Opinion
Civil No. 02cv2170 W (AJB).
February 23, 2006
Report and Recommendation re Motion for Summary Judgment [Doc. No. 50]
Plaintiff, an inmate currently incarcerated at Centinela State Prison and proceeding pro se, filed a Second Amended Complaint (SAC), setting forth several causes of action under 42 U.S.C. § 1983 in nine (9) counts for incidents that occurred during his incarceration at Calipatria State Prison from July 16, 2001 until October 3, 2002. Plaintiff alleges Constitutional violations under the First and Fourteenth Amendment and the Religious Land Use and Institutionalized Persons Act (RLUIPA) by Defendants. Defendants' have filed a Motion for Summary Judgment. Plaintiff was notified pursuant to Klingele/Rand by the Court on October 14, 2005 of his obligations to respond to Defendants' motion, and filed Oppositions to said motion on May 11, 2005 and November 7, 2005. For the reasons set forth below, the Court recommends Defendants' Motion for Summary Judgment be GRANTED.
Plaintiff's first Opposition was filed prior to the Court issuing the Klingele/Rand Order on October 12, 2005. As such, the Court permitted the Plaintiff to make a supplemental filing of any additional facts that were not previously set forth in the Opposition filed on May 11, 2005.
Background
I. Summary of FactsThe Plaintiff is a prisoner incarcerated at Centinela State Prison but was at all times during the alleged incidents referenced herein incarcerated at Calipatria State Prison. He is a member of the Nation of Gods and Earths (N.G.E.), also known as the Five Percenters, which the Plaintiff states is his religion.
On March 9, 2001, Correctional Officer Sanchez filed an incident report describing his observation of the Plaintiff exercising along with eight other inmates, all counting out their repetitions in eadence. At the end of each set, they yelled, "Kill, Kill, C/O, C/O", which is a common abbreviation for Correctional Officer.
The Plaintiff's cell was searched on July 16, 2001 (this is noted as July 17, 2001 on page 6 of Defendants' Memorandum of Points and Authorities for Motion for Summary Judgment) by Correctional Officers Okamoto and Limas from the Investigative Services Unit. They confiscated the plaintiff's copy of the "Book of Life", the primary text of the N.G.E.'s teachings. Sgt. Kimberli Roe reviewed the material and, based on her research into the subject, determined the material to be gang-related and declined to have it returned to Plaintiff. Sgt. Roe is currently a Correctional Sergeant with the California Department of Corrections (CDOC) working with the Investigation Services Unit at Calipatria. In 2001 and 2002, she worked for Calipatria as an Institutional Gang Investigator, evaluating whether inmates belonged to prison gangs or disruptive groups as defined by title 15 California Code Reg. § 3000.
Plaintiff's cell was again searched on July 23, 2001, this time by Correctional Officers Huey and Barajaz. His religious medallion, along with literature, both related and unrelated to the N.G.E., was confiscated. On the next day, July 24, 2001, Plaintiff was placed in administrative segregation.
According to a memorandum authored by Correctional Officer Richards after the July 17, 2001 search of Plaintiff's cell, he received information from two anonymous inmates that the Plaintiff was active in trying to form the "United African Nation." The alleged purpose of this group was to unite the Bloods and Crips, two existing disruptive groups, and to assault prison staff members at any sign of disrespect toward members of the group. An assault on a staff member occurred in the Plaintiff's housing unit on July 21, 2001.
On August 15, 2001, Sgt. Roe spoke by telephone with Ron Holvey of the New Jersey Department of Corrections. Sgt. Roe was advised that Mr. Holvey had a great deal of experience and insight on N.G.E. members, whom he described as militant, racist, and often violent. Mr. Holvey is the supervisor of the New Jersey Department of Corrections' Special Investigations Division, Intelligence Section and has extensive experience with incarcerated N.G.E. members after over twenty years with the New Jersey Department of Corrections (NJDOC) in various capacities. As supervisor of the Intelligence Section since 1994, Mr. Holvey has worked closely with gang intelligence investigators, acted as a primary liaison to all law enforcement agencies for gang related matters, and made recommendations for designation of gangs as Security Threat Groups (STG's). Holvey Decl., at 1-2.
Plaintiff's cell was searched once more on December 14, 2001 by Correctional Officers Okamoto and Richards. More N.G.E. related literature was confiscated, including another copy of the Book of Life, and another religious medallion. Some of the literature was allegedly for recruitment purposes and was produced with state-owned paper and the unauthorized use of the state's photocopy machines.
Plaintiff submitted a claim to the California Board of Control on September 9, 2002 (Claim No. #G-529663), to be compensated for property taken during the cell search conducted on July 23, 2001. The Board of Control denied this claim for lack of jurisdiction and for failure to file in a timely manner as the claim was filed more than one year after the property was taken. On October 3, 2002, Plaintiff submitted a second claim to the California Board of Control (Claim No. #G-530308) for property taken on July 16, 2001 where Plaintiff was notified on December 14, 2001 that said property would not be returned. The Board of Control referred this claim back to the CDC for resolution because the claim for monetary compensation was under $300.00. Plaintiff alleges that the CDC has taken no action to date on this claim.
On September 25, 2002, Plaintiff attended a Parole Consideration Hearing. He was determined to be unsuitable for parole. The Deputy District Attorney stated, "Despite his (Plaintiff's) statement that the Five Percenters is a good group, the representative from Calipatria says that it is a disruptive group at the prison." Compl. At 16.
The plaintiff was transferred to Centinela State Prison in November of 2004. II. History of N.G.E.
The N.G.E. began in New York City as an offshoot of the Nation of Islam (N.O.I.). The N.G.E. differs from the N.O.I. principally in that its members believe that God is not a separate entity but is manifested directly in black men; that black men are, in fact, gods. It is believed by N.G.E. members that the world's population is comprised of the 85% who worship a "mystery god", the 10% who keep them ignorant by teaching them to worship this mystery god, and the 5% who understand this and are thereby the righteous teachers whose role is to enlighten the 85% and lead the struggle against the 10%. The 5% are N.G.E. members, or Five Percenters, and the 10% are sometimes referred to as "Blue Eyed Devils" or "White Devils." There are two types of members according to Ron Holvey of the New Jersey Department of Corrections, those that became members as law abiding citizens and those that become members after incarceration. Decl. of Ron Holvey at 3.
