United States District Court, D. Nevada
REPORT AND RECOMMENDATION OF U.S. MAGISTRATE
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,
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.
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.)
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).
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).
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.
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.
Motion for Summary Judgment
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).
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).
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 STANDARD
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.
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).
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).
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).
First Amendment Free ...