1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 Jonquil THOMAS-WEISNER, Case No.: 19-cv-01999-JAH-BGS
11 Plaintiff, REPORT & RECOMMENDATION 12 v. GRANTING DEFENDANTS’ MOTION TO DISMISS 13 Connie GIPSON, et al., PLAINTIFF’S SECOND AMENDED 14 Defendants. COMPLAINT 15 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 Nos. 1, 5.) 19 In the Second Amended Complaint (“SAC”), Plaintiff alleged that Defendants violated the 20 First Amendment’s Free Exercise Clause by removing him from his Religious Meal 21 Alternative (“RMA”) diet. (See ECF No. 26.) Defendant Patrick Covello and Defendant 22 Lance Eshelman (“Defendants”) moved to dismiss Plaintiff’s SAC on grounds that the 23 conduct attributed to the Defendants is not sufficient to maintain a § 1983 lawsuit, (ECF 24 No. 28 at 10); that Plaintiff’s SAC failed to state a cause of action for violation of the Free 25 Exercise Clause, (Id. at 12); and that the Defendants are entitled to qualified immunity, (Id. 26 at 13).(ECF No. 28.) The Plaintiff filed an Opposition to the Motion to the Dismiss 27 (“Opposition”) and Defendants filed a Reply in support of their motion (“Reply”). (ECF 28 Nos. 33, 34.) 1 This Report and Recommendation is submitted to United States District Judge John 2 A. Houston pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule HC.2 of the United 3 States District Court for the Southern District of California. Based on the documents and 4 evidence presented, and for the reasons set forth below, the Court RECOMMENDS that 5 Defendants’ Motion to Dismiss Plaintiff’s SAC (ECF No. 26) be GRANTED and that this 6 action be DISMISSED WITHOUT LEAVE TO AMEND. 7 I. PROCEDURAL BACKGROUND 8 On October 17, 2019, Plaintiff initially filed this action pursuant to 42 U.S.C. § 1983 9 and filed a Motion to Proceed IFP. (See ECF Nos. 1, 2.) On January 8, 2020, the Court 10 granted Plaintiff’s Motion to Proceed IFP and dismissed Defendants Gipson and Voong 11 for failing to state a claim upon which relief could be granted pursuant to 28 U.S.C. §§ 12 1915 (e)(2(b)(ii), 1915A(b)(1). (See ECF No. 5.) However, the Court found that the 13 allegations in Plaintiff’s Complaint as to his First Amendment Free Exercise Clause and 14 Religious Land Use and Institutionalized Persons Act (“RLUIPA”) claims were “sufficient 15 to survive the ‘low threshold’ set for sua sponte screening pursuant to 28 U.S.C. § 1915 16 (e)(2(b)(ii) and § 1915A(b)(1).” (Id. at 8–9.) Thus, the Court directed the United States 17 Marshal Service to effect service of the remaining claims in Plaintiff’s Complaint on 18 Defendants Covello and Eshelman. (See id.) 19 On May 11, 2020, Defendants filed their Motion to Dismiss Plaintiff’s Complaint 20 pursuant to Fed. R. Civ. P. 12(b)(6). (ECF No. 10.) Plaintiff filed his Opposition to 21 Defendant’s Motion, to which Defendant filed a Reply. (See ECF Nos. 12, 13.) On 22 October 26, 2020, the Court issued its order granting Defendants’ Motion to Dismiss 23 Plaintiff’s Complaint with leave to amend. (ECF No. 14.) 24 On December 17, 2020, Plaintiff filed a First Amended Complaint (“FAC”). (ECF 25 No. 15.) Defendants filed another Motion to Dismiss on January 4, 2021. (ECF No. 16.) 26 On August 20, 2021, Judge Skomal issued a Report and Recommendation, wherein he 27 recommended that Defendants’ Motion to Dismiss be granted. (ECF No. 20.) On 28 1 November 15, 2021, Judge Houston issued an Order adopting the Report and 2 Recommendation and dismissed Plaintiff’s FAC with leave to amend. (ECF No. 25.) 3 Plaintiff’s SAC was filed on January 3, 2022 and contains a single cause of action 4 under the First Amendment for violation of the Free-Exercise Clause. (ECF No. 26.) On 5 January 20, 2022, Defendants filed their Motion to Dismiss Plaintiff’s SAC. (ECF No. 6 28.) Plaintiff filed his Opposition on April 11, 2022, and Defendants filed a reply in 7 support of their motion on April 20, 2022. (ECF Nos. 33, 34.) 8 II. FACTUAL BACKGROUND 9 In the SAC, Plaintiff maintained that he participated in the RMA diet while 10 incarcerated at California Substance Abuse Treatment Facility (SATF) until he was 11 transferred to RJD on January 5, 2018. (ECF No. 26 at 2.) While at RJD, Plaintiff claimed 12 that he then submitted a CDCR Form-22 explaining his dietary needs on January 8, 2018. 