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United States District Court 

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UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

CHRISTOPHER SHANE RIVERA, 

Plaintiff, 

v. 

S. KERNAN, et al., 

Defendants. 

Case No.17-cv-00335-JSW 

ORDER DENYING MOTION TO 

DISMISS 

Re: Dkt. Nos. 35, 45 

INTRODUCTION 

Plaintiff, a California prisoner located at Pelican Bay State Prison (“PBSP”), filed this pro 

se civil rights case under 42 U.S.C. 1983. In the complaint,1 Plaintiff claims that Defendants, 

California prison officials, violated his rights under the Free Exercise Clause of the First 

Amendment and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), and 

under the Equal Protection Clause of the Fourteenth Amendment, by preventing him from 

practicing rituals of his “Odinist” faith. Defendants filed a motion to dismiss under Rule 12(b)(6) 

for failure to state a claim upon which relief may be granted. Plaintiff filed an opposition. 

Defendants filed a motion for a 60-day extension of time in which to file a reply brief. For the 

reasons discussed below, the motion to dismiss is GRANTED IN PART AND DENIED IN 

PART, and the motion for an extension of time is DENIED. 

DISCUSSION

I. Standard of Review 

Failure to state a claim is grounds for dismissal under Rule 12(b)(6) of the Federal Rules of 

Civil Procedure. Dismissal for failure to state a claim is a ruling on a question of law. Parks 

 

1

 The operative complaint is the First Amended Complaint, which is referred to herein simply as 

the “complaint.” 
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School of Business, Inc., v. Symington, 51 F.3d 1480, 1483 (9th Cir. 1995). "The issue is not 

whether plaintiff will ultimately prevail, but whether he is entitled to offer evidence to support his 

claim." Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). 

Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 

claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the 

statement need only give the defendant fair notice of what the . . . . claim is and the grounds upon 

which it rests.” Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations and internal 

quotations omitted). Although in order to state a claim a complaint “does not need detailed factual 

allegations, . . . a plaintiff's obligation to provide the 'grounds of his 'entitle[ment] to relief' 

requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of 

action will not do. . . . Factual allegations must be enough to raise a right to relief above the 

speculative level.” Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007) (citations 

omitted). A complaint must proffer “enough facts to state a claim for relief that is plausible on its 

face.” Id. at 1986-87. A motion to dismiss should be granted if the complaint does not proffer 

"enough facts to state a claim for relief that is plausible on its face." Id. at 570; see, e.g., Ashcroft 

v. Iqbal, 129 S. Ct. 1937, 1952 (2009). 

Review is limited to the contents of the complaint, Clegg v. Cult Awareness Network, 18 

F.3d 752, 754-55 (9th Cir. 1994), including documents physically attached to the complaint or 

documents the complaint necessarily relies on and whose authenticity is not contested. Lee v. 

County of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). In addition, the court may take judicial 

notice of facts that are not subject to reasonable dispute. Id. at 688 (discussing Fed. R. 

Evid. 201(b)). Allegations of fact in the complaint must be taken as true and construed in the light 

most favorable to the non-moving party. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 

(9th Cir. 2001). The court need not, however, “accept as true allegations that are merely 

conclusory, unwarranted deductions of fact, or unreasonable inferences.” Ibid. 

A pro se pleading must be liberally construed, and "however inartfully pleaded, must be 

held to less stringent standards than formal pleadings drafted by lawyers." Twombly, 550 U.S. at 

570 (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Allegations of fact in the complaint 
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must be taken as true and construed in the light most favorable to the non-moving party. 

Symington, 51 F.3d at 1484. 

II. Legal Claims 

Plaintiff claims that he is a member of the “Odinist” religion known as “Asatru.” The 

religion observes the holidays of Winter Solstice, Summer Solstice, the Spring Equinox, and the 

Autumnal Equinox. Plaintiff and fellow adherents of his religion at PBSP requested a food 

celebration for the Winter Solstice Yule Festival in December 2015, the Summer Solstice on June 

21, 2016, the Autumnal Equinox on September 21, 2016, and the Winter Solstice Yule Festival in 

December 2016. The requests for the first two of these celebrations received no response. The 

request for the 2016 Autumnal Equinox celebration was eventually approved, but not until 

November 16, 2016. The celebration of the 2016 Winter Solstice was also approved, but not until 

May 10, 2017. Funds were donated to PBSP for food for the celebrations, but prison officials 

allowed funds contributed for the 2016 Summer Solstice celebration to “expire.” In December 

2016, donations of such funds for Odinist feasts were banned. 

