(PC) Reyes v. Valley State Prison

[7] 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA [10] 11 JOSE REYES, 1:20-cv-00023-DAD-GSA-PC 12 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE 13 vs. PROCEED AGAINST DEFENDANTS FISHER, PAEZ, ANGUIANO, CHAPAS, LUCERO, 14 VALLEY STATE PRISON, et al., MARQUEZ, CRUZ, AND MOOSEBAUR FOR VIOLATION OF RLUIPA, VIOLATION OF 15 Defendants. FIRST AMENDMENT FREE EXERCISE CLAUSE, AND ADVERSE CONDITIONS OF 16 CONFINEMENT; AGAINST DEFENDANTS FISHER AND MOOSEBAUR FOR FAILURE TO 17 PROTECT PLAINTIFF FROM CONTAMINATED FOODS; AND AGAINST 18 DEFENDANT MOOSEBAUR FOR RETALIATION; AND THAT ALL OTHER 19 CLAIMS AND DEFENDANTS BE DISMISSED 20 FOURTEEN-DAY DEADLINE TO FILE OBJECTIONS [22] 23 I. BACKGROUND 24 Plaintiff Jose Reyes is a state prisoner proceeding pro se and in forma pauperis with this 25 civil rights action pursuant to 42 U.S.C. § 1983 . On December 26, 2019, fifteen plaintiffs, 26 including Plaintiff Jose Reyes, filed the Complaint commencing this action against Valley State 27 Prison, et al., for subjecting them to adverse conditions of confinement in violation of the Eighth 28 Amendment by serving substandard food in Kosher meals at VSP. (ECF No. 2.) 1 On January 7, 2020, the court issued an order severing the fifteen plaintiffs’ claims and 2 opening new cases for individual plaintiffs. (ECF No. 1.) Each of the fifteen plaintiffs was 3 ordered to file an amended complaint in his own individual case within thirty days. (Id.) On 4 February 6, 2020, Plaintiff filed a First Amended Complaint. (ECF No. 5.) 5 On March 25. 2021, the court screened the First Amended Complaint and issued an order 6 for Plaintiff to either (1) proceed with the cognizable claims found by the court, or (2) file a 7 Second Amended Complaint. (ECF No. 11.) On May 21, 2021, Plaintiff filed the Second 8 Amended Complaint. (ECF No. 14.) On May 25, 2021, the court issued an order striking the 9 Second Amended Complaint for lack of signature. (ECF No. 15.) 10 On June 14, 2021, Plaintiff filed the Third Amended Complaint, which is now before the 11 court for screening. (ECF No. 16.) 28 U.S.C. § 1915 . 12 II. SCREENING REQUIREMENT 13 The Court is required to screen complaints brought by prisoners seeking relief against a 14 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 15 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 16 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 17 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 18 “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall 19 dismiss the case at any time if the court determines that the action or appeal fails to state a claim 20 upon which relief may be granted.” 28 U.S.C. § 1915 (e)(2)(B)(ii). 21 A complaint is required to contain “a short and plain statement of the claim showing that 22 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 23 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 24 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 25 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken 26 as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, 27 Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). To state 28 a viable claim, Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim 1 to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678-79 ; Moss v. U.S. Secret Service, [2] 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as true, legal 3 conclusions are not. Id. The mere possibility of misconduct falls short of meeting this 4 plausibility standard. Id. 5 III. SUMMARY OF THIRD AMENDED COMPLAINT 6 Plaintiff is currently incarcerated at Valley State Prison in Chowchilla, California, in the 7 custody of the California Department of Corrections and Rehabilitation, where the events at issue 8 in the Third Amended Complaint allegedly took place. Plaintiff names as defendants Raythel 9 Fisher, Jr. (Warden, VSP), Paez (Prison Guard), Anguiano (Culinary Staff), Chapas (Culinary 10 Staff), Lucero (Culinary Staff), Marquez (Culinary Staff), Cruz (Culinary Staff), and Moosebaur 11 (Culinary Staff) (collectively, “Defendants”). 