Davis v. Powell, Civil No. 10cv1891–CAB (RBB).

• Court: United States District Courts. 9th Circuit. United States District Court (Southern District of California)
• Writing for the Court: CATHY ANN BENCIVENGO
• Citation: 901 F.Supp.2d 1196
• Decision Date: 04 October 2012
• Docket Number: Civil No. 10cv1891–CAB (RBB).
• Parties: Jim Dale DAVIS, Plaintiff, v. R. POWELL, T. Borem, L. Small, K. Ours, Defendant.

901 F.Supp.2d 1196

Jim Dale DAVIS, Plaintiff,
v.
R. POWELL, T. Borem, L. Small, K. Ours, Defendant.

Civil No. 10cv1891–CAB (RBB).

United States District Court,
S.D. California.

Oct. 4, 2012.

[901 F.Supp.2d 1203]

Jim Dale Davis, Calipatria, CA, pro se.

Christopher H. Findley, Office of the Attorney General, San Diego, CA, for Defendants.

ORDER (1) ADOPTING REPORT AND RECOMMENDATION AND (2) GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS [Doc. Nos. 30, 35]
CATHY ANN BENCIVENGO, District Judge.

On October 6, 2011, plaintiff filed a Second Amended Complaint (“SAC”). [Doc.

[901 F.Supp.2d 1204]

No. 29.] On October 13, 2011, defendants filed a motion to dismiss the SAC. [Doc. No. 30.] On October 31, 2011, Plaintiff filed an opposition to the motion to dismiss. [Doc. No. 31.] On November 7, 2011, Defendants filed a reply to the opposition. [Doc. No. 33.] On July 25, 2012, Magistrate Judge Brooks prepared a Report and Recommendation (“Report”) recommending that the motion to dismiss the SAC be granted in part and denied in part. [Doc. No. 35.] The Report also ordered that any objections were to be filed by August 24, 2012. [Report at 71.] To date, no objection has been filed, nor have there been any requests for an extension of time in which to file an objection.

A district court's duties concerning a magistrate judge's report and recommendation and a respondent's objections thereto are set forth in Rule 72(b) of the Federal rules of Civil Procedure and 28 U.S.C. § 636(b)(1). When no objections are filed, the district court is not required to review the magistrate judge's report and recommendation. The Court reviews de novo those portions of the Report and Recommendation to which objections are made. 28 U.S.C. § 636(b)(1). The Court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Id. However, “[t]he statute makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise.” United States v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th Cir.2003) (en banc) (emphasis in original). “Neither the Constitution nor the statute requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct.” Id. In the absence of timely objection, the Court “need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Fed.R.Civ.P. 72 advisory committee's note (citing Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir.1974)).

Here, neither party has timely filed objections to the Report. Having reviewed it, the Court finds that it is thorough, well reasoned, and contains no clear error. Accordingly, the Court hereby (1) ADOPTS Magistrate Judge Brooks' Report and Recommendation; and (2) GRANTS IN PART AND DENIES IN PART Defendants' motion to dismiss the SAC as set forth below.

Per Magistrate Judge Brook's Report and Recommendation, the Court ORDERS AS FOLLOWS:

(1) Plaintiff's references to violations of the California Code of Regulations are not separate causes of action. Therefore, Defendants' motion to dismiss this portion of count two is GRANTED without leave to amend.

(2) Plaintiff improperly includes several new causes of action in count two of his SAC. First, an amendment to include a retaliation claim in count two against Defendant Small for the addendum he approved on September 16, 2009, would not clearly be futile. This retaliation claim is properly asserted. Defendant Small's motion to dismiss this claim is DENIED. A retaliation claim against Defendant Small for the October 25, 2010 policy, however, would be futile; this claim shall not be considered. Therefore, Defendant Small's motion to dismiss this claim is GRANTED without leave to amend.

(3) Retaliation claims against Defendants Powell, Borem, and Ours for the September 2009 and October 2010 policies would also be futile. Their motion to dismiss both retaliation claims against them is GRANTED without leave to amend.

(4) Defendants Powell, Borem, and Ours's motion to dismiss the conspiracy causes of action against them in count two

[901 F.Supp.2d 1205]

is GRANTED without leave to amend; an amendment to include a conspiracy claim against Defendant Small would be futile, and the conspiracy claim against him is DISMISSED without leave to amend.

(5) Defendant Small's motion to dismiss the equal protection claim in count two regarding the September 16, 2009 policy addendum is DENIED. An amendment to include an equal protection claim against Powell, Borem, and Ours for this policy would be futile and is DISMISSED without leave to amend. Likewise, an amendment to include an equal protection cause of action against all Defendants based on the October 25, 2010 policy would be futile and is DISMISSED without leave to amend.

(6) The motion to dismiss the First Amendment and RLUIPA causes of action against all Defendants in count one is DENIED; in count two, the Defendants' motion to dismiss the First Amendment and RLUIPA claims is GRANTED without leave to amend.

(7) All of the Defendants are entitled to qualified immunity for the First Amendment claims against them in count two, and their motion to dismiss Plaintiff's claim for civil damages on this basis is GRANTED. The Defendants are not, however, entitled to qualified immunity as to the First Amendment allegations in count one, and their motion to dismiss on this basis is DENIED.

(8) Defendant Ours, Powell, and Borem's motion to dismiss Plaintiff's claim for civil damages for the equal protection violation alleged in count two on qualified immunity grounds is GRANTED. Defendant Small is not immune from damages attributable to the equal protection claim against him in count two for the September 2009 policy. His motion to dismiss on this ground is DENIED. Defendant Small is, however, entitled to qualified immunity for the equal protection claim against him in count two, focusing on the October 2010 addendum, and his motion to dismiss Plaintiff's claim for civil damages for this claim is GRANTED.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS SECOND AMENDED COMPLAINT [ECF NO. 30] RUBEN B. BROOKS, United States Magistrate Judge.

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

[901 F.Supp.2d 1206]

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. SeeS.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...