Blake v. Dzurenda

— 1 — 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 ALFONSO M. BLAKE, Case No. 3:19-cv-00321-ART-CSD 5 Petitioner, ORDER ON SUMMARY JUDGMENT v. ON REMAND — 6 — JAMES DZURENDA, et al., — 7 — Respondents. — 8 — 9 Plaintiff Alfonso M. Blake was at the time this lawsuit was filed an inmate 10 in the custody of the Nevada department of Corrections (“NDOC”), residing at Ely 11 State Prison (“ESP”). This case involves Blake’s claim under 42 U.S.C. § 1983 , 12 alleging that he was denied a vegan diet consistent with his Hindu beliefs, and 13 that he was denied, as an alternative to a vegan diet, the prison’s Common Fare 14 Menu (“CFM”), a diet that aligned closer with his beliefs and was offered to Jewish 15 and Muslim inmates. Blake was instead provided with the Alternative Meatless 16 Diet (“AMD”) which contained no meat but did contain animal products and less 17 fruits and vegetables than CFM. Blake’s complaint was screened, and he was 18 allowed to proceed with claims under the First Amendment’s Free Exercise 19 Clause, the Religious Land Use and Institutionalized Persons Act of 2000 20 (RLUIPA), and the Fourteenth Amendment Equal Protection Clause. 21 On November 18, 2022, this Court entered an order adopting in part and 22 rejecting in part Magistrate Judge Denney’s Report and Recommendation on the 23 parties’ cross-motions for summary judgment. (ECF No. 74.) The Court granted 24 Blake’s motion for summary judgment on his RLUIPA claim, granted Defendants’ 25 motion for summary judgment with respect to Defendant Thomas in his 26 individual capacity due to lack of personal participation, and dismissed Blake’s 27 First Amendment and equal protection claims as duplicative of his RLUIPA 28 claims. (Id.) Blake appealed, seeking review only of the dismissal of his First 1 Amendment claim against Thomas in his individual capacity. (ECF Nos. 80, 93.) 2 The Ninth Circuit reversed this Court’s grant of summary judgment as to 3 Defendant Thomas in his individual capacity, holding that because a reasonable 4 jury could find that Thomas had the authority to grant Blake’s request, the denial 5 of said request could qualify as direct personal participation in the alleged 6 deprivation of Blake’s First Amendment free exercise right. (ECF No. 93.) The 7 Ninth Circuit remanded this action for the Court to address Defendant’s 8 arguments on summary judgment that even if Thomas did personally participate 9 in the alleged deprivation, (1) denying Blake’s request did not violate Blake’s First 10 Amendment rights, (2) there was a legitimate penological reason for denying 11 Blake’s request, and (3) Thomas is entitled to qualified immunity. (Id.) 12 Plaintiff has also filed a motion to strike the declaration of Mr. Thomas, 13 filed in support of Defendant’s supplemental motion for summary judgment (ECF 14 No. 102), which the Court addresses first. 15 I. Motion to Strike 16 Under Federal Rule of Civil Procedure 12(f) a court may strike from a 17 pleading “any redundant, immaterial, impertinent, or scandalous matter.” 18 However, this rule applies only to pleadings, and “courts are generally unwilling 19 to construe the rule broadly and refuse to strike motions, briefs, objections, 20 affidavits, or exhibits attached thereto.” Herb Reed Enters., LLC v. Fla. Ent. Mgmt., 21 Inc., No. 2:12-CV-00560-MMD, 2014 WL 1305144 , at *6 (D. Nev. Mar. 31, 2014) 22 (citing Hrubec v. Nat’l R.R. Passenger Corp., 829 F. Supp. 1502, 1506 (N.D. III. 23 1993) and Bd. of Educ. of Evanston Twp. High Sen. Dist. No. 202 v. Admiral 24 Heating & Ventilation, Inc., 94 F.R.D. 300, 304 (N.D. Ill.1982) (both denying 25 motions to strike which were not pleadings)). Here, Blake moves to strike a 26 declaration, not a pleading. 27 However, Blake does not argue that the declaration should be stricken 28 under the Rule 12(f) standard. Rather, he argues that Thomas’s declaration 1 should be stricken because it does not meet the requirements for an affidavit or 2 declaration under Rule 56(c)(4). Blake argues that Thomas’s declaration is 3 inadmissible because it is not based on personal knowledge, is conclusory, and 4 is unsupported. The Court will accordingly deny the motion to strike but will 5 consider Blake’s argument in his motion as an argument that the declaration is 6 inadmissible. 7 Relevant to Blake’s argument, Thomas’s declaration states that as the 8 Deputy Director at the time of Blake’s grievance, they “had no authority to provide 9 Plaintiff with a Common Fare Diet” and “had no authority to add another faith 10 group to the Common Fare.” (ECF No. 103-3 at 2.) The declaration also states 11 that “[t]he Alternate Meatless diet had fewer meat products in the diet than the 12 Common Fare diet and was closer to a Vegan diet.” (Id.) Blake argues that these 13 statements are not based on personal knowledge and are conclusory and 14 unsupported. 