Bautista v. Nevada Department of Corrections

• Court: District Court, D. Nevada
• Decided: March 4, 2021
• Docket: 3:18-cv-00194
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 EBERTO BAUTISTA, Case No. 3:18-cv-00194-MMD-WGC

7 Plaintiff, ORDER v. 8

9 NEVADA DEPARTMENT OF CORRECTIONS, et al., 10 Defendants. 11

12 I. SUMMARY 13 Pro se Plaintiff Eberto Bautista, who is an inmate in the custody of the Nevada 14 Department of Corrections (“NDOC”), brings this action under 42 U.S.C. § 1983 and the 15 Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”). (ECF No. 7.) 16 Plaintiff and Defendants have filed cross-motions for summary judgment. (ECF Nos. 59 17 (“Plaintiff’s Motion”), 60 (“Defendants’ Motion”).) Before the Court is a Report and 18 Recommendation (“R&R”) of United States Magistrate William G. Cobb, recommending 19 the Court deny Plaintiff’s Motion and grant Defendants’ Motion. (ECF No. 78.) Plaintiff filed 20 an objection to the R&R. (ECF No. 81 (“Objection”)1.) Because the Court agrees with 21 Judge Cobb’s analysis, the Court will accept the R&R, deny Plaintiff’s Motion and grant 22 Defendants’ Motion. 23 II. BACKGROUND 24 The events giving rise to this action took place while Plaintiff was housed at 25 Lovelock Correctional Center (“LCC”). (ECF No. 7.) Defendants are former NDOC Director 26 27 1Defendants filed a response. (ECF No. 82.) Plaintiff filed a reply (ECF No. 83) 28 without seeking leave of the Court in violation of LR IB 3-2(a). For that reason and because the Court finds that a reply brief is unwarranted, the Court will strike Plaintiff’s reply brief. 2 Manager Maribelle Henry, and Rabbi Yisroel Rosskamm.2 (ECF No. 6.) Specifically at 3 issue in this action is NDOC’s Common Fare/Religious Diet (“Common Fare”), the menu 4 provided to inmates whose “sincere religious/spiritual dietary needs cannot be met by the 5 Master Menu.” (ECF No. 60-10 at 2.) 6 A. Plaintiff’s Allegations 7 Plaintiff alleges that he practices Messianic Judaism, but that he was not provided 8 a kosher diet that was prepared and served in a proper kosher setting, and that he was 9 prevented from obtaining items necessary to practice his religion due to his indigent status. 10 (ECF No. 6.) As a result, Plaintiff asserts claims under the First Amendment’s Free 11 Exercise Clause, RLUIPA, and the Fourteenth Amendment’s Equal Protection Clause.3 12 (Id.) 13 Specifically, Plaintiff alleges that he was provided a “one-size fits all” vegetarian 14 diet with the same items served every day, whereas inmates who did not require kosher 15 meals received a variety. (Id.) While other inmates received 13 meat servings per month 16 for breakfast, 22 meat servings per month for lunch, and 25 meat servings per month for 17 their evening meals, Plaintiff alleges he received only quinoa, unwashed cabbage, and 18 freezer burned fruit. (Id.) Plaintiff further claims the prison hired Rabbi Rosskamm to certify 19 the common fare diet as kosher in order to punish inmates who sought a kosher diet. (Id.) 20 Plaintiff also alleges the conditions of his water dispenser and the kosher food 21 preparation areas and utensils are not adequately supervised or maintained, which allow 22 for cross-contamination. (Id.) He claims he must eat on tables cleaned with filthy rags and 23 24 2Current NDOC Director Charles Daniels was substituted for Dzurenda under 25 Federal Rule of Civil Procedure 25(d), insofar as Dzurenda was sued in his official capacity. (ECF No. 45.) 26 3Plaintiff also asserted a claim under the Eighth Amendment, but this was 27 dismissed with prejudice at screening. (ECF No. 6.) Plaintiff made additional arguments that alleged Eighth Amendment violations in his Motion (ECF No. 59), but the Court will 28 not consider these because they were dismissed in the screening order and he did not amend his Complaint. 2 asserts that Defendants fail to post rabbinical health inspection reports in the kosher food 3 preparation area, yet do post health reports in the general culinary area. (Id.) 4 Finally, Plaintiff avers he can only eat cold foods on Shabbat and high holy days, 5 while other inmates receive hot entrees on their holy days. (Id.) 6 Plaintiff identifies two administrative regulations that he argues violate his 7 constitutional rights. The first is Administrative Regulation 810 (“AR 810”), which requires 8 faith groups who require special consumable food for workshop to obtain them for 9 themselves from the canteen, an approved vendor, or an approved religious organization. 