United States District Court, W.D. Washington, Tacoma
REPORT AND RECOMMENDATION
RICHARD CREATURA UNITED STATES MAGISTRATE JUDGE.
District Court has referred this 42 U.S.C. § 1983 civil
rights matter to United States Magistrate Judge J. Richard
Creatura under 28 U.S.C. §§ 636(b)(1)(A) and (1)(B)
and Local Magistrate Judge Rules MJR 1, 3, and 4.
See Dkt. 2.
brings various federal and state claims against twenty-five
defendants, who are Department of Corrections (DOC)
officials, staff, and entities, arising out of alleged
incidents during the week of Passover 2018. Specifically,
plaintiff alleges that the Passover meals he signed up to
receive based on his “nondenominational religious
beliefs” made him severely ill, so that he could not
consume any of them. He claims that under the Passover meal
policy, which did not allow participants to opt-out once
Passover began, defendants refused to allow plaintiff to
change back to a regular diet, so that he was forced to go
without food for the week of Passover. Further, he alleges
that defendants not only ignored his requests to change his
meal plan back but retaliated against him for filing
grievances and seeking medical attention by infracting him
and demoting his custody level.
matter is now before the Court on a motion to dismiss filed
by all named defendants except defendant Joby Taylor.
See Dkt. 42. The undersigned recommends granting in
part and denying in part the motion to dismiss. Specifically,
plaintiff has stated colorable claims of violation of the
Establishment Clause because prisoners on Ramadan meal plans
could withdraw, but not prisoners on Passover meal plans;
deliberate indifference because defendants allegedly
knowingly disregarded plaintiff's inability to eat the
Passover food without getting sick; and retaliation because
some defendants allegedly said that plaintiff was being
punished for filing grievances. However, the balance of
plaintiff's claims should be dismissed without prejudice.
who proceeds pro se and in forma pauperis
(see Dkt. 4), initiated this matter in February
2019. See Dkts. 1, 5. Plaintiff claims that he
missed 24 consecutive meals during Passover, which ran from
March 30 to April 7, 2018, because the Passover meals made
him sick and defendants refused to provide him with an
alternative. See Dkt. 5, at 40; Dkt. 5-1, at 4.
brings claims against the DOC and five DOC officials: Belinda
Stewart, the Corrections Program Administrator; Jamie Dolan,
the Food Services Administrator; Robert Herzog, the Assistant
Secretary - Prisons Division; Danielle Armbruster, the
Assistant Secretary - Re-entry Division; and Michelle Walker,
the Prison Disciplinary Program Manager. See Dkt. 5,
at 4-5, 11. He also sues the Stafford Creek Corrections
Center (“SCCC”), SCCC superintendent Ronald
Haynes, and SCCC associate superintendents Dan Van Ogle and
Jeneva Cotton. See Dkt. 5, at 10-11. He brings
claims against 11 corrections staff-a correctional unit
supervisor, Stephanie Baltzell; a correctional lieutenant,
Charles Casey; two sergeants, Brian Schuetter and Vincent
Stroup, and seven corrections officers: Lewis Villalobos,
Joby Taylor, Joshua Sutherby, “Unknown” Montambo,
“Unknown” Schneider-Wiss, Steven Wertz, and Bruce
Rifenberg. See Dkt. 5, 5-11. In addition, he brings
claims against three medical staff-Nurse Angela Johnson,
Nurse Kimberly Malone, and Amanda Kersey, P.A.-and a hearings
officer, Thomas L'Heureux. Dkt. 5, at 11. He also
includes allegations against a number of “John
Doe” defendants. See Dkt. 5, at 48-58.
allegations of the complaint, briefly summarized, are as
follows. In December 2017, defendants Stewart and Dolan
implemented a Passover meal policy requiring participants to
sign up for Passover in advance. See Dkt. 5, at 14;
Dkt. 5-1, at 4. Under the terms of the Passover policy,
“Passover participants will not be
provided any other alternative meals during this period. Once
you sign up for Passover, you will be required to participate
for the entire Passover period.” Dkt. 5-1, at 4.
Defendants Stewart and Dolan also promulgated a Ramadan 2018
memo, regarding requirements for participating in Ramadan
during 2018. See Dkt. 5, at 14; Dkt. 5-1, at 7.
Notably, participants could opt-out from the Ramadan meal
program if they became ill during the month of Ramadan.
See Dkt. 5-1, at 7.
alleges that he signed up to observe Passover and was
subsequently demoted to MAX custody on January 29, 2018. Dkt.
5, at 14. On March 30, he received his first Passover meal
and “experienced vomiting, stomach pain, and
dizziness” after consuming the meal and continued to
have vomiting and gastrointestinal pain throughout the day.
