Himes v. Hadjadj

Opinion

2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RODERICK HIMES, Case No.: 19cv2216-JAH-MSB

12 Plaintiff, REPORT AND RECOMMENDATION 13 v. REGARDING DEFENDANT’S MOTION TO DISMISS [ECF NO. 8] 14 FABRICE HADJADJ, 15 Defendant. 16 17 This Report and Recommendation is submitted to the Honorable John A. Houston, 18 United States District Judge, pursuant to 28 U.S.C. § 636(b)(1) and Civil Local Rule 72.1(c) 19 of the United States District Court for the Southern District of California. On November 20 21, 2019, Plaintiff Roderick Himes, a prisoner1 incarcerated at R. J. Donovan State Prison 21 (“Donovan”) proceeding pro se and in forma pauperis, filed a complaint (the 22 “Complaint”) pursuant to 28 U.S.C. § 1343(a)(3) and 42 U.S.C. § 1983, alleging that 23 Defendant Fabrice Hadjadj, a Jewish chaplain at Donovan, violated his First Amendment 24 right to free exercise of his religion and his Fourteenth Amendment rights to equal 25

26 27 1 While Mr. Himes was a prisoner at the time he filed the Complaint, it appears that he has 2 Program (“KDP”) and improperly processing and evaluating a number of documents 3 related to his removal from the program. (Compl., ECF No. 1.) 4 Now pending before the Court is Defendant’s motion to dismiss the Complaint for 5 failure to state a claim. (Def.’s Mot. to Dismiss, ECF No. 8.) For the reasons set forth 6 below, the Court RECOMMENDS that Defendant’s motion to dismiss be GRANTED and 7 the Complaint be dismissed in its entirety. 8 I. BACKGROUND2 9 At the time of the events underlying the Complaint, Plaintiff was incarcerated at 10 Donovan after being transferred there from another institution on February 8, 2019. 11 (ECF No. 1 at 4.) Plaintiff alleges that Defendant, as the supervisor of Jewish religious 12 services at Donovan, blocked Plaintiff from participating in the KDP in violation of his 13 First Amendment right to free exercise of his religion because Plaintiff is African 14 American. (See id. at 4-5.) Additionally, Plaintiff alleges that Defendant deprived him of 15 due process by failing to provide Plaintiff with an opportunity to object to the finding of 16 a KDP violation on January 11, 2019, which resulted in his removal from the program. 17 (See id. at 5.) Plaintiff maintains that the January 11 violation “never occurred,” and 18 that Defendant and other prison staff covered up procedural errors in the grievance 19 process and relied on false information contained in Plaintiff’s central prison file to 20 21 22 23 2 In recounting the events that led to the instant § 1983 action, the Court draws from allegations taken 24 from the Complaint and various California Department of Corrections and Rehabilitation (“CDCR”) 25 administrative forms regarding Plaintiff’s participation in the KDP at Donovan, which Plaintiff attaches as exhibits. (See ECF No. 1.) Unless otherwise noted, these documents are accepted as true for the 26 purposes of evaluating the instant motion to dismiss. See Vasquez v, L.A. Cnty., 487 F.3d 1246, 1249 (9th Cir. 2007) (noting that courts must “accept all material allegations of fact as true”); see also Nat'l 27 Assoc. for the Advancement of Psychoanalysis v. Cal. Bd. of Psychology, 228 F.3d 1043, 1049 (9th Cir. 2 Dismiss, ECF No. 11 at 6; see also ECF No. 1 at 6.) 3 A. Plaintiff’s Participation in the KDP before Donovan 4 Before his transfer to Donovan, Plaintiff was incarcerated at several other 5 facilities within the California Department of Corrections and Rehabilitation (“CDCR”), 6 and because of his observance of the Jewish religion, was a KDP participant for 7 approximately ten years. (ECF No. 1 at 6.) The KDP allows members of the Jewish faith 8 to receive specialized kosher meals that conform to religious dietary requirements. (See 9 id. at 21.) Participation in the KDP is tracked through a centralized Inmate Meal 10 Tracking System (“IMTS”), and requires inmates to exclusively purchase and consume 11 foods that comply with kosher dietary restrictions. (See id.) When a KDP participant is 12 found to have purchased or consumed food from a prison that is not in compliance with 13 kosher dietary restrictions, these violations are recorded in the IMTS and can result in 14 disciplinary action; namely, two subsequent violations of the KDP within a six-month 15 period can result in a participant’s removal from the program for six months. (See id.) 16 While incarcerated at another institution before his transfer to Donovan, Plaintiff 17 was found in violation of the KDP on November 7, 2018 for purchasing non-kosher food 18 items, including chili, pork rinds, and oysters from the prison’s commissary. (See id. at 19 18; see also ECF No. 11 at 4 (in which Plaintiff concedes to this first violation).) A second 20 violation of the KDP by Plaintiff appears to have been recorded on January 11, 2019, and 21 Plaintiff was removed from the program on January 29, 2019. (See id. at 15.) Plaintiff 22 maintains that this second violation “never . . . occurred.” (See id. at 6.) 