10 He claims having grape juice and kosher bread is a central tenet to the Messianic Sabbath, 11 but that because he is an indigent inmate he must rely on NDOC to provide him with the 12 items necessary to practice his faith. The second is Administrative Regulation 814 (“AR 13 814”), which details the Common Fare policy and procedure. (ECF No. 60-10 at 8.) 14 B. The Summary Judgment Motions 15 Plaintiff moved for summary judgment, arguing: (1) the Common Fare diet he was 16 served did not comply with his dietary needs and he was served a primarily vegetarian 17 diet with no dessert while mainline inmates received a significant amount of meat in their 18 meals; (2) AR 814 unconstitutionally allows non-kosher foods to be served to inmates 19 receiving the Common Fare diet; and (3) AR 810 is unconstitutional insofar as it provides 20 that faith based groups who require special consumable foods for worship, such as grape 21 juice, bread, or kosher items, must obtain those items themselves from the canteen, an 22 approved vendor, or approved religious organization. (ECF No. 59 at 20-21.) 23 Defendants also moved for summary judgment, arguing: (1) the facts call into 24 question the sincerity of Plaintiff’s religious beliefs; (2) Defendants have not burdened 25 Plaintiff’s religious practice and the Common Fare diet is reasonably related to legitimate 26 penological interests; (3) Defendants are entitled to qualified immunity because the 27 Complaint does not allege what individual action was taken by each Defendant to violate 28 Plaintiff’s rights; (4) Plaintiff’s equal protection claim does not challenge any particular 2 situated persons, and he has no evidence of discriminatory intent on the part of any 3 Defendants; (5) Plaintiff’s RLUIPA claim fails because he cannot demonstrate any burden 4 on his religious practice; and (6) Defendants are entitled to qualified immunity as to all 5 money damages because the formulation of the Common Fare diet and its implementation 6 was completed under rabbinical supervision to ensure compliance with kosher dietary 7 laws. (ECF No. 78 at 5.) 8 Judge Cobb ultimately found that although the parties had shown a genuine dispute 9 of material fact as to whether Plaintiff’s religious beliefs were sincerely held (id. at 11), 10 Defendants had not substantially burdened Plaintiff’s religious practice (id. at 19). Further, 11 Judge Cobb determined that Plaintiff had not demonstrated evidence of discriminatory 12 intent, a requisite element of his equal protection claim. (Id. at 26.) Consequently, Judge 13 Cobb recommended denying Plaintiff’s Motion and granting Defendants’ Motion. (Id. at 14 27.) Plaintiff filed an Objection to the R&R (ECF No. 81), and Defendants responded to 15 the Objection (ECF No. 82.) 16 III. LEGAL STANDARD 17 This Court “may accept, reject, or modify, in whole or in part, the findings or 18 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 19 timely objects to a magistrate judge’s report and recommendation, then the Court is 20 required to “make a de novo determination of those portions of the [report and 21 recommendation] to which objection is made.” Id. The Court’s review is thus de novo 22 because Plaintiff filed his Objection. (ECF No. 81.) 23 IV. DISCUSSION 24 As a preliminary matter, Judge Cobb identified several arguments in Plaintiff’s 25 Motion which were not included in his Complaint. (ECF No. 78 at 7.) Because “[a] 26 complaint guides the parties’ discovery, putting the defendant on notice of the evidence it 27 needs to adduce in order to defend against the plaintiff’s allegations,” Coleman v. Quaker 28 Oats Co., 232 F.3d 1271, 1292 (9th Cir. 2000), Judge Cobb excluded Plaintiff’s newly 2 explain why, other than that he believed Judge Cobb misapprehended the meaning of 3 kosher as the basis for Plaintiff’s allegations. (ECF No. 81 at 3-4.) However, as a matter 4 of procedure, the Court agrees with Judge Cobb that the newly raised arguments