III. N.G.E. Status as Disruptive Group/Religion
Defendants contend that the N.G.E. is not a religion, but rather an outline of political and philosophical goals. In support of this contention Defendants' cite The Five Percenter Newspaper headline in the November 1995 issue which states "We are not a religion." Defendants also contend that the N.G.E. is a disruptive group, based upon incidents within the prison, information from informants and observations and experience of Mr. Holvey set forth in his declaration. Specifically, Defendants cite information provided by other inmates that in early July 2001, Plaintiff put a hit out on another inmate, in late July that Plaintiff was trying to organize and unite two disruptive groups, the Bloods and Crips, to form the "United African Nation" to assault prison staff members at any perceived sign of disrespect towards group members, and that Plaintiff was making unauthorized copies of Five Percenter literature on Department of Corrections photocopy equipment using state owned paper. Decl. Sgt. Roe at 2-3. Defendants also cite in support of their classification of the N.G.E. as a disruptive group a report on March 9, 2001, where Plaintiff was observed exercising with other inmates chanting "Kill, Kill, C/O, C/O" in cadence at the end of each set, as well as an assault on a staff member in Plaintiff's housing unit on July 21, 2001. Defendants also rely upon the Roe and Holvey declarations which set forth the disruptive and violent history of incarcerated N.G.E. members in the New Jersey Department of Corrections.
Documents bearing a Five Percenter logo on state owned paper were found in Plaintiff's cell in December of 2001.
The Plaintiff refers to the N.G.E. as his religion and claims that N.G.E. members practice and advocate "a peaceful, family oriented, Islamic way of life, stressing education and self-determination." SAC at 14. He strongly denies that N.G.E. is a disruptive group or that he or any N.G.E. member has committed any violent, criminal, or disruptive act on behalf of the N.G.E with the CDC.
Procedural History
On December 5, 2002, this Court granted Plaintiff's Motion to Proceed In Forma Pauperis and sua sponte dismissed the Complaint for failing to state a claim under section 1983 upon which relief could be granted pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b)(1). Specifically, the Court found that Plaintiff failed to state a claim with regard to the seizure of his property as due process is not violated if the State provides an adequate post-deprivation remedy under the California Tort Claims Act. See Dec. 5, 2002 Order at 4 ( citing Hudson v. Palmer, 468 U.S. 517, 532, 535 (1984); Parratt v. Taylor, 451 U.S. 527, 543-44 (1981) ( overruled on other grounds by Daniels v. Williams, 474 U.S. 327 (1986); Quick v. Jones, 754 F.2d 1521, 1523-24 (9th Cir. 1985). The Court also found allegations against Defendants Garcia, Alameida and Houston failed to state a claim as there is no respondeat superior liability under 42 U.S.C. § 1983. See Dec. 5, 2002 Order at 4 ( citing Palmer v. Sanderson, 9 F.3d 1433, 1437-38 (9th Cir. 1993). Finally the Court found that Plaintiff's allegations relating to the time he spent in administrative segregation (Ad-Seg) also failed to state a claim because Plaintiff failed to demonstrate how placement in Ad-Seg created an atypical, significant deprivation that might conceivably create a liberty interest protected by the Constitution. See Dec. 5, 2002 Order at 6. Plaintiff Complaint was dismissed with leave to amend.
Plaintiff filed his First Amended Complaint (FAC) on January 8, 2003. In an Order dated February 14, 2003, the Court found Plaintiff's FAC to sufficiently state a claim under the Religious Land Use and Institutionalized Persons Act (RLUIPA), however, the Court dismissed the remainder of the Complaint for failing to state a claim upon which relief could be granted. See February 14, 2003 Order at 3. Specifically, the Court found that Plaintiff's claims that the charges that placed him in Ad-Seg were a violation of his due process rights failed to state a Fourteenth Amendment due process claim, because Plaintiff again failed to establish a liberty interest protected by the Constitution. The Court also found that Plaintiff failed to state facts sufficient to show the lack of an effective grievance procedure, stating that there is no Constitutional right to a timely or effective inmate grievance procedure.
Mann v. Adams, 855 F.2d 639, 640 (9th Cir 1988) ("The Supreme Court has held that "a State creates a protected liberty by placing substantive limitations on official discretion." Olim v. Wakinekona, 461 U.S. 238, 249 (1983). The Supreme Court has also held that to obtain a protectable right an individual must have "a legitimate claim of entitlement to it." Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7 (1979); see also Allen v. Board of Pardons, 792 F.2d 1404, 1407 (9th Cir. 1986), aff'd, 482 U.S. 369 (1987). There is no legitimate claim of entitlement to a grievance procedure. See Shango v. Jurich, 681 F.2d 1091, 1100 (7th Cir. 1982); Azeez v. DeRobertis, 568 F. Supp. 8, 11 (N.D.Ill. 1982). The unpublished policy statements create no protected liberty interest.")
Standard of Review
Federal Rule of Civil Procedure 56(c) authorizes the granting of summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The standard for granting a motion for summary judgment is essentially the same as for the granting of a directed verdict. Judgment must be entered "if, under the governing law, there can be but one reasonable conclusion as to the verdict." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986). However, "[i]f reasonable minds could differ," judgment should not be entered in favor of the moving party. Id.The parties bear the same substantive burden of proof as would apply at a trial on the merits, including plaintiff's burden to establish any element essential to his case. Liberty Lobby, 477 U.S. at 252; Celotex v. Catrett, 477 U.S. 317, 322 (1986); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). The moving party bears the initial burden of identifying the elements of the claim in the pleadings, or other evidence, which the moving party "believes demonstrates the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323; Adickes v. S.H. Kress Co., 398 U.S. 144 (1970); Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). "A material issue of fact is one that affects the outcome of the litigation and requires a trial to resolve the parties' differing versions of the truth." S.E.C. v. Seaboard Corp., 677 F.2d 1301, 1305-06 (9th Cir. 1982). More than a "metaphysical doubt" is required to establish a genuine issue of material fact. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
The burden then shifts to the nonmoving party to establish, beyond the pleadings, that there is a genuine issue for trial. Celotex, 477 U.S. at 324. To successfully rebut a properly supported motion for summary judgment, the nonmoving party "must point to some facts in the record that demonstrate a genuine issue of material fact and, with all reasonable inferences made in the plaintiff's favor, could convince a reasonable jury to find for the plaintiff." Reese v. Jefferson School Dist. No. 14J, 208 F.3d 736, 738 (9th Cir. 2000) ( citing FED. R. CIV. P. RULE 56; Celotex, 477 U.S. at 323; Anderson, 477 U.S. at 249); see also Paine v. City of Lompoc, 265 F.3d 975, 984 (9th Cir. 2001) ("[I]f a plaintiff cannot in its summary judgment motion factual submissions connect any particular defendant to the incidents giving rise to liability, that defendant is entitled to summary judgment and may not be required to go to trial.").