15 The Court finds otherwise. Thomas, as the Deputy Director at the time, can 16 be inferred to have had personal knowledge regarding the subjects in the affidavit. 17 In re Kaypro, 218 F.3d 1070, 1075 (9th Cir. 2000) (“Personal knowledge may be 18 inferred from a declarant’s position.”); Barthelemy v. Air Lines Pilots Ass’n, 897 19 F.2d 999, 1018 (9th Cir. 1990) (personal knowledge can be inferred from a 20 declarant’s position and nature of participation in the matter). It is also not 21 necessary for a declaration to state that it is based on personal knowledge for 22 that to be the case. Diaz v. V&V Farms, Inc., No. C-01-20424 RMW, 2002 WL 23 35644878, at *3 (N.D. Cal. Apr. 19, 2002). It can be presumed that Thomas would 24 have personal knowledge regarding his authority as well as regarding the prison 25 diets. The Court also notes that the menus for both diets are in the record. (ECF 26 Nos. 60-9, 60-10.) Accordingly, the Court denies Blake’s motion to strike.1 — 27 — 1 The Court’s analysis does not depend on, and the Court does not consider, the — 28 — 1 II. Legal Standard 2 Summary judgment is appropriate if the movant shows “there is no genuine 3 dispute as to any material fact and the movant is entitled to judgment as a matter 4 of law.” Fed. R. Civ. P. 56(a), (c). A fact is material if it “might affect the outcome 5 of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 6 242, 248 (1986). A dispute is genuine if “the evidence is such that a reasonable 7 jury could return a verdict for the nonmoving party.” Id. 8 The party seeking summary judgment bears the initial burden of informing 9 the Court of the basis for its motion and identifying those portions of the record 10 that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. 11 Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the non-moving party 12 to set forth specific facts demonstrating there is a genuine issue of material fact 13 for trial. Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 531 (9th Cir. 14 2000); Sonner v. Schwabe N. Am., Inc., 911 F.3d 989, 992 (9th Cir. 2018) (“To 15 defeat summary judgment, the nonmoving party must produce evidence of a 16 genuine dispute of material fact that could satisfy its burden at trial.”). The Court 17 views the evidence and reasonable inferences in the light most favorable to the 18 non-moving party. James River Ins. Co. v. Hebert Schenk, P.C., 523 F.3d 915 , 920 19 (9th Cir. 2008). “When simultaneous cross-motions for summary judgment on 20 the same claim are before the Court, the Court must consider the appropriate 21 evidentiary material identified and submitted in support of both motions, and in 22 opposition to both motions, before ruling on each of them.” Tulalip Tribes of Wash. 23 v. Wash., 783 F.3d 1151, 1156 (9th Cir. 2015) (citation omitted). 24 // — 25 — 26 NDOC Vegan Menu attached to Defendant’s supplemental briefing at ECF No. 100-3. However, the Court notes that this document appears to have been created 27 post-discovery—it is dated 2023, and discovery closed in 2021. (ECF No. 56 at 3). — 28 — 1 III. Undisputed Facts 2 Blake has declared his faith as Hindu since December 16, 2016. (ECF No. 3 60-1 at 2.) Blake believes in Ahimsa, which requires a vegan way of life, and 4 includes eliminating or reducing animal, animal byproducts, eggs, milk, and 5 canned foods from the diet. (Pl. Decl., ECF No. 59 at 18-19 ¶ 3.) Blake cannot 6 attend religious services, and there is no clergy specific to Hindus at ESP. (Id. at 7 19 ¶ 5.) 8 In January of 2017, NDOC did not offer a vegan diet. On January 12, 2017, 9 Blake requested to be placed on the CFM diet, stating that he adhered to the 10 Ahimsa vegan diet, and could not eat flesh foods, eggs, leather, dairy or other 11 animal byproducts. He said that the AMD was not fit for the Hindu Ahimsa diet, 12 but CFM was the closest diet to accommodate the Ahimsa vegan diet as far as 13 fruits and vegetables are concerned, and it offered minimal meat. (ECF No. 6014 2.) 15 On February 1, 2017, Rabbi M. Mallinger responded that Blake’s faith 16 group was Hindu, and as such, Blake was not eligible for the CFM. Instead, the 17 appropriate menu was the AMD. (ECF No. 60-3; Mallinger Decl., ECF No. 60-4.) 18 On February 22, 2017, Blake sent a request for accommodation of religious 19 practices form indicating he would like to add CFM to the practice of Hinduism 20 due to the Ahimsa, a vegan way of life, which includes no flesh foods, eggs, dairy, 21 or other animal byproducts. (ECF No. 60-5.) On April 12, 2017, Chaplain Snyder 22 sent Blake a letter on behalf of the Religious Review Team, stating that inmates 23 with the declared faith of Hindu are eligible for the AMD, and denied Blake’s 24 request for the CFM accommodation. (ECF No. 60-6.) 