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Jackson v. State

United States District Court, D. Nevada

December 3, 2019

ROBERT JACKSON, Plaintiff
v.
STATE OF NEVADA, et al., Defendants

          ORDER (1) GRANTING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND (2) GRANTING IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT [ECF NOS. 91, 93]

          ANDREW P. GORDON, UNITED STATES DISTRICT JUDGE.

         Plaintiff Robert Jackson alleges various civil rights violations stemming from being deprived of a vegan diet in accordance with his religious beliefs as a Moorish Scientist while in the custody of the Nevada Department of Corrections (NDOC) at High Desert State Prison (HDSP) and Ely State Prison (ESP). Jackson sues defendants NDOC deputy director McDaniel, HDSP Warden Neven, HDSP Associate Warden Nash, ESP Warden Baker, ESP Associate Warden Byrne, and HDSP food services manager Duane Wilson. Jackson alleges that HDSP Associate Warden Stroud (who is not a defendant) approved him for a vegan diet, but he was instead placed on a no-meat diet which contained animal products like eggs and cheese. Despite various attempts through the grievance process to be placed on a vegan diet, including during his transfers from HDSP to ESP and back to HDSP, Jackson remained on a non-vegan diet that he alleges was nutritionally inadequate from March 2015 until December 2017. In December 2017, HDSP approved Jackson for a special common fare vegetarian diet that Associate Warden Nash believes complies with the vegan diet.

         After I screened Jackson's complaint, the following claims were able to proceed: 1) First Amendment free exercise of religion violation; 2) Fourteenth Amendment equal protection clause violation; 3) violation of the Eighth Amendment right to be free from cruel and unusual punishment; and 4) Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) violation.

         The parties now move for summary judgment on all counts. Jackson argues the defendants violated the Eighth Amendment when they failed to provide a nutritionally adequate diet and later placed him on an unapproved modified vegetarian common fare diet. He argues the defendants violated the First Amendment and RLUIPA by failing to accommodate his religious diet and substantially burdening his right to religious exercise without a compelling interest or legitimate penological interest. And he argues there is no genuine dispute that NDOC created a system that treats inmates with religious dietary needs differently based on the type of religion, in violation of the equal protection clause.

         The defendants argue that Jackson's equal protection and free exercise claims fail because they did not personally participate in the decision to deny Jackson's request for a religious diet. They argue they are entitled to summary judgment on the Eighth Amendment claim because they were unaware of any substantial risk to Jackson's health by placing him on the no-meat diet. In addition, the defendants argue that Jackson's RLUIPA claim for injunctive relief is moot because Jackson is now receiving a vegan diet. They also argue that Jackson has failed to exhaust his administrative remedies as required under the Prison Litigation Reform Act (PLRA). Finally, the defendants argue they are entitled to qualified immunity.

         As detailed below, I grant the defendants' motion for summary judgment in part and I grant Jackson's motion for summary judgment in part.

         I. BACKGROUND

         NDOC's grievance process is governed by Administrative Regulation 740. ECF No. 94-19. There are three levels to the process: an informal grievance, first level grievance, and second level grievance. Id. at 5-10. “The Associate Warden (AW) shall be responsible in managing the grievance process at each institution and any facilities under the control of the parent institution. The AW may designate an Inmate Grievance Coordinator to conduct functions required by this regulation.” ECF No. 92 at 188. A first level grievance “should be reviewed, investigated and responded to by the Warden at the institution where the incident being grieved occurred.” ECF No. 92 at 194. But the Warden “may utilize any staff in the development of a grievance response.” Id. Second level grievances regarding religious operations should be reviewed and responded to by the deputy directors. ECF No. 92 at 195. “Inmates transferred to another institution pending the resolution of a filed grievance shall have the grievance completed at the sending institution at all levels.” ECF No. 92 at 199. Finally, the “Warden is responsible for the implementation and monitoring of regulations regarding the inmate Common Fare, Religious/Spiritual diet.” ECF No. 92 at 165.

         Jackson arrived at HDSP around March 11, 2015. ECF Nos. 91 at 3; 93 at 2. On March 26, 2015, Jackson submitted an inmate request form stating, “In accord with my religious-cultural customs I am a ‘Vegan' and do not consume any meat products.” ECF No. 94-14 at 2. Associate Warden Stroud approved the form. Id.; ECF No. 92 at 7. On April 13, 2015, Jackson filed an inmate request form directed to the culinary director, stating he was approved for a vegan diet (explaining that vegan meant no meat or dairy products), but had yet to receive it and requesting to be added to the diet tray list. ECF No. 94-12 at 3. A non-defendant HDSP employee approved the form. Id. On May 18, 2015, Jackson submitted another inmate request form inquiring whether HDSP had a vegan diet and whether the diet he was receiving was nutritionally adequate. ECF No. 92 at 11. Wilson, HDSP's food services manager, responded that HDSP did not have a vegan diet and that inmates seeking a no-meat diet should request one through Associate Warden Stroud. Id.