23 B. Plaintiff’s Arrival at Donovan 24 After his arrival on February 8, 2019, Plaintiff was unable to receive KDP meals 25 from food service personnel at Donovan and filed two CDCR Form 22 requests to be 26 added to the kosher diet list. (See ECF No. 1 at 4, 16, 12.) The first of these Form 22 27 requests, submitted on March 13, 2019, notes that Plaintiff’s request was forwarded to 2 the same issues. (See id. at 12.) Defendant’s April 1, 2019 response stated: “According 3 to the IMTS you are receiving your meals since [January 29, 2019]. Please address your 4 concern with food services.” (See id. at 4, 12.) 5 C. Plaintiff’s Grievance 6 Evidently still unable to receive kosher meals, Plaintiff proceeded to file a Form 7 602 grievance asking to be added to the kosher diet list. (See id. at 25, 27.) This 8 grievance, submitted April 9, 2019, references Plaintiff’s Form 22 requests, and alleges 9 that Defendant ignored his requests to be added to the kosher diet list. (See id. at 27.) 10 The first level response to Plaintiff’s grievance, dated May 8, 2019 and signed by N. 11 Tuason, a community resource manager at Donovan, indicates that Plaintiff was not 12 receiving kosher meals from food services because the IMTS showed that prior to his 13 transfer to Donovan, Plaintiff had been found in violation of the KDP a second time on 14 January 11, 2019 and subsequently removed from the program on January 29, 2019. 15 (See id. at 15.) The grievance noted that Plaintiff would be eligible for reinstatement in 16 the KDP on July 29, 2019, six months following the date he had been removed from the 17 program. (See id.) 18 The first level response also indicates that Plaintiff participated in an interview 19 with Defendant on April 25, 2019 in connection with the appeal. (See id. at 14.) A 20 screenshot of the IMTS form attached to the first level response appears to indicate that 21 the Jewish chaplain at Plaintiff’s previous institution, Joel Youngheim, made 22 modifications to the IMTS tracking form on July 9, 2018, January 11, 2019, and January 23 29, 2019. (See id. at 17.) This screenshot also appears to indicate that Defendant 24 reviewed the IMTS tracking sheet on April 30, 2019. (See id.) A screenshot of Plaintiff’s 25 food purchase history, also attached to the first level response, is consistent with 26 Plaintiff’s first KDP violation on November 7, 2018. (See id. at 18.) 27 Plaintiff appealed the first level response to his grievance. (See id. at 26, 28.) 2 of Regulations governing the CDCR) or any documented evidence of the January 11, 3 2019 second KDP violation. (See id.) Plaintiff asserts that Joel Youngheim, the Jewish 4 chaplain at his previous institution, erroneously removed him from the KDP on January 5 29, 2019. (See id. at 28.) Although not entirely clear, Plaintiff appears to contend that 6 Joel Youngheim’s removal of Plaintiff from the KDP without the approval of the Religious 7 Review Committee (“RRC”), violated the California Code of Regulations governing 8 inmate religious diet programs. (See id. (“I context the error by Joel Youngheim, 9 removed me, from the Kosher Diet Program on [January 29, 2019] . . . The RRC shall 10 make the final determination of continuing eligibility . . . not Joel Youngheim.”).) 11 The grievance was evaluated at the second level of appeal by Patrick Covello, a 12 warden at Donovan, who again determined that Plaintiff was ineligible for KDP 13 participation but would be eligible for reinstatement on July 29, 2019. (See id. at 20-21.) 14 Plaintiff appealed to the third level, contending: (1) that the second level review staff 15 had removed the first level response form and replaced it with a form that did not 16 include the location of his interview with Defendant in connection with the appeal, (2) 17 that the “reviewing staff” had not addressed the notice issue that he mentioned in his 18 response to the first level grievance decision, and (3) that the RRC had not followed the 19 correct procedures in removing him from the KDP. (See id. at 26, 28.) The third level of 20 review by Appeals Examiner K. J. Allen affirmed Plaintiff’s six-month suspension from 21 the program, noting that Plaintiff would be eligible for reinstatement in the KDP on July 22 29, 2019. (See id. at 23-24.) 23 II. LEGAL STANDARD 24 A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the 25 legal sufficiency of the claims asserted in a complaint. Fed. R. Civ. P. 12(b)(6); Navarro v. 26 Block, 250 F.3d 729, 732 (9th Cir. 2001). In evaluating whether dismissal is appropriate, 27 a court must accept all allegations of factual material pleaded in the complaint as true. 2 nonmoving party. Id. To avoid a Rule 12(b)(6) dismissal, a complaint need not contain 3 detailed factual allegations, but rather must plead “enough facts to state a claim to 4 relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 5 “A claim has facial plausibility when the plaintiff pleads factual content that allows the 6 court to draw the reasonable inference that the defendant is liable for the misconduct 7 alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556); 8 Sommers v. Apple, Inc., 729 F.3d 953, 959-60 (9th Cir. 2013). 