While the district court is "not required to comb the record to find some reason to deny a motion for summary judgment," Forsberg v. Pacific N.W. Bell Tel. Co., 840 F.2d 1409, 1417-18 (9th Cir. 1988), Nilsson v. Louisiana Hydraulic, 854 F.2d 1538, 1545 (9th Cir. 1988), the court may nevertheless exercise its discretion "in appropriate circumstances," to consider materials in the record which are on file, but not "specifically referred to." Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). However, the court need not "examine the entire file for evidence establishing a genuine issue of fact, where the evidence is not set forth in the moving papers with adequate references so that it could be conveniently found." Id.; see also Zoslaw v. MCA Distributing Corp., 693 F.2d 870, 883 (9th Cir. 1982) ("A party may not prevail in opposing a motion for summary judgment by simply overwhelming the district court with a miscellany of unorganized documentation.").
In ruling on a motion for summary judgment, the court need not accept legal conclusions "cast in the form of factual allegations." Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). "No valid interest is served by withholding summary judgment on a complaint that wraps nonactionable conduct in a jacket woven of legal conclusions and hyperbole." Vigliotto v. Terry, 873 F.2d 1201, 1203 (9th Cir. 1989); see also Nelson v. Pima Community College, 83 F.3d 1075, 1081-82 (9th Cir. 1996) (stating that "mere allegation and speculation do not create a factual dispute for purposes of summary judgment").
Discussion
In order to state a cause of action under 42 U.S.C. § 1983, the plaintiff is required to show (1) a violation of rights protected by the Constitution or created by federal statute, that was (2) proximately caused by defendants acting under color of state law. Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991), Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001) (en banc) (stating that § 1983 "creates a private right of action against individuals who, acting under color of state law, violate federal constitutional or statutory rights."). "Qualified immunity, however, shields § 1983 defendants `[f]rom liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Id. ( quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
I. Petitioner's Rights Under RLUIPA
Section 3 of RLUIPA provides, in relevant part, that "[n]o 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 establishes that the burden furthers "a compelling governmental interest," and does so by "the least restrictive means." 42 U.S.C. § 2000cc-1(a)(1)-(2). RLUIPA defines "religious exercise" to include "any exercise of religion, whether or not compelled by, or central to, a system of religious belief." § 2000cc-5(7)(A). "[T]he `exercise of religion' often involves not only belief and profession but the performance of . . . physical acts [such as] assembling with others for a worship service [or] participating in sacramental use of bread and wine. . . ." Smith, 494 U.S. at 877. Section 3 covers state-run institutions-mental hospitals, prisons, and the like-in which the government exerts a degree of control unparalleled in civilian society and severely disabling to private religious exercise. 42 U.S.C. § 2000cc-1(a); § 1997; see Joint Statement S7775 ("Institutional residents' right to practice their faith is at the mercy of those running the institution."). Cutter v. Wilkinson, 125 S. Ct. 2113, 2122 (2005). RLUIPA thus protects institutionalized persons who are unable freely to attend to their religious needs and are therefore dependent on the government's permission and accommodation for exercise of their religion. Id. "A person may assert a violation of [RLUIPA] as a claim or defense in a judicial proceeding and obtain appropriate relief against a government." § 2000cc-2(a).
Section 3 applies when "the substantial burden [on religious exercise] is imposed in a program or activity that receives Federal financial assistance," such as the federal funds California accepts for the operation of its prisons. § 2000cc-1(b)(1). The parties do not dispute that RLUIPA applies to California prisons.
Under RLUIPA, Plaintiff bears the initial burden of going forward with evidence to demonstrate a prima facie claim that CDC's policy of confiscating N.G.E. material and designating the group to be a security threat to constitute a substantial burden on the exercise of his religious beliefs. See 42 U.S.C. § 2000cc-2(b). If the Plaintiff is able to meet this burden, then CDC bears the burden of persuasion to prove that any substantial burden on Plaintiff's exercise of his religious beliefs is both "in furtherance of a compelling governmental interest" and the "least restrictive means of furthering that compelling governmental interest." 42 U.S.C. § 2000cc-1(a); § 2000cc-2(b).
Although RLUIPA does not define what constitutes a "substantial burden" on religious exercise, see 42 U.S.C. § 2000cc-5, in the context of a land use suit brought under RLUIPA, the Ninth Circuit has explained that "for a land use regulation to impose a `substantial burden,' it must be `oppressive' to a `significantly great' extent. That is, a `substantial burden' on `religious exercise' must impose a significantly great restriction or onus upon such exercise," San Jose Christian Coll. v. City of Morgan Hill, 360 F.3d 1024, 1034 (9th Cir. 2004). In addition, the Supreme Court has found a substantial burden as "where the state . . . denies [an important benefit] because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs." Thomas v. Review Bd. of the Ind. Employment Sec. Div., 450 U.S. 707, 717-18 (1981) (ruling in First Amendment context). Although such "compulsion may be indirect, the infringement upon free exercise is nonetheless substantial." Id. at 718. Supreme Court and Ninth Circuit precedent also clearly hold that punishments to coerce a religious adherent to forgo her or his religious beliefs is an infringement on religious exercise. See e.g., Sherbert v. Verner, 374 U.S. 398, 404 (1963) (reasoning that forcing someone "to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand. . . . puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship"); May v. Baldwin, 109 F.3d 557, 563 (9th Cir. 1997) (noting "that `putting substantial pressure on an adherent to modify his behavior and to violate his beliefs' infringes on the free exercise of religion") ( quoting Thomas, 450 U.S. at 718).