1. Eleventh Amendment 

Defendants argue correctly that the Eleventh Amendment bars Plaintiff’s claims for 

damages under the First Amendment and Equal Protection Clause claims against Defendants in 

their official capacity. See Confederated Tribes & Bands v. Locke, 176 F.3d 467, 469 (9th Cir. 

1999) (damages claim against governor in his official capacity barred by 11th Amendment). Such 

claims for injunctive relief against Defendants in their official capacities and for damages in their 

individual capacities are not barred by the Eleventh Amendment. Plaintiff’s RLUIPA claims for 

damages may not proceed against Defendants in either their official or individual capacities. See 

Jones v. Williams, 791 F.3d 1023, 1031 (9th Cir. 2015) (RLUIPA does not authorize money 

damages against state officials, whether sued in their official or individual capacities). The 

RLUIPA claims for injunctive relief remain. 

2. Causation 

Defendants argue that Plaintiff’s claims are not cognizable because he has not sufficiently 

alleged causation. The Court has already found the claims cognizable, and Defendants’ motion 
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does not undermine this conclusion. 

Liability may be imposed on an individual defendant under 42 U.S.C. § 1983 if the 

plaintiff can show that the defendant’s actions actually and proximately caused the deprivation of 

a federally protected right. Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). A person deprives 

another of a constitutional right within the meaning of section 1983 if he does an affirmative act, 

participates in another's affirmative act or omits to perform an act which he is legally required to 

do, that causes the deprivation of which the plaintiff complains. Id. at 633. 

Plaintiff alleges that Defendants Kernan and Ducart, the CDCR Director and the PBSP 

Warden, respectively, caused his violations because they failed to properly train officials 

responsible for reviewing administrative grievances and officials at PBSP to ensure that they 

would not violate inmates’ rights. Supervisors are not liable under Section 1983 for all the 

violations of committed by their associates, but they are liable when they knowingly acquiesce in 

those violations; and failure to adequately train subordinates is a recognized method of such 

acquiescence. Keates v. Koile, 883 F.3d 1228, 1243 (9th Cir. 2018); Starr v. Baca, 652 F.3d 1202, 

1208 (9th Cir. 2011). Plaintiff sufficiently alleges that Kernan and Ducart caused the known 

violations of his rights by not adequately training their subordinates to prevent them. 

Plaintiff alleges that Defendants Voong, Lee, and Puget failed to adequately respond to 

administrative appeals requesting an investigation into whether PBSP staff were violating the 

religious rights of Odinist inmates. Defendants cite law stating that the improper review of 

administrative appeals does not violate any constitutional rights. See Ramirez v. Galaza, 334 F.3d 

850, 860 (9th Cir. 2003). While this is true, Plaintiff’s claims are more expansive. He claims that 

their failure to grant administrative appeals more quickly caused him to celebrate the 2016 

Autumn Equinox and 2016 Winter Solstice holidays months beyond the dates those holidays were 

supposed to be celebrated according to the Asatru religion. This a sufficient allegation that 

Defendants Voong, Lee, and Puget caused a violation of his rights. 

Plaintiff alleges that Defendant Olson disapproved of donations made to purchase food for 

the Winter Solstice in 2016, but not for the holidays of other religions. A permissible inference 

from this allegation is that disapproving food purchase donations caused or contributed to the 
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delay in celebrating the 2016 Winter Solstice but did not delay the holidays of other religions 

Plaintiff alleges that the requests for the holiday celebrations were sent to Losacco and 

McCovey, who either did not respond to them or their response did not lead to a timely celebration 

of the holidays. Defendants argue this is not sufficient to allege causation because the California 

regulations did not require accommodation of all the requested celebrations. Plaintiff is not 

claiming a violation of the state regulations, but rather of federal law. Plaintiff sufficiently alleges 

that the actions or inactions of Defendants Losacco and McCovey caused those claimed violations. 

