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Maloney v. Ryan

United States District Court, Ninth Circuit

July 31, 2013

Erik Scott Maloney, Plaintiff,
v.
Charles L. Ryan, et al., Defendants.

ORDER

ROBERT C. BROOMFIELD, Senior District Judge.

Introduction

Plaintiff pro se Erik Scott Maloney is a Muslim[1] confined in the Arizona State Prison Complex-Florence in Florence, Arizona. The Muslim holy month of Ramadan is observed by prayer and fasting during daylight hours. Meals are taken pre-dawn and after sunset. The pre-dawn meal is referred to, as Suhoor or Sahur, and the meal eaten after sunset as Iftar. This year Ramadan began "on or about July 9, 2013" and concludes on or about "August 7, 2013[, ]" according to the plaintiff. Mot. (Doc. 16) at 1:24-25.[2]

In his second amended complaint ("SAC"), the plaintiff alleges that just prior to Ramadan 2012, defendants created, implemented or enforced a policy which inhibited the exercise of his religion by knowingly setting the time for service of breakfast at 5:00 a.m., after dawn, the religiously mandated time for fasting had begun. As a result of this alleged policy, plaintiff Maloney claims that during Ramadan 2012, he was not provided with a nutritionally adequate diet, and he was not allowed to engage in the exercise of "Sahur."[3] SAC (Doc. 17) at 11, ¶ 3.

Presently before the court is plaintiff's renewed motion for a temporary restraining order "and/or" a preliminary injunction.[4] Mot. (Doc. 16) at 1:13. Based upon "newly developed facts[, ]" and focusing solely upon Ramadan 2013, plaintiff Maloney is seeking injunctive relief requiring the defendants to provide him with two hot meals per day, to fruits and vegetables. Declaration of Erik Scott Maloney (July 9, 2013) (Doc. 16) at 3:24, ¶ 2; 6:1-5, ¶ 17. Plaintiff also broadly seeks an injunction "requiring defendants to allow for the religious exercise of Sahur. Id. at 6:7-8, ¶ 18. As plaintiff describes it, Sahur encompasses being "given the opportunity to begin the days [sic] Fast with the group prayer[.]" Mot. (Doc. 16) at 10:26-11:1.

Defendants Charles L. Ryan, the Director of the Arizona Department of Corrections ("ADC"), and Michael Linderman, ADC's Administrator of Pastoral Activities, [5] oppose this motion arguing that they "are in compliance with their constitutional obligations[]" because the plaintiff is receiving nutritionally adequate meals during time frames that allow for full compliance with Ramadan. Resp. (Doc. 22) at 7:18-19. Defendants did not address plaintiff's motion as it pertains to Sahur.

Background [6]

Factually, plaintiff's motion differs markedly from his SAC. The primary, although not the only, difference is that the SAC pertains to what transpired just prior to and during Ramadan 2012, whereas the pending motion concerns Ramadan 2013.

Count I of the SAC alleges violations of plaintiff's First Amendment rights based upon a policy supposedly implemented just prior to Ramadan in July, 2012. Allegedly, that policy set the time for service of breakfast at 5:00 a.m., after dawn, the religiously mandated time for fasting had begun. As a result, plaintiff claims that during Ramadan 2012 he was forced to choose between eating breakfast or violating the tenets of his religious beliefs.

That is not the situation this year, however. Currently, ADC is serving Muslim practitioners, such as plaintiff Maloney, with "a breakfast sack meal during the evening meal prior to breakfast, so inmates can eat at whatever time they choose in the morning." Declaration of Michael Linderman (June 28, 2013) (Doc. 22-1) at 3:11-13, ¶ 5 (emphasis added). Plaintiff Maloney readily acknowledges this, pointing out that the defendants have "abandoned" their 2012 Ramadan policy of providing breakfast at 5:00 a.m. Mot. (Doc. 16) at 8:1-3; see also Reply (Doc. 24) at 8:4 ("[P]laintiff now receives Food inorder [sic] to start his Fast.") Accordingly, as the court and the defendants are construing this motion, plaintiff Maloney is not seeking any preliminary injunctive relief as to count I. In fact, he could not seek such relief because this claim is moot insofar as Ramadan 2013 is concerned, as defendants are no longer enforcing the alleged policy during Ramadan 2012 of serving breakfast to Muslim practitioners at 5:00 a.m. Thus, because there is no evidence that plaintiff is likely to suffer future irreparable harm during this Ramadan with respect to the time when breakfast is served, he is not entitled to preliminary injunctive relief as to that claim. See Villegas v. Schulteis, 2010 WL 3341888, at *3 (E.D.Cal. Aug. 25, 2010) (declining to issue a preliminary injunction because "[t]he purpose of [such relief] is to prevent future irreparable harm, not to remedy past harm[, ] [and] [the] Plaintiff... has failed to identify any specific threat of future irreparable harm).

