(PC) Morgan v. Valley State Prison ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MATTHEW WILKE MORGAN, 1:20-cv-00029-ADA-GSA-PC 12 Plaintiffs, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANTS’ 13 vs. RULE 12(b)(6) MOTION TO DISMISS BE GRANTED IN PART, WITHOUT LEAVE 14 VALLEY STATE PRISON, et al., TO AMEND (ECF No. 30.) 15 Defendants. OBJECTIONS, IF ANY, DUE WITHIN 16 FOURTEEN (14) DAYS 17 18 I. BACKGROUND 19 Matthew Wilke Morgan (“Plaintiff”) is a former state prisoner proceeding pro se and in 20 forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On December 26, 21 2019, fifteen plaintiffs, including Plaintiff Matthew Wilke Morgan, filed a Complaint 22 commencing this action against Valley State Prison (VSP), et al., for subjecting them to adverse 23 conditions of confinement in violation of the Eighth Amendment by serving substandard food in 24 Kosher meals at VSP. (ECF No. 2.) 25 On January 7, 2020, the court issued an order severing the fifteen plaintiffs’ claims and 26 opening new cases for individual plaintiffs. (ECF No. 1.) Each of the fifteen plaintiffs was 27 ordered to file an amended complaint in his own individual case within thirty days. (Id.) On 28 January 31, 2020, Plaintiff filed the First Amended Complaint in this case. (ECF No. 10.) 1 On July 13, 2021, the Court screened the First Amended Complaint and issued an order 2 requiring Plaintiff to either: 1) notify the Court he is willing to proceed only with the claims 3 found cognizable by the Court; or 2) file a Second Amended Complaint. (ECF No. 16.) On 4 August 5, 2021, Plaintiff notified the Court that he was willing to proceed only with the claims 5 found cognizable by the Court. (ECF No. 17.) 6 This case now proceeds with the First Amended Complaint, against defendants Warden 7 Raythel Fisher, Jr., Officer Paez, and Culinary Staff Members Anguiano, Chapa,1 Lucero, 8 Marquez, Cruz, and Moosbauer2 (“Defendants”) for violation of RLUIPA, violation of the First 9 Amendment Free Exercise Clause, and unconstitutional conditions of confinement in violation 10 of the Eighth Amendment; against defendant Warden Raythel Fisher, Jr. for failure to protect 11 Plaintiff from harm to his health from the Kosher foods served to him, in violation of the Eighth 12 Amendment; and against defendant Culinary Staff Member Moosbauer for retaliation in violation 13 of the First Amendment. (ECF No. 10.)3 14 On March 14, 2022, Defendants filed a motion to dismiss this case under Federal Rules 15 of Civil Procedure 12(b)(6). (ECF No. 30.) On April 14, 2022, Plaintiff filed an opposition to 16 the motion. (ECF No. 34.) On April 28, 2022, Defendants filed a reply to the opposition. (ECF 17 No. 36.) Defendants’ motion is deemed submitted. Local Rule 230(l). 18 II. PLAINTIFF’S ALLEGATIONS 19 Plaintiff is currently out of custody. The events at issue in the First Amended Complaint 20 allegedly took place when Plaintiff was incarcerated at VSP in the custody of the California 21 Department of Corrections and Rehabilitation (CDCR). 22 Plaintiff’s allegations follow:4 23 1 Sued as Chapas. 24 2 Sued as Moosebaur. 25 3 On November 15, 2021, the Court issued an order dismissing all other claims and 26 defendants from this action. (ECF No. 22.) 27 4 The allegations presented here summarize Plaintiff’s allegations in support of claims 28 found cognizable in the First Amended Complaint, as reflected in the Court’s November 15, 2021 order. (ECF No. 22.) 1 1. Rotten, spoiled, and otherwise unfit for human consumption food is being served in the 2 Kosher diets. From 2016 to the present time, the meals are regularly served halfcooked/prepared 3 – in particular, meat. When brought to the attention of the Culinary Supervisor Cook (CSC) and 4 CSC II staff, the meals are not replaced. 5 Weekly, the Shabbat dinner is served with spoiled meat. The meat is supposed to be 6 vacuum sealed but is served to Plaintiff open and with mold growing on it. When eaten, the meat 7 causes illness, and Plaintiff has suffered sickness from being served these meats by Defendants. 8 Similar sickness is caused by other meats when served uncooked or opened. 9 The turkey served in lunches is unfit for human consumption. It has been denatured by 10 having bone ground into it. The sharp and relatively large bone shards cause damage to Plaintiff’s 11 teeth and lacerations to Plaintiff’s mouth and throat. 12 The Kosher meal stock is delivered in a manner that causes the frozen food to spoil. It is 13 taken from the refrigerated delivery truck and left unrefrigerated in the open sun and out in the 14 elements at the docking area for entire shifts. Staff at the warehouse/central kitchen and culinary 15 staff do not want to inventory the meals upon arrival. After approximately ten hours, the items 16 are finally inventoried and re-frozen. Upon need of the meals, they are again left out in the 17 elements and sun as they are transferred, where they spoil further and are refrigerated again for 18 serving on the following day. 19 The internal components of the meals are open, spoiled, and otherwise contaminated. 20 Items that are sealed, such as applesauce, cream cheese, chips, bagels, and fruit cups, are either 21 opened by bacterial growth or by mechanical means such as crushing and then allowed to fester. 22 When revealed to CSC staff by Plaintiff, no correction follows. 23 Items in the Kosher meals are stolen by inmate culinary workers. When this problem is 24 taken directly to CSC staff by Plaintiff, Plaintiff is told, “Too bad,” and left without the stolen 25 parts of the meal. In addition, when stolen items are reported to custody staff, threats of rules 26 violations reports being issued against Plaintiff is used as a tool of reprisal and threat, to prevent 27 further speech on the issue. Threats of violence by inmate workers against Plaintiff is also used, 28 and correctional and custodial staff refuse to protect Plaintiff from the threats of violence. 1 Culinary workers intentionally wear their serving gloves to the restroom and touch their “dirty 2 dick” with their hands prior to serving the meals. CSC and custodial staff refuse to address the 3 issue. 4 2. Food is transported, opened, and cooked in shared ovens and carts that are used for 5 non-Kosher foods. Kosher foods must be double-sealed or they are contaminated. However, daily 6 the seals on the food are breached, either by failures during a transportation process, such as 7 crushing and popping open of the meals, or by intentional actions of persons stealing the contents 8 of meals. These meals are served to Plaintiff and rendered non-Kosher. These meals are cooked 9 in ovens used to cook non-Kosher food, even at the same time, rendering the food non-Kosher. 10 The sole Jewish worker, when objecting to this practice, is told by his supervisor, 11 defendant Moosebaur, to “get into the oven” while it is still hot. Defendant Moosebaur openly 12 states that his grandfather was a German SS, wishing that all the Jews had been killed in the 13 Holocaust. 14 Then the food is transported in shared carts and stored in the same shared carts with the 15 meals open, served at the same time and placed with the non-Kosher food. The Kosher-only oven 16 was redirected for use for regular meals, so all meals are cooked together and the Kosher oven 17 has not been replaced. 18 3. The culinary workers are not trained in the procedures mandated by the California 19 Retail Food Code, nor by a Rabbi (necessary to serve Kosher food). The issue of training has 20 been raised repeatedly and ignored by VSP administration as well as by the CSC staff 21 (Defendants). The procedures for Kosher foods change every few days, perhaps not “officially,” 22 but in effect. Actual procedures are ignored and cause Plaintiff to be served non-Kosher and 23 contaminated food. 24 4. Kosher meals are served in communal areas, wherein the tables are unclean both 25 ritually and literally. The same dirty rags are used to clean the non-Kosher food and then used to 26 clean the Kosher Diet Program (KDP) tables (when they exist), leaving chunks of non-Kosher 27 meals smeared across the tables daily. The promised Kosher utensils are not provided and 28 Plaintiff is required to cook many items because they are served uncooked/unprepared, but 1 Plaintiff is not permitted by correctional staff and VSP administration to return the item to his 2 housing unit to prepare it. 3 The separation of Glatt (meat) and Dairy requires the use of separate utensils, and the 4 separation of Passover Kosher from annual/regular Kosher meals requires separate utensils. 5 Cleaning of plastic utensils is unfeasible and therefore disposable utensils are supposed to be 6 issued daily by Defendants but are not, further creating a barrier to the observance of Kosher by 7 Plaintiff. 8 On fasting days when Plaintiff receives his meals for the conclusion of the fast (three 9 meals issued at one time), Plaintiff is instructed by both correctional and CSC staff to eat all the 10 meals during the fasting hours or discard the meals. In this way, Plaintiff is not permitted to 11 observe fasting holidays. 12 5. When foods are rendered non-Kosher, CSC staff refuse to replace the meal. When the 13 meal is uncooked/unprepared/frozen, CSC staff refuse to replace the meal. In both scenarios, 14 custodial staff refuses to allow a call for a supervisor by use of threats and intimidation. Both hot 15 dinner and breakfast trays are served frozen. Items that are not to be frozen (refrigerate-only 16 items such as mayonnaise or cream cheese, other fluid items such as applesauce or jelly that when 17 frozen explode in the meals and cannot be eaten, like a soda placed into a freezer) are served 18 daily but are inedible and not replaced, leaving Plaintiff with less of a meal than is reported on 19 the menu. 20 While the hexure (Kosher certification) of the meals is considered Kosher by some, it 21 does not meet the full standards of Orthodox Kosher. The meals are delivered with tape that 22 reads, “If tape is removed, Kosher status may be voided.” This tape is disturbed on at least six 23 (6) cases of meals per pallet, the contents of which are damaged and opened at the institution 24 warehouse. Main kitchen staff refuse to fix the issue despite repeated efforts by Plaintiff to fix 25 the problem. Plaintiff is then served the non-Kosher meals by culinary Defendants. 26 6. The served foods do not match the approved menu foods, neither by name nor quantity. 27 Three-ounce bagels have been permanently replaced by 2-ounce or 2.5-ounce bagels. 28 Replacements are the usual occurrence, and the very limited variety of foods is worsened when 1 the few items are replaced with duplicates from the previous day. For example, on bagel day the 2 bagels are stolen by culinary staff (inmates, despite efforts by Plaintiff to have the correct meal 3 served) and replaced with the peanut butter and jelly meal that was saved from the previous day. 4 CSC staff allow this practice to reward their workers as an “underground regulation.” The bagels 5 and other such items like cookies are taken back to the facility yard and sold. Correctional staff 6 allow the inmate workers to take these items back to the housing units and facility. These 7 Defendants are responsible for Plaintiff not receiving the nutrition he should. The same is true 8 for dinner meals at the main kitchen. Main kitchen workers consume the more palatable meals 9 and replace them with the open and otherwise inedible meals, i.e., if the chili meal is dropped 10 onto the floor on Monday and spilled, it is used to replace a Wednesday meal (chicken patty) 11 after being stowed away for two days in the main kitchen. In this way the meals are otherwise 12 contaminated. The meals that are served are calorie rich and nutrient poor. The meals are 13 basically bread, sugar, and spoiled meat. 14 7. The foods served are past their expiration date and/or best-by date. All foods served in 15 this way are poor, with mold growing on them, stale, with opened bread, exploded, waxy, etc. 16 The foods have been taken directly to the supervisory staff – CSC, CSCII, Food Manager, Food 17 Administrator, etc. – and in response the Plaintiff suffered retaliation. The future batches of meals 18 no longer had dates on all the products and slowly the remaining products have had their dates 19 removed from them. The labeling from ABC Ventures had the expiration dates removed (some 20 of the dates were more than two (2) years past), and lot codes were issued. The food served to 21 Plaintiff by Defendants is still bad. The individual food items do not often have a Kosher 22 certification at all. 23 The meals in question are neither wholesome nor nutritious. Nutrition is absent and only 24 empty calories remain. The fruits and vegetables that are served are non-Kosher. They are 25 cracked, punctured, handled with dirty hands that were not washed after using the restroom, have 26 rotten spots growing on them, are recycled after being discarded, or otherwise inedible. Plaintiff 27 is served this food by Defendants. 28 /// 1 2 8. The Kosher Diet Program (KDP) is intended to allow for Kosher-observant inmates 3 like Plaintiff to eat their meals separate from non-Kosher meals. This is an important requirement 4 in Kashrus. The issues have been raised with correction staff and sergeants several times and as 5 a result, Plaintiff suffered retaliation from Defendants repeatedly and the issue is not resolved. 6 Procedures were changed to include others in the Kosher diet release to include diabetics, 7 workers, students, and anyone who wishes to sneak out of the buildings during the release period. 8 Even the issue of inmates sneaking out has been raised, to no avail. Defendants refuse to address 9 the problem and there is further retaliation against Plaintiff, such as being forced to eat in 10 contaminated areas with non-Koshers, and the forced discarding of Kosher meals and items. 11 Prayers, according to Orthodox law, require that persons of different faiths be elsewhere 12 when mealtime prayers are spoken. Plaintiff is forced to be seated with the unfaithful, thus 13 preventing him from saying the Holy and Sacred Prayers prior to meals. Meanwhile, the 14 insurgents talk while eating, spitting out their food onto KDP participants’ meals, rendering the 15 meals non-Kosher. Regularly, Plaintiff as a KDP is required to eat with Pagan and/or 16 “Skinhead/White Power” individuals who intentionally cause difficulties for Plaintiff. Plaintiff 17 has raised this issue with correctional and culinary staff (Defendants), to no avail, leaving 18 Plaintiff at risk from the hateful anti-Semitic persons at meals. 19 9. Plaintiff (KDP) is served whole meals and portions of regular non-Kosher meals in 20 place of Kosher meals. Items include non-Kosher bread, etc. This is done by Defendants culinary 21 staff and is done in particular when items from the Kosher meals are missing, as the result of the 22 theft of those items by inmate workers, permitted by culinary staff (Defendants). So much of the 23 Kosher food is stolen from the KDP that only non-Kosher replacements are available for Plaintiff. 24 When replacements from the main kitchen are requested by Plaintiff, these requests are denied 25 by both culinary staff and custodial staff (Defendants). Recently the salads that were the most 26 nutritious parts of the Kosher diets have had the most nutritious items removed in retaliation by 27 culinary staff for filing inmate grievances and CDCR 22’s. Replacing the salad is a ball of 28 shredded dry cabbage and two dirty radishes. 1 2 10. After multiple pleas and appeals, Plaintiff has been given repeated excuses for the 3 open, rotten, spoiled, uncooked, frozen, spilled, non-nutritious food, including regular blame of 4 the vendor (ABC Ventures). Yet Defendants continue to order from the same vendor for more 5 than three years. Plaintiff has filed appeals yet continues to face roadblocks such as cancellations 6 (VSP-19-01146, VSP-19-01285, TLR 1908537 and others). For three years, Plaintiff has been 7 trying to resolve the issues with named Defendants culinary staff. 8 Requests for another supplier of Kosher foods were denied. Culinary and institutional, 9 Statewide Religious Review Committee (SRRC), and policy staff all refused to address all these 10 issues. Appeals to exchange rotten food were denied, appeals to have another vendor were 11 denied, and appeals to have a back-up plan were denied. The KDP, including Plaintiff, have all 12 collectively attempted to resolve every issue. 13 11. Plaintiff is an inmate. Plaintiff suffered because of Items #1-10 (written above) and 14 at all times was housed at Valley State Prison in the custody of the California Department of 15 Corrections and Rehabilitation and participating in the Kosher Diet Program (KDP) for reason 16 of sincerely-held belief. Plaintiff is a Messianic Jew. 17 Plaintiff believes that the law of the Bible is an instruction from our Father and Creator, 18 and that he has no choice but to adhere to the instruction given by his loving Father. The 19 Teachings have been passed down from generation to generation starting with Moshe (Moses), 20 whereupon they were received from God. The problems faced by Plaintiff have been caused by 21 Defendants, each of them every day, and are accounted for from 2016 to 12/20/19. The available 22 Rabbi, P. Gordon [not a defendant], was made aware of the problems with the KDP by Plaintiff. 23 The Rabbi confirmed the problems and agreed to investigate. Upon his investigation, the Rabbi 24 informed Plaintiff that he was raising the issues with the Religious Review Committee (RRC) 25 but there has been no solution. The issues with staff were also raised, then forwarded to the 26 Community Resource Manager (CRM), also to no avail. 27 1) Claim 1; U.S. Constitution, 1st Amendment: 28 a) Free Exercise of Religion: 1 Plaintiff is daily denied the ability to observe Kosher. At the time of filing, this restriction 2 from Kosher totaled more than three years and multiple meals/violations. Defendants have each 3 failed to provide Kosher meals as required by the U.S. Constitution, existing decisional case law, 4 and Jewish Kosher Law. There is no alternative to eating. A person must eat to survive, and a 5 Jew must eat only Kosher meals. No alternative readily exists for Plaintiff to receive daily Kosher 6 meals. Plaintiff has had to throw out spoiled food. 7 Defendant Raythel Fisher is responsible for providing the religious needs of Plaintiff, and 8 he has failed in this duty. Statewide Religious Review Committee (SRRC) members [not 9 defendants] are responsible for the creation and implementation of statewide programs to meet 10 these needs and to provide healthy meals appropriate to meet both the nutritional and religious 11 needs of Plaintiff, yet after multiple problems, chose year after year to retain the same vendor 12 that had been blamed for the problems of quality and contents. 13 Correctional officers contributed to this denial of the right to freely exercise Plaintiff’s 14 religion in a reasonable manner. C/O Paez personally stood at the serving window and actively 15 prevented Plaintiff from seeking replacement foods on a regular basis, using threats and 16 retaliation to quell calls for change in active coordination with culinary staff member Anguiano. 17 Culinary staff Chapa, Lucero, Marquez, and especially Anguiano were the frontline 18 refusers to replace spoiled and contaminated meals (and meals missing components) that were 19 served to Plaintiff. While the above defendants were the supervisors of the inmate workers, they 20 allowed the inmate workers to knowingly grossly contaminate the Kosher meals even after being 21 made aware of the issue by Plaintiff. Defendant Cruz refused to send replacements (meals) and 22 allowed for the theft of items inside the Kosher meals. Defendant Moosebaur repeatedly 23 responded to the KDP and did not resolve issues, neither in person nor in response to written 24 inquiries. Moosebaur refused to fix issues and even claims to have eaten the rotten meat and 25 instructed inmate Gann to eat it while watching. 26 b) Retaliation for: 27 Exercise of Religion, Free Speech, and Conspiracy 28 /// 1 Plaintiff suffered retaliation for his exercise of religion, by insisting that his meals be kept 2 Kosher and the subsequent complaints, grievances, and possibly this complaint in the near future. 3 The retaliatory actions were done by state actors against Plaintiff because of the exercise of 4 protected actions under the U.S. Constitution’s First Amendment and were done for the purpose 5 and did chill the exercise of that protected conduct. Defendants’ actions did not serve any 6 legitimate penological goal or interest. Several of the actions in #1-10 were done in concert with 7 other actors (Defendants) who were not directly present at that time, but in a conspiracy to 8 retaliate. 9 Officer and Defendant Paez, in response to attempts to have spoiled meals exchanged at 10 the dining hall, used threats of rules violation reports, retaliatory searches (that factually 11 occurred), and threats to have Plaintiff removed from KDP. 12 In retaliation for repeated complaints and grievances, defendant Moosebaur (a vocally 13 proud Neo-Nazi) told his workers (including inmates such as Israel Garcia-Trevino #AY-4957 14 and other “line backers”) that they no longer needed to wear gloves or hair nets while working 15 with the Kosher food. In addition, the meals that should have been used as replacements for 16 spoiled meals were given to his favorite workers instead of being used as replacements, causing 17 Plaintiff to be forced to either eat spoiled meals or not to eat. 18 The training by Moosebaur extended to Defendant Anguiano and subsequently to 19 Anguiano’s 3rd watch inmate workers. When Plaintiff tried to have spoiled meat replaced, 20 Defendant Anguiano accused Plaintiff and other KDP inmates of fraud, requiring that every 21 Saturday night meal be opened in front of him – yet when Plaintiff was (and is) served rotten 22 meat, Defendant Anguiano still refused to replace the meat. This action was public and demeaned 23 and deterred further complaints and other such speech by Plaintiff, effectively chilling the 24 exercise of this protected conduct. The practice of Saturday public meal opening continues. 25 2) Claim 2: U.S. Constitution, 8th Amendment 26 a) Nutritionally Deficient Diet (Kosher Diet) 27 Inmates are not required to choose between two rights they are entitled to exercise, i.e. 28 choosing to observe Plaintiff’s faith (Kosher) or eating nutritionally adequate meals. Plaintiff has 1 the absolute right to both, and defendants have a duty to provide the means. Currently, Plaintiff 2 is suffering from a nutritionally deficient diet. 3 Food is a basic necessity of life and must be nutritionally adequate. The continuous 4 deprivation of nutritious food for more than three years is not a short-term dilemma for the 5 duration of an emergency. Each of the Defendants has an absolute duty to provide Plaintiff with 6 nutritious diets that also comply with his religious needs. Plaintiff has instead been given a 7 longterm diet consisting of high carbohydrate, high calorie food without adequate vitamins, 8 minerals, healthy oils, etc., without supplementation. 9 Defendants have each played a role in the food chain. From the development of an 10 inadequate menu based solely upon the number of calories and without consideration of nutrition, 11 the use of highly processed food (reduces the nutritional value of otherwise healthy similarly 12 named items), and nutritionally deficient substitutions (i.e., food listed as chili lost its cheese 13 replaced with water, beans were reduced to under 10 beans and replaced with water, diced 14 tomatoes were replaced with a highly processed tomato paste mixed with a large volume of water 15 devoid of nutrition.) 16 b) Sanitation of meals 17 All meals served during the times mentioned herein were both ritually contaminated, 18 rendering them non-Kosher, and literally contaminated making them unsanitary. From the 19 serving environment to the intentional contamination by the restroom (i.e., feces, semen, urine, 20 etc.) and the genital sweat from the touching of the genitalia by inmate workers under the 21 supervision of Defendants Culinary Staff, Correctional Officers, and VSP Administration. The 22 meals are served on unclean tables, both literally and ritually. Dirty water and rags are used. The 23 actual policy is to use one time rags (clean) and a dedicated cleaner used only for the Kosher 24 Tables. This procedure is not followed by inmate workers, nor is it enforced by the culinary staff 25 or custodial staff. When raised to the aforementioned defendants, retaliation ensues in the form 26 of further barriers to religious expression. 27 The aforementioned conditions are dangerous to the health of Plaintiff. In particular when 28 the “restroom type” of contamination is exposed to the food and the eating areas are made dirty 1 with rags and water (used to clean the floor) are the cleaning tools for the Kosher meals and 2 areas. Illness has occurred to the Plaintiff, in particular sickness of the digestive tract caused by 3 the unsanitary conditions of the serving and eating area of Plaintiff. 4 c) Mental Health 5 The failures of the KDP have caused great anguish and mental pain to Plaintiff. To 6 discover that Plaintiff’s meals had been repeatedly contaminated by sweaty anus residue and 7 semen was shocking and unfathomable, while Plaintiff took on the burden of keeping Kosher, 8 suffering nutritional deficits, trying to follow tenets of his faith and the laws of God. The 9 incredible malpractice of Defendants in their respective roles (from either directly conducting 10 the acts or after being made aware and failing to remedy the situation) and their failures to fulfill 11 the daily dietary needs, and by ignoring or providing boilerplate responses to grievances and 12 form 22’s to Plaintiff and other KDP inmates, have all contributed to the great depression, 13 anguish, and physical illnesses suffered by Plaintiff. 14 d) The Conditions of Confinement are Grossly Disproportionate to the Crime 15 As outlined above, the treatment of Plaintiff is extremely poor, unconstitutional, and 16 egregious. No one in these United States should ever be subjected to the treatment suffered by 17 Plaintiff. Plaintiff has suffered as described, emotionally, spiritually, and physically as a result 18 of Defendants as described in #1-10. The conditions of confinement do not further any 19 penological goal. The conditions were raised repeatedly by Plaintiff and KDP and were 20 deliberately ignored. These conditions affected the daily life (and continue to do so) of Plaintiff. 21 Plaintiff suffered anxiety, depression, damaged teeth, poor nutrition, physical illness (vomiting, 22 diarrhea, nausea, cramps, etc.). The circumstances were permitted to continue as a coordinated 23 effort by the Defendants in conspiracy to ignore the problems. Defendants actively conspired to 24 allow the conditions to continue. The discriminatory animus shown by the Defendants (with 25 emphasis on Moosebaur) was egregious and shows example of the daily circumstances of 26 Plaintiff’s life trying to overcome the prejudice. The actions were meant to deprive Plaintiff of 27 his equal privileges and right to nutritious food served in a sanitary manner and the ability to 28 1 observe his necessary religious tenets. The motives are clear by the actions and statement of 2 Defendants, and Defendants’ actions have resulted in injury as described by Plaintiff. 3 Our American society does not tolerate treatment such as the physical contamination of 4 food as has occurred to Plaintiff. The acts of Defendants are degrading to Plaintiff and attack his 5 dignity without cause. 6 3) Claim 3: U.S. Constitution 14th Amendment: 7 a) Significant Hardship: 8 Daily hunger is a significant hardship, as with nutritional deficiency. When Plaintiff 9 cannot eat because of the food being contaminated or spoiled, it causes this hardship. The times 10 Plaintiff does eat are essentially ineffective because the food is nutritionally deficient, loaded 11 with unhealthy carbs and calorie dumps made from highly processed foods known to cause 12 cancer. 13 Having to file this suit, spending over $400.00 collecting data and filing grievances, form 14 22’s, arguing with Defendants, risking and suffering retaliation is a hardship. Retaliatory searches 15 caused Plaintiff to suffer a lack of safety in his assigned housing. VSP is a dormitory setting 16 (crowded), and when a retaliatory search is conducted, allowable property is seized from 17 Plaintiff’s cell-mates with the intent and effect of causing strife, anger, and the very real potential 18 threat of violence against Plaintiff. Plaintiff lives in stress, anxiety, and depression, suffering 19 from the loss of sleep and fear due to Defendants. 20 To supplement the diet, Plaintiff must order additional foods or trade for them as ordered 21 from the packages or canteen. This additional financial burden and hardship is placed on Plaintiff 22 and his family. By trying to observe Kosher laws and exercise his right of free expression, 23 Plaintiff must endure this hardship. These rights are protected by the U.S. Constitution and cannot 24 be taken away, so fundamental that they are inseparable no matter what process is used. 25 b) Discrimination: 26 Plaintiff has suffered discrimination from Defendants. Defendant Raythel Fisher, Jr. 27 created policies that deny KDP such as Plaintiff the ability to eat Kosher or even sanitary food. 28 Those who are required to eat Kosher by their faith, such as Plaintiff, suffer because of these 1 policies. Culinary staff fail to supervise their workers, and custodial staff refuse to admonish 2 those found to contaminate food and actively conspire with culinary Staff (Defendants – both) to 3 force Plaintiff to accept spoiled/contaminated food. RVR threats include refusal to obey orders, 4 threats of inciting a riot, hunger strike initiation, and assault on staff. Muslim inmates do not 5 suffer such prejudice and have no problems with their RMA meals. 6 Defendant Raythel Fisher, Jr., only allows access to the Rabbi one day a week for 7 Plaintiff. Plaintiff has raised the issues with the Rabbi, who investigated and decided that there 8 were legitimate problems with the KDP and forwarded those issues to the RRC, Food Manager, 9 CRM, and Warden (Raythel Fisher, Jr.). Defendant Fisher has disallowed Shabbat (Saturday) 10 services and refuses to accommodate Shabbat work prohibition for Plaintiff, but permits the 11 Muslim holidays to be observed, unlike the majority of holidays required by Jewish law. 12 Likewise accommodations are readily made for the Christian services, whereas the two days of 13 Rabbi access was reduced to one day. 14 Defendant Moosebaur brags about how his family murdered the Jewish population in 15 Germany. Moosebaur expresses his desire to “Kill all the Jews” and uses his position to 16 intentionally disrupt the Kosher Diet Program by having the meals served to Plaintiff go rotten 17 out in the elements, allowing his workers (with Defendant Cruz) to open and contaminate the 18 meals while stealing the meals’ contents (meals served to Plaintiff). Moosebaur tried to force 19 another KDP to eat rotten food while he watched and laughed. Moosebaur is prejudiced and 20 discriminatory. Defendant Anguiano likewise has taken an active role in taking away the ability 21 of Plaintiff to eat suitable food. He was trained by Moosebaur to deny requests for replacement 22 meals even when they are rotten, spoiled, spilled, open, contaminated, or otherwise unfit for 23 consumption (or rendered non-Kosher). The actions of Defendants are discriminatory and 24 resulted in the denial of protected conduct. Defendants acted in concert with one another to deter 25 by force (Paez and Anguiano), with threats of retaliation. 26 When the need for fasting arrives due to a mandated religious fast, defendant Fisher 27 disrupts this process despite approval from Sacramento (CDCR Headquarters) and the federal 28 RTM as referenced by the D.O.M. 1 4) RLUIPA and First Amendment Free Exercise Claims: 2 a) The aforementioned restrictions placed upon Plaintiff are barriers placed by individual 3 decisions made by Defendants. The decisions do not serve any legitimate purpose. Allowing the 4 contamination by the intentional spoiling of food, the prejudice and retaliation actions have no 5 basis in legitimacy. 6 b) Defendants have placed a substantial burden on Plaintiff’s ability to exercise his faith 7 and follow the tenets of his religion. There is no compelling reason to do so, and it is not in the 8 furtherance of a government interest. It is not the “least restrictive” manner to obtain any goal 9 other than to hate on the faithful, such as Plaintiff. 10 c) Keeping Kosher (observing Kashrus) is a well-established “Central Tenet” of 11 Plaintiff’s faith. It is a mandatory requirement. 12 d) Prison officials have been made well aware of the inability of Plaintiff to keep Kosher 13 and have taken no corrective action. Defendants do not care, except to harm Plaintiff. Defendants 14 disregard the complaints of Plaintiff except to retaliate. When Plaintiff’s food is served rotten, 15 he does not eat, and when the food is contaminated, it is only rarely exchanged. Plaintiff often 16 does not eat, or only eats portions that are not contaminated. Plaintiff is always improperly fed. 17 When fed, he is served nutritionally deficient food on a regular basis and is subject to 18 discriminatory treatment by Defendants, both inmates and staff (culinary/custody). 19 e) Plaintiff has suffered emotionally, physically, and spiritually. The effect that 20 Defendants’ actions have had on Plaintiff are acute and lasting. 21 f) Plaintiff has a sincerely held belief that requires him to eat only Kosher. Plaintiff shares 22 a common thread with Judaism requiring Kosher. 23 As relief, Plaintiff requests monetary damages, including punitive damages, declaratory 24 relief, and injunctive relief. 25 III. MOTION TO DISMISS UNDER RULE 12(b)(6) 26 In considering a motion to dismiss, the court must accept all allegations of material fact 27 in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The court must 28 also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 1 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974); see also Hosp. Bldg. Co. v. Rex Hosp. 2 Trustees, 425 U.S. 738, 740, 96 S. Ct. 1848, 48 L. Ed. 2d 338 (1976); Barnett v. Centoni, 31 F.3d 3 813, 816 (9th Cir. 1994) (per curiam). All ambiguities or doubts must also be resolved in the 4 plaintiff’s favor. See Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S. Ct. 1843, 23 L. Ed. 2d 404 5 (1969). In addition, pro se pleadings are held to a less stringent standard than those drafted by 6 lawyers. See Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972). 7 However, legally conclusory statements, not supported by actual factual allegations, need not be 8 accepted. See Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949-50, 173 L. Ed. 2d 868 9 (2009). 10 In deciding a Rule 12(b)(6) motion, the court generally may not consider materials outside 11 the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); Branch 12 v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The court may, however, consider: (1) documents 13 whose contents are alleged in or attached to the complaint and whose authenticity no party 14 questions, see id.; (2) documents whose authenticity is not in question, and upon which the 15 complaint necessarily relies, but which are not attached to the complaint, see Lee v. City of Los 16 Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials of which the court 17 may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994). 18 Defendants’ Motion To Dismiss 19 Defendants bring this motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) 20 on the grounds that: (1) the First Amended Complaint (FAC) fails to allege sufficient facts to 21 state a claim against any Defendant under 42 U.S.C. § 1983 or RLUIPA; (2) the requests for 22 injunctive relief related to the Kosher Diet Program are mooted by Plaintiff’s parole; and, (3) the 23 FAC asserts a claim for retaliation under the First Amendment against Defendant Moosbauer 24 that fails as a matter of law. 25 Plaintiff’s Opposition 26 Plaintiff argues that the First Amended Complaint is not subject to dismissal because the 27 Court has screened it and found cognizable claims. Plaintiff also argues that his release on parole 28 does not moot his claims. Plaintiff has not specifically opposed Defendants’ other arguments. 1 IV. PLAINTIFF’S CLAIMS / ANALYSIS 2 A. The First Amended Complaint Is Subject to Dismissal Notwithstanding 3 Screening by the Court 4 Defendants first argue that this motion to dismiss is warranted notwithstanding the Court 5 already having screened the First Amended Complaint because the Judges in the Eastern District 6 of California have held that Defendants have a procedural right to bring such a motion. 7 Defendants submit that a motion to dismiss in this case is proper because: (1) Plaintiff’s 8 claim for injunctive relief is rendered moot by his subsequent release on parole; (2) the FAC fails 9 to allege sufficient facts to state a claim against any individual Defendant for a violation of the 10 First Amendment Free Exercise Clause or for a violation of the Eighth Amendment for conditions 11 of confinement; (3) none of the Defendants are established to be appropriate subjects for a 12 RLUIPA claim for injunctive relief and such relief is otherwise mooted by Plaintiff’s release on 13 parole; (4) the FAC’s retaliation claim against Defendant Moosbauer fails as a matter of law; and 14 (5)Plaintiff’s claim against Defendant Fisher is improperly based on supervisory liability and 15 insufficiently plead. 16 Discussion 17 Plaintiff’s argument that Defendants do not have a right to bring this motion to dismiss, 18 notwithstanding the Court’s finding that Plaintiff states cognizable claims in the FAC, fails. 19 Plaintiff cannot rely solely on the Court’s screening as a basis for overcoming the motion to 20 dismiss, as another Court in this district explained: 21 Plaintiff misconstrues the nature of the preliminary screening called for by 28 U.S.C. § 1915A. A court’s determination, upon screening, that a complaint may 22 state cognizable claims does not preclude a defendant from subsequently bringing a motion to dismiss one or more of those claims under Federal Rule of Civil 23 Procedure 12(b)(6). . . . Plaintiff cannot rely solely on the court’s screening as a basis for overcoming a Rule 12(b)(6) motion. 24 25 Barker v. California Dep’t of Corr. & Rehab., No. 2:13-CV-1793 KJN P, 2015 WL 3913546, at 26 *4 (E.D. Cal. June 25, 2015), report and recommendation adopted, 2015 WL 5474307 (E.D. Cal. 27 Sept. 16, 2015). Defendants’ argument that the Judges in the Eastern District of California have 28 held that Defendants have a procedural right to bring such a motion has merit. The Court agrees 1 that Defendants have the right to bring a motion to dismiss challenging the findings in the Court’s 2 initial screening order. 3 B. Plaintiff’s Request for Injunctive Relief 4 Defendants argue that the injunctive relief sought by Plaintiff in the form of various 5 revisions to policies and procedures related to the Kosher Diet Program is moot and should be 6 dismissed because Plaintiff is now on parole from CDCR custody and his request for injunctive 7 relief is not narrowly drawn, nor is it the least intrusive means necessary to correct the alleged 8 violations of Federal rights, and it similarly fails to take into account the potential adverse impact 9 on public safety of the operation of the criminal justice system as mandated by the PLRA. 10 In opposition, Plaintiff argues that even while on parole, he is a ward of CDCR and he 11 seeks to protect the rights of other inmates at Valley State Prison. Plaintiff also argues that his 12 release from prison does not negate his right or Defendants’ liability, and if the motion to dismiss 13 is granted on the basis of his parole, it will revictimize Plaintiff simply because he was released. 14 Plaintiff seeks injunctive relief in the FAC in the form of various revisions to the policies 15 and procedures related to the Kosher Diet Program (KDP). (ECF No. 10 at 26-27.) As found in 16 the FAC, Plaintiff has requested injunctive relief as summarized below: 17 Plaintiff seeks an injunction requiring that Kosher food is handled only by observant Jewish inmates or trained civilian staff, and food handlers only handle 18 Kosher foods and not switch between Kosher and non-Kosher duties; that KDP inmates be served separate to all other meal service and at separate tables cleaned 19 to Kosher standards, or be allowed to eat in their housing units; that KDP inmates not be forced to choose between receiving their medication timely or receiving 20 their meals in a Kosher manner, or forced to choose between receiving their Kosher meals properly or participation in college or other rehabilitative groups; 21 that rotten or spoiled foods are never served to KDP participants, and that Kosher back-up meals are available at all times; that a separate environment where 22 prayers may be done “absent the pagans” is available, allowing KDP inmates to complete their prayers and meals prior to other meal service; that all California 23 Retail Food Codes are followed, such as including an auditor to supervise the implementation of regulations free from CDCR interference; that truly Orthodox 24 Jewish Kosher meals are provided at all times, that are wholesome and nutritious and verified as such by a non-State/non-CDCR nutritionist; that bread and other 25 calorie rich carbs are not provided in place of a real meal of unprocessed food; that the Kosher food be reasonably palatable and verified as such by a quorum of 26 Jewish/KDP representatives from the various institutions across California; that the other issues with the Kosher diet as identified in this complaint be fixed; and 27 that the this repair to be enforceable at any institution housing California State Inmates. 28 (ECF No. 10 at 26-27.) 1 When a prisoner seeks injunctive relief concerning the prison where he is incarcerated, 2 his claims for such relief become moot when he is no longer subjected to those conditions. Pride 3 v. Correa, 719 F.3d 1130, 1138 (9th Cir. 2013) (“When an inmate challenges prison conditions 4 at a particular correctional facility, but has been transferred from the facility and has no 5 reasonable expectation of returning, his claim is moot”); Dilley v. Gunn, 64 F.3d 1365, 1368-69 6 (9th Cir. 1995) (finding prisoner’s suit for library access to be moot upon his transfer to another 7 prison). 8 Also, any award of equitable relief is governed by the Prison Litigation Reform Act, 9 which provides in relevant part: 10 “Prospective relief in any civil action with respect to prison conditions shall 11 extend no further than necessary to correct the violation of the Federal right of a 12 particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends 13 no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. The 14 court shall give substantial weight to any adverse impact on public safety or the 15 operation of a criminal justice system caused by the relief.” 16 18 U.S.C. § 3626 (a)(1)(A). 17 Once Plaintiff was paroled from VSP where the alleged violations occurred, any claims 18 for injunctive relief regarding conditions at that institution became moot. Plaintiff requests 19 injunctive relief via a court order making revisions to the policies and procedures related to the 20 Kosher Diet Program at VSP, but he has no reasonable expectation of returning there. Therefore, 21 because of Plaintiff’s parole from VSP, he is not entitled to injunctive relief regarding conditions 22 at VSP, and the court cannot award this form of relief. In addition, the legal principles applicable 23 to requests for injunctive relief are well established. To prevail, the moving party must show that 24 irreparable injury is likely in the absence of an injunction. Brooks v. Covello, 2:20-1573-WBS- 25 DMC-P (E.D. Cal. 2021), 2021 U.S. Dist. Lexis 136254, at *6. In addition, the burden to achieve 26 injunctive relief is particularly high when a party seeks a mandatory injunction Id. at *7. This 27 is because this type of injunctive relief does more than preserve the status quo, it requires a party 28 to act. Id. District courts must deny requests for mandatory injunctions unless the law and facts 1 clearly favor a moving party. Id. This is not the case here. Finally, as one court pointed out, a 2 prisoner was found to lack standing to seek injunctive relief related to prison conditions because 3 he had been transferred to another facility. Suarez v Beard, Case No. 15-cv-05959-HSG (N.D. 4 Cal. 2017), 2017 U.S. Dist. Lexis 95136 at *15 (citing Wiggins v Alameda Cnty. Bd. Of 5 Supervisors, No. C 1994 U.S. Dist. Lexis 8600 (N.D. Cal. 1994), 1994 WL 327180, at *2n.1.) 6 Therefore, the Court finds that all of Plaintiff’s requests for injunctive relief, for the reasons stated 7 above, should be dismissed. However, Plaintiff’s request for monetary damages is not mooted 8 by his parole. 9 C. No Personal Participation – Defendants Chapa, Lucero, Marquez 10 Plaintiff fails to state any claims against the above named defendants because Plaintiff 11 has not alleged any facts in the FAC against them personally. Under § 1983, Plaintiff must 12 demonstrate that each defendant personally participated in the deprivation of his rights. Jones v. 13 Williams, 297 F.3d 930, 934 (9th Cir. 2002) (emphasis added). Plaintiff must demonstrate that 14 each of the defendants, through their own individual actions, violated Plaintiff’s constitutional 15 rights. Iqbal, 556 U.S. at 676-77. To state a claim under section 1983, a plaintiff must allege 16 that (1) the defendant acted under color of state law and (2) the defendant deprived him of rights 17 secured by the Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 18 (9th Cir. 2006); see also Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) 19 (discussing “under color of state law”). A person deprives another of a constitutional right, 20 “within the meaning of § 1983, ‘if he does an affirmative act, participates in another’s affirmative 21 act, or omits to perform an act which he is legally required to do that causes the deprivation of 22 which complaint is made.’” Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 23 (9th Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)); 24 As asserted by Defendants, the FAC contains a single vague allegation against 25 Defendants Chapa, Lucero, and Marquez as individuals, alleging that they “were the frontline 26 ‘refusers’ to replace spoiled and contaminated meals (and meals missing components) that were 27 served to plaintiff” and “allowed the inmate workers to knowingly grossly contaminate the 28 Kosher meals even after being made aware of the issue by Plaintiff.” (ECF No. 30-1 at 21:1-5 1 (citing ECF No. 10 at 13.)) However, Plaintiff fails to allege any facts showing individual 2 personal conduct by any of the three individuals. Plaintiff refers to these three named defendants 3 collectively as “culinary workers” or “culinary staff” without distinction, or refers to them with 4 all Defendants collectively.5 Plaintiff cannot state a claim against any of these named Defendants 5 unless he demonstrates in his allegations how each of them individually, identified by name, 6 personally acted or failed to act, violating Plaintiff’s rights. Plaintiff may not attribute liability 7 to a group of defendants, but must “set forth specific facts as to each individual defendant’s” 8 deprivation of his rights. Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988); see also Taylor v. 9 List, 880 F.2d 1040, 1045 (9th Cir. 1989). 10 Therefore, the Court finds that Plaintiff fails to state any claims against Defendants 11 Chapa, Lucero, or Marquez, and these defendants should be dismissed. 12 D. Defendants Paez, Cruz, Moosbauer, Fisher, and Anguiano 13 Defendants argue that the FAC’s causes of action against defendants Paez, Cruz, 14 Moosbauer, Fisher, and Anguiano for RLUIPA, violation of the First Amendment, and violation 15 of the Eighth Amendment, fail. The Court shall address these arguments in discussion to follow 16 about RLUIPA, First Amendment, and Eighth Amendment claims. 17 Defendants assert that throughout the FAC, Plaintiff identifies a group of Defendants as 18 “culinary staff,” “CSC,” “culinary workers,” or “defendants” and repeatedly refers to them 19 collectively and without distinction with regard to their First and Eighth Amendment claims. 20 Defendants argue that the allegations against a collective group are not sufficient to plead a 21 cognizable cause of action against the individual Defendants. Defendants argue that Plaintiff 22 levels allegations without regard to any particular individual or, more critically, how his rights 23 were denied by that specific person, but Rule 8 demands more and Plaintiff’s allegations are 24 insufficient to support Plaintiff’s First and Eighth Amendment claims. 25 26 27 5 Plaintiff refers to Defendants throughout the FAC collectively without specifying names of individual defendants, as main kitchen staff, CSC staff, CSC II staff, culinary staff, correctional staff, 28 Defendants, culinary defendants, warehouse staff, supervisory staff, VSP administration, Sergeants, policy staff, custodial staff, correctional officers, and prison officials. (See ECF No. 10, generally.) 1 E. RLUIPA 2 Prisoners’ religious freedoms are protected by the Religious Land Use and 3 Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1. Section 3 of RLUIPA 4 provides: “No government shall impose a substantial burden on the religious exercise of a person 5 residing in or confined to an institution, as defined in section 1997 [which includes state prisons, 6 state psychiatric hospitals, and local jails], even if the burden results from a rule of general 7 applicability, unless the government demonstrates that imposition of the burden on that person 8 (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means 9 of furthering that compelling governmental interest.” 42 U.S.C. § 2000cc-1(a). For a RLUIPA 10 claim, the plaintiff-prisoner must show that the government has imposed a substantial burden on 11 his religious exercise. A “‘substantial burden’ on ‘religious exercise’ must impose a significantly 12 great restriction or onus upon such exercise.’” San Jose Christian College v. Morgan Hill, 360 13 F.3d 1024, 1034 (9th Cir. 2004). 14 Money damages are not available under RLUIPA against the state or state officials sued 15 in their official capacities, Sossamon v. Texas, 563 U.S. 277, 279, 131 S.Ct. 1651, 1655 (2011), 16 and RLUIPA does not contemplate liability of government employees in their individual 17 capacity. Wood v. Yordy, 753 F.3d 899, 904 (9th Cir. 2014). Thus, a RLUIPA claim may 18 proceed only for declaratory or injunctive relief against defendants acting within their official 19 capacities. 20 Discussion 21 Defendants argue that Plaintiff has not established that defendants Anguiano, Chapa, 22 Lucero, Marquez, Cruz, or Moosbauer are appropriate subjects of a RLUIPA claim because 23 RLUIPA claims may only proceed for injunctive relief against defendants in their official 24 capacity, and none of the culinary worker defendants has the authority or capacity to 25 appropriately respond to a court order on injunctive relief, or fix the alleged issues with the 26 Kosher meals at VSP. Plaintiff has not provided any explanation of the culinary workers’ specific 27 positions or responsibilities, or any basis for concluding that they could fix the alleged issues. 28 1 Because Plaintiff has failed to demonstrate how these Defendants could “appropriately 2 respond to a court order on injunctive relief,” and because injunctive relief was rendered moot 3 by Plaintiff’s release, Defendants argue that the RLUIPA claim should be dismissed against 4 Defendants Anguiano, Chapa, Lucero, Marquez, Cruz, and Moosbauer. 5 Plaintiff brings claims in the FAC for violation of RLUIPA against all of the Defendants 6 -- Warden Raythel Fisher, Jr., Officer Paez, and Culinary Staff Members Anguiano, Chapa, 7 Lucero, Marquez, Cruz, and Moosbauer. However, because of Plaintiff’s parole from VSP, he 8 is not entitled to any injunctive relief regarding conditions at VSP, and the court cannot award 9 this form of relief. This is so because an inmate’s release from prison while his claims are 10 pending generally moot any claims for injunctive relief relating to the prison’s policies unless 11 the suit has been certified as a class action. Epps v. Grannis, Case No. 10cv1949 BEN KSC (S.D. 12 Cal. 2013), 2013 U.S. Dist. LEXIS 135951 at *3). Moreover, once an inmate is removed from 13 the environment in which he is subjected to the challenged policy or practice, absent a claim for 14 damages, he no longer has a legally cognizable interest in a judicial decision on the merits of his 15 claim (Id. (citing Lee v Gurney, No. 3:08cv99, 2010 U.S. Dist. LEXIS 130493 at *10.) 16 Therefore, Plaintiff’s claims for relief under RLUIPA fail and should be dismissed with 17 prejudice. 18 F. First Amendment Right to Free Exercise of Religion 19 Plaintiff brings claims in the FAC for violation of the First Amendment’s Free Exercise 20 Clause against all of the Defendants -- Warden Raythel Fisher, Jr., Officer Paez, and Culinary 21 Staff Members Anguiano, Chapa, Lucero, Marquez, Cruz, and Moosbauer. 22 The United States Supreme Court has held that prisoners retain their First Amendment 23 rights, including the right to free exercise of religion. See O’Lone v. Estate of Shabazz, 482 U.S. 24 342, 348 (1987); see also Pell v. Procunier, 417 U.S. 817, 822 (1974). Thus, for example, 25 prisoners have a right to be provided with food sufficient to sustain them in good health and 26 which satisfies the dietary laws of their religion. See McElyea v. Babbit, 833 F.2d 196, 198 (9th 27 Cir. 1987). In addition, prison officials are required to provide prisoners facilities where they can 28 worship and access to clergy or spiritual leaders. See Glittlemacker v. Prasse, 428 F.2d 1, 4 (3rd 1 Cir. 1970). Officials are not, however, required to supply clergy at state expense. See id. Inmates 2 also must be given a “reasonable opportunity” to pursue their faith comparable to that afforded 3 fellow prisoners who adhere to conventional religious precepts. See Cruz v. Beto, 405 U.S. 319, 4 322 (1972). A person asserting a free exercise claim must show that the government action in 5 question substantially burdens the person’s practice of his/her religion. Vaughn v. Wegman, No. 6 115CV01902LJOJLTPC, 2019 WL 426142, at *4 (E.D. Cal. Feb. 4, 2019), report and 7 recommendation adopted, No. 115CV01902LJOJLTPC, 2019 WL 10302261 (E.D. Cal. Mar. 12, 8 2019), aff’d, 804 F. App’x 796 (9th Cir. 2020) (citing Jones, 791 F.3d at 1031 (citing Graham v. 9 C.I.R., 822 F.2d 844, 851 (9th Cir. 1987), aff’d sub nom. Hernandez v. C.I.R., 490 U.S. 680, 699, 10 109 S.Ct. 2136, 104 L.Ed.2d 766 (1989)). “A substantial burden . . . place[s] more than an 11 inconvenience on religious exercise; it must have a tendency to coerce individuals into acting 12 contrary to their religious beliefs or exert substantial pressure on an adherent to modify his 13 behavior and to violate his beliefs.” Id. (citing Ohno v. Yasuma, 723 F.3d 984, 1011 (9th Cir. 14 2013) (quoting Guru Nanak Sikh Soc’y of Yuba City v. Cnty. of Sutter, 456 F.3d 978, 988 (9th 15 Cir. 2006) (internal quotation marks and alterations omitted)). 16 However, “[l]awful incarceration brings about the necessary withdrawal or limitation of 17 many privileges and rights, a retraction justified by the considerations underlying our penal 18 system.” Id. (quoting Price v. Johnston, 334 U.S. 266, 285 (1948)). “To ensure that courts afford 19 appropriate deference to prison officials, . . prison regulations alleged to infringe constitutional 20 rights are judged under a ‘reasonableness’ test less restrictive than that ordinarily applied to 21 alleged infringements of fundamental constitutional rights.” O’Lone, 482 U.S. at 349. In applying 22 this test, the court must weigh four factors: (1) whether there is a rational connection between the 23 regulation or restriction and the government interest put forward to justify it; (2) whether there 24 are available alternative means of exercising the right; (3) whether accommodation of the 25 asserted religious right will have a detrimental impact on prison guards, other inmates, or the 26 allocation of limited prison resources; and (4) whether there exist ready alternatives to the 27 regulation or restriction. Shakur v. Schriro, 514 F.3d 878, 884 (9th Cir. 2008) (citing Turner v. 28 Safley, 482 U.S. 78, 89 (1987); see also Allen v. Toombs, 827 F.2d 563, 567 (9th Cir. 1987). A 1 prison regulation may therefore impinge upon an inmate’s right to exercise his religion if the 2 regulation is “reasonably related to legitimate penological interests.” Id.; Pierce v. County of 3 Orange, 526 F.3d 1190, 1209 (9th Cir. 2008). Furthermore, the Supreme Court has held that 4 generally-applicable laws that incidentally burden a particular religion’s practices do not violate 5 the First Amendment. Employment Div. v. Smith, 494 U.S. 872, 878 (1990). 6 Moreover, de minimis or minor burdens on the free exercise of religion are not of a 7 constitutional dimension, even if the belief upon which the exercise is based is sincerely held and 8 rooted in religious belief. See e.g., Rapier v. Harris, 172 F.3d 999, 1006 n.4 (7th Cir. 1999) (the 9 unavailability of a non-pork tray for inmate at 3 meals out of 810 does not constitute more than 10 a de minimis burden on inmate’s free exercise of religion). 11 Sincerity Test 12 The “sincerity test,” and not the centrality test, applies to prisoners’ free-exercise claims. 13 White v. Krantz, No. 120CV00892ADAGSAPC, 2022 WL 17093976, at *6 (E.D. Cal. Nov. 21, 14 2022), report and recommendation adopted, No. 120CV00892ADAGSAPC, 2023 WL 2027157 15 (E.D. Cal. Feb. 15, 2023) (quoting Penwell v. Holtgeerts, 386 F. App’x 665, 667 (9th Cir. 2010) 16 (citing see Shakur, 514 F.3d at 884–85). Under the sincerity test, a prisoner’s religious concern 17 implicates the free exercise clause if it is (1) “sincerely held” and (2) “rooted in religious belief,” 18 rather than in secular philosophical concerns. Id. (citing Malik v. Brown, 16 F.3d 330, 333 (9th 19 Cir. 1994) (quotations omitted); see also Shakur, 514 F.3d at 885 (adopting Malik’s formulation 20 of the sincerity test)). Plaintiff has alleged facts in the FAC showing that he sincerely adheres to 21 the Jewish religion. Plaintiff alleges that he believes that the law of the Bible is an instruction 22 from our Father and Creator, and that he has no choice but to adhere to the instruction given by 23 his loving Father. He states that “[t]he Teachings have been passed down from generation to 24 generation starting with Moshe (Moses), whereupon they were received from G-d.” (ECF No. 25 10 at 11:17-18.) Thus, Plaintiff’s religious concerns implicate the Free Exercise Clause. 26 Plaintiff’s Allegations 27 Plaintiff alleges that he was coerced or forced by Defendants to violate religious 28 requirements and Kosher laws, burdening his practice of religion. He alleges that: 1 1. He is regularly served food that does not conform with Kosher laws in the 2 way it is handled, prepared, cooked, and/or served. Food is transported, opened, and 3 cooked in shared ovens and carts that are used for non-Kosher foods. Meals are cooked 4 in ovens used to cook non-Kosher food, even at the same time, rendering the food non- 5 Kosher. Meats and dairy foods are not separated, and some foods in meals, such as bread, 6 are sometimes non-Kosher. 7 2. Kosher foods are not double-sealed and therefore are contaminated. 8 Daily, the seals on the food are breached, either by failures during a transportation 9 process, such as crushing and popping open of the meals, or by intentional actions of 10 persons stealing the contents of meals. Plaintiff has been given repeated excuses for the 11 open, rotten, spoiled, uncooked, frozen, spilled, non-nutritious food, including regular 12 blame of the vendor (ABC Ventures). The meals are delivered with tape that reads, “If 13 tape is removed, Kosher status may be voided.” This tape is disturbed on at least six (6) 14 cases of meals per pallet, the contents of which are damaged and opened at the institution 15 warehouse. Main kitchen staff refuse to fix the issue despite repeated efforts by Plaintiff 16 to fix the problem. Plaintiff is then served the non-Kosher meals by culinary Defendants. 17 3. Kosher meals are served in communal areas, wherein the tables are 18 unclean both ritually and literally. The same dirty rags are used to clean the non-Kosher 19 food and then used to clean the Kosher Diet Program (KDP) tables (when they exist), 20 leaving chunks of non-Kosher meals smeared across the tables daily. Prayers, according 21 to Orthodox law, require that persons of different faiths be away while they are spoken. 22 Plaintiff is forced to be seated with the unfaithful, thus preventing him from saying the 23 Holy and Sacred Prayers prior to meals. 24 4. The separation of Glatt (meat) and Dairy requires the use of separate 25 utensils, and the separation of Passover Kosher from annual/regular Kosher meals 26 requires separate utensils. Cleaning of plastic utensils is unfeasible and therefore 27 disposable utensils are supposed to be issued daily by Defendants but are not. The 28 promised Kosher utensils are not provided. 1 5. So much of the Kosher food is stolen from the KDP that only non-Kosher 2 replacements are available for Plaintiff. 3 6. Culinary staff Chapa, Lucero, Marquez, and especially Anguiano were the 4 frontline refusers to replace spoiled and contaminated meals (and meals missing 5 components) that were served to Plaintiff. While the above defendants were the 6 supervisors of the inmate workers, they allowed the inmate workers to knowingly grossly 7 contaminate the Kosher meals even after being made aware of the issue by Plaintiff. 8 Defendant Cruz refused to send replacements (meals) and allowed for the theft of items 9 inside the Kosher meals. Defendant Moosebaur repeatedly responded to the KDP and 10 did not resolve issues, neither in person nor in response to written inquiries. Moosebaur 11 in particular refused to fix issues and even claims to have eaten the rotten meat and 12 instructed inmate Gann to eat it while watching. 13 7. Defendants’ actions did not serve any legitimate penological goal or 14 interest. 15 Substantial Burden 16 To state a First Amendment claim for violation of free exercise of religion, Plaintiff must 17 first allege that he has been subjected to extreme deprivation. The point at which a temporary 18 suspension of an inmate’s legitimate religious practice in prison becomes a substantial burden is 19 a fact-based inquiry and an open question. Lawson v. Carney, 2017 WL 4324830, 2017 U.S. 20 Dist. LEXIS 160272, *18 (E.D. Wa. 2017)). 21 Prisoners have a right to be provided with food sufficient to sustain them in good health 22 and which satisfies the dietary laws of their religion. See McElyea, 833 F.2d at 198. Plaintiff 23 has described significant deprivation from the denial of Kosher meals and violation of Kosher 24 and other Jewish dietary laws by Defendants. Plaintiff describes daily difficulties with exercising 25 the tenets of his religion. He needs to eat and has little or no choice in how his prison meals, 26 which are supposed to be Kosher, are prepared, cooked, and served, or who he shares dining 27 space with. When Defendants fail to follow Kosher dietary laws, Plaintiff is coerced into acting 28 1 contrary to his religious beliefs. Thus, here, Plaintiff has suffered a substantial burden on the 2 practice of his religion. 3 Individual Defendants 4 To prove liability under § 1983, a plaintiff must (1) show that a person acting under color 5 of state law engaged in some type of conduct, which (2) deprived the plaintiff of some right, 6 privilege or immunity secured by the Constitution or federal statutory law. Parratt v. Taylor, 451 7 U.S. 527, 535 (1981), overturned on other grounds by Daniels v. Williams, 474 U.S. 327 (1986) 8 1. Fisher 9 In regard to Warden Fisher, the following are applicable to the court’s finding: 1) CCR 10 15 sec 3380(a), which states in pertinent part, “The warden . . . of an institution of the department 11 is the chief executive officer of that institution, and is responsible for the custody, treatment, 12 training and discipline of all inmates under his or her charge”; and 2) Operational Procedure 13 (OP), 10048, which states, “The purpose and objective of this Operational Procedure (OP) is to 14 establish guidelines to supply authorized inmates with a wholesome, nutritious, and adequate 15 Kosher Diet…” (see Exhibit A attached to the Third Amended Complaint for case 1:20-cv- 16 00023-ADA-GSA-PC (Reyes v. VSP) and signed by Warden Fisher).6 Therefore, pursuant to 17 CCR 15 § 3380(a), as a warden it was defendant Fisher’s responsibility to ensure that the OP 18 policy was being properly and faithfully adhered to. 19 These two provisions, CCR 15 sec 3380(a) and OP 10048, are more than sufficient to 20 allege a causal connection between Plaintiff’s alleged injury and defendant Fisher. (See 21 Henderson v Ayers, 476 F.Supp 2d 1168 (C.D.Cal. 2007), 2007 U.S. Dist. LEXIS 18791). 22 2. Moosbauer 23 The same is true for Defendant Moosbauer. As a supervisor in the culinary unit, 24 Moosbauer appears to have responsibility under VSP Operational Procedure (OP) 10048 IV E, 25 which states the following duties of a correctional supervising cook: “The correctional 26 27 6 The Court takes judicial notice of this document ECF No. 16 at 17-26, filed in case 1:20-cv-00023-ADA-GSA-PC (Reyes v. VSP), Eastern District of California, on June 14, 2021. Courts 28 can take judicial notice of records in other cases. Pimentel-Estrada v. Barr, 458 F.Supp.3d 1226, fn 7 (W.D. Wa, Apr. 28, 2020) (citing see United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980.)) 1 Supervising Cooks (CSC) are directly responsible for the proper preparation, quality and quantity 2 of Kosher meals and the service of the meals…”. If so, this makes clear defendant Moosbauer’s 3 responsibility to protect Plaintiff. As a supervisor, and aside from this OP provision, the 4 following allegations found in Plaintiff’s FAC are sufficient to state a cognizable claim under the 5 First Amendment: 1) defendant Moosebaur (a vocally proud Neo-Nazi) told his workers 6 (including inmates such as Israel Garcia-Trevino #AY-4957 and other “line backers”) that they 7 no longer needed to wear gloves or hair nets while working with the Kosher food;” and 2) 8 “Anguiano was ‘trained by Moosebaur to deny requests for replacement meals even when they 9 are rotten, spoiled, spilled, open, contaminated, or otherwise unfit for consumption (or rendered 10 non-kosher).” (ECF No. 10 at 21:13-16.) As a culinary supervisor, defendant Moosbauer would 11 (likely) be responsible to oversee the actions of members of the culinary staff whose actions are 12 alleged to have involved the following -- “Kosher meals contained food that was rotten, spoiled, 13 and otherwise unfit for human consumption,” “Shabbat dinner is served with spoiled meat”, “the 14 internal components of the meals are opened, spoiled, and otherwise contaminated”, “the meat is 15 supposed to remain vacuum sealed, but it is served to the plaintiff open and with mold growing 16 on it”, “items are constantly being stolen out of the Kosher meals”; and “Kosher meals are often 17 heated in Non-Kosher ovens, rendering them religiously contaminated.” Although supervisory 18 government officials may not be held liable for the unconstitutional conduct of their subordinates 19 under a theory of respondeat superior, they may be individually liable under section 1983 if there 20 is a causal connection between the supervisor’s wrongful conduct and the constitutional violation 21 (see Pauley v. California, No. 2:18-cv-2595 KJN P (E.D. Cal. 2018), 2018 U.S. Dist. LEXIS 22 193388 at * 8.) This can be shown by demonstrating that a supervisor’s own culpable action in 23 the control of his subordinates was a cause of Plaintiff’s injury. (Id.). Item 1) above supplies 24 that connection. 25 3. Anguiano 26 Besides the allegation (No. 6, above) against Defendant Anguiano, who is alleged to be 27 a member of the culinary staff, which fails to allege personal conduct by Anguiano (Anguiano 28 was one of the frontline refusers to replace spoiled and contaminated meals), the FAC alleges 1 that Anguiano accused Plaintiff of fraud and, consequently, required every Saturday night meal 2 be opened in front of him, but still refused to replace rotten meat when he observed it being 3 served to Plaintiff. (Id. at 15.) The FAC also alleges that Anguiano was “trained by Moosebaur 4 to deny requests for replacement meals even when they are rotten, spoiled, spilled, open, 5 contaminated, or otherwise unfit for consumption (or rendered non-kosher).” (ECF No. 10 at 6 21:13-16.) Finally, the FAC alleges that Anguiano coordinated with “C/O Paez [who] stood at 7 the serving window and actively prevented Plaintiff from seeking replacements on a regular basis 8 ….” (Id. at 12:25-28.) None of these allegations against defendant Anguiano are sufficiently 9 detailed factually to show that individually Anguiano deprived Plaintiff of his right to exercise 10 his religion under the First Amendment’s Exercise Clause. These allegations are more in the 11 form of group allegations and fail to make out specific details such as to when, where, what, and 12 how often these incidents related to the individual actions of Anguiano. Therefore Plaintiff fails 13 to state a cognizable claim against defendant Anguiano. 14 4. Cruz 15 As for Defendant Cruz, the FAC contains a single sentence describing his alleged specific 16 actions, “Defendant Cruz refused to send replacements (meals) and allowed for the theft of items 17 inside the Kosher meals.” (Id. at 13.) This conclusory allegation, without sufficient supporting 18 facts, is not sufficient to show that Defendant Cruz deprived Plaintiff of a right to exercise his 19 religion under the First Amendment. 20 5. Paez 21 Plaintiff alleges that “Defendant C/O Paez personally stood at the serving window and 22 actively prevented Plaintiff from seeking replacement foods on a regular basis, using threats and 23 retaliation to quell calls for change in active coordination with culinary staff member Anguiano. 24 Plaintiff also alleges that Paez, in response to attempts to have spoiled meals exchanged at the 25 dining hall, used threats of rules violation reports, retaliatory searches (that factually occurred), 26 and threats to have Plaintiff removed from KDP. Plaintiff brings no allegations of any interaction 27 by defendant Paez with Plaintiff concerning his Kosher meals, or any involvement in the 28 preparation or service of the food. Again, Plaintiff must allege personal acts by each defendant, 1 showing how each individual defendant violated Plaintiff’s rights by their separate personal 2 conduct. Plaintiff has not done so and therefore fails to state any claims against defendant Paez. 3 6. Chapa, Lucero, Marquez 4 See discussion above, No personal participation. 5 Based on the foregoing, Plaintiff fails to state a First Amendment Free Exercise claim in 6 the FAC against Defendants Anguiano, Chapa, Lucero, Marquez, Cruz, or Paez. However, the 7 Court finds that Plaintiff does state a First Amendment free exercise claim against defendants 8 Warden Fisher and culinary staff supervisor Moosbauer. 9 G. Eighth Amendment Claims 10 1. Adverse Conditions of Confinement 11 The Eighth Amendment protects prisoners from inhumane methods of punishment and 12 from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 13 2006). Extreme deprivations are required to make out a conditions of confinement claim. Hudson 14 v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995 (1992) (citations and quotations omitted). A prisoner’s 15 claim does not rise to the level of an Eighth Amendment violation unless (1) “the prison official 16 deprived the prisoner of the ‘minimal civilized measure of life’s necessities,’” and (2) “the prison 17 official ‘acted with deliberate indifference in doing so.’” Toguchi v. Chung, 391 F.3d 1051, 1057 18 (9th Cir. 2004) (quoting Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (citation omitted)). 19 In order to state a claim for violation of the Eighth Amendment, the plaintiff must allege facts 20 sufficient to support a claim that prison officials knew of and disregarded a substantial risk of 21 serious harm to the plaintiff. E.g., Farmer v. Brennan, 511 U.S. 825, 847, 114 S.Ct. 1970 (1994); 22 Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). The circumstances, nature, and duration of 23 the deprivations are critical in determining whether the conditions complained of are grave 24 enough to form the basis of a viable Eighth Amendment claim. Johnson v. Lewis, 217 F.3d 726, 25 731 (9th Cir. 2006). “[R]outine discomfort inherent in the prison setting” does not rise to the 26 level of a constitutional violation. Id. at 731. 27 The state is obligated to provide “‘nutritionally adequate food that is prepared and served 28 under conditions which do not present an immediate danger to the health and well-being of the 1 inmates who consume it,’” and “the state health code, while not establishing ‘constitutional 2 minima,’ is relevant in making a finding regarding the constitutionality of existing conditions.” 3 Jackson v. Walker, 2009 WL 1743639, at *8 (E.D. Cal. 2009) (citing Somers v. Thurman, 109 4 F.3d 614, 623 (9th Cir. 1997)); also see Foster v. Runnels, 554 F.3d 807, 812-813 (9th Cir. 2009); 5 Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986) (prison officials must provide 6 prisoners with “food, clothing, shelter, sanitation, medical care, and personal safety”). 7 However, the Eighth Amendment does not require that the food provided to Plaintiff be 8 tasty and the court does not read Ninth Circuit precedent to require jail officials to provide food 9 that is optimally nutritious. See LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. 1993) (“The 10 Eighth Amendment requires only that prisoners receive food that is adequate to maintain health; 11 it need not be tasty or aesthetically pleasing.”) 12 “The fact that the food occasionally contains foreign objects or sometimes is served cold, 13 while unpleasant, does not amount to a constitutional deprivation.” Id. “The occasional presence 14 of a rodent is insufficient to establish the objective component of an Eighth Amendment claim, 15 which requires that a deprivation be sufficiently serious.” Jackson, 2009 WL 1743639 at *8. 16 However, “a lack of sanitation that is severe or prolonged can constitute an infliction of pain 17 within the meaning of the Eighth Amendment.” Anderson v. Cnty. of Kern, 45 F.3d 1310, 1314 18 (9th Cir. 1995); see also Johnson, 217 F.3d at 731-32; Hoptowit v. Spellman, 753 F.2d 779, 783 19 (9th Cir. 1985). The Eighth Amendment requires prisoners to be provided with “nutritionally 20 adequate food that is prepared and served under conditions which do not present an immediate 21 danger to the health and wellbeing of the inmates who consume it;” cf. Hutto v. Finney, 437 U.S. 22 678, 683, 686-87 (1978) (remarking that conditions of confinement that included a 1000-calorie- 23 per-day diet of “‘grue,’ a substance created by mashing meat, potatoes, oleo, syrup, vegetables, 24 eggs, and seasoning into a paste and baking the mixture in a pan,”... “might be tolerable for a few 25 days and intolerably cruel for weeks or months”). Craver v. Floyd, No. 2:20-CV-02327 DB P, 26 2021 WL 4133632, at *5 (E.D. Cal. July 21, 2021). 27 To establish an Eighth Amendment claim for the deprivation of food, a plaintiff must 28 allege facts showing that objectively he suffered a sufficiently serious deprivation and that 1 subjectively each defendant had a culpable state of mind in allowing or causing the plaintiff's 2 deprivation to occur. Id. (citing Wilson v. Seiter, 501 U.S. 294, 298-99 (1991); See Johnson, 217 3 F.3d at 736.) “The general rule is that a prison official acts wantonly with respect to supplying 4 inadequate food, water and shelter if he has actual knowledge of an excessive risk to inmate 5 health or safety and deliberately disregards that risk.” Id. (quoting Johnson, 217 F.3d at 736 6 (citing Farmer, 511 U.S. at 837). 7 Plaintiff alleges that he is hungry when he cannot eat because the food is contaminated 8 or spoiled. He also alleges that the food is nutritionally deficient, loaded with unhealthy carbs 9 and calorie dumps made from highly processed foods known to cause cancer. Plaintiff alleges 10 that he injured his mouth and teeth eating meat that contained shards of bone, and suffered 11 indigestion from an inadequate diet. He alleges that meats are served open with mold on them; 12 uncooked items are not allowed to be re-cooked; and rotten, spoiled, and otherwise unfit for 13 human consumption food is being served in the Kosher diets. When brought to the attention of 14 the Culinary Supervisor Cook (CSC) and CSC II staff, the meals are not replaced. Culinary 15 workers intentionally wear their serving gloves to the restroom and touch their “dirty dick” with 16 their hands prior to serving the meals. Meals supposed to be vacuum-sealed are served open with 17 mold on them. 18 The Kosher meal stock is delivered in a manner that causes the frozen food to spoil. It is 19 taken from the refrigerated delivery truck and left unrefrigerated in the open sun and out in the 20 elements at the docking area for entire shifts. After approximately ten hours, the items are finally 21 inventoried and re-frozen. Upon need of the meals, they are again left out in the elements and 22 sun as they are transferred, where they spoil further and are refrigerated again for serving on the 23 following day. The meals that are served are calorie rich and nutrient poor. The meals are 24 basically bread, sugar, and spoiled meat. Plaintiff’s diet consists of high carbohydrate, high 25 calorie, high-processed food without adequate vitamins, minerals, healthy oils, etc., without 26 supplementation. 27 28 1 Plaintiff’s allegations that the food is uncooked and/or unsanitary are sufficient to state 2 an Eighth Amendment claim. Plaintiff alleges that he injured his mouth and teeth and suffered 3 from indigestion. 4 However, Plaintiff’s allegations that he is not provided with enough food to maintain 5 health and that the food is nutritionally inadequate are not sufficient to state a claim. Plaintiff’s 6 allegations that the food is nutritionally inadequate is conclusory and not supported by facts, and 7 there are insufficient facts alleged for the court to plausibly conclude that plaintiff has not 8 received adequate food to maintain health, e.g., Lemaire, 12 F.3d at 1456, or otherwise that there 9 was a sufficiently serious deprivation of food, e.g., Foster, 554 F.3d at 812-13 (denial of 16 meals 10 in 23 days is a sufficiently serious deprivation under the Eighth Amendment). Plaintiff has not 11 alleged any weight loss from inadequate amounts of food, nor has he complained of other serious 12 effects on his health indicating that the food being provided to Plaintiff is not adequate to 13 maintain his health. 14 Plaintiff complains of being served partially-frozen meals. However, because prison food 15 “need not be tasty or aesthetically pleasing,” but only adequate to maintain health, cold food is 16 not a deprivation sufficient to constitute cruel and unusual punishment under the Eighth 17 Amendment. Johnson v. Runnels, No. 2:04-CV-776-LKK-EFB, 2013 WL 3940884, at *11 18 (E.D. Cal. July 30, 2013), report and recommendation adopted, No. 2:04-CV-776-TLN-EFB, 19 2013 WL 6576044 (E.D. Cal. Dec. 13, 2013) (quoting LeMaire, 12 F.3d at 1456). 20 As discussed above, Plaintiff fails to state any claims against defendants Chapa, Lucero, 21 or Marquez because Plaintiff has not shown that these three defendants, as individuals, 22 personally participated in violating Plaintiff’s rights. Therefore, Plaintiff fails to state an Eighth 23 Amendment claim against any of these three Defendants. 24 Plaintiff also fails to allege sufficient facts against defendant Anguiano to state a claim 25 for violation of his Eighth Amendment rights. Plaintiff alleges that defendant Anguiano refused 26 to replace rotten meat served to Plaintiff on one occasion. Plaintiff also makes other allegations 27 against defendant Anguiano because of his training by defendant Moosbauer and his behavior 28 1 when inmates requested a replacement meal. But Plaintiff has not sufficiently linked defendant 2 Anguiano to personal conduct egregious enough to state an Eighth Amendment claim. 3 In regard to defendant Cruz, as discussed above, the FAC only makes conclusory 4 allegations (“Defendant Cruz refused to send replacements (meals) and allowed for the theft of 5 items inside the Kosher meals”) that do not link defendant Cruz to a specific violation of 6 Plaintiff’s rights. (Id. at 13.) Therefore, Plaintiff fails to state an Eighth Amendment claim 7 against defendant Cruz. 8 Lastly, in regard to Defendant C/O Paez, Plaintiff states that Paez personally stood at the 9 serving window and actively prevented Plaintiff from seeking replacement foods on a regular 10 basis, threatening rules violation reports, retaliatory searches (that factually occurred), and threats 11 to have Plaintiff removed from KDP. These allegations are conclusory and do not contain 12 sufficient factual information describing the number and nature of threats against Plaintiff 13 himself. Therefore, Plaintiff fails to state an Eighth Amendment claim against Defendant Paez. 14 Based on the foregoing, Plaintiff fails to state an Eighth Amendment claim for adverse 15 conditions of confinement in the FAC against Defendants Anguiano, Chapa, Lucero, Marquez, 16 Cruz, or Paez. However, the Court finds that Plaintiff does state an Eighth Amendment claim 17 against defendants Warden Fisher and culinary staff supervisor Moosbauer based on the 18 provisions located in the VSP Operational Procedure (OP) and CCR 15 § 3380(a), cited above, 19 which are sufficient for purposes of the complaint to allege a causal connection between 20 Plaintiff’s alleged injury and the actions of defendants Fisher and Moosbauer. (See Henderson, 21 476 F.Supp 2d 1168, 2007 U.S. Dist. LEXIS 18791). 22 2. Failure to Protect from Unsanitary Food – Eighth Amendment 23 The Eighth Amendment protects prisoners from inhumane methods of punishment and 24 from inhumane conditions of confinement. Morgan, 465 F.3d at 1045. Although prison 25 conditions may be restrictive and harsh, prison officials must provide prisoners with food, 26 clothing, shelter, sanitation, medical care, and personal safety. Farmer, 511 U.S. at 832-33 27 (internal citations and quotations omitted). “Preventing disease and protecting the health of 28 inmates are legitimate penological goals.” McClure v. Tucker, 276 Fed. Appx. 574, 575 (9th Cir. 1 2008). Robles v. Coughlin, 725 F.2d 12, 15 (2nd Cir. 1983) (per curiam) (The Eighth Amendment 2 requires prisoners to be provided with “nutritionally adequate food that is prepared and served 3 under conditions which do not present an immediate danger to the health and wellbeing of the 4 inmates who consume it.”). 5 To establish a violation of this duty, the prisoner must establish that prison officials were 6 “deliberately indifferent to a serious threat to the inmate’s safety.” Farmer, 511 U.S. at 834. The 7 question under the Eighth Amendment is whether prison officials, acting with deliberate 8 indifference, exposed a prisoner to a sufficiently “substantial risk of serious harm” to his future 9 health. Id. at 843 (citing Helling v. McKinney, 509 U.S. 25, 35 (1993)). The Supreme Court has 10 explained that “deliberate indifference entails something more than mere negligence . . . [but] 11 something less than acts or omissions for the very purpose of causing harm or with the knowledge 12 that harm will result.” Id. at 835. The Court defined this “deliberate indifference” standard as 13 equal to “recklessness,” in which “a person disregards a risk of harm of which he is aware.” Id. 14 at 836-37. 15 The deliberate indifference standard involves both an objective and a subjective prong. 16 First, the alleged deprivation must be, in objective terms, “sufficiently serious.” Id. at 834. 17 Second, subjectively, the prison official must “know of and disregard an excessive risk to inmate 18 health or safety.” Id. at 837; Anderson, 45 F.3d at 1313. To prove knowledge of the risk, however, 19 the prisoner may rely on circumstantial evidence; in fact, the very obviousness of the risk may 20 be sufficient to establish knowledge. Farmer, 511 U.S. at 842; Wallis v. Baldwin, 70 F.3d 1074, 21 1077 (9th Cir. 1995). 22 As discussed above, the Eighth Amendment requires prisoners to be provided with 23 nutritionally adequate food that is prepared and served under conditions which do not present an 24 immediate danger to the health and wellbeing of the inmates who consume it. To be liable for 25 failure to protect a prisoner from a risk off serious harm, a defendant must know about the risk 26 and deliberately disregard it. In addition, the defendant must be someone who has the authority 27 and responsibility to protect the prisoner. 28 1 Here, the court finds that Plaintiff states cognizable claims against Defendants Fisher and 2 Moosbauer for their failure to protect Plaintiff from a risk of serious harm from unsanitary Kosher 3 foods. Both defendants are supervisors with the authority and responsibility to protect Plaintiff. 4 As discussed above regarding Warden Fisher: 1) CCR 15 sec 3380(a) states in pertinent 5 part, “The warden . . . of an institution of the department is the chief executive officer of that 6 institution, and is responsible for the custody, treatment, training and discipline of all inmates 7 under his or her charge”; and, 2) Operational Procedure (OP) 10048 states, “The purpose and 8 objective of this Operational Procedure (OP) is to establish guidelines to supply authorized 9 inmates with a wholesome, nutritious, and adequate Kosher Diet…” Plaintiff’s Exhibit A 10 attached to the Third Amended Complaint filed on June 14, 2021 in case 1:20-cv-00023-ADA- 11 GSA-PC (Reyes v. VSP) shows that the OP was signed by Warden Fisher, seemingly making 12 Fisher responsible to oversee culinary staff who allegedly provided unsanitary Kosher foods to 13 Plaintiff. See case 1:20-cv-00023-ADA-GSA-PC (Reyes v. VSP), ECF No. 16 at 17-26.7 14 The same may be said of Defendant Moosbauer who, as a supervisor, is responsible to 15 oversee the actions of members of the culinary staff alleged by Plaintiff to be involved in the 16 following-- “Kosher meals contained food that was rotten, spoiled, and otherwise unfit for human 17 consumption”, “Shabbat dinner is served with spoiled meat”, “the internal components of the 18 meals are opened, spoiled, and otherwise contaminated”, “the meat is supposed to remain vacuum 19 sealed, but it is served to the plaintiff open and with mold growing on it.” Importantly, as shown 20 above, Operational Procedure 10048, Sec IV. E states in pertinent part, “The Correctional 21 Supervising Cooks (CSC) are directly responsible for the proper preparation, quality and quantity 22 of kosher meals and the service of the meals….” As with Warden Fisher, this section seemingly 23 makes defendant Moosbauer responsible to protect Plaintiff. 24 However, for the same reasons as set forth above, the Court finds that Plaintiff does not 25 state an Eighth Amendment claim for failure to protect against any other defendant. 26 27 28 7 The Court has taken judicial notice of this document. 1 Therefore, the Court finds that Plaintiff states claims only against Defendants Fisher and 2 Moosbauer for failure to protect Plaintiff from risk of harm from unsanitary foods, in violation 3 of the Eighth Amendment, but against no other defendant. 4 H. Retaliation – First Amendment: Moosbauer 5 “Prisoners have a First Amendment right to file grievances [and lawsuits] against prison 6 officials and to be free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 7 (9th Cir. 2012) (citing Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). “Within the prison 8 context, a viable claim of First Amendment retaliation entails five basic elements: (1) An 9 assertion that a state actor took some adverse action against an inmate (2) because of (3) that 10 prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First 11 Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.” 12 Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). To state a cognizable retaliation 13 claim, Plaintiff must establish a nexus between the retaliatory act and the protected activity. 14 Grenning v. Klemme, 34 F.Supp.3d 1144, 1153 (E.D. Wash. 2014). 15 Defendants argue that the retaliation claim against Defendant Moosbauer should be 16 dismissed because (1) Plaintiff’s alleged informal complaints to Moosebauer do not qualify as a 17 protected activity; (2) Plaintiff’s conclusory allegations that because he submitted grievances 18 Moosebaur retaliated against him are insufficient to state a claim; (3) the mere submission of 19 grievances is insufficient to establish a defendant’s knowledge; and (4) Plaintiff has not shown 20 there were no legitimate correctional purposes for Moosbauer’s actions. 21 Plaintiff alleges that in retaliation for repeated complaints and grievances, defendant 22 Moosebaur (a vocally proud Neo-Nazi) told his workers (including inmates such as Israel Garcia- 23 Trevino #AY-4957 and other “line backers”) that they no longer needed to wear gloves or hair 24 nets while working with the Kosher food. (ECF No. 10 at 15:13-16.) In addition, Plaintiff alleges 25 that defendant Moosbauer gave foods to his favorite workers that should have been used as 26 replacements for spoiled meals causing Plaintiff to be forced to either eat spoiled meals or not 27 to eat. (Id. at 15:16-19). 28 1 Defendants move to dismiss Plaintiff’s retaliation claim against Defendant Moosbauer on 2 the ground that oral threats to complain to prison officials and/or threats to file a complaint do 3 not amount to constitutionally protected activity. In support of their argument, Defendants argue 4 that Plaintiff’s informal complaints to Defendant Moosbauer do not qualify as a protected activity 5 under the First Amendment. Defendants cite Johnson v. Carroll, No. 2:08-CV-1494 KJN P, 2012 6 WL 2069561, at *33 (E.D. Cal. June 7, 2012), for its holding that prisoners have no protected 7 First Amendment right to verbally challenge correctional staff. In Johnson, the plaintiff 8 contended that his “verbal complaints and challenges to the excessive and harassing strip 9 searches performed by Officer Johnson was protected speech” and, therefore, that defendants’ 10 immediate responses thereafter are actionable under a First Amendment retaliation claim. Id. 11 The Court found that plaintiff’s statements to defendant Johnson, incident to the subject search, 12 were not protected speech, and that the plaintiff failed to state a First Amendment retaliation 13 claim based on the conduct that allegedly occurred immediately after the search. Id. at 34. 14 However, the Court finds Defendants’ reliance on this decision unpersuasive. The 15 Johnson decision was followed by the Ninth Circuit’s decision in Entler v. Gregoire, 872 F.3d 16 1031 (9th Cir. Oct. 6, 2017), holding that both “verbal . . .[and] written . . .threats to sue fall 17 within the purview of the constitutionally protected right to file grievances.” Id. at 1039-40. The 18 Court clarified that its holding was not expressly limited to threats to file a lawsuit. Instead, 19 because of the exhaustion requirement inherent in any prison lawsuit, the threat to file a grievance 20 is implicitly a threat to sue. Id. 21 Entler held that there is “no material distinction between retaliation in the Title VII 22 context and prisoner retaliation,” and Ninth Circuit jurisprudence has long held that “making an 23 informal complaint to a supervisor is a protected activity under Title VII anti-retaliation 24 provision.” Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000) (citing Equal Employment 25 Opportunity Commission v. Hacienda Hotel, 881 F.2d 1504, 1514 (9th Cir. 1989)); see also 26 Jones, 791 F.3d at 1035-36 (“Jones’ verbal complaints of discrimination to the Penitentiary’s 27 Food Services Manager and statements on intention to file suit were conduct protected by the 28 First Amendment.”); Halloum v. Ryan, 2014 WL 1047144, *5 (D. Ariz. 2014). (“[A] number of 1 courts have concluded that verbal statements made by an inmate that essentially constitute a 2 grievance, or that indicate an intent to file a formal written grievance, are protected by the First 3 Amendment.”) Loftis v. Montes, No. 218CV4769JFWGJS, 2020 WL 1290842, at *3–4 (C.D. 4 Cal. Feb. 11, 2020), report and recommendation adopted, No. 218CV4769JFWGJS, 2020 WL 5 1289170 (C.D. Cal. Mar. 18, 2020). 6 Courts have found protected activity where an informal complaint was submitted as a 7 verbal complaint to a superior. See Gathrite v. Wilson, No. 3:19-cv-01852-JAH-NLS, 2020 WL 8 4201668 (S.D. Cal. July 22, 2020); see also Ahmed v. Ringler, No. 2:13-CV-1050 MCE DAD, 9 2015 WL 502855, at *4 (E.D. Cal. Feb. 5, 2015) (finding inmate’s verbal complaints about 10 improper search of cell and seizure of his property to superior constituted protected conduct); see 11 also Hackworth v. Torres, No. 1:06-cv-773 RC, 2011 WL 1811035, at *1 (E.D. Cal. May 12, 12 2011) (rejecting defendant’s argument that prisoner’s verbal objections to a prison policy during 13 housing classification committee meeting with prison staff was not protected by the First 14 Amendment because the inmate had not filed a written grievance); see also Leslie v. Claborne, 15 1:19-cv-00366-NONE-GSA-PC, 2021 WL 4523720, at *4 (E.D. Cal. Oct. 4, 2021) (finding 16 plaintiff’s reporting of officer misconduct to a captain was protected); see also Uribe v. 17 McKesson, No. 08-cv-1285 DMS (NLS), 2011 WL 9640, at *12 (prisoner’s attempt to report a 18 prison official’s misconduct, either “verbally or in writing, constitutes speech or conduct entitled 19 to First Amendment protection.”). 20 Here, however, the Court finds that Plaintiff fails to state a cognizable claim for retaliation 21 against Defendant Moosbauer. Even if Plaintiff’s repeated complaints and grievances to 22 defendant Moosbauer about the condition of the Kosher foods being served constitute a protected 23 action under the First Amendment, Plaintiff has not established a sufficient nexus between his 24 complaints and grievances and the alleged adverse action taken by Defendant Moosbauer. 25 Moreover, the assertion that defendant Moosbauer told his workers that they no longer needed to 26 wear gloves or hair nets while working with Kosher foods does not, other than by assumption 27 and speculation, demonstrate that Plaintiff’s complaints and grievances were the driving force, 28 or even a remote cause of Moosbauer’s conduct as described above. A nexus between these two 1 has not been established. This is the same for the claim that inmate workers intentionally wore 2 their serving gloves when going to the restroom and then prepared Plaintiff’s food with those 3 gloves on. Therefore, the Court finds that Plaintiff fails to state a claim for retaliation in the 4 FAC against Defendant Moosbauer. 5 V. CONCLUSION AND RECOMMENDATIONS 6 Based on the foregoing, the Court finds that Plaintiff states claims in the First Amended 7 Complaint against Defendant Warden Raythel Fisher, Jr. and Culinary Worker Moosbauer for 8 violation of Plaintiff’s right to exercise his religion under the First Amendment, adverse 9 conditions of confinement in violation of the Eighth Amendment, and failure to protect Plaintiff 10 in violation of the Eighth Amendment, but no other claims against any of the Defendants upon 11 which relief may be granted. In this action, the Court previously granted Plaintiff an opportunity 12 to amend the complaint, with guidance by the Court. Plaintiff has now filed two complaints. 13 The Court finds that the deficiencies outlined above are not capable of being cured by 14 amendment, and therefore further leave to amend should not be granted. 28 U.S.C. § 15 1915(e)(2)(B)(ii); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). 16 Accordingly, IT IS HEREBY RECOMMENDED that: 17 1. Defendants’ Rule 12(b)(6) motion to dismiss, filed on March 14, 2022, be granted 18 in part, without leave to amend; 19 2. This case proceed only against defendants Warden Raythel Fisher, Jr. and 20 Culinary Worker Moosbauer for violation of Plaintiff’s right to exercise his 21 religion under the First Amendment, adverse conditions of confinement in 22 violation of the Eighth Amendment, and failure to protect Plaintiff in violation of 23 the Eighth Amendment, but no other claims against any Defendant upon which 24 relief may be granted; 25 3. All other claims and defendants be dismissed, without leave to amend; 26 4. Defendants Paez, Anguiano, Chapa, Lucero, Marquez, and Cruz be dismissed 27 from this case, with prejudice; 28 /// 1 5. Plaintiff’s claims for injunctive relief, violation of RLUIPA, and retaliation be 2 dismissed from this case, with prejudice; and 3 6. This case be referred back to the Magistrate Judge for further proceedings. 4 These Findings and Recommendations will be submitted to the United States District 5 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 6 fourteen (14) days after being served with these Findings and Recommendations, any party may 7 file written objections with the Court. The document should be captioned “Objections to 8 Magistrate Judge’s Findings and Recommendations.” The parties are advised that failure to file 9 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 10 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 11 (9th Cir. 1991)). 12 IT IS SO ORDERED. 13 14 Dated: March 16, 2023 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28