25 On May 3, 2017, Blake filed an informal level grievance asking to be placed 26 on the CFM. He repeated that the AMD did not meet the requirements of the 27 Ahimsa in the Hindu practice because the AMD served a great proportion of dairy 28 products. CFM, on the other hand, had minimal meat and provided more fruits 1 and vegetables. (ECF No. 60-7 at 8, 10.) Hammel responded to the informal level 2 grievance. Blake was advised that to be placed on the CFM, he had to follow AR 3 814.03, and submit a religious diet accommodation form and show the reason 4 why the request was denied. (Id. at 9.) 5 Blake filed a first level grievance on July 12, 2017, attaching a copy of his 6 religious diet accommodation request form, and stated he was denied CFM due 7 to his Hindu faith. (Id. at 6.) Filson responded to the first level grievance, stating 8 that placement on the CFM was denied because a Hindu inmate is not eligible for 9 CFM, and the appropriate menu for a Hindu inmate is the AMD. (Id. at 7.) 10 Blake filed a second level grievance on August 30, 2017, stating that his 11 religious rights had been infringed. He reiterated that the AMD includes eggs, 12 dairy, and animal byproducts, which violate his Hindu Ahimsa beliefs. (ECF No. 13 Id. at 2, 4.) Thomas responded to the second level grievance, denying the request 14 for placement on the CFM because Hindus are not eligible for that menu, but 15 instead are eligible for the AMD. (Id. at 3.) 16 NDOC’s Faith Group Overview states that an inmate who has declared the 17 Hindu faith should be served the AMD. (ECF Nos. 60-12 at 11, 60-13.) The Faith 18 Group Overview provides that Islam/Muslim inmates may receive the AMD or 19 CFM. (Id. at 12.) Adherents of Judaism may receive the CFM diet. (Id. at 13.) 20 During the relevant time period, the AMD offered substitutions that 21 included no meat “for inmates wishing to participate in a vegetarian type 22 lifestyle,” but it had no vegan menu substitutions. (ECF No. 60-8 at 2.) 23 IV. Analysis 24 Because the Ninth Circuit held that summary judgment should not be 25 granted as to Thomas’s personal participation, the Court will now analyze 26 whether Thomas is entitled to summary judgment on Blake’s First Amendment 27 claim because (1) denying Blake’s request did not violate Blake’s First 28 Amendment rights, (2) there was a legitimate penological reason for denying 1 Blake’s request, and (3) Thomas is entitled to qualified immunity. 2 A. Violation of First Amendment Rights 3 To succeed on a First Amendment free exercise claim, a plaintiff must first 4 show that their religious exercise rises out of sincerely held beliefs and is rooted 5 in religious belief. Jones v. Slade, 23 F.4th 1124, 1144 (9th Cir. 2022). Second, 6 the plaintiff must show that the challenged government action substantially 7 burdens the plaintiff’s exercise of religion. Id. at 1139, 1144 . In the third step, 8 the burden shifts to the government to justify the burden by showing that the 9 activity is reasonably related to legitimate penological interests. Id. at 1144 . 10 1. Sincerely Held Belief and Substantial Burden 11 The Court’s prior order adopting Judge Denney’s Report and 12 Recommendation already found that Blake had a sincerely held belief that he 13 must maintain a vegan diet as a Hindu adherent that believes in Ahimsa, and 14 that Blake’s religious exercise was substantially burdened. (See ECF No. 74 at 9, 15 granting summary judgment on Blake’s RLUIPA claim). As such, summary 16 judgment is also appropriate on the first two elements of Blake’s First 17 Amendment claim. 18 2. Legitimate Penological Interests 19 After a plaintiff shows that government action substantially burdens 20 religious exercise, the burden shifts to the defendant to show that the challenged 21 regulation satisfies a legitimate penological interest by considering the factors 22 elaborated in Turner v. Safley, 482 U.S. 78 , 89–91 (1987). The Turner factors are: 23 (1) is there a “valid, rational connection between the prison regulation and the 24 legitimate governmental interest put forward to justify it”; (2) “whether there are 25 alternative means of exercising the right that remain open to prison inmates”; (3) 26 “the impact accommodation of the asserted constitutional right will have on 27 guards and other inmates, and on the allocation of prison resources generally”; 28 and (4) the “absence of ready alternatives” and “the existence of obvious, easy 1 alternatives.” Id. 2 a. Valid Connection to Legitimate Penological Purpose 3 The Court’s prior order found as to Blake’s RLUIPA claim that “Defendants 4 provide no evidence that providing Blake (who requires a vegan diet under his 5 faith) with one non-vegan diet over another non-vegan diet advances any 6 government interest, let alone a compelling one.” (ECF No. 74 at 9.) RLUIPA has 7 a stricter standard at this step, which requires the government to show that the 8 practice is the least restrictive means of furthering a compelling government 9 interest. Holt v. Hobbs, 574 U.S. 352 , 362 (2015). For free exercise claims, the 10 government need only show that the activity is reasonably related to legitimate 11 penological interests. Jones, 23 F.4th at 1144 . 