Al Saud 108844 v. Lamb

• Court: District Court, D. Arizona
• Decided: April 17, 2020
• Docket: 2:18-cv-04890
• Status: Unknown

Opinion

1 SKC 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Shaykh Muhammad Abdul Aziz Khalid No. CV 18-04890-PHX-SPL (JFM) 10 Bin Talal Al Saud, 11 Plaintiff, ORDER 12 v. 13 Mark Lamb, et al., 14 Defendants.

15 16 Plaintiff Shaykh Muhammad Abdul Aziz Khalid Bin Talal Al Saud, who is currently 17 confined in the Arizona State Prison Complex-Eyman in Florence, Arizona, brought this 18 civil rights action pursuant to 42 U.S.C. § 1983 and the Religious Land Use and 19 Institutionalized Persons Act (RLUIPA). Defendant Pinal County Jail Chaplain Michael 20 Whitaker has filed a Motion to Dismiss (Doc. 27). Plaintiff was informed of his rights and 21 obligations to respond (Doc. 28), and he opposes the Motion. (Doc. 31.) Also before the 22 Court is Plaintiff’s Motion for a Hearing (Doc. 33). 23 The Court will grant in part and deny in part the Motion to Dismiss and deny the 24 Motion for a Hearing. 25 I. Background 26 On screening of Plaintiff’s three-count Complaint pursuant to 28 U.S.C. § 1915A(a), 27 the Court determined that Plaintiff stated First Amendment Free Exercise, RLUIPA, and 28 state law claims in Count Two and First Amendment Free Exercise and Fourteenth 1 Amendment Equal Protection claims in Count Three against Defendant Chaplain 2 Whitaker1 and directed Defendant Whitaker (hereinafter “Defendant”) to answer these 3 claims. (Doc. 8.) The Court dismissed the remaining claims and Defendants. (Id.) 4 Defendant has moved to dismiss on a number of grounds, including that Plaintiff 5 failed to exhaust his administrative remedies before filing this action. 6 II. Federal Rule of Civil Procedure 12(b)(6) 7 Dismissal of a complaint, or any claim within it, for failure to state a claim under 8 Federal Rule of Civil Procedure 12(b)(6) may be based on either a “‘lack of a cognizable 9 legal theory’ or ‘the absence of sufficient facts alleged under a cognizable legal theory.’” 10 Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121–22 (9th Cir. 2008) (quoting 11 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)). In determining 12 whether a complaint states a claim under this standard, the allegations in the complaint are 13 taken as true and the pleadings are construed in the light most favorable to the nonmovant. 14 Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 900 (9th Cir. 2007). A 15 pleading must contain “a short and plain statement of the claim showing that the pleader is 16 entitled to relief.” Fed. R. Civ. P. 8(a)(2). But “[s]pecific facts are not necessary; the 17 statement need only give the defendant fair notice of what . . . the claim is and the grounds 18 upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (internal quotation 19 omitted). To survive a motion to dismiss, a complaint must state a claim that is “plausible 20 on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see Bell Atlantic Corp. v. 21 Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff 22 pleads factual content that allows the court to draw the reasonable inference that the 23 defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Where the plaintiff 24 is a pro se prisoner, the court must “construe the pleadings liberally and [] afford the 25 petitioner the benefit of any doubt.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). 26 As a general rule, when deciding a Rule 12(b)(6) motion, the court looks only to the 27

28 1 In his Complaint, Plaintiff identified Defendant Whitaker only as “Chaplain Mike,” which is how the Court identified Defendant in its Screening Order. 1 face of the complaint and documents attached thereto. Van Buskirk v. Cable News 2 Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002); Hal Roach Studios, Inc. v. Richard Feiner 3 & Co., Inc., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). If a court considers evidence outside 4 the pleading, it must convert the Rule 12(b)(6) motion into a Rule 56 motion for summary 5 judgment. United States v. Ritchie, 342 F.3d 903, 907–08 (9th Cir. 2003). A court may, 6 however, consider documents incorporated by reference in the complaint or matters of 7 judicial notice without converting the motion to dismiss into a motion for summary 8 judgment. Id. 9 III. Defendant’s Motion to Dismiss 10 A. Exhaustion 11 1. Legal Standard 12 Under the PLRA, a prisoner must exhaust “available” administrative remedies 13 before filing an action in federal court. See 42 U.S.C. § 1997e(a); Vaden v. Summerhill, 14 449 F.3d 1047, 1050 (9th Cir. 2006); Brown v. Valoff, 422 F.3d 926, 934-35 (9th Cir. 2005). 