Section 2000cc-2 provides that:
If a plaintiff produces prima facie evidence to support a claim alleging a violation of the Free Exercise Clause or a violation of section 2000cc of this title, the government shall bear the burden of persuasion on any element of the claim, except that the plaintiff shall bear the burden of persuasion on whether the law (including a regulation) or government practice that is challenged by the claim substantially burdens the plaintiff's exercise of religion. 42 U.S.C. § 2000cc-2(b).
By its terms, RLUIPA is to be construed broadly in favor of protecting an inmate's right to exercise his religious beliefs. 42 U.S.C. § 2000cc-3(g) ("This chapter shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution."). However, because RLUIPA is a statute of relatively recent vintage, there is little precedent interpreting its key terms. As such, the Court finds the most prudent approach to first determine whether Defendants' would be entitled to qualified immunity from Plaintiff's RLUIPA claims.
II. Qualified Immunity
Qualified immunity shields § 1983 defendants from liability for civil damages where their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001) ( en banc) ( quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (alteration in original)). "In a suit against an officer for an alleged violation of a [statutory or] constitutional right, the requisites of a qualified immunity defense must be considered in proper sequence. Where the defendant seeks qualified immunity, a ruling on that issue should be made early in the proceedings so that the costs and expenses of trial are avoided where the defense is dispositive." Saucier v. Katz, 533 U.S. 194, 198 (2001). Because qualified immunity entitles government officials to "an immunity from suit rather than a mere defense to liability," Mitchell v. Forsyth, 472 U.S. 511, 526 (1985), it is essential such claims be resolved as quickly as possible. Anderson v. Creighton, 483 U.S. 635 (1987); Harlow v. Fitzgerald, 457 U.S. 800, 817-18 (1982); Saucier, 533 U.S. 194, 200 (2001) ("Qualified immunity is an `entitlement not to stand trial or face the other burdens of litigation.'") (citation omitted). Therefore, qualified immunity should be determined "at the earliest possible point in the litigation." Act Up!/Portland v. Bagley, 988 F.2d 868, 873 (9th Cir. 1993); Liston v. County of Riverside, 120 F.3d 965, 975 (9th Cir. 1997); Saucier, 533 U.S.at 198-200.
On motion for summary judgment under Saucier, the first step in the qualified immunity analysis is "to consider the materials submitted on support of, and in opposition to, summary judgment, in order to decide whether a constitutional right would be violated if all facts are viewed in favor of the party opposing summary judgment." Saucier v. Katz, 533 U.S. 194 (2001); Jeffers v. Gomez, 267 F.3d 895, 909 (9th Cir. 2001). In performing the initial inquiry, the Court must resolve all disputed factual questions and draw all inferences in Plaintiff's favor. Therefore, assuming the parties' submissions create a triable issue of whether a constitutional violation occurred, the second question is whether the right was clearly established such that the preexisting law provided Defendants with fair warning that their conduct was unlawful. Saucier, 533 U.S. at 201. In other words, the Court must "determine whether the preexisting law provided the defendants with `fair warning' that their conduct was unlawful." Ceballos v. Garcetti, 361 F.3d 1168, 1179-80 (9th Cir. 2004) ( citing Hope v. Pelzer, 536 U.S. 730, 741 (2002).
A right is clearly established "[i]f the only reasonable conclusion from binding authority [was] that the disputed right existed." Blueford v. Prunty, 108 F.3d 251, 255 (9th Cir. 1997). "The contours of the right must be sufficiently clear that [at the time the allegedly unlawful action is taken] a reasonable official would understand that what he is doing violates that right." Mendoza v. Block, 27 F.3d 1357, 1361 (9th Cir. 1994) ( quoting Anderson, 483 U.S. at 640). For a right to be clearly established, "the very action in question" need not "ha[ve] previously been held unlawful"; instead, the "unlawfulness must be apparent" in light of pre-existing law. Anderson, 483 U.S. at 640.
As set forth above, many of RLUIPA's terms were not defined by the statute and there is little precedent interpreting these term. The statute was signed into law in 2000. The confines of these rights are further complicated by the fact that RLUIPA's predecessor, the Religious Freedom Restoration Act (RFRA), which sought to protect many of the same rights, was found to be unconstitutional by the Supreme Court. City of Boerne v. Flores, 117 S. Ct. 2157 (1997) (finding RFRA unconstitutional exercise of Congress' enforcement power under section 5 of the Fourteenth Amendment); Anderson v. Angelone, 123 F.3d 1197, 1198 n. 2 (9th Cir. 1997) (noting unconstitutionality of RFRA per City of Boerne). In fact, the RLUIPA statute was on appeal from the ruling by the Eastern District of California on July 2, 2001, until the case was decided by the Ninth Circuit on December 27, 2002, and certiorari was denied by the Supreme Court on October 6, 2003. Based upon the foregoing, the Court finds that the contours of the rights created under RLUIPA were not sufficiently clear at the time of the allegedly unlawful conducted, from July 16, 2001 until October 3, 2002, to provide Defendants with fair warning that their conduct was unlawful. In the circumstances Defendants' faced, Mr. Holvey's information, Plaintiff's conduct on March 9, 2001, the staff assault and the lack of clarity of scope under the newly passed statute that was under appeal, a reasonable officer could not reasonably understand he was violating Plaintiff's rights, if any, in taking the actions described in this case. As such, the Court finds that Defendants are entitled to qualified immunity from Plaintiff's RLUIPA claims.
Mayweathers v. Terhune, 2001 WL 804140 (E.D. Cal. 2001) (unreported case).
Mayweathers v. Newland, 314 F.3d 1062 (9th Cir 2002)
Alameida v. Mayweathers, 540 U.S. 815 (2003).
III. Prisoner's First Amendment Rights
"The right to exercise religious practices and beliefs does not terminate at the prison door. The free exercise right, however, is necessarily limited by the fact of incarceration, and may be curtailed in order to achieve legitimate correctional goals or to maintain prison security." "[A] prison inmate retains those First Amendment rights that are not inconsistent with his [or her] status as a prisoner or with the legitimate penological objectives of the corrections system." Pell v. Procunier, 417 U.S. 817, 822 (1974); see also Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985). A regulation that impinges on First Amendment rights "is valid if it is reasonably related to a legitimate penological interests." Turner v. Safley, 482 U.S. 78, 89 (1987); see also Shaw v. Murphy, 532 U.S. 223, 229 (2001); Lewis v. Casey, 518 U.S. 343, 361 (1996); Morrison v. Hall, 261 F.3d 896, 901 (9th Cir. 2001).