Count II of the SAC alleges that plaintiff has been subjected to cruel and unusual punishment in violation of the Eighth Amendment and denied his Fourteenth Amendment rights to due process and equal protection. The basis for this count is that during Ramadan 2012, the defendants, among other things, knowingly provided plaintiff with "a nutritionally inadequate diet[, ]" by providing him with only two meal portions a day instead of three. SAC (Doc. 17) at 8:3-4, ¶ 3. Prior to Ramadan 2013, however, on June 21, 2013, Muslim practitioners were advised that along with a "mega sack' for breakfast[, ]" they "would be given a lunch sack for dinner, " Monday through Friday. Maloney Decl'n (Doc. 16) at 4:15-17. On Saturdays and Sundays, Muslim practitioners would receive a hot meal for dinner, as well as the "mega sack'... breakfast." Id. at 4:19-20. Despite that change, the plaintiff claims he is "still be[ing] deprived" of adequate nutrition during Ramadan because he and other Muslim practitioners are "only receiv[ing]... 8 hot meals in 30 days, while receiving 54[7] cold meals in a bag which are void of any fruits or vegitables [sic]." Id. at 4:21-25 (footnote added).

Count III of the SAC alleges a Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000-cc, violation against defendants Ryan and Linderman. This count, too, is premised upon the alleged ADC policy of serving breakfast after dawn during Ramadan 2012. Plaintiff Maloney alleges that that supposed policy "effectively rendered the religious exercise of Sahur impracticable" because he had to choose "between ad[e]quate nutrition and observance of the tenets of his Faith." Id. at 12:5-7. For present purposes, however, the plaintiff has shifted his focus away from that nutrition argument. Instead, he asserts that the "[d]efendants are still not allowing for the obligatory religious exercise of Sahur, because allegedly they are not allowing him to "begin[] [his] Fast with a congregational prayer[, ]" Maloney Decl'n (Doc. 16) at 5:5, ¶ 9, which he maintains is an "integral aspect[] of Sahur[.]" Reply (Doc. 24) at 8:16; see also Mot. (Doc. 16) at 10:26-11:1 ("Muslim practitioner[]s should be given the opp[o]rtunity to begin the day[s] Fast with the group prayer, in accordance with the religious exercise of Sahur[.]")

Discussion

Preliminary Injunction

I. Governing Legal Standard

A preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Lopez v. Brewer , 680 F.3d 1068, 1072 (9th Cir. 2012) (quoting Mazurek v. Armstrong , 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (per curiam) (citation omitted)) (emphasis added by Mazurek Court); see also Winter v. Natural Res. Def. Council, Inc. , 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (citation omitted) ("A preliminary injunction is an extraordinary remedy never awarded as a matter of right.") A plaintiff seeking a preliminary injunction must show:

[1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.

Shell Offshore, Inc. v. Greenpeace, Inc. , 709 F.3d 1281, 1289 (9th Cir. March 12, 2013) (quoting Winter , 555 U.S. at 20, 129 S.Ct. 365), rehearing en banc denied, ___ F.3d ___, 2013 WL 3456673 (9th Cir. July 10, 2013). "But if a plaintiff can only show that there are serious questions going to the merits' - a lesser showing than likelihood of success on the merits - then a preliminary injunction may still issue if the balance of hardships tips sharply in the plaintiff's favor, ' and the other two Winter factors are satisfied." Id. at 1291 (quoting Alliance for the Wild Rockies v. Cottrell , 632 F.3d 1127, 1135 (9th Cir. 2011) (emphasis added by Shell Offshore Court). Under this serious questions variant of the Winter test, "[t]he elements... must be balanced, so that a stronger showing of one element may offset a weaker showing of another." Lopez , 680 F.3d at 1072. Regardless of which standard applies, the movant "has the burden of proof on each element of the test." See Nance v. Miser, 2012 WL 6674404, at *1 (D.Ariz. Dec. 20, 2012) (citing Environmental Council of Sacramento v. Slater , 184 F.Supp.2d 1016, 1027 (E.D.Cal. 2000), citing in turn, Los Angeles Memorial Coliseum Comm'n v. National Football League , 634 F.2d 1197, 1203 (9th Cir. 1980)).

Likewise, "[r]egardless of which test is applied, there is a heightened burden where a plaintiff seeks a mandatory preliminary injunction" as distinguished from a prohibitory injunction. See White v. Linderman, 2012 WL 5040850, at *2 (D.Ariz. Oct. 18, 2012). "[M]andatory preliminary relief is subject to heightened scrutiny and should not be issued unless the facts and law clearly favor the moving party." Dahl v. HEM Pharmaceuticals Corp. , 7 F.3d 1399, 1403 (9th Cir. 1993) (internal quotation marks and citation omitted). Thus, to determine whether there is a heightened burden in the present case, the court must consider whether plaintiff Maloney is seeking prohibitory or mandatory injunctive relief.

An injunction which "prohibits a party from taking action and preserves the status quo pending a determination of the action on the merits[]'" is prohibitory. Park Vill. Apartment Tenants Ass'n v. Mortimer Howard Trust , 636 F.3d 1150, 1159 (9th Cir. 2011) (quoting Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co. , 571 F.3d 873, 878 (9th Cir. 2009) (alteration and internal quotation marks omitted)). "The status quo means the last, uncontested status which preceded the pending controversy.'" N.D. ex rel. Parents Acting as Guardians Ad Litem v. Haw. Dept' of Educ. , 600 F.3d 1104, 1112 n. 6 (9th Cir. 2010) (quoting Marlyn Nutraceuticals , 571 F.3d at 879 (citation omitted)). In contrast, "[a] mandatory injunction orders a responsible party to take action, " and therefore "goes well beyond simply maintaining the status quo[.]" Marlyn Nutraceuticals , 571 F.3d at 879 (internal ...


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