15 The prisoner must complete the administrative review process in accordance with the 16 applicable rules. See Woodford v. Ngo, 548 U.S. 81, 92 (2006). Exhaustion is required for 17 all suits about prison life, Porter v. Nussle, 534 U.S. 516, 523 (2002), regardless of the type 18 of relief offered through the administrative process, Booth v. Churner, 532 U.S. 731, 741 19 (2001). 20 In a limited number of cases, the failure to exhaust may be clear from the face of 21 the complaint; however, “such cases will be rare because a plaintiff is not required to say 22 anything about exhaustion in his complaint.” Albino v. Baca, 747 F.3d 1162, 1169 (9th 23 Cir. 2014); see Jones v. Bock, 549 U.S. 199, 216 (2007) (failure to exhaust is an affirmative 24 defense and a prisoner is not required to plead or demonstrate exhaustion in the complaint). 25 In the rare case where failure to exhaust is clear from the face of the complaint, the 26 defendant may move to dismiss under Rule 12(b)(6). Albino, 747 F.3d at 1169. To 27 properly be considered on a Rule 12(b)(6) motion, the nonexhaustion defense must raise 28 no disputed issues of fact. See Scott v. Kuhlmann, 746 F.2d 1377, 1378 (9th Cir. 1984) 1 (affirmative defense may be raised by motion to dismiss only if “the defense raises no 2 disputed issues of fact”). Typically, to show that a prisoner has failed to exhaust remedies, 3 a defendant will have to present probative evidence on a motion for summary judgment 4 under Rule 56. Albino, 747 F.3d at 1169. 5 2. Discussion 6 Defendant argues that it is clear that Plaintiff failed to exhaust his administrative 7 remedies because Plaintiff checked the boxes on the form Complaint, Count Two, 8 indicating that he had filed an administrative remedy but did not appeal his issue to the 9 highest level, which he explained was due to an “error in the system” and because he was 10 not allowed “to challenge any decisions by Lt. Hull.” (Doc. 27 at 4; Doc. 1 at 6−7.) 11 Defendant first cites to inapposite case law regarding pleading standards, which do not 12 apply here because Plaintiff is not required to say anything about exhaustion in his 13 Complaint, to argue that Plaintiff’s averment that he was prevented from filing a grievance 14 appeal cannot be accepted as true, presumably because Plaintiff fails to allege sufficient 15 facts to support this assertion. (Doc. 27 at 5.) This argument is fundamentally flawed and 16 not well taken. Defendant fails to apprehend, as an initial matter, that Plaintiff was not 17 required to plead or demonstrate exhaustion. See Albino 747 F.3d at 1169; Jones, 549 U.S. 18 199 at 216. Defendant’s argument is additionally illogical because Defendant at once 19 attempts to rely on Plaintiff’s averment that he did not file a grievance appeal to definitely 20 establish a failure to exhaust, and, at the same time, argues that the Court must ignore 21 Plaintiff’s averment that he was prevented from filing an appeal, which plausibly shows 22 that administrative remedies were unavailable. The Ninth Circuit has recognized numerous 23 instances where remedies may be rendered effectively unavailable and a prisoner is 24 excused from the PLRA exhaustion requirement. See e.g., Nunez v. Duncan, 591 F.3d 25 1217, 1224–26 (9th Cir. 2010); Marella v. Terhune, 568 F.3d 1024, 1027–28 (9th Cir. 26 2009) (per curiam). 27 Defendant also argues that, even if there was an error in processing Plaintiff’s 28 Grievance, as Plaintiff claims, because Plaintiff filed his Grievance on December 6, 2018, 1 and he dated his Complaint December 13, 2018, only seven days later, Plaintiff did not 2 wait five full workdays for a response, as required by jail policy. (Doc. 27 at 5; see Doc. 1 3 at 8.)2 Defendant appears to argue that, because jail staff had five full workdays to respond 4 to Plaintiff’s Grievance, Plaintiff could not have received a response, attempted to appeal 5 that response, and been prevented from doing so in less than five full workdays. (Id. at 5.)3 6 But even construing this argument, Defendant presents no compelling reasons why this 7 sequence of events could not have taken place in less than five full workdays, if, for 8 example, jail staff took less than the allotted time to respond to Plaintiff’s Grievance. 9 Most problematically, Defendant’s arguments rely on extrinsic evidence that the 10 Court cannot consider on a motion to dismiss. To establish the date of Plaintiff’s 11 Grievance, for instance, Defendant relies solely on an internal Pima County Jail memo, not 12 any actual Grievance[s] referred to in the Complaint. (See Doc. 27-1 at 29.) This memo, 13 from an unknown staff member to Defendant, inquires if Defendant had “heard about” or 14 was “dealing with” an Inmate Complaint Plaintiff filed on December 6, 2018, in which 15 Plaintiff complained that he had filed many requests for religious accommodations since 16 October 24, 2018. (Id.) This memo is not incorporated by reference in the Complaint or a 17 matter of judicial notice that the Court can consider without converting Defendant’s Rule 18 12(b)(6) Motion into a Rule 56 motion for summary judgment. And even if the Court could 19 do so, factual issues would nonetheless remain about whether the date ascribed to 20 Plaintiff’s Grievance in the memo is accurate and whether Plaintiff may have filed other, 21

22 2 To demonstrate this requirement, Defendant relies on the Pinal County Sheriff’s 23 Office’s Inmate Grievance Procedures, which he included as an exhibit to his Motion to Dismiss, but he does not request judicial notice of these policies, and he has made no 24 showing that these policies are attached to or relied upon by the Complaint or a matter of public record of which the Court can take judicial notice. 25 3 Defendant italicizes the word “full,” presumably to argue that, although there were, 26 in fact, five workdays between December 6 and December 13, 2019, these could not have been full workdays. This argument can only be based on the unfounded assumption that 27 Plaintiff filed his Grievance later in the day on December 6, 2018 than when he filed his Complaint on December 13, 2019, such that five full workdays had not yet elapsed. Apart 28 from being convoluted, this argument relies on an unsupported assumption as well as facts external to the Complaint. 1 previous grievances on the same issue, which he was prevented from appealing before 2 filing this action. 3 In short, Defendant has not shown that this is one of those rare cases in which the 4 failure to exhaust is clear from the face of the complaint. Moreover, Defendant’s 5 arguments are convoluted, disregard applicable Federal Rules of Procedure and Evidence, 6 and misapprehend established case law regarding exhaustion. See Albino 747 F.3d at 1169; 7 Jones, 549 U.S. 199 at 216; Scott, 746 F.2d at 1378.4 The Court will deny Defendant’s 8 Motion to Dismiss on non-exhaustion grounds. 9 B. State Actor Requirement 10 Defendant next argues that this entire action must be dismissed under Rule 12(b)(6) 11 because Plaintiff did not allege in the Complaint that “Chaplain Mike” is a state actor or 12 acted under state law, as required to bring a § 1983 action. (Doc. 27 at 6.) 13 The standard for dismissal under Rule 12(b)(6) is identical to the standard applied 14 on screening under § 1915A(b) (“fail[ure] to state a claim upon which relief may be 15 granted”). Because the Court screened Plaintiff’s First Amended Complaint under this 16 standard, Defendant’s arguments that Plaintiff fails to state a claim against him are not 17 appropriate except in a motion for reconsideration. See Murray v. Corr. Corp. of Am., CV 18 11-2210-PHX-RCB (JFM), 2012 WL 2798759 (D. Ariz. July 9, 2012) (Rule 12(b)(6) 19 motion to dismiss almost never appropriate when the court has screened a prisoner 20 complaint pursuant to § 1915A(b)). 21 Alternatively, even considering these arguments, the Court finds no basis for 22 reconsideration of its Screening Order. Defendant appears to rely merely on the absence 23 of the words “state actor” or “acted under color of state law” in relation to Defendant in 24 Plaintiff’s Complaint. But such explicit language is not required. To survive a motion to 25 dismiss, a complaint must state a claim that is “plausible on its face.” Ashcroft v. Iqbal,

26 4 Defense Counsel is reminded of their obligation under Federal Rule 11(b)(2) to 27 certify after reasonable inquiry that their defenses and legal contentions are warranted by existing law and are nonfrivolous. 28 1 556 U.S. 662, 678 (2009); see Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). 2 “A claim has facial plausibility when the plaintiff pleads factual content that allows the 3 court to draw the reasonable inference that the defendant is liable for the misconduct 4 alleged.” Iqbal, 556 U.S. at 678. Additionally, where the plaintiff is a pro se prisoner, the 5 court must “construe the pleadings liberally and [] afford the petitioner the benefit of any 6 doubt.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Dismissal is also unwarranted 7 “merely because [the] plaintiff’s allegations do not support the legal theory he intends to 8 proceed on, since the court is under a duty to examine the complaint to determine if the 9 allegations provide for relief on any possible theory.” Pruitt v. Cheney, 963 F.2d 1160, 10 1164 (9th Cir. 1991) (quoting 5A C. Wright & A. Miller, Federal Practice and Procedure 11 § 1357, at 336−37 (1990)). 12 Here, Plaintiff alleged that Defendant is a Chaplain at the Pinal County Jail; Plaintiff 13 made requests of Defendant for a religious diet, which Defendant denied; and Plaintiff 14 made additional religious-based requests of Defendant, including that the Jail offer Muslim 15 religious services akin to those provided for detainees of other faiths, which Defendant also 16 denied. (Doc. 1 at 2, 6, 7.) Taken as true, these allegations show that Defendant acted 17 under color of state law by providing chaplaincy services to Pinal County detainees and by 18 responding to and deciding detainees’ requests for religious accommodations. This would 19 be the case even if Defendant is not directly employed by Pinal County.5 A person is said 20 to act “under color of state law” when his “official character is such as to lend the weight 21 of the State to his decisions.” Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982). 22 Thus, a person may be sued as a “state actor” where he or she willfully participates in “joint 23 activity” with the state. Id. at 941 (quoting United States v. Price, 383 U.S. 787, 794 (1966) 24 (“To act ‘under color’ of law does not require that the accused be an officer of the State. It 25 is enough that he is a willful participant in joint activity with the state or its agents.”)); see, 26 e.g., West v. Atkins, 487 U.S. 42, 54 (1988) (finding a private physician a state actor where

27 5 Defendant does not dispute that he was employed by Pinal County, as the pleadings 28 seem to indicate; instead, he argues only that Plaintiff’s claims against him fail because Plaintiff did not explicitly allege that he was a state actor or that he acted under state law. 1 he was hired by a state prison to provide medical care to inmates); c.f. Florer v. 2 Congregation Pidyon Shevuyim, N.A., 639 F.3d 916, 923 (9th Cir. 2011) (applying both 3 “joint participant” and “public function” analyses to a plaintiff’s RLUIPA claims against a 4 private religious organization providing services to prisoners). 5 Defendant’s argument that Plaintiff did not sufficiently allege that Defendant was a 6 state actor for purposes § 1983 is without merit, and the Court will deny the Motion to 7 Dismiss on this basis. 8 C. Count Two 9 Defendant next argues that Plaintiff’s religious diet-based claims in Count Two fail 10 as a matter of law because Plaintiff did not allege any facts showing that Defendant had 11 authority over the Jail’s religious diet plans or the ability to make or alter these plans. 