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Thomas v. Cox

United States District Court, D. Nevada

May 3, 2019

JAMES COX, et. al., Defendant.


         This case involves a civil rights action filed by Plaintiff David Jonathon Thomas ("Plaintiff') against Defendants Isidro Baca, Kathryn Reynolds, James Stogner, and Elizabeth "Lisa" Walsh (collectively referred to as "Defendants"). Currently pending before the Court is Defendants' motion for summary judgment (ECF No. 137). Plaintiff opposed the motion, (ECF 144), and Defendants replied (ECF No. 145). Having thoroughly reviewed the record and papers, the Court hereby recommends that Defendants' motion for summary judgment be granted, in part and denied, in part.

         I. BACKGROUND

         A. Procedural History

         Plaintiff is an inmate in the custody of the Nevada Department of Corrections ("NDOC"), and is currently incarcerated at the Northern Nevada Correctional Center ("NNCC") in Carson City, Nevada. Proceeding pro se, Plaintiff filed the instant civil rights action pursuant to 42 U.S.C. § 1983 against NDOC Director James Cox, NNCC Warden Isidro Baca, NNCC Assistant Warden Elizabeth Walsh, NNCC Chaplain James Stogner, NNCC ASO Katheryn Reynolds, and NNCC Food Services Manager Scott Kahler. (ECF No. 4.) Plaintiffs claims primarily arise out of assertions that Defendants failed to provide Plaintiff with vegetarian kosher meals between 2011 and 2013. (See ECF No. 4.) Plaintiff seeks declaratory relief, compensatory and punitive damages. (Id.)

         Pursuant to 28 U.S.C. § 1915A(a), the Court screened Plaintiffs complaint on April 3, 2014. (ECF No. 3.) The court determined Plaintiff could proceed with the following claims: (1) Count I - a First Amendment free exercise claim and a claim under the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA") against Defendants Walsh and Kahler based on his allegations that they denied him the ability to obtain vegetarian kosher meals; (2) Count II - a First Amendment free exercise and RLUIPA claims against Defendants Baca, Walsh, Stogner, and Kahler based on the allegation that Plaintiff was not given proper kosher meals during Passover; and, (3) Count III - a supervisory liability claim against Defendant Baca based on the allegation that he failed to adequately train or supervise Defendant Reynolds because he permitted Reynolds to respord to a request that an exception to the rule or policy that caused Plaintiff to be denied a meat-free kosher diet. (ECF No. 3.)[2]

         In 2015, Defendants filed a motion for summary judgment arguing the case should be dismissed due to Plaintiffs failure to exhaust his administrative remedies. (ECF No. 18). The court granted Defendants' motion and dismissed the case. (ECF No. 53, 54). Plaintiff appealed the dismissal and the Ninth Circuit reversed the court's order and remanded the case for further proceedings. (ECF No. 66, 70).

         B. Factual Background

         Prior to 2012, NDOC offered a "kosher" diet menu to those inmates who identified as members of the Jewish faith. (ECF No. 138, Ex. J.) The kosher diet menu included kosher meat products and was not vegetarian. (ECF No. 138, Ex. H) (example of kosher diet menu in February 2011 which includes meat items such as Salisbury steak, kosher turkey, chicken wings, tuna, and spaghetti with meatballs). In February 2012, NDOC discontinued the kosher diet menu and replaced it with the "common fare" menu. (ECF No. 138, Ex. E.) The common fare menu complies with the faith requirements of several religious groups, including the Jewish faith. It is undisputed that the common fare menu, like to prior kosher diet menu, includes meat items and is not vegetarian. (See ECF No. 138, Ex. G) (sample common fare menu).

         Plaintiff has been housed at NNCC since approximately March 2011. (ECF No. 138, Ex. A). According to NDOC records, Plaintiff identified his religious affiliation as "Messianic Jewish" by at least 2006. (Id. at Ex. B). Thereafter, in February 2012, Plaintiff refined his religious affiliation, declaring to be a member of the "Yahudim Natzaren" or "Jahudim Honnatzori Nazir" faiths, which appear to be associated with the practices of the Karaite Jewish faith. (Id. at Ex. C. p. APP 4). At this time, Plaintiff requested a religious accommodation for a "vegetarian kosher/common fare" diet based on his faith. (Id. at p. APP 6). Plaintiff was approved for the common fare diet menu and began receiving this diet in February 2012. Although the common fare diet provided to Plaintiff was kosher, it was not vegetarian. Thereafter, Plaintiff continued to request a "vegetarian kosher" diet, but he was refused. Ultimately, on August 8, 2012, Plaintiff renounced the common fare menu and returned to a standard diet.