12 A summary of Plaintiff’s allegations follow: 13 1. Plaintiff must be served a Kosher diet, for religious reasons, and is completely 14 dependent on Defendants for his daily sustenance. Attached to the Third Amended Complaint, 15 marked as Exhibit “A”, is a copy of Operational Procedure 10048, which details the proper 16 procedures for storing, procuring, and serving Kosher meals to inmates who require Kosher 17 meals. Defendants failed to adhere to the proper procedures for Plaintiff from approximately 18 January 8, 2019, until the present time. 19 2. As a result of the acts and omissions of the Defendants, Plaintiff was subjected to 20 adverse conditions of confinement and failure to protect him from harm, in violation of the Eighth 21 Amendment, RLUIPA, First Amendment free exercise clause, and retaliation in violation of the 22 First Amendment. 23 3. From January 8, 2019 until the present date, the Kosher meals contained food that 24 was rotten, spoiled, and otherwise unfit for human consumption. The meat portion of those 25 meals are regularly served with half-cooked meat products. 26 4. The Shabbat dinner is served with spoiled meat. The meat is supposed to be 27 vacuum sealed but is served to Plaintiff open and with mold growing on it. When eaten, the meat 28 caused Plaintiff to become ill and vomit. 1 5. The turkey served in lunches is unfit for human consumption. It has been 2 denatured by ground-up bone. The sharp and relatively large bone shards caused damage to 3 Plaintiff’s teeth and lacerations in Plaintiff’s mouth and throat. 4 6. The Kosher meal stock is delivered in a manner that causes the frozen food to 5 spoil. It is taken from the refrigerated delivery truck and left unrefrigerated in the open sun and 6 out in the elements in the docking area for entire shifts. Defendants fail to inventory the meals 7 upon arrival, so the meals thaw until they are finally inventoried (approximately 10 hours later) 8 and re-frozen. The meals are then transported to the individual prison facility kitchens where 9 they are again allowed to thaw before being refrigerated again and served to plaintiff on the 10 following day. 11 7. The internal components of the meals are open, spoiled, and otherwise 12 contaminated; items such as applesauce, cream cheese, and fruit cups. Plaintiff complained to 13 Defendants, to no avail. 14 8. Items in the Kosher meals are constantly stolen by inmate staff. When Plaintiff 15 complained to Defendants about missing food items, Plaintiff was told, “Too bad.” What was 16 worse, Defendants revealed Plaintiff’s complaints to the inmate kitchen workers in such a way 17 that Plaintiff was labelled a “snitch” in the eyes of Plaintiff’s peers, creating a highly volatile and 18 dangerous condition of confinement. 19 9. As a result of Defendants’ actions, the inmate workers intentionally wear their 20 serving gloves to the restroom and touch their private parts with their serving gloves on only to 21 return to the serving line and brag about their activities as they serve Plaintiff his Kosher meal. 22 Kosher meals are often heated in non-Kosher food ovens rendering them religiously 23 contaminated. When the sole Jewish worker objected to this practice, defendant Moosebaur told 24 him to “get in the oven.” Defendant Moosebaur openly stated that his grandfather was a German 25 SS officer and that he [Moosebaur] wished that all the Jews had been killed in the Holocaust. 26 10. The culinary workers are not trained in the procedures mandated by the California 27 Retail Food Code, nor by a Rabbi (necessary to serve Kosher food). The issue of training has [28] 1 been complained about by Plaintiff and other Jewish inmates, to no avail. Both Defendant Fisher 2 and the Culinary Staff refused to address the problems. 3 11. On fasting days, Plaintiff is given his breakfast, lunch, and dinner at the same time 4 to be saved until the conclusion of the fast. Defendants instruct Plaintiff to eat all of the meals 5 within a specific time thereby preventing Plaintiff from observing fasting holidays. 