1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

ROBERT G. SAENZ, K61926,

Plaintiff,

v.

Y. FRIEDMAN, Jewish Chaplain,

Defendant(s).

Case No. 17-0046 SK (PR) 

ORDER OF SERVICE

Plaintiff, a prisoner at the Correctional Training Facility in Soledad (CTF), has filed 

a pro se civil rights complaint under 42 U.S.C. § 1983 alleging that Jewish Chaplain Y. 

Friedman has denied plaintiff Kosher meals in accordance with his “Messianic Judaism” 

beliefs because plaintiff was not born Jewish, and instead converted to Judaism. 

The complaint is properly before the undersigned for preliminary screening because 

plaintiff has consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 

636(c).

DISCUSSION

A. Standard of Review

Federal courts must engage in a preliminary screening of cases in which prisoners 

seek redress from a governmental entity or officer or employee of a governmental entity. 

28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the 

Case 3:17-cv-00046-SK Document 4 Filed 02/14/17 Page 1 of 5
2

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

complaint, or any portion of the complaint, if the complaint “is frivolous, malicious, or 

fails to state a claim upon which relief may be granted,” or “seeks monetary relief from a 

defendant who is immune from such relief.” Id. § 1915A(b). Pro se pleadings must be 

liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: 

(1) that a right secured by the Constitution or laws of the United States was violated, and 

(2) that the alleged violation was committed by a person acting under the color of state 

law. West v. Atkins, 487 U.S. 42, 48 (1988).

B. Legal Claims

It is well established that inmates have a First Amendment right “to be provided 

with food sufficient to sustain them in good health that satisfies the dietary laws of their 

religion.” McElyea v. Babbitt, 833 F.2d 196, 198 (9th Cir. 1987). Liberally construed, 

plaintiff’s allegation that Jewish Chaplain Friedman has denied plaintiff a Kosher diet 

conforming to his religious beliefs states a cognizable claim under § 1983 for denial of 

plaintiff’s First Amendment right to exercise religious practices and beliefs against 

Friedman. See Ward v. Walsh, 1 F.3d 873, 877 (9th Cir. 1993) (Jewish inmate claiming 

denial of kosher diet); McElyea, 833 F.2d at 198 (same); but cf. id. (prison officials may 

deny religious diet if inmate is not sincere in his religious beliefs). And liberally 

construed, plaintiff’s allegations also state a cognizable claim under the Religious Land 

Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc-1 (RLUIPA), for substantial 

burden on the religious exercise of a person residing in or confined to an institution against 

Friedman. But see Wood v. Yordy, 753 F.3d 899, 904 (9th Cir. 2014) (RLUIPA does not 

authorize suits against state actors (including prison officials) acting in their individual 

capacity; claims may only be brought against such defendants in their official capacity).

CONCLUSION

For the foregoing reasons and for good cause shown,

1. The clerk shall issue summons and the United States Marshal shall serve, 

without prepayment of fees, (1) a copy of the operative complaint in this matter and all 

Case 3:17-cv-00046-SK Document 4 Filed 02/14/17 Page 2 of 5
3

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

attachments thereto, (2) a notice of assignment of prisoner case to a United States 

magistrate judge and accompanying magistrate judge jurisdiction consent or declination to 

consent form (requesting that each defendant consent or decline to consent within 28 days 

of receipt of service), and (3) a copy of this order on Y. Friedman, Jewish Chaplain, at 

CTF. The clerk also shall serve a copy of this order on plaintiff.

2. In order to expedite the resolution of this case, the court orders as follows:

a. No later than 90 days from the date of this order, defendant shall serve 

and file a motion for summary judgment or other dispositive motion. A motion for 

summary judgment must be supported by adequate factual documentation and must 

conform in all respects to Federal Rule of Civil Procedure 56, and must include as exhibits 

all records and incident reports stemming from the events at issue. A motion for summary 

judgment also must be accompanied by a Rand notice so that plaintiff will have fair, timely 

and adequate notice of what is required of him in order to oppose the motion. Woods v. 

Carey, 684 F.3d 934, 935 (9th Cir. 2012) (notice requirement set out in Rand v. Rowland, 

154 F.3d 952 (9th Cir. 1998), must be served concurrently with motion for summary 

judgment). A motion to dismiss for failure to exhaust available administrative remedies 

(where such a motion, rather than a motion for summary judgment for failure to exhaust, is 

appropriate) must be accompanied by a similar notice. Stratton v. Buck, 697 F.3d 1004, 

1008 (9th Cir. 2012); Woods, 684 F.3d at 935 (notice requirement set out in Wyatt v. 