         In addition to not receiving a "vegetarian kosher" diet, Plaintiff also asserts he was not provided a proper "kosher" food tray during Passover in 2012. Specifically, on April 5, 2012, which Plaintiff claims was the first day of Passover, he received a common fare food tray that included leaven bread. Bread containing leaven is prohibited during Passover by members of the Jewish faith.

         C. Motion for Summary Judgment

         On December 27, 2018, Defendants filed a second motion for summary judgment arguing Plaintiffs claims should be dismissed based on three grounds. (ECF No. 137). First, Defendants assert Plaintiffs First Amendment Free Exercise and RLUIPA claims should be dismissed because his desire for a vegetarian kosher diet is based on his personal preference - not a sincerely held religious belief. (Id. at 7-10). Next, to the extent Plaintiffs claims are asserted against Defendants Baca, Walsh, Kohler, and Stogner, Defendants argue these claims should be dismissed because the defendants did not personally participate in the actions taken in the case and they have no authority to change the NDOC policy related to kosher meals. (Id. at 10-12). Finally, in the alternative, Defendants assert that all Defendants are entitled to qualified immunity for any and all actions taken in this case. (Id. at 12-13).

         Plaintiff opposed asserting that his request for a "vegetarian kosher" diet is based on his sincerely held religious beliefs; Defendants personally participated in refusing his repeated requests for a vegetarian kosher diet; and, qualified immunity does not apply. (ECF No. 144 at 3, 10-11).

         Defendants replied restating their initial arguments and asserting that Plaintiff failed to come forward with admissible evidence to create any issues of material fact. (ECF No. 145 at 3-4).


         Summary judgment allows the court to avoid unnecessary trials. Nw. Motorcycle Ass'n v. U.S. Dep't of Agric, 18 F.3d 1468, 1471 (9th Cir. 1994). The court properly grants summary judgment when the record demonstrates that "there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). "[T]he substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). A dispute is "genuine" only where a reasonable jury could find for the nonmoving party. Id. Conclusory statements, speculative opinions, pleading allegations, or other assertions uncorroborated by facts are insufficient to establish a genuine dispute. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007); Nelson v. Pima Cmty. Coll., 83 F.3d 1075, 1081-82 (9th Cir. 1996). At this stage, the court's role is to verify reasonable minds could differ when interpreting the record; the court does not weigh the evidence or determine its truth. Schmidt v. Contra Costa Cnty., 693 F.3d 1122, 1132 (9th Cir. 2012); Nw. Motorcycle Ass'n, 18 F.3d at 1472.

         Summary judgment proceeds in burden-shifting steps. A moving party who does not bear the burden of proof at trial "must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element" to support its case. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). Ultimately, the moving party must demonstrate, on the basis of authenticated evidence, the record forecloses the possibility of a reasonable jury finding in favor of the nonmoving party as to disputed material facts. Celotex, 477 U.S. at 323; Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002). The court views all evidence and any inferences arising therefrom in the light most favorable to the nonmoving party. Colwell v. Bannister, 763 F.3d 1060, 1065 (9th Cir. 2014).

         Where the moving party meets its burden, the burden shifts to the nonmoving party to "designate specific facts demonstrating the existence of genuine issues for trial." In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citation omitted). "This burden is not a light one," and requires the nonmoving party to "show more than the mere existence of a scintilla of evidence.... In fact, the non-moving party must come forth with evidence from which a jury could reasonably render a verdict in the non-moving party's favor." Id. (citations omitted). The nonmoving party may defeat the summary judgment motion only by setting forth specific facts that illustrate a genuine dispute requiring a fact finder's resolution. Liberty Lobby, 477 U.S. at 248; Celotex, 477 U.S. at 324. Although the nonmoving party need not produce authenticated evidence, Fed.R.Civ.P. 56(c), mere assertions, pleading allegations, and "metaphysical doubt as to the material facts" will not defeat a properly-supported and meritorious summary judgment motion, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).

         For purposes of opposing summary judgment, the contentions offered by a pro se litigant in motions and pleadings are admissible to the extent the contents are based on personal knowledge and set forth facts that would be admissible into evidence and the litigant attested under penalty of perjury that they were true and correct. Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004).


         A. First Amendment Free ...

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