McElyea v. Babbitt, 833 F.2d 196, 197 (9th Cir. 1987) ( per curiam) (citations omitted); see also O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987); Ward v. Walsh, 1 F.3d 873, 876 (9th Cir. 1993); Friend v. Kolodzieczak, 923 F.2d 126, 127 (9th Cir. 1991).
In determining whether a prison regulation is reasonably related to a legitimate penological interest, the Court should consider the following factors: (1) whether there is a valid, rational connection between the regulation and the interest used to justify the regulation; (2) whether prisoners retain alternative means of exercising the right at issue; (3) the impact the requested accommodation will have on inmates, prison staff, and prison resources generally; and (4) whether the prisoner has identified easy alternatives to the regulation which could be implemented at a minimal cost to legitimate penological interests. See Shaw, 532 U.S. at 229-30; Turner, 482 U.S. at 89-91; Morrison, 261 F.3d at 901. Prison regulations may be content-based when the regulation is related to legitimate security concerns, but regulations must otherwise be content-neutral. Thornburgh, 490 U.S. at 415-16 (1989); Turner, 482 U.S. at 90, 93; Mauro, 188 F.3d at 1059.
The first of these factors is the most important. See Morrison, 261 F.3d at 901; Prison Legal News v. Cook, 238 F.3d 1145, 1151 (9th Cir. 2001); Walker v. Sumner, 917 F.2d 382, 385 (9th Cir. 1990). Legitimate penological interest include the preservation of internal order and discipline, the maintenance of institutional security against escape or unauthorized entry, and the rehabilitation of the prisoners.
McElyea v. Babbitt, 833 F.2d 196, 197 (9th Cir. 1987) (per curiam) (citations omitted); see also O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987); Ward v. Walsh, 1 F.3d 873, 876 (9th Cir. 1993); Friend v. Kolodzieczak, 923 F.2d 126, 127 (9th Cir. 1991).
In order to plead a free exercise claim, the Plaintiff must allege facts which show that Defendants "burdened the practice of his religion, by preventing him from engaging in conduct which is mandated by his faith, without any justification reasonably related to legitimate penological interests." Freeman v. Arpaio, 125 F.3d 732, 736 (9th Cir. 1997) (footnote omitted); Turner v. Safely, 482 U.S. 78, 89 (1987). Plaintiff has, however, failed in the instant case to alleged that Defendants removing his religious property did so without a legitimate penological interest. Plaintiff states in his complaint that he was informed by prison officials that they had received confidential information that Plaintiff was organizing a new prison gang whose purpose was to attack correctional officers. Compl. at 9-10. Plaintiff was also informed that his religious material was taken because it was tied to this new prison gang. Id. With respect to the connection between the regulation of religious exercise and the legitimate penological interest, evidence concerning anticipated problems, even though no actual problems have arisen from the plaintiffs' conduct, is sufficient to meet this standard. See Friedman, 912 F.2d at 332-33; Standing Deer, 831 F.2d at 1528. Since Plaintiff has only alleged that there is a lack of a rational relationship between a legitimate penological interest and the prison regulation and has failed to present any evidence to support his allegations, the Court recommends Defendants' Motion for Summary Judgment Be GRANTED as to Plaintiff's First Amendment claims.
In light of the evidence submitted in support of a legitimate penological interest in security, the Ninth Circuit has upheld policies prohibiting growing beards, see Friedman v. Arizona, 912 F.2d 328, 331-32 (9th Cir. 1990); preaching of racial hatred and violence, see McCabe v. Arave, 827 F.2d 634, 637 (9th Cir. 1987); wearing headbands, see Standing Deer v. Carlson, 831 F.2d 1525, 1528-29 (9th Cir. 1987); attendance of sweat-lodge ceremonies by Native American prisoners in disciplinary segregation, see Allen v. Toombs, 827 F.2d 563, 568 (9th Cir. 1987); and inmate-led religious services, see Anderson, 123 F.3d at 1198-99. In light of the evidence of generalized safety concerns, the Ninth Circuit upheld a prohibition on prisoners keeping candles in their cells. See Ward, 1 F.3d at 879. The Ninth Circuit also concluded that the interest in a simplified food service may allow a prison to provide a pork-free diet, instead of a fully kosher diet, to an Orthodox Jewish inmate. See id. at 877-79. Prison officials have a legitimate interest in getting inmates to their work and educational assignments. See Mayweathers, 258 F.3d at 938.
IV. Plaintiff's Claims Under the Fourteenth Amendment 1. Equal Protection Claims
Prisoners are protected under the Equal Protection Clause of the Fourteenth Amendment from intentional discrimination on the basis of their religion. See Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir. 1997) ( citing Cruz, 405 U.S. at 321-22). To establish a violation of the Equal Protection Clause, the prisoner must present evidence of discriminatory intent. See Washington v. Davis, 426 U.S. 229, 239-40 (1976); Freeman, 125 F.3d at 737.
Plaintiff's complaint alleged that Defendants' repeated searches of his cell and seizures of N.G.E. material, as well as Defendants alleged targeting and harassment of all N.G.E. members violated his constitutional rights under the equal protection clause of the Fourteenth Amendment. SAC at 9. Because Plaintiff has alleged an equal protection violation, the Defendants' mere compliance with the procedural requisites of state law would not shield them from liability under section 1983 if Plaintiff can show that the Defendants were motivated by the desire to target and harass Plaintiff for his religious beliefs with the cell searches and seizures. Tanner v. Heise, 879 F.2d 572, 580 (9th Cir. 1989). That is, if the Defendants would not have searched Plaintiff's cell but for their animus against Plaintiff's particular religious beliefs and expression, Plaintiff may prevail regardless of the procedural propriety of the searches and seizures under state law. See, e.g., Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886); see also Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1316-17 (9th Cir. 1989).
