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Smith v. Stewart

United States District Court, W.D. Washington, Tacoma

September 16, 2019

EDDIE LOUIS SMITH, III, Plaintiff,
v.
BELINDA D. STEWART, et al., Defendants.

          REPORT AND RECOMMENDATION

          J. RICHARD CREATURA UNITED STATES MAGISTRATE JUDGE.

         The 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.

         Plaintiff 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.

         This 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.

         BACKGROUND

         Plaintiff, 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.

         Plaintiff 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.

         The 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.

         Plaintiff 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.

         While 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.

         In what 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 5.

         Plaintiff 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.

         On 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.

         Plaintiff 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.

         Plaintiff 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.

         After 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.

         DISCUSSION

         I. Legal Standards for Motion to Dismiss

         A 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).

         A court 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 556).

         When a 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).

         This 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).

         II. Defendants Herzog and Haynes

         Plaintiff 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)).

         Defendants 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)).

         Because 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.

         III. Defendants DOC and SCCC

         Plaintiff 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.

         The 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).

         Plaintiff 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”).

         Because 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 action.

         IV. Injunctive Relief

         Plaintiff 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.

         Under 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 ...


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