-LRL Roberts v. Cox et al, No. 2:2009cv02382 - Document 33 (D. Nev. 2011)
Court Description: ORDER Granting in Part and Denying in Part 24 Motion to Dismiss. Amended Complaint deadline: 4/18/2011. Signed by Judge Philip M. Pro on 3/22/11. (Copies have been distributed pursuant to the NEF - ASB)
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-LRL Roberts v. Cox et al Doc. 33 1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 6 7 8 9 10 11 12 13 14 *** ) KEN ROBERTS, ) ) Plaintiff, ) ) v. ) ) RYAN KLEIN, HOWARD SKOLNIK, ) BRIAN WILLIAMS, CLARENCE KING, ) KEN NICHOLAS, LAVERT TAYLOR, ) CHERYL BURSON, and JAMES ) GREGORY COX, ) ) Defendants. ) ) 2:09-CV-02382-PMP-LRL ORDER Presently before the Court is Defendants’ Motion to Dismiss Plaintiff’s 15 Complaint (Doc. #24), filed on December 15, 2010 by Defendants Ryan Klein, Brian 16 Williams, Clarence King, Ken Nicholas, Lavert Taylor, Cheryl Burson, and James Gregory 17 Cox. Plaintiff filed an Opposition (Doc. #29) on January 7, 2011. Defendants filed a Reply 18 (Doc. #31) on March 2, 2011. 19 I. BACKGROUND 20 Plaintiff Ken Roberts currently is an inmate at the Southern Desert Correctional 21 Center (“SDCC”). (Compl. (Doc. #8).) Defendants are administrators and employees with 22 the Nevada Department of Corrections (“NDOC”) and SDCC. (Id.) Plaintiff is a “Black 23 Inmate of Jewish Tenet and Faith.” (Id.) In February 2009, Plaintiff sought to be provided 24 kosher meals to observe his religion’s dietary requirements. (Id.) In June 2009, Plaintiff 25 received notice from an associate warden at the Northern Nevada Correctional Center 26 (“NNCC”) that to receive kosher meals, Plaintiff must be recognized by an outside Jewish Dockets.Justia.com 1 group or organization. (Id.) 2 On June 30, 2009, Plaintiff was transferred from NNCC to SDCC. (Id.) Upon 3 arrival at the new prison, Plaintiff sought kosher meals. (Id.) In August 2009, Defendant 4 Chaplain Lavert Taylor (“Taylor”) granted Plaintiff and several other inmates approval to 5 receive kosher meals. (Id.) However, SDCC kitchen manager Defendant Clarence King 6 (“King”) failed to provide Plaintiff with kosher meals. (Id.) On September 26, 2009, 7 Plaintiff was provided with notice from Taylor that Plaintiff’s approval to receive kosher 8 meals was rescinded and per the order of Defendant Gregory Cox (“Cox”), Deputy Director 9 of NDOC, kosher meals would be provided only to inmates who were recognized as Jews 10 requiring kosher meals by an outside Jewish group or organization. (Id.) On September 28, 11 2009, Plaintiff filed an informal grievance challenging his denial of kosher meals and this 12 informal grievance was denied. (Id.) Plaintiff appealed the denial of his grievance and 13 received denials at Level Two of the prison grievance process on November 9, 2009 and 14 November 23, 2009. (Id.) 15 From August 20, 2009 to September 23, 2009, Defendants Brian Williams 16 (“Williams”), Cheryl Burson (“Burson”), and Taylor cancelled all Jewish services to 17 accommodate Muslim inmates during the month of Ramadan. (Id.) There is no record of 18 Plaintiff filing, nor does Plaintiff allege he filed, any grievances related to these actions. 19 On October 10, 2009, Plaintiff was attending Jewish services and Defendant Ken 20 Nicholas (“Nicholas”) terminated Plaintiff from his prison work assignment. (Id.) Plaintiff 21 attempted to explain to Nicholas that Plaintiff was allotted time off from work assignments 22 for weekly worship. (Id.) Nicholas responded by telling Plaintiff “You’re no damn Jew,” 23 “You’re right I’m firing you,” and “Around here I’m your god.” (Id.) On October 12, 24 2009, Plaintiff received disciplinary charges and a hearing. (Id.) During this hearing, 25 Defendant Ryan Klein (“Klein”) told Plaintiff “Attending service is no excuse to miss 26 work.” (Id.) Plaintiff was found guilty of failing to attend work and received disciplinary 2 1 sanctions. (Id.) Plaintiff filed an informal grievance regarding this matter on October 13, 2 2009. (Defs.’ Mot. to Dismiss (Doc. #24), Ex. 1.) Plaintiff received responses denying his 3 informal grievance on October 13, 14, and 28. (Id.) Plaintiff appealed the denial of his 4 informal grievances to Level One of the prison grievance process, receiving denials on 5 November 6 and 25. (Id.) Plaintiff again appealed and received denials at Level Two of 6 the prison grievance process on January 11 and 26, 2010. (Id.) Plaintiff also received a 7 denial on December 3, 2009, which did not indicate the grievance level. (Id.) 8 9 On December 11, 2009, Plaintiff filed a five count Complaint against Defendants. Count I alleges Defendants Howard Skolnik (“Skolnik”), Cox, Williams, 10 Burson, King, and Taylor violated Plaintiff’s First Amendment right to free exercise of 11 religion, his statutory rights under the Religious Land Use and Institutionalized Persons Act 12 of 2000 (“RLUIPA”), and the Equal Protection Clause of the Fourteenth Amendment for 13 requiring an outside organization to verify that Plaintiff is Jewish to be entitled to a kosher 14 meal plan. Count II alleges Defendants Williams, Burson, and Taylor violated Plaintiff’s 15 First Amendment free exercise rights, the RLUIPA, and the Equal Protection Clause of the 16 Fourteenth Amendment when they cancelled Jewish services to accommodate Muslims 17 during the month of Ramadan. Count III alleges Defendants Cox and Taylor retaliated 18 against Plaintiff for participating in “protected conduct” by rescinding Plaintiff’s right to 19 receive kosher meals. Count IV alleges Defendant Nicholas retaliated against Plaintiff for 20 attending Jewish services by terminating Plaintiff from his prison work assignment and 21 placing Plaintiff under disciplinary charges. Count V alleges Defendants Nicholas and 22 Klein violated Plaintiff’s First Amendment free exercise rights and the Equal Protection 23 Clause of the Fourteenth Amendment when they placed Plaintiff on disciplinary sanctions 24 for missing work while Plaintiff was attending Jewish services. 25 Defendants filed a Motion to Dismiss alleging that Plaintiff failed to exhaust his 26 administrative remedies regarding Counts II, IV, and V; all five counts fail to state a claim 3 1 for which relief may be granted under Federal Rule of Civil Procedure 12(b)(6); Plaintiff’s 2 claim under RLUIPA is moot; and Defendants are entitled to qualified immunity. Plaintiff 3 replies that he has exhausted his administrative remedies with respect to Counts IV and V, 4 pro se litigants’ pleadings are to be construed liberally, and that he has stated claims upon 5 which relief may be granted. 6 II. DISCUSSION 7 8 A. Failure to Exhaust Administrative Remedies The Prison Litigation Reform Act of 1996 (“PLRA”) provides that “[n]o action 9 shall be brought with respect to prison conditions under section 1983 of this title, or any 10 other Federal law, by a prisoner confined in any jail, prison, or other correctional facility 11 until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a) 12 (2002). Failure to exhaust administrative remedies is an affirmative defense and the 13 defendants bear the burden of raising and proving failure to exhaust. Jones v. Bock, 549 14 U.S. 199, 212-14 (2007). Proper exhaustion requires that the plaintiff utilize all steps made 15 available by the agency and comply with the agency’s deadlines and other procedural rules. 16 Woodford v. Ngo, 548 U.S. 81, 89-90 (2006). Proper exhaustion must be completed before 17 a complaint may be filed. Id. at 83-84. 18 If a defendant on a motion under Federal Rule of Civil Procedure 12(b)(6) 19 presents matters outside the pleadings, the Court may consider them and treat the motion as 20 one for summary judgment. Fed. R. Civ. P. 12(d). On a motion for summary judgment, the 21 party seeking summary judgment must show that there is no genuine issue of material fact 22 and that he is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). When deciding 23 a motion for summary judgment, the Court views all evidence in the light most favorable to 24 the non-moving party. County of Tuolumne v. Sonora Cmty. Hosp., 236 F.3d 1148, 1154 25 (9th Cir. 2001). 26 Here, Defendants allege that Plaintiff failed to exhaust his administrative 4 1 remedies with respects to Counts II, IV, and V. Plaintiff states that he properly exhausted 2 his administrative remedies with respect to Counts IV and V. Because Defendants 3 submitted evidence along with the Motion to Dismiss, the Court will treat it as a motion for 4 summary judgment and view the evidence in the light most favorable to Plaintiff. 