Davis v. Powell (901 F. Supp. 2d 1196, 2012)

ORDER (1) ADOPTING REPORT AND RECOMMENDATION AND (2) GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS

[Doc. Nos. 30, 35]

CATHY ANN BENCIVENGO, District Judge.

On October 6, 2011, plaintiff filed a Second Amended Complaint (“SAC”). [Doc. No. 29.] On October 13, 2011, defendants filed a motion to dismiss the SAC. [Doc. No. 30.] On October 31, 2011, Plaintiff filed an opposition to the motion to dismiss. [Doc. No. 31.] On November 7, 2011, Defendants filed a reply to the opposition. [Doc. No. 33.] On July 25, 2012, Magistrate Judge Brooks prepared a Report and Recommendation (“Report”) recommending that the motion to dismiss the SAC be granted in part and denied in part. [Doc. No. 35.] The Report also ordered that any objections were to be filed by August 24, 2012. [Report at 71.] To date, no objection has been filed, nor have there been any requests for an extension of time in which to file an objection.

A district court’s duties concerning a magistrate judge’s report and recommendation and a respondent’s objections thereto are set forth in Rule 72(b) of the Federal rules of Civil Procedure and 28 U.S.C. § 636(b)(1). When no objections are filed, the district court is not required to review the magistrate judge’s report and recommendation. The Court reviews de novo those portions of the Report and Recommendation to which objections are made. 28 U.S.C. § 636(b)(1). The Court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Id. However, “[t]he statute makes it clear that the district judge must review the magistrate judge’s findings and recommendations de novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.2003) (en banc) (emphasis in original). “Neither the Constitution nor the statute requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct.” Id. In the absence of timely objection, the Court “need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Fed. R.Civ.P. 72 advisory committee’s note (citing Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir.1974)).

Here, neither party has timely filed objections to the Report. Having reviewed it, the Court finds that it is thorough, well reasoned, and contains no clear error. Accordingly, the Court hereby (1) ADOPTS Magistrate Judge Brooks’ Report and Recommendation; and (2) GRANTS IN PART AND DENIES IN PART Defendants’ motion to dismiss the SAC as set forth below.

Per Magistrate Judge Brook’s Report and Recommendation, the Court ORDERS AS FOLLOWS:

(1) Plaintiffs references to violations of the California Code of Regulations are not separate causes of action. Therefore, Defendants’ motion to dismiss this portion of count two is GRANTED without leave to amend.

(2) Plaintiff improperly includes several new causes of action in count two of his SAC. First, an amendment to include a retaliation claim in count two against Defendant Small for the addendum he approved on September 16, 2009, would not clearly be futile. This retaliation claim is properly asserted. Defendant Small’s motion to dismiss this claim is DENIED. A retaliation claim against Defendant Small for the October 25, 2010 policy, however, would be futile; this claim shall not be considered. Therefore, Defendant Small’s motion to dismiss this claim is GRANTED without leave to amend.

(3) Retaliation claims against Defendants Powell, Borem, and Ours for the September 2009 and October 2010 policies would also be futile. Their motion to dismiss both retaliation claims against them is GRANTED without leave to amend.

(4) Defendants Powell, Borem, and Ours’s motion to dismiss the conspiracy causes of action against them in count two is GRANTED without leave to amend; an amendment to include a conspiracy claim against Defendant Small would be futile, and the conspiracy claim against him is DISMISSED without leave to amend.

(5) Defendant Small’s motion to dismiss the equal protection claim in count two regarding the September 16, 2009 policy addendum is DENIED. An amendment to include an equal protection claim against Powell, Borem, and Ours for this policy would be futile and is DISMISSED without leave to amend. Likewise, an amendment to include an equal protection cause of action against all Defendants based on the October 25, 2010 policy would be futile and is DISMISSED without leave to amend.

(6) The motion to dismiss the First Amendment and RLUIPA causes of action against all Defendants in count one is DENIED; in count two, the Defendants’ motion to dismiss the First Amendment and RLUIPA claims is GRANTED without leave to amend.

(7) All of the Defendants are entitled to qualified immunity for the First Amendment claims against them, in count two, and their motion to dismiss Plaintiffs claim for civil damages on this basis is GRANTED. The Defendants are not, however, entitled to qualified immunity as to the First Amendment allegations in count one, and their motion to dismiss on this basis is DENIED.

(8) Defendant Ours, Powell, and Borem’s motion to dismiss Plaintiffs claim for civil damages for the equal protection violation alleged in count two on qualified immunity grounds is GRANTED. Defendant Small is not immune from damages attributable to the equal protection claim against him in count two for the September 2009 policy. His motion to dismiss on this ground is DENIED. Defendant Small is, however, entitled to qualified immunity for the equal protection claim against him in count two, focusing on the October 2010 addendum, and his motion to dismiss Plaintiffs claim for civil damages for this claim is GRANTED.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS SECOND AMENDED COMPLAINT [ECF NO. 30]

' RUBEN B. BROOKS, United States Magistrate Judge.

Plaintiff Jim Dale Davis, a state prisoner proceeding pro se and in forma pauperis, filed a Complaint on August 31, 2010, pursuant to 42 U.S.C. § 1983 [ECF No. 1], The Defendants filed a Motion to Dismiss Complaint, which was granted [ECF Nos. 17, 24-25]. On September 30, 2011, Davis filed a First Amended Complaint [ECF No. 26]. He subsequently sought leave to replace the second page of the First Amended Complaint with a different page [ECF No. 27]. The Court granted his request and instructed the Clerk of the Court to refile the First Amended Complaint with the replacement page as a separate docket entry; this new filing would constitute, and was docketed as, Davis’s Second Amended Complaint, even though it was titled “Frist [sic] Amended Complaint” [ECF No. 28].

Plaintiffs Second Amended Complaint was filed on October 6, 2011, along with exhibits [ECF No. 29]. There, Davis argues in count one that Defendants violated the First Amendment and the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”) when they imposed a total ban on the purchase and receipt of prayer oil by inmates for fourteen months. (Second Am. Compl. 1, 8-8, ECF No. 29.) In count two, Plaintiff asserts that Defendants violated the Equal Protection Clause and retaliated against him when they implemented an addendum to Department Operations Manual (“DOM”) supplement number 54030.7.1, which provided that certain religious items ordered by inmates would be counted as a quarterly package. (Id. at 9-10; see id. Attach. # 2 Ex. U, at 39.) Warden Small signed the addendum on September 16, 2009. (Id.) Ml Defendants allegedly discriminated against Davis because the religious items described in the addendum are purportedly used only by practitioners of the Muslim faith. (Second Am. Compl. 9-10, ECF No. 29.) Plaintiff contends Defendants retaliated and discriminated again on October 25, 2010, when they implemented a policy that prayer oil orders from the vendor, Union Supply, would not count as a quarterly package, but orders from nonapproved vendors would. (Id. at 10.)