Dkt. 5, at 15 (emphasis removed). Later in the day, he ate
his second Passover meal and experienced more of these
symptoms. See Dkt. 5, at 16. He then requested to be
taken off of the Passover diet, including filling out a kite
to the chaplain and religious diet request, as directed by
corrections staff. Dkt. 5, at 16.
waiting for responses to his kite and request, plaintiff
alleges that he continued to be served Passover meals and
that defendants refused to provide plaintiff with a regular
diet. See Dkt. 5, at 17. On March 31, plaintiff sent
an emergency grievance about his situation, to which
defendant Schuetter responded, telling plaintiff to
“kite the chaplain.” Dkt. 5, at 18-19; Dkt. 5-2,
at 1. Plaintiff alleges, however, that the chaplain would not
have been able to timely respond to a kite since it was the
weekend. See Dkt. 5, at 19-20.
he refers to as a “last resort” attempt to speak
to defendant Schuetter, plaintiff covered up his cell window.
See Dkt. 5, at 19. Defendant Schuetter did not take
action in response to plaintiff's Passover meal problems.
See Dkt. 5, at 20. Instead, defendant Villalobos
infracted plaintiff for covering his window, and defendant
Schuetter later demoted plaintiff's custody level.
See Dkt. 5-2, at 3, 5. Plaintiff continued to inform
corrections staff-including medical staff-of his alleged
inability to consume the Passover meals, to no avail.
See Dkt. 5, at 22-25. Later, defendants Villalobos
and Schneider-Wiss informed plaintiff that he had been
demoted because he had filed the emergency grievance.
See Dkt. 5, at 26-27; see also Dkt. 5-2, at
did not receive a response to his March 30 religious diet
request until April 3, when it was returned with a note that
he was not “currently on Kosher diet.” Dkt. 5-1,
at 13. However, corrections staff refused to acknowledge the
note, instead informing plaintiff that defendant Schuetter
had instructed them to disregard it because it was forged.
See Dkt. 5, at 32.
April 5, plaintiff allegedly fell unconscious in his cell due
to hunger. See Dkt. 5, at 34. Later that day,
plaintiff submitted another emergency grievance stating that
he could not eat the Passover diet. See Dkt. 5, at
34; Dkt. 5-2, at 17. Defendant Stroup then instructed
defendant Johnson to infract plaintiff and to continue to do
so every time that plaintiff declared a medical emergency.
Dkt. 5, at 36. Defendant Johnson then infracted plaintiff for
“pretend[ing] to be ill, despite a normal nursing
assessment” and “beg[inning] a hunger strike and
encourag[ing] his cell neighbor to go on hunger strike to
protest [Corrections] food in general, and Passover meals
specifically[.]” Dkt. 5, at 36; Dkt. 5-2, at 19. The
same day, the facility chaplain responded to plaintiff's
March 30 kite by telling him to “talk to
Medical.” See Dkt. 5-1, at 11.
alleges that he did not receive a regular meal again until
April 8, when Passover ended-at which point he had lost over
14 pounds. See Dkt. 5, at 32, 40. Plaintiff
subsequently requested to have his custody level promoted-a
request denied by defendant Schuetter. See Dkt. 5,
at 42. As a result of the hunger-strike infraction, plaintiff
was sanctioned with the loss of good-conduct time.
See Dkt. 5-2, at 38, 40; Dkt. 5-3, at 5.
brings 14 causes of action based on these factual
allegations, citing 42 U.S.C. §§ 1981, 1983,
1985(3), and 1986; the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”), 42
U.S.C. § 2000cc; and state tort law. He requests
declaratory and injunctive relief, damages, and costs.
See Dkt. 5, at 57-58.
plaintiff filed his complaint, defendants-other than
defendant Taylor-filed a motion to dismiss, including a
notice to plaintiff of the dispositive motion. See
Dkts. 42, 43. Plaintiff has filed a response, defendants have
filed a reply in support of their motion, and the matter is
ripe for decision. See Dkts. 52, 53.
Legal Standards for Motion to Dismiss
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to relief,
” “in order to ‘give the defendant fair
notice of what the . . . claim is and the grounds upon which
it rests[.]'” Fed.R.Civ.P. 8(a)(2); Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting
Conley v. Gibson, 355 U.S. 41, 47 (1957)). Although
“detailed factual allegations” are not necessary,
“[f]actual allegations must be enough to raise a right
to relief above the speculative level[.]” Id.
“[A] complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 555).
must accept as true all factual allegations-but not legal
conclusions-when reviewing whether a complaint survives a
motion to dismiss under Rule 12(b)(6). See Iqbal,
556 U.S. at 678. “When there are well-pleaded factual
allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.” Id. “The plausibility
standard is not akin to a ‘probability
requirement,' but it asks for more than a sheer
possibility that a defendant has acted unlawfully.”
Id. at 678 (quoting Twombly, 550 U.S. at
plaintiff is proceeding pro se, this Court must
“‘construe the pleadings liberally and . . .
afford the [plaintiff] the benefit of any doubt.'”
Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010)
(quoting Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1
(9th Cir. 1985) (en banc)). The claims will be dismissed only
where it “‘appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.'” Wilhelm v.
Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (quoting
Silva v. Di Vittorio, 658 F.3d 1090, 1101 (9th Cir.