         In June 2015, Jackson submitted a religious diet accommodation request form seeking to be placed on the common fare menu because it was “the closest thing” to accommodate his religious vegan diet. ECF No. 94-16 at 7. Chaplain Calderin denied Jackson's request, stating only that the “inmate does not qualify for common fare.” Id. at 9. Chaplain Calderin is not a defendant in this case and the parties have provided no additional evidence to explain what factors went into the decision to deny Jackson's request. Associate Warden Stroud affirmed the denial. ECF No. 92 at 8.

         Jackson initiated the grievance process (grievance 0776) on September 9, 2015, requesting to be placed on a vegan diet in accordance with his religion. ECF No. 94-20 at 9-10. HDSP Associate Warden Nash and Warden Neven responded to different levels of this grievance stating that HDSP did not have a vegan diet and that Jackson was placed on the alternative no-meat diet. See Id. But before Jackson received the response to the first level grievance, he was transferred to ESP, where he re-initiated the first level grievance and submitted a second level grievance, both for grievance 0776. ECF No. 94-20 at 2-5, 17. ESP Associate Warden Byrne denied the first level grievance as procedurally improper because Jackson had already received a response from HDSP at the first level. Id. at 2. The defendants contend Jackson did not submit a second level grievance, but the record shows Jackson submitted a second level grievance on or about October 22, 2015 while he was at ESP. Id. at 17. The grievance was denied, noting only “Doc 3098” as a response, which means that Jackson's grievance was procedurally improper in some way. However, the Doc 3098 that would have provided the reason for denying the grievance is not included in the evidence. Id.

         It appears that while Jackson was waiting for a response to grievance 0776, he filed an informal grievance (grievance 0238) at ESP on October 11, 2015, seeking a religious accommodation vegan diet. ECF No. 94-21 at 9. ESP Associate Warden Byrne rejected the grievance on procedural grounds, noting that Jackson already grieved this claim in grievance 0776. ECF No. 92 at 57. ESP Warden Baker rejected Jackson's first level grievance twice on procedural grounds. Id. at 59, 61, 63. Jackson continued to the second level grievance, which ESP Warden Baker rejected on January 11, 2016 on procedural grounds. Id. at 67.

         Meanwhile, Jackson filed a third grievance (grievance 1498) on October 25, 2015 while at ESP, complaining that he was given white rice as a main course on numerous occasions with no alternative protein source and noting that he is on his diet for spiritual and cultural reasons. ECF No. 94-22 at 6. Neither party provides evidence of the response to this informal grievance. Jackson filed a first level grievance on November 25, 2015, which Warden Baker rejected on procedural grounds. Id. at 4. Jackson continued to the second level grievance, which Associate Warden Byrne rejected on procedural grounds in February 2016. Id. at 2. However, Jackson had already returned to HDSP by the time Associate Warden Byrne responded to this second level grievance. ECF No. 94-23 at 3 (noting that Jackson returned to HDSP on January 20, 2016).

         Jackson initiated his final grievance relevant to this action (grievance 5826) on January 21, 2016, the day after returning to HDSP. Id. The grievance addressed several issues, one of which was that he was served only lettuce and did not receive a proper meal for dinner. Id. at 5-6. A non-defendant HDSP employee responded that Jackson was on the alternative meal since November 2015 and that any error was an oversight. Id. at 4. Jackson continued to the first level, explaining for the first time in this grievance that he was previously approved for the religious accommodation vegan diet which he had yet to receive despite his attempts to resolve the issue through the grievance system. Id. at 7-8. A non-defendant HDSP employee responded that Jackson was answered appropriately at the informal level, that Jackson was inappropriately grieving the same issue, and that Jackson was approved for the no-meat diet. Id. at 12. Jackson filed a second level grievance, which a non-defendant HDSP employee responded to on April 15, 2016, stating “in researching your claim, you are currently on the no meat diet per AW Stroud.” Id. at 11.

         Jackson initiated this action on May 2, 2016. ECF No. 1-1. While he was participating in the court's inmate early mediation program, Jackson also filed a DOC 3505 Request for Accommodation of Religious Practices form, asking NDOC to create a vegan common fare diet. ECF No. 92 at 109. The NDOC Religious Review Team responded to Jackson's request on April 12, 2017. Id. at 111. Chaplain Snyder (who is not a defendant) stated, “Followers of the Moorish Science Temple of America are currently eligible for an alternative meatless diet. Your request appears to be a personal preference. Your request is denied.” Id.