6 12. Plaintiff has submitted numerous inmate grievances on the issues complained of 7 here: Log# VSP-B-19-01146, VSP-19-1285, TLR: 1908537, and others, to no avail. Defendants 8 have been providing Plaintiff Kosher meals that contain open, rotten, spoiled, uncooked, frozen, 9 spilled, non-nutritious food during all times relevant to this complaint. Defendants blame the 10 Vendor (ABC Ventures) for the nutritional problems complained of, yet they have continuously 11 ordered from this vendor for 8 years. 12 13. Plaintiff is an inmate confined at Valley State Prison in Chowchilla, California. 13 Defendants are employed at said prison and are responsible for the acts and omissions listed in 14 this complaint. Plaintiff participates in the Kosher Diet Program due to his sincerely held 15 religious beliefs. Plaintiff is a Reformed Jewish individual. Plaintiff believes that the law of the 16 Bible is an instruction manual from his Father and Creator and that he has no choice but to adhere 17 to the specific instructions given by his loving Father. The teachings have been passed down 18 from generation to generation starting with Moses (Moshe). The problems faced by Plaintiff 19 have been caused, in part or completely, by Defendants and each of them every day, and are 20 accounted for from January 8, 2019 to December 20, 2019 (when the complaint was filed) until 21 the present time. Rabbi P. Gordon was made aware of the problems and agreed to investigate, 22 but Defendants have continued their unjustified actions. Attached to this [Third] Amended 23 Complaint, marked as Exhibit “B,” is the sworn affidavit of Jose Reyes, which documents the 24 dangerous conditions complained of herein. 25 As relief, Plaintiff requests monetary damages, including punitive damages, declaratory 26 relief, and injunctive relief. 27 /// 28 /// 1 IV. PLAINTIFF’S CLAIMS 2 A. 42 U.S.C. § 1083 3 The Civil Rights Act under which this action was filed provides: 4 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to 5 be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities 6 secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . [8] 42 U.S.C. § 1983 . “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely 9 provides ‘a method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 10 U.S. 386 , 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137 , 144 n.3 (1979)); see also 11 Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles, [12] 697 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730 , 734 (9th Cir. 2012); 13 Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). 14 To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted 15 under color of state law and (2) the defendant deprived him of rights secured by the Constitution 16 or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see also 17 Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color of 18 state law”). A person deprives another of a constitutional right, “within the meaning of § 1983, 19 ‘if he does an affirmative act, participates in another’s affirmative act, or omits to perform an act 20 which he is legally required to do that causes the deprivation of which complaint is made.’” 21 Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175 , 1183 (9th Cir. 2007) (quoting 22 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)); “The requisite causal connection may be 23 established when an official sets in motion a ‘series of acts by others which the actor knows or 24 reasonably should know would cause others to inflict’ constitutional harms.” Preschooler II, 479 25 F.3d at 1183 (quoting Johnson, 588 F.2d at 743 ). This standard of causation “closely resembles 26 the standard ‘foreseeability’ formulation of proximate cause.” Arnold v. Int’l Bus. Mach. Corp., [27] 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City of Los Angeles, 533 F.3d 1010 , 28 1026 (9th Cir. 2008). 