognizable claim for violation of 5 Plaintiff's rights under the Free Exercise Clause of the First Amendment, RLUIPA, and the 6 Establishment Clause. 7 Further, neither Chaplain Sharon nor Moskowitz may fairly be considered a state actor. 8 The Supreme Court has held that "state action may be found if, though only if, there is such a 9 close nexus between the State and the challenged action that seemingly private behavior may be 10 fairly treated as that of the State itself." Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 11 531 U.S. 288, 295 (2001) (internal quotations and citation omitted). The Supreme Court has 12 identified at least seven approaches to assess whether a private party has acted under color of 13 state law. Brentwood Acad., 531 U.S. at 296. The most likely to be applicable in this situation is 14 either the "public function" or "joint action" approach. 15 "Under the public function test, when private individuals or groups are endowed by the 16 State with powers or functions governmental in nature, they become agencies or instrumentalities 17 of the State and subject to its constitutional limitations." Lee v. Katz, 276 F.3d 550, 554-55 (9th 18 Cir. 2002). "The public function test is satisfied only on a showing that the function at issue is 19 'both traditionally and exclusively governmental.' " Kirtley v. Rainey, 326 F.3d 1088, 1093 (9th 20 Cir. 2003) (quoting Lee, 276 F.3d at 555). It has specifically been held that a prison chaplain, and 21 organizations with which the chaplain was affiliated, were not engaged in state action when they 22 refused to provide an inmate religious materials or services and refused to recognize the inmate as 23 Jewish -- such actions were determined to be ecclesiastical rather than public functions. Florer, 24 639 F.3d at 925-26. Thus, the action by Chaplains Sharon and Moskowitz, of failing to facilitate 25 Plaintiff's conversion, is not a public function. 26 Under the "joint action" approach, "[p]rivate persons, jointly engaged with state officials 27 in the prohibited action, are acting 'under color' of law." Lugar, 457 U.S. at 941. This occurs 28 when "the state has so far insinuated itself into a position of interdependence with the private 10 1 entity that it must be recognized as a joint participant in the challenged activity. This occurs 2 when the state knowingly accepts the benefits derived from unconstitutional behavior." Kirtley, 3 326 F.3d at 1093 (internal quotations and citation omitted). Whether an inmate is a follower of a 4 particular religion is an ecclesiastical answer to a religious doctrine, not an administrative 5 determination; whereas a decision whether an inmate should be put on an internal prison list as 6 following a particular religion is an administrative determination, Florer, 639 F.3d at 926-27, and 7 Plaintiff does not allege that he is not on the list identifying him as Jewish for purposes within the 8 facility, nor do his allegation imply this. In order to be "joint action" the prison must have 9 engaged in activity with the charged defendant such as desiring the defendant to determine that an 10 inmate is not of a particular religion, or the prison must have derived a benefit from such 11 determination. Id. There is no basis, even under the most liberal interpretation of Plaintiff's 12 allegations, upon which the trier of fact could determine that the prison engaged in any activities 13 showing a desire or benefit to be derived from Chaplains Sharon and Moskowitz denying 14 Plaintiff's requests to convert to Judaism. Thus, Defendants Chaplains Sharon and Moskowitz 15 were not state actors or acting under color of state law when they denied Plaintiff's conversion to 16 the Jewish faith for Plaintiff to proceed against them for violation of his rights under the Free 17 Exercise Clause of the First Amendment, RLUIPA, and/or the Establishment Clause. 18 Further, Plaintiff offers no allegations to suggest that he was unilaterally denied Jewish 19 accommodations and/or religious items needed to exercise his faith because he was not allowed to 20 formally convert to Judaism. The religious activities that Plaintiff alleges have been infringed 21 include: being prohibited from attending a service also attended by two Yeshivah (rabbinic 22 school) graduates (Doc. 16, 2ndAC, at 8:22-25); not being permitted to attend a session when the 23 Aleph Institute sent a visiting rabbi to speak with Jewish inmates and allow them to don Tefillin 24 (id., at 7:13-18); and not being allowed to purchase religious packages by a the Aleph Institute 25 that regarded him as a non-Jew (id., at 7:19-21). Notably, Plaintiff was prohibited from engaging 26 in religious activities in these instances by the Aleph Institute -- which is an outside, religious 27 organization that has not been, and cannot be, pursued in this action. Thus, Plaintiff fails and is 28 unable to state a cognizable claim against Chaplains Sharon and Moskowitz. 