         In October 2017, Associate Warden Nash sent an email to defendant Wilson and a non-defendant employee asking if HDSP could implement a vegan diet tray similar to one she found at Northern Nevada Correctional Center (NNCC). ECF No. 94-17 at 2-3. On December 12, 2017, HDSP staff, at the request of Associate Warden Nash, placed Jackson on a special common fare vegetarian or Hindu diet. ECF Nos. 92 at 8-9; 94-18 at 9-10; 94-25 at 2. The diet uses allergy restrictions to substitute plant-based foods for animal products that are normally provided as part of the common fare diet. ECF No. 92 at 8-9. However, to date NDOC has not approved a vegan diet for inmates in its facilities. See ECF No. 94-30 at 2 (email from Duane Wilson to Michelle Ashcraft noting that HDSP created “a menu to serve inmate Jackson that is not official” and seeking direction from NDOC to provide an approved diet).

         II. ANALYSIS

         Summary judgment is appropriate if the movant shows “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a), (c). A fact is material if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

         The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the non-moving party to set forth specific facts demonstrating there is a genuine issue of material fact for trial. Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 531 (9th Cir. 2000); Sonner v. Schwabe N. Am., Inc., 911 F.3d 989, 992 (9th Cir. 2018) (“To defeat summary judgment, the nonmoving party must produce evidence of a genuine dispute of material fact that could satisfy its burden at trial.”). I view the evidence and reasonable inferences in the light most favorable to the non-moving party. James River Ins. Co. v. Hebert Schenk, P.C., 523 F.3d 915, 920 (9th Cir. 2008). “When simultaneous cross-motions for summary judgment on the same claim are before the court, the court must consider the appropriate evidentiary material identified and submitted in support of both motions, and in opposition to both motions, before ruling on each of them.” Tulalip Tribes of Wash. v. Wash., 783 F.3d 1151, 1156 (9th Cir. 2015) (citation omitted).

         A. Exhaustion of Administrative Remedies

         Under the Prison Litigation Reform Act (PLRA), “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion of administrative remedies prior to filing a lawsuit is mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002). “Exhaustion should be decided, if feasible, before reaching the merits of a prisoner's claim.” Albino v. Baca, 747 F.3d 1162, 1170 (9th Cir. 2014) (en banc). “If a motion for summary judgment is denied, disputed factual questions relevant to exhaustion should be decided by the judge, in the same manner a judge rather than a jury decides disputed factual questions relevant to jurisdiction and venue.” Id. at 1170-71.

         The PLRA requires “proper exhaustion” of an inmate's claims. Woodford v. Ngo, 548 U.S. 81, 90 (2006). That means the inmate must “use all steps the prison holds out, enabling the prison to reach the merits of the issue.” Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009). The inmate thus must comply “with an agency's deadlines and other critical procedural rules because no adjudication system can function effectively without imposing some orderly structure on the course of its proceedings.” Woodford, 548 U.S. at 90-91. “[A] prison's own grievance process, not the PLRA, determines how detailed a grievance must be to satisfy the PLRA exhaustion requirement.” Griffin, 557 F.3d at 1120 (citing Jones v. Bock, 549 U.S. 199, 218 (2007)). “[W]hen a prison's grievance procedures are silent or incomplete as to factual specificity, a grievance suffices if it alerts the prison to the nature of the wrong for which redress is sought.” Id.

         Failure to exhaust is an affirmative defense. Jones v. Bock, 549 U.S. 199, 216 (2007). Consequently, the defendants bear the burden of proving the inmate failed to exhaust an available administrative remedy. Albino, 747 F.3d at 1172. If the defendants do so, then the burden shifts to the inmate to show “there is something in his particular case that made the existing and generally available administrative remedies effectively unavailable to him by showing that the local remedies were ineffective, unobtainable, unduly prolonged, inadequate, or obviously futile.” Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015) (quotation omitted). The defendants bear the “ultimate burden” of proving a failure to exhaust. Id.

         Both parties have identified four grievances Jackson filed related to the issues raised in his complaint. See ECF Nos. 91 at 5-8; 93 at 8-10 (identifying grievance numbers 2006400776 (0776), 2006301238 (1238), 20063011498 (1498), and 20063015826 (5826)). The defendants argue that grievance 0776 was not properly exhausted because Jackson failed to submit a second level grievance. ECF No. 91 at 21. They argue grievances 1238 and 1498 were rejected for procedural defects, not on the merits, so Jackson failed to raise the substance of the claims asserted in his complaint in the grievances. Id. at 21-22. The defendants argue grievance 5826 was not properly exhausted, despite merits responses at each level, because Jackson failed to discuss the vegan diet at the informal grievance stage and raised the issue for the first ...


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