1 B. RLUIPA 2 Prisoners’ religious freedoms are protected by the Religious Land Use and 3 Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1. Section 3 of RLUIPA 4 provides: “No government shall impose a substantial burden on the religious exercise of a person 5 residing in or confined to an institution, as defined in section 1997 [which includes state prisons, 6 state psychiatric hospitals, and local jails], even if the burden results from a rule of general 7 applicability, unless the government demonstrates that imposition of the burden on that person 8 (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means 9 of furthering that compelling governmental interest.” 42 U.S.C. § 2000cc-1(a). For a RLUIPA 10 claim, the plaintiff-prisoner must show that the government has imposed a substantial burden on 11 his religious exercise. A “‘substantial burden’ on ‘religious exercise’ must impose a significantly 12 great restriction or onus upon such exercise.’” San Jose Christian College v. Morgan Hill, 360 13 F.3d 1024, 1034 (9th Cir. 2004). 14 Money damages are not available under RLUIPA against the state or state officials sued 15 in their official capacities, Sossamon v. Texas, 563 U.S. 277 , 279, 131 S.Ct. 1651 , 1655 (2011), 16 and RLUIPA does not contemplate liability of government employees in their individual 17 capacity. Wood v. Yordy, 753 F.3d 899, 904 (9th Cir. 2014). Thus, a RLUIPA claim may 18 proceed only for declaratory or injunctive relief against defendants acting within their official 19 capacities. 20 Plaintiff alleges that the Culinary Staff (defendants Anguiano, Chapas, Lucero, Marquez, 21 Cruz, and Moosebaur), and Defendant Paez (dining hall officer), knowingly provided him with 22 spoiled and non-Kosher foods, refused to replace meals that could not be eaten, replaced foods 23 in Kosher meals with non-Kosher foods, contaminated Kosher foods with dirty gloves, refused 24 to correct subordinates, and allowed for theft from Kosher meals. 25 The court finds that Plaintiff has stated cognizable RLUIPA claims against Warden 26 Raythel Fisher, Jr., Dining Hall Officer Paez, and Culinary Staff Members Anguiano, Chapas, 27 Lucero, Marquez, Cruz, and Moosebaur, in their official capacities, for knowingly providing 28 spoiled and non-Kosher foods, refusing to replace meals that cannot be eaten, contaminating 1 Kosher foods with dirty gloves, refusing to correct actions of subordinates, and allowing for theft 2 of items from Kosher meals. 3 C. First Amendment Right to Free Exercise of Religion 4 A person asserting a free exercise claim must show that the government action in question 5 substantially burdens the person’s practice of his/her religion. Vaughn v. Wegman, No. 6 115CV01902LJOJLTPC, 2019 WL 426142 , at *4 (E.D. Cal. Feb. 4, 2019), report and 7 recommendation adopted, No. 115CV01902LJOJLTPC, 2019 WL 10302261 (E.D. Cal. Mar. 12, 8 2019), aff’d, 804 F. App’x 796 (9th Cir. 2020) (citing Jones v. Williams, 791 F.3d 1023 , 1031 9 (9th Cir. 2015) citing Graham v. C.I.R., 822 F.2d 844 , 851 (9th Cir. 1987), aff’d sub 10 nom. Hernandez v. C.I.R., 490 U.S. 680, 699 , 109 S.Ct. 2136 , 104 L.Ed.2d 766 (1989)). “A 11 substantial burden . . . place[s] more than an inconvenience on religious exercise; it must have a 12 tendency to coerce individuals into acting contrary to their religious beliefs or exert substantial 13 pressure on an adherent to modify his behavior and to violate his beliefs.” Id. (citing Ohno v. 14 Yasuma, 723 F.3d 984, 1011 (9th Cir. 2013) (quoting Guru Nanak Sikh Soc’y of Yuba City v. 15 Cnty. of Sutter, 456 F.3d 978, 988 (9th Cir. 2006) (internal quotation marks and alterations 16 omitted)). 17 However, “[l]awful incarceration brings about the necessary withdrawal or limitation of 18 many privileges and rights, a retraction justified by the considerations underlying our penal 19 system.” Id. (quoting Price v. Johnston, 334 U.S. 266, 285 (1948)). “To ensure that courts afford 20 appropriate deference to prison officials, . . prison regulations alleged to infringe constitutional 21 rights are judged under a ‘reasonableness’ test less restrictive than that ordinarily applied to 22 alleged infringements of fundamental constitutional rights.” O’Lone v. Estate of Shabazz, 482 23 U.S. 342, 349 (1987). A prison regulation may therefore impinge upon an inmate’s right to 24 exercise his religion if the regulation is “reasonably related to legitimate penological interests.” 