11 1 4. Supervisory Liability via Inmate Appeals 2 Plaintiff named Secretary Cate and Warden Allison as defendants because they held 3 supervisory positions in that they reviewed his IAs regarding his inability to convert to the Jewish 4 faith at the Second and Third Levels. 5 Generally, supervisory personnel are not liable under section 1983 for the actions of their 6 employees under a theory of respondeat superior -- when a named defendant holds a supervisory 7 position, the causal link between him and the claimed constitutional violation must be specifically 8 alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 9 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941 (1979). To state a claim for relief under this 10 theory, Plaintiff must allege some facts that would support a claim that supervisory defendants 11 either: personally participated in the alleged deprivation of constitutional rights; knew of the 12 violations and failed to act to prevent them; or promulgated or "implemented a policy so deficient 13 that the policy 'itself is a repudiation of constitutional rights' and is 'the moving force of the 14 constitutional violation.'" Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989) (internal citations 15 omitted); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 16 To show this, “a plaintiff must show the supervisor breached a duty to plaintiff which was 17 the proximate cause of the injury. The law clearly allows actions against supervisors under 18 section 1983 as long as a sufficient causal connection is present and the plaintiff was deprived 19 under color of law of a federally secured right.” Redman v. County of San Diego, 942 F.2d 1435, 20 1447 (9th Cir. 1991)(internal quotation marks omitted)(abrogated on other grounds by Farmer v. 21 Brennan, 511 U.S. 825 (1994). 22 “The requisite causal connection can be established . . . by setting in motion a series of 23 acts by others,” id. (alteration in original; internal quotation marks omitted), or by “knowingly 24 refus[ing] to terminate a series of acts by others, which [the supervisor] knew or reasonably 25 should have known would cause others to inflict a constitutional injury,” Dubner v. City & Cnty. 26 of San Francisco, 266 F.3d 959, 968 (9th Cir.2001). “A supervisor can be liable in his individual 27 capacity for his own culpable action or inaction in the training, supervision, or control of his 28 subordinates; for his acquiescence in the constitutional deprivation; or for conduct that showed a 12 1 reckless or callous indifference to the rights of others.” Watkins v. City of Oakland, 145 F.3d 2 1087, 1093 (9th Cir.1998) (internal alteration and quotation marks omitted). 3 The Court construes Plaintiff's allegations as alleging that by reviewing Plaintiff's IAs on 4 this issue, Secretary Cate and Warden Allison knew that his religious freedoms were being 5 violated and failed to take preventative/reparative action. 6 However, it is true that "inmates lack a separate constitutional entitlement to a specific 7 prison grievance procedure." Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (no liberty 8 interest in processing of appeals because no entitlement to a specific grievance procedure), citing 9 Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). A[A prison] grievance procedure is a 10 procedural right only, it does not confer any substantive right upon the inmates.@ Azeez v. 11 DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982) accord Buckley v. Barlow, 997 F.2d 494, 495 (8th 12 Cir. 1993); see also Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001) (existence of grievance 13 procedure confers no liberty interest on prisoner). 14 Nevertheless, a plaintiff may "state a claim against a supervisor for deliberate indifference 15 based upon the supervisor's knowledge of and acquiescence in unconstitutional conduct by his or 16 her subordinates." Starr v. Baca, 652 F.3d 1202, 1207 (2011). This maay be shown via the 17 inmate appeals process where the supervisor reviewed Plaintiff's applicable inmate appeal and 18 failed to take corrective action, allowing the violation to continue. 