12 (Doc. 27 at 7.) Defendant misconstrues the nature of Plaintiff’s claim in Count Two. In 13 its Screening Order, the Court noted that Plaintiff had not stated any official capacity claims 14 against any Defendants because he had not alleged that his injuries resulted from a policy, 15 practice, or custom of the County. (See Doc. 8 at 3 n.1.) The Court therefore evaluated 16 Plaintiff’s claims solely as individual capacity claims, which require, instead, showing that 17 “the individual was personally involved in the deprivation of his civil rights.” (See id. 18 (quoting Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998).) 19 The Court also already found on screening that Plaintiff stated individual capacity 20 claims against Defendant in Count Two. Therefore, Defendant once again merely seeks 21 reconsideration of the Court’s Screening Order; moreover, he has not shown that the 22 Court’s finding that Plaintiff alleged enough facts to sue Defendant in his individual 23 capacity was in error. Quite simply, Plaintiff’s individual capacity claims against 24 Defendant do not require Plaintiff to show that Defendant was responsible for creating or 25 changing Pinal County’s religious diet policy. Instead, these claims arise from Defendant’s 26 personal interactions with Plaintiff and his alleged denials of Plaintiff’s requests for 27 Muslim religious accommodations in disregard of Plaintiff’s sincerely held religious 28 beliefs. (See Doc. 1 at 6.) 1 Defendant next argues with respect to Count Two that Plaintiff’s allegations do not 2 support First Amendment and RLUIPA claims because the First Amendment and RLUIPA 3 do not entitle Plaintiff to a halal diet, as he seeks, but only to a diet that does not require 4 him to violate his religious beliefs. (Id. at 7.) Defendant overlooks that Plaintiff alleged 5 that his sincerely held religious beliefs require him, among other things, to “only eat[] halal 6 foods.” (Doc. 1 at 6.) Plaintiff additionally alleged that Defendant erroneously claimed 7 that kosher and halal meals are the same and “refuse[d] to see [Plaintiff’s] sincerely held 8 religious practi[ces]” and to honor his dietary requests “thus compelling [him] to not fully 9 practice [his] faith.” (Id.) Defendant merely attempts to attack the merits of Plaintiff’s 10 claims and to introduce factual disputes about the scope of Defendant’s authority or lack 11 thereof to respond to Plaintiff’s religious diet requests, which is not a ground for dismissal 12 at the motion to dismiss stage. (See Doc. 27 at 8.) 13 Defendant argues more particularly with respect to Plaintiff’s RLUIPA claim that 14 this claim must be dismissed because RLUIPA does not provide for individual liability 15 against government employees or for money damages. (Id.) Defendant is correct. See 16 Wood v. Yordy, 753 F.3d 899, 904 (9th Cir. 2014) (“there is nothing in the language or 17 structure of RLUIPA to suggest that Congress contemplated liability of government 18 employees in an individual capacity.”); see also Smith v. Allen, 502 F.3d 1255, 1275 (11th 19 Cir. 2007), overruled on other grounds by Sossamon v. Texas, __ U.S. __; 131 S. Ct. 1651, 20 1658−60 (2011) (“RLUIPA . . . cannot be construed as creating a private right of action 21 against individual defendants for monetary damages.”); Harris v. Schriro, 652 F. Supp. 2d 22 1024, 1030 (D. Ariz. 2009) (following the Fifth, Seventh, and Eleventh Circuits and 23 dismissing plaintiffs’ individual damages claims under RLUIPA); Pugh v. Goord, 571 F. 24 Supp. 2d 477, 506−507 (S.D.N.Y. 2008) (“RLUIPA does not provide for the availability 25 of money damages against defendants in their individual capacities.”). Consequently, 26 Plaintiff cannot sue Defendant in his individual capacity for money damages under 27 RLUIPA, and the Court will dismiss Plaintiff’s RLUIPA claim in Count Two.6