13 (Id. at 3.) Plaintiff stated that he submitted a CDCR Form-602 grievance on January 11, 14 2018 after no response. (Id.) On February 16, 2018, Plaintiff alleged that he was “informed 15 that he was being removed from the RMA program without his initial warning per Title 15 16 Section 3054.5[.]” (Id.) 17 Five months later, in June 2018, Plaintiff stated that he filed another CDCR Form - 18 602 grievance after his CDCR Form-3030 was denied. (Id.) Plaintiff alleged that 19 Defendant Eshelman reviewed and denied this grievance on August 30, 2018, which 20 Plaintiff claimed “further hinder[ed] the practice of [his] religious right, as well as, 21 violating his [First] Amendment rights.” (Id.) Plaintiff then alleged that “Defendant 22 Covello held that Title 15 section 3054.5 did not apply to Plaintiff’s request for RMA 23 because it was ‘[. . .] treated as new, and denied after the review process revealed 24 noncompliant canteen purchase[.]” (Id.) Plaintiff maintained that Defendant Covello 25 “violated [his] [First] Amendment right by not providing him with a meal sufficient to 26 sustain him in accordance to his belief.” (Id. at 4.) Plaintiff argued that he “has been and 27 will continue to be irreparably injured by the conduct of the defendants unless this court 28 grants the declaratory and injunctive relief which Plaintiff seeks.” (Id. at 5.) 1 III. MOTION TO DISMISS STANDARD 2 A motion to dismiss under Federal Rule 12(b)(6) may be based on either a “lack of 3 a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable 4 legal theory.” Johnson v. Riverside Healthcare System, LP, 534 F.3d 1116, 1121 (9th Cir. 5 2008) (citing Fed. R. Civ. P. 8(a)(2); Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 6 (9th Cir. 1990)). A motion to dismiss should be granted if the plaintiff or petitioner fails 7 to proffer “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic 8 Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the 9 plaintiff pleads factual content that allows the court to draw the reasonable inference that 10 the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 11 (2009). 12 When considering a Federal Rule 12(b)(6) motion to dismiss, the Court must “accept 13 all allegations of material fact in the complaint as true and construe them in the light most 14 favorable to the non-moving party.” Cedars-Sinai Med. Ctr. v. Nat’l League of 15 Postmasters, 497 F.3d 972, 975 (9th Cir. 2007). However, it is not necessary for the Court 16 “to accept as true allegations that are merely conclusory, unwarranted deductions of fact, 17 or unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th 18 Cir. 2001). “[T]hreadbare recitals” of the elements of a cause of action, “supported by 19 mere conclusory statements,” are not enough. Ashcroft v. Iqbal, 556 U.S. at 678. “Factual 20 allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. 21 Corp. v. Twombly, 550 U.S. at 555. On the other hand, “[a] document filed pro se is ‘to be 22 liberally construed,’ [. . .] and ‘a pro se complaint, however inartfully pleaded, must be 23 held to less stringent standards than formal pleadings drafted by lawyers[.]’” Erickson v. 24 Pardus, 551 U.S. 89, 94 (2007). 25 IV. DISCUSSION 26 In his SAC, Plaintiff alleged that the Defendants violated his First Amendment rights 27 for their alleged actions regarding his RMA diet. (ECF 26 at 3–4.) Defendants moved to 28 dismiss Plaintiff’s SAC in its entirety on the grounds that the conduct attributed to the 1 Defendants is not sufficient to maintain a § 1983 lawsuit, (ECF No. 28 at 10); that 2 Plaintiff’s SAC failed to state a cause of action for violation of the Free Exercise Clause, 3 (Id. at 12); and that the Defendants are entitled to qualified immunity, (Id. at 13). 