On October 13, 2011, the four named Defendants, Powell, Borem, Small, and Ours, filed a Motion to Dismiss Second Amended Complaint, which included a Memorandum of Points and Authorities [ECF No. 30]. Davis filed his “Objection to Defendants Motion to Dismiss Second Amended Compliant [sic]” on October 31, 2011, which the Court construes as an Opposition [ECF No. 31]. On November 7, 2011, Defendants’ Reply was filed [ECF No. 33].

The Court has reviewed the Second Amended Complaint and attachments, Defendants’ Motion to Dismiss and attachment, Davis’s Opposition, and the Defendants’ Reply. The Motion to Dismiss is suitable for resolution on the papers. See S.D. Cal. Civ. R. 7.1(d)(1). For the reasons stated below, the district court should GRANT in part and DENY in part the Defendants’ Motion.

I. FACTUAL ALLEGATIONS

Plaintiff is incarcerated at Calipatria State Prison. (Second Am. Compl. 1, ECF No. 29.) In count one, Davis asserts that he has been a practicing Muslim and has used prayer oil for sixteen years. (Id. at 3.) Plaintiff posits that using prayer oil is an “obligatory act that [he] must do during the preformance [sic] of his religion.” (Id. (citing id. Attach. # 1 Ex. A, at 4).) On August 11, 2009, Defendant Powell and the Islamic chaplain issued a religious chrono listing the religious articles Davis was authorized to keep in his cell, which included eight ounces of prayer oil per quarter. (Id. at 3^4 (citing id. Attach. # 1 Exs. B, C).) According to Plaintiff, the chaplain signed a religious item approval list allowing Davis to purchase prayer oil from Halalco Books, a vendor on Calipatria’s authorized vendor list. (Id. at 4 (citing id. Attach. # 1 Ex. D).) Davis alleges that on October 9, 2009, Halalco Books sent his eight-ounce prayer oil order to Calipatria with the approval form on the box; Defendant Borem received the order sometime in October, but failed to forward the package to Plaintiff. (Id. at 4, 7 (citing id. Attach. # 1 Ex. E, at 21).)

Davis maintains that he waited several weeks for his prayer oil before submitting an inmate grievance, to which prison officials never responded. (Id. at 4.) On December 22, 2009, Plaintiff submitted another grievance requesting that officials deliver the prayer oil; the grievance was denied at the informal level on January 5, 2010, because the “Hazmat Specialist,” Defendant Ours, had “denied the introduction of oil into the prison.” (Id. (citing id. Attach. # 1 Ex. F).) Plaintiff alleges his subsequent appeals were denied at all levels; at the director’s level, it was determined that “[t]he oils were appropriately confiscated as it was determined they pose a fire, health, and safety hazard.” (Id.; see id. Attach. # 1 Ex. G, at 27.)

Defendant Ours allegedly never issued a memorandum explaining why the oil was hazardous, and the decision was not supported by any documentation or legitimate reason. (Second Am. Compl. 4-5, ECF No. 29.) Davis maintains that on February 3, 2010, Defendant Borem sent Plaintiff a letter indicating that his oil had been returned to Halalco and that Defendants Ours, Small, and Powell had concluded that prayer oil would no longer be allowed at Calipatria because it posed a fire, health, and safety hazard. (Id. at 5 (citing id. Attach. #2 Ex. H).) In the letter, Borem explained that the decision was based on the fire rating information on the “Materials Safety Data Sheet” (“MSDS”), but he did not identify the MSDS or where he obtained it. (Id.)

Davis argues that from August 11, 2009, to October 16, 2010, there was a “total ban” on the purchase and receipt of prayer oil by inmates, denying him a “critical part” of his religion for fourteen months. (Id.) Defendants’ actions were allegedly without any penological justification because if they followed protocol, they would have known that the prayer oil from Halal-co Books complied with Calipatria’s hazardous materials standards. (Id.)

Davis contends that years earlier, on November 14, 2003, Defendant Ours sent a memorandum to “department heads” regarding the “Material Safety Sheet Binders,” along with a copy of the “Calipatria State Prison Hazardous Communication Plan.” (Id. at 6 (citing id. Attach. # 2 Ex. I).) The plan provided that a material is “combustible” if its flash point is 100 degrees Fahrenheit and above, and a material is “flammable” if its flash point is between twenty and 100 degrees Fahrenheit. (Id.) Plaintiff asserts that the prayer oil provided by Halalco Books has a flash point between 189 and 195 degrees Fahrenheit and therefore is not flammable. (Id. (citing id. Attach. # 2 Ex. J).) In comparison, pink hand soap has a flash point of 212 degrees, and pink skin cleanser has a flash point of 200 degrees. (Id. (citing id. Attach. # 2 Exs. K, L).) Davis argues that Defendants therefore knew that the Halalco prayer oil complied with Calipatria’s hazardous materials standards, but they still banned the oil. (Id.)

The Plaintiff contends that on July 12, 2010, the associate warden responded to inmate correspondence and wrote, “Warden McEwen and Calipatria staff have reviewed the matter, and find that there is no compelling reason to deny the oil from the vendors that have been approved by the Institution in the past.” (Id. Attach. # 2 Ex. M, at 22; see Second Am. Compl. 6-7, ECF No. 29.) Davis further asserts that during the total ban on prayer oil, he was never supplied an alternative prayer oil vendor. (See Second Am. Compl. 7, ECF No. 29.) Plaintiff states that while prison officials ultimately provided the alternative vendor, Union Supply, this did not occur until August 1, 2010. (Id. (citing id. Attach. # 2 Ex. O).)

On July 14, 2010, Davis received approval from the Islamic chaplain to order prayer oil from Halalco Books. (Id. at 8 (citing id. Attach. # 2 Ex. R).) Halalco shipped Plaintiff a back order five days later, and on July 27, 2010, Halalco shipped his “current order.” (Id. (citing id. Attach. #2 Ex. S).) Plaintiff insists that the Defendants received the July 27, 2010 order, but did not forward the oil to him until October 16, 2010. (Id.) Defendant Borem returned one of Plaintiffs prayer oil orders to Halalco as recently as January 18, 2011, even though Borem knew Halalco was an approved vendor. (Id. (citing id. Attach. # 2 Ex. T).) As a result, Davis maintains that Defendants Powell, Borem, Small, and Ours violated RLUIPA and the First Amendment by denying him access to Islamic prayer oil without penological justification. (See id. at 3-8.)

In count two, Davis alleges that Defendants conspired to force him to purchase prayer oil from their preferred vendor, Union Supply, instead of from Halalco Books, another approved Islamic vendor. (Id. at 9.) On September 16, 2009, Warden Small issued an addendum to DOM supplement 54030. (Id.) The addendum provided that when an inmate received a package from a religious specialty vendor, it would be counted as a regular quarterly personal package. (Id. Attach. #2 Ex. U, at 39.) Davis argues that the addendum discriminates against him and other Muslim prisoners because it only lists Muslim religious articles. (See Second Am. Compl. 9, ECF No. 29.) The addendum also violates section 3190(i)(4) of the California Code of Regulations (“CCR”), title 15, and was issued in retaliation for Davis’s assertion of his First Amendment rights. (Id.) Thirteen days later, on September 29, 2009, Plaintiff and other Muslim inmates filed a group appeal contesting the discriminatory addendum, but it was denied. (Id. (citing id. Attach. # 2 Ex. V, at 41-45).)

The Plaintiff further argues that Defendants retaliated again on October 25, 2010, when officials issued another addendum to DOM supplement 54030, “stating that if Plaintiff ordered prayer oils from Union Supply it would not be counted as a quarterly package but if Plaintiff used a nondepartmentally approved vendor it would be counted as a quarterly package.” (Id. at 10.) Davis complains that the provisions penalize him because packages from Halal-co, his preferred Islamic vendor, are treated as quarterly packages, but packages from Union Supply are not. (See id.) Therefore, Defendants violated RLUIPA, the First Amendment, section 3190(i)(4) of the California Code of Regulations, and the Equal Protection Clause. (Id.)

II. APPLICABLE LEGAL STANDARDS

A. Motions to Dismiss for Failure to State a Claim

A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the claims in the complaint. See Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 633, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999). “The old formula — that the complaint must not be dismissed unless it is beyond doubt without merit — was discarded by the Bell Atlantic decision [Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 n. 8, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) Limestone Dev. Corp. v. Vill. of Lemont, 520 F.3d 797, 803 (7th Cir.2008).

A complaint must be dismissed if it does not contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp., 550 U.S. at 570, 127 S.Ct. 1955. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The court must accept as time all material allegations in the complaint, as well as reasonable inferences to be drawn from them, and must construe the complaint in the light most favorable to the plaintiff. Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 973 (9th Cir.2004) (citing Karam v. City of Burbank, 352 F.3d 1188, 1192 (9th Cir.2003)); Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir.1995); N.L. Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.1986).

The court does not look at whether the plaintiff will “ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); See Bell Atl. Corp. v. Twombly, 550 U.S. at 563 n. 8, 127 S.Ct. 1955. A dismissal under Rule 12(b)(6) is generally proper only where there “is no cognizable legal theory or an absence of sufficient facts alleged to support a cognizable legal theory.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir.2001) (citing Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.1988)).

The court need not accept conclusory allegations in the complaint as true; rather, it must “examine whether [they] follow from the description of facts as alleged by the plaintiff.” Holden v. Hagopian, 978 F.2d 1115, 1121 (9th Cir.1992) (citation omitted); See Halkin v. Veri-Fone, Inc.; 11 F.3d 865, 868 (9th Cir.1993); see also Cholla Ready Mix, Inc., 382 F.3d at 973 (quoting Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994)) (stating that on a Rule 12(b)(6) motion, a court “is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged[]”). “Nor is the court required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001).

In addition, when resolving a motion to dismiss for failure to state a claim, courts may not generally consider materials outside of the pleadings. Schneider v. Cal. Dep’t of Corr., 151 F.3d 1194, 1197 n. 1 (9th Cir.1998); Jacobellis v. State Farm Fire & Cas. Co., 120 F.3d 171, 172 (9th Cir.1997); Allarcom Pay Television Ltd. v. Gen. Instrument Corp., 69 F.3d 381, 385 (9th Cir.1995). “The focus of any Rule 12(b)(6) dismissal ... is the complaint.” Schneider, 151 F.3d at 1197 n. 1. This precludes consideration of “new” allegations that may be raised in a plaintiffs opposition to a motion to dismiss brought pursuant to Rule 12(b)(6). Id. (citing Harrell v. United States, 13 F.3d 232, 236 (7th Cir.1993)).

B. Standards Applicable to Pro Se Litigants

Where a plaintiff appears in propria persona in a civil rights case, the court must construe the pleadings liberally and afford the plaintiff any benefit of the doubt. Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir.1988). The rule of liberal construction is “particularly important in civil rights cases.” Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir.1992). In giving liberal interpretation to a pro se civil rights complaint, courts may not “supply essential elements of claims that were not initially pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir.1982). ‘Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss.” Id.; see also Jones v. Cmty. Redev. Agency, 733 F.2d 646, 649 (9th Cir.1984) (finding conclusory allegations unsupported by facts insufficient to state a claim under § 1983). “The plaintiff must allege with at least some degree of particularity overt acts which defendants engaged in that support the plaintiffs claim.” Jones, 733 F.2d at 649 (internal quotation omitted).

Nevertheless, the Court must give a pro se litigant leave to amend his complaint “unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir.2000) (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir.1995)). Thus, before a pro se civil rights complaint may be dismissed, the court must provide the plaintiff with a statement of the complaint’s deficiencies. Karim-Panaki, 839 F.2d at 623-24. But where amendment of a pro se litigant’s complaint would be futile, denial of leave to amend is appropriate. See James v. Giles, 221 F.3d 1074, 1077 (9th Cir.2000).

C. Stating a Claim Under 42 U.S.C. § 1983

To state a claim under § 1983, the plaintiff must allege facts sufficient to show (1) a person acting “under color of state law” committed the conduct at issue, and (2) the conduct deprived the plaintiff of some right, privilege, or immunity protected by the Constitution or laws of the United States. 42 U.S.C.A. § 1983 (West 2003); Shah v. County of Los Angeles, 797 F.2d 743, 746 (9th Cir.1986).

III. DEFENDANTS’MOTION TO DISMISS

As to count one, Defendants Small, Powell, Borem, and Ours argue that Davis fails to state a claim for relief under the First Amendment because the temporary ban on prayer oil was reasonably related to legitimate penological interests in not allowing flammable materials into prison cells and controlling inmate inventory. {See Mot. Dismiss Attach. # 1 Mem. P. & A. 5-7, ECF No. 30.) The Defendants also maintain that Davis fails to state a claim for relief under RLUIPA because regulating flammable prayer oil furthers prison safety, which is a compelling governmental interest and is the least restrictive means of achieving safety. {Id. at 10-11.)

With regard to count two, the four Defendants argue that Davis’s claims against them fail because he was not precluded from ordering prayer oil; rather, he was merely required to order prayer oil as part of a quarterly package. {Id. at 7-8.) Limiting inmate inventory to reduce contraband, theft, bartering, and gambling is a legitimate penological interest. {Id. at 8.) Plaintiff also does not allege a RLUIPA allegation, Defendants assert, because requiring Davis to order religious supplies as a quarterly package did not place a substantial burden on his religious practice. {Id. at 11-12.) Plaintiff does not state an equal protection claim because he fails to plead facts sufficient to show that the provisions in the policy addendum were discriminatory. {Id. at 12-14.) Further, Defendants Powell, Borem, and Ours urge that the First Amendment, Fourteenth Amendment, and RLUIPA causes of actions fail because they are conclusory and lack factual support. {Id. at 14.)

Finally, the Defendants argue that they are entitled to qualified immunity from liability on Davis’s First and Fourteenth Amendment claims. {Id. at 15-16.)

A. Violations of the California Code of Regulations

In count two of the Second Amended Complaint, Davis alleges that the Defendants’ conduct violated “RLUIPA and the [First] Amendment and Equal Treatment Clause.” (Second Am. Compl. 9, ECF No. 29.) The gravamen of Plaintiffs allegations is that the Defendants discriminated against him based on his religion. {See id. at 9-10.) Davis also states that Defendants’ conduct violated section 3190(i)(4) of the California Code of Regulations. {Id. at 10.) Section 3190(i) provides that inmates shall be permitted special purchases of authorized personal items from locally-approved vendors, and staff must ensure that approved vendor catalogs and order forms are available to qualifying inmates. Cal. Code Regs. tit. 15, § 3190(i). Special purchase items include “[r]eligious [i]tems subject to approval by institutional chaplain and designated custody staff.” Id. § 3190(i)(4).

Plaintiff cannot assert an independent cause of action based on the purported violation of section 3190(i) of the California Code of Regulations. “The existence of regulations such as these governing the conduct of prison employees does not necessarily entitle Plaintiff to sue civilly to enforce the regulations or to sue for damages based on the violation of the regulations.” K’napp v. Adams, No. 1:06— cv-01701-LJO-GSA (PC), 2009 WL 1292347, at *4, 2009 U.S. Dist. LEXIS 38682, at *12 (E.D.Cal. May 7, 2009). There is no implied private right of action under title fifteen of the California Code of Regulations. Id. at *4-5, 2009 U.S. Dist. LEXIS 38682 at *12-13. Because Davis’s asserted violation of section 3190(i) fails to state a claim for relief in count two, the Defendants’ Motion to Dismiss this portion of count two should be GRANTED.

B. Unauthorized, Claims in Second Amended Complaint

Under Federal Rule of Civil Procedure 15, a party may amend its pleading within twenty-one days of service once as a matter of course. Fed.R.Civ.P. 15(a). Thereafter, a party must obtain leave of court or written consent from the opposing party. Fed.R.Civ.P. 15(a)(2). Here, all of Davis’s claims in his Complaint were dismissed, and he was only given leave to amend his RLUIPA and First Amendment causes of action. (Report & Recommendation 38-39, ECF No. 24; see Order 2, ECF No. 25.) Plaintiff was not given leave to add additional claims. (Id.) Nevertheless, in his Second Amended Complaint, Davis improperly includes new allegations against the Defendants for retaliation, conspiracy, and equal protection.

“Although an amendment filed without leave of court, when leave is required, has no legal effect, the court has discretion to treat the amendment as properly filed if the court would have granted leave to amend had leave been sought.” Taylor v. City of San Bernardino, No. EDCV 09-240-MMM (MAN), 2010 WL 5641065, at *7, 2010 U.S. Dist. LEXIS 140060, at *19-20 (C.D.Cal. Oct. 12, 2010) (citing Ritzer v. Gerovicap Pharm. Corp., 162 F.R.D. 642, 644-45 (D.Nev.1995); Brockmeier v. Solano Cnty. Sheriffs Dep’t, No. CIV S-05-2090 MCE EFB PS, 2007 WL 1521074, at *1, 2007 U.S. Dist. LEXIS 40580, at *1 (EJD.Cal. May 21, 2007)). Indeed, the Ninth Circuit has “repeatedly stressed that the court must remain guided by ‘the underlying purpose of Rule 15 ... to facilitate decision on the merits, rather than on the pleadings or technicalities.’ ” Lopez, 203 F.3d at 1127 (citation omitted). Whether to give leave to amend rests in the sound discretion of the district court. Pisciotta v. Teledyne Indus. Inc., 91 F.3d 1326, 1331 (9th Cir.1996).

Courts typically consider five factors when determining whether to grant a motion for leave to amend: (1) bad faith by the moving party, (2) undue delay in seeking leave to amend, (3) prejudice to the opposing party, (4) futility of an amendment, and (5) whether the plaintiff has previously amended the complaint. Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir.2004). “ ‘Futility alone can justify the denial of a motion amend.’ ” Id. (quoting Nunes v. Ashcroft, 348 F.3d 815, 818 (9th Cir.2003)). But “[prejudice to the opposing party is the most important factor.” Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir.1996) (citing Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330-31, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971)). “Undue delay is delay that prejudices the nonmoving party or imposes unwarranted burdens on the court.” BNSF Ry. Co. v. San Joaquin Valley R.R. Co., No. 08-cv-01086-AWI (SMS), 2011 WL 3328398, at *2, 2011 U.S. Dist. LEXIS 84694, at *5 (E.D.Cal. Aug. 2, 2011) (citing Mayeaux v. Louisiana Health Serv. and Indem. Co., 376 F.3d 420, 427 (5th Cir.2004)). Leave to amend “is not dependent on whether the amendment will add causes of action or parties.” DCD Programs, Ltd. v. Leighton, 833 F.2d 183,186 (9th Cir.1987).

1. Retaliation

In count two, Davis alleges that the Defendants retaliated against him for exercising his First Amendment rights. (Second Am. Compl. 9, ECF No. 29.) Specifically, they implemented a discriminatory policy on September 16, 2009, that penalized inmates who ordered Muslim-specific religious items by requiring that the order count as a quarterly package. (Id.) Davis states that Defendants retaliated again on October 25, 2010, when they indicated that if Plaintiff ordered prayer oil from Union Supply, it would not be counted as a quarterly package, but if he used a nonapproved vendor, it would. (Id. at 10.) Defendants do not address Davis’s retaliation claims in their Motion to Dismiss or Reply. In his Opposition, Plaintiff asserts, “Defendants conceded Plaintiff[’s] retaliation argument on [page nine] of the SAC. Plaintiff will not further argue retaliation in this objection to Defendantsf] (DMOD) because of Defendants^] concession.” (Opp’n 9, ECF No. 31.)

Because Plaintiff was not given leave to add new causes of action and has included new retaliation claims without leave of court, he has not complied with Federal Rule of Civil Procedure 15(a). As discussed previously, the Court has discretion to treat the retaliation allegations as properly included if it would have granted Davis leave to add these claims had leave been sought. See Taylor, 2010 WL 5641065, at *6-7, 2010 U.S. Dist. LEXIS 140060, at *19. The Court will look to five factors to determine whether it would have given Plaintiff leave to amend: (1) bad faith, (2) undue delay, (3) prejudice to the opposing party, (4) futility of amendment, and (5) previous amendments. Johnson, 356 F.3d at 1077.

Davis was given leave to amend his First Amendment and RLUIPA claims. (See Report & Recommendation 38-39, ECF No. 24; Order 1-2, ECF No. 25.) He ignored the Court’s order and included additional claims without authorization. This is some evidence of bad faith. See id. Plaintiff presumably knew of Defendants’ conduct when he filed his Complaint on August 31, 2010, but failed to characterize the conduct as retaliatory until he filed his Second Amended Complaint more than one year later on October 13, 2011. Davis’s delay and bad faith may suffice to deny a motion for leave to amend. BNSF Ry. Co., 2011 WL 3328398, at *2, 2011 U.S. Dist. LEXIS 84694, at *5. Nonetheless, Plaintiffs delay is not undue because it will not prejudice the Defendants or impose an unwarranted burden on the court. See id. Even if these considerations are ignored, an amendment to include retaliation claims may be futile.

“A prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.” Pell v. Procurer, 417 U.S. 817, 822, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974). The Constitution provides protections from “deliberate retaliation” by government officials for an individual’s exercise of First Amendment rights. See Vignolo v. Miller, 120 F.3d 1075, 1077-78 (9th Cir.1997); Soranno’s Gaseo, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir.1989). Because retaliation by prison officials may chill an inmate’s exercise of legitimate First Amendment rights, retaliatory conduct is actionable even if it would not otherwise rise to the level of a constitutional violation. See Thomas v. Evans, 880 F.2d 1235,1242 (11th Cir.1989). Yet, retaliation claims are reviewed with particular care because they are prone to abuse by prisoners. Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.1996); Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir.1995).

A plaintiff suing prison officials pursuant to § 1983 for retaliation must allege sufficient facts that show that (1) “the retaliated-against conduct is protected,” (2) the “defendant took adverse action against plaintiff,” (3) there is a “causal connection between the adverse action and the protected conduct,” (4) the act “would chill or silence a person of ordinary firmness,” and (5) the conduct does not further a legitimate penological interest. See Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir.2012). A plaintiff can allege retaliatory intent with a time line of events from which retaliation can be inferred. See id. (citations omitted). If the plaintiffs exercise of his constitutional rights was not chilled (factor four), he must allege that the defendant’s actions caused him to suffer more than minimal harm. Rhodes v. Robinson, 408 F.3d 559, 567-68 n. 11 (9th Cir.2005). But see Mendocino Envtl. Ctr. v. Mendocino County, 192 F.3d 1283, 1300 (9th Cir.1999). The test is objective— whether an official’s acts would “ ‘chill or silence a person of ordinary firmness from future First Amendment activities.’ ” Mendocino Envtl. Ctr., 192 F.3d at 1300 (citation omitted).

a. The September 16, 2009 addendum

Davis alleges that Defendants retaliated against him initially by issuing an addendum to the Department Operations Manual (DOM) on September 16, 2009, that implemented a discriminatory policy requiring that only orders for Muslim religious items would be counted as quarterly packages. (Second Am. Compl. 9, EOF No. 29.) The Plaintiff does not allege any facts showing that Defendants Powell, Borem, and Ours were responsible for this policy, and an amendment to include a retaliation claim against them would be futile. An amendment to include a retaliation claim against Warden Small, however, is not clearly futile. As to Defendant Small, the elements of a retaliation claim have been pleaded.

First, Davis has asserted that Warden Small retaliated against him for engaging in the constitutionally protected conduct of obtaining items required to practice his religion. (Second Am. Compl. 9, ECF No. 29); See Watison, 668 F.3d at 1114 (“[T]he plaintiff must allege that the retaliated-against conduct is protected.”); McElyea v. Babbitt, 833 F.2d 196, 197 (9th Cir.1987) (“The right to exercise religious practices and beliefs does not terminate at the prison door.”).

Second, the facts pleaded are that Defendant Small took adverse action against Davis and other Muslim inmates by instituting a discriminatory policy making it more burdensome to obtain items required to practice their religion or practice it as easily as inmates of different faiths. Watison, 668 F.3d at 1114. The policy essentially forced Plaintiff to choose between ordering Muslim religious items or other items, while other inmates could order both. (See Second Am. Compl. Ex. U, at 39, ECF No. 29.)

Third, Davis has asserted a causal link between the adverse action and the protected conduct. Emeldi v. Univ. of Oregon, 673 F.3d 1218, 1226 (9th Cir.2012) (stating that at the pleading stage, a plaintiff need only assert that the protected activity and the adverse action are not completely unrelated). Plaintiff contends that the warden’s retaliation was a substantial or motivating factor behind the quarterly package policy, as shown by the inherent discriminatory nature of the addendum. Id. at 1227 (noting that evidence of animus is relevant to proving causation); Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir.2009) (“It is thus undisputed that the warning [the adverse action] was motivated by [the inmate’s] protected conduct [disrespectful language in a prisoner’s grievance]....). The policy lists religious articles that Davis insists are specific to the Muslim faith, which, if true, supports the claim that Small acted to retaliate. See Coghlan v. American Seafoods Co. LLC, 413 F.3d 1090, 1095 n. 6 (9th Cir. 2005). (stating that “animus to the class to which the plaintiff belongs” has been treated as direct evidence).

The alleged chronology of events further supports a retaliatory intent. See Emeldi, 673 F.3d at 1226. Small signed and issued the policy purportedly targeting Davis and other Muslim inmates on September 16, 2009; thirteen days later, on September 29, 2009, Plaintiff and other inmates filed a group appeal challenging the policy as discriminatory. (Second Am. Compl. 9, ECF No. 29; See id. Attach. # 2 Ex. V, at 41-45.) On February 3, 2010, approximately five months later, all religious prayer oil at Calipatria was banned. (Second Am. Compl. 9, ECF No. 29; See id. Attach. # 2 Ex. H, at 2.)

Fourth, Davis has pleaded facts indicating that Small’s policy would chill a person of ordinary firmness from practicing his religion. Watison, 668 F.3d at 1114. A Muslim inmate would be deterred from ordering Muslim articles to practice his religion because his orders would count as quarterly packages; in contrast, orders for religious items by inmates practicing other religions would not count as quarterly packages. See Brodheim, 584 F.3d at 1271. Whether Davis was actually chilled in his attempts to obtain prayer oil is inconsequential. Mendocino Envtl. Ctr., 192 F.3d at 1300 (concluding it would be unjust to allow a defendant to escape liability because an unusually determined plaintiff persists in the protected activity).

Finally, Davis alleges that the adverse action did not reasonably further a legitimate penological interest. (See Second Am. Compl. 9-10, ECF No. 29); Watison, 668 F.3d at 1114. Defendants argue that the addendum was adopted to investigate whether prayer oil is flammable and to regulate inmate purchases and property to prevent theft, bartering, and other conduct that may be a threat to the institution, which are legitimate interests. (See Mot. Dismiss Attach. # 1 Mem. P. & A. 7, 11-12, ECF No. 30); see Charles v. Verhagen, 220 F.Supp.2d 937, 953 (W.D.Wis.2002) (finding that reducing administrative costs, streamlining searches, and monitoring inmate property are legitimate interests). Plaintiffs claim, however, is that the policy did not further any interest because Small implemented it to retaliate against Plaintiff for exercising his right to practice his religion by ordering prayer oil. See Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir.1985) (finding that plaintiff had adequately asserted that the retaliatory acts were not a reasonable exercise of authority and did not further any legitimate correctional goal). Without evidentiary support in the record, argument of defense counsel is insufficient to establish that the September 16, 2009 addendum is a regulation of the purchase of prayer oil that furthers a legitimate penological interest.

Although Davis generally asserts that all Defendants retaliated, the alleged facts are that Warden Small set the policy. Defendant Small did not move to dismiss Plaintiffs retaliation claim. Even though it does not appear that Davis has exhausted this cause of action, it may not be too late for him to do so, unless this policy was superceded by Small’s October 25, 2010 addendum. Based on these factors, an amendment to include a retaliation claim against Warden Small for the allegedly discriminatory addendum he approved on September 16, 2009, would not clearly be futile. Johnson, 356 F.3d at 1077. The district court therefore should treat this retaliation claim against Defendant Small as properly asserted. But the retaliation claim against Powell, Borem, and Ours should not be treated as properly included in the Second Amended Complaint because leave to add the claim against these three Defendants should not be granted.

b. The October 25, 2010 addendum

Plaintiff contends that the Defendants retaliated again on October 25, 2010, when they “issued another copy of the policy addendum” indicating that if he ordered prayer oil from Defendants’ vendor, Union Supply, it would not count as a quarterly package; however, an order from a nonapproved vendor would count as a specialty package. (Second Am. Compl. 10, ECF No. 29).

Davis has not alleged that ordering religious items from his preferred vendor without it counting as a quarterly package is a constitutionally protected activity. Watison, 668 F.3d at 1114. Plaintiff can purchase prayer oil from an approved vendor without it counting as a quarterly package. Notably, there is no alleged meaningful religious difference between the prayer oil sold by Union Supply and nonapproved vendors. See Kensu v. Ca-son, No. 1:91-CV-300, 1996 U.S. Dist. LEXIS 5468, at *45-17 (W.D.Mich. Mar. 29, 1996) (approving a prison policy requiring that religious oil be ordered from the state-approved vendor because the plaintiff failed to show any religious difference between Muslim and Buddhist oil); see also Jesus Christ Prison Ministry v. Cal. Dep’t Corr., 456 F.Supp.2d 1188, 1205 (E.D.Cal. 2006) (finding that a substantial burden was placed on plaintiffs religious exercise when unique worship materials were unavailable through any approved vendors).

Plaintiff, however, alleges that he is concerned that the prayer oil from Union Supply may be contaminated, but he can trust that the oil from his vendor is not. (Second Am. Compl. 10, ECF No. 29.) Nevertheless, a conclusory allegation of contamination is insufficient. See Ashcroft v. Iqbal, 556 U.S. at 683, 129 S.Ct. 1937 (concluding that “complaint does not contain any factual allegation sufficient to plausibly suggest [officials’] discriminatory state of mind[ ]); Kensu, 1996 U.S. Dist. LEXIS 5468, at *45-47 (discussing failure to establish any meaningful religious differences between Muslim or Buddhist oil). Davis cannot allege that ordering prayer oil from his vendor of choice is a constitutionally protected activity. See Thomas v. Little, No. 07-1117-BRE/egb, 2009 WL 1938973, at *5, 2009 U.S. Dist. LEXIS 57568, at *15-18 (W.D.Tenn. July 6, 2009) (discussing approved-vendor policy and determining that because the prayer oil that plaintiff could buy from Union Supply was not alleged to be “unfit for his religious ritual,” the desire to order from his preferred vendor was inconsequential under RLUIPA).

Because Davis has the option of obtaining religious items from an approved vendor, the adverse action element is lacking. In this context, a policy that orders from unapproved vendors are counted as quarterly packages does not burden Davis’s religious exercise. See id. at *5, 2009 U.S. Dist. LEXIS 57568 at *17. But cf. Brodheim, 584 F.3d at 1270. (“Thus, the mere threat of harm [transfer or disciplinary action] can be an adverse action.”) The October 25, 2009 addendum is not analogous to the adverse action in Brodheim.

Davis has not asserted facts establishing a causal connection between protected conduct and the claimed adverse action — here, the October 25, 2010 addendum. See Watison, 668 F.3d at 1114. The only exhibit on which Plaintiff relies, “Exhibit W,” is not attached to the Second Amended Complaint or otherwise before the Court. (See Second Am. Compl. 10, ECF No. 29.) The October 2010 policy does not indicate animus toward Muslim inmates because they can order from Union Supply without penalty, the same as all other inmates. See Coghlan, 413 F.3d at 1095 n. 6. (discussing animus towards a class to which the plaintiff belongs as evidence of discrimination against the plaintiff).

Plaintiff fails to allege the action would chill a person of ordinary firmness from future conduct or that Davis suffered some other harm. Watison, 668 F.3d at 1114; Brodheim, 584 F.3d at 1269. Davis could either order religious items from an approved vendor or from his preferred vendor and have it count as a quarterly package. A reasonable inmate would not feel deterred from ordering prayer oil under these circumstances. See Brodheim, 584 F.3d at 1271.

Finally, Plaintiff fails to assert that the Defendants’ implementation of the October 25, 2010 policy did not further a legitimate penological interest. See Watison, 668 F.3d at 1114.

An amendment to include a retaliation claim based on the October 25, 2010 addendum would be futile as to all Defendants. Johnson, 356 F.3d at 1077. Moreover, it is unclear whether Davis has exhausted this retaliation cause of action. The claim should not be treated as properly asserted.

2. Conspiracy

Similarly, Davis includes new claims for conspiracy in count two without leave of court or the consent of the Defendants. Fed.R.Civ.P. 15(a)(2). Davis alleges that all of the Defendants conspired to violate his constitutional rights when they attempted to force him to purchase prayer oil from their preferred vendor, Union Supply. (Second Am. Compl. 9, ECF No. 9.) The conspiracy allegations are not further explained or elaborated. (See id.) In their Motion, Defendants Powell, Borem, and Ours argue that Plaintiff only makes a conclusory assertion that they conspired to violate his rights. (Mot. Dismiss Attach. # 1 Mem. P. & A. 14, ECF No. 30.) Defendant Small does not move to dismiss the conspiracy claim. (See id.)

Although Davis was not given leave to add new causes of action, the Court will consider the claims if it would have granted Plaintiff leave to amend if he properly sought leave. See Taylor, 2010 WL 5641065, at *6-7, 2010 U.S. Dist. LEXIS 140060, at *19. The Court will consider bad faith, undue delay, prejudice, futility of amendment, and prior amendments. Johnson, 356 F.3d at 1077. As discussed above, Davis exceeded the scope of the Court’s order granting him leave to amend his First Amended Complaint. (See Report & Recommendation 34-38, ECF No. 24; Order 1-2, ECF No. 25.) This is evidence of bad faith. Davis knew of the Defendants’ actions when he filed his Complaint on August 31, 2010, but he failed to allege a conspiracy until he filed his Second Amended Complaint on October 13, 2011. The delay is not undue because it will not impose an unusual burden on the Court or prejudice the Defendants. See BNSF Ry. Co., 2011 WL 3328398, at *2, 2011 U.S. Dist. LEXIS 84694, at *5. Because Defendants Powell, Borem, and Ours move to dismiss the conspiracy claim, if their Motion should be granted because Davis has failed to state a claim for relief, the futility of amending dictates that the claim not be considered.

To state a conspiracy claim under § 1983, a plaintiff must show (1) an agreement between the defendants to deprive the plaintiff of a constitutional right, (2) an overt act in furtherance of the conspiracy, and (3) a constitutional deprivation. Garcia v. Grimm, No. 1:06-cv-225WQH (PCL), 2011 WL 817426, at *9, 2011 U.S. Dist. LEXIS 20522, at *24 (S.D.Cal. Mar. 2, 2011); see also Gilbrook v. City of Westminster, 177 F.3d 839, 856-57 (9th Cir.1999). “To be liable, each participant in the conspiracy need not know the exact details of the plan, but each participant must at least share the common objective of the conspiracy.” United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1541 (9th Cir.1989). Because conspiracies are secret agreements, “[a] defendant’s knowledge of and participation in a conspiracy may be inferred from circumstantial evidence and from evidence of the defendant’s actions.” Gilbrook, 177 F.3d at 856-57.

To plead a claim of conspiracy under § 1983, plaintiff must allege facts with sufficient particularity to show an agreement or a meeting of the minds to violate the plaintiffs constitutional rights. Miller v. California, 355 F.3d 1172, 1177 n. 3 (9th Cir.2004); Margolis v. Ryan, 140 F.3d 850, 853 (9th Cir.1998); Woodrum v. Woodward County, 866 F.2d 1121, 1126 (9th Cir.1989). “Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss.” Ivey, 673 F.2d at 268; see Ostrer v. Aronwald, 567 F.2d 551, 553 (2d Cir.1977).

Courts in the Ninth Circuit have required a plaintiff alleging a conspiracy to violate civil rights to state specific facts to support the existence of the claimed conspiracy. Olsen v. Idaho State Bd. of Medicine, 363 F.3d 916, 929 (9th Cir.2004) (discussing conspiracy claim under § 1985); Harris v. Roderick, 126 F.3d 1189, 1195-96 (9th Cir.1997) (applying heightened pleading standard to Bivens conspiracy claims); Bums v. County of King, 883 F.2d 819, 821 (9th Cir.1989) (“To state a claim for conspiracy to violate one’s constitutional rights under § 1983, the plaintiff must state specific facts to support the existence of the claimed conspiracy.”); accord Bash-kin v. Hickman, No. 07cv0995-LAB(CAB), 2008 WL 183696, at *2, 2008 U.S. Dist. LEXIS 4326, at *4 (S.D.Cal. Jan. 17, 2008).

First, Davis must allege an agreement between the Defendants to deprive him of a constitutional right. Grimm, 2011 WL 817426, at *9, 2011 U.S. Dist. LEXIS 20522, at *24. The agreement need not be overt and can be inferred from the actions of the Defendants. Crowe v. Cnty. of San Diego, 608 F.3d 406, 440 (9th Cir.2010). The Plaintiffs claim is that all of the Defendants “conspired to force him to purchase prayer oils” from their vendor. (Second Am. Compl. 9, ECF No. 29.) A conclusory statement that all the Defendants conspired to force Davis to purchase oil from their vendor is insufficient. See Crowe, 608 F.3d at 440; Secress v. Ullman, 147 Fed.Appx. 636, 638 (9th Cir. 2005).

Second, Davis must allege that the Defendants committed an overt act in furtherance of the conspiracy. Grimm, 2011 WL 817426, at *9, 2011 U.S. Dist. LEXIS 20522, at *24. There is no indication that the approved vendor, Union Supply, did not sell authentic prayer oil. Plaintiff does not attribute any specific acts to the Defendants, other than his blanket accusation that they “conspired to force” him to order oil from them vendor. (See Second Am. Compl. 9-10, ECF No. 29.) To the extent Plaintiff claims they conspired to force him to use their preferred vendor by issuing the October 25, 2010 addendum, an overt act that caused injury is adequately alleged. See Gibson v. United States, 781 F.2d 1334,1340 (9th Cir.1986).

Finally, to state a claim for conspiracy, Plaintiff must show that he was deprived of a constitutional right. Garcia v. Grimm, 2011 WL 817426, at *9, 2011 U.S. Dist. LEXIS 20522, at *24. Davis does not assert facts sufficient to establish a constitutional right to order religious items from his preferred vendor. See generally Thomas v. Little, 2009 WL 1938973, at *4-5, 2009 U.S. Dist. LEXIS 57568, at *15-18 (discussing approved-vendor policy under First Amendment and RLUIPA).