28 6 The Court already found on screening that Plaintiff had not stated official capacity 1 Lastly, with respect to Count Two, Defendant argues that Plaintiff’s state law claim 2 based on Arizona Revised Statutes § 41-1493 must be dismissed because § 41-1493.01 3 only applies to “the state or any agency or political subdivision of the state” and not to 4 individuals, such as Defendant. (Doc. 27 at 7−8.) This is also correct. Section 14-1493.01 5 provides that a “government shall not substantially burden a person's exercise of religion.” 6 Ariz. Rev. Stat. Ann. § 41-1493.01. Further, “government” is statutorily defined in this 7 context to include “this state and any agency or political subdivision of this state,” not 8 individual state actors. See id. at § 41-1493(3). The Court did not separately discuss 9 Plaintiff’s § 41-1493.01 claim in its Screening Order, and it will now dismiss that claim 10 against Defendant as unauthorized under Arizona law. 11 D. Count Three 12 Defendant argues that Plaintiff’s First Amendment free exercise and Fourteenth 13 Amendment equal protection claims in Count Three must be dismissed because they are 14 based on Defendant’s alleged denial of various religious items and services to Plaintiff, 15 despite the provision of similar items and services to detainees of other faiths, and there is 16 no requirement that jails provide the items Plaintiff requested or that adherents of all faiths 17 be treated exactly the same. (Doc. 27 at 9−11.) Defendant also argues that Defendant was 18 not responsible for procuring these items for Plaintiff at his own expense and Defendant 19 did not have authority to create or change Jail policy. (Id.) 20 Defendant’s arguments do not compel the Court to reconsider its Screening Order 21 as to Plaintiff’s claims in Count Three. Defendant argues in conclusory fashion that, 22 because there are no constitutional requirements that prisoners be provided the precise 23 items Plaintiff requested, such as a Quran or a kufi cap, Plaintiff cannot state a free exercise 24 claim as a matter of law. (Doc. 27 at 9.) The cases Defendant cites, however, are fact- 25 specific and rest on a number of variables—such as the extent of demand for a particular 26 religious accommodation, whether prisoners seek to have religious items provided “free of 27

claims against any Defendant. (Doc. 8 at 1.) Additionally, the Court found that any claims 28 solely for injunctive relief were mooted by Plaintiff’s transfer out of Pinal County custody. (Doc. 8 at 7.) Therefore, Plaintiff’s RLUIPA claim should have been dismissed. 1 charge,” and whether the requested religious items or services are otherwise available to 2 prisoners such as through donations from religious organizations. Defendant appears to 3 claim, without discussion, that these fact-based analyses all apply equally here and require 4 outright dismissal of Plaintiff’s claims. (See id. at 9, 11.) But these cases do not, as 5 Defendant claims, defeat Plaintiff’s claims “as a matter of law.” And any further factual 6 development would necessarily rely on extrinsic evidence and raise questions of fact and 7 that cannot be addressed on a motion to dismiss. 8 Defendant makes similarly unavailing arguments with respect to Plaintiff’s equal 9 protection claim, and he additionally argues that this claim must be dismissed because 10 Plaintiff did not allege discriminatory animus, as required to state an equal protection 11 claim. (Id. at 10−11.) This argument also lacks merit. Plaintiff alleged in Count Three 12 that he asked Defendant why the Jail did not allow Muslim religious services or provide 13 Muslim holy materials but provided “other” services and holy materials, and Defendant 14 “became irrate [sic] an[d] stated it’s the law Christian and told me he’ll give me a Bible 15 and that’s it[,] nothing else.” (Doc. 1 at 7.) He also alleges that Defendant showed 16 “deliberate[] racism” and caused Plaintiff “not to fully be[] able to practice [his] faith.” 17 (Id.) These allegations permit the “reasonable inference” that Defendant acted with 18 discriminatory animus and “give the defendant fair notice of what . . . the claim is and the 19 grounds upon which it rests.” Iqbal, 556 U.S. at 678; Erickson, 551 U.S. at 93. 20 The Court will deny the Motion to Dismiss as to Plaintiff’s First and Fourteenth 21 Amendment claims in Count Three. 22 E. Qualified Immunity 23 Defendant also argues that this action must be dismissed because he is entitled to 24 qualified immunity. (Doc. 12 at 11−13.) Government officials enjoy qualified immunity 25 from civil damages unless their conduct violates “clearly established statutory or 26 constitutional rights of which a reasonable person would have known.” Harlow v. 27 Fitzgerald, 457 U.S. 800, 818 (1982). In deciding if qualified immunity applies, the Court 28 must determine: (1) whether the facts alleged show the defendant’s conduct violated a 1 constitutional right; and (2) whether that right was clearly established at the time of the 2 violation. Pearson v. Callahan, 555 U.S. 223, 230-32, 235-36 (2009) (courts may address 3 either prong first depending on the circumstances in the particular case). 