5 While it is Defendants’ burden to allege and prove Plaintiff’s failure to exhaust 6 his administrative remedies, Plaintiff’s response does not dispute that he did not exhaust 7 administrative remedies with respect to Count II. Accordingly, the Court will dismiss 8 Count II of Plaintiff’s Complaint for failure to exhaust administrative remedies as required 9 by the PLRA. 10 Counts IV and V stem from Defendants terminating Plaintiff from his prison 11 work assignment and writing Plaintiff up on disciplinary charges for missing work to attend 12 Jewish services. Administrative Regulation 740 (“AR 740”) outlines the grievance 13 procedure for inmates in NDOC custody and provides for one informal and two formal 14 levels of review. To exhaust his remedies, an inmate first must file an informal grievance. 15 If the inmate is not satisfied with how the grievance is resolved, the inmate then may appeal 16 the grievance to Level One, and then if still not satisfied, appeal to Level Two. 17 Defendants attached copies of Plaintiff’s grievance history to their Motion to 18 Dismiss. Plaintiff’s Complaint was filed December 11, 2009. Therefore, to comply with 19 the PLRA, Plaintiff must have exhausted his administrative remedies before that date. 20 According to Plaintiff’s grievance history, Plaintiff initially filed an informal grievance on 21 October 13, 2009 relating to both the termination of his work assignment and the bringing 22 of disciplinary charges against him. Plaintiff appealed the denial of his grievance, receiving 23 Level One responses confirming the denial on November 6 and 25, 2009, and Level Two 24 responses confirming the denial on January 11 and 26, 2010. There is also a grievance 25 denial on December 3, 2009. The grievance history provides no indication of what level of 26 review prompted the December 3, 2009 denial. Because this grievance is unmarked, and 5 1 the Court must view evidence in the light most favorable to Plaintiff, an issue of fact 2 remains to wether the December 3, 2009 grievance denial was a Level Two denial. 3 Therefore, Defendants do not meet their burden of proving failure to exhaust administrative 4 remedies. Accordingly, Defendants’ Motion to Dismiss Counts IV and V for failure to 5 exhaust administrative remedies will be denied. 6 B. Failure to State a Claim for Which Relief May be Granted 7 Federal Rule of Civil Procedure 8(a)(2) requires a pleading to contain “a short 8 and plain statement of the claim showing that the pleader is entitled to relief.” Such a 9 statement is necessary to “give the defendant fair notice of what the . . . claim is and the 10 grounds upon which it rests.” William O. Gilley Enter., Inc. v. Atl. Richfield Co., 588 F.3d 11 659, 667 (9th Cir. 2009) (per curiam) (quotation omitted). Dismissal of a claim under Rule 12 12(b)(6) for failure to state a claim is appropriate when the complaint fails to satisfy Rule 13 8(a). Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). 14 There is a strong presumption against dismissing an action for failure to state a 15 claim. Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir. 1997). When deciding a 16 motion under Rule 12(b)(6), the Court accepts “all well-pleaded allegations of material 17 fact[] as true and construe[s them] in a light most favorable to the non-moving party.” 18 Wyler Summit P’ship v. Turner Broad Sys., Inc., 135 F.3d 658, 661 (9th Cir. 1998). 19 However, the Court is not required to accept as true allegations that are merely conclusory. 20 Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). “The issue is not 21 whether a plaintiff will ultimately prevail but whether the plaintiff is entitled to offer 22 evidence in support of the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) 23 (overruled on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982)). To 24 survive a Rule 12(b)(6) motion, the plaintiff must do more than merely assert legal 25 conclusions; rather, the complaint must contain sufficient factual allegations to provide 26 plausible grounds for entitlement to relief. Twombly, 550 U.S. at 555-56 (mere recitation 6 1 of the legal elements of a cause of action is insufficient to survive a Rule 12(b)(6) motion). 