12 In its supplemental briefing after remand, Defendant argues that “a prison 13 has a legitimate interest in running a simplified food service, rather than one that 14 gives rise to many administrative difficulties.” Ward v. Walsh, 1 F.3d 873 , 877 15 (9th Cir. 1993). Defendant argues that here, allowing Blake to choose “one non16 conforming diet over another” would burden NDOC’s ability to run an efficient 17 food service because it would “open the floodgates to allowing inmates to choose 18 which diet they should be provided, regardless of their religious beliefs.” (ECF No. 19 100 at 3.) 20 In Shakur v. Schriro, the Arizona Department of Corrections had denied 21 Kosher meals (as an alternative to the requested Halal) to Muslim inmates, 22 although a Kosher meal plan already existed. 514 F.3d 878, 886 (9th Cir. 2008). 23 The Ninth Circuit held that the department “could rationally conclude that 24 denying Muslim prisoners kosher meals would simplify its food service and 25 reduce expenditures,” making this factor weigh slightly in favor of the prison. Id.; 26 see also Lewis v. Ryan, No. 04CV2468JLS(NLS), 2008 WL 1944112 , at *21 (S.D. 27 Cal. May 1, 2008) (first Turner factor weighs slightly in defendants’ favor where 28 they argued that pork-free diet currently offered and refusal to offer kosher diet 1 was rationally related to maintaining simplified food service). Similarly to Shakur, 2 while the administrative burden seems minimal because the CFM is an existing 3 meal plan and the request is for a single inmate, “we cannot conclude that no 4 rational nexus exists between [NDOC’s] dietary policies and its legitimate 5 administrative and budgetary concerns.” Shakur, 514 F.3d at 886 . Accordingly, 6 this factor weighs slightly in favor of Defendant. 7 b. Alternative Means of Exercising Right 8 Defendant argues that under the second Turner factor, Blake had 9 alternative methods of engaging in religious practice. “The relevant inquiry under 10 this factor is not whether the inmate has an alternative means of engaging in the 11 particular religious practice that he or she claims is being affected; rather, we are 12 to determine whether the inmates have been denied all means of religious 13 expression.” Ward, 1 F.3d at 877 . Blake states in his declaration that he had 14 “limited material” at ESP, there are no Hindu clergy, and cannot attend religious 15 services. (ECF No. 59 at 19.) Defendant counters by asserting that under AR 16 810.2, and according to the NDOC “Faith Group Overview” document, Hindu 17 inmates are permitted individual study and prayer in private, as well as weekly 18 group study subject to scheduling approval. (ECF Nos. 60-12 at 11; 60-13 at 11.) 19 They also point to the NDOC Religious Practice Manual, which provides that an 20 inmate can seek assistance from the chaplain to obtain donations and volunteers 21 as well as form study groups, and that in the event no volunteer is found, two 22 inmates may be appointed to facilitate services. (ECF No. 100-1, 5(A)(7)-(8), 7(A).) 23 Thomas’s declaration states that “[w]hile there was no Hindu cleric at the NDOC, 24 offenders were allowed to study and pray in private, attend weekly services, act 25 as a facilitator for their faith, and request visits from outside leaders. Plaintiff had 26 that ability.” (ECF No. 100-3 at 3.) 27 While Defendant argues that Blake has these opportunities pursuant to 28 NDOC policies, it has not offered any evidence as to whether Blake can actually 1 take advantage of them. For example, there is no evidence in the record of 2 whether there are enough Hindu inmates to form a study group, or whether the 3 chaplain was able to obtain volunteers or outside Hindu leaders available for 4 visits. If none of these were actually available to Blake, the second Turner factor 5 is not satisfied. See Ward, 1 F.3d 873 (private observances of faith only does not 6 satisfy second Turner factor where inmate in remote area had no access to faith 7 leader, religious services, or ability to congregate with other practitioners of his 8 faith). While Defendant cites to Shakur in support of their argument, there, the 9 plaintiff had access to specific religious items for prayer in his cell, he could 10 receive visits from an imam, and could observe Ramadan. See Shakur, 514 F.3d 11 at 886. Here, there is no evidence of what religious practice Blake could 12 undertake in his cell, nor that he is able to work with a faith leader or observe 13 any religious rituals. 14 Plaintiff also contends that a vegan diet is not a mere “positive expression” 15 of his religion. (ECF No. 59 at 12.) The Ninth Circuit, in considering the second 16 Turner factor, distinguishes between practices which are a “positive expression” 17 and those which are “a commandment which the believer may not violate at the 18 peril of his soul.” Ward, 1 F.3d at 878 . When a policy forces disobedience of a 19 religious law, this factor favors the inmate. Shilling v. Crawford, No. 2:05-CV20 00889-PMP-GWF, 2007 WL 2790623 , at *17 (D. Nev. Sept. 21, 2007) (citing Ward, — 21 — 1 F.3d at 878 .) Here, Plaintiff points to his declaration in support of his belief in 22 Ahimsa, which is a “non-harming” practice, and “includes eliminating or reducing 23 animal by-products, eggs, milk, and canned foods from [his] diet.” (ECF No. 59 24 at 19.) Defendant does not refute Plaintiff’s assertion. 25 This factor seems to favor Blake, as there is evidence that his religious 26 practice is significantly curtailed by his incarceration, and he has limited if any 27 other means to practice his religion. Blake has also put forth evidence that his 28 need for a vegan diet is not a mere “positive expression” of his religion, 1 heightening the concern identified in Ward. See Henderson v. Terhune, 379 F.3d 2 709 (9th Cir. 2004) (citing Ward, 1 F.3d at 877 ). However, there are also material 3 issues of fact which preclude the Court’s ultimate determination of this factor— 4 what opportunities (outside of private practice) Blake actually had to practice 5 Hinduism. 6 c. Impact on Guards, Other Inmates, and Allocation of Resources 7 Defendant argues that under the third Turner factor, allowing Blake to have 8 the Common Fare Menu would adversely affect other inmates and prison staff. 9 Defendant first argues that granting Blake access to a diet which does not 10 conform with his religious beliefs could result in a perception of favoritism, which 11 could in turn create unrest. While the Ninth Circuit has recognized favoritism as 12 a concern, it has also discounted it with regards to this factor, holding that “[t]his 13 effect, however, is present in every case that requires special accommodations for 14 adherents to particular religious practices.” Ward, 1 F.3d at 878 ; Shakur, 514 15 F.3d at 886 (stating that “[i]n Ward, we discounted the favoritism argument). 16 While “not irrelevant,” this argument is “not in itself dispositive.” Ward, 1 F.3d at 17 878; see also Henderson, 379 F.3d at 714 (under Ward, potential effect of 18 favoritism not dispositive). 19 Defendant also argues that allowing Blake to have the CFM diet when it 20 does not conform to his religious beliefs would “frustrate the orderly 21 administration” of their attempt to accommodate religious diets while preventing 22 inmates from requesting these diets out of preference. (ECF No. 100 at 4) (quoting 23 Resnick v. Adams, 384 F.3d 763 , 770 (9th Cir. 2003)). Defendant also posits that 24 this would also result in many similar requests, which would require more 25 resources because the CFM cost is “substantial.” (Id. at 5.) 26 As to the first argument, the Court has already found that Defendants’ 27 denial of a vegan diet or the CFM as an alternative substantially burdened Blake’s 28 rights; it was thus not a mere “preference.” As to the second argument, and more 1 importantly, “analysis of this factor requires factual evidence of the degree of any 2 disruption and costs involved.” Parkerson v. Young, No. 2:20-CV-00445-AR, 2022 3 WL 17820153 , at *6 (D. Or. Dec. 20, 2022) (citing Ward, 1 F.3d at 878 ). In both 4 Ward and Shakur, the Ninth Circuit found that this factor was inconclusive where 5 defendants provided no evidence beyond conclusory statements that granting a 6 prisoner’s religious meal request would cause disruption. Ward, 1 F.3d at 878 - 7 79 (where district court made no findings about financial or administrative 8 disruption, “we cannot simply accept the warden’s assertion on appeal that the 9 disruption would be significant”); Shakur, 514 F.3d at 887 (no evidence supported 10 contention that other prisoners would demand the same treatment, and no 11 evidence that defendant had looked into the cost of request). 12 Here, Defendant has provided no evidence of the administrative or financial 13 impact of providing Blake with the CFM, nor have they provided evidence that 14 granting Blake’s request for CFM would actually result in many similar requests. 15 The only citation Defendant makes is to NDOC AR 814.04, which sets forth the 16 Kosher diet rules for the Common Fare Menu, arguing that these are 17 “substantial.” However, it does not appear that Defendants assessed the cost of 18 providing one inmate—or even all Hindu Ahimsa practitioners at the prison 19 (about which there is no evidence)—with CFM. Given this absence of evidence, 20 this factor weighs in favor of Plaintiff. See Phillips v. Mason, No. CV-121131-PHX21 DJH-MEA, 2014 WL 12769270 , at *9 (D. Ariz. Sept. 25, 2014) (factor weighed in 22 favor of plaintiff where there was no evidence that defendants looked into cost of 23 providing plaintiff with requested meal or that other inmates would demand the 24 same, and requested meal was already available at prison); see also Lewis, 2008 25 WL 1944112 , at *23–24 (third factor weighed in favor of plaintiff where defendants 26 failed to put forth any evidence to show that providing plaintiff with halal meals 27 would result in more than a de minimus impact on prison). 28 // 1 d. Alternatives 2 Under this factor, the Court looks to whether there are “ready alternatives 3 to the prison's current policy that would accommodate [Blake] at de minimis cost 4 to the prison.” Shakur, 514 F.3d at 887 (quoting Ward, 1 F.3d at 879 ). The 5 “existence of obvious, easy alternatives may be evidence that the regulation is not 6 reasonable but is an ‘exaggerated response’ to prison concerns.” Turner, 482 U.S. 7 at 90). In contrast, “the absence of ready alternatives is evidence of the 8 reasonableness of a prison regulation,” Ward, 1 F.3d at 879 (quoting Washington 9 v. Harper, 494 U.S. 210, 225 (1990)). 10 Plaintiff asserts that even if a full vegan diet were not available, allowing 11 him access to the CFM is a ready alternative because it is already provided to 12 Jewish and Muslim inmates. Aside from asserting that the CFM better aligns with 13 his Ahimsa beliefs, he also asserts that he can supplement his diet with 14 additional protein sources, at his own expense, through the canteen or other 15 prison programs. (ECF No. 59 at 30). Defendant argues that Plaintiff must put 16 forth an alternative that “fully accommodates” his rights and has failed to do so 17 because the CFM does not fully accommodate his religious beliefs. (ECF No. 100 18 at 4.) 19 In Ward, the Ninth Circuit posited that reasonable alternatives could 20 include a diet that does not entirely comport with a religious law. 1 F.3d at 879 . 21 The court stated that even if full compliance would involve significant expense, 22 “it may be possible to comply with the laws in substantial part at de minimis 23 cost,” such as “provid[ing] Ward with non-defiled foodstuffs, even if the dining 24 area is not kept kosher.” Id. The Ninth Circuit in Shakur also considered an 25 alternative diet that did not fully comport with the plaintiff’s requested Halal diet. — 26 — 514 F.3d at 887 . District courts in this circuit have done the same. See Johnson 27 v. Nevada ex rel. Bd. of Prison Comm’rs, No. 3:11-CV-00487-HDM, 2013 WL 28 5428441, at *14 (D. Nev. July 10, 2013), report and recommendation adopted, No. 1 3:11-CV-00487-HDM, 2013 WL 5428423 , at *25 (D. Nev. Sept. 26, 2013); Lewis, — 2 — 2008 WL 1944112 , at *16. The Court rejects Defendant’s argument that Blake’s 3 proffered alternative is inadequate because it does not fully comply with his 4 religious beliefs. 5 As discussed above, Defendant has not put forth evidence to show that 6 providing Blake with the CFM meal would create more than a de minimus impact 7 on the prison. There is accordingly a factual issue as to whether alternatives were 8 available. Lewis, 2008 WL 1944112 , at *25 (factual issue of alternatives existed 9 where defendants put forth no evidence of impact on prison). 10 When considering all four Turner factors, the Court finds that there are 11 genuine issues of material fact with respect to whether Defendant’s burden on 12 Blake’s religious practice was reasonably related to a legitimate penological 13 interest. This, as well as the issue of whether Thomas personally participated in 14 deprivation of Blake’s First Amendment rights, precludes summary judgment for 15 either party on this claim. 16 B. Qualified Immunity 17 “The doctrine of qualified immunity protects government officials from 18 liability for civil damages insofar as their conduct does not violate clearly 19 established statutory or constitutional rights of which a reasonable person would 20 have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). “In § 1983 actions, 21 qualified immunity protects government officials from liability for civil damages 22 insofar as their conduct does not violate clearly established statutory or 23 constitutional rights of which a reasonable person would have known.” Sampson 24 v. County of Los Angeles, 974 F.3d 1012, 1018 (9th Cir. 2020) (citations and 25 internal quotation marks omitted). 26 The Supreme Court has set forth a two-part analysis for resolving 27 government officials’ qualified immunity claims. See Saucier v. Katz, 533 U.S. 28 194, 201 (2001), overruled in part on other grounds by Pearson v. Callahan, 555 1 U.S. 223, 236 (2009). Under this analysis, “[q]ualified immunity protects 2 government officials from liability under § 1983 unless (1) they violated a federal 3 statutory or constitutional right, and (2) the unlawfulness of their conduct was 4 clearly established at the time.” Cuevas v. City of Tulare, 107 F.4th 894, 898 (9th 5 Cir. 2024) (citation and internal quotation marks omitted). First, the court 6 considers whether the facts “[t]aken in the light most favorable to the party 7 asserting the injury … show [that] the [defendant’s] conduct violated a 8 constitutional right[.]” Saucier, 533 U.S. at 201 . Second, the court must 9 determine whether the right was clearly established at the time of the alleged 10 violation. Id. Courts exercise “discretion in deciding which of the two prongs of 11 the qualified immunity analysis should be addressed first in light of the 12 circumstances in the particular case at hand.” Pearson, 555 U.S. at 236 . 