Defendants, however, argue that Plaintiff's religious freedom and equal protection rights are subject to restrictions and limitations necessitated by legitimate penological interests. Defendants' Motion at 13 ( citing Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir 1997)) ( citing Bell v. Wolfish, 441 U.S. 520, 545-46 (1979). Furthermore, Defendants' contend that in order for Plaintiff to succeed on an equal protection claim under 42 U.S.C. § 1983, Plaintiff must show that Defendants intentionally acted in a discriminatory manner. Defendants' argue that Plaintiff cannot meet this burden, because Defendants acted with a legitimate, non-discriminatory motive, i.e. the disruptive activities of Plaintiff and the recruitment of new N.G.E. members, when the seized Plaintiff's property and placed him in administrative segregation. Defendants' Motion at 14.
The Supreme Court has recognized that experienced prison administrators, and not judges, are in the best position to supervise the daily operations of prisons across this country. See, e.g., Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 125 (1977) (courts must give "appropriate deference to the decisions of prison administrators"); Procunier v. Martinez, 416 U.S. 396, 405 (1974) ("[C]ourts are ill equipped to deal with the increasingly urgent problems of prison administration and reform."(limited on other grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989)). Furthermore, the Supreme Court made clear that the Turner deferential standard of review would apply across-the-board to inmates' constitutional challenges to prison policies. Johnson v. California, 543 U.S. 499, 530 (2005) ( citing Washington v. Harper, 494 U.S. 210, 224 (1990) (stating, ". . . the standard of review we adopted in Turner applies to all circumstances in which the needs of prison administration implicate constitutional rights."). Consistent with that understanding, the Supreme Court has applied Turner's standard to a host of constitutional claims by prisoners, regardless of the standard of review that would apply outside prison walls. As such, Courts should uphold prison regulations that impinge on those constitutional rights if they reasonably relate to legitimate penological interests. Johnson v. California, 543 U.S. 499, 530 (2005) ( citing Turner, 482 U.S. at 89). It should be left to prison administrators rather than courts to "`make the difficult judgments concerning institutional operations,'" Turner, 482 U.S. at 89(quoting Jones v. North Carolina Prisoner's Labor Union, 433 U.S. 119, 128 (1977).
Johnson v. California, 543 U.S. 499 ( citing Overton v. Bazzetta, 539 U.S. 126, 132 (2003) (the right to association under the First and Fourteenth Amendments); Shaw v. Murphy, 532 U.S. 223, 228-29 (2001) (the right to communicate with fellow inmates under the First Amendment); Lewis v. Casey, 518 U.S. 343, 361 (1996) (the right of access to the courts under the Due Process and Equal Protection Clauses); Washington v. Harper, 494 U.S. 210, 223-25 (1990) (the right to refuse forced medication under the Due Process Clause); Thornburgh v. Abbott, 490 U.S. 401, 413-14 (1989) (the right to receive correspondence under the First Amendment); O'Lone v. Estate of Shabazz, 482 U.S. 342, 349-350 (1987) (the right to free exercise of religion under the First Amendment).
Under the Turner factors set forth and discussed in Section III, this Court finds that the legitimate penological interests of maintaining institutional security and preserving internal order and discipline clearly satisfy the first and third Turner factors, since evidence concerning anticipated problems, even though no actual problems have arisen from the plaintiffs' conduct, is sufficient to satisfy these factors. See Friedman, 912 F.2d at 332-33; Standing Deer, 831 F.2d at 1528. With regard to the second and fourth Turner factors, the Court finds that Plaintiff was without these materials for a relatively short period of time as he had duplicative copies and Plaintiff has failed to suggest any easy alternatives to the regulation which could be implemented at a minimal cost to legitimate penological interests. See Shaw, 532 U.S. at 229-30; Turner, 482 U.S. at 89-91; Morrison, 261 F.3d at 901. As such, the Court recommends Defendants' Motion for Summary Judgment Be GRANTED as to Plaintiff's Equal Protection claims.
The first of these factors is the most important. See Morrison, 261 F.3d at 901; Prison Legal News v. Cook, 238 F.3d 1145, 1151 (9th Cir. 2001); Walker v. Sumner, 917 F.2d 382, 385 (9th Cir. 1990).
2. Procedural Due Process Claims
"Prisoners may . . . not be deprived of life, liberty or property without due process of law . . . [T]he fact that prisoners retain rights under the Due Process Clause in no way implies that these rights are not subject to restrictions imposed by the nature of the regime to which they have been lawfully committed. . . . [T]here must be mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application." Wolff v. McDonnell, 418 U.S. 539, 556 (1974) ( citations omitted); see also Sandin v. Conner, 515 U.S. 472, 478 (1995) (" Wolff's contribution . . . derive[s] . . . from its intricate balancing of prison management concerns with prisoners' liberty in determining the amount of process due."). Due Process Clause protection may arise from two-sources: the Due Process Clause itself and state law. A. Interests Protected by the Constitution
See Hewitt v. Helms, 459 U.S. 460, 466 (1983); Meachum v. Fano, 427 U.S. 215, 224-27 (1976); Wolff v. McDonnell, 418 U.S. 539, 557-58 (1974); Smith v. Sumner, 994 F.2d 1401, 1405 (9th Cir. 1993). See Ingraham v. Wright, 430 U.S. 651, 672 (1977); Bd. of Regents v. Roth, 408 U.S. 564, 569 (1972); Neal v. Shimoda, 131 F.3d 818, 827 (9th Cir. 1997); Erickson v. United States, 67 F.3d 858, 861 (9th Cir. 1995); Schroeder v. McDonald, 55 F.3d 454, 462 (9th Cir. 1995); Tellis v. Godinez, 5 F.3d 1314, 1316 (9th Cir. 1993).
When deciding whether the Constitution itself protects an alleged liberty interest of a prisoner, the court should consider whether the practice or sanction in question "is within the normal limits or range of custody which the conviction has authorized the State to impose." Meachum v. Fano, 427 U.S. 215, 225 (1976); see also Hewitt v. Helms, 459 U.S. 460, 466-70 (1983). Using this standard, the Supreme Court has concluded that the Due Process Clause itself does not grant prisoners a liberty interest in good-time credits, see Wolff v. McDonnell, 418 U.S. 539, 557 (1974); in remaining in general population, see Sandin v. Conner, 515 U.S. 472, 485-86 (1995) and Hewitt, 459 U.S. at 468; in not losing privileges, Baxter v. Palmigiano, 425 U.S. 308, 323 (1976); in staying at a particular institution, see Meachum, 427 U.S. at 225-27; or in remaining in a prison in a particular state, see Olim v. Wakinekona, 461 U.S. 238, 245-47 (1983).