should 5 be excluded from the summary judgment analysis. These specific allegations were not 6 present in Plaintiff’s Complaint, and Defendants did not have adequate opportunity to 7 address them. Further, the fact that at various times in his pleadings Plaintiff has used 8 ‘vegetarian’ and ‘vegan,’ and ‘organic’ and ‘kosher’ inconsistently amplifies the potential 9 for confusion and increases the chances that Defendants would be required to address 10 changing arguments. Ultimately, the Court will consider only arguments which were raised 11 in the Complaint and that both parties have had adequate opportunity to conduct discovery 12 on. Therefore, the Court will not consider the newly raised arguments. 13 Plaintiff’s previously raised arguments fall into three categories: First Amendment 14 Free Exercise claims, RLUIPA claims, and Fourteenth Amendment Equal Protection 15 Claims. The Court reviews these arguments in turn as follows. 16 A. Right to Kosher Diet 17 Plaintiff’s claims under the First Amendment and RLUIPA arise from his allegation 18 that he has been denied access to an adequately kosher diet. There are overlapping 19 20 4Specifically, the following issues were excluded from Judge Cobb’s analysis: “that 21 his religious rights are being violated because he is not being served a menu consisting of organic fruits, vegetables and meat; that homosexual inmates are preparing his foods; 22 that he should not have to go and pick up his meals on the Sabbath; that inmates who celebrate Passover, who are not receiving the Common Fare diet, are only provided a 23 holiday meal on one day of Passover; [that] Common Fare inmates are deliberately targeted to be removed from Common Fare if they accept mainline food, but if a mainline 24 inmate eats Common Fare food, nothing is done; and [that] requiring him to sign a Common Fare agreement that precludes him from eating mainline, non-kosher meals 25 violates his religious rights.” (ECF No. 78 at 7-8.)

26 Additionally, Plaintiff raised a new theory that the Common Fare agreement he signed in order to receive kosher meals somehow burdened his religious exercise. (ECF 27 No. 67-2 at 2.) In his Complaint, Plaintiff never alleged that the Common Fare agreement in any way interfered with his religious rights, but only mentioned he received a notice of 28 charges for eating non-kosher items. (ECF No. 7 at 5.) The Court will not permit a new theory of recovery at summary judgment. 2 RLUIPA violation. Both claims require that Plaintiff demonstrate Defendants substantially 3 burdened his sincerely held religious belief. Because Plaintiff has failed to provide 4 sufficient evidence to support his allegation that Defendants’ practices or regulations 5 substantially burdened his right to a kosher diet, the Court will deny Plaintiff’s Motion and 6 grant Defendants’ Motion as to the First Amendment and RLUIPA claims. 7 1. First Amendment Free Exercise 8 “The First Amendment, applicable to state action by incorporation through the 9 Fourteenth Amendment … prohibits government from making a law prohibiting the free 10 exercise [of religion].” Hartmann v. Cal. Dep't of Corr. & Rehab., 707 F.3d 1114, 1122 (9th 11 Cir. 2013) (citations and quotation marks omitted). “The right to exercise religious practices 12 and beliefs does not terminate at the prison door. The free exercise right, however, is 13 necessarily limited by the fact of incarceration, and may be curtailed in order to achieve 14 legitimate correctional goals or to maintain prison security.” McElyea v. Babbit, 833 F.2d 15 196, 197 (9th Cir. 1987) (per curiam); see also O'Lone v. Estate of Shabazz, 482 U.S. 16 342, 348 (1987); Shakur v. Schriro, 514 F.3d 878, 883-84 (9th Cir. 2008). 17 To implicate the Free Exercise Clause, a prisoner must first establish his belief is 18 both sincerely held and rooted in religion. See Shakur, 514 F.3d at 884-85. Then, a person 19 asserting a free exercise claim must show “that the government action in question 20 substantially burdens the person's practice of her religion.” Jones v. Williams, 791 F.3d 21 1023, 1032 (9th Cir. 2015) (citation omitted). “A substantial burden … place[s] more than 22 an inconvenience on religious exercise; it must have a tendency to coerce individuals into 23 acting contrary to their religious beliefs or exert substantial pressure on an adherent to 24 modify his behavior and to violate his beliefs.” Id. (citation and internal quotation marks 25 omitted). 26 “[A]lleged infringements of a prisoners' free exercise rights are judged under a 27 reasonableness test [that is] less restrictive than that ordinarily applied to alleged 28 infringement of fundamental constitutional rights.” Id. (citing O'Lone, 482 U.S. at 349). “The 2 Id. (quotation marks omitted, citing Turner v. Safley, 482 U.S. 78, 89 (1987)). The 3 ‘reasonableness’ factors outlined in Turner are: (1) “there must be a ‘valid, rational 4 connection’ between the prison regulation and the legitimate governmental interest put 5 forward to justify it”; (2) “whether there are alternative means of exercising the right that 6 remain open to prison inmates”; (3) “the impact accommodation of the asserted 7 constitutional right will have on guards and other inmates, and on the allocation of prison 8 resources generally”; and (4) the “absence of ready alternatives” and “the existence of 9 obvious, easy alternatives.” Turner, 482 U.S. at 89-91; see also O'Lone, 482 U.S. at 349. 10 2. RLUIPA 11 Section 3 of RLUIPA provides: 12 No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution . . . even if the burden 13 results from a rule of general applicability unless the government demonstrates that imposition of the burden on that person—(1) is in 14 furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. 15 16 42 U.S.C. § 2000cc-1(a). 17 “The Supreme Court has recognized RULIPA as . . . [a] ‘congressional effort[ ] to 18 accord religious exercise heightened protection from government-imposed burdens[.]” 19 Greene v. Solano Cty. Jail, 513 F.3d 982, 986 (9th Cir. 2008) (quoting Cutter v. Wilkinson, 20 544 U.S. 709, 714 (2005)). Nevertheless, “[c]ourts are expected to apply RLUIPA's 21 standard with due deference to the experience and expertise of prison and jail 22 administrators in establishing necessary regulations and procedures to maintain good 23 order, security, and discipline, consistent with consideration of costs and limited 24 resources.” Hartmann, 707 F.3d at 1124 (internal quotation marks and citation omitted). 25 “Under RLUIPA, the challenging party bears the initial burden of proving that his 26 religious exercise is grounded in a sincerely held religious belief . . ., and that the 27 government's action substantially burdens his religious exercise.” Holt v. Hobbs, 135 S.Ct. 28 853, 857 (2015) (citations omitted). A substantial burden “must impose a significantly great 2 Christian Coll v. City of Morgan Hill, 360 F.3d 1024, 1034 (9th Cir. 2004)). 3 If the plaintiff makes a showing of a substantial burden on the exercise of his 4 religion, the court's analysis then turns to whether the defendant has established that 5 burden furthers “a compelling interest,” and does so “by the least restrictive means.” 42 6 U.S.C. § 2000cc-1(a), (b); Holt, 135 S.Ct. at 857 (citation omitted). 7 3. Analysis 8 To successfully allege claims for violations of either the First Amendment’s free 9 exercise clause or RLUIPA, Plaintiff must demonstrate that (1) he had a sincerely held 10 religious belief, and (2) Defendants substantially burdened his exercise of that belief. 11 Judge Cobb found that there is a genuine dispute of material fact as to whether Plaintiff’s 12 religious belief is sincerely held. Plaintiff argues that as a practitioner of Messianic 13 Judaism, he must keep the dietary laws set forth in Leviticus, chapter 11, which require 14 him to eat kosher, unprocessed meats and clean fruits and vegetables. (ECF No. 59-1 at 15 3-9.) To support the sincerity of his beliefs, Plaintiff testifies that he first attended the 16 Messianic Judaism group at LCC in 2015 or 2016, that he is listed on NDOC’s faith 17 declaration form as being a practitioner of Messianic Judaism, and that he placed a 18 request to receive the Common Fare diet in April of 2016. (Id. at 1-3.) Defendants counter 19 that Plaintiff’s beliefs are not sincerely held because he has purchased items from the 20 canteen that are not kosher, including pork rinds, shrimp ramen, and Cheetos. (ECF No. 21 60-3.) Defendants further point to several occasions when Plaintiff took mainline, non- 22 kosher meals in violation of his Common Fare agreement. (ECF Nos. 60-5, 60-7, 60-8, 23 60-9.) Plaintiff responded to these allegations by stating that his non-kosher canteen 24 purchases were for his cellmate, and that he only took mainline meals because he was 25 tired of the repetitious Common Fare meals that served inadequate meat and did not have 26 desserts. (ECF no. 67-2 at 17, 21.) The Court agrees with Judge Cobb—there is a genuine 27 dispute of material fact as to whether Plaintiff’s deviations from the Common Fare plan 28 2 sincerely held. 3 Because there is a question as to whether Plaintiff’s religious belief is sincerely 4 held, both Plaintiff’s and Defendants’ Motion turn on whether Plaintiff’s religious beliefs 5 were substantially burdened. Plaintiff makes three cognizable arguments that Defendants 6 substantially burdened his religious practice: (1) Defendants did not provide Plaintiff with 7 an adequate kosher diet; (2) Plaintiff’s meals were not prepared in an adequate kosher 8 setting; and (3) Plaintiff had to obtain group worship consumables, such as grape juice 9 and kosher bread, from the canteen, an approved vendor, or an approved religious 10 organization. Defendants counter that Plaintiff has provided no evidence that the Common 11 Fare diet is not kosher, and provides evidence that the Common Fare plan is certified as 12 kosher compliant. Because the Court finds that Plaintiff has not provided adequate 13 evidence to support his claim that he was served non-kosher food, the Court will deny 14 Plaintiff’s Motion and grant Defendants’ Motion. 15 Plaintiff has failed to demonstrate beyond mere conjecture that his religious right to 16 a kosher diet was substantially burdened. 17 a. Sufficiency of Diet 18 Plaintiff asserts that the Common Fare diet is insufficient because it did not contain 19 adequate amounts of meat. But other courts in this circuit have found that receiving 20 different meat options or even less meat was not a substantial burden on religious 21 exercise. See Shoemaker v. Williams, No. CV 10-0826-JO, 2013 WL 528306, at *2 (D. 22 Or. Feb. 11, 2013) (rejecting prisoner’s claim that a meat-free diet infringed his religious 23 rights); see also Sprouse v. Ryan, 346 F. Supp. 3d 1347, 1359 (D. Ariz. 2017) (finding no 24 substantial burden when prison served kosher meal without 100% beef); Fonseca v. Cal. 25 Dep’t of Corr. and Rehab., No. 14-cv-787-LAB (BLM), 2015 WL 4172194, at *4 (S.D. Cal. 26 July 10, 2015) (finding that serving fish more often than beef was not a substantial burden). 27 Plaintiff makes no claim that his religion requires him to eat a certain amount of meat. The 28 requirements of his religion are instead that if Defendants serve him meat, that it must be 2 a substantial burden on Plaintiff’s religion. 3 Plaintiff next argues that because some produce served on the Common Fare 4 menu does not bear the kosher symbol, it is not kosher. Defendants offer the declaration 5 of Rabbi Rosskamm, who is the rabbinical administrator for the kosher certification agency 6 NDOC used to certify its Common Fare program. (ECF No. 60-17.) Rosskamm testifies 7 that the Common Fare menu and preparation methods were both kosher. (Id. at 6.) In 8 response to Plaintiff’s argument that the fruits and vegetables he receives are not kosher 9 because they do not have the kosher symbol on their packaging (ECF No. 67-2 at 20), 10 Rosskamm testifies that raw fresh fruits and vegetables are universally accepted as 11 kosher, even without certification, and that there is no requirement that they cannot be 12 frozen. (ECF No. 60-11 at 6.) 13 b. Preparation and Storage 14 Plaintiff further argues Defendants’ storage and preparation methods are not 15 kosher, thus jeopardizing his access to otherwise kosher foods. In support of this 16 assertion, Plaintiff testifies that the water dispensers were not properly cleaned, the pot 17 used to rinse the rags used to wipe down tables was not changed sufficiently, and that 18 porters were instructed to begin sweeping as soon as the last tray was served, which 19 kicked up dust while people were still eating. (ECF No. 59-1 at 13.) Plaintiff also argues 20 that the vegetables are “sometimes dirty with cracks in them and unusual discoloration” 21 and they “appear to be unwashed.” (Id. at 15.) 