Picozzi v. State

1

MARK PICOZZI, Plaintiff, v. STATE OF NEVADA et. al, Defendants.

No. 2:20-cv-00518-RFB-MDC

United States District Court, D. Nevada

September 29, 2024

ORDER

RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE

Before the Court are several motions for miscellaneous relief (ECF Nos. 209, 210, 214, 212, 216, 228, 230, 241, 245, 246, 248 265) as well as Plaintiff Mark Picozzi's motions for coercive and compensatory sanctions (ECF Nos. 211, 215). For the following reasons, the Court grants Plaintiff's motions for sanctions in part. The Court denies the remaining motions.

I. BACKGROUND

Plaintiff Mark Picozzi is incarcerated in the custody of the Nevada Department of Corrections (“NDOC”) at High Desert State Prison (“HDSP”). On June 26, 2022, the Court issued its Screening Order, permitting Plaintiffs First Amendment free exercise and RLUIPA violations to proceed against Defendants Williams, Johnson, Nash, Kuloloia, Barrett, Silber, Calderon, Wilson, Oliver, Bean, Fowler, and Barth. ECF No. 134. In the Second Amended Complaint, Plaintiff alleges that he is, and has been, Catholic his entire life. ECF No. 124 at 4. Since 2017, Plaintiff alleges that he has filed numerous inmate request forms to receive ashes for Ash Wednesday, a no meat diet during Lent, and to receive palms for Palm Sunday. Id. For five years, the Chaplain has never honored these requests. Id.

On January 19, 2024, the Court held a hearing on Defendants' Motion to Dismiss the Amended Complaint. The Court granted the Motion in part and denied it in part, permitting Plaintiff's First Amendment free exercise and RLUIPA claims to proceed based only on alleged violations that occurred in 2019 and any year thereafter. ECF No. 199. On January 29, 2024, Plaintiff filed his Priority Review Motion for Ashes on Ash Wednesday. ECF No. 197. The Court construed this motion as a Motion for Temporary Restraining Order (“TRO”) and Motion for Preliminary Injunction. The Court ordered NDOC to respond by February 7, 2024. ECF No. 200. NDOC filed their Response on February 7, 2024. ECF No. 201. On February 14, 2024, the Court granted a TRO. ECF No. 204. On February 27, 2024, the Court held a hearing on the preliminary injunction. ECF No. 213. The Court held a second hearing on March 18, 2024 in order to determine whether a preliminary injunction should issue and to determine whether Defendants were in compliance with the Court's TRO (ECF No. 204).

At the March 18, 2024 hearing, the Court heard testimony from seven witnesses, including Plaintiff. The Court granted Defendants' request for an extension of time to respond to Plaintiff's motion for sanctions. The Court also ordered Plaintiff to file a supplement to his motions for sanctions, detailing the number of hours spent seeking enforcement of the Court's Temporary Restraining Order for the period between February 14, 2024, and February 28, 2024. ECF No. 236. The Court also ordered Plaintiff to include a description of any other expenditures that Plaintiff believed were made necessary by Defendants alleged failure to provide Plaintiff with an appropriate diet, including, but not limited to, the costs of mail, making copies, and purchase of alternative food. Id. Plaintiff filed his supplement on March 20, 2024. ECF No. 237. Plaintiff filed a second supplement on March 26, 2024. ECF No. 240. Defendants responded to the motions for sanctions, as well as Plaintiffs' supplements, on March 29, 2024. ECF No. 243. Plaintiff filed a reply on April 4, 2024. ECF No. 247. This Order follows.

II. LEGAL STANDARD

“Civil contempt . . . consists of a party's disobedience to a specific and definite court order by failure to take all reasonable steps within the party's power to comply.” Inst. of Cetacean Rsch. v. Sea Shepherd Conservation Soc'y, 774 F.3d 935, 945 (9th Cir. 2014). To establish aprimafacie case of civil contempt, the moving party must show by clear and convincing evidence that the defendant (1) violated a court order, (2) beyond substantial compliance, and (3) not based on a good faith and reasonable interpretation of the order. Labor/Cmty. Strategy Ctr. v. Los Angeles County Metro. Transp. Auth., 564 F.3d 1115, 1123 (9th Cir. 2009) (citing In re Dual-Deck Video Cassette Recorder Antitrust Litig., 10 F.3d 693, 695 (9th Cir. 1993)). “The contempt ‘need not be willful' and there is no good faith exception to the requirement of obedience of a court order.” Dual-Deck, 10 F.3d at 695 (citing In re Crystal Palace Gambling Hall, Inc., 817 F.2d 1361, 1363 (9th Cir. 1987)). “‘Substantial compliance' with the court order is a defense to civil contempt, and is not vitiated by ‘a few technical violations' where every reasonable effort has been made to comply.” Id. Once the moving party establishes a prima facie case of contempt, the defendant bears the burden of showing “categorically and in detail” why he is unable to comply. N.L.R.B. v. Trans Ocean Export Packing, Inc., 473 F.2d 612, 616 (9th Cir. 1973).