B. Interests Protected by State Law
In Sandin v. Conner, the Supreme Court held that state law creates liberty interests deserving protection under the Fourteenth Amendment's Due Process Clause only when the deprivation in question (1) restrains the inmate's freedom in a manner not expected from their sentence and (2) "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." 515 U.S. 472, 483-84 (1995); see also Neal v. Shimoda, 131 F.3d 818, 827-28 (9th Cir. 1997); Mujahid v. Meyer, 59 F.3d 931, 932 (9th Cir. 1995) ( per curiam). The "atypicality" prong of the analysis requires not merely an empirical comparison, but turns on the importance of the right taken away from the prisoner. See Carlo v. City of Chino, 105 F.3d 493, 499 (9th Cir. 1997). As such, Sandin "refocused the test for determining the existence of a liberty interest away from the wording of prison regulations and toward an examination of the hardships caused by the prison's challenged action relative to `the basic conditions' of life as a prisoner." Sandin also reminds federal courts that they should be circumspect when asked to intervene in the operation of state prisons. See Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995).
Mitchell v. Dupnik, 75 F.3d 517, 522 (9th Cir. 1996) ( quoting Sandin, 515 U.S. at 485); see also Keenan v. Hall, 83 F.3d 1083, 1088-89 (9th Cir. 1996), amended by 135 F.3d 1318 (9th Cir. 1998); cf. Jacks v. Crabtree, 114 F.3d 983, 986 n. 4 (9th Cir. 1997) (suggesting that both regulatory language and the nature of the deprivation are relevant to the liberty interest inquiry).
i. Administrative Segregation
When a prisoner is placed in administrative segregation, prison officials must, within a reasonable time after the prisoner's placement, conduct an informal, non-adversary review of the evidence justifying the decision to segregate the prisoner. See Hewitt v. Helms, 459 U.S. 460, 476 (1983); Mendoza v. Blodgett, 960 F.2d 1425, 1430 (9th Cir. 1992); Toussaint v. McCarthy, 801 F.2d 1080, 1100 (9th Cir. 1986). The Supreme Court has stated that five days is a reasonable time for the post-placement review. See Hewitt, 459 U.S. at 477. Plaintiff's review was conducted the very next day. SAC at 12. Before the review, the prisoner must receive some notice of the charges and be given an opportunity to respond to the charges. See id. at 476; Mendoza, 960 F.2d at 1430-31; Toussaint, 801 F.2d at 1100. Plaintiff has not alleged anywhere in the SAC that he was not provided notice or an opportunity to respond.
Plaintiff claims in the SAC, the Defendants' failure to provide him with "the written materials `allegedly' confiscated from [his] cell on July 23, 2001, used to justify [his] AD/SEG placement" amounts to a due process violation. A prisoner, however, is not entitled to "written notice of charges, representation of counsel or counsel-substitute, an opportunity to present witnesses . . . [,] a written decision describing the reasons for placing the prisoner in administrative segregation . . . [, or] disclose the identity of any person providing information leading to the placement of a prisoner in administrative segregation." Toussaint, 801 F.2d at 1101 (citations omitted).
Furthermore, pursuant to Sandin, a prisoner must allege that the change in confinement imposed an "atypical and significant hardship . . . in relation to the ordinary incidents of prison life." Sandin, 515 U.S. at 484. In the instant case, Plaintiff has once again failed to establish a liberty interest protected by the Constitution because he has not alleged "atypical, significant deprivation" related to his placement in Ad-Seg. Specifically, Plaintiff has failed to allege how his placement in Ad-Seg resulted in a major disruption in his environment. However, this Court need not resolve whether conditions in the Ad-Seg constitute an "atypical or significant hardship" because even if such conditions did give rise to a protected liberty interest, Plaintiff received all the protection required by the Due Process Clause. As such, the Court finds that Plaintiff has failed to state a liberty interest in remaining free of Ad-Seg and has failed to state a due process claim, and therefore, recommends Defendants' Motion for Summary Judgment Be GRANTED as to Plaintiff's Ad-Seg due process claim.
Similar claims appearing in Plaintiff's FAC were similarly dismissed in an Order dated February 13, 2003 by this Court.
ii. Deprivation of Property
Plaintiff alleged in his SAC in counts 1, 2, 3, 5, 7 and 8 that prison officials destroyed or confiscated his personal property in violation of the Due Process Clause of the fourteenth amendment. SAC at 7-11, 13, 16 and 17. The Court disagrees. The negligent, unauthorized or intentional deprivation of a prisoner's property fails to state a claim under 42 U.S.C. § 1983 if the state has an adequate post deprivation remedy. A post deprivation tort remedy satisfies due process considerations. See Zinermon v. Burch, 494 U.S. 113, 128-29 (1990). By enacting the California Tort Claims Act, Cal. Gov't Code §§ 810- 995, the State of California waived its sovereign immunity from liability and consented to be sued in California courts, see Cal.Gov't Code §§ 815.2, 945, and §§ 900-915 set out the procedure for making claims against public entities, thereby providing an adequate post deprivation remedy. See Parratt v. Taylor, 451 U.S. 527, 543 (1981), rev'd on other grounds, Daniels v. Williams, 474 U.S. 327 (1986). Because California law provides an adequate post deprivation remedy, the district properly granted summary judgment on this claim.
Negligent conduct by a prison official is insufficient to state a claim under the Due Process Clause. See Davidson v. Cannon, 474 U.S. 344, 347 (1986); Daniels v. Williams, 474 U.S. 327, 330-31 (1986); Wood v. Ostrander, 879 F.2d 583, 587 (9th Cir. 1989); Davis v. City of Ellensburg, 869 F. 2d 1230, 1235 (9th Cir. 1989); Woodrum v. Woodward County, 866 F.2d 1121, 1126 (9th Cir. 1989).
Hudson v. Palmer, 468 U.S. 517, 533 (1984); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994); Zinermon v. Burch, 494 U.S. 113, 129-32 (1990); Parratt v. Taylor, 451 U.S. 527, 543-44 (1981), overruled on the other grounds by Daniels v. Williams, 474 U.S. 327 (1986); Taylor v. Knapp, 871 F.2d 803, 805 (9th Cir. 1989); New Alaska Dev. Corp. v. Guetschow, 869 F.2d 1298, 1305 (9th Cir. 1989).