2 However, “[p]ro se complaints are to be construed liberally and may be dismissed for 3 failure to state a claim only where it appears beyond doubt that the plaintiff can prove no set 4 of facts in support of his claim which would entitle him to relief.” Weilburg v. Shapiro, 5 488 F.3d 1202, 1205 (9th Cir. 2007) (quotation omitted). 6 Title 42 U.S.C. § 1983 “provides a federal cause of action against any person 7 who, acting under color of state law, deprives another of his federal rights.” Conn v. 8 Gabbert, 526 U.S. 286, 290 (1999). Section 1983 offers no substantive legal rights, but 9 rather provides procedural protections for federal rights granted elsewhere. Albright v. 10 Oliver, 510 U.S. 266, 271 (1994). To maintain a claim under § 1983, “a plaintiff must both 11 (1) allege the deprivation of a right secured by the federal Constitution or statutory law, and 12 (2) allege that the deprivation was committed by a person acting under color of state law.” 13 Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). 14 When incarcerated, inmates retain their First Amendment rights to free exercise 15 of religion. O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987). To warrant protection 16 under the First Amendment, a religious belief must be sincerely held and the claim must be 17 rooted in religious belief. Malik v. Brown, 16 F.3d 330, 333 (9th Cir. 1994). The claimant 18 need not be a member of a particular organized religious denomination to demonstrate a 19 sincerely held belief. Frazee v. Ill. Dep’t of Emp’t Sec. Div., 489 U.S. 819, 834 (1989). 20 Additionally, protected beliefs are not limited to those that are shared by all members of a 21 religious community. Callahan v. Woods, 658 F.2d 679, 686 (9th Cir. 1981). The 22 government cannot rely on a rabbi or outside religious group to determine if an inmate is 23 Jewish. Jackson v. Mann, 196 F.3d 316 (2d Cir. 1999); Shilling v. Crawford, No. 205CV- 24 00889-PMP-GWF 2007 WL 2790623, *15 (D. Nev. Sept. 21, 2007) (unpublished), aff’d, 25 377 Fed. Appx 702 (9th Cir. 2010). Rather, the correct test is whether a belief is sincerely 26 held. Malik, 16 F.3d at 333. 7 1 However, a prison regulation may “impinge[] on inmates’ constitutional 2 rights . . . if it is reasonably related to penological interests.” Shakur v. Schiro, 514 F.3d 3 878, 884 (9th Cir. 2008). Courts balance four factors to determine whether a prison 4 regulation is reasonably related to legitimate penological interests: (1) whether there is a 5 valid rational connection between the prison regulation and the legitimate government 6 interest put forward to justify it; (2) whether there are alternative means of exercising the 7 right that remain open to prison inmates; (3) whether accommodation of the asserted 8 constitutional right will impact guards and other inmates or prison resources generally; and 9 (4) whether there is an absence of ready alternatives versus the existence of obvious, easy 10 11 12 13 14 15 alternatives. Turner v. Safely, 482 U.S. 78, 89-90 (1987). The RLUIPA offers further protection of an inmate’s freedom to practice his chosen religion and provides that: No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution . . . even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person- (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. 16 17 42 U.S.C. § 2000cc-1(a). The RLUIPA is “to be construed broadly in favor of protecting 18 an inmate’s right to exercise his religious beliefs.” Warsoldier v. Woodford, 418 F.3d 989, 19 995 (9th Cir. 2005). 20 The Equal Protection Clause of the Fourteenth Amendment provides that no state 21 shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. 22 Const., amend. XIV. It requires “that all persons similarly situated should be treated alike.” 23 Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). To state a Section 1983 claim 24 based on violation of the Equal Protection Clause, the plaintiff must allege the defendant 25 acted with intentional discrimination against the class to which the plaintiff belongs. Lowe 26 v. City of Monrovia, 775 F.2d 998, 1010 (9th Cir. 1985). 8 1 For an inmate to establish a prima facie case of retaliation, a plaintiff must allege 2 that the defendant acted to retaliate against the plaintiff for engaging in a protected activity, 3 and the defendant’s actions did not serve a legitimate penological purpose. Barnett v. 4 Centoni, 31 F.3d 813, 816 (9th Cir. 1995). The prisoner bears the burden of establishing a 5 link between the exercise of constitutional rights and the retaliatory action. Pratt v. 6 Rowland, 65 F.3d 802, 806 (9th Cir. 1995). The timing of the events surrounding the 7 alleged retaliation may constitute circumstantial evidence of retaliatory intent. Soranno’s 8 Gasco, Inc. v. Morgan, 874 F.2d 1310, 1316 (9th Cir. 1989). 9 1. Count I 10 In Count I of his Complaint, Plaintiff alleges Defendants Skolnik, Cox, Williams, 11 Burson, King, and Taylor violated Plaintiff’s religious rights pursuant to the First 12 Amendment, RLUIPA, and Equal Protection under the Fourteenth Amendment when they 13 implemented and enforced a policy that denied Plaintiff kosher meals because his Jewish 14 faith was not verified by an outside entity. Because Defendants are employees of NDOC 15 and SDCC, the entities responsible for confining Plaintiff, they are acting under the color of 16 state law. Plaintiff sufficiently has alleged that he was improperly denied kosher meals 17 because he did not have his Jewish faith verified by an outside organization. Such 18 verification is not required for the religious belief of an inmate to be protected under the 19 First Amendment. Rather, all that is required is that the belief be sincerely held and that it 20 be rooted in religious belief. Malik, 16 F.3d at 333. Plaintiff adequately has alleged that he 21 sincerely believes a kosher diet is required of him. Additionally, Defendants have not 22 disputed that a kosher diet is something rooted in the Jewish faith. 23 Analysis of the Turner factors indicates that Plaintiff has sufficiently alleged 24 enough to survive a motion to dismiss. In regards to the first Turner factor, Defendants 25 argue that the government interest is the orderly administration of a program that allows 26 NDOC to accommodate the religious dietary needs of thousands of prisoners. Defendants 9 1 argue they cannot easily prepare kosher foods without disrupting the entire food service 2 process. Limiting the amount of inmates who receive kosher meals is reasonably related to 3 the government’s interest in the orderly administration of its food service. However, while 4 kosher food may be more costly to prepare, Defendants do not provide any evidence of the 5 increased cost. Further, NDOC already provides kosher meals to some inmates. Thus, 6 Plaintiffs’ allegations are sufficient to survive a motion to dismiss. 7 The second factor is whether there are alternative means of exercising the right 8 that remain open to prison inmates. Turner, 482 U.S. at 89. Where a prison regulation 9 requires a “believer to defile himself, according to the believer’s conscience, by doing 10 something that is completely forbidden by the believer’s religion,” the second Turner factor 11 favors the inmate. Ward v. Walsh, 1 F.3d 873, 878 (9th Cir. 1993). Here, Plaintiff alleges 12 that a kosher diet is required by his religious beliefs. Consuming a non-kosher diet, 13 therefore, causes Plaintiff to do something forbidden by his religious beliefs. Accordingly, 14 this factor counsels against Defendants’ regulation. 15 The third factor is whether accommodation of the asserted constitutional right 16 will impact guards and other inmates or prison resources generally. 482 U.S. at 89-90. 17 Perhaps preparation of kosher meals entails an increased administrative and budgetary 18 burden. Ward, 1 F.3d at 878. However, we are at the motion to dismiss stage and no 19 evidence regarding these facts has been provided. Accordingly, the Court cannot determine 20 in whose favor to weight this factor. Id. at 878-79. 21 The last factor is whether there is an absence of ready alternatives versus the 22 existence of obvious, easy alternatives. Turner, 482 U.S. at 90. Defendants’ requirement 23 that inmates be verified as Jewish to receive a kosher diet violates the established test from 24 Malik where an inmates’ beliefs must be sincerely held and rooted in religious belief. 16 25 F.3d at 333. Plaintiff alleges Defendants offer a kosher diet to white inmates of the Jewish 26 faith without requiring outside verification. The obvious, easy alternative is for Defendants 10 1 to provide a kosher diet to Plaintiff in the same manner. Accordingly, the fourth Turner 2 factor goes against Defendants’ regulation. On the balance, the Turner factors counsel that 3 Plaintiff’s allegations are sufficient to survive a motion to dismiss. 4 Defendants allege that Plaintiff’s RLUIPA claim is moot because Defendants are 5 “in the process of changing” the regulation requiring outside verification for inmates to 6 receive kosher meals. However, courts are reluctant to invoke mootness where “ a case has 7 become moot because the defendant has voluntarily ceased to pursue the challenged course 8 of action.” Smith v. Univ. Washington Law Sch., 233 F.3d 1188, 1194 (9th Cir. 2000); see 9 also Seneca v. Ariz., 345 Fed. Appx. 226, 228 (9th Cir. 2009) (unpublished) (holding that 10 prison’s voluntary policy change from policy requiring inmates to submit a verification 11 letter to change their religious designation to one which did not require a letter did not moot 12 the plaintiff’s claims under RLUIPA). 13 Plaintiff adequately has alleged a violation of RLUIPA. Denying a kosher diet to 14 those whose Jewish faith is not verified by an outside entity substantially burdens an 15 inmate’s religious exercise. Defendants argue this policy is in furtherance of a compelling 16 government interest, namely dealing with the increased costs associated with providing 17 kosher meals. However, Defendants have not met their burden of showing that this is the 18 least restrictive means of furthering that interest. 19 Plaintiff also alleges that white inmates of the Jewish faith do not need to have 20 their faith verified by an outside organization to receive a kosher meal plan whereas black 21 inmates do. This allegation is sufficient to state a claim for violation of the Equal 22 Protection Clause of the Fourteenth Amendment. Accordingly, Defendants’ Motion to 23 Dismiss Count I for failure to state a claim is denied. 24 25 26 2. Count III In Count III of his Complaint, Plaintiff alleges Defendants retaliated against him and denied him equal protection of the laws when Defendants Cox and Taylor rescinded 11 1 Plaintiff’s right to receive kosher meals. Defendants Cox and Taylor are employees of 2 SDCC responsible for confining Plaintiff and are acting under color of state law. However, 3 Plaintiff does not set forth the protected activity for which he is being retaliated against. 4 Accordingly, Plaintiff cannot establish a link between the exercise of his constitutional 5 rights and the rescinding of his right to receive kosher meals. Therefore, Count III of 6 Plaintiff’s Complaint fails to state a claim for which relief may be granted and Defendants’ 7 Motion to Dismiss Count III is granted. However, the Court will grant Plaintiff leave to 8 amend his complaint to allege facts consistent with a retaliation claim. Fed. R. Civ. P. 9 15(a); Foman v. Davis, 371 U.S. 178, 182 (1962). 10 11 3. Count IV In Count IV of his Complaint, Plaintiff alleges Defendant Nicholas retaliated 12 against Plaintiff for exercising his First Amendment right to free exercise of religion and 13 subjected Plaintiff to racial discrimination in violation of the Equal Protection Clause of the 14 Fourteenth Amendment. Because Defendant Nicholas is an employee of NDOC and 15 SDCC, the entities responsible for confining Plaintiff, he is acting under color of state law. 16 Plaintiff alleges Defendant Nicholas terminated Plaintiff’s prison work assignment for 17 attending Jewish services. Attendance of religious services is a protected activity so long as 18 the religious belief is sincerely held and the claim is rooted in religious belief. Malik, 16 19 F.3d at 333. Taking Plaintiff’s factual allegations as true, Plaintiff sincerely believes he 20 must attend religious services and his claim is rooted in religious belief. The timing of 21 Plaintiff’s attendance at Jewish services and the termination of Plaintiff’s work assignment 22 is sufficient to show retaliatory intent. Further, Defendant Nicholas’s retaliatory intent is 23 demonstrated by his alleged statements “You’re no damn Jew,” “You’re right I’m firing 24 you,” and “Around here I’m your god.” Therefore, Plaintiff sufficiently has alleged 25 Defendant Nicholas retaliated against him. 26 Additionally, Plaintiff alleges that black inmates, but not white inmates, of 12 1 Jewish faith have their work assignments terminated for attending Jewish services. Taking 2 Plaintiff’s factual allegations as true, Plaintiff sufficiently has alleged that Defendant 3 Nicholas treated similarly situated individuals differently based on racial motivation. 4 Therefore, Plaintiff sufficiently has alleged a violation of the Equal Protection Clause of the 5 Fourteenth Amendment. The Court will deny Defendants’ Motion to Dismiss as it relates to 6 Count IV of Plaintiff’s Complaint. 7 8 4. Count V In Count V of his Complaint, Plaintiff alleges Defendants Nicholas and Klein 9 retaliated against Plaintiff for exercising his First Amendment right to free exercise of 10 religion and deprived Plaintiff of Equal Protection under the Fourteenth Amendment. 11 Because Defendants Nicholas and Klein are employees of NDOC and SDCC, the entities 12 responsible for confining Plaintiff, their actions are under color of state law. Plaintiff 13 alleges he was written up on disciplinary charges for attending Jewish services while white 14 inmates of Jewish faith are not written up on disciplinary charges for attending services. 15 Attending religious services is protected activity. Plaintiff alleges he was placed on 16 disciplinary charges because he attended services. The two days between Plaintiff’s 17 attendance at Jewish services and his being written up on disciplinary charges is sufficient 18 to show retaliatory intent. Taking Plaintiff’s factual allegations as true, Plaintiff sufficiently 19 has alleged that Defendants Nicholas and Klein retaliated against him for engaging in a 20 protected activity. Additionally, Plaintiff sufficiently has alleged that Defendants Nicholas 21 and Klein treated similarly situated individuals differently based on racial motivation. 22 Therefore, Plaintiff sufficiently has alleged a violation of the Equal Protection Clause of the 23 Fourteenth Amendment. The Court will deny Defendants’ Motion to Dismiss as it relates to 24 Count V of Plaintiff’s Complaint. 25 C. Qualified Immunity 26 Qualified immunity, “protects government officials from civil liability as long as, 13 1 ‘their conduct does not violate clearly established statutory or constitutional rights of which 2 a reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 3 808, 815 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified 4 immunity requires a two part inquiry: first, whether the facts alleged by a plaintiff establish 5 a violation of a constitutional right; and second, whether the right at issue was clearly 6 established. Pearson, 129 S. Ct. at 815-16. The facts alleged by Plaintiff, taken as true, establish a violation of Plaintiff’s 7 8 First Amendment right to free exercise of religion and Fourteenth Amendment right to 9 equal protection before the law. The right of prisoners to practice their beliefs which are 10 sincerely held and rooted in religious belief is clearly established. Malik, 16 F.3d at 333; 11 see also Shilling v. Crawford, No. 205CV-00889-PMP-GWF 2007 WL 2790623 (D. Nev. 12 Sept. 21, 2007) (holding NDOC inmates’ religious beliefs, including kosher diets, are 13 protected if they are sincerely held). Additionally, it is clearly established and would be 14 known by a reasonable person that treating inmates differently based on race save for 15 necessities of prison security is unconstitutional. See Walker v. Gomez, 370 F.3d 969, 973 16 (9th Cir. 2004) (citing Cruz v. Beto, U.S. 319, 321 (1972) (per curiam)). Accordingly, 17 Defendants are not entitled to qualified immunity. 18 III. CONCLUSION 19 IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss for Failure 20 to State a Claim for Which Relief May be Granted (Doc. #24) is hereby GRANTED in part 21 and DENIED in part. Defendants’ Motion is granted with respect to Counts II and III of 22 Plaintiff’s Complaint and denied in all other regards. 23 /// 24 /// 25 /// 26 /// 14 1 2 IT IS FURTHER ORDERED that Plaintiff may file an amended complaint correcting the deficiencies identified in this Order on or before April 18, 2011. 3 4 DATED: March 22, 2011 5 6 7 _______________________________ PHILIP M. PRO United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 15
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