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Howard v. Polley

United States District Court, D. Nevada

July 26, 2019

ABDUL HOWARD, Plaintiff,
BONNIE POLLEY, et al., Defendants.



         I. SUMMARY

         Plaintiff Abdul Howard alleges violations of his First, Eighth and Fourteenth Amendment rights because officials at the Clark County Detention Center (“CCDC”), where he was detained, designated Islam as a “program” instead of a “religion, ” leading to two adverse consequences, and failed to provide Plaintiff and others similarly situated to him with adequate food during Ramadan 2016. (ECF Nos. 4 (screening the Complaint), 5.) Before the Court is Defendants Bonnie Polley, Mujahid Ramadan, Sheriff Lombardo, Randall Brown, and Robert Garvey's motion for summary judgment (the “Motion”).[1] (ECF No. 57.) The Court will grant the Motion as to Plaintiff's First Amendment retaliation claim because Plaintiff has not proffered any evidence that Defendants took any adverse actions against him because of his earlier protected conduct, but deny the Motion as to Plaintiff's Eighth Amendment claim because a material factual dispute exists as to whether Plaintiff and other Muslim detainees participating in Ramadan at CCDC received food adequate to maintain health during Ramadan 2016. The Court also finds Plaintiff's First Amendment religious free exercise and Fourteenth Amendment equal protection claims are claim-precluded.

         II. BACKGROUND[2]

         Plaintiff was detained at CCDC in 2016. (ECF No. 57-1 at 10.) Plaintiff is Muslim. (Id. at 6.) CCDC classifies Islam as a “program, ” while it classifies various disciplines of Christianity and Judaism as “religions.” (Id. at 13-19; see also ECF Nos. 57-3, 57-6 at 8-9.) This distinction has two implications: (1) to participate in Islam's weekly group worship service, Jumu'ah, detainees must submit a request to participate in Islam, which involves a waiting period so that detainees can be screened for security risks, subjecting Muslim detainees to a one-time wait of up to three weeks to begin attending Jumu'ah; and (2) if a Muslim detainee does not attend a Jumu'ah, he can be punished-though a Christian or a Jew is not punished if he misses a service, because their religions are designated as religions. (ECF Nos. 57-1 at 13-15, 59-7 at 1-4, 4 (stating a detainee can be punished for “[r]efusing to attend programs), 59-12 at 2 (stating that inmates are not required to attend religious services).) These claims were raised and litigated in a related case, Howard v. Polley, 2:15-cv-01458-APG-VCF (D. Nev. Filed Jul. 30, 2015) (the “1458 Case”).

         Plaintiff alleges that he and other Muslim detainees at CCDC were given inadequate food to break their evening fast during Ramadan 2016, an allegation which Defendants dispute. (ECF No. 4 at 5.) Muslim detainees ate breakfast as normal, as breakfast is served at CCDC well before sunrise anyway, and were then given a sack meal after sunset to break their fast. (ECF No. 57-1 at 7-9; see also ECF No. 59-11 at 2.) The kitchen at CCDC was already done serving dinner by the time the sun would go down during Ramadan. (ECF No. 57-1 at 7-9.) Thus, CCDC's approach was to give Muslim detainees a sack meal they could eat after sundown. (Id.) Plaintiff alleges he was given the same, unhealthy sack meal every evening, which did not contain enough calories for him to sustain himself. (ECF No. 4 at 5; see also ECF No. 59-2 at 2.) Plaintiff also takes blood pressure medication that makes his stomach sensitive. (Id.) Thus, Plaintiff alleges he could not sustain his fasting because the evening meals were inadequate, and was forced to abandon his Ramadan fast for the first time in his life. (Id.) He also alleges his blood pressure medication began burning a hole in his stomach because of his insufficient caloric intake. (Id.) As noted, Defendants argue Plaintiff received sufficient calories during Ramadan 2016, and the evening meals were sufficiently nutritious.

         In addition, Plaintiff generally asserts Defendants are retaliating against him for the lawsuits and grievances he filed in the past.[3] (ECF No. 4 at 7-8.) Defendants dispute that any of them retaliated, or are retaliating, against Plaintiff. (ECF No. 57 at 10-12.) Plaintiff alleges that he and other Muslim detainees were given insufficient food during Ramadan, and told they would be punished if they were found with food during the day during Ramadan, or failed to attend Jumu'ah, in retaliation for the grievances and lawsuits that Plaintiff filed in the past. (ECF No. 4 at 7-8.) Plaintiff further wrote numerous grievances regarding his treatment as a Muslim detainee at CCDC that generally track the allegations outlined above.