9 “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ 10 requires more than labels and conclusions, and a formulaic recitation of the elements of 11 a cause of action will not do.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 12 U.S. 265, 286 (1986) (alteration in original)). Additionally, a court need not accept mere 13 legal conclusions as true. Iqbal, 556 U.S. at 678 (internal citation and quotes omitted); 14 accord Johnson v. Fed. Home Loan Mortg. Corp., 793 F.3d 1005, 1008 (9th Cir. 2015). 15 “[T]o be entitled to the presumption of truth, allegations in a complaint or counterclaim 16 may not simply recite the elements of a cause of action, but must contain sufficient 17 allegations of underlying facts to give fair notice and to enable the opposing party to 18 defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). Although 19 this entitles a plaintiff’s allegations to deference, it is nonetheless improper for a court 20 to assume that the plaintiff “can prove facts that [he] has not alleged or that defendants 21 have violated the . . . laws in ways that have not been alleged.” Associated Gen. 22 Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). 23 Accordingly, “[f]actual allegations must be enough to raise a right to relief above 24 the speculative level.” Twombly, 550 U.S. at 555. “Where a complaint pleads facts that 25 are merely consistent with a defendant’s liability, it stops short of the line between 26 possibility and plausibility of entitlement to relief.” Iqbal, 556 U.S. at 678 (quoting 27 Twombly, 550 U.S. at 557) (internal quotations omitted). “[F]or a complaint to survive a 2 to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quoting Iqbal, 556 3 U.S. at 678). 4 Because Rule 12(b)(6) focuses on the sufficiency of a claim rather than its 5 substantive merits, “a court may [ordinarily] look only at the face of the complaint to 6 decide a motion to dismiss,” Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 7 (9th Cir. 2002), including the exhibits attached to it. See Fed. R. Civ. P. 10(c) (“A copy of 8 a written instrument that is an exhibit to a pleading is a part of the pleading for all 9 purposes.”); Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 10 n.19 (9th Cir. 1990) (citing Amfac Mortg. Corp. v. Ariz. Mall of Tempe, Inc., 583 F.2d 426 11 (9th Cir. 1978) (“[M]aterial which is properly submitted as part of the complaint may be 12 considered” in ruling on a Rule 12(b)(6) motion to dismiss).), abrogated in part on other 13 grounds by Iqbal, 556 U.S. at 670; Twombly, 550 U.S. at 562-63. Exhibits that contradict 14 the claims in a complaint, however, may fatally undermine the complaint’s allegations. 15 See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) (a plaintiff can 16 “plead himself out of a claim by including . . . details contrary to his claims”) (citing 17 Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295-96 (9th Cir. 1998)) (courts “are not 18 required to accept as true conclusory allegations which are contradicted by documents 19 referred to in the complaint”)). 20 Generally, courts freely grant leave to amend a complaint that has been 21 dismissed. See Fed. R. Civ. P. 15(a); Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 22 F.2d 1393, 1401 (9th Cir. 1986). However, leave to amend may be denied when “the 23 court determines that the allegation of other facts consistent with the challenged 24 pleading could not possibly cure the deficiency.” Schreiber Distrib., 806 F.2d at 1401 25 (citing Bonanno v. Thomas, 309 F.2d 320, 322 (9th Cir. 1962)). Additionally, when a 26 court dismisses a pro se litigant’s complaint, the court must provide the plaintiff with a 27 statement of the complaint’s deficiencies to avoid repeated errors. Karim-Panahi v. L.A. 2 Given liberal interpretation, the Complaint alleges (1) that Defendant blocked 3 Plaintiff’s participation in the KDP in violation of the free exercise clause of the First 4 Amendment; (2) that Defendant violated Plaintiff’s right to due process by failing to 5 provide Plaintiff the opportunity to contest or review documentation of the second KDP 6 violation on January 11, 2019, which Plaintiff maintains never happened; and (3) that 7 Defendant blocked his access to KDP meals because Plaintiff is African American, a 8 violation of Plaintiff’s right to equal protection under the Fourteenth Amendment. (See 9 ECF No. 1 at 5-6.) Defendant contends in his motion to dismiss that Plaintiff fails to 10 state a cognizable claim against him because (1) the Complaint does not allege that 11 Defendant held any hearings or made any determinations as to Plaintiff’s participation 12 in the KDP at Donovan, and (2) even if Defendant was responsible for providing Plaintiff 13 with notice of the second violation, failure to comply with the California Code of 14 Regulations does not equate to a constitutional violation. (ECF No. 8 at 5-6.) Each of 15 these arguments are addressed in turn. 16 A. Section 1983 Standard 17 Individuals may bring a civil rights action pursuant to 42 U.S.C. § 1983, which 18 provides in relevant part: 19 Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory . . . subjects, or causes to be subjected, any 20 citizen of the United States or other person within the jurisdiction thereof to 21 the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in any action at law, 22 suit in equity, or other proper proceeding for redress . . . 