The opinion of the court was delivered by: Philip M. Pro United States District Judge
Presently before the Court is Defendants' Motion to Dismiss Plaintiff's Complaint (Doc. #24), filed on December 15, 2010 by Defendants Ryan Klein, Brian illiams, Clarence King, Ken Nicholas, Lavert Taylor, Cheryl Burson, and James Gregory
Plaintiff filed an Opposition (Doc. #29) on January 7, 2011. Defendants filed a Reply oc. #31) on March 2, 2011.
Plaintiff Ken Roberts currently is an inmate at the Southern Desert Correctional Center ("SDCC"). (Compl. (Doc. #8).) Defendants are administrators and employees with
Nevada Department of Corrections ("NDOC") and SDCC. (Id.) Plaintiff is a "Black Inmate of Jewish Tenet and Faith." (Id.) In February 2009, Plaintiff sought to be provided kosher meals to observe his religion's dietary requirements. (Id.) In June 2009, Plaintiff received notice from an associate warden at the Northern Nevada Correctional Center ("NNCC") that to receive kosher meals, Plaintiff must be recognized by an outside Jewish group or organization. (Id.)
On June 30, 2009, Plaintiff was transferred from NNCC to SDCC. (Id.) Upon arrival at the new prison, Plaintiff sought kosher meals. (Id.) In August 2009, Defendant Chaplain Lavert Taylor ("Taylor") granted Plaintiff and several other inmates approval to receive kosher meals. (Id.) However, SDCC kitchen manager Defendant Clarence King ing") failed to provide Plaintiff with kosher meals. (Id.) On September 26, 2009, Plaintiff was provided with notice from Taylor that Plaintiff's approval to receive kosher meals was rescinded and per the order of Defendant Gregory Cox ("Cox"), Deputy Director
NDOC, kosher meals would be provided only to inmates who were recognized as Jews requiring kosher meals by an outside Jewish group or organization. (Id.) On September 28, 2009, Plaintiff filed an informal grievance challenging his denial of kosher meals and this informal grievance was denied. (Id.) Plaintiff appealed the denial of his grievance and received denials at Level Two of the prison grievance process on November 9, 2009 and ovember 23, 2009. (Id.)
From August 20, 2009 to September 23, 2009, Defendants Brian Williams illiams"), Cheryl Burson ("Burson"), and Taylor cancelled all Jewish services to accommodate Muslim inmates during the month of Ramadan. (Id.) There is no record of Plaintiff filing, nor does Plaintiff allege he filed, any grievances related to these actions.
On October 10, 2009, Plaintiff was attending Jewish services and Defendant Ken icholas ("Nicholas") terminated Plaintiff from his prison work assignment. (Id.) Plaintiff attempted to explain to Nicholas that Plaintiff was allotted time off from work assignments weekly worship. (Id.) Nicholas responded by telling Plaintiff "You're no damn Jew," ou're right I'm firing you," and "Around here I'm your god." (Id.) On October 12, 2009, Plaintiff received disciplinary charges and a hearing. (Id.) During this hearing, efendant Ryan Klein ("Klein") told Plaintiff "Attending service is no excuse to miss ork." (Id.) Plaintiff was found guilty of failing to attend work and received disciplinary sanctions. (Id.) Plaintiff filed an informal grievance regarding this matter on October 13, 2009. (Defs.' Mot. to Dismiss (Doc. #24), Ex. 1.) Plaintiff received responses denying his informal grievance on October 13, 14, and 28. (Id.) Plaintiff appealed the denial of his informal grievances to Level One of the prison grievance process, receiving denials on ovember 6 and 25. (Id.) Plaintiff again appealed and received denials at Level Two of prison grievance process on January 11 and 26, 2010. (Id.) Plaintiff also received a denial on December 3, 2009, which did not indicate the grievance level. (Id.)
On December 11, 2009, Plaintiff filed a five count Complaint against efendants. Count I alleges Defendants Howard Skolnik ("Skolnik"), Cox, Williams, Burson, King, and Taylor violated Plaintiff's First Amendment right to free exercise of religion, his statutory rights under the Religious Land Use and Institutionalized Persons Act 2000 ("RLUIPA"), and the Equal Protection Clause of the Fourteenth Amendment for requiring an outside organization to verify that Plaintiff is Jewish to be entitled to a kosher plan. Count II alleges Defendants Williams, Burson, and Taylor violated Plaintiff's Amendment free exercise rights, the RLUIPA, and the Equal Protection Clause of the Fourteenth Amendment when they cancelled Jewish services to accommodate Muslims during the month of Ramadan. Count III alleges Defendants Cox and Taylor retaliated against Plaintiff for participating in "protected conduct" by rescinding Plaintiff's right to receive kosher meals. Count IV alleges Defendant Nicholas retaliated against Plaintiff for attending Jewish services by terminating Plaintiff from his prison work assignment and placing Plaintiff under disciplinary charges. Count V alleges Defendants Nicholas and lein violated Plaintiff's First Amendment free exercise rights and the Equal Protection Clause of the Fourteenth Amendment when they placed Plaintiff on disciplinary sanctions missing work while Plaintiff was attending Jewish services.
Defendants filed a Motion to Dismiss alleging that Plaintiff failed to exhaust his administrative remedies regarding Counts II, IV, and V; all five counts fail to state a claim which relief may be granted under Federal Rule of Civil Procedure 12(b)(6); Plaintiff's claim under RLUIPA is moot; and Defendants are entitled to qualified immunity. Plaintiff replies that he has exhausted his administrative remedies with respect to Counts IV and V, se litigants' pleadings are to be construed liberally, and that he has stated claims upon hich relief may be granted.
A. Failure to Exhaust Administrative Remedies
The Prison Litigation Reform Act of 1996 ("PLRA") provides that "[n]o action be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a) (2002). Failure to exhaust administrative remedies is an affirmative defense and the defendants bear the burden of raising and proving failure to exhaust. Jones v. Bock, 549 .S. 199, 212-14 (2007). Proper exhaustion requires that the plaintiff utilize all steps made available by the agency and comply with the agency's deadlines and other procedural rules. oodford v. Ngo, 548 U.S. 81, 89-90 (2006). Proper exhaustion must be completed before complaint may be filed. Id. at 83-84.
If a defendant on a motion under Federal Rule of Civil Procedure 12(b)(6) presents matters outside the pleadings, the Court may consider them and treat the motion as for summary judgment. Fed. R. Civ. P. 12(d). On a motion for summary judgment, the party seeking summary judgment must show that there is no genuine issue of material fact that he is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). When deciding motion for summary judgment, the Court views all evidence in the light most favorable to non-moving party. County of Tuolumne v. Sonora Cmty. Hosp., 236 F.3d 1148, 1154 Cir. 2001).
Here, Defendants allege that Plaintiff failed to exhaust his administrative remedies with respects to Counts II, IV, and V. Plaintiff states that he properly exhausted administrative remedies with respect to Counts IV and V. Because Defendants
submitted evidence along with the Motion to Dismiss, the Court will treat it as a motion for summary judgment and view the evidence in ...