13 “To be clearly established, a right must be sufficiently clear that every 14 reasonable official would have understood that what he is doing violates that 15 right.” Taylor v. Barkes, 575 U.S. 822, 825 (2015) (per curiam). “[A] court must 16 define the right at issue with ‘specificity’ and ‘not … at a high level of generality.’” 17 Gordon v. County of Orange, 6 F.4th 961 , 968 (9th Cir. 2021) (quoting City of 18 Escondido v. Emmons, 586 U.S. 38, 42 (2019) (per curiam)). “A constitutional 19 right is clearly established if every reasonable official would have understood that 20 what he is doing violates that right at the time of his conduct.” Sampson, 974 21 F.3d at 1018–19 (citation and internal quotation marks omitted). 22 To conclude that the right is clearly established, the court need not identify 23 an identical prior action. See Anderson v. Creighton, 483 U.S. 635, 640 (1987). 24 However, “existing precedent must have placed the statutory or constitutional 25 question beyond debate.” Foster v. City of Indio, 908 F.3d 1204, 1210 (9th Cir. 26 2018) (per curiam) (quoting Kisela v. Hughes, 584 U.S. 100, 104 (2018) (per 27 curiam)). Although both the “clearly established right” and “reasonableness” 28 inquiries are questions of law, where there are factual disputes as to the parties’ 1 conduct or motives, the case cannot be resolved at summary judgment on 2 qualified immunity grounds. See Rosenbaum v. City of San Jose, 107 F.4th 919 , 3 924 (9th Cir. 2024) (“Where factual disputes exist as to the objective 4 reasonableness of an officer’s conduct, the case cannot be resolved at summary 5 judgment on qualified immunity grounds.”) (citation omitted); Torres v. City of 6 Madera, 648 F.3d 1119, 1123 (9th Cir. 2011) (“Where the objective 7 reasonableness of an officer’s conduct turns on disputed issues of material fact, 8 it is a question of fact best resolved by a jury . . .; only in the absence of material 9 disputes is it a pure question of law.”) (citations and internal quotation marks 10 omitted). 11 Defendant argues that they are entitled to qualified immunity because (1) 12 Thomas’s actions did not violate the First Amendment, and (2) even if the actions 13 did, the case law at the time did not clearly establish that the denial of CFM to 14 Blake would violate the First Amendment. As to Defendant’s first argument, the 15 Court has already found that genuine disputes of material fact exist whether 16 Thomas violated Blake’s First Amendment free exercise rights. The Court thus 17 moves to part two of the qualified immunity analysis, whether the right was 18 clearly established. 19 “In the Ninth Circuit, we begin [the clearly established] inquiry by looking 20 to binding precedent. If the right is clearly established by decisional authority of 21 the Supreme Court or this Circuit, our inquiry should come to an end.” Moore v. 22 Garnand, 83 F.4th 743, 750 (9th Cir. 2023) (quoting Boyd v. Benton County, 374 23 F.3d 773 , 781 (9th Cir. 2004)). 24 It is clearly established that inmates “have the right to be provided with 25 food sufficient to sustain them in good health and that satisfies the dietary laws 26 of their religion” McElyea v. Babbitt, 833 F.2d 196, 198 (9th Cir. 1987). 27 Additionally, there is clearly established law regarding the circumstance at 28 issue—where a prisoner plaintiff requested and was denied a diet which was more 1 in line with his religious beliefs, even though the diet did not one hundred percent 2 satisfy his religious tenants. In Shakur, decided in 2008, the plaintiff asserted 3 that he required a Halal diet for his Muslim faith, but requested, as an alternative, 4 that he be placed on the prison’s kosher diet because it would be more in line 5 with his beliefs than his current vegetarian diet. 514 F.3d at 885 . The Ninth 6 Circuit found that, given the plaintiff’s sincere beliefs, “the prison’s refusal to 7 provide a kosher meat diet implicates the Free Exercise Clause.” Id. This is 8 sufficient to put Defendant on notice that denial of Blake’s request for a diet that 9 better conformed with his religious beliefs, if not related to a legitimate 10 penological purpose, could violate the First Amendment. Shakur was also 11 sufficient to put Defendant on notice that denial of an inmate’s diet request in 12 line with his sincere religious beliefs, even though the diet was “uncommon to 13 the mainstream mandates of his religion,” can violate the Free Exercise Clause. 