23 42 U.S.C. § 1983. To properly plead a § 1983 violation, a plaintiff must allege facts from 24 which it may be inferred that (1) a constitutional right was deprived, and (2) a person 25 who committed the alleged violation acted under color of state law. See West v. Atkins, 26 487 U.S. 42, 48 (1988); Williams v. Gorton, 529 F.2d 668, 670 (9th Cir. 1976). 27 2 relationship between the defendant’s conduct and the injury. See Rizzo v. Goode, 423 3 U.S. 362, 371-72 (1976). Thus, § 1983 requires that there be an actual connection or 4 link between the actions of a defendant and the alleged deprivation of constitutional 5 rights. Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988) (noting that a prisoner must 6 set forth facts as to each defendant’s wrongdoing); Chavira v. Ruth, No. 1:11–cv–01718– 7 MJS (PC), 2012 WL 1328636, at *2 (E.D. Cal. Apr. 17, 2012) (citing Monell v. Dep’t of Soc. 8 Servs., 436 U.S. 658 (1978)) (“[§ 1983] requires that there be an actual connection or 9 link between the actions of the defendants and the deprivation alleged to have been 10 suffered by the plaintiff”). A state actor deprives an individual of a federal right “if he 11 does an affirmative act, participates in another’s affirmative acts, or omits to perform an 12 act which he is legally required to do so that it causes the deprivation of which the 13 complaint is made.” Johnson v. Duffy, 558 F.2d 740, 743 (9th Cir. 1978) (citing Sims v. 14 Adams, 537 F.2d 829 (5th Cir. 1976)). Under § 1983, government officials may not be 15 held liable for the actions of their subordinates under a theory of respondeat superior. 16 See Iqbal, 556 U.S. at 676 (internal quotations omitted). Since vicarious liability is 17 unavailable, a plaintiff must plead sufficient facts showing that the official has violated 18 the Constitution through his own individual actions. See id. A supervisor can only be 19 liable for constitutional violations of his subordinates if the supervisor participated in, 20 directed, or knew of the violations and failed to act to prevent them. Taylor v. List, 880 21 F.2d 1040, 1045 (9th Cir. 1989). In other words, a supervisor may be liable under § 1983 22 only if (1) he or she is personally involved in the constitutional deprivation, or (2) 23 sufficient causal connection exists between the supervisor’s wrongful conduct and the 24 constitutional violation. See Jeffers v. Gomez, 267 F.3d 895, 915 (9th Cir. 2001). 25 B. First Amendment Claim 26 Plaintiff’s main contention in the Complaint is that Defendant deprived him of his 27 First Amendment right to free exercise of his Jewish faith by blocking his participation in 2 incarcerated. See McElyea v. Babbitt, 833 F.2d 196, 197 (9th Cir. 1987) (citing O’Lone v. 3 Estate of Shabazz, 482 U.S. 342, 348 (1987)). Free exercise rights, however, are 4 “necessarily limited by the fact of incarceration, and may be curtailed in order to 5 achieve legitimate correctional goals or maintain prison security.” Id. The protections 6 of the free exercise clause of the First Amendment are triggered when prison officials 7 substantially burden the practice of an inmate’s religion by preventing him from 8 engaging in conduct that he sincerely believes is mandated by his faith. Shakur v. 9 Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008). The Ninth Circuit has held that inmates 10 “have the right to be provided with food sufficient to sustain them in good health that 11 satisfies the dietary laws of their religion.” Ward v. Walsh, 1 F.3d 873, 877 (9th Cir. 12 1993) (internal citation omitted). Consequently, if an inmate is denied accommodation 13 for his diet, First Amendment violations may be implicated. See Porter v. Wegman, No. 14 1:10cv01500 LJO DLB (PC), 2013 WL 3863925, at *2 (E.D. Cal. July 24, 2013), report and 15 recommendation adopted by No. 1:10cv01500 LJO DLB (PC), 2013 WL 4815435 (E.D. Cal. 16 Sept. 6, 2013). 17 Taking the allegations in the Complaint as true, Plaintiff has pointed to two 18 distinct acts that resulted in his exclusion from the KDP by prison officials: (1) the 19 alleged fabrication of a second KDP violation on January 11, 2019, leading to his removal 20 from the program on January 29, 2019, and (2) the denial of Plaintiff’s Form 602 21 grievance filed on April 9, 2019. (See ECF No. 1 at 25, 28.) Plaintiff has failed to allege, 22 however, that Defendant was involved either in his removal from the KDP on January 23 29, 2019, or in the decision to maintain Plaintiff’s suspension from the KDP after his 24 arrival at Donovan. 