Davis v. Powell

JIM DALE DAVIS, Plaintiff,

v.R. POWELL, T. BOREM, L. SMALL, K. OURS, Defendants.

Civil No. 10cv01891 CAB(RBB)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Dated: July 25, 2012

REPORT AND RECOMMENDATION

GRANTING IN PART AND DENYING

IN PART DEFENDANTS' MOTION TO

DISMISS SECOND AMENDED

COMPLAINT [ECF NO. 30]

Plaintiff Jim Dale Davis, a state prisoner proceeding pro se and in forma pauperis, filed a Complaint on August 31, 2010, pursuant to 42 U.S.C. § 1983 [ECF No. 1]. The Defendants filed a Motion to Dismiss Complaint, which was granted [ECF Nos. 17, 24-25]. On September 30, 2011, Davis filed a First Amended Complaint [ECF No. 26]. He subsequently sought leave to replace the second page of the First Amended Complaint with a different page [ECF No. 27]. The Court granted his request and instructed the Clerk of the Court to refile the First Amended Complaint with the replacement page as a separate docket entry; this new filing would constitute, and was docketed as, Davis's Second Amended Complaint, even though it was titled "Frist [sic] Amended Complaint" [ECF No. 28].

Plaintiff's Second Amended Complaint was filed on October 6, 2011, along with exhibits [ECF No. 29].¹ There, Davis argues in count one that Defendants violated the First Amendment and the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA") when they imposed a total ban on the purchase and receipt of prayer oil by inmates for fourteen months. (Second Am. Compl. 1, 3-8, ECF No. 29.) In count two, Plaintiff asserts that Defendants violated the Equal Protection Clause and retaliated against him when they implemented an addendum to Department Operations Manual ("DOM") supplement number 54030.7.1, which provided that certain religious items ordered by inmates would be counted as a quarterly package. (Id. at 9-10; see id. Attach. #2 Ex. U, at 39.) Warden Small signed the addendum on September 16, 2009. (Id.)² All Defendants allegedly discriminated against Davis because the religious items described in the addendum are purportedly used only by practitioners of the Muslim faith. (Second Am. Compl. 9-10, ECF No. 29.) Plaintiff contends Defendants retaliated and discriminated again on October 25, 2010, when they implemented a policy that prayer oil orders from the vendor, Union Supply, would not count as a quarterly package, but orders from nonapproved vendors would. (Id. at 10.)

On October 13, 2011, the four named Defendants, Powell, Borem, Small, and Ours, filed a Motion to Dismiss Second Amended Complaint, which included a Memorandum of Points and Authorities [ECF No. 30]. Davis filed his "Objection to Defendants Motion to Dismiss Second Amended Compliant [sic]" on October 31, 2011, which the Court construes as an Opposition [ECF No. 31]. On November 7, 2011, Defendants' Reply was filed [ECF No. 33].

The Court has reviewed the Second Amended Complaint and attachments, Defendants' Motion to Dismiss and attachment, Davis's Opposition, and the Defendants' Reply. The Motion to Dismiss is suitable for resolution on the papers. See S.D. Cal. Civ. R. 7.1(d)(1). For the reasons stated below, the district court should GRANT in part and DENY in part the Defendants' Motion.

I. FACTUAL ALLEGATIONS

Plaintiff is incarcerated at Calipatria State Prison. (Second Am. Compl. 1, ECF No. 29.) In count one, Davis asserts that he has been a practicing Muslim and has used prayer oil for sixteen years. (Id. at 3.) Plaintiff posits that using prayer oil is an "obligatory act that [he] must do during the preformance [sic] of his religion." (Id. (citing id. Attach. #1 Ex. A, at 4).) On August 11, 2009, Defendant Powell and the Islamic chaplain issued a religious chrono listing the religious articles Davis was authorized to keep in his cell, which included eight ounces of prayer oil per quarter. (Id. at 3-4 (citing id. Attach. #1 Exs. B, C).) According to Plaintiff, the chaplain signed a religious item approval list allowing Davis to purchase prayer oil from Halalco Books, a vendor on Calipatria's authorized vendor list. (Id. at 4 (citing id. Attach. #1 Ex. D).) Davis alleges that on October 9,2009, Halalco Books sent his eight-ounce prayer oil order to Calipatria with the approval form on the box; Defendant Borem received the order sometime in October, but failed to forward the package to Plaintiff. (Id. at 4, 7 (citing id. Attach. #1 Ex. E, at 21).)

Davis maintains that he waited several weeks for his prayer oil before submitting an inmate grievance, to which prison officials never responded. (Id. at 4.) On December 22, 2009, Plaintiff submitted another grievance requesting that officials deliver the prayer oil; the grievance was denied at the informal level on January 5, 2010, because the "Hazmat Specialist," Defendant Ours, had "denied the introduction of oil into the prison." (Id. (citing id. Attach. #1 Ex. F).) Plaintiff alleges his subsequent appeals were denied at all levels; at the director's level, it was determined that "[t]he oils were appropriately confiscated as it was determined they pose a fire, health, and safety hazard." (Id.; see id. Attach. #1 Ex. G, at 27.)

