Feiger v. Smith

ROBERT FEIGER, Plaintiff, v. MARLENE SMITH, et al., Defendants.

Case No. 1:14-cv-01920-DAD-EPG (PC)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

November 16, 2016

FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANTS' RULE 12(b)(6) MOTION TO DISMISS BE GRANTED IN PART AND DENIED IN PART

OBJECTIONS, IF ANY, DUE WITHIN THIRTY DAYS

I. BACKGROUND

Robert Feiger ("Plaintiff"), is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983 and California Civil Code § 52 and 52.1. Plaintiff also asserts a claim for intentional infliction of emotional distress for alleged problems with the Jewish Kosher Diet Program and religious services at California State Prison-Corcoran, as well as a claim for declaratory relief under California Code of Civil Procedure § 1060. The § 1983 claims include violation of Plaintiff's First Amendment rights to exercise his religion, and retaliation in violation of the First Amendment.

This action was initiated by civil complaint filed by Plaintiff in the Kings County Superior Court on August 25, 2014 (Case #14-C0243). On December 1, 2014, Defendants Clark, Graves, and Robicheaux-Smith (collectively "Defendants") removed the case to federal court (ECF No. 1) and requested the Court to screen the complaint under 28 U.S.C. § 1915A. (EFC No. 7). On December 12, 2014, the Court granted Defendants' request for the Court to screen the complaint. (EFC No. 8). The Court found in its screening order that Plaintiff stated a claim for violation of his First Amendment right to free exercise of religion and for retaliation in violation of the First Amendment. (EFC No. 18). The Court also determined that it had supplemental jurisdiction over Plaintiff's state law claims. (Id.). However, the Court stated that it did not make a determination about the validity of Plaintiff's state law claims. (Id.).

Defendants' motion to dismiss certain state law claims (ECF No. 21) is now before the Court.

II. SUMMARY OF PLAINTIFF'S COMPLAINT

Plaintiff is a state prisoner incarcerated at California State Prison-Corcoran ("COR"). Plaintiff names as defendants Marlene Smith¹ (Community Resource Manager), Natalie Clark (Community Resource Manager), and Antoneya Graves (Correctional Food Manager). All Defendants were employees or contract employees of the CDCR at the time of the events at issue. Plaintiff's factual allegations follow.

Plaintiff practices the Jewish religion and participates in the CDCR's Jewish Kosher Diet Program (JKDP). He alleges that Defendants are in charge of operating that program at COR. Plaintiff alleges that COR failed to provide kosher meals and Jewish services on many occasions during his incarceration. Those failures include: failing to use kosher microwaves that were dedicated to meat-only or dairy-only; failing to create a roster of attendance for weekly in-chapel communal religious services when no Jewish chaplain was on staff; failing to provide proof of kosher meal entitlement to Plaintiff for eighteen months; obstructing Plaintiff from participating in in-chapel communal services; failing to maintain frozen food items needed to preserve kosher meals and prevent rotting and spoiling; failing to provide uncooked meals and unchopped vegetables on the Sabbath; prohibiting religious head covering; failing to hold Saturday Sabbath services; and failing to order sufficient Passover meals for Jewish prisoners transferring to the prison. Plaintiff claims that Rabbi Y. Carron previously complained about "Grievous Kosher Concerns" to the prison but the problems went unremedied.

Plaintiff alleges that he suffered from physical and emotional distress from his inability to properly practice his faith. He claims that he experiences episodes of anger, fear, anxiety, anguish, moral trepidation, depression, and self-loathing as well as physical symptoms includingsleeplessness stemming from nightmares. Plaintiff also alleges various attempts by Defendants to cover-up these deficiencies, thwart appeals, and backdate procedures to feign compliance.

Plaintiff asserts four causes of action. First, he asserts a claim under 42 U.S.C. § 1983 for deprivation of right of religious exercise in violation of the First Amendment to the U.S. Constitution. Second, he asserts a state law claim for interference with civil rights under California Civil Code §§ 52 and 52.1. Third, he asserts a state law claim for intentional infliction of emotional distress. Fourth, he asserts a claim for declaratory relief under C.C.P. § 1060

III. DEFENDANTS' MOTION TO DISMISS

Defendants move to dismiss Plaintiff's state law claims under California Civil Code §§ 51, 52, and 52.1 because Defendants are not a business establishment, and because Defendants did not use threats, intimidation, or coercion. (ECF No. 21-1, p. 2). Additionally, Defendants assert that they are immune from all of Plaintiff's state claims under California Government Code § 845.2, to the extent those claims are premised on the failure to provide equipment, facilities, and personnel for the Jewish Kosher Diet and religious services. (Id.).