25 Shakur v. Schriro, 514 F.3d 878, 884 (9th Cir. 2008) (citations omitted). Thus, prisons may 26 lawfully restrict religious activities for security purposes and other legitimate penological 27 reasons. Turner v. Safley, 482 U.S. 78 , 89–90 (1987); Pierce v. County of Orange, 526 F.3d 28 1190, 1209 (9th Cir. 2008). Furthermore, the Supreme Court has held that generally-applicable 1 laws that incidentally burden a particular religion’s practices do not violate the First Amendment. 2 Employment Div. v. Smith, 494 U.S. 872, 878 (1990). 3 De minimis or minor burdens on the free exercise of religion are not of a constitutional 4 dimension, even if the belief upon which the exercise is based is sincerely held and rooted in 5 religious belief. See e.g., Rapier v. Harris, 172 F.3d 999 , 1006 n. 4 (7th Cir. 1999) (the 6 unavailability of a non-pork tray for inmate at 3 meals out of 810 does not constitute more than 7 a de minimis burden on inmate’s free exercise of religion). 8 Plaintiff alleges that the actions of Defendants prevented him from eating nutritious 9 Kosher meals on a daily basis for an extended number of months. When Plaintiff complained to 10 Defendants, making them aware of the fact that interference with Plaintiff’s Kosher diet was 11 preventing him from practicing his religious beliefs, Defendants persisted in their acts and 12 omissions. 13 The court finds that Plaintiff has stated cognizable First Amendment Free Exercise claims 14 against Warden Raythel Fisher, Jr., Dining Hall Officer Paez, and Culinary Staff Members 15 Anguiano, Chapas, Lucero, Marquez, Cruz, and Moosebaur, in their individual capacities. 16 D. Adverse Conditions of Confinement – Eighth Amendment 17 The Eighth Amendment protects prisoners from inhumane methods of punishment and 18 from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 19 2006). Extreme deprivations are required to make out a conditions of confinement claim. 20 Hudson v. McMillian, 503 U.S. 1, 9 , 112 S.Ct. 995 (1992) (citations and quotations omitted). A 21 prisoner’s claim does not rise to the level of an Eighth Amendment violation unless (1) “the 22 prison official deprived the prisoner of the ‘minimal civilized measure of life’s necessities,’” and 23 (2) “the prison official ‘acted with deliberate indifference in doing so.’” Toguchi v. Chung, 391 24 F.3d 1051, 1057 (9th Cir. 2004) (quoting Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) 25 (citation omitted)). In order to state a claim for violation of the Eighth Amendment, the plaintiff 26 must allege facts sufficient to support a claim that prison officials knew of and disregarded a 27 substantial risk of serious harm to the plaintiff. E.g., Farmer v. Brennan, 511 U.S. 825, 847 , 114 28 S.Ct. 1970 (1994); Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). The circumstances, 1 nature, and duration of the deprivations are critical in determining whether the conditions 2 complained of are grave enough to form the basis of a viable Eighth Amendment claim. Johnson 3 v. Lewis, 217 F.3d 726 , 731 (9th Cir. 2006). “[R]outine discomfort inherent in the prison setting” 4 does not rise to the level of a constitutional violation. Id. at 731. 5 The state is obligated to provide “‘nutritionally adequate food that is prepared and served 6 under conditions which do not present an immediate danger to the health and well-being of the 7 inmates who consume it,’” and “the state health code, while not establishing ‘constitutional 8 minima,’ is relevant in making a finding regarding the constitutionality of existing conditions.” 9 Jackson v. Walker, 2009 WL 1743639 , at *8 (E.D. Cal. 2009) (citing Somers v. Thurman, 109 10 F.3d 614, 623 (9th Cir. 1997)); also see Foster v. Runnels, 554 F.3d 807, 812-813 (9th Cir. 2009); 11 Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986) (prison officials must provide 12 prisoners with “food, clothing, shelter, sanitation, medical care, and personal safety”). 