Terhune, 315 F.3d 1108 (9th Cir. 2003), overruled on other grounds by Albino v. Baca, 

747 F.3d 1162, 1166 (9th Cir. 2014) (en banc), must be served concurrently with motion to

dismiss for failure to exhaust available administrative remedies). 

If defendant is of the opinion that this case cannot be resolved by summary 

judgment or other dispositive motion, he shall so inform the court prior to the date his

motion is due. All papers filed with the court shall be served promptly on plaintiff.

b. Plaintiff must serve and file an opposition or statement of nonopposition to the dispositive motion not more than 28 days after the motion is served and 

filed. 

Case 3:17-cv-00046-SK Document 4 Filed 02/14/17 Page 3 of 5
4

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

c. Plaintiff is advised that a motion for summary judgment under Rule 

56 of the Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells 

you what you must do in order to oppose a motion for summary judgment. Generally, 

summary judgment must be granted when there is no genuine issue of material fact – that 

is, if there is no real dispute about any fact that would affect the result of your case, the 

party who asked for summary judgment is entitled to judgment as a matter of law, which 

will end your case. When a party you are suing makes a motion for summary judgment 

that is properly supported by declarations (or other sworn testimony), you cannot simply 

rely on what your complaint says. Instead, you must set out specific facts in declarations, 

depositions, answers to interrogatories, or authenticated documents, as provided in [current 

Rule 56(c)], that contradicts the facts shown in the defendant’s declarations and documents 

and show that there is a genuine issue of material fact for trial. If you do not submit your 

own evidence in opposition, summary judgment, if appropriate, may be entered against 

you. If summary judgment is granted, your case will be dismissed and there will be no 

trial. Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en banc) (App. A).

Plaintiff also is advised that a motion to dismiss for failure to exhaust available 

administrative remedies under 42 U.S.C. § 1997e(a) will, if granted, end your case, albeit 

without prejudice. You must “develop a record” and present it in your opposition in order 

to dispute any “factual record” presented by the defendants in their motion to dismiss. 

Wyatt v. Terhune, 315 F.3d 1108, 1120 n.14 (9th Cir. 2003). You have the right to present 

any evidence to show that you did exhaust your available administrative remedies before 

coming to federal court. Such evidence may include: (1) declarations, which are 

statements signed under penalty of perjury by you or others who have personal knowledge 

of relevant matters; (2) authenticated documents – documents accompanied by a 

declaration showing where they came from and why they are authentic, or other sworn 

papers such as answers to interrogatories or depositions; (3) statements in your complaint 

insofar as they were made under penalty of perjury and they show that you have personal 

knowledge of the matters state therein. In considering a motion to dismiss for failure to 

Case 3:17-cv-00046-SK Document 4 Filed 02/14/17 Page 4 of 5
5

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

exhaust, the court can decide disputed issues of fact with regard to this portion of the case. 

Stratton, 697 F.3d at 1008-09. 

(The Rand and Wyatt/Stratton notices above do not excuse defendants’ obligation 

to serve said notices again concurrently with motions to dismiss for failure to exhaust 

available administrative remedies and motions for summary judgment. Woods, 684 F.3d 

at 935.)

d. Defendant must serve and file a reply to an opposition not more than 

14 days after the opposition is served and filed. 

e. The motion shall be deemed submitted as of the date the reply is due. 

No hearing will be held on the motion unless the court so orders at a later date. 

3. Discovery may be taken in accordance with the Federal Rules of Civil 

Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local 

Rule 16 is required before the parties may conduct discovery.

4. All communications by plaintiff with the court must be served on defendant, 

or defendant’s counsel once counsel has been designated, by mailing a true copy of the 

document to defendant or defendant’s counsel.

5. It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the 

court and all parties informed of any change of address and must comply with the court’s 

orders in a timely fashion. Failure to do so may result in the dismissal of this action 

pursuant to Federal Rule of Civil Procedure 41(b).

IT IS SO ORDERED.

Dated: February 14, 2017 _________________________

SALLIE KIM

 United States Magistrate Judge

Case 3:17-cv-00046-SK Document 4 Filed 02/14/17 Page 5 of 5