25 As an initial matter, Plaintiff has not alleged that Defendant was involved at all in 26 the second KDP violation decision on January 11, 2019, or Plaintiff’s subsequent removal 27 from the KDP on January 29, 2019. (See id. (lacking allegations of a connection between 2 occurred before Plaintiff arrived at Donovan on February 8, 2019. (See ECF No. 8 at 5 3 (“Plaintiff was removed from the [KDP] participant list before he even arrived at 4 Donovan . . .”).) Indeed, Plaintiff appears to concede in the response to the first level 5 decision on his Form 602 grievance that Joel Youngheim, a Jewish chaplain at his 6 previous institution, removed him from the KDP participation list erroneously. (See ECF 7 No. 1 at 28 (contending that Joel Youngheim removed Plaintiff from the KDP on January 8 29, 2019 in error).) Plaintiff alleges that he never received any notice of the second 9 violation or of his subsequent removal from the KDP on January 29, 2019, and that the 10 RRC failed to review Joel Youngheim’s decision to remove Plaintiff from the KDP. (See 11 id. at 5-6, 28.) The Complaint contains no allegations, however, that Defendant was 12 involved in Chaplain Youngheim’s imposition of suspension, was part of the RRC that 13 would have reviewed Chaplain Youngheim’s suspension decision, or that Defendant 14 made any determinations on behalf of the RRC at Donovan or any other institution. 15 Plaintiff has failed to allege that any of Defendant’s actions caused Plaintiff’s removal 16 from the KDP program. See Johnson, 558 F.2d at 743 (requiring affirmative acts on the 17 part of a defendant in participating in constitutional violations). 18 Nor has Plaintiff alleged that Defendant rejected or even authorized the rejection 19 of Plaintiff’s requests to be added to the KDP after his arrival at Donovan. Plaintiff 20 contends that after he made two Form 22 requests to be added to the KDP, Defendant 21 improperly relied on Joel Youngheim’s allegedly fabricated removal decision to deny 22 Plaintiff access to the KDP at Donovan, despite the lack of evidence of a second violation 23 in Plaintiff’s CDCR central file. (See ECF No. 1 at 26, 28; ECF No. 11 at 4.) Apart from 24 conclusory allegations that Defendant blocked or denied Plaintiff’s entry into the KDP 25 upon his arrival at Donovan, however, Plaintiff has not alleged any direct action on 26 Defendant’s part that resulted in his exclusion from the KDP. The Complaint and 27 attached grievance documents show that Defendant did not deny Plaintiff’s Form 602 2 Defendant’s only related actions, according to the Complaint, are that he responded to 3 a Form 22 request on March 31, 2019, participated in an interview with Plaintiff in 4 connection with Plaintiff’s Form 602 grievance on April 25, 2019, and logged into 5 Plaintiff’s IMTS file on April 30, 2019. (See ECF No. 1 at 12, 14.) These allegations, 6 without a specific causal link to the denial of Plaintiff’s participation in the KDP, fail to 7 state claim for relief. 8 In his opposition, Plaintiff cites to cases within the Ninth Circuit which have noted 9 that supervisors can be held liable for constitutional violations of their subordinates if 10 they are aware of such conduct and fail to correct it. (See ECF No. 11 at 5 (citing Snow v. 11 McDaniel, 681 F.3d 978, 989 (9th Cir. 2012)).) Plaintiff contends that because 12 Defendant, the supervisor of the KDP program at Donovan, had access to Plaintiff’s 13 CDCR central file lacking any evidence of a second KDP violation, Defendant should have 14 done something to correct the problem or contacted Joel Youngheim to determine 15 whether a violation had occurred. (See ECF No. 11 at 6 (“If Defendant was unaware or 16 not certain of the second violation of January 11, 2019 Defendant should . . . [have] 17 email[ed] [Joel Youngheim] for clarification”).) These arguments, however, do not cure 18 the lack of a causal connection between Defendant’s actions and Plaintiff’s exclusion 19 from the KDP noted above. Plaintiff’s repeated assertions that Defendant was the 20 supervisor of the KDP program at Donovan are not enough to plausibly allege that 21 Defendant participated in or had supervisory authority over the decision at his prior 22 institution to suspend Plaintiff from participation in the KDP, and the Court is not 23 permitted to assume that such a connection exists. See Associated Gen. Contractors of 24 Cal., 459 U.S. at 526 (noting that it is improper for a court to assume that “the plaintiff 25 can prove facts that he has not alleged or that defendants have violated . . . the laws in 26 ways that have not been alleged.”) Accordingly, the Complaint fails to state a claim 27 against Defendant with respect to Plaintiff’s First Amendment allegations, and the Court 2 In addition to the labeled cause of action for violation of the free exercise clause 3 of the First Amendment, the Complaint alleges that Defendant violated Plaintiff’s right 4 to procedural due process under the Fourteenth Amendment at various points related 5 to his exclusion from the KDP at Donovan.3 (ECF No. 1 at 5.) First, Plaintiff contends 6 that Defendant and “the RRC” failed to provide him with any notice or consultation 7 related to the second KDP violation on January 11, 2019—a violation of California Code 8 of Regulations (“CCR”), Title 15, § 3054.5.4 (ECF No. 1 at 5-6; ECF No. 11 at 3-4 (“The . . . 