14 Thomas v. Baca, 827 F. App’x 777 , 778 (9th Cir. 2020) (describing holding in 15 Shakur). 16 Moreover, it was clearly established at the time in question that a defendant 17 may not substantially burden an inmate’s religious exercise without a legitimate 18 governmental interest. McElyea, 833 F.2d at 197 (citing O’Lone v. Shabazz, 482 19 U.S. 342 , 348 (1987)); Turner, 482 U.S. at 89–91 (1987). Here, there are factual 20 issues as whether there was a legitimate penological interest in denying Blake 21 CFM. If, upon resolution of these factual issues, Defendant did not have a 22 legitimate penological interest in denying Blake CFM, Defendant is not entitled to 23 qualified immunity. “When there are disputed factual issues that are necessary 24 to a qualified immunity decision, these issues must first be determined by the 25 jury before the court can rule on qualified immunity. The issue can be raised in 26 a [Federal Rule of Civil Procedure] Rule 50(a) motion at the close of evidence.” 27 Morales v. Fry, 873 F.3d 817, 822 (9th Cir. 2017) (citing the Ninth Circuit’s Model 28 Civil Jury Instruction 9.34 (2017)). 1 Defendant makes several unpersuasive arguments as to qualified 2 immunity which the Court will briefly address. First, Defendant argues that there 3 is no authority that it is a free exercise violation where there is no “evidence that 4 the official had any control over providing a religious diet contrary to the prison’s 5 regulations.” (ECF No. 100 at 7.) However, here, the Ninth Circuit found that 6 there is evidence from which a reasonable jury could conclude that Thomas had 7 authority to grant Blake’s request. This argument is thus inapplicable. Second, 8 Defendant argues that no authority has found a violation of free exercise when 9 an inmate admits the requested diet does not conform to his beliefs, or when the 10 inmate failed to show that his current diet substantially burdened his religious 11 beliefs. The Court has already found that Blake’s religious beliefs were 12 substantially burdened. Further, as discussed above, there is binding case law 13 related to prisoner’s requests for diets which do not fully conform to their religious 14 beliefs as an alternative. See Shakur, 514 F.3d at 885 . Finally, Defendant argues 15 that Blake points to no authority finding a free exercise violation where the prison 16 has a legitimate penological purpose for declining a religious diet request. As 17 discussed above, there are factual issues as to whether Thomas had a legitimate 18 penological purpose for denying Blake’s request. 19 For these reasons, Defendant Thomas is not entitled to summary judgment 20 on qualified immunity. 21 C. Equal Protection Claim 22 In his supplemental briefing on remand, Blake requests that the Court 23 reconsider his claim under the Equal Protection Clause. The Court’s prior order 24 dismissed this claim as duplicative because, after it granted summary judgment 25 as to claims against Thomas in his individual capacity, the equal protection claim 26 remained only against Defendants in their official capacities, and thus it sought 27 an identical form of injunctive relief as Plaintiff’s RLUIPA claim. Now that the 28 Ninth Circuit has held that there is an issue of fact as to Thomas’s personal 1 || participation, Blake asks the Court to reconsider dismissal of his equal protection 2 || claim. 3 However, the Ninth Circuit’s memorandum was clear; Blake did not appeal 4 || the dismissal of his equal protection claim, rather, he “narrowly seeks review of 5 || the dismissal of the First Amendment claim against Thomas in his individual 6 || capacity.” (ECF No. 93 at 3). As such, the Ninth Circuit’s mandate was clear: it 7 || remanded this case only to address the issues raised in Blake’s First Amendment 8 || claim. (Ud. at 8.) “[A] district court is limited by this court’s remand in situations 9 || where the scope of the remand is clear.” Mendez-Gutierrez v. Gonzales, 444 F.3d 10 || 1168 (9th Cir. 2006). Thus, this Court cannot consider Blake’s equal protection 11 || claim. 12 || V. Conclusion 13 It is therefore ordered that Plaintiffs Motion for Summary Judgment (ECF 14 || No. 59) is GRANTED IN PART and DENIED IN PART with respect to Plaintiffs 15 || Free Exercise Clause Claim. The Court grants summary judgment to Plaintiff as 16 || to the first two elements of his claim: that he has a sincerely held belief and that 17 || his rights were substantially burdened. Summary judgment is denied as to the 18 || third element. 19 It is further ordered that Defendant’s Motion for Summary Judgment (ECF 20 || No. 60) and Supplemental Motion for Summary Judgment (ECF No. 100) are 21 || DENIED. 22 It is further ordered that Plaintiffs Motion to Strike (ECF No. 102) is 23 || DENIED. 24 Dated this 29tt day of July 2025. — 25 — 26 fas Rassed Tem 27 ANNE R. TRAUM 28 UNITED STATES DISTRICT JUDGE