4 A. 42 U.S.C. §1983 Standard 5 Title 42 U.S.C. § 1983 “provides a federal cause of action against any person who, 6 acting under color of state law, deprives another of his federal rights.” Conn v. Gabbert, 7 526 U.S. 286, 290 (1999). Section 1983 offers no substantive legal rights, but rather 8 provides procedural protections for federal rights granted elsewhere. Albright v. Oliver, 9 510 U.S. 266, 271 (1994). “Section 1983 is a ‘vehicle by which plaintiffs can bring federal 10 constitutional and statutory challenges to actions by state and local officials.’” Naffe v. 11 Frey, 789 F.3d 1030, 1035 (9th Cir. 2015) (quoting Anderson v. Warner, 451 F.3d 1063, 12 1067 (9th Cir. 2006)). “To state a claim under § 1983, a plaintiff [1] must allege the 13 violation of a right secured by the Constitution and laws of the United States, and [2] must 14 show that the alleged deprivation was committed by a person acting under color of state 15 law.” Id. at 1035–36 (quoting West v. Atkins, 487 U.S. 42, 48 (1988)). “Dismissal of a § 16 1983 claim following a Rule 12(b)(6) motion is proper if the complaint is devoid of factual 17 allegations that give rise to a plausible inference of either element.” Id. at 1036 (citing 18 DeGrassi v. City of Glendora, 207 F.3d 636, 647 (9th Cir. 2000), Price v. Hawaii, 939 F.2d 19 702, 707–09 (9th Cir. 1991), and Iqbal, 556 U.S. at 678). 20 Fundamentally, “where a particular amendment provides an explicit textual source 21 of constitutional protection against a particular sort of government behavior, that 22 Amendment, not the more generalized notion of substantive due process, must be the guide 23 for analyzing a plaintiff’s claims.” See Pino v. Ladd, No. 1:13CV01593-DLB-PC, 2014 24 WL 1102721, at *3 (E.D. Cal. Mar. 2014) (citing Patel v. Penman, 103 F.3d 868, 874 (9th 25 Cir. 1996)). Therefore, considering that Plaintiff alleged that the Defendants’ conduct 26 hindered his full and safe participation of his religion due to their alleged participation in 27 removing Plaintiff from his RMA diet, (ECF No. 26 at 2), Plaintiff’s religion claim is 28 properly analyzed under the First Amendment. See Pino, 2014 WL 1102721, at *3 (finding 1 that Plaintiff did not have a Fourteenth Amendment claim since his claim regarding his 2 religious practice was properly analyzed under the First Amendment). 3 Inmates do retain the protections afforded to them under the First Amendment, 4 including the free exercise of their religion, while incarcerated. See McElyea v. Babbitt, 5 833 F.2d 196, 197 (9th Cir. 1987) (citing O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 6 (1987)). Free exercise rights, however, are “necessarily limited by the fact of incarceration, 7 and may be curtailed in order to achieve legitimate correctional goals or to maintain 8 security.” Id. The protections of the Free Exercise Clause are triggered when prison 9 officials burden the practice of an inmate’s religion by preventing him from engaging in 10 conduct which he sincerely believes is consistent with his faith. See Shakur v. Schriro, 514 11 F.3d 878, 884 (9th Cir. 2008). The Ninth Circuit has held that inmates “have the right to 12 be provided with food sufficient to sustain them in good health that satisfies the dietary 13 laws of their religion.” Ward v. Walsh, 1 F.3d 873, 877 (9th Cir. 1993). 14 “The right to the free exercise of religion is a precious American invention, 15 distinguishing our Constitution from all prior national constitutions.” Id. at 876. “The 16 right to exercise religious practices and beliefs does not terminate at the prison door. [. . .] 17 The free exercise right, however, is necessarily limited by the fact of incarceration, and 18 may be curtailed in order to achieve legitimate correctional goals or to maintain security.” 19 McElyea v. Babbitt, 833 F.2d 196, 197 (9th Cir. 1987). The protections of the Free Exercise 20 Clause are triggered when prison officials burden the practice of an inmate’s religion by 21 preventing him from engaging in conduct which he sincerely believes is consistent with 22 his faith. See Shakur, 514 F.3d at 884; Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir. 23 1997), overruled in part by Shakur, 514 F.3d at 884–85. 