Smith v. Ramirez ( 2019 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 NOEL RAY SMITH, Case No. 19-cv-00019-WHO (PR) Plaintiff, 8 ORDER DISMISSING THE COMPLAINT WITH LEAVE TO v. 9 AMEND 10 A. STEIBER, et al., 11 Defendants. Dkt. Nos. 20 and 29 12 13 INTRODUCTION 14 This federal civil rights suit is DISMISSED with leave to amend upon defendants’ 15 Rule 12(b)(6) motion because plaintiff Noel Ray Smith has failed to state a claim for relief. 16 Denial of two kosher meals, neither of which Smith ordered, did not violate his 17 constitutional and statutory rights. Any amended complaint shall be filed on or before 18 January 20, 2020. 19 BACKGROUND 20 These factual allegations are based on Smith’s complaint and are assumed as true 21 for purposes of this order. Smith alleges that on April 17 and 18, 2017, there were two 22 Kosher for Passover meals remaining on the food cart that would be either be discarded or 23 given to employees, he was the last inmate in line to be served, and yet Ramirez, a 24 correctional officer at CTF-Soledad, refused to allow him kosher dinners. (Compl., Dkt. 25 No. 1 at 3.) 26 Smith has not alleged that he ordered a Kosher meal or was entitled to one as a 27 religious diet. As defendants point out, “This is not a case where a religious meal was 1 10.) Instead, Smith asked whether he could have “one of the extra meals.” (Compl., Dkt. 2 No. 1 at 3.) Ramirez declined the request, saying “No, I don’t care if there are extra, the 3 rules are the rules.” (Id. at 3.) 4 Smith’s grievance regarding the matter was denied by defendant A. Steiber. His 5 “request to re-evaluate memo distribution has been denied due to the fact that no current 6 policies are in violation.” (Id. at 5.) The memo in question was written, Smith alleges, by 7 K. Allison, Director of the Division of Adult Services. (Id.) The memo’s contents are at 8 this point unknown, but Smith alleges Allison’s memo was responsible for Ramirez’s 9 denial of the kosher meals. (Id.) 10 Smith alleges defendants violated his free exercise and due process rights, as well as 11 his statutory rights under RLUIPA (Religious Land Use and Institutionalized Persons Act, 12 42 U.S.C. § 2000cc). 13 DISCUSSION 14 A. Standard of Review 15 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) should be 16 granted if the complaint does not proffer “enough facts to state a claim for relief that is 17 plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). 18 Dismissal is appropriate also when pleadings show a “lack of cognizable legal theory,” or 19 “the absence of sufficient facts alleged under a cognizable legal theory,” Balistreri v. 20 Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990) (citation omitted), or when an 21 affirmative defense is premised on facts alleged in the complaint, Scott v. Kuhlmann, 746 22 F.2d 1377, 1378 (9th Cir. 1994). 23 B. Legal Claims 24 The right to exercise religious practices and beliefs under the First Amendment 25 includes “the right to be provided with food sufficient to sustain [prisoners] in good health 26 that satisfies the dietary laws of their religion.” McElyea v. Babbitt, 833 F.2d 196, 198 27 (9th Cir. 1987) (citation omitted). In order to establish a free exercise of religion violation, 1 any justification reasonably related to legitimate penological interests. See Shakur v. 2 Schriro, 514 F.3d 878, 883-84 (9th Cir. 2008). RLUIPA claims are judged under the same 3 standard. International Church of Foursquare Gospel v. City of San Leandro, 673 F.3d 4 1059, 1067 (9th Cir. 2011). 5 Smith has not alleged that he was entitled to a Kosher meal. But even if he was, 6 missing two kosher meals does not constitute a burden sufficient to violate his First 7 Amendment or RLUIPA rights. Other courts have come to the same conclusion on similar 8 facts. Wilson v. Juaregui, No. 17-cv-04003-CRB (PR), 2019 WL 1559195, at *3 (N.D. 9 Cal. Apr. 10, 2019) (missing four kosher meals “was de minimis and not a substantial 10 burden on plaintiff’s practice of his religion”); Ahdom v. Etchebehere, No. 1:13-cv-01623- 11 DAD-GSA, 2017 WL 8793335, at *1 (E.D. Cal. Dec. 12, 2017) (missing one day of 12 Ramadan meals was not a substantial burden on plaintiff’s practice of his religion); 13 McKenzie v. Ellis, No. 10-cv-1490-LAB (AJB), 2012 WL 4050297, at *5 (S.D. Cal. Sept. 14 13, 2012) (a four-day denial of a religious diet because of alleged wrongdoing by jailors 15 did not “substantially burden” plaintiff’s religious practice); and Rapier v. Harris, 172 16 F.3d 999, 1006 n.4 (7th Cir. 1999) (the unavailability of pork-free meals on three 17 occasions out of a total of 810 meals was not “an impermissible burden on [plaintiff’s] free 18 exercise of religion”). Accordingly, Smith’s First Amendment and RLUIPA claims are 19 DISMISSED without leave to amend. 20 Smith’s due process claim also fails to state a claim for relief. To assert a due 21 process interest, there must be a “legitimate claim of entitlement to it.” Board of Regents 22 of State Colleges v. Roth, 408 U.S. 564, 577 (1972). Smith has not alleged that he had any 23 legitimate claim of entitlement in receiving the kosher meals. The record shows that the 24 contrary was true. The meals were extras, left over after the prisoners who had ordered 25 kosher meals had been served. Smith’s due process claim is DISMISSED with leave to 26 amend. In the amended complaint, Smith must allege facts showing he had a legitimate 27 claim of entitlement to those meals. 1 MOTION FOR COUNSEL 2 Smith’s second motion for the appointment of counsel will be denied. His first 3 motion was denied because this case does not present legally or factually complex issues, 4 not because of his pleadings were unintelligible. (Dkt. No. 29.) 5 Smith renews his motion on grounds that he has been adjudged “mentally disabled,” 6 “incompetent,” and “a danger to myself and others” by the state court and by the CDCR. 7 (Second Motion for Counsel, Dkt. No. 29 at 2.) Since July 31, 2018, he has been subject 8 to an order “authorizing involuntary administration of psychiatric medication” pursuant to 9 California Penal Code § 2602. (Id.; Defendants’ Response to Plaintiff’s Amended Motion 10 for Order to Appoint Counsel, Dkt. No. 30-1 at 4.) However, the record indicates that he is 11 competent to litigate this suit. His filings, including the renewed motion for counsel, are 12 clear and well-reasoned. His motion is DENIED. 13 CONCLUSION 14 Defendants’ motion to dismiss is GRANTED. The complaint is DISMISSED with 15 leave to file on or before January 21, 2020 an amended complaint regarding the due 16 process claim. Smith’s free exercise and RLUIPA claims are DISMISSED without leave 17 to amend. Smith’s motion for the appointment of counsel is DENIED. 18 The amended complaint must appear on this Court’s form and include the caption 19 and civil case number used in this order (19-00019 WHO (PR)) and the words FIRST 20 AMENDED COMPLAINT on the first page. Because an amended complaint completely 21 replaces the previous complaints, plaintiff must include in his amended complaint all the 22 claims he wishes to present and all of the defendants he wishes to sue. See Ferdik v. 23 Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Plaintiff may not incorporate material from 24 the prior complaint by reference. 25 26 27 1 The Clerk shall terminate all pending motions. 2 || ITIS SO ORDERED. 3 || Dated: December 12, 2019 Vo MQe 4 LIAM H. ORRICK 5 United States District Judge 6 7 8 9 10 11 e 12 14 15 16 Z 18 19 20 21 22 23 24 25 26 27 28