2011)). Nevertheless, this Court will not supply essential
elements of the claim that were not initially pled. Pena
v. Gardner, 976 F.2d 469, 471-72 (9th Cir. 1992).
Court may consider materials properly submitted as part of a
complaint-such as plaintiff's attachments here-when
ruling on the motion to dismiss, without converting the
motion to dismiss to a summary judgment motion. See Lee
v. City of L.A., 250 F.3d 668, 688 (9th Cir. 2001).
Defendants Herzog and Haynes
seeks to bring claims against defendants Assistant Secretary
Herzog and Superintendent Haynes. See Dkt. 5, at
48-56. A supervisory official is liable under § 1983
only “if there exists either (1) his or her personal
involvement in the constitutional deprivation, or (2) a
sufficient causal connection between the supervisor's
wrongful conduct and the constitutional violation.”
Rodriquez v. Cty. of L.A., 891 F.3d 776, 798 (9th
Cir. 2018) (citation omitted). “‘The requisite
causal connection can be established . . . by setting in
motion a series of acts by others or by knowingly refus[ing]
to terminate a series of acts by others, which the
[supervisor] knew or reasonably should have known would cause
others to inflict a constitutional injury.'”
Id. at 798 (quoting Starr v. Baca, 652 F.3d
1202, 1207 (9th Cir. 2011)).
correctly note that the only reference in plaintiff's
complaint regarding defendant Haynes' participation is
that defendant Van Ogle signed off on a grievance response
“in place of” defendant Haynes. Dkt. 5, at 44;
Dkt. 5-2, at 36. And the reference in the complaint regarding
defendant Herzog's involvement appear to be that he
promulgated a policy related to lost privileges if a MAX
security inmate committed certain acts. See Dkt. 5,
at 13; Dkt. 5-1, at 2. Although promulgating a policy that is
so deficient that the policy “‘itself is a
repudiation of constitutional rights'” and is
“‘the moving force of the constitutional
violation'” may give rise to supervisory liability,
here plaintiff's complaint includes no allegations that
the MAX custody policy somehow deprived him of any
constitutional rights. See Hansen v. Black, 885 F.2d
642, 646 (9th Cir. 1989) (quoting Thompkins v. Belt,
828 F.2d 298, 303-04 (5th Cir. 1987)).
these allegations fail to establish any personal
participation in-or even any connection to-the alleged
deprivations at issue, all claims against defendants Herzog
and Haynes should be dismissed from this action.
Defendants DOC and SCCC
also seeks to bring claims against DOC and SCCC, whom he
states he names solely as defendants on his claims for
injunctive relief under RLUIPA. See Dkt. 52, at 31.
Eleventh Amendment prevents citizens from suing their own
state in federal court and-absent a state's consent to
suit-applies regardless of the nature of the relief sought
and extends to suits against state agencies. See Krainski
v. Nevada ex. rel Bd. of Regents, 616 F.3d 963, 967 (9th
Cir. 2010). Thus, the Eleventh Amendment bars plaintiff's
suit against DOC and SCCC-since they are state agencies being
sued in federal court. See Mayweathers v. Newland,
314 F.3d 1062, 1069-70 (9th Cir. 2002).
argues that because he may bring suit against state
officials for prospective injunctive relief, he may
bring suit against state agencies, as well.
See Dkt. 52, at 31. This argument is contrary to
established Ninth Circuit law. See Mayweathers, 314
F.3d at 1069. Moreover, plaintiff's argument that the
state has effectively waived sovereign immunity under RLUIPA
by accepting federal funding is not supported by his cited
authority. See Sharp v. Johnson, 669 F.3d 144, 155
(3d Cir. 2012) (“the [Supreme] Court held that States
did not consent to waive their sovereign immunity with
respect to RLUIPA suits for damages against State employees
in their official capacities”).
defendants DOC and SCCC are not subject to suit in federal
court-whether for damages under § 1983 or for injunctive
relief under RLUIPA-they should be dismissed from this
requests injunctive relief in the form of (1) restoration of
“good conduct time” that he lost because of the
hunger-strike infraction, (2) expungement of his
hunger-strike and window-coverage infractions, and (3) that
defendants be enjoined from “establishing and/or
applying religious guidelines in a coercive manner.”
Dkt. 5, at 57-58. Defendants argue that his claims for
injunctive relief are either not cognizable under Preiser
v. Rodriguez, 411 U.S. 475 (1973), that plaintiff lacks
standing to bring such claims, and that his request for
injunctive relief is impermissibly vague. Dkt. 42, at 6-7.
Preiser, a challenge to the constitutionality of
one's physical confinement that seeks a shortened
sentence is not properly brought under § 1983 but must
be brought as a petition for habeas corpus. See 411
U.S. at 500. This includes a request for restoration of
good-conduct time. See Wilkinson v. Dotson, 544 U.S.
74, 79 (2005). Because invalidation of plaintiff's
hunger-strike infraction would necessarily invalidate the
loss of his good-conduct time that resulted from that
infraction (see Dkt. 5-2, at 38, 40; Dkt. 5-3, at