         The Court screened Plaintiff's Complaint in this case under the Prison Litigation Reform Act (“PLRA”) and allowed four claims to proceed. (ECF No. 4.) The first claim is “[b]ased on the allegations [that] jail officials have categorized Muslim services as a program rather than a religion, have under fed Muslim inmates during Ramadan, and have refused to provide Muslim inmates with prayer rugs.” (Id. at 7.) The second claim for is First Amendment retaliation based on allegations that some defendants involved in Plaintiff's other lawsuits:

told Plaintiff that he had been filing grievances for two years and that nothing changed and that nothing would change. As a result, those defendants threatened to punish the Muslim inmates if they chose not to attend the services “program, ” threatened to send them to segregation if they used blankets as prayer rugs, and under fed them during Ramadan.

(Id. at 7-8.) The claim for Eighth Amendment conditions of confinement is based on Plaintiff's allegation that he was not fed enough food during Ramadan 2016 to sustain adequate health. (Id. at 8-9.) The Court also allowed a Fourteenth Amendment equal protection claim to proceed:

Based on the allegations, jail officials treated Muslim services as a program and penalized Muslim inmates who chose not to attend their religious program. On the other hand, jail officials treated Christian and Jewish services as religious services and did not penalize inmates for not attending.

(Id. at 9.) The Court later appointed pro bono counsel to represent Plaintiff. (ECF No. 25.)

         The four claims identified several Defendants.[4] As noted, Polley is CCDC's religious coordinator. Polley is therefore responsible for planning, directing, and supervising all aspects of CCDC's religious programs. (ECF No. 59-12 at 3.) Defendant Ramadan is a volunteer imam who ministers at CCDC and consulted on the food provided to Muslim detainees during Ramadan 2016. (ECF Nos. 59-5, 57-2 at 2-5.) Defendant Garvey is a corrections officer who told Plaintiff that he was aware Plaintiff had been filing grievances for years related to CCDC's treatment of Islam, and told Plaintiff and other detainees that they were not allowed to prepare or have food in their cells during Ramadan, and that he would report them if he saw them eating food during daylight hours during Ramadan. (ECF No. 59-13 at 4-5.) Defendant Brown is a corrections officer who served as the Kitchen Liaison Officer during Ramadan 2016, and who coordinated the delivery of food to Plaintiff and other Muslim detainees during Ramadan 2016, responded to Plaintiff's grievances, and spoke with Plaintiff about Plaintiff's concerns regarding Ramadan 2016. (ECF No. 59-9.) Defendant Sheriff Lombardo is in charge of CCDC, and Plaintiff attempted to submit at least one grievance to him. (ECF No. 57-2 at 2.)


         “The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the facts before the court.” Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when the pleadings, the discovery and disclosure materials on file, and any affidavits “show there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). An issue is “genuine” if there is a sufficient evidentiary basis on which a reasonable fact-finder could find for the nonmoving party and a dispute is “material” if it could affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). Where reasonable minds could differ on the material facts at issue, however, summary judgment is not appropriate. See Id. at 250-51. “The amount of evidence necessary to raise a genuine issue of material fact is enough ‘to require a jury or judge to resolve the parties' differing versions of the truth at trial.'” Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968)). In evaluating a summary judgment motion, a court views all facts and draws all inferences in the light most favorable to the nonmoving party. See Kaiser Cement Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986).

         The moving party bears the burden of showing that there are no genuine issues of material fact. See Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). Once the moving party satisfies Rule 56's requirements, the burden shifts to the party resisting the motion to “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256. The nonmoving party “may not rely on denials in the pleadings but must produce specific evidence, through affidavits or admissible discovery material, to show that the dispute exists, ” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), and “must do more than simply show that there is some metaphysical doubt as to the material facts.” Orr v. Bank of Am., 285 F.3d 764, 783 (9th Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). “The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient.” Anderson, 477 U.S. at 252.


         Both Plaintiff's response to Defendants' Motion, and the parties' supplemental briefs, make clear that the Court either cannot or does not need to address some of the parties' arguments in ruling on the Motion. Thus, the Court will address those issues before moving on to analyze Defendants' Motion as regards Plaintiff's claims, including Defendants personal participation and qualified immunity arguments.

         A. Issues No Longer In Dispute

         The parties agree that any claims based on Plaintiff's allegations regarding prayer rugs have been resolved because Muslim detainees at CCDC are now allowed a third towel per week to use as a prayer rug. (ECF Nos. 57 at 10, 59 at 3-4, 4 n.1.) Thus, the Court will dismiss any claims based on those allegations as moot. In addition, Plaintiff agrees that Defendant Sheriff Lombardo properly invoked the personal participation defense. (ECF No. 59 at 18-19.) The Court will therefore dismiss Plaintiff's claims against Sheriff Lombardo. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (“A supervisor is only liable for constitutional ...

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