24 B. The Conduct Attributed to the Defendants Does Not Amount to a 25 Constitutional Violation 26 Defendants argued that the conduct attributed to Defendant Covell and Defendant 27 Eshelman did not amount to a constitutional violation. (ECF No. 28 at 10.) Defendants 28 maintained that the SAC makes no allegation that either Defendant was responsible for 1 transferring the Plaintiff’s religious diet, nor in providing notice to the Plaintiff. (Id. at 11.) 2 Defendants claimed that Plaintiff only alleged that the Defendants only handled his 3 grievances. (Id.) 4 Plaintiff claimed that Defendant Eshelman reviewed and denied his grievance, citing 5 to Exhibit D. (ECF No. 26 at 3.) Exhibit D indicates that on August 30, 2018, Defendant 6 Eshelman reviewed and denied Plaintiff’s grievance. (Id. at 25.) As regards to Defendant 7 Covello, Plaintiff alleged that Defendant Covello also denied his grievance by mistakenly 8 finding that Title 15 Section 3054.5 did not apply to Plaintiff and treated him as a new 9 request. (Id. at 3.) Plaintiff claimed that Defendant Covello violated Plaintiff’s First 10 Amendment right by not providing him with a meal sufficient to sustain him in accordance 11 with his belief. (Id. at 3–4.) 12 However, since there is no respondeat superior liability under 42 U.S.C. § 1983, 13 defendants cannot be held liable simply by virtue of their supervisory roles. See Iqbal, 556 14 U.S. at 676 (“Government officials may not be held liable for the unconstitutional conduct 15 of their subordinates under a theory of respondeat superior.”). In order for Plaintiff to state 16 a claim against either Defendant, Plaintiff would have to allege their “‘personal 17 involvement in the constitutional deprivation’” or “‘a sufficient causal connection between 18 the supervisor’s wrongful conduct and the constitutional violation.’” See Jones v. 19 Williams, 297 F.3d 930, 934 (9th Cir. 2002) (quoting Redman v. Cnty. of San Diego, 942 20 F.2d 1435, 1446 (9th Cir. 1991) (en banc), abrogated on other grounds by Farmer, 511 21 U.S. at 837); see also Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (“The inquiry into 22 causation must be individualized and focus on the duties and responsibilities of each 23 individual defendant whose acts or omissions are alleged to have caused a constitutional 24 deprivation.”). 25 Plaintiff failed to allege any personal involvement by the Defendants in the transfer 26 of his RMA to RJD. The only specific conduct that Plaintiff attributed to both Defendants 27 was their participation in the grievance process. However, the act of denying a grievance, 28 without more, cannot sustain a § 1983 lawsuit. See Henderson v. Muniz, 196 F.Supp.3d 1 1092, 1105 (N.D. Cal., 2016). Moreover, the Plaintiff cannot state a § 1983 claim based 2 solely on Defendants’ role in the inmate appeals process. See, e.g., George v. Smith, 507 3 F.3d 605, 609 (7th Cir. 2007) (“Only persons who cause or participate in the violations are 4 responsible. [. . .] Ruling against a prisoner on an administrative complaint does not cause 5 or contribute to the violation.”); Revis v. Syerson, No. 2:12-CV-2751-MCE-EFB, 2015 WL 6 641629, at *5 (E.D. Cal. Feb. 2015) (“[Defendant’s] signing of the Second Level Response 7 is insufficient personal participation.”), subsequently aff’d sub nom. Revis v. Roche, 659 F. 8 App’x 453 (9th Cir. 2016); Lopez v. Peterson, No. 2:98-CV-2111-LKK-EFB, 2013 WL 9 3994466, at *16 (E.D. Cal. Aug. 2013) (“[T]he prison grievance procedure does not confer 10 any substantive rights upon inmates and actions in reviewing and denying inmate appeals 11 cannot serve as a basis for liability under section 1983.”), report and recommendation 12 adopted, No. 2:98-CV-2111-LKK, 2013 WL 5946182 (E.D. Cal. Nov. 2013); Hernandez 13 v. Cate, 918 F. Supp. 2d 987, 1018 (C.D. Cal. Jan. 2013) (“Plaintiff cannot state a section 14 1983 claim based solely on [the Defendant’s] role in the inmate appeals process.”); Lamon 15 v. Junious, No. 109CV00484GSAPC, 2009 WL 3248173, at *4 (E.D. Cal. Oct. 2009) 16 (“[T]he involvement of prison personnel in reviewing and issuing decisions on Plaintiff’s 17 inmate appeals does not provide a basis for the imposition of liability on them for the 18 conduct of others.”). And “the denial of a grievance does not retroactively cause the prior 19 harm.” Tate v. Hernandez, No. CV195089PHXSPLJFM, 2020 WL 4926353, at *4 (D. 20 Ariz. July 2020), report and recommendation adopted, No. CV1905089PHXSPLJFM, 21 2020 WL 4922073 (D. Ariz. Aug. 2020). 