Plaintiff also alleges in count 8 of the SAC, a violation of his due process rights with regard to the Board of Control Claim No. #G-530308, which was delegated back to the CDC on October 17, 2002, because it was less than $300.00. SAC at 17. Plaintiff argues that the CDC's failure to take action on this claim amounts to a due process violation. The Court, however, is not persuaded by Plaintiff's argument as California Administrative Code, title 15, sections 3084.7 and 3193 clearly provide an adequate post-deprivation remedy. Regardless of whether Plaintiff pursued available remedies is irrelevant as an adequate post-deprivation remedy exists under California law. As such, Plaintiff's claims regarding the seizure of his property fail to state a claim under the due process clause and the Court, therefore, recommends Defendants' Motion for Summary Judgment Be GRANTED as to Plaintiff's property related due process claims.
iii. Effect on Parole
Plaintiff contends that his term in segregated housing implicates a liberty interest because it affected the length of his prison sentence. SAC at 16. Specifically, Plaintiff contends that during the Parole Consideration Hearing in the Matter of Life Term Parole held by the Board on September 25, 2002, that documents and allegations placed in his C-file stating that Plaintiff was a member of the disruptive group N.G.E., resulted in the Board's determination that Plaintiff was unsuitable for parole and would not be considered again for a period of four (4) years. Id. Defendants argue, and the Court agrees, that Plaintiff's claim does not create a recognized liberty interest sufficient to invoke the protections of the Due Process Clause. The Court is not moved by Plaintiff's claims that the State's action will inevitably affect the duration of his sentence, as nothing requires the parole board to deny parole in the face of a misconduct record or to grant parole in its absence, even though misconduct is a relevant consideration. See Sandin v. Conner, 515 U.S. at 487. The decision to release a prisoner rests on a myriad of considerations and a prisoner is afforded procedural protection at the parole hearing in order to explain the circumstances behind a record of misconduct. Id. The chance that a finding of misconduct will alter the balance is simply too attenuated to invoke the procedural guarantees of the Due Process Clause. Id.
With regard to Defendants' argument that Plaintiff may not challenge the denial of parole in a civil rights action for damages under section 1983 because such a challenge necessarily implicates the validity of the denial of parole, and therefore, the length or duration of Plaintiff's sentence. The Court does not agree. The Supreme Court has held that a prisoner may use § 1983 to challenge the conditions of his confinement, but habeas corpus is the only avenue for a challenge to the fact or duration of confinement, at least when the remedy requested would result in the prisoner's immediate or speedier release from that confinement. Wilkinson v. Dotson, 125 S. Ct. 1242 (2005) ( Emphasis added). The Supreme Court sets forth an implied exception to § 1983's coverage where the claims seek, but not where they simply relate to, core habeas corpus relief, i.e., where a state prisoner requests present or future release. Preiser v. Rodriguez, 411 U.S. 475, 499-500 (1973). Section 1983 remains available for procedural challenges where success in the action would not necessarily spell immediate or speedier release for the prisoner. Wolff v. McDonnell, 418 U.S. 539 (1974) ( Emphasis added). However, habeas remedies do not displace § 1983 actions where success in the civil rights suit would not necessarily vitiate the legality of state confinement, which was not previously invalidated. Edwards v. Balisok, 520 U.S. 641 (1997).
In the instant action, Plaintiff's challenge would not necessarily shorten his sentence, but would rather result in him obtaining a new parole hearing. Since Plaintiff would likely only receive a new hearing rather than being found innocent of the allegations and reports in his C-file, Plaintiff may bring this claim under section 1983. For the reasons set forth above, the Court recommends that Defendants Motion for Summary Judgment be GRANTED as to Plaintiff's claims that his Ad-Seg placement affected the length of his sentence.
In the parole context, the divide between habeas and § 1983 civil rights actions, grows ever murkier with respect to the question of whether a prisoner should proceed pursuant to 28 U.S.C. § 2254 or under 42 U.S.C. § 1983. In Docken v. Chase, the Ninth Circuit recently held that "when prison inmates seek only equitable relief in challenging aspects of their parole review, that, so long as they prevail, could potentially affect the duration of their confinement, such relief is available under the federal habeas statute." 393 F.3d 1024, 1031 (9th Cir. 2004) (Emphasis added).
IV. Injunctive Relief Claims
In his complaint, Plaintiff seeks an injunction preventing Defendants' "destruction of Plaintiff's property; restriction of Plaintiff's rights to free speech, religious expression and association; and lastly to prevent Defendants from allowing all negative-associated documentation to remain in Plaintiff's prison records (C-file)."
The defendants argue that Plaintiff claim for injunctive relief is moot. The Court agrees. Since the Plaintiff filed this action seeking amongst other remedies, injunctive relief, Plaintiff has been transferred from Calipatria to another California state prison. The Ninth Circuit held that where a prisoner seeks injunctive relief for an alleged civil rights violation while in custody, the request for injunctive relief becomes moot upon transfer of the prisoner. See Dilley v. Gunn, 64 F.3d 1365, 1368 (9th Cir. 1995).
Furthermore, the Court does not see how this case would be "capable of repetition, yet evading review." See Roe v. Wade, 410 U.S. 113, 125 (1973); Southern Pacific Terminal Co. v. Interstate Commerce Comm'n, 219 U.S. 498, 515 (1911). This exception to the mootness doctrine applies when (1) the challenged action is too short in duration to be fully litigated prior to its expiration and (2) there is a reasonable expectation that the injury will occur again. Weinstein v. Bradford, 423 U.S. 147, 149 (1975) ( per curiam). Plaintiff's claim falls short with respect to each of these requirements. As such, it is recommended that Summary Judgment be GRANTED with regard to Plaintiff's Request for injunctive relief.
Conclusion
For the reasons set forth above, it is recommended that Defendants' Motion Summary Judgment be GRANTED. This report and recommendation will be submitted to the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1) (1988). Any party may file written objections with the court and serve a copy on all parties by March 13, 2006. The document should be captioned "Objections to Report and Recommendation." Any reply to the objections shall be served and filed by March 27, 2006. The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED.