Al Saud 108844 v. Arpaio

• Court: District Court, D. Arizona
• Decided: October 24, 2019
• Docket: 2:16-cv-04405
• Status: Unknown

Opinion

1 KAB 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Shaykh Muhammad Abdul Aziz Klalid No. CV 16-04405-PHX-SPL (JFM) 10 Bin Talal Al Saud, 11 Plaintiff, ORDER 12 v. 13 Joseph M. Arpaio, et al., 14 Defendants.

15 16 Plaintiff Shaykh Muhammad Abdul Aziz Klalid Bin Talal Al Saud, who is currently 17 confined in Arizona State Prison Complex-Eyman, brought this civil rights action pursuant 18 to 42 U.S.C. § 1983. (Doc. 21.) Defendants move for summary judgment, and Plaintiff 19 did not file a response.1 (Docs. 85.) The Court subsequently ordered Plaintiff to show 20 cause why this action should not be dismissed for failure to prosecute (Doc. 91) and 21 Plaintiff did not respond. 22 I. Background 23 In his Second Amended Complaint, Plaintiff relevantly alleged as follows. On 24 September 29, 2016, Plaintiff was taken into the custody of the Maricopa County Sheriff’s 25 Office (MCSO) and incarcerated in the Fourth Avenue Jail. (Doc. 21 at 4.) On his arrival, 26 Plaintiff submitted a dietary request to Defendant Millard, the Commander of Religious 27 28 1 The Court provided notice to Plaintiff pursuant to Rand v. Rowland, 154 F.3d 952, 962 (9th Cir. 1998) (en banc) regarding the requirements of a response. (Doc. 87.) 1 Services, requesting an Islamic-Halal diet due to Plaintiff religious beliefs that requires him 2 to eat Halal food prepared in the name of Allah and to not eat “unhealthy unclean foods” 3 not prepared in the name of Allah. (Id. at 4-7.) Plaintiff told Millard and Defendants Ogar 4 and Herrera that the MSCO’s vegetarian diet did not meet his needs because it was not 5 prepared in the name of Allah. (Id.) There were also “rotten spoil [sic] maggots moldy 6 bread and fruit items” that “don’t meet [Plaintiff’s] dietary laws.” 7 On screening under 28 U.S.C. § 1915A(a), the Court determined that Plaintiff stated 8 a First Amendment free exercise claim, a claim pursuant to the Religious Land Use and 9 Institutionalized Persons Act (RLUIPA), and a Fourteenth Amendment conditions-of- 10 confinement claim against Defendants Millard, Herrera, and Ogar. (Doc. 25.) The Court 11 dismissed the remaining claims and Defendants. (Id.) Defendant Millard was 12 subsequently dismissed pursuant to a Stipulation. (Doc. 75.) 13 II. Failure to Prosecute 14 Plaintiff has failed to comply with the Court’s Order to show cause. Although 15 Plaintiff has filed notices indicating that he is not receiving some legal paperwork from 16 certain Arizona Department of Corrections (ADC) officials, Plaintiff has repeatedly 17 violated the Court’s orders regarding seeking appropriate relief regarding his problems 18 with legal paperwork. (See Docs. 92-95.) Moreover, Plaintiff’s allegations regarding not 19 receiving his legal paperwork are generally conclusory, Plaintiff has failed to provide any 20 evidence that he has grieved any issue regarding failure to obtain legal paperwork as this 21 Court previously instructed, and this Court does not have jurisdiction over the ADC or any 22 ADC officials in this action. 23 Accordingly, Plaintiff’s failure to comply with the Court’s orders and failure to 24 show cause for his failure to do so compels the conclusion that this action should be 25 dismissed for failure to prosecute. See Henderson v. Duncan, 779 F.2d 1421, 1423 (9th 26 Cir. 1986) (In determining whether Plaintiff’s failure to prosecute warrants dismissal of the 27 case, the Court must weigh the following five factors: “(1) the public’s interest in 28 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk 1 of prejudice to the defendants; (4) the public policy favoring disposition of cases on their 2 merits; and (5) the availability of less drastic sanctions.”). 3 Alternatively, the Court will address the merits of Defendants’ Motion for Summary 4 Judgment. 5 III. Summary Judgment Standard 6 A court must grant summary judgment “if the movant shows that there is no genuine 7 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 8 Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The 9 movant bears the initial responsibility of presenting the basis for its motion and identifying 10 those portions of the record, together with affidavits, if any, that it believes demonstrate 11 the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. 12 If the movant fails to carry its initial burden of production, the nonmovant need not 13 produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099, 14 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts 15 to the nonmovant to demonstrate the existence of a factual dispute and that the fact in 16 contention is material, i.e., a fact that might affect the outcome of the suit under the 17 governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable 18 jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 19 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th 20 Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its 21 favor, First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); however, 22 it must “come forward with specific facts showing that there is a genuine issue for trial.” 23 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal 24 citation omitted); see Fed. R. Civ. P. 56(c)(1). 25 At summary judgment, the judge’s function is not to weigh the evidence and 26 determine the truth but to determine whether there is a genuine issue for trial. Anderson, 27 477 U.S. at 249. In its analysis, the court must believe the nonmovant’s evidence and draw 28 1 all inferences in the nonmovant’s favor. Id. at 255. The court need consider only the cited 2 materials, but it may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3). 3 IV. Facts 4 Plaintiff was in the custody of the MCSO between September 29, 2016 and April 5 20, 2017, and was again booked into MSCO custody on October 12, 2017. (Doc. 86 ¶¶ 1, 6 2.)2 Plaintiff believes he may only consume foods prepared by sincere Muslims in the 7 name of God and he must consume Halal meat. (Id. ¶ 3.) According to Plaintiff, for food 8 to be prepared in the name of God, the person preparing the food must recite a prayer. (Id. 9 ¶ 4.) 10 Plaintiff testified that on two occasions, he found maggots in his food, and on several 11 other occasions, he found rocks in his food. (Id.) Plaintiff testified that he is served moldy 12 bread in his meals, but it is replaced if he brings it to the officer’s attention. (Id. ¶ 6.) 13 Imam Usama Shami, a certified Islamic Imam, provides chaplaincy services for 14 pretrial detainees and prisoners in MCSO custody and has given guidelines to the MCSO 15 as to what food is considered Halal. (Doc. 86-1 at 25-26.) Specifically, Shami asserts that 16 (1) all foods are considered Halal except: pork and pork by-products, animals not 17 slaughtered in accordance with Islamic law or that are dead before slaughter, alcoholic 18 drinks and intoxicants, carnivorous animals and birds of prey, blood or blood by-products, 19 and foods contaminated with the preceding categories; (2) Muslims may consume food that 20 is prepared by non-Muslims so long as the food is Halal; (3) fruits, vegetables, and grains 21 are inherently Halal and require no special invocation to render them such; (4) food need 22 not be prepared by a Muslim to be Halal; and (5) food need not be prepared in the name of 23 God to be Halal. (Doc. 86 ¶¶ 7-11.) 24 The Food Services Commander develops inmate diets and makes the final decision 25 on what is served and MCSO’s Quality Assurance Coordinator (QAC) or supervisor 26 inspects the food that is prepared in the Food Factory to verify that it meets quality 27 standards. (Id. ¶¶ 12-13.) The QAC conducts quality control inspections at each of

28 2 Plaintiff is currently in the custody of the ADC. 1 MCSO’s jail facilities once a week to ensure that food meets quality control guidelines. 2 (Id. ¶ 14.) Bread is baked at the Food Factory daily, packaged, and delivered to the various 3 jails by the fifth day after baking and is served the day after delivery. (Id. ¶ 15.) Hot 4 entrees are made the day of service and checked for quality during and after the production 5 process. (Id. ¶ 16.) Items such as rice, beans, and potatoes are cooked the day they are 6 served. (Id. ¶ 17.) Ingredients are checked for freshness during delivery and rejected if 7 the quality is unsatisfactory. (Id. ¶ 18.) Fresh produce is inspected during delivery, when 8 it is washed, and again before service. (Id. ¶ 19.) The Food Factory has a Sanitarian who 9 develops and implements food safety and sanitation practices and conducts inspections 10 weekly. (Id. ¶¶ 21-22.) The Food Factory’s employees are trained in food safety standards 11 and tested to ensure understanding, and the Food Factory passes Maricopa County Health 12 Inspections. (Id. ¶¶ 23-24.) 13 MCSO switched to the vegetarian diet in October 2013 and after the switch, the 14 Food Factory no longer serves meat and the regular diet is kosher certified and Halal 15 according to guidelines provided by Shami. (Id. ¶¶ 26-28.) The regular diet is evaluated 16 by a Registered Dietician and meets or exceeds USDA standards. (Id. ¶ 32.) The regular 17 diet provides 2600 calories and 95 grams of protein daily. (Id. ¶ 33.) The only vendor 18 contracted with Maricopa County that carries Halal-compliant entrees obtains the meals 19 from J & M Meals and My Own Meals. (Id. ¶ 35.) J&M pre-makes 500,000 entrees at a 20 time, and many employees, including non-Muslims, are involved in the preparation. (Id. ¶ 21 36.) J & M employees do not pray as they prepare the premade entrees. (Id. ¶ 37.) My 22 Own Meals are produced under kosher specifications and non-Muslims are involved in the 23 production. (Id. ¶ 38.) Premade meals from J & M and My Own Meals are certified Halal 24 by the Islamic Food and Nutrition Council of America. (Id. ¶ 39.) 25 The Food Services Division does not ask employees or applicants about their 26 religious beliefs and does not require employees to pray as part of their job duties. (Id. 27 ¶¶ 86-87.) 28 1 If an inmate in the custody of the MCSO receives a meal that does not meet quality 2 standards, he must inform an officer of problems before leaving the serving line so the 3 problems can be corrected. (Id. ¶ 41.) 4 Defendant Herrera is a chaplain and her duties include organizing religious services, 5 rites, holidays, and special events, providing pastoral counseling for inmates, responding 6 to questions or concerns about religious practices/services, and responding to inmate 7 requests for assistance with religious-related concerns. (Doc. 86 ¶¶ 70-71.) She does not 8 work in the Food Services Division and has no authority over the Food Services Division. 9 (Id. ¶¶ 72-73.) Defendant Ogar is a detention sergeant assigned to the Food Factory and is 10 responsible for ensuring security of the Food Factory and responding to grievances; he is 11 not involved in menu planning and has no authority to direct that Plaintiff be provided a 12 specific diet and is not involved in the preparation of food. (Id. ¶¶ 74-81.) 13 V. Discussion 14 A. RLUIPA 15 Defendants argue that Plaintiff’s RLUIPA claim should be dismissed because 16 Plaintiff failed to exhaust his available administrative remedies and Plaintiff’s individual 17 capacity claims should be dismissed because RLUIPA does not permit recovery of 18 damages. 19 Plaintiff’s only available remedy in this action under RLUIPA is injunctive or 20 declaratory relief. See Sossamon v. Texas, 563 U.S. 277, 293 (2011) (damages are not 21 available under RLUIPA for official capacity claims); Jones v. Williams, 791 F.3d 1023, 22 1031 (9th Cir. 2015) (“RLUIPA does not authorize suits for damages against state officials 23 in their individual capacities because individual state officials are not recipients of federal 24 funding and nothing in the statute suggests any congressional intent to hold them 25 individually liable.”) (citing Wood v. Yordy, 753 F.3d 899 (9th Cir. 2014)); Demers v. 26 Austin, 746 F.3d 402, 417 (9th Cir. 2014) (qualified immunity does not preclude injunctive 27 relief). 28 1 Further, Plaintiff’s RLUIPA claim for equitable relief is moot because Plaintiff has 2 been released from the custody of the jail. “Once an inmate is removed from the 3 environment in which he is subjected to the challenged policy or practice, absent a claim 4 for damages, he no longer has a legally cognizable interest in a judicial decision on the 5 merits of his claim.” Jones v. Williams, 791 F.3d 1023, 1031 (9th Cir. 2015) (quoting 6 Alvarez v. Hill, 667 F.3d 1061, 1064 (9th Cir. 2012)). Although there is an exception to 7 the mootness doctrine for claims that are capable of repetition, yet evade review, that 8 exception is limited to cases where the duration of the challenged action is too short to be 9 fully litigated before it ceases, and where there is a reasonable expectation that the plaintiff 10 will be subjected to the same action again. Alvarez, 667 F.3d at 1064. The possibility that 11 an inmate may commit another crime and be returned to custody is too speculative a basis 12 on which to conclude that his claims are capable of repetition. Id. at 1064-65. Here, there 13 is no evidence of a non-speculative reasonable expectation that Plaintiff will be subject to 14 the jail’s meal policies again. 15 Likewise, although an exception to mootness has been recognized where Plaintiff is 16 challenging ongoing policies to which others will continue to be subject, the Ninth Circuit 17 Court of Appeals has not extended this exception beyond “short-lived pretrial proceedings 18 in criminal prosecutions, where civil class actions would not be conducive to obtaining the 19 relief sought.” Id. at 1065. The Alvarez Court specifically refused to extend the exception 20 to “RLUIPA claims challenging prison policies affecting the conditions of post-conviction 21 incarceration” even where “some of the policies and practices” remained ongoing and 22 continued to affect current inmates because those inmates could bring their own RLUIPA 23 claims challenging those policies. Id. at 1065. Although Plaintiff here challenges jail 24 policies, as in Alvarez, there is no evidence in the Record before this Court to suggest that 25 other inmates currently subject to the jail’s policies would be unable to litigate their 26 RLUIPA claims to completion or to initiate a class action to obtain relief. See id.; Jones, 27 791 F.3d at 1031 (Plaintiff’s RLUIPA claim was moot because injunctive relief would have 28 no practical effect on his rights and would not redress in any way the injury he originally 1 asserted); see, e.g., Shields v. Ahern, No. 16-cv-00331-JD, 2017 WL 3394758, at * 3 (N.D. 2 Cal. Aug. 8, 2017) (Plaintiff’s claims for injunctive relief under RLUIPA were moot where 3 there was no reasonable expectation or probability that he would again be transferred to 4 the jail where the alleged violations occurred). Accordingly, Plaintiff’s RLUIPA claim is 5 moot, and will be dismissed. 6 B. Fourteenth Amendment Conditions-of-Confinement Claim 7 A pretrial detainee has a right under the Due Process Clause of the Fourteenth 8 Amendment to be free from punishment prior to an adjudication of guilt. Bell v. Wolfish, 9 441 U.S. 520, 535 (1979). “Pretrial detainees are entitled to ‘adequate food, clothing, 10 shelter, sanitation, medical care, and personal safety.’” Alvarez-Machain v. United States, 11 107 F.3d 696, 701 (9th Cir. 1996) (quoting Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 12 1982)). To state a claim of unconstitutional conditions of confinement against an 13 individual defendant, a pretrial detainee must allege facts that show: 14 (i) the defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; 15 (ii) those conditions put the plaintiff at substantial risk of 16 suffering serious harm; (iii) the defendant did not take reasonable available measures to abate that risk, even though a 17 reasonable official in the circumstances would have 18 appreciated the high degree of risk involved—making the consequences of the defendant’s conduct obvious; and (iv) by 19 not taking such measures, the defendant caused the plaintiff’s 20 injuries. 21 Gordon v. Cnty. of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018). 22 Whether the conditions and conduct rise to the level of a constitutional violation is 23 an objective assessment that turns on the facts and circumstances of each particular case. 24 Id.; Hearns v. Terhune, 413 F.3d 1036, 1042 (9th Cir. 2005). However, “a de minimis 25 level of imposition” is insufficient. Bell, 441 U.S. at 539 n.21. In addition, the “‘mere lack 26 of due care by a state official’ does not deprive an individual of life, liberty, or property 27 under the Fourteenth Amendment.” Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1071 28 (9th Cir. 2016) (quoting Daniels v. Williams, 474 U.S. 327, 330-31 (1986)). Thus, a 1 plaintiff must “prove more than negligence but less than subjective intent—something akin 2 to reckless disregard.” Id. 3 Plaintiff’s conditions-of-confinement claim is based on his allegations that he was 4 repeatedly served moldy bread, rotten fruit, and food with rocks in it. There is no evidence 5 before the Court that Defendants Herrera or Ogar were involved in the preparation of 6 Plaintiff’s food or that Plaintiff complained to them about specific instances of being served 7 such food or that they responded with a reckless disregard to a risk to Plaintiff. Plaintiff’s 8 allegations that he was served such food lack any specific detail such as when he was served 9 such food, and whether he told anyone at the time of service about the food, and, if so, 10 what their responses were, and Plaintiff has failed to produce any evidence that Herrera or 11 Ogar were involved in the alleged service of such food to Plaintiff or acted in any way that 12 could constitute a reckless disregard of a risk to Plaintiff. Moreover, Plaintiff has not 13 produced any evidence contradicting Defendants’ evidence that the food served in the jail 14 goes through significant quality control measures, and the Food Factory passes Maricopa 15 County Health Inspections. Accordingly, summary judgment will be granted in favor of 16 Defendants as to Plaintiff’s Fourteenth Amendment conditions-of-confinement claim. 17 C. First Amendment Free Exercise Claim 18 Defendants assert that Herrera and Ogar do not have policymaking authority and it 19 is the Food Services Commander who makes the final decision on what is included in the 20 inmate diet, and they assert that there is no evidence that they were responsible for any 21 policy that denied Plaintiff the diet he requested. Indeed, there is no evidence in this Record 22 that Herrera and Ogar made the decision to deny Plaintiff the specific diet he requests and 23 summary judgment will be granted in favor of Defendants Herrera and Ogar. Alternatively, 24 as discussed below, there is no evidence in this Record that Plaintiff’s First Amendment 25 rights were violated. 26 Defendants argue that providing Plaintiff a Halal meal that is not prepared by 27 Muslims in the name of Allah is reasonably related to a legitimate governmental interest. 28 1 “Inmates retain the protections afforded by the First Amendment, ‘including its 2 directive that no law shall prohibit the free exercise of religion.’” Shakur v. Schriro, 514 3 F.3d 878, 883-84 (9th Cir. 2008) (quoting O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 4 (1987)). To implicate the Free Exercise Clause, a prisoner must show that the belief at 5 issue is both “sincerely held” and “rooted in religious belief.” Malik v. Brown, 16 F.3d 6 330, 333 (9th Cir. 1994); see Shakur, 514 F.3d 884-85 (noting the Supreme Court’s 7 disapproval of the centrality test and finding that the sincerity test in Malik determines 8 whether the Free Exercise Clause applies). If the inmate makes this initial showing, he 9 must then establish that prison officials substantially burden the practice of his religion by 10 preventing him from engaging in conduct which he sincerely believes is consistent with 11 his faith. Shakur, 514 F.3d at 884-85. 12 A regulation that burdens the First Amendment right to free exercise may be upheld 13 only if it is reasonably related to a legitimate penological interest. Turner v. Safley, 482 14 U.S. 78, 89 (1987). This determination requires analysis of four prongs: (1) whether there 15 is a valid, rational connection between the regulation and the legitimate governmental 16 interest; (2) whether there are alternative means of exercising the right that remain open to 17 inmates; (3) the impact accommodation of the right will have on guards and other inmates, 18 and on the allocation of prison resources; and (4) the absence of ready alternatives. Id. at 19 90. 20 As to the first Turner factor, Defendants assert that simplifying meal service, 21 managing staff resources, and lowering costs are legitimate governmental interests. 22 Specifically, Defendants assert that serving Halal-compliant meals, but not meals prepared 23 by Muslims in the name of God, is rationally related to streamlining food production and 24 managing staff resources. Defendants assert that the Food Factory consolidation of the 25 vegetarian, kosher, and diabetic diets into the regular diet allowed the Food Factory to 26 produce healthy meals that met the religious requirements of most inmates, with six fewer 27 employees, and a food cost of $280,000 annually. Defendants have shown that not 28 requiring Muslims to prepare food in the name of God is rationally related to streamlining 1 food production and managing staff resources because the MCSO contracts with outside 2 vendors and strives to efficiently provide food in compliance with most inmates’ religious 3 requirements. 4 As to the second Turner factor, Defendants assert that Plaintiff can pray, read 5 scriptures, and counsel with spiritual leaders and is thus not deprived of all means of 6 religious exercise or expression. With regard to meals in particular, Plaintiff is being 7 provided a Halal diet, although it is not the exact diet that Plaintiff himself considers to be 8 Halal. This factor weighs in favor of Defendants. See Shakur, 514 F.3d at 886 (where 9 inmate retained the ability to participate in other significant rituals and ceremonies of his 10 faith, he had alternative means of exercising his religion despite the denial of a particular 11 diet request). 12 Defendants assert that with regard to the third Turner factor, accommodating 13 Plaintiff’s need for food prepared by sincere Muslims in the name of God defeats the Food 14 Factory’s goals of preparing meals in an efficient and cost effective way and would require 15 the Food Services Division to ask employees about their religious beliefs and would require 16 those employees to pray as an additional duty of their position, and additional quality 17 control and record keeping procedures would have to be established. This factor weighs 18 in favor of Defendants. 19 As to the fourth Turner factor, Defendants assert that there is no readily available 20 alternative source for Plaintiff’s food as Plaintiff is already provided a Halal diet. This 21 factor weighs in favor of Defendants. 22 Because Defendants have shown that not providing Plaintiff the exact Halal diet he 23 seeks is reasonably related to legitimate penological interests, summary judgment will be 24 granted in favor of Defendants as to Plaintiff’s First Amendment free exercise claim. 25 IT IS ORDERED: 26 (1) The reference to the Magistrate Judge is withdrawn as to Defendants’ Motion 27 for Summary Judgment (Doc. 85). 28 1 (2) | Defendants’ Motion for Summary Judgment (Doc. 85) is granted, and the action is terminated with prejudice. The Clerk of Court must enter judgment accordingly. 3 Dated this 23rd day of October, 2019. 4 5 6 LRG 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28