22 Therefore, accepting all the allegations regarding Plaintiff’s claims as to Defendant 23 Covello and Defendant Eshelman as true and construing them in the light most favorable 24 to the non-moving party, Plaintiff has failed to state a cognizable claim that is plausible on 25 its face that the Defendants’ conduct resulted in a constitutional violation. Accordingly, 26 IT IS THEREFORE RECOMMENDED that the Court find that Plaintiff’s SAC be 27 DISMISSED as to both Defendants for failing to allege the Defendants’ personal 28 involvement, or a sufficient causal connection, in the alleged constitutional deprivation. 1 C. Violation of California Code of Regulations 2 Plaintiff alleged that Defendant Covello erroneously applied Title 15, § 3054.5 of 3 the California Code of Regulations by treating Plaintiff’s request for RMA as new. (ECF 4 No. 26 at 3.) Plaintiff submitted that he was previously approved for an RMA diet May 5 27, 2014 at his previous institution, SATF. (Id. at 2, 7.) Plaintiff alleged that any 6 restrictions pertaining to a religious diet do not apply until after the inmate is approved into 7 the program. (Id. at 3–4.) Plaintiff claimed that Defendant Covello violated his First 8 Amendment right by not providing him with a meal sufficient to sustain him, in accordance 9 to his belief. (Id. at 4.) Defendants contended that a violation of Title 15, § 3054.5 of the 10 California Code of Regulations would not amount to a 42 U.S.C. § 1983 cause of action. 11 (ECF No. 28 at 11.) 12 Failing to comply with state laws, including the California Code of Regulations and 13 Department of Operations Manual, does not amount to constitutional violation. Garcia v. 14 L.A. Cty. Sheriff Dep’t, No.CV1508329DOCDFM, 2017 WL 275597, at *6 (C.D. Cal. Jan. 15 2017) (“Section 1983 offers no redress for a violation of a state law or state-mandated 16 procedure that does not amount to a constitutional violation.”) (citing Sweaney v. Ada 17 Cty.,119 F.3d 1385, 1391 (9th Cir. 1997)). Only violations of the federal constitution or 18 federal law are cognizable under 42 U.S.C. § 1983. Canell v. Oregon Dep’t of Just., 811 19 F. Supp. 546, 550 (D. Or. 1993) (citing Williams v. Treen, 671 F.2d 892 (5th Cir. 1982), 20 cert. denied, 459 U.S. 1126 (1983)). Specifically, there is no independent cause of action 21 under § 1983 for violations of California Code of Regulations Title 15 § 3045.5 or other 22 similar regulations. See, e.g., King v. Los Angeles Cnty. Sheriff’s Dept., 672 F. App’x 701, 23 702 (9th Cir. 2016) (“Dismissal of King’s claims alleging violations of Title 15 of the 24 California Code of Regulations was proper because the cited regulations do not create a 25 private right of action.”); Nible v. Fink, No. 16-CV-02849-BAS-RBM, 2019 WL 2611102, 26 at *4 (S.D. Cal. June 2019) (“[V]iolations of Title 15 of the California Code of Regulations 27 ... do not create a private right of action.”), aff’d, 828 F. App’x 463 (9th Cir. 2020); Wallace 28 v. Olson, No. 3:16-CV-1917-AJB-NLS, 2017 WL 1346825, at *6 (S.D. Cal. Apr. 2017) 1 (“[T]o the extent Plaintiff’s FAC and exhibits focus almost exclusively on [Defendants’] 2 alleged failures to properly follow CDCR Title 15 prison regulations governing the 3 processing of his inmate appeals, he has failed to state a claim upon which § 1983 relief 4 can be granted.”), aff’d, 715 F. App’x 797 (9th Cir. 2018). 5 In the present case, Plaintiff claimed that Defendant Covello allegedly violated Title 6 15, § 3054.5 of the California Code of Regulations. (ECF No. 26 at 3–4.) However, this 7 does not amount to a § 1983 cause of action. See King, 672 F. App’x at 702; Nible, 2019 8 WL 2611102, at *4. Thus, Plaintiff cannot prove an essential element of his claim, i.e., 9 that a federal constitutional right has been violated. Accordingly, IT IS THEREFORE 10 RECOMMENDED that the Court find that Plaintiff’s SAC be DISMISSED for failing to 11 establish that a federal constitutional right had been violated since Defendant Covello’s 12 alleged violation of Title 15, § 3054.5 did not amount to a § 1983 cause of action. 