III. FACTUAL FINDINGS

The Court makes the following factual findings based on the testimony presented at the evidentiary hearings and the exhibits received into evidence.

The Court issued its Temporary Restraining Order shortly before 3 p.m. on February 14, 2024. It ordered Defendants to “immediately make a meatless diet available to Plaintiff for all meals.” The TRO explained that it would “remain in force for the earlier of 14 days or until the Court issues a ruling on Plaintiff's pending Motion for a Preliminary Injunction.” Less than 30 minutes after the injunction issued, the Deputy Attorney General sent HDSP leadership, including Warden Jeremy Bean and Anthony Quillmann, an email containing the TRO and explained, “[p]ursuant to the court's order please place Picozzi on a vegan or vegetarian diet as soon as possible.” Id. Jeremy Bean is the Warden of HDSP and oversees the management of the prison. Mr. Quillmann is the Acting Food Service Manager for the entire prison and oversees the daily operations of the culinary as well as the training of inmates and staff as it relates to their jobs in culinary.

Mr. Quillmann designated Plaintiff to receive a “No Meat Diet” beginning February 15, 2024 through the prison's Notice system and Pre-Breakfast Reports. However, it is common and known by NDOC staff that inmates receive the wrong meal by mistake, even if they are designated to receive a certain meal plan through the Pre-Breakfast Report. In the past, there have been “issues and litigation” related to vegan meals being improperly made. ECF No. 219-1 at 142. NDOC staff, including Mr. Quillmann, know that HDSP has not set up or attempted to set up any system to track whether Plaintiff (or any other prisoner) is actually receiving their designated meals.

Mr. Quillmann declared under penalty of perjury on February 26, 2024, while the TRO was still in effect, that HDSP was in full compliance with the TRO and Plaintiff would be receiving vegan meals indefinitely until otherwise notified by the Court. See ECF No. 207-1 (“Picozzi has received meatless trays since February 14, 2024, up to the date of this declaration.”).

In spite of the Court's order and Mr. Quillmann's declaration, the record establishes that Plaintiff received meals with meat in them for one or more of his meals on the following days: February 16, 2024; February 17, 2024; February 18, 2024; February 19, 2024; February 20, 2024; February 22, 2024; February 25, 2024; February 26, 2024; February 27, 2024; and February 28, 2024. Plaintiff received a vegan meal on only three of the fourteen days that the TRO was in effect: February 21, February 23, and February 24, 2024.

In addition to being served meat, Plaintiff sought and was denied a vegan meal tray or accommodation on several occasions.

a. February 16-18

On February 16, 2024, Plaintiff filed an emergency grievance because his meal contained meat. He was told by staff that they could not rectify his meal plan until the next business day, Monday, February 19. Plaintiff could not accommodate himself because the inmates in Plaintiff's unit, Unit 12-D, were served bologna for lunch on that day.^[1] Meat was also a component of the main dish in at least one meal on both Saturday and Sunday. Plaintiff had no choice but to eat his double portion meals on Friday, February 16, 2024, and over that weekend, on February 17 and 18, because of his medications.^[2]

b. February 27

On February 27, 2024, Sergeant Dvorak gave Plaintiff a sack lunch with bologna in it when he returned to HDSP after the Court's first preliminary injunction hearing. When Plaintiff told Dvorak about the order, he responded, “that's all I have, take it or don't eat.” Plaintiff did not take the sack lunch and went to his unit where he informed Officers Fontes, Brightwell, and White that he did not receive a lunch. However, none of them called for a meal.

c. February 28

On February 28, 2024, Plaintiff filed a second emergency grievance because he again received meat in his tray. Sergeant Clayton responded to the grievance and called culinary to have them send a no meat sack to Plaintiff. No vegan meal arrived.

Though Sergeant Clayton attempted to accommodate Plaintiff on at least one occasion, February 28, 2024, when Plaintiff notified him about not receiving a vegan tray, Sergeant Clayton never followed up to ensure that the vegan meals went out to Plaintiff. Sergeant Clayton oversees four units. Both Warden Bean and Mr. Quillmann also failed to do any follow-up with the culinary officers or porters to find out if Plaintiff was receiving his court-ordered meals, despite it being known that such meals were not regularly being given to Plaintiff.

Plaintiff filed two emergency grievances with respect to receiving the wrong meal. Mr....