9 [RRC] only provided plaintiff with notice of the first violation, not the second, thus 10 violating plaintiff’s procedural due process rights.”).) Additionally, Plaintiff appears to 11 contend that Defendant did not provide him with adequate opportunities to contest the 12 second KDP violation during the evaluation of his Form 602 grievance objecting to his 13 exclusion from the KDP—an additional violation of his right to due process under the 14 Fourteenth Amendment. (See Id.) Plaintiff avers that Defendant did not provide him 15 with an adequate opportunity to present an appropriate defense at the interview in 16 17 3 Plaintiff’s due process allegations, though not labeled as a separate cause of action, are embedded at 18 multiple points within First Amendment free exercise violation allegations in the Complaint. Because Plaintiff has presented arguments in the Complaint and his opposition to Defendant’s motion to 19 dismiss as to why the due process clause of the Fourteenth Amendment was implicated in his exclusion from the KDP, the Court will construe Plaintiff’s pleadings liberally and proceed to address the due 20 process arguments as if they were a discrete cause of action listed in the Complaint. See Hebbe v. 21 Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (quoting Erickson v. Pardus, 551 U.S. 89, 94, (2007) (internal quotation marks omitted) (pro se complaints “must be held to less stringent standards than formal 22 pleadings drafted by lawyers”)).

23 4 Section 3045.5 of CCR Title 15 provides in relevant part: The RRC shall make the final determination of continuing eligibility, and complete a CDCR 24 Form 3030-C (Rev. 04/16), Religious Diet Program Notice of Non-Compliance, which is 25 incorporated by reference. As described on the CDCR Form 3030-C, a first violation of the Religious Diet Program Agreement shall result in a warning issued to the inmate, and a 26 second violation within six months of the first violation may subject the inmate to removal from the program. A copy of the completed CDCR Form 3030-C shall be provided to the 27 inmate. 2 the opportunity to context the unreliable evidence that was used against plaintiff or 3 produced in the appeal process regarding the second [KDP] violation of January 11, 2019 4 . . .”)), and that Defendant and other prison staff obscured the details of the interview 5 and evidence used in connection with the findings at each level of the grievance’s 6 appeal at Donovan. (See id. at 4-6; ECF No. 1 at 26, 28.) 7 To the extent Plaintiff alleges that Defendant and “the RRC” violated his right to 8 procedural due process by failing to comply with the CCR related to inmate religious diet 9 programs, the Complaint fails to state a claim for two reasons. First, the Complaint does 10 not state a cognizable due process claim by pleading a violation of CCR Title 15 § 3045.5. 11 Violations of state regulations generally do not amount to procedural due process 12 violations under the Fourteenth Amendment in § 1983 actions. See Sweaney v. Ada 13 Cnty., 119 F.3d 1385, 1391 (9th Cir. 1997) (quoting Lovell v. Poway Unified Sch. Dist., 90 14 F.3d 367, 370 (9th Cir. 1996) (internal quotations omitted) (“To the extent that the 15 violation of a state law amounts to the deprivation of a state-created interest that 16 reaches beyond that guaranteed by the federal Constitution, [§] 1983 offers no 17 redress.”). Plaintiff argues that state statutes and regulations can, in some 18 circumstances, create liberty interests protected by the Fourteenth Amendment and 19 afford a cause of action to prisoners under § 1983. (See ECF No. 11 at 2-3.) While it is 20 true that the Ninth Circuit has recognized that Fourteenth Amendment protection can 21 extend to state prison regulations, this determination rests on whether a violation of 22 the regulation imposes “‘atypical and significant hardship on the inmate in relation to 23 the ordinary incidents of prison life,’” and is generally confined to regulations that relate 24 to freedom from restraint. Chappell v. Mandeville, 706 F.3d 1052, 1064 (9th Cir. 2013) 25 (Graham, J., concurring) (quoting Sandin v. Connor, 515 U.S. 472, 484 (1995)). The 26 Court’s review of federal and state precedent allowing Fourteenth Amendment due 27 process claims to proceed on the basis of CCR violations has uncovered no reported 2 No. CV1508239DOCDFM, 2017 WL 275597, at *6 (C.D. Cal. Jan. 19, 2017) (citing 3 Sweaney, 119 F.3d at 1391 (“Section 1983 offers no redress for a violation of a state law 4 or state mandated procedure that does not amount to a constitutional violation.”)). 5 Additionally, Plaintiff has offered no explanation as to why the narrow exceptions to the 6 general rule that Fourteenth Amendment protections do not extend to violations of 7 state regulations recognized by the Ninth Circuit should apply here. Thus, the Complaint 8 fails to explain why Fourteenth Amendment due process protections should extend to 9 violations of the inmate religious diet provisions of the CCR. 10 Second, even if the Court assumes arguendo that a violation of CCR Title 15 § 11 3045.5 could create a right of action under § 1983, for the same reasons Plaintiff has not 12 alleged that Defendant caused a First Amendment violation, the Complaint fails to state 13 a Fourteenth Amendment due process violation. Specifically, the pleadings do not 14 explain how Defendant was involved in the failure to provide Plaintiff with any notice of 15 the second KDP violation, as that determination and Plaintiff’s subsequent removal from 16 the KDP occurred on January 11, 2019 and January 29, 2019 respectively, before Plaintiff 17 arrived at Donovan. See Castle v. Lugo, No. CV 18-08827-JVS (JDE), 2019 WL 8198271, 18 at *12 (C.D. Cal. Nov. 26, 2019) (dismissing due process claims against an individual 19 defendant when the plaintiff failed to allege how defendant was involved in the due 20 process violations at a specific disciplinary hearing), report and recommendation 21 adopted by No. 2:18-CV-08827-JVS (JDE), 2019 WL 8198234 (C.D. Cal. Dec. 20, 2019). 22 Because Plaintiff has failed to establish that due process protections under the 23 Fourteenth Amendment extend to violations of the CCR’s inmate religious diet 24 provisions, or that Defendant was involved at all in the alleged violation, the Complaint 25 fails to state a due process claim against Defendant for failing to provide notice of the 26 second KDP violation. 27 To the extent Plaintiff alleges Defendant violated his Fourteenth Amendment due 2 evaluating Plaintiff’s grievance, the Complaint alleges that Defendant violated CDCR 3 regulations by blocking Plaintiff’s ability to contest the January 11, 2019 second KDP 4 violation at Donovan. (See ECF No. 1 at 5.) Additionally, in opposition to Defendant’s 5 contention that prisoners do not have a state-created liberty interest in prison officials’ 6 adherence to CDCR regulations, Plaintiff avers that Defendant failed to provide evidence 7 of the second KDP violation during the first level interview in the evaluation of his Form 8 602 grievance, and that Defendant and other reviewing staff obscured the details of his 9 participation in the interview in the responses to his appeals, including the evidence 10 used to deny him participation in the KDP at each level. (See ECF No. 11 at 3-6.) These 11 actions, Plaintiff argues, blocked his ability to present a meaningful defense during the 12 grievance process, resulting in due process violations under the Fourteenth 13 Amendment. (See ECF No. 11 at 4-5.) 14 Under Rule 7(a), Plaintiff’s Opposition to the Motion to Dismiss does not 15 constitute pleadings, and therefore allegations first raised in the Opposition are not 16 considered when resolving the Motion to Dismiss. See Khoja v. Orexigen Therapeutics, 17 Inc., 899 F.3d 988, 1014 (9th Cir. 2018). Nevertheless, to the extent that the Opposition 18 contains argument explaining the allegations in the Complaint, the Court will address 19 them. See Hebbe, 627 F.3d at 342 (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th 20 Cir. 1985)) (the court must "construe the pleadings liberally and . . . afford the petitioner 21 the benefit of any doubt."). 22 While violations of CDCR regulations may in some cases result in due process 23 violations, inmates do not maintain a constitutional right to an effective grievance or 24 appeal procedure. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (citing Mann 25 v. Adams, 855 F.2d 639, 640 (9th Cir. 1988)) (“inmates lack a separate constitutional 26 entitlement to a specific prison grievance procedure.”). Plaintiff’s contentions that 27 Defendant and other appeals staff failed to provide him with the evidence used to make 2 process do not amount to “atypical or significant” hardship in relation to the “ordinary 3 incidents of prison life” contemplated by the Ninth Circuit’s analysis of Sandin such that 4 Fourteenth Amendment protections are implicated. See Loring v. Daly, No. CV 19- 5 05133-PHX-JAT (JFM), 2020 WL 3064498, at *5 (D. Ariz. June 9, 2020) (citing Sandin, 515 6 U.S. at 484; Ramirez, 334 F.3d at 860) (dismissing due process claims when an inmate 7 alleged that prison staff “added things” to an appeal to cover up procedural 8 deficiencies). As against Defendant, Plaintiff has failed to allege due process violations 9 during the evaluation and processing of his grievance. 10 Because the Complaint fails to state Fourteenth Amendment due process claims, 11 the Court RECOMMENDS that the claims be DISMISSED. Although the Court has doubts 12 that further amendment can cure the claims’ deficiencies, as it is not "absolutely clear" 13 that further amendment would be futile, dismissal should be with leave to amend. 14 D. Fourteenth Amendment Equal Protection Claim 15 Additionally, Plaintiff appears to allege that his equal protection rights were 16 violated by Defendant’s decision to exclude him from the KDP because Plaintiff is 17 African American.5 (ECF No. 1 at 5 (contending that Defendant “denied [P]laintiff the 18 right to practice his [J]ewish faith based on racial discrimination in that [P]laintiff is 19 African American.”).) 20 The equal protection clause of the Fourteenth Amendment requires the 21 government to treat all similarly situated people equally. Shakur, 514 F.3d at 891 22 (internal citation omitted). This does not mean, however, that all prisoners must 23