A. Legal Standard

A motion to dismiss for failure to state a claim is properly granted where the complaint lacks "a cognizable legal theory" or "sufficient facts alleged under a cognizable legal theory." Conservation Force v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011) (quoting Balistreri v. Pacifica Police Dep't., 901 F.2d 696, 699 (9th Cir. 1988)). While accepting factual allegations in the complaint as true, the Court is not required to accept legal conclusions as true, and the factual allegations must state a plausible claim for relief. Maya v. Centex Corp., 658 F.3d 1060, 1067-68 (9th Cir. 2011).

In considering a motion to dismiss for failure to state a claim, the Court generally considers only the contents of the complaint and accepts as true the facts alleged in the complaint. Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006); Shaver v. Operating Engineers Local 428 Pension Trust Fund, 332 F.3d 1198, 1201, 1203 (9th Cir. 2002). Additionally, the Court construes the pleading in the light most favorable to the party opposing the motion, and resolves all doubts in the pleader's favor. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Pro sepleadings are held to a less stringent standard than those drafted by attorneys. Id.

B. Discussion

1. California Civil Code § 51²

California Civil Code § 51, commonly known as the Unruh Civil Rights Act, states "[a]ll persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever."

Defendants assert that they are not business entities, but are instead employees of state operated prisons. Plaintiff asserts that the California Department of Corrections and Rehabilitation ("CDCR") is a business entity. Plaintiff further asserts that as Defendants are employees of the CDCR, Defendants are employees of a business entity and act under the direction of a business entity.

Defendants are correct that they are individuals--not business establishments. Defendants' motion to dismiss on this basis should therefore be granted.

Although Plaintiff raises the possibility that the CDCR could qualify as a business establishment under this section, the CDCR is not currently a party to this action and Plaintiff has not moved to amend his complaint.

Although the question is not before the Court, it is worth noting that amendment to add the CDCR to assert a § 51 claim in this Court would face substantial hurdles. First of all, the CDCR is immune from suits for monetary damages in federal court under the Eleventh Amendment. Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993); Savage v. Glendale Union High Sch., Dist. No. 205, Maricopa Cty., 343 F.3d 1036, 1040 (9th Cir. 2003). Additionally, the § 51 claim is a state claim not ordinarily subject to federal courtjurisdiction. While the Court may choose to exercise jurisdiction over state law claims under supplemental jurisdiction,³ the Court may decline to do so here because there are no federal claims against the CDCR pending in this lawsuit. Finally, other courts have held that prisons are not considered business establishments for purposes of section 51. Taormina v. California Dep't of Corr., 946 F. Supp. 829, 834 (S.D. Cal. 1996), aff'd and remanded sub nom. Taormina v. Corr. Dep't, State of Cal., 132 F.3d 40 (9th Cir. 1997); Wilkins-Jones v. Cty. of Alameda, 859 F. Supp. 2d 1039, 1049 (N.D. Cal. 2012). While private businesses acting within a prison can be considered a business establishment (Wilkins-Jones, 859 F. Supp. 2d at 1049-50), there have been no allegations that Defendants are a private business entity acting within the prison.

2. California Civil Code § 52

California Civil Code § 52 is not an independent cause of action. Instead, it provides remedies for violations of California Civil Code section 51, 51.5, 51.6, 51.7, and 51.9. Cal. Civ. Code § 52; Los Angeles Cty. Metro. Transp. Auth. v. Superior Court, 123 Cal. App. 4th 261, 269 (2004); Archibald v. Cinerama Hawaiian Hotels, Inc., 73 Cal. App. 3d 152, 159 (1977), disapproved on other grounds in Koire v. Metro Car Wash 40 Cal.3d 24 (1985). For the reasons stated above, a § 51 claim is not viable. Accordingly, the Court finds that Defendants' motion to dismiss Plaintiff's cause of action under section 52 should be granted.

3. California Civil Code § 52.1

Plaintiff's claim under California Code § 52.1 is based on the allegation that Defendants retaliated against Plaintiff for exercising his right to utilize the appeals process regarding Defendan...