4 Where, as here, the Court has already determined that Plaintiff has stated 5 constitutional claims, qualified immunity depends on the second prong: whether the right 6 at issue was clearly established. This question must be determined “in light of the specific 7 context of the case, not as a broad general proposition.” Saucier, 533 U.S. at 201. Thus, 8 “the contours of the right must be sufficiently clear that at the time the allegedly unlawful 9 act is [under]taken, a reasonable official would understand that what he is doing violates 10 that right;” and “in the light of pre-existing law the unlawfulness must be apparent.” 11 Mendoza v. Block, 27 F.3d 1357, 1361 (9th Cir. 1994) (quotations omitted). Regardless of 12 whether the constitutional violation occurred, the officer should prevail if the right asserted 13 by the plaintiff was not “clearly established” or the officer could have reasonably believed 14 that his particular conduct was lawful. Romero, 931 F.2d at 627. 15 Defendant does not define the right at issue in the specific context of Plaintiff’s 16 claims. Instead, he merely cites to a string of cases in which courts have granted qualified 17 immunity regarding religious rights claims. (Doc. 27 at 12−13.) Defendant merely 18 attempts to show as “a broad general proposition” that he is entitled to qualified immunity 19 without addressing the specific facts alleged in this case. As noted, this is insufficient to 20 establish a qualified immunity defense, see Saucier, 533 U.S. at 201, and the Court will 21 deny the Motion to Dismiss on qualified immunity grounds. 22 G. Declaratory Relief 23 Defendant lastly argues that Plaintiff’s claims for declaratory relief should be 24 dismissed as moot due to Plaintiff’s transfer to another correctional facility. Defendant 25 misconstrues Plaintiff’s prayer for relief as a separate claim. “[T]he demand is not itself a 26 part of the plaintiff’s claim.” Bontkowski v. Smith, 305 F.3d 757, 762 (7th Cir. 2002); see 27 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1255 (3d ed. 28 2016). Whether and to what extent Plaintiff is entitled to damages should he prevail on his 1 | remaining claims in this action has no bearing on whether he states a claim, and is not, itself, a reason to dismiss any claims. Requiring no cognizable action from the Court, this request is denied. 4} IV. Plaintiff’s Motion for a Hearing 5 In his Motion for a Hearing, Plaintiff requests a hearing on Defendant’s Motion to Dismiss “due to facts... not fully being express[ed] in matter Plaintiff believes Court can make an{] intelligent decision.” (Doc. 33 at 1.) Plaintiff specifically claims, in apparent 8 | reference to Defendant’s non-exhaustion defense, that “Defendants did deliberately hinder 9| Plaintiff from accessing the Kios system at Jail.” Ud.) 10 The Court will deny Plaintiff's Motion for a Hearing because Defendant’s Motion 11 | to Dismiss was already fully briefed (see Docs. 31, 32), and facts outside the allegations in 12 | the Complaint are neither required nor permitted for the Court to rule on this Motion. As 13 | discussed, Defendant’s non-exhaustion argument and other asserted bases for dismissal must be decided on the face of the Complaint as well as any documents attached to or 15 | specifically referenced therein. 16 IT IS ORDERED: 17 (1) The reference to the Magistrate Judge is withdrawn as to Defendant 18 | Whitaker’s Motion to Dismiss (Doc. 27) and Plaintiff's Motion for a Hearing (Doc. 33). 19 (2) Defendants’ Motion to Dismiss (Doc. 27) is granted in part as to Plaintiff’s 20 | state law and RLUIPA claims against Defendant in Count Two, and these claims are 21) dismissed; the Motion is otherwise denied. 22 (3) Plaintiff's Motion for a Hearing (Doc. 33) is denied. 23 Dated this 17th day of April, 2020. 24

% United States District kadge 27 28