24 25 5 As with Plaintiff’s Fourteenth Amendment due process allegations, the Complaint does not explicitly enumerate an equal protection cause of action. Because Plaintiff has included a statement that 26 Defendant excluded him from the KDP because he is African American, the Court construes the allegations in the Complaint liberally and will address the equal protection allegations as if they were 27 enumerated as a discrete cause of action. See Hebbe, 627 F.3d at 342 (quoting Erickson, 551 U.S. at 2 1993) (noting that prison administrators do not have an affirmative duty to provide 3 every inmate with access to a spiritual counselor of their choice); Allen v. Toombs, 827 4 F.2d 563, 568-69 (9th Cir. 1987) (same). A plaintiff alleging denial of equal protection 5 based on race “must allege facts plausibly showing that [a defendant] acted with an 6 intent or purpose to discriminate against [him] based upon membership in a protected 7 class.” Hartmann v. Cal. Dep’t of Corr. & Rehab, 707 F.3d 1114, 1122 (9th Cir. 2013) 8 (internal quotations and citations omitted); see also City of Cuyahoga Falls v. Buckeye 9 Cmty. Hope Found., 538 U.S. 188, 194 (2003) (quoting Arlington Heights v. Metro. 10 Housing Dev. Corp., 429 U.S. 252, 265 (1977)) (“‘[P]roof of racially discriminatory intent 11 or purpose is required’ to show a violation of [the equal protection clause].”); Monteiro 12 v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1026 (9th Cir. 1998). 13 Even allowing for liberal construction, Plaintiff’s allegations that Defendant 14 blocked his participation in the KDP because of his race fail to state an equal protection 15 claim. Although Plaintiff has alleged that he is African American, the Complaint does not 16 present any facts showing that Plaintiff’s exclusion from the KDP was the result of 17 intentional racial discrimination. See, e.g., Holmes v. Baca, No. 3:17-cv-00320-RCJ-WGC, 18 2018 WL 5815544, at *3 (D. Nev. Nov. 6, 2018) (concluding that the plaintiff had stated 19 an equal protection claim against a defendant who “generally treat[ed] inmates 20 differently in several contexts . . . based on race” while dismissing claims against other 21 defendants where the allegations did not indicate a racially discriminatory motive); 22 Richardson v. Pletting, No. 5:18-cv-0961-CJC-KES, 2018 WL 6314198, at *9 (C.D. Cal. July 23 30, 2018) (distinguishing between allegations against correctional officers who made 24 statements suggesting intent to discriminate based on race and “speculative assertions” 25 that other prison officials discriminated against the plaintiff based on race). Nor do the 26 facts alleged give rise to a reasonable inference of discriminatory intent. The 27 documents attached to the Complaint indicate that prison officials, including Defendant, 1 || request because of a previous KDP violation that mandated Plaintiff’s exclusion from the 2 || program for six months. Rather than showing discriminatory intent, the Complaint’s 3 || attachments suggest a logical denial of Plaintiff’s requests to receive KDP meals. 4 Mere conclusory statements that Defendant discriminated against Plaintiff based 5 ||on his race are not sufficient to state a claim for equal protection under the Fourteenth 6 ||Amendment. See Iqbal, 556 U.S. at 678 (citations omitted). The Court therefore 7 |}RECOMMENDS that the equal protection claims be DISMISSED with leave to amend. 8 E. CONCLUSION AND RECOMMENDATION 9 Because the Complaint fails to state a cognizable claim, the Court need not 10 || consider the parties’ qualified immunity arguments. For the reasons stated above, the 11 || Court RECOMMENDS that Defendant’s Motion to Dismiss [ECF No. 8] be GRANTED and 12 || that Plaintiff’s Complaint be DISMISSED in its entirety with leave to amend. 13 IT IS ORDERED that no later than August 24, 2020, any party to this action may 14 || file written objections with the Court and serve a copy on all parties. The document 15 ||should be captioned “Objection to Report and Recommendation.” 16 IT IS FURTHER ORDERED that any reply to the objections shall be filed with the 17 || Court and served on all parties no later than September 7, 2020. The parties are 18 || advised that failure to file objections within the specified time may waive the right to 19 || raise those objections may waive the right to raise those objections on appeal of the 20 || Court’s order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. □□□□□ 21 F.2d 1153, 1157 (9th Cir. 1991). 22 IT IS SO ORDERED. 23 ||Dated: August 10, 2020 Sx. 24 4 L <—{—\. 3s Honorable Michael S. Berg United States Magistrate Judge 26 27 28