Ruiz v. Nevada Department of Corrections

1 ||} AARON D. FORD Attorney General || DOUGLAS R. RANDS, Bar No. 3572 Senior Deputy Attorney General || State of Nevada N. Carson Street || Carson City, Nevada 89701-4717 Tel: (775) 684-1150 E-mail: [email protected] Attorneys for Defendants || Maribelle Henry, Colette Stammerjohn, Harold Wickham, Renee Baker, || Charles Daniels, and Tara Carpenter 9 UNITED STATES DISTRICT COURT 10 DISTRICT OF NEVADA |} CARLOS RUIZ, Case No. 3:18-cv-00206-RCJ-CSD 12 Plaintiff, || vs. PROPOSED JOINT PRETRIAL ORDER || NDOC, et al., 15 Defendants.

16 Following pretrial proceedings in this case, 17 IT IS ORDERED: 18 NATURE OF ACTION AND CONTENTIONS OF THE PARTIES 19 A. NATURE OF ACTION 20 This is a pro se prisoner civil rights action brought by inmate Carlos Ruiz (Plaintiff), asserting || claims arising under 42 U.S.C. § 1983.

22 Plaintiff filed a First Amended Complaint (FAC); two Counts survived screening. Each count ||has allegations related to the First Amendment: (1) free exercise of religion, and (2) Religious Land || Use and Institutionalized Persons Act (RLUIPA).

25 This Court granted summary judgment to the Defendants, Cegavske, Ford, Sisolak and ||Dzurenda. The Court allowed the other First Amendment Counts to proceed against the remaining 27 Defendants. Therefore, this matter is proceeding on Plaintiff's Count I, where he claims his right to 2g || worship on the actual holy days of his religion was infringed and that he was denied access to grape ||juice and matzo for worship. It is also proceeding on his Count II claim that his access to an organic || kosher menu was denied by the Defendants, in violation of his First Amendment rights. (ECF No. 82) 3 B. CONTENTIONS OF THE PARTIES 4 1. Plaintiff's Contentions 5 Plaintiff is registered as being a practitioner of “Messianic Judaism.” Plaintiff claims he has 6 a sincere member of the Messianic Judaism assembly at LCC since May 2014 and eventually ||became the facilitator-leader. (ECF No. 6 at 8) On January 18, 2018, Carpenter issued a memo to all |linmates, effective February 1, 2018, stating changes would occur in conjunction with administrative ||regulation (“AR”) 810. (Id. at 10) The memo stated that all holy days would be scheduled in 10 conjunction with the regularly scheduled religious services’ time slots and that culinary would no 11 longer provide any religion with anything other than what was required by AR 810 and/or the religious || practices’ manual. (Id. at 10) 13 Plaintiff alleges Defendants, through AR 810, deny Messianic Judaism practitioners ftom || keeping their appointed holy days on the days they occur and refuse to provide grape juice and matzah || for Messianic Sabbath services and high Sabbaths per AR 810. (ECF No. 6 at 10) In the FAC, Plaintiff || provides the religious scripture mandating the holy days. (Id at 11).

17 Prior to Carpenter’s memo, Plaintiff alleges Messianics were permitted to keep their holy days 18 the actual dates they occurred, except for new moons because they were not listed in the faith 19 overview chart. (ECF No. 6 at 12). By failing to observe holy days on their actual dates, Plaintiff || alleges Messianics commit sin which leads to death. (Id. at 13) 21 Allegations regarding Count II: On March 27, 2017, Plaintiff submitted an informal grievance ||challenging the common fare/religious diet as not being kosher as required by Messianic scripture.

23 ||(ECF No. 6 at 16) Plaintiff also requested to eat his meals in his cell because the chow hall was || “filthy.” (Id.) According to Plaintiff, Henry responded and told Plaintiff to contact Rabbi Rosskamm.

25 at 16) Defendant Stammerjohn denied the grievance and stated that the food was kosher, and the || kitchen was cleaned. (Id. at 17) Plaintiff appealed and argued that there was no cleaning between units, ||the kitchen was unsanitary, and that it was unkosher to eat in the chow hall. Baker responded that || everything was kosher by rabbinical authority, Rabbi Rosskamm. (Id. at 17) 1 On June 25, 2017, Plaintiff kited Henry about the common fare menu, holy day foods, limited 2 on regular meals, compelling one to become a vegetarian, serving cold foods on the Sabbath, targeting of inmates to strict practices, non-kosher meals, cleanliness, and insufficient calories. Henry || denied the grievance. (ECF No. 6 at 17) On July 5, 2017, Plaintiff appealed and stated that he talked to 5 Rabbi Rosskamm and that they disagreed on what was kosher. (Id.) Plaintiff notes that the Rabbi || was not Plaintiffs recognized religious leader and can’t decide what is kosher for Plaintiff. (Id.) 7 Plaintiff alleges that Messianic scripture requires practitioners to eat organic fruits and || vegetables and meat, and the general population main line inmates received special holiday foods for || New Years, Fourth of July, Thanksgiving, Christmas, and Easter but Messianics only received special || foods on Passover. (ECF No. 6 at 20) 11 2. Defendants’ Contentions 12 Defendants contend that the evidence does not support Plaintiff's allegations. Defendants || incorporate any Affirmative Defenses from the Answer as it pertains to Defendants. Defendants deny || that Plaintiffs constitutional rights have been violated.

15 C. RELIEF SOUGHT 16 Plaintiff seeks declaratory, compensatory and punitive damages.

17 || TL. STATEMENT OF JURISDICTION 18 This is a civil action commenced under 42 U.S.C. § 1983. This Court has jurisdiction pursuant || to 28 U.S.C. § 1331.

20 UNCONTESTED FACTS ADMITTED BY THE PARTIES WHICH REQUIRE NO 21 PROOF 22 1. Mr. Ruiz, in this matter has filed a Complaint alleging violations of his || constitutional rights under the Eighth Amendment. (ECF No.9).

24 2 At all times relevant in the Complaint, Plaintiff was in lawful custody of the Nevada || Department of Corrections (““NDOC”) housed at Lovelock Correctional Center (LCC) (ECF No. 9-1 at |} 2).

27 3. Defendant Maribelle Henry was previously employed by the NDOC as the culinary || manager.

1 4, Defendant Collette Stammerjohn is employed by the NDOC as a Correctional Casework || Specialist II and was a grievance responder.

3 5. Defendant Renee Baker was previously employed by the NDOC as the Warden of LCC.

4 6. Defendant Harold Wickham was previously employed by the NDOC as a Deputy || Director of the NDOC.

6 a. Defendant Tara Carpenter was previously employed by the NDOC as an Associate || Warden at LCC.

8 8. Defendant Charles Daniels is currently the Director of the NDOC.

9 9. Plaintiff claims he requires an organic kosher diet. (ECF No. 6) 10 10. | The diet served at LCC complies with the reasonable guidelines for a correctional || setting.

12 11. During the time in question, Plaintiff has purchased items from the canteen for personal || use that are not Kosher, i.e. summer sausage, shrimp Ramen, Cheetos. Plaintiff also was able to make || substantial purchases from the canteen.

15 12. The common fare menu at LCC is certified Kosher, by a Rabbi.

16 13. Plaintiff is not currently on the common fare diet, as he was removed for refusing to sign || his common fare agreement.

18 14. Plaintiff has not made requests for special accommodation for special religious services ||IV. FACTS UNADMITTED THAT WILL NOT BE CONTESTED 20 The following facts, though not admitted, will not be contested at trial by evidence to the || contrary: NONE || V. CONTESTED ISSUES OF FACT TO BE TRIED AND DETERMINED UPON TRIAL 23 A. PLAINTIFF’S CONTESTED FACTS 24 See Complaint.

1 || B. DEFENDANTS’ CONTESTED FACTS 2 1. Whether Plaintiff has met his burden of producing evidence supporting the facts set || forth above, i.e. whether he can prove that the individual defendants violated his First Amendment or || RLUIPA rights?

5 2. Whether any form of damages is available to Plaintiff for any alleged failures?

6 ||VI. CONTESTED ISSUES OF LAW TO BE TRIED AND DETERMINED UPON TRIAL 7 A. PLAINTIFF 8 1. Whether or not the claim against Defendants, violates Plaintiff's Constitutional rights, || and do the facts warrant a damage award?

10 B. DEFENDANT 11 1. Did Defendant individually violate Plaintiff's constitutional rights?

12 2. Did Mr. Ruiz prove the elements of a violation of his First Amendment rights?

13 ||“Convicted prisoners do not forfeit all constitutional protections by reason of their conviction and 14 confinement in prison.” Bell v. Wolfish, 441 U.S. 520, 545 (1979). However, “lawful incarceration || brings about the necessary withdrawal or limitation of many privileges and rights.” O’Lone v. Estate of || Shabazz, 482 U.S. 342, 348 (1987) (quoting Price v. Johnston, 334 U.S. 266, 285 (1948)). While || prisoners retain their First Amendment right to free exercise of religion, it is well recognized that ||“[ljawful incarceration brings about the necessary withdrawal or limitation of many privileges and || rights, a retraction justified by the considerations underlying our penal system.” Shakur v. Schriro, 514 || F.3d 878, 884 (9th Cir. 2008) (internal quotation marks and citations omitted). A prisoner’s right to || free exercise of his or her religion is necessarily limited by incarceration, and may be curtailed to || achieve legitimate correctional goals or to maintain prison security. McElyea v. Babbitt, 833 F.2d 196, ||197 (9th Cir. 1987) (per curiam). To implicate the Free Exercise Clause, a belief must be “sincerely 24 and “rooted in religious belief.” See Shakur, 514 F.3d at 885 (holding that the sincerity test set || forth in Malik v. Brown, 16 F.3d 330, 333 (9th Cir. 1994), and Callahan v. Woods, 658 F.2d 679, 683 || (9th Cir. 1981), determines the applicability of the Free Exercise Clause).

27 “(T]o merit protection under the free exercise clause of the First Amendment . . . [a] religious ||claim .. . must satisfy two basic criteria.” Callahan v. Woods, 658 F.2d 679, 683 (9th Cir. 1981).

1 || “First, the claimant’s proffered belief must be sincerely held[.]” Id. Second, “the claim must be rooted 2 religious belief, not in ‘purely secular’ philosophical concerns.” Jd. Further, in order to establish a || First Amendment violation, a prisoner must demonstrate that defendants have burdened the practice of 4 religion without any justification reasonably related to legitimate penological interests. See || Freeman v. Arpaio, 125 F.3d 732 at 737 (9" Cir. 1997), abrogated on other grounds by Shakur, 514 || F.3d at 884 (citing Turner v. Safely, 482 U.S. 78, 89 (1987)).

7 “When a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it 8 reasonably related to legitimate penological interests.” Shakur, 514 F.3d at 883-84 (quoting Turner, ||482 U.S. at 89). Under Turner, the court must balance four factors in determining whether a prison || regulation is reasonably related to legitimate penological interests. The first factor requires that, “there ||must be a ‘valid, rational connection’ between the prison regulation and the legitimate governmental ||interest put forward to justify it.’ Turner, 482 U.S. at 89. Second, the court must determine whether ||there are “alternative means of exercising the right that remain open to prison inmates.” at 90.

14 || Third, the court must consider “the impact accommodation of the asserted constitutional right will have ||on guards and other inmates, and on the allocation of prison resources generally.” Jd. Fourth, “the || absence of ready alternatives is evidence of the reasonableness of a prison regulation.” Id. 17 Plaintiff also brings his claim under RLUIPA, 42 U.S.C. § 2000cc et seq., which provides in || relevant part: 19 No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution ... even if the burden results from a rule 20 of general applicability, unless the government demonstrates that imposition of the burden on that person: (1) is in furtherance of a compelling governmental interest; and 21 (2) is the least restrictive means of furthering that compelling governmental interest.

42 U.S.C. § 2000cc-1(a).

23 “Religious exercise” is defined as “any exercise of religion, whether or not compelled by, or ||central to, a system of religious belief.” 42 U.S.C. § 2000cc-5(7)(A). “A person may assert a violation ||of [RLUIPA] as a claim or defense in a judicial proceeding and obtain appropriate relief against a || government.” 42 U.S.C. § 2000cc-2(a).

27 To establish a RLUIPA violation, the plaintiff bears the initial burden to prove that the || defendants’ conduct places a “substantial burden” on his “religious exercise.” Warsoldier v. Woodford, ||418 F.3d 989, 994 (9th Cir. 2005). Once the plaintiff establishes a substantial burden, defendants must || prove that the burden both furthers a compelling governmental interest and is the least restrictive means || of achieving that interest. Id. at 995. RLUIPA is to be construed broadly in favor of the inmate. See 42 ||U.S.C. § 2000cc-3(g) (“This chapter shall be construed in favor of a broad protection of religious || exercise, to the maximum extent permitted by the terms of this chapter and the Constitution”).

6 Although RLUIPA does not define “substantial burden,” the Ninth Circuit has stated that a ||substantial burden is one that is “‘oppressive’ to a ‘significantly great’ extent” and “a ‘substantial || burden on ‘religious exercise’ must impose a significantly great restriction or onus upon such exercise.”

9 || Warsoldier, 418 F.3d at 995 (quoting San Jose Christian Coll. v. City of Morgan Hill, 360 F.3d 1024, || 1034 (9th Cir. 2004)). The burden need not concern a religious practice that is compelled by, or central ||to, a system of religious belief, see 2000cc-5(7)(A); however, the burden must be more than an ||inconvenience. Navajo Nation v. U.S. Forest Serv., 479 F.3d 1024, 1033 (9th Cir. 2007), aff'd en bane, 13 F.3d 1058, 1068 (9th Cir. 2008) (internal quotations and citations omitted). A burden is substantial ||under RLUIPA when the state, “denies [an important benefit] because of conduct mandated by ||religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to || violate his beliefs.” Shakur v. Schriro, 514 F.3d 878, 888 (9th Cir. 2008) (quoting Thomas v. Review || Bd. of the Ind. Employment Sec. Div., 450 U.S. 707, 717-18 1981) (internal quotations omitted).

18 || Vil. EXHIBITS 19 STIPULATED EXHIBITS AS TO AUTHENTICITY AND ADMISSIBILITY 20 1. Administrative Regulation 810 21 2. Administrative Regulation 740.

22 ||B. STIPULATED EXHIBITS AS TO AUTHENTICITY BUT NOT ADMISSIBILITY 23 None.

24 PLAINTIFF’S EXHIBITS SUBJECT TO OBJECTIONS 25 1. 42 U.S.C. §2000 (RLUIPA) 26 Ds Hallelujah Scriptures 27 3. Original Grievances and other pertinent Grievances 28 4. Any and all documents to support claim(s).

1 5. Any and all documents submitted during discovery to include Dietician’s Report.

2 6. Letter(s), Document(s) from Yahshuas’ Assemblies in Yahshuas regarding proper Food || Laws.

4 7. Memo Denying Plaintiff Common Fair Diet 5 8. Memo Denying Plaintiff Pass-Over Special Food i.e. (Matsah) 6 9. Kosher Food Menu from 2010 7 10. Common Fare Diet Food Menu 2022 8 11. Mainline Food Menu || D. DEFENDANTS’ EXHIBITS SUBJECT TO OBJECTIONS 10 il. Plaintiffs Movement History Report; 11 2. Plaintiff's housing history report; 12 3, Plaintiff's Grievance file, including all relevant grievances; 13 4. Certified Judgment(s) of Conviction of Plaintiff for underlying offense (only if needed || for impeachment); 15 5. Plaintiffs Institutional File (“I-File”); 16 6. Plaintiffs NDOC Central File (“C-File”); 17 7. Law Library Logs; 18 8. Legal Mail Logs for relevant time period; 19 9. Law Library Brass Slips; 20 10. Plaintiff's Case Notes as maintained on the NDOC NOTIS system from 2014 to Present.

21 11. _ All prison logs, registers, documents, or other form of data pertaining to any and all of || Plaintiffs claims.

23 12. Plaintiffs relevant medical records and kites.

24 13. Emails relating to this issue.

25 14. | LCC Chapel Schedule.

26 15. Any and all other exhibits that may support the statements of fact and law cited herein || and to rebut Plaintiff's statements, claims, and testimony.

1 16. Any and all other exhibits that rebut witnesses that might be called to respond to claims 2 by either Plaintiff or any of his proposed witnesses; 3 DEPOSITIONS 4 i. None.

5 || VII. WITNESSES 6 A. PLAINTIFF’S WITNESSES: 7 Plaintiff wishes to reserve the right to call the following persons: 8 1. Timothy Johnson, #23766 — I/M — LCC — U-5-79-a 9 2. Brett Doyle — I/M — LCC — U-1A-20-b 10 3s Ubaldo Urbina — I/M — LCC — U-1B-12-a 11 4. Rafik Vatenpur — I/M — LCC — U-3B-17-b 12 5. Glenn Mark Turner — I/M — LCC — U-2A-46-a 13 6. George Gibbs — I/M — LCC — U-2A-48-b 14 i Inmate John Doe 1-6 to be determined.

15 B. DEFENDANT’S WITNESSES: 16 Defendants wish to reserve the right to call the following persons: 17 1. Plaintiff Carlos Ruiz, Inmate, Southern Desert Correctional Center; 18 2. Renee Baker, Defendant, c/o Douglas R. Rands, Office of Attorney General, 100 N.

19 || Carson St. Carson City, Nevada 89701-4717.

20 3. Harold Wickham, Defendant, c/o Douglas R. Rands, Office of Attorney General, 100 N.

21 Carson St. Carson City, Nevada 89701-4717.

22 4. Tara Carpenter, Defendant, c/o Douglas R. Rands, Office of Attorney General, 100 N.

23 || Carson St. Carson City, Nevada 89701-4717.

24 5. Maribelle Henry, Defendant, c/o Douglas R. Rands, Office of Attorney General, 100 N.

25 || Carson St. Carson City, Nevada 89701-4717.

26 6. Collette Stammerjohn, Defendant, c/o Douglas R. Rands, Office of Attorney General, 27 N. Carson St. Carson City, Nevada 89701-4717.

1 7. Charles Daniels, Defendant, c/o Douglas R. Rands, Office of Attorney General, 100 N.

2 || Carson St. Carson City, Nevada 89701-4717.

3 8. Scott Davis, Chaplain, c/o Douglas R. Rands, Office of Attorney General, 100 N.

4 || Carson St. Carson City, Nevada 89701-4717.

5 9, Yisroel Rosskamm, Rabbi, c/o Douglas R. Rands, Office of Attorney General, 100 N.

6 || Carson St. Carson City, Nevada 89701-4717.

7 10. Custodian(s) of Record for any exhibits identified above, c/o Douglas R. Rands, Office || of the Attorney General, 100 N. Carson Street, Carson City, NV 89701-4717, and (775) 684-1100.

9 11. Any and all rebuttal witnesses that might be called to respond to claims made by either || Plaintiff or any of his witnesses.

11 12. Any and all other witnesses that have personal knowledge supporting Defendant’s || statements of fact or law cited herein.

13 13. All witnesses identified by Plaintiff, whether or not called to testify at trial.

14 14. Chad Ventors, Chaplain, c/o Douglas R. Rands, Office of Attorney General, 100 N.

15 || Carson St. Carson City, Nevada 89701-4717.

16 15. | Nethanjah Childers, Associate Warden, c/o Douglas R. Rands, Office of Attorney || General, 100 N. Carson St. Carson City, Nevada 89701-4717.

18 Plaintiff and Defendants reserve the right to interpose objections to the calling of any named || witness listed above prior to or at trial.

20 AVAILABLE TRIAL DATES 21 Plaintiff and Defendants’ Counsel expressly understand that the Clerk shall set the trial of this || matter at the convenience of the Court's calendar. A jury has been requested.

1 The following are three weeks in which both parties are available: 2 February 20, 2023 3 February 20, 2023 4 March 13, 2023 5 DATED this 23 day of May, 2022.

6 AARON D. FORD 2 Attorney General % 7 “i 4 J6b> GAs □□ By: Cattos Ruiz #94968 DOUGLAS R.RANDS, Bar No. 3 9 Plaintiff” Senior Deputy Attorney General 10 Attorneys for Defendants 12 . . . .

IT IS ORDERED this case is set for jury trial on the stacked calendar on 13 March 13, 2023 at 8:30 AM in Reno Courtroom 3 before Judge Robert C. Jones.

Calendar Call is set for Tuesday, February 21, 2023 at 10:00 AM in Reno 14 Courtroom 3 before Judge Robert C. Jones.

DATED: June 29th, 2022 21 ROBERT C. JONES/ UNITED STATES DISTRICT JUDGE |