13 D. Violation of the First Amendment Free Exercise Clause 14 In his Opposition, Plaintiff alleged that Defendants substantially burdened his 15 religious practice because he was denied his dietary needs. (ECF No. 33 at 5.) Plaintiff 16 claimed to have made his dietary needs known on January 8, 2018 but did not receive RMA 17 until December 4, 2019. (Id.) Plaintiff maintained that he went without an RMA for 695 18 days. (Id.)1 19 Defendants asserted that Plaintiff was not substantially burdened because he was 20 able to consume side dishes and was able to purchase canteen food items. (ECF No. 28 at 21 12.) Defendants also claimed Plaintiff’s purchase of pork rinds goes to show that Plaintiff 22 was not sincere. (Id.) Defendants maintained that neither Defendant was responsible for 23 transferring Plaintiff’s diet nor supplying notice. (Id.) Defendants claimed that they both 24 appropriately responded to Plaintiff’s grievance by reviewing his file and treating his 25
26 1 These 695 days included his stay at RJD and CEN. (ECF Nos. 26 at 2, 4; 33 at 7.) Of note, Plaintiff 27 was transferred to RJD on January 8, 2018. (ECF No. 26 at 2.) Plaintiff was thereafter transferred to CEN on August 3, 2018. (ECF No. 33 at 7.) 28 1 complaint as a new application for a religious diet. (Id.) Defendants claimed that Plaintiff 2 cannot state a claim under the First Amendment’s Free Exercise Clause since Plaintiff 3 made no allegation that their conduct was intentional and unreasonable. (Id.) 4 To state a claim under the Free Exercise Clause, an inmate must plausibly allege that 5 a prison official’s actions (a) “substantially burden[ed]” the inmate’s exercise of a sincerely 6 held religious belief; and (b) did so in an unreasonable manner—i.e., the official’s actions 7 were not “rationally related to legitimate penological interests.” See O’Lone v. Estate of 8 Shabazz, 482 U.S. 342, 348–50, (1987); Jones v. Williams, 791 F.3d 1023, 1031, 1033 (9th 9 Cir. 2015). A “[p]laintiff must allege conscious or intentional acts that burden his free 10 exercise of religion.” Lewis v. Mitchell, 416 F. Supp. 2d 935, 944 (S.D. Cal. 2005) (holding 11 negligence is insufficient to state a valid Section 1983 claim for the violation of free 12 exercise rights); see also Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1214 (9th Cir. 2017) 13 (Bybee, J., concurring) (“[I]t is now beyond question that § 1983 requires proof of 14 intentional, not merely negligent, acts depriving a party of his constitutional rights”). 15 “Threadbare recitals of the elements of a cause of action, supported by mere conclusory 16 statements, do not suffice.” Iqbal, 556 U.S. at 678. 17 Plaintiff has failed to plausibly allege that the Defendants substantially burdened his 18 exercise of a sincerely held religious belief. The Defendants sole involvement was their 19 review and denial of his grievance. (See ECF No. 26.) Participation in the grievance 20 procedure does not establish a sufficient causal connection to Plaintiff’s alleged 21 constitutional violation. See supra at Section III(B). Further, the Defendants were not 22 responsible for the transfer of Plaintiff’s RMA diet card to RJD. Plaintiff has also failed 23 to plausibly allege that Defendants, in denying his grievance, intended to burden Plaintiff’s 24 free exercise of religion. 