Defendant Ours allegedly never issued a memorandum explaining why the oil was hazardous, and the decision was not supported by any documentation or legitimate reason. (Second Am. Compl. 4-5, ECF No. 29.) Davis maintains that on February 3, 2010, Defendant Borem sent Plaintiff a letter indicating that his oil had been returned to Halalco and that Defendants Ours, Small, and Powell had concluded that prayer oil would no longer be allowed at Calipatria because it posed a fire, health, and safety hazard. (Id. at 5 (citing id. Attach. #2 Ex. H).) In the letter, Borem explained that the decision was based on the fire rating information on the"Materials Safety Data Sheet" ("MSDS"), but he did not identify the MSDS or where he obtained it. (Id.)

Davis argues that from August 11, 2009, to October 16, 2010, there was a "total ban" on the purchase and receipt of prayer oil by inmates, denying him a "critical part" of his religion for fourteen months. (Id.) Defendants' actions were allegedly without any penological justification because if they followed protocol, they would have known that the prayer oil from Halalco Books complied with Calipatria's hazardous materials standards. (Id.)

Davis contends that years earlier, on November 14, 2003, Defendant Ours sent a memorandum to "department heads" regarding the "Material Safety Sheet Binders," along with a copy of the "Calipatria State Prison Hazardous Communication Plan." (Id. at 6 (citing id. Attach. #2 Ex. I).) The plan provided that a material is "combustible" if its flash point is 100 degrees Fahrenheit and above, and a material is "flammable" if its flash point is between twenty and 100 degrees Fahrenheit. (Id.) Plaintiff asserts that the prayer oil provided by Halalco Books has a flash point between 189 and 195 degrees Fahrenheit and therefore is not flammable. (Id. (citing id. Attach. #2 Ex. J).) In comparison, pink hand soap has a flash point of 212 degrees, and pink skin cleanser has a flash point of 200 degrees. (Id. (citing id. Attach. #2 Exs. K, L).) Davis argues that Defendants therefore knew that the Halalco prayer oil complied with Calipatria's hazardous materials standards, but they still banned the oil. (Id.)

The Plaintiff contends that on July 12, 2010, the associate warden responded to inmate correspondence and wrote, "Warden McEwen and Calipatria staff have reviewed the matter, and find that thereis no compelling reason to deny the oil from the vendors that have been approved by the Institution in the past." (Id. Attach. #2 Ex. M, at 22; see Second Am. Compl. 6-7, ECF No. 29.) Davis further asserts that during the total ban on prayer oil, he was never supplied an alternative prayer oil vendor. (See Second Am. Compl. 7, ECF No. 29.) Plaintiff states that while prison officials ultimately provided the alternative vendor, Union Supply, this did not occur until August 1, 2010. (Id. (citing id. Attach. #2 Ex.

On July 14, 2010, Davis received approval from the Islamic chaplain to order prayer oil from Halalco Books. (Id. at 8 (citing id. Attach. #2 Ex. R).) Halalco shipped Plaintiff a back order five days later, and on July 27, 2010, Halalco shipped his "current order." (Id. (citing id. Attach. #2 Ex. S).) Plaintiff insists that the Defendants received the July 27, 2010 order, but did not forward the oil to him until October 16, 2010. (Id.) Defendant Borem returned one of Plaintiff's prayer oil orders to Halalco as recently as January 18, 2011, even though Borem knew Halalco was an approved vendor. (Id. (citing id. Attach. #2 Ex. T).) As a result, Davis maintains that Defendants Powell, Borem, Small, and Ours violated RLUIPA and the First Amendment by denying him access to Islamic prayer oil without penological justification. (See id. at 3-8.)

In count two, Davis alleges that Defendants conspired to force him to purchase prayer oil from their preferred vendor, Union Supply, instead of from Halalco Books, another approved Islamic vendor. (Id. at 9.) On September 16, 2009, Warden Small issued an addendum to DOM supplement 54030. (Id.) The addendum providedthat when an inmate received a package from a religious specialty vendor, it would be counted as a regular quarterly personal package. (Id. Attach. #2 Ex. U, at 39.) Davis argues that the addendum discriminates against him and other Muslim prisoners because it only lists Muslim religious articles. (See Second Am. Compl. 9, ECF No. 29.) The addendum also violates section 3190(i)(4) of the California Code of Regulations ("CCR"), title 15, and was issued in retaliation for Davis's assertion of his First Amendment rights. (Id.) Thirteen days later, on September 29, 2009, Plaintiff and other Muslim inmates filed a group appeal contesting the discriminatory addendum, but it was denied. (Id. (citing id. Attach. #2 Ex. V, at 41-45).)

The Plaintiff further argues that Defendants...