3. Qualified Immunity 

Defendants argue that they are entitled to qualified immunity because the delays in 

celebrating two of holidays was not a substantial burden on Plaintiff’s religious practice. A court 

considering a claim of qualified immunity must determine whether the plaintiff has alleged the 

deprivation of an actual constitutional right and whether such right was clearly established such 

that it would be clear to a reasonable officer that his conduct was unlawful in the situation he 

confronted. See Pearson v. Callahan, 555 U.S. 223, 236 (2009). 

To begin with, Defendants do not address the two holidays --- the 2015 Winter Solstice 

and the 2016 Summer Solstice --- that Plaintiff was allegedly never able to celebrate. Defendants 

argue that a “temporary” delay in celebrating the two other religious holidays is not a substantial 

burden. However, Plaintiff alleges that celebrating these holidays on specific dates is an essential 

tenet of his religion. No reasonable person would believe that requiring Christians to celebrate 

Christmas on December 28 (let alone in May), or Jews to celebrate Yom Kippur thirteen days after 

Rosh Hashanah (let alone in November) would not substantially burden their religious practice. 

Observation of these major holidays on particular dates is an essential tenet of these religions. 

Similarly, Defendants could not reasonably believe that they did not substantially burden 

Plaintiff’s practice of his Asatru religion by causing Plaintiff to celebrate the Asatru holidays on 

days with no religious significance, months after the date on which those holidays were observed 

according to Asatru’s essential tenets. 

Lastly, Defendants argue that the large growth in the number of religious groups at PBSP -

-- not an intent to discriminate against Odinists --- was the reason for their inaction. The reference 
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to the growth of religious groups appears in response to Plaintiff’s administrative grievances 

attached to the complaint. Defendants may be able to supply evidence of such a growth at a later 

stage of this litigation, but it does not support of Defendants’ motion because, besides being 

hearsay, the growth of religious groups is not alleged by plaintiff or judicially noticeable. 

 Defendants are not entitled to dismissal of any of Plaintiff’s claims on the grounds of 

qualified immunity because no reasonable official would believe that Defendants’ alleged conduct 

was lawful. 

CONCLUSION

The motion to dismiss is GRANTED IN PART AND DENIED IN PART. The claims for 

money damages under RLUIPA and First and Fourteenth Amendment claims against Defendants 

in their official capacity for money damages are DISMISSED. The claims for money damages 

under the First and Fourteenth Amendments against Defendants in their individual capacity, and 

the claims for injunctive relief under these Amendments and under RLUIPA remain. Defendants’ 

motion for an extension of time to file a reply brief is DENIED because Defendants did not show 

sufficient cause for an extension of 60 days. 

Defendants shall file an answer in accordance with the Federal Rules of Civil Procedure. 

In order to expedite the resolution of this case: 

 1. No later than 91 days from the date this order is filed, the parties shall file a 

motion for summary judgment. If defendants are of the opinion that this case cannot be resolved 

by summary judgment, they shall so inform the court prior to the date the summary judgment 

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

 2. Plaintiff's opposition to defendants’ summary judgment motion, if any, shall be 

filed with the court and served upon defendants no later than 28 days from the date of service of 

the motion. Plaintiff must read the attached page headed “NOTICE -- WARNING,” which is 

provided to him pursuant to Rand v. Rowland, 154 F.3d 952, 953-954 (9th Cir. 1998) (en banc), 

and Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988). Defendants shall file a reply 

brief no later than 14 days after the date of service of the opposition. 

 3. Motions shall be deemed submitted as of the date the reply brief is due. No 
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hearing will be held on the motion unless the court so orders at a later date. 

 4. Along with his motion, defendants shall file proof that they served plaintiff the 

Rand warning at the same time they served him with their motion. Failure to do so will result in 

the summary dismissal of their motion. 

 5. All communications by the 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. 

 6. 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 

16-1 is required before the parties may conduct discovery. 

 7. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the 

court 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 for failure to prosecute pursuant 

to Federal Rule of Civil Procedure 41(b). 

IT IS SO ORDERED. 

Dated: September 28, 2018 

JEFFREY S. WHITE 

United States District Judge 

 
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NOTICE -- WARNING (SUMMARY JUDGMENT) 

If Defendants move for summary judgment, they are seeking to have your case dismissed. 

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 Rule 56(e), that contradict the facts 

shown in 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.