Hauseur v. Clark

MARK HAUSEUR, Plaintiff, v. NATALIE CLARK, et al., Defendants.

Case No. 1:14-cv-01987-DAD-EPG (PC)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

November 22, 2016

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

(ECF NO. 15)

OBJECTIONS, IF ANY, DUE WITHIN THIRTY DAYS

ORDER DENYING PLAINTIFF'S REQUEST FOR PRO BONO COUNSEL WITHOUT PREJUDICE

ORDER THAT PLAINTIFF'S REQUEST FOR SANCTIONS BE HEARD AT THE INITIAL SCHEDULING CONFERENCE

I. BACKGROUND

Mark Hauseur ("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 September 9, 2014 (Case #14-C0255). On December 10, 2014, Defendants Clark, Graves, and Robicheaux-Smith (collectively "Defendants") removed the case to federal court and requested the Court to screen the complaint under 28 U.S.C. § 1915A. (ECF No. 2). The Court granted Defendants' request and screened the complaint. (ECF No. 14). The Court found in its screening order that Plaintiff stated a claim for violation of his First Amendment rights to free exercise of religion and for retaliation in violation of the First Amendment. (Id.). The Court also decided to exercise 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. 15) 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 Robicheaux-Smith (Community Resource Manager), Natalie Clark (Community Resource Manager), and Antoneya Graves (Correctional Food Manager) (collectively, "Defendants"). All of the defendants were employees or contract employees of the California Department of Corrections and Rehabilitation ("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 Defendants 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 prisonerstransferring 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 Defendant Smith had the authority to grant his appeal in full and cure all ongoing violations. According to Plaintiff, on October 25, 2013, Defendant Smith used this authority to coerce Plaintiff to withdraw his appeal. Specifically, Defendant Smith threatened that she would deliberately not cure the violations unless Plaintiff withdrew his appeal or until court action. Plaintiff alleges that Defendant Graves, upon replacing Defendant Smith, attempted the same coercion through inmate Hauser on January 28, 2014. Plaintiff also alleges that Defendant Clark, who had the authority to cure the microwave service violation (which was the subject of a separate appeal), attempted a similar coercion through inmate Hauser on February 28, 2014. According to Plaintiff, the appeals were not withdrawn and Defendants continued to interfere with Plaintiff's rights.

Plaintiff also alleges various attempts by Defendants to cover-up these deficiencies, thwart appeals, and backdate procedures to feign compliance.

According to Plaintiff, he suffers from physical and emotional distress from his inability to properly practice his faith. He claims that he experiences shame, humiliation, degradation, anguish, fright, horror, nervousness, grief, anxiety, worry, shock, loss of enjoyment of life, inconvenience, mortification, indignity, apprehension, embarrassment, terror, and ordeal. Plaintiff alleges that he requested psychological assistance and Rabbinical counseling immediately upon discovery the possibility that Defendants had been rendering his meals unfit for Kosher observance. Plaintiff states that he also had physical symptoms, including insomnia, constipation, vomiting, stress, paranoia, shame, sever anxiety, degradation, and fear of more reprisals.

Plaintiff asserts four causes of action. First, he asserts a claim under 42 U.S.C. § 1983 for deprivation of his 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. 15-1, 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.).¹

A. Legal Standard

In considering a motion to dismiss, the court must accept all allegations of material fact in the complaint as true. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007); Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976). The court must also construe the alleged facts in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir.1994) (per curiam). All ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). In addition, pro se pleadings are held to a less stringent standard than those drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972).

A motion to dismiss pursuant to Rule 12(b)(6) operates to test the sufficiency of the complaint. Rule 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief" in order to "give the defendant fair notice of what the ... claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer, 416 U.S. at 236 (1974).

The first step in testing the sufficiency of the complaint is to identify any conclusory allegations. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678 (citing Twombly, 550 U.S. at 555). "[A] plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (citations and quotation marks omitted).

After assuming the veracity of all well-pleaded factual allegations, the second step is for the court to determine whether the complaint pleads "a claim to relief that is plausible on its face." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556) (rejecting the traditional 12(b)(6) standard set forth in Conley, 355 U.S. at 45-46). A claim is facially plausible when the plaintiff "pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678 (citing Twombly, 550 U.S. at 556). The standard for plausibility is not akin to a "probability requirement," but it requires "more than a sheer possibility that a defendant has acted unlawfully." Id.

In deciding a Rule 12(b)(6) motion, the Court generally may not consider materials outside the complaint and pleadings. Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); Gumataotao v. Dir. of Dep't of Revenue & Taxation, 236 F.3d 1077, 1083 (9th Cir. 2001).

B. Discussion

1. California Civil Code §§ 51 & 51.7²

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,...