19 Plaintiff's claims against Secretary Cate and Warden Allison rest exclusively on their 20 supervisorial capacity via their involvement reviewing Plaintiff's IAs regarding his inability to 21 convert to Judaism. (Doc. 16, 2ndAC, at 6:5-10, 8:9-21.) Plaintiff fails to allege and is unable to 22 allege that Secretary Cate and Warden Allison had the ability to force the Jewish authorities to 23 allow Plaintiff to convert. As previously discussed, conversion to the Jewish religion is a purely 24 ecclesiastical endeavor; the Chaplains, Rabbis, and other Jewish authorities do not qualify as state 25 actors in their decisions as to whether Plaintiff may convert; nor do the decisions regarding 26 whether Plaintiff is allowed to or prohibited from converting to the Jewish faith qualify as a 27 public function or joint action. Further, while Plaintiff has certain rights to exercise his sincerely 28 held religious beliefs, there is no constitutional right for an inmate to obtain conversion where the 13 1 religious organization has declined to permit it. Thus, while Plaintiff's desire to convert to the 2 Jewish faith may be sincerely desired, the inability of Chaplain Sharon and/or Moskowitz to 3 provide/facilitate Plaintiff's conversion does not equate to violation of a "federally secured right" 4 that Secretary Cate and/or Warden Allison caused or knew of and acquiesced in. 5 Even though they were aware of and perhaps on notice of Plaintiff's inability to convert to 6 Judaism, it cannot be said that there is a causal connection between Secretary Cate and Warden 7 Allison reviewing Plaintiff's IAs and Plaintiff's inability to accomplish the ecclesiastical task of 8 conversion to the Jewish faith. Thus, Plaintiff fails and is unable to state a cognizable claim 9 against either Secretary Cate or Warden Allison for their involvement in reviewing his IAs 10 regarding his inability to convert to the Jewish faith. 11 5. Section 101060.4 of the Department Operations Manual 12 Finally, in all of the pleadings that Plaintiff has filed in this action, he complains that the 13 Defendants have violated section 101060.4 of Article 6 of CDCR's Department Operations 14 Manual ("the DOM"). (See e.g. Doc. 1, Orig. Co., at pp. 6, 8; Doc. 13, 1stAC, at p. 9; Doc. 16, 15 2ndAC, p.4.) It cannot be said that section 101060.4 requires any of the Defendants to provide 16 Plaintiff the conversion to Judaism that he seeks. Section 101060.4 provides that "pastoral duties 17 of a chaplain [] shall consist of the following: . . . Administering Sacraments: Baptism, 18 Confession, Communion, Confirmation, Sacrament of the Sick and Marriage. . . ." However, the 19 existence of regulations such as these governing the conduct of prison employees does not 20 necessarily entitle plaintiff to sue civilly to enforce the regulations or to sue for damages based on 21 the violation of the regulations. The Court has found no authority to support a finding that there 22 is an implied private right of action under the DOM. Given that the statutory language does not 23 support an inference that there is a private right of action, the Court finds that Plaintiff fails and is 24 unable to state any claims upon which relief may be granted based on the violation of a given 25 section of the DOM. 26 II. 27 28 CONCLUSION & RECOMMENDATION Plaintiff's Second Amended Complaint fails to state a cognizable claim against any of the named Defendants. Given Plaintiff's persistence in attempting to state a causes of action that he 14 1 as previously been advised are not actionable, it appears futile to allow further amendment. The 2 deficiencies in Plaintiff's pleading do not appear capable of being cured through amendment, 3 Akhtar, 698 F.3d at 1212-13, and Plaintiff need not be given leave to amend his section 1983 4 claims. 5 6 7 Accordingly, it is HEREBY RECOMMENDED that this entire action be DISMISSED with prejudice and this dismissal should count as a strike for purposes of 28 U.S.C. §1915(g). These Findings and Recommendations will be submitted to the United States District 8 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within 30 9 days after being served with these Findings and Recommendations, Plaintiff may file written 10 objections with the Court. The document should be captioned AObjections to Magistrate Judge=s 11 Findings and Recommendations.@ 12 13 Plaintiff is advised that failure to file objections within the specified time may result in the 14 waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. Nov. 18, 2014) 15 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 16 17 18 IT IS SO ORDERED. Dated: November 6, 2015 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 15
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