25 Notwithstanding, Plaintiff has also failed to plausibly allege that the Defendants’ 26 conduct in denying Plaintiff’s grievance was unreasonable. The Defendants’ reviewed 27 Plaintiff’s grievance and, given the negative results from a search for previous approvals 28 for RMA, applied the appropriate regulation. (ECF No. 26 at 30.) The Defendants deemed 1 Plaintiff’s request as a new request for an RMA and indicated that a notice was not required 2 for a new request. (Id.) The Second Level Appeal Response indicated that due to 3 Plaintiff’s undisputed violation by purchasing an item inconsistent with RMA, Plaintiff 4 had to wait 6 months to re-apply. (Id.) To the extent Plaintiff alleged that the Defendants 5 applied the wrong regulation in regard to his allegation that he did have a previous approval 6 for RMA, such a violation of the California Code of Regulations does not amount to 7 constitutional violation. See supra at Section III(C). Further, inmates do not maintain a 8 constitutional right to effective grievance procedure. Ramirez v. Galaza, 334 F.3d 850, 9 860 (9th Cir. 2003). Accordingly, IT IS THEREFORE RECOMMENDED that the Court 10 find that Plaintiff’s SAC be DISMISSED for failing to plausibly allege a claim under the 11 Free Exercise Clause. 12 E. Injunctive Relief 13 In his SAC, Plaintiff requested injunctive relief against the Defendants “to stop 14 hindering inmates from receiving or participating in the Religious Diet Program.” (ECF 15 26 at 5.) However, Judge Houston previously dismissed, without leave to amend as futile, 16 Plaintiff’s RLUIPA claims which included the same request for injunctive relief. (ECF 17 No. 14 at 9–10.) 18 Notwithstanding, Plaintiff currently resides at CEN. (ECF No. 26 at 1–2.) Claims 19 for non-monetary relief brought under 42 U.S.C. § 1983 are moot if the prisoner-plaintiff 20 is no longer subject to the alleged illegal conduct. Wiggins v. Rushen, 760 F.2d 1009, 21 1010–11 (9th Cir. 1985) (“In these circumstances, where the complainant was no longer 22 subject to the allegedly illegal activity, the complaint for an injunction became moot.”). In 23 particular, injunctive relief claims should be dismissed when a prisoner is transferred to 24 another prison that is not the subject of the underlying claim. See Johnson v. Moore, 948 25 F.2d 517, 519 (9th Cir. 1991); Dilley v Gunn, 64 F.3d 1365, 1369 (9th Cir. 1995) (prisoner- 26 plaintiffs must demonstrate a “reasonable expectation” that they will be transferred back 27 in order to receive injunctive relief.”) 28 1 The Plaintiff alleged no facts indicating he could be transferred back to RJD. (ECF 2 No. 26.) Plaintiff also added that he is seeking injunctive relief for future prisoners. (ECF 3 No. 33 at 7.) However, Plaintiff is no longer subject to the alleged illegal conduct from 4 RJD and has not demonstrated a “reasonable expectation” that he will be transferred back 5 to RJD, making his claim for injunctive relief moot. Therefore, it is recommended that 6 Plaintiff’s reasserted request for injunctive relief be DISMISSED. 7 F. Qualified Immunity 8 Defendants also moved 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.”); Ochoa v. City of Mesa, 26 F.4th 1050, 1058 (9th Cir. 2022) (“Because we agree 17 that there was no Fourteenth Amendment violation and affirm summary judgment on that 18 basis, we do not address the second prong of the qualified-immunity test described by the 19 Supreme Court in Saucier v. Katz[.]”). 20 II. CONCLUSION & RECOMMENDATION 21 For the reasons discussed, IT IS HEREBY RECOMMENDED that the District 22 Court issue an Order: (1) adopting this Report and Recommendation; (2) GRANTING 23 Defendants’ Motion to Dismiss (ECF No. 28); and (3) DISMISSING Plaintiff’s SAC with 24 prejudice. 25 IT IS ORDERED that no later than July 6, 2022, any party to this action may file 26 written objections with the Court and serve a copy on all parties. The document should be 27 captioned “Objection to Report and Recommendation.” 28 1 IT IS FURTHER ORDERED that any reply to the objections shall be filed with 2 Court and served on all parties no later than July 20, 2022. The parties are advised that 3 ||failure to file objections within the specified time may waive the right to raise those 4 objections may waive the right to raise those objections on appeal of the Court's order. See 5 || Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153, 6 (th Cir. 1991). 7 IT IS SO ORDERED. 8 ||Dated: June 14, 2022 p / / ? on. Bernard G. Skomal 10 United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28