22 As to Plaintiff’s claim that vegetables were unwashed and improperly stored, 23 Rosskamm further testifies there is no requirement that naturally kosher fruits and 24 vegetables be stored in a separate cooler. (Id.) Because Defendants keep their only 25 processed, kosher-certified produce—shredded lettuce and cabbage—in a separate box 26 in the produce room (ECF No. 67-1 at 128), there is no evidence that any of Defendants’ 27 food storage or preparation is not kosher compliant. Moreover, Plaintiff’s claim that his 28 2 washed or otherwise appropriately prepared. 3 Finally, Plaintiff’s objection states that Judge Cobb “misapprehended” his argument 4 that the Common Fare meals were not being prepared in an adequately kosher setting. 5 (ECF No. 81 at 5.) Plaintiff argues that “although not stating it bluntly, [he] was referring to 6 the people ‘preparing’ the food,” complaining that a person who is a “homosexual” will 7 never be “clean enough” to prepare a kosher meal until they “stop practicing 8 homosexuality.” (Id.) As stated above, these arguments were not raised in Plaintiff’s 9 Complaint and the Court need not consider them here. But even if the Court were to 10 construe Plaintiff’s original allegations, which he claims always meant he objected to 11 homosexual people preparing his food, even though he was “not stating it bluntly,” the 12 Court will not permit this argument to continue. Assuming that Plaintiff’s religious beliefs 13 are sincerely held, though even that is factually in dispute, Plaintiff offers no specific 14 evidence to support his claims about the identity of the people preparing his food. See, 15 e.g., Henderson v. Muniz, No. 14-cv-01857-JST, 2017 WL 6885394, at *11 (N.D. Cal. Nov. 16 28, 2017) (finding no triable issue of fact when Muslim plaintiffs complained that non- 17 Muslim food handlers had prepared their Ramadan meals but did not provide anything 18 more than conclusory allegations); see also Shakur v. Schriro, 514 F.3d 878, 890 (9th Cir. 19 2008) (“[C]onclusory affidavits that do not affirmatively show personal knowledge of 20 specific facts are insufficient” to support or defend a motion for summary judgment.). But 21 even if Plaintiff had raised these claims sufficiently in his Complaint—which he did not— 22 and even if he articulated some personal knowledge in his affidavit that the people 23 preparing his food had a sexual orientation which he found unacceptable—which he has 24 not—Plaintiff still would have to demonstrate that his faith mandates that the sexual 25 orientation of the preparer of his food is in any way relevant to its status as kosher. Plaintiff 26 has failed to so articulate, and the Court will not draw such a conclusion here. 27 /// 28 /// 2 and storage practices are not kosher compliant, this allegation does not support his claim 3 that Defendants have substantially burdened his religious exercise. 4 c. Availability of Required Religious Materials 5 Plaintiff finally claims that his religious exercise has been substantially burdened 6 because Defendants do not provide him with matzah and grape juice for his Shabbat 7 service and for the high holy days. (ECF No. 59-1 at 10.) Defendants respond that AR 810 8 permits Plaintiff to purchase items needed from the canteen or from approved vendors, 9 and that Plaintiff’s prior canteen purchases indicate Plaintiff’s ability to purchase these 10 items. Alternatively, Plaintiff may obtain the items from an outside vendor or sponsor, with 11 approval from the warden. (ECF No. 59-2 at 46.) Plaintiff does not explain how his 12 indigency has prevented him from purchasing matzah and grape juice, yet allowed him to 13 purchase shrimp ramen and Cheetos. Further, even assuming a reason why he was 14 unable to purchase these items from the canteen, Plaintiff never states that he has 15 attempted to obtain these items from an outside source but was unsuccessful. 16 Accordingly, Plaintiff has not provided adequate evidence that AR 810 has substantially 17 burdened his ability to practice his religion. 18 The Court need not reach the analysis under the First Amendment of whether there 19 was a legitimate government purpose, or under RLUIPA of whether there was a 20 compelling government interest, because Plaintiff has not adequately alleged evidence 21 sufficient to support the conclusion that his beliefs were substantially burdened. 22 Accordingly, the Court will deny Plaintiff’s Motion and will grant Defendants’ Motion as to 23 the First Amendment and RLUIPA claims. 24 B. Fourteenth Amendment Equal Protection 25 “The Equal Protection Clause requires the State to treat all similarly situated people 26 equally.” Hartmann, 707 F.3d at 1123 (citing City of Cleburne v. Cleburne Living Ctr., 473 27 U.S. 432, 439 (1985). “This does not mean, however, that all prisoners must receive 28 identical treatment and resources.” Id. (citations omitted). The plaintiff must establish that 2 membership in a protected class.” Id. (citations and internal quotation marks omitted). 3 Inmates must be given “a reasonable opportunity of pursuing his faith comparable to the 4 opportunity afforded fellow prisoners who adhere to conventional religious precepts.” Cruz 5 v. Beto, 405 U.S. 319, 322 (1972). 6 Plaintiff’s equal protection argument stems from his allegation that the prison 7 serves hot meals to mainline inmates on their holy days, while the Common Fare meals 8 are served cold. Plaintiff further points to the higher number of mainline meals that contain 9 meat, while the Common Fare meals are largely vegetarian. Defendants argue that 10 Plaintiff does not identify any statute or regulation that purportedly violates the Equal 11 Protection Clause, he has not established that he is treated differently from other similarly 12 situated inmates, and he has offered no evidence of discriminatory intent. (ECF No. 60 at 13 10.) 14 Plaintiff has not produced any evidence that Defendants intended to discriminate 15 against him in serving the Shabbat and high holy day meals cold. Indeed, Defendants 16 have offered evidence that the meals are served cold to remain in compliance with kosher 17 standards that no electricity be used in connection with the preparation of the meals. (ECF 18 Nos. 60-11 at 5, 60-16 at 4.) Because Plaintiff has not offered any evidence at all that any 19 individual named Defendant had any intent to discriminate against Plaintiff, the Court finds 20 that Plaintiff has not offered sufficient evidence that Defendants’ serving cold meals for 21 Shabbat and the high holy days violates his right to equal protection under the law. 22 Similarly, Plaintiff fails to allege that the Common Fare’s lack of meat evinces a 23 discriminatory intent. To the contrary, Defendants offer evidence that the Common Fare 24 program was developed to accommodate inmates who dietary needs could not be met 25 through the mainline program. (ECF No. 59-2 at 17, ECF No. 60-10 at 2.) The Court agrees 26 with Judge Cobb that with the demonstrated evidence, Plaintiff has failed to allege a claim 27 that his equal protection rights were violated. Accordingly, the Court will deny Plaintiff’s 28 Motion and will grant Defendant’s Motion. V. CONCLUSION 2 The Court notes that the parties made several arguments and cited to several cases 3 || not discussed above. The Court has reviewed these arguments and cases and determines 4 || that they do not warrant discussion as they do not affect the outcome of the issues before 5 || the Court. 6 It is therefore ordered that Plaintiff's objection (ECF No. 81) to the Report and 7 || Recommendation of U.S. Magistrate Judge William G. Cobb is overruled. The Report and 8 || Recommendation of U.S. Magistrate Judge William G. Cobb (ECF No. 78) is accepted 9 || entirely. 10 It is further ordered that Plaintiff's motion for summary judgment (ECF No. 59) is 11 || denied. 12 It is further ordered that Defendants’ motion for summary judgment (ECF No. 60) 13 || is granted. 14 It is further ordered that Plaintiff's reply in support of his objection (ECF No. 83) be 15 || stricken. 16 The Clerk of Court is directed to enter judgment accordingly and close this case. 17 DATED THIS 4"" Day of March 2021. 18 mn 19 ALR 20 MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE

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