13 However, the Eighth Amendment does not require that the food provided to Plaintiff be 14 tasty and the court does not read Ninth Circuit precedent to require jail officials to provide food 15 that is optimally nutritious. See LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. 1993) (“The 16 Eighth Amendment requires only that prisoners receive food that is adequate to maintain health; 17 it need not be tasty or aesthetically pleasing.”) 18 “The fact that the food occasionally contains foreign objects or sometimes is served cold, 19 while unpleasant, does not amount to a constitutional deprivation.” Id.. “The occasional 20 presence of a rodent is insufficient to establish the objective component of an Eighth Amendment 21 claim, which requires that a deprivation be sufficiently serious,” Jackson, 2009 WL 1743639 at 22 *8. However, “a lack of sanitation that is severe or prolonged can constitute an infliction of pain 23 within the meaning of the Eighth Amendment.” Anderson v. Cnty. of Kern, 45 F.3d 1310 , 1314 24 (9th Cir. 1995); see also Johnson, 217 F.3d at 731-32; Hoptowit v. Spellman, 753 F.2d 779 , 783 25 (9th Cir. 1985). Plaintiff alleges that when Defendants served him with spoiled, contaminated, 26 or non-Kosher meals that Plaintiff could not eat, Plaintiff was starved on that day, and the days 27 of starvation were multiplied every time Defendants served him with spoiled, contaminated, or 28 non-Kosher foods. 1 The court finds that Plaintiff states Eighth Amendment conditions of confinement claims 2 against Warden Raythel Fisher, Dining Hall Officer Paez, and Culinary Staff Members 3 Anguiano, Chapas, Lucero, Marquez, Cruz, and Moosebaur. 4 E. Retaliation – First Amendment 5 “Prisoners have a First Amendment right to file grievances [and lawsuits] against prison 6 officials and to be free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108 , 1114 7 (9th Cir. 2012) (citing Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). “Within the 8 prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An 9 assertion that a state actor took some adverse action against an inmate (2) because of (3) that 10 prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First 11 Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.” 12 Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). To state a cognizable retaliation 13 claim, Plaintiff must establish a nexus between the retaliatory act and the protected activity. 14 Grenning v. Klemme, 34 F.Supp.3d 1144, 1153 (E.D. Wash. 2014). 15 Plaintiff alleges that he complained to Defendant Moosebaur when items were missing 16 from the Kosher meals and Moosebaur responded, “Too bad.” Plaintiff complained that the 17 inmates serving Kosher meals were not wearing proper gloves and defendant Moosebaur 18 informed those inmates of Plaintiff’s complaints. Defendant Moosebaur encouraged the inmate 19 food servers to wear their gloves while urinating and to use those same gloves to serve Plaintiff 20 his kosher meal. 21 Plaintiff alleges that he filed grievances and defendant Moosebaur took the above adverse 22 actions in retaliation, however Plaintiff has not established a nexus between any of Plaintiff’s 23 written grievances and Defendant Moosebaur’s conduct. Notwithstanding, the court does find 24 that Plaintiff states a cognizable claim for retaliation against Defendant Moosebaur when 25 Moosebaur allegedly encouraged other inmates to both berate Plaintiff and contaminate the food 26 served to him for Plaintiff complaining to Defendant about the conditions of the Kosher foods 27 being served. Therefore, Plaintiff states a retaliation claim against Defendant Moosebaur. 28 /// 1 F. Failure to Protect – Eighth Amendment 2 1. Unsanitary Food 3 The Eighth Amendment protects prisoners from inhumane methods of punishment and 4 from inhumane conditions of confinement. Morgan, 465 F.3d at 1045 . Although prison 5 conditions may be restrictive and harsh, prison officials must provide prisoners with food, 6 clothing, shelter, sanitation, medical care, and personal safety. Farmer, 511 U.S. at 832 -33 7 (internal citations and quotations omitted). “Preventing disease and protecting the health of 8 inmates are legitimate penological goals.” McClure v. Tucker, 276 Fed. Appx. 574, 575 (9th 9 Cir. 2008). Robles v. Coughlin, 725 F.2d 12 , 15 (2nd Cir. 1983) (per curiam) (The Eighth 10 Amendment requires prisoners to be provided with “nutritionally adequate food that is prepared 11 and served under conditions which do not present an immediate danger to the health and 12 wellbeing of the inmates who consume it.”). 13 To establish a violation of this duty, the prisoner must establish that prison officials were 14 “deliberately indifferent to a serious threat to the inmate’s safety.” Farmer, 511 U.S. at 834 . The 15 question under the Eighth Amendment is whether prison officials, acting with deliberate 16 indifference, exposed a prisoner to a sufficiently “substantial risk of serious harm” to his future 17 health. Id. at 843 (citing Helling v. McKinney, 509 U.S. 25, 35 (1993)). The Supreme Court has 18 explained that “deliberate indifference entails something more than mere negligence . . . [but] 19 something less than acts or omissions for the very purpose of causing harm or with the knowledge 20 that harm will result.” Id. at 835. The Court defined this “deliberate indifference” standard as 21 equal to “recklessness,” in which “a person disregards a risk of harm of which he is aware.” Id. 22 at 836-37. 23 The deliberate indifference standard involves both an objective and a subjective prong. 24 First, the alleged deprivation must be, in objective terms, “sufficiently serious.” Id. at 834. 25 Second, subjectively, the prison official must “know of and disregard an excessive risk to inmate 26 health or safety.” Id. at 837; Anderson, 45 F.3d at 1313 . To prove knowledge of the risk, 27 however, the prisoner may rely on circumstantial evidence; in fact, the very obviousness of the 28 /// 1 risk may be sufficient to establish knowledge. Farmer, 511 U.S. at 842 ; Wallis v. Baldwin, 70 2 F.3d 1074 , 1077 (9th Cir. 1995). 3 The court finds that Plaintiff states cognizable claims against Defendants Raythel Fisher, 4 Jr. and Moosebaur for failure to protect him because Defendant Moosebaur purposely served 5 Plaintiff rotten meat and instructed him to eat it while Moosebaur watched, and Defendant Fisher 6 created policies and allowed practices that denied Plaintiff and other inmates on the Kosher Diet 7 Program the ability to eat sanitary food. 8 2. Harm by other Inmates 9 The Eighth Amendment requires prison officials to protect inmates from violence. 10 Farmer, 511 U.S. at 833 ; Wilk v. Neven, 956 F.3d 1143, 1147 (9th Cir. 2020). The Ninth Circuit 11 has held that telling inmates that someone is a “snitch” with the intent of having an inmate killed 12 by other inmates could state a claim for a violation of the inmate’s right to be protected from 13 violence while in custody. Valandingham v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 1989) 14 (upholding a failure to protect claim where Plaintiff “alleged that because he had petitioned 15 prison and government officials for redress of his grievances, [Defendants] had conspired to label 16 him a ‘snitch’ and thereby subject him to retaliation by inmates”). But liability attaches only if 17 an official is aware that an inmate faces a substantial risk of serious harm and disregards that risk 18 by failing to take reasonable measures to address it. See Farmer, 511 U.S. at 834, 837 , 844–45, 19 847; Wilk, 956 F.3d at 1147 ; Labatad v. Corrs. Corp. of Am., 714 F.3d 1155, 1160 (9th Cir. 20 2013); see also Cortez v. Skol, 776 F.3d 1046, 1050 (9th Cir. 2015). 21 Not every injury that a prisoner sustains creates a constitutional violation. Wilk, 956 F.3d 22 at 1147. Put another way, not every injury that a prisoner suffers at the hands of another inmate 23 establishes liability for prison officials who are responsible for prisoners’ safety. Id. An inmate 24 bringing a claim under the Eighth Amendment must show a deprivation that is “sufficiently 25 serious.” Farmer, 511 U.S. at 834 ; Lemire v. California Dep’t of Corrs. & Rehabilitation, 726 26 F.3d 1062 , 1074–1075. (9th Cir. 2013). “A deprivation is sufficiently serious when the official’s 27 act or omission results in the denial of the minimal civilized measure of life’s necessities.” Id. 28 at 1074 (quoting Foster, 554 F.3d at 812 ). In the failure to protect context, an inmate must show 1 that they are incarcerated under conditions posing a substantial risk of serious harm. See Farmer, [2] 511 U.S. at 834 ; Lemire, 76 F.3d at 1075. 3 Furthermore, a prison official violates an inmate’s Eighth Amendment rights only when 4 that official is “deliberately indifferent.” Id. at 834–37; Lemire, 726 F.3d at 1074; Labatad, 714 5 F.3d at 1160. A prison official must have had a “sufficiently culpable state of mind.” Id. at 834. 6 An official must be aware of facts from which they can draw the inference that a substantial risk 7 of serious harm exists and must also draw the inference. Id. at 837; Cortez, 776 F.3d at 1050 ; 8 Labatad, 714 F.3d at 1160 . The question of deliberate indifference focuses on a defendant’s 9 actual mental attitude. Farmer, 511 U.S. at 835–39. Deliberate indifference exists if a defendant 10 subjectively “knows of and disregards an excessive risk to inmate health and safety.” Id. at 837– 11 39; Lemire, 736 F.3d at 1074; Toguchi, 391 F.3d at 1057. An official need not, however. have 12 intended that harm befall an inmate. Id. at 842; Lemire, 726 F.3d at 1074. It is enough that an 13 official acted or failed to act even though the official knew of a substantial risk of serious harm. 14 Id.; Lemire, 726 F.3d at 1074. A factfinder may infer subjective awareness from circumstantial 15 evidence. Id.; Wilk, 956 F.3d at 1147 . Too, a factfinder may determine that a “prison official 16 knew of a substantial risk from the very fact that the risk was obvious.” Id. 17 The court finds that Plaintiff fails to state a claim against defendant Moosebaur for 18 placing him in danger of harm from other inmates. Although defendant Moosebaur allegedly 19 insinuated that Plaintiff was a snitch by informing the inmate kitchen workers that Plaintiff had 20 complained about the deficiencies in the Kosher food services, and by encouraged the inmate 21 food servers to wear their gloves while urinating and to use those same gloves to serve Plaintiff 22 his kosher meal, neither of these actions demonstrates that defendant Moosebaur created a 23 substantial risk of serious harm to Plaintiff by other inmates. Thus, Plaintiff fails to state a claim 24 against Defendant Moosebaur, or any other defendant, for failure to protect him from harm by 25 other inmates. 26 /// 27 /// 28 /// 1 V. RECOMMENDATIONS AND CONCLUSION 2 For the reasons set forth above, the court RECOMMENDS that: 3 1. This action proceed against Defendants Warden Raythel Fisher, Jr., Officer Paez, 4 and Culinary Staff Members Anguiano, Chapas, Lucero, Marquez, Cruz, and 5 Moosebaur for violation of RLUIPA, violation of the First Amendment Free 6 Exercise Clause, and adverse conditions of confinement in violation of the Eighth 7 Amendment; 8 2. This action also proceed against Defendants Warden Raythel Fisher, Jr., and 9 Moosebaur for failure to protect Plaintiff from harm to his health from the Kosher 10 foods served to him; 11 3. This action also proceed against Defendant Moosebaur for retaliation in violation 12 of the First Amendment; and 13 4. All other claims and defendants be dismissed from this action based on Plaintiff’s 14 failure to state a claim. 15 These findings and recommendations are submitted to the United States District Judge 16 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636 (b)(l). Within fourteen 17 (14) days after the date of service of these findings and recommendations, Plaintiff may file 18 written objections with the court. Such a document should be captioned "Objections to 19 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 20 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 21 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391 , 1394 22 (9th Cir. 1991)). [23] IT IS SO ORDERED. [24] 25 Dated: July 12, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE