1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Jonquil THOMAS-WEISNER, Case No.: 19-cv-01999-JAH-BGS
12 Plaintiff, REPORT & RECOMMENDATION 13 v. GRANTING DEFENDANTS’ MOTION TO DISMISS 14 Connie GIPSON, et al.,
15 Defendants. [ECF No. 16] 16 Jonquil Thomas-Weisner (“Plaintiff”), currently incarcerated at Centinela State 17 Prison (“CEN”) located in Imperial, California, is proceeding pro se and in forma pauperis 18 (“IFP”) in this civil rights action filed pursuant to 42 U.S.C. § 1983. (See ECF No. 5.) In 19 the First Amended Complaint (“FAC”), Plaintiff alleged that Defendants violated the First 20 Amendment’s Free Exercise Clause and the Fourteenth Amendment’s Protection of 21 Religious Clause by removing him from his Religious Meat Alternative (“RMA”) diet after 22 an alleged violation without providing an initial warning before removal. (ECF No. 15.) 23 Defendant Patrick Covello and Defendant Lance Eshelman (“Defendants”) moved to 24 dismiss Plaintiff’s First Amended Complaint (“FAC”) contending: (1) Plaintiff failed to 25 state cause of action under the First Amendment’s Free Exercise Clause, (2) Plaintiff failed 26 to state cause of action under the Fourteenth Amendment, (3) Plaintiff’s request for 27 injunctive relief should be dismissed because he no longer resides at RJD, and (4) 28 1 Defendants are entitled to Qualified Immunity. (ECF No. 16 at 5–9.) Plaintiff filed an 2 opposition to the motion to the dismiss (“Opposition”) and Defendants’ filed a reply in 3 support of their motion. (ECF Nos. 18, 19.) 4 This Report and Recommendation is submitted to United States District Judge John 5 A. Houston pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule HC.2 of the United 6 States District Court for the Southern District of California. Based on the documents and 7 evidence presented, and for the reasons set forth below, the Court RECOMMENDS that 8 Defendants’ Motion to Dismiss Plaintiff’s FAC (ECF No. 16) be GRANTED and that this 9 action be DISMISSED. 10 I. FACTUAL BACKGROUND 11 Plaintiff participated in the RMA diet while incarcerated at California Substance 12 Abuse Treatment Facility (SATF) until he was transferred to RJD on January 5, 2018. 13 (ECF No. 15 at 1.) Once he arrived at RJD, Plaintiff claimed that he took the necessary 14 steps to obtain his RMA diet at this new prison to no avail. (Id.) Plaintiff alleged that at 15 the time of the complaint, Defendant Covello was acting Warden of RJD and member of 16 the Religious Review Committee (“RRC”). (Id. at 1–2.) Plaintiff also alleged that 17 Defendant Eshelman was Community Resource Manager at RJD and also a member of the 18 RRC. (Id.) Plaintiff alleged that the Defendants are responsible for “the upkeep of 19 transferring inmates religious diet” and to “inform an inmate of any violation before their 20 removal” from their diet, since they are members of the RRC. (Id. at 2.) 21 By June 2018, Plaintiff indicated that he had yet to receive his RMA diet and raised 22 the issue via “CDCR Form-602” grievance. (Id. at 2.) On June 11, 2018, Plaintiff claimed 23 to have received a “CDCR Form-3030” with “DENIED” written across it and without 24 further explanation. (Id. at 3.) Plaintiff then indicated that he began the CDCR grievance 25 process. (Id.) At the Second Level Response (“SLR”), Plaintiff alleged that Defendant 26 Covello responded to his grievance. (Id.) As for not receiving an initial warning, Plaintiff 27 stated that Defendant Covello indicated in his SLR that: 28 1 2) you have not received a 128b (CDCR-128b Chrono) notifying you of your violations as stated in the 3030 Religious Diet Agreement ... preview of your 2 file was conducted to see if you had any previous approvals for requested diet 3 ... The review turned up negative results, so your request was treated as a new request. Therefore, a review of your canteen purchases was conducted, which 4 revealed you were purchasing items not consistent with the diet requested, ... 5 So a 128b notifying you of your violations was deemed unnecessary. 6 (Id. at 3.) Plaintiff filed his FAC against the Defendants for their alleged participation in 7 the removal of Plaintiff from the RMA diet at RJD without first warning him. (Id. at 1–2.) 8 Plaintiff claimed that this hindered his full and safe participation of his religion, which 9 violated the First and Fourteenth Amendment. (Id. at 2.) 10 II. PROCEDURAL BACKGROUND 11 On October 17, 2019, Plaintiff initially filed this action pursuant to 42 U.S.C. § 1983 12 and also filed a Motion to Proceed IFP. (See ECF Nos. 1, 2.) On January 8, 2020, the 13 Court granted Plaintiff’s Motion to Proceed IFP and dismissed Defendants Gipson and 14 Voong for failing to state a claim upon which relief could be granted pursuant to 28 U.S.C. 15 §§ 1915 (e)(2(b)(ii), 1915A(b)(1). (See ECF No. 5.) However, the Court found that the 16 allegations in Plaintiff’s Complaint as to his First Amendment Free Exercise Clause and 17 Religious Land Use and Institutionalized Persons Act (“RLUIPA”) claims were “sufficient 18 to survive the ‘low threshold’ set for sua sponte screening pursuant to 28 U.S.C. § 1915 19 (e)(2(b)(ii) and § 1915A(b)(1). (Id. at 8–9.) Thus, the Court directed the United States 20 Marshal Service to effect service of the remaining claims in Plaintiff’s Complaint on 21 Defendants Covello and Eshelman. (See id.) 22 On May 11, 2020, Defendants filed their Motion to Dismiss Plaintiff’s Complaint 23 pursuant to Fed. R. Civ. P. 12(b)(6). (ECF No. 10.) Plaintiff filed his Opposition to 24 Defendant’s Motion, to which Defendant filed a Reply. (See ECF Nos. 12, 13.) 25 On October 26, 2020, the Court issued its order granting Defendants’ Motion to 26 Dismiss Plaintiff’s Complaint. (ECF No. 14.) As for Plaintiff’s First Amendment Free 27 Exercise Claim, the Court pointed out that the Defendants could not be held liable due to 28 their supervisory roles since there is no respondeat superior liability under § 1983. (Id. at 1 6.) The Court then indicated that in order for Plaintiff to state a claim against either 2 Defendant, he must allege their “‘personal involvement in the constitutional deprivation’” 3 or “‘a sufficient causal connection between the supervisor’s wrongful conduct and the 4 constitutional violation.’” (Id.) In response to Plaintiff’s claim in his opposition that the 5 Defendants were members of the RRC and therefore should have known that Plaintiff was 6 denied the right to participate in the RMA diet, the Court indicated that the inquiry into 7 causation must be individualized and focus on the duties and responsibilities of each 8 individual defendant. (Id. at 7.) The Court detailed that a person deprives another “of a 9 constitutional right, within the meaning of section 1983, if he does an affirmative act, 10 participates in another’s affirmative acts, or omits to perform an act which he is legally 11 required to do that causes the deprivation of which [the plaintiff] complains].” (Id.) The 12 Court then granted Defendants’ Motion to Dismiss as to Plaintiff’s First Amendment claim, 13 finding that the complaint did not contain allegations that Defendants were members of the 14 RRC and did not contain allegations that Defendants played any direct role in the decision 15 to deny or remove Plaintiff from the RMA. (Id. at 7–8.) 16 As for Due Process under the Fourteenth Amendment, the Court indicated that the 17 Defendants’ purported failure to comply with § 3054.5 of the CDCR guidelines did not 18 necessarily amount to a Fourteenth Amendment Due Process violation in a § 1983 action. 19 (Id. at 8–9.) The Court stated that Due Process is violated only when there are changes 20 that inflict an “atypical and significant hardship on the inmate in relation to the ordinary 21 incidents of prison life.” (Id.) The Court indicated that Plaintiff failed to allege any 22 changes to his diet were a “dramatic departure from the basic conditions” of his 23 confinement that would give rise to a liberty interest and then granted Defendants’ Motion 24 to Dismiss. (Id.) 25 The Court then granted Defendants’ Motion to Dismiss as to Plaintiff’s RLUIPA 26 claims. (Id. at 9–10.) The Court found that Plaintiff’s claims for monetary damages and 27 injunctive relief against Defendants in both their individual and official capacities for 28 1 RLUIPA violations could not proceed and dismissed the RLUIPA claims without leave to 2 amend. (Id.) 3 The Court did not address Qualified Immunity since the Court found that Plaintiff 4 failed to state a claim against the Defendants, however, the Court granted Plaintiff leave to 5 amend to cure the deficiencies in his claims against Defendants, with the exception of his 6 RLUIPA claim. (Id. at 10–11.) The Court warned that Plaintiff’s FAC must be complete 7 in itself, without reference to Plaintiff’s original pleading, and any claims Plaintiff fails to 8 reallege against any of the Defendants will be considered waived. (Id.) 9 III. MOTION TO DISMISS STANDARD 10 A motion to dismiss under Federal Rule 12(b)(6) may be based on either a “lack of 11 a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable 12 legal theory.” Johnson v. Riverside Healthcare System, LP, 534 F.3d 1116, 1121 (9th Cir. 13 2008) (citing Fed. R. Civ. P. 8(a)(2)). A motion to dismiss should be granted if the plaintiff 14 or petitioner fails to proffer “enough facts to state a claim to relief that is plausible on its 15 face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial 16 plausibility when the plaintiff pleads factual content that allows the court to draw the 17 reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. 18 Iqbal, 556 U.S. 662, 678 (2009). 19 When considering a Federal Rule 12(b)(6) motion to dismiss, the Court must “accept 20 all allegations of material fact in the complaint as true and construe them in the light most 21 favorable to the non-moving party.” Cedars-Sinai Med. Ctr. v. Nat’l League of 22 Postmasters, 497 F.3d 972, 975 (9th Cir. 2007). However, it is not necessary for the Court 23 “to accept as true allegations that are merely conclusory, unwarranted deductions of fact, 24 or unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th 25 Cir. 2001). “[T]hreadbare recitals” of the elements of a cause of action, “supported by 26 mere conclusory statements,” are not enough. Iqbal, 556 U.S. at 678. “Factual allegations 27 must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. 28 at 555. On the other hand, “[a] document filed pro se is ‘to be liberally construed,’ and ‘a 1 pro se complaint, however inartfully pleaded, must be held to less stringent standards than 2 formal pleadings drafted by lawyers[.]’” Erickson v. Pardus, 551 U.S. 89, 94 (2007). 3 IV. DISCUSSION 4 In the FAC, Plaintiff alleged that the Defendants violated the First Amendment and 5 Fourteenth Amendment for their alleged actions regarding his RMA diet. (ECF No. 15 at 6 2–3.) Defendants moved to dismiss Plaintiff’s FAC in its entirety on the grounds that (1) 7 the conduct attributed to the Defendants are not sufficient to maintain a lawsuit under § 8 1983, (2) Plaintiff failed to state cause of action under the First Amendment’s Free Exercise 9 Clause, (3) Plaintiff failed to state cause of action under the Fourteenth Amendment, (4) 10 Plaintiff’s request for injunctive relief should be dismissed because he no longer resides at 11 RJD, and (5) Defendants are entitled to Qualified Immunity. (ECF No. 16 at 5–9.) Each 12 of these arguments are addressed in turn. 13 A. 42 U.S.C. §1983 Standard 14 Title 42 U.S.C. § 1983 “provides a federal cause of action against any person who, 15 acting under color of state law, deprives another of his federal rights.” Conn v. Gabbert, 16 526 U.S. 286, 290 (1999). Section 1983 offers no substantive legal rights, but rather 17 provides procedural protections for federal rights granted elsewhere. Albright v. Oliver, 18 510 U.S. 266, 271 (1994). “Section 1983 is a ‘vehicle by which plaintiffs can bring federal 19 constitutional and statutory challenges to actions by state and local officials.’” Naffe v. 20 Frey, 789 F.3d 1030, 1035 (9th Cir. 2015) (quoting Anderson v. Warner, 451 F.3d 1063, 21 1067 (9th Cir. 2006)). “To state a claim under § 1983, a plaintiff [1] must allege the 22 violation of a right secured by the Constitution and laws of the United States, and [2] must 23 show that the alleged deprivation was committed by a person acting under color of state 24 law.” Id. at 1035–36 (quoting West v. Atkins, 487 U.S. 42, 48 (1988)). “Dismissal of a § 25 1983 claim following a Rule 12(b)(6) motion is proper if the complaint is devoid of factual 26 allegations that give rise to a plausible inference of either element.” Id. at 1036 (citing 27 DeGrassi v. City of Glendora, 207 F.3d 636, 647 (9th Cir. 2000), Price v. Hawaii, 939 F.2d 28 702, 707–09 (9th Cir. 1991), and Iqbal, 556 U.S. at 678). 1 B. First Amendment Free Exercise Claim 2 In his FAC, Plaintiff alleged that it was Defendants’ duties, as members of the RRC, 3 for keeping track of the religious diets of transferring inmates and warning the inmates of 4 their first violation of their RMA diet before removal. (ECF No. 15 at 1–2.) Plaintiff 5 further alleged that Defendants’ participation in removing him from his RMA diet without 6 a warning or the ability to continue on his diet “hindered his full and safe participation of 7 his religion” and violated the First Amendment’s Free Exercise Clause and Fourteenth 8 Amendment “Protection of Religious” Clause. (Id. at 2.) 9 Fundamentally, “where a particular amendment provides an explicit textual source of 10 constitutional protection against a particular sort of government behavior, that 11 Amendment, not the more generalized notion of substantive due process, must be the guide 12 for analyzing a plaintiff’s claims.” See Pino v. Ladd, No. 1:13CV01593-DLB-PC, 2014 13 WL 1102721, at *3 (E.D. Cal. Mar. 2014) (citing Patel v. Penman, 103 F.3d 868, 874 (9th 14 Cir. 1996)). Thus, considering that Plaintiff alleged that the Defendants’ conduct hindered 15 his full and safe participation of his religion due to their alleged participation in removing 16 Plaintiff from his RMA diet (ECF No. 15 at 2), Plaintiff’s religion claim is properly 17 analyzed under the First Amendment. See Pino, 2014 WL 1102721, at *3 (finding that 18 Plaintiff did not have a Fourteenth Amendment claim since his claim regarding his 19 religious practice was properly analyzed under the First Amendment). 20 Inmates do retain the protections afforded to them under the First Amendment, 21 including the free exercise of their religion, while incarcerated. See McElyea v. Babbitt, 22 833 F.2d 196, 197 (9th Cir. 1987) (citing O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 23 (1987)). Free exercise rights, however, are “necessarily limited by the fact of incarceration, 24 and may be curtailed in order to achieve legitimate correctional goals or to maintain 25 security.” Id. The protections of the Free Exercise Clause are triggered when prison 26 officials burden the practice of an inmate’s religion by preventing him from engaging in 27 conduct which he sincerely believes is consistent with his faith. Shakur v. Schriro, 514 28 F.3d 878, 884 (9th Cir. 2008). The Ninth Circuit has held that inmates “have the right to 1 be provided with food sufficient to sustain them in good health that satisfies the dietary 2 laws of their religion.” Ward v. Walsh, 1 F.3d 873, 877 (9th Cir. 1993). 3 However, since there is no respondeat superior liability under § 1983, Defendants 4 cannot be held liable simply by virtue of their supervisory roles. See Iqbal, 556 U.S. at 5 676 (“Government officials may not be held liable for the unconstitutional conduct of their 6 subordinates under a theory of respondeat superior.”). In order for Plaintiff to have stated 7 a claim against either Defendant, Plaintiff needed to have alleged their “‘personal 8 involvement in the constitutional deprivation’” or “‘a sufficient causal connection between 9 the supervisor’s wrongful conduct and the constitutional violation.’” See Jones v. 10 Williams, 297 F.3d 930, 934 (9th Cir. 2002) (quoting Redman v. Cnty. of San Diego, 942 11 F.2d 1435, 1446 (9th Cir. 1991) (en banc), abrogated on other grounds by Farmer v. 12 Brennan, 511 U.S. 825, 837 (1994)). 13 In its order dismissing the original complaint, the Court indicated that Plaintiff failed 14 to allege that Defendants were members of the RRC and that the Defendants played any 15 direct role in the decision to deny or remove Plaintiff from his RMA diet. (ECF No. 14 at 16 7.) The Court granted Plaintiff leave to amend to cure the deficiencies, specifically 17 indicating that Plaintiff must plead in his FAC that each Defendant violated the 18 Constitution through his own individual actions in order to plead a plausible claim for 19 relief. (Id. at 7–8, 10–11.) 20 Defendants moved to dismiss Plaintiff’s FAC, arguing that the conduct that Plaintiff 21 attributed to the Defendants do not amount to a constitutional violation. (ECF No. 16 at 22 5.) Defendants claimed that Plaintiff failed to describe any conduct undertaken in the FAC 23 that shows that the Defendants, through their own individual actions, violated the 24 Constitution. (Id. at 5–6.) Further, Defendants argued that the act of denying a grievance, 25 without more, cannot sustain a claim under 42 U.S.C. § 1983. (Id. at 6.) The Defendants 26 stated that the Court previously held that the original complaint’s allegations were not 27 sufficient to state a § 1983 cause of cation and that Plaintiff has not corrected this defect. 28 (Id.) 1 Plaintiff opposed, stating that his allegations in the FAC are sufficient for purposes 2 of establishing liability under 42 U.S.C. § 1983 in showing that the Defendants violated 3 his constitutional rights. (ECF No. 18 at 4.) Plaintiff claimed that his RMA diet stopped 4 once he transferred to RJD and that the Defendants, as members of the RRC, were 5 responsible for transferring him to his RMA diet. (Id. at 3.) Plaintiff claimed that he was 6 entitled to a written warning and continuance of the RMA diet under CCR §3045.5, since 7 the non-compliant canteen purchase was his first violation. (Id. at 4.) Each Defendant is 8 analyzed separately below. 9 1. Defendant Covello 10 As to Defendant Covello’s personal participation in removing him from his RMA 11 Diet, Plaintiff alleged in his FAC that it was Defendant Covello’s duty, as a member of the 12 RRC, for keeping track of the religious diets of transferring inmates and warning the 13 inmates of any violations regarding their RMA diet before removal. (ECF No. 15 at 1–2.) 14 Plaintiff also alleged that “Defendants’ participation in the removal of Plaintiff from the 15 RMA diet without first warning him has hindered his full and safe participation of his 16 religion.” (Id.) However, since an individual’s general responsibility for supervising the 17 operations of a prison is insufficient to establish personal involvement, Plaintiff needed to 18 have alleged facts, not simply conclusions, that showed that the Defendants was personally 19 involved in the deprivation of his civil rights. See Barren v. Harrington, 152 F.3d 1193, 20 1194 (9th Cir.1998) (finding that plaintiff must allege facts showing that the defendant was 21 personally involved in the deprivation of plaintiff’s civil rights), cert. denied, 525 U.S. 22 1154 (1999); Wesley v. Davis, 333 F. Supp. 2d 888, 892 (C.D. Cal. 2004) (finding that a 23 defendant’s general responsibility for supervising prison operations is insufficient in 24 establishing personal involvement). In his FAC, Plaintiff has only made conclusory 25 allegations that Defendant Covello participated in removing him from the RMA diet. 26 Plaintiff did not individualize Defendant Covello’s personal participation in the removal 27 and in fact failed to describe the actual person that participated in depriving him of his 28 1 RMA diet. Accordingly, Plaintiff has failed to proffer enough facts to state a claim as to 2 Defendant Covello’s personal involvement in the alleged First Amendment violation. 3 Further, Plaintiff failed to allege a sufficient causal connection between the 4 Defendant Covello’s conduct and the alleged First Amendment constitutional violation. 5 See Jones, 297 F.3d at 934. “The inquiry into causation must be individualized and focus 6 on the duties and responsibilities of each individual defendant whose acts or omissions are 7 alleged to have caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 8 (9th Cir. 1988) (citing Rizzo v. Goode, 423 U.S. 362, 370–71 (1976).) A person deprives 9 another “of a constitutional right, within the meaning of section 1983, if he does an 10 affirmative act, participates in another’s affirmative acts, or omits to perform an act which 11 he is legally required to do that causes the deprivation of which [the plaintiff] complains].” 12 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 13 The only specific conduct that Plaintiff attributed to Defendant Covello was his 14 participation in the grievance process. (See ECF No. 15.) Plaintiff first alleged that his 15 request for his RMA diet was denied without further explanation on June 11, 2018, but did 16 not provide any allegations as to who actually denied this claim. (Id. at 3.) After this 17 denial, Plaintiff claimed that he started the grievance process. (Id.) In response to this 18 grievance, Defendant Covello responded in a SLR. (Id.) Defendant Covello’s SLR 19 involved whether certain regulations applied to Plaintiff’s religious meal violation to justify 20 providing Plaintiff with a warning and continuing him on his RMA diet. (Id.) Plaintiff 21 indicated that Defendant Covello’s SLR decided that notice regarding Plaintiff’s violations 22 was found to be unnecessary. (Id.) 23 Although Plaintiff tried to frame Defendant Covello’s participation in the SLR as 24 the conduct that deprived Plaintiff of his constitutional right protected under the First 25 Amendment, Plaintiff failed to allege a sufficient causal connection between the Defendant 26 Covello’s conduct and the alleged First Amendment violation. Defendant Covello’s SLR 27 to Plaintiff’s grievance only dealt with whether Plaintiff should have been provided a 28 warning and the ability to continue with his RMA diet following his first violation, pursuant 1 to state and prison regulations. Inmates do not have a constitutional entitlement to a 2 specific prison grievance procedure. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) 3 (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988)). And Plaintiff cannot state a § 4 1983 claim based solely on Defendant Covello’s role in the inmate appeals process. See 5 Revis v. Syerson, No. 2:12-CV-2751-MCE-EFB, 2015 WL 641629, at *5 (E.D. Cal. Feb. 6 2015) (“[Defendant’s] signing of the Second Level Response is insufficient personal 7 participation.”), subsequently aff’d sub nom. Revis v. Roche, 659 F. App’x 453 (9th Cir. 8 2016); see also George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007) (“Only persons who 9 cause or participate in the violations are responsible. [. . .] Ruling against a prisoner on an 10 administrative complaint does not cause or contribute to the violation.”); Cejas v. Myers, 11 No. 112CV00271-AWI-DLB, 2016 WL 1695060, at *7 (E.D. Cal. Apr. 2016) (finding that 12 a defendant who reviewed an appeal did not personally participate in the constitutional 13 violation since the Defendant did not have any reason to believe Plaintiff’s constitutional 14 rights had been violated after the Defendant reviewed the previous appeal decisions and 15 had no reason to think that a constitutional violation had occurred); Lopez v. Peterson, No. 16 2:98-CV-2111-LKK-EFB, 2013 WL 3994466, at *16 (E.D. Cal. Aug. 2013) (“[T]he prison 17 grievance procedure does not confer any substantive rights upon inmates and actions in 18 reviewing and denying inmate appeals cannot serve as a basis for liability under section 19 1983.”), report and recommendation adopted, No. 2:98-CV-2111-LKK, 2013 WL 20 5946182 (E.D. Cal. Nov. 2013); Hernandez v. Cate, 918 F. Supp. 2d 987, 1018 (C.D. Cal. 21 Jan. 2013) (“Plaintiff cannot state a section 1983 claim based solely on [the Defendant’s] 22 role in the inmate appeals process.”); Lamon v. Junious, No. 109CV00484GSAPC, 2009 23 WL 3248173, at *4 (E.D. Cal. Oct. 2009) (“[T]he involvement of prison personnel in 24 reviewing and issuing decisions on Plaintiff’s inmate appeals does not provide a basis for 25 the imposition of liability on them for the conduct of others.”). 26 Accordingly, Defendant Covello’s SLR was too far removed to state a claim as to 27 the causal connection between Defendant Covello’s conduct and the alleged constitutional 28 deprivation. Therefore, accepting all the allegations regarding Plaintiff’s First Amendment 1 Free Exercise Claim as to Defendant Covello as true and construing them in the light most 2 favorable to the non-moving party, Plaintiff has failed to state a cognizable claim that is 3 plausible on its face. Accordingly, IT IS THEREFORE RECOMMENDED THAT that 4 this First Amendment claim be DISMISSED as to Defendant Covello. 5 2. Defendant Eshelman 6 As to Defendant Eshelman, Plaintiff also alleged that it was his duty, as a member 7 of the RRC, for keeping track of transferring inmates’ religious diets and warning inmates 8 of any violations regarding their RMA diet before removal. (ECF No. 15 at 1–2.) Plaintiff 9 then alleged that “Defendants’ participation in the removal of Plaintiff from the RMA diet 10 without first warning him has hindered his full and safe participation of his religion.” (Id.) 11 Plaintiff has only made these two conclusory allegations regarding Defendant Eshelman’s 12 personal participation in removing him from the RMA diet. 13 Initially, Defendant Eshelman’s involvement with the RRC is insufficient in 14 establishing personal involvement in the alleged constitutional violation. Wesley, 333 F. 15 Supp. 2d at 892 (“[A]n individual’s ‘general responsibility for supervising the operations 16 of a prison is insufficient to establish personal involvement.’”). Further, there is no specific 17 allegation in the FAC that Defendant Eshelman personally participated in removing 18 Plaintiff from his RMA diet, which is not enough to establish Defendant Eshelman’s 19 personally involvement in the deprivation of his constitutional rights. See Barren, 152 F.3d 20 at 1194 (“A plaintiff must allege facts, not simply conclusions, that show that an individual 21 was personally involved in the deprivation of his civil rights. Liability under § 1983 must 22 be based on the personal involvement of the defendant.”). Although the Court’s order as 23 to the first Motion to Dismiss indicated that Plaintiff needed to plead that each Defendant 24 violated the Constitution through his own individual actions, Plaintiff failed to 25 individualize Defendant Eshelman’s personal participation in removing him from the RMA 26 diet. (ECF Nos. 14 at 7–8; 15 at 1–3.) Accordingly, Plaintiff has failed to proffer any facts 27 to state a claim as to Defendant Eshelman’s personal involvement in a constitutional 28 deprivation. 1 Additionally, Plaintiff failed to allege a sufficient causal connection between 2 Defendant Eshelman and the alleged First Amendment violation. See Jones, 297 F.3d at 3 934. Despite the Court’s previous order indicating that the causal connection must be 4 individualized as to each individual Defendant whose acts or omissions are alleged to have 5 caused a constitutional deprivation, Plaintiff failed to plead any specific and individualized 6 actions as to Defendant Eshelman. See Leer, 844 F.2d at 633 (“The inquiry into causation 7 must be individualized and focus on the duties and responsibilities of each individual 8 defendant whose acts or omissions are alleged to have caused a constitutional 9 deprivation.”). Plaintiff failed to allege that Defendant Eshelman affirmatively acted, 10 participated in another’s affirmative acts, or failed to act when he was legally required to 11 do so, that deprived Plaintiff of his First Amendment right. See Johnson, 588 F.2d at 743 12 (“A person ‘subjects’ another to the deprivation of a constitutional right, within the 13 meaning of section 1983, if he does an affirmative act, participates in another’s affirmative 14 acts, or omits to perform an act which he is legally required to do that causes the deprivation 15 of which complaint is made.”). The general allegations in the FAC, without a specific 16 causal link between Defendant Eshelman and the removal of Plaintiff from the RMA diet, 17 fails to state a claim for relief. 18 Accordingly, Plaintiff failed to proffer any individualized facts to state a claim as to 19 the causal connection between Defendant Eshelman and the alleged constitutional 20 deprivation under the First Amendment. Therefore, accepting all the allegations regarding 21 Plaintiff’s First Amendment Free Exercise Claim regarding Defendant Eshelman as true 22 and construing them in the light most favorable to the non-moving party, Plaintiff has failed 23 to state a cognizable claim that is plausible on its face. Accordingly, IT IS THEREFORE 24 RECOMMENDED THAT that this First Amendment claim be DISMISSED as to 25 Defendant Eshelman. 26 /// 27 /// 28 /// 1 C. Fourteenth Amendment Due Process Claim 2 In his FAC, Plaintiff alleged that it was Defendants’ duties, as members of the RRC, 3 for keeping track of the religious diets of transferring inmates and warning the inmates of 4 any violations regarding their RMA diet before removal, pursuant to California Department 5 of Corrections and Rehabilitation’s Operations Manual (“Department’s Operations 6 Manual” or “DOM”) § 54080.14 and Title 15 of the California Code of Regulations 7 (“CCR”), § 3054.5. (ECF No. 15 at 1–2.) Plaintiff alleged that the Defendants violated 8 the Fourteenth Amendment when they neglected these guidelines. (Id. at 3.) 9 Section 3054.5 of Title 15 of the California Code of Regulations states: 10 Any alleged compliance violation of the Religious Diet Program Agreement shall be reported using CDC Form 128-B, General Chrono, citing CCR, Title 11 15, [§] 3054. All reports shall be sent to the designated representative of the 12 RRC, who shall consult with the inmate. The RRC shall make the final determination of continuing eligibility, and complete a CDCR Form 3030-C 13 [] , Religious Diet Program Notice of Non-Compliance, which is incorporated 14 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 15 inmate, and a second violation within six months of the first violation may 16 subject the inmate to removal from the program. A copy of the completed CDCR Form 3030-C shall be provided to the inmate. 17 Further, as to an inmate’s non-compliance, § 54080.14 of the Department’s Operations 18 Manual states in part: 19 Chaplain Responsibilities. [. . .] Upon receiving a completed inmate’s 20 “Religious Diet Request” form, the Chaplain, or their designee shall: [. . .] 21 Meet with inmates, giving them the opportunity to respond to allegation(s) of noncompliance with Religious Diet Program. Utilize the Religious Diet 22 Program Notice of Noncompliance form. 23 24 25 1 Although not labeled as a separate cause of action nor expressly alleged, Plaintiff’s Due Process 26 allegation is addressed in the Court’s previous order (ECF No. 14) and is embedded within the FAC (ECF No. 15). Accordingly, the Court will construe Plaintiff’s pleadings liberally and proceed to address the 27 Due Process argument as if it was a discrete cause of action listed in the FAC. See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (quoting Erickson, 551 U.S. at 94 (pro se complaints “must be held to less 28 1 Monitoring for Religious Diet Program Inmate Compliance. Any staff may report an incident of an alleged inmate Religious Diet Program Agreement 2 compliance violation [. . .] Religious Diet Program Agreement. The incident 3 report must be in writing using a CDC Form 128-B, General Chrono, citing CCR, Title 15, Section 3054. All written reports shall be sent to the 4 appropriate Chaplain who shall make the final determination of continuing 5 eligibility. 6 Although Plaintiff tried to frame the issue surrounding his RMA diet as a 7 constitutional violation, Plaintiff’s only allegation in his FAC specifically involved 8 whether the Defendants should have followed the procedures listed in DOM § 54080.14 9 and CCR § 3054.5 following Plaintiff’s first violation of his RMA diet. (See ECF Nos. 15; 10 18.) Plaintiff argued that the Defendants should have provided notice to Plaintiff regarding 11 his violation and should have continued Plaintiff on his RMA diet. (ECF Nos. 15 at 2–3; 12 18 at 3–4.) Plaintiff claimed that the Defendants violated these regulations by not notify 13 him of his violation of his RMA diet and did not allow him to remain on his RMA diet 14 following his first violation. (Id.) Plaintiff alleged that the Defendants’ “lack of following 15 the guidelines set in place by the CCR, Title 15, section 3054, is a basis for liability in a 16 §1983 lawsuit,” and that the Defendants neglecting these regulations effectively denied 17 him Due Process. (See ECF No. 18 at 4.) 18 Only violations of the U.S. Constitution or federal law are cognizable under 42 19 U.S.C. § 1983. Canell v. Oregon Dep’t of Just., 811 F. Supp. 546, 550 (D. Or. 1993) (citing 20 Williams v. Treen, 671 F.2d 892 (5th Cir.1982), cert. denied, 459 U.S. 1126 (1983)). 21 Violations of state law or state regulations generally do not amount to a constitutional 22 violation in § 1983 actions. See, e.g., Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir. 23 2009) (All § 1983 claims must be premised on a constitutional violation. [. . .] If the 24 government official [. . .] did not violate the claimant’s rights under the Constitution, no 25 relief lies within §1983.]”); Sweaney v. Ada Cnty., 119 F.3d 1385, 1391 (9th Cir. 1997) 26 (“To the extent that the violation of a state law amounts to the deprivation of a state-created 27 interest that reaches beyond that guaranteed by the federal Constitution, [§] 1983 offers no 28 redress.”)); Doe v. Conn. Dept. of Child & Youth Servs., 911 F.2d 868, 869 (2d Cir. 1990) 1 (“[A] violation of state law neither gives [plaintiff] a § 1983 claim nor deprives defendants 2 of the defense of qualified immunity to a proper § 1983 claim.”); Patterson v. Coughlin, 3 761 F.2d 886, 891 (2d Cir. 1985) (“[A] state employee’s failure to conform to state law 4 does not in itself violate the Constitution and is not alone actionable under § 1983[.]”); see 5 also (ECF No. 14 at 8). 6 Notwithstanding, state regulations can sometimes give rise to liberty interests that 7 are protected by the Fourteenth Amendment’s Due Process Clause. Chappell v. 8 Mandeville, 706 F.3d 1052, 1064 (9th Cir. 2013) (Graham, J., concurring) (quoting Sandin 9 v. Connor, 515 U.S. 472, 484 (1995)). “The Fourteenth Amendment’s Due Process Clause 10 protects persons against deprivations of life, liberty or property; and those who seek to 11 invoke its procedural protection must establish that one of these interests is at stake.” 12 Wilkinson v. Austin, 545 U.S. 209, 221 (2005). But it does not “protect every change in 13 conditions of confinement having a substantial impact on the inmate in relation to the 14 ordinary incidents of prison life.” Sandin, 515 U.S. at 478. While the Ninth Circuit has 15 recognized that Fourteenth Amendment protection can extend to state prison regulations, 16 this determination rests on whether a violation of the regulation imposes “‘atypical and 17 significant hardship on the inmate in relation to the ordinary incidents of prison life,’” and 18 is generally confined to regulations that relate to freedom from restraint. Id. 19 In its previous order, the Court informed the Plaintiff that under the circumstances 20 of this case, Due Process is only violated when there are changes that inflict an “atypical 21 and significant hardship on the inmate in relation to the ordinary incidents of prison life.” 22 (ECF No. 14 at 8.) The Court then granted Defendant’s Motion to Dismiss as to Plaintiff’s 23 Fourteenth Amendment claim, stating that Plaintiff failed to allege that any changes to his 24 diet were a “dramatic departure from the basic conditions” of his confinement that would 25 give rise to a liberty interest. (Id. at 8–9.) The Court then granted Plaintiff leave to amend 26 to cure this deficiency. (Id. at 10.) 27 Accepting all allegations of material fact in the FAC as true and construing them in 28 the light most favorable to the non-moving party, Plaintiff has not cured this defect for two 1 reasons. First, Plaintiff cannot prove an essential element of his claim, that a federal 2 constitutional right has been violated, since there is no independent cause of action under 3 § 1983 for violations of CCR § 3045.5 or other similar regulations. See, e.g., King v. Los 4 Angeles Cnty. Sheriff’s Dept., 672 F. App’x 701, 702 (9th Cir. 2016) (“Dismissal of King’s 5 claims alleging violations of Title 15 of the California Code of Regulations was proper 6 because the cited regulations do not create a private right of action.”); Himes v. Hadjadj, 7 No. 19CV2216-JAH-MSB, 2020 WL 4582676, at *8 (S.D. Cal. Aug. 2020) (“The Court’s 8 review of federal and state precedent allowing Fourteenth Amendment due process claims 9 to proceed on the basis of CCR violations has uncovered no reported decisions finding that 10 an independent cause of action is authorized by violations of CCR Title 15 § 3045.5, or 11 any similar regulations.”), report and recommendation adopted, No. 19CV2216-JAH- 12 MSB, 2021 WL 843182 (S.D. Cal. Mar. 2021); Nible v. Fink, No. 16-CV-02849-BAS- 13 RBM, 2019 WL 2611102, at *4 (S.D. Cal. June 2019) (“[V]iolations of Title 15 of the 14 California Code of Regulations ... do not create a private right of action.”), aff’d, 828 F. 15 App’x 463 (9th Cir. 2020); Wallace v. Olson, No. 3:16-CV-1917-AJB-NLS, 2017 WL 16 1346825, at *6 (S.D. Cal. Apr. 2017) (“[T]o the extent Plaintiff’s FAC and exhibits focus 17 almost exclusively on [Defendants’] alleged failures to properly follow CDCR Title 15 18 prison regulations governing the processing of his inmate appeals, he has failed to state a 19 claim upon which § 1983 relief can be granted.”), aff’d, 715 F. App’x 797 (9th Cir. 2018); 20 Chappell v. Newbarth, No. 106CV-01378OWW-WMW, 2009 WL 1211372, at *9 (E.D. 21 Cal. May 2009) (“The Court has found no authority to support a finding that there is an 22 implied private right of action under Title 15.”). 23 Second, Plaintiff has not provided any allegations that the violation of a state or 24 prison regulation imposed an atypical and significant hardship in relation to the ordinary 25 incidents of prison life. See Sandin, 515 U.S. at 484. In his FAC, Plaintiff first alleged 26 that the Defendants, as members of the RRC, should have followed the procedures set forth 27 in DOM § 54080.14 and CCR § 3054.5 following his first religious meal violation. (ECF 28 No. 15 at 2.) Plaintiff then made a conclusory allegation that the Defendants’ participated 1 in removing Plaintiff from his RMA diet without warning, which hindered his full and safe 2 participation of his religion. (Id.) Plaintiff failed to provide any allegations indicating that 3 violating a state or prison regulation resulted in a dramatic departure from the basic 4 conditions of his confinement that would give rise to a liberty interest. Sandin, 515 U.S. 5 at 485. 6 To the extent Plaintiff alleged that Defendant Covello violated his Fourteenth 7 Amendment Due Process rights during the grievance process, the FAC also failed to state 8 a valid claim for relief. Inmates do not maintain a constitutional right to an effective 9 grievance or appeal procedure. Ramirez, 334 F.3d at 860. And Plaintiff’s allegation that 10 Defendant Covello’s SLR to Plaintiff’s grievance should have followed the procedures set 11 forth in DOM § 54080.14 and CCR § 3054.5 following his first religious meal violation 12 does not amount to atypical or significant hardship in relation to the ordinary incidents of 13 prison life that implicate protection under the Fourteenth Amendment’s Due Process 14 Clause. See Zarate v. Tilton, No. C 08-3896SI-PR, 2009 WL 311401, at *6 (N.D. Cal. 15 Feb. 2009) (“The failure to grant an inmate’s appeal in the prison administrative appeal 16 system does not amount to a due process violation. [. . .] The denial of an inmate appeal is 17 not so severe a change in condition as to implicate the Due Process Clause itself[. . . .] An 18 incorrect decision on an administrative appeal or failure to process the appeal in a particular 19 way therefore did not amount to a violation of his right to due process.”) 20 Accordingly, Plaintiff has failed to establish that any violation of DOM § 54080.14 21 and CCR § 3054.5 by the Defendants amounted to a constitutional violation. Therefore, 22 accepting all the allegations regarding Plaintiff’s Fourteenth Amendment Due Process 23 claim as true and construing them in the light most favorable to the non-moving party, 24 Plaintiff has failed to state a cognizable claim that is plausible on its face. Accordingly, IT 25 IS THEREFORE RECOMMENDED THAT that this Fourteenth Amendment Due Process 26 claim be DISMISSED as to both Defendant Covello and Defendant Eshelman. 27 /// 28 /// 1 D. Injunctive Relief 2 Plaintiff requested that the injunctions requested in the initial complaint be rewarded. 3 (ECF No. 15 at 4.) However, Judge Houston previously dismissed, without leave to amend 4 as futile, Plaintiff’s RLUIPA claim which included the same request for injunctive relief. 5 (ECF No. 14 at 9–10.) Accordingly, IT IS THEREFORE RECOMMENDED THAT 6 Plaintiff’s reasserted request for injunctive relief be DISMISSED. 7 E. Qualified Immunity 8 Defendants also move to dismiss on the ground that they are entitled to qualified 9 immunity. Because the Court has found that Plaintiff has failed to state a claim against 10 them, it need not reach any issues regarding qualified immunity. See Saucier v. Katz, 533 11 U.S. 194, 201 (2001) (“If no constitutional right would have been violated were the 12 allegations established, there is no necessity for further inquiries concerning qualified 13 immunity.”); County of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998) (“[The better 14 approach to resolving cases in which the defense of qualified immunity is raised is 15 to determine first whether the plaintiff has alleged the deprivation of a constitutional right 16 at all.”). 17 V. CONCLUSION AND RECOMMENDATION 18 For the reasons discussed, IT IS HEREBY RECOMMENDED that the District 19 Court issue an Order: (1) adopting this Report and Recommendation; (2) GRANTING 20 Defendants’ Motion to Dismiss (ECF No. 16); and (3) DISMISSING Plaintiff’s FAC. 21 IT IS ORDERED that no later than September 3, 2021, any party to this action 22 may file written objections with the Court and serve a copy on all parties. The document 23 should be captioned “Objection to Report and Recommendation.” 24 IT IS FURTHER ORDERED that any reply to the objections shall be filed with 25 the Court and served on all parties no later than September 17, 2021. The parties are 26 advised that failure to file objections within the specified time may waive the right to raise 27 those objections may waive the right to raise those objections on appeal of the Court's 28 1 ||order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. YIst, 951 F.2d 2 || 1153, 1157 (th Cir. 1991). 3 IT IS SO ORDERED. A Dated: August 20, 2021 p / / 5 on. Bernard G. Skomal 6 United States Magistrate Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28