Defendants Powell, Borem, and Ours have shown that their Motion to Dismiss the improperly alleged conspiracy claims against them should be GRANTED. Similarly, a conspiracy claim against Warden Small would be futile because Davis has not presented facts illustrating that Defendant made an agreement with another to deprive Davis of a constitutional right and acted in furtherance of that agreement. See Gilbrook, 177 F.3d at 856-57. The conspiracy cause of action alleged against Small is improperly included and should be DISMISSED.

3. Equal Protection

Likewise, Davis improperly includes a new equal protection claim in his amended pleading without leave to do so. (Report & Recommendation 38-39, ECF No. 24; see Order 2, ECF No. 25.) He argues in count two that the September 16, 2009 addendum counting Muslim religious items as quarterly packages is discriminatory. (Second Am. Compl. 9, ECF No. 29.) The policy only mentions “prayer oil, [a] prayer rug, spiritual items, beads, etc.,” which Davis maintains are only Muslim religious articles. (Id.) Also, Plaintiff urges that the October 25, 2010 addendum, stating that religious item orders from Union Supply would not count as quarterly packages is discriminatory. (Id. at 9-10.) Davis complains that the October 2010 approved-vendor policy penalizes him for ordering oil from his Muslim vendor, a reliable supplier of noncontaminated religious items. (Id. at 10.)

As discussed in connection with Plaintiffs unauthorized retaliation and conspiracy claims, the Court will consider whether Davis would have been granted leave to amend if he properly sought to add a new equal protection cause of action. See Johnson, 356 F.3d at 1077 (listing factors relevant to granting leave to amend); Taylor, 2010 WL 5641065, at *6-7, 2010 U.S. Dist. LEXIS 140060, at *19.

The Court has already concluded that including a new claim in the Second Amended Complaint without authorization is evidence of bad faith, and adding an alternate theory of liability will not substantially prejudice the Defendants. Still, an amendment to include the Fourteenth Amendment claims may be futile.

The Supreme Court has stated that “whenever the government treats any person unequally because of his or her [membership in a protected class], that person has suffered an injury that falls squarely within the language and spirit of the Constitution’s guarantee of equal protection.” Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 229-30, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995); see also Damiano v. Florida Parole & Probation Comm’n, 785 F.2d 929, 932-33 (11th Cir.1986) (explaining that protected classes include race, religion, national origin, and poverty). “The Constitution’s equal protection guarantee ensures that prison officials cannot discriminate against particular religions.” Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir.1997), abrogated in part on other grounds by Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir.2008). The Fourteenth Amendment is not violated by unintentional conduct that may have a disparate impact. See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977); Washington v. Davis, 426 U.S. 229, 239, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). “[A] plaintiff must show that the defendants acted with an intent or purpose to discriminate against the plaintiff based upon membership in a protected class.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.1998).

“Prisoners enjoy religious freedom and equal protection of the law subject to restrictions and limitations necessitated by legitimate penological interests.” Freeman v. Arpaio, 125 F.3d at 737. Prison officials “must afford a prisoner of a minority religion ‘a reasonable opportunity of pursuing his faith comparable to the opportunity afforded fellow prisoners who adhere to conventional religious precepts.’ ” Id. (quoting Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972)); see Shakur, 514 F.3d at 891. Prisons need not provide identical treatment to different faiths, but they must make a “ ‘good faith accommodation of the [prisoners’] rights in light of practical considerations.’” Id. (alteration in original) (quoting Allen v. Toombs, 827 F.2d 563, 569 (9th Cir.1987)). Courts apply strict scrutiny “when distinctions are made on the basis of a suspect class, like religion.” Ass’n of Christian Schs. Int’l v. Steams, 362 FedAppx. 640, 646 (9th Cir.2010). If the policy is “facially neutral,” disproportionate impact on a protected class can “satisfy the intent requirement only if it tends to show that some invidious or discriminatory purpose underlies the policy.” Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir.2001) (citing Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. at 264-66, 97 S.Ct. 555).

In his Motion to Dismiss, Defendant Small argues that Davis does not plead that the discrimination is based on his membership in a protected class because he does not allege that other inmates had access to religious items that he did not. (Mot. Dismiss Attach. # 1 Mem. P. & A. 13, ECF No. 30.) “The memorandum does not refer to the Muslim religion, nor does it exclude any other religions from its application.” (Id. at 13-14.) In fact, Small contends, the addendum requires all religious orders to be counted as quarterly packages and has universal application. (Id. at 13 14.) The addendum furthers the legitimate government interest in controlling prisoner property to limit contraband. (Id. at 14.)

Davis counters by stating that chaplain approval is not required if he uses Union Supply for religious specialty orders, but it is required for nonapproved vendors. (Opp’n 8, ECF No. 31.) Plaintiff argues that ninety-five percent of prisoners at Calipatria are not Muslim, and the addendum only mentions Muslim religious items. (Id. at 8-9.) Plaintiff asserts he is being singled out because of his religion, and although section 3190(i)(4) of the California Code of Regulations allows inmates to have special order purchases from locally approved vendors, Davis contends that this package is different from the personal property package based upon the inmate’s privilege group status, referred to in section 3190(e). (Id. at 7, 9 (citing Cal. Code. Regs. tit. 15, § 3190 (2012)).)

Defendant Small argues in his Reply that Davis appears to complain that he could not order from the vendor of his choice once the October 25, 2010 addendum was issued. (See Reply 6, ECF No. 33.) Small asserts that choosing between vendors does not amount to discrimination. (Id.) Also, the restriction serves a legitimate penological interest because approving vendors in advance reduces administrative costs, speeds up mail delivery to inmates, and reduces the possibility of contraband. (Id.)

a. The September 16, 2009 addendum

To state an equal protection claim, Davis must allege that the Defendants acted with the intent to discriminate against him based on his membership in a protected class. Barren, 152 F.3d at 1194. Because he asserts discrimination based on religion, which is a protected class, the strict scrutiny standard is applied. Ass’n of Christian Schs. Int’l, 362 Fed.Appx. at 646. If the policy is facially neutral, Plaintiff must allege facts demonstrating that Small acted with a discriminatory purpose when enacting the policy, resulting in a disproportionate impact. See Lee, 250 F.3d at 686.

The September 2009 policy provides, in relevant part:

The following course of action will be implemented in Receiving and Release in regards to religious packages:

2. Special orders for the following items: prayer oil, [a] prayer rug, spiritual items, beads, etc., will be considered a quarterly package. The arrival date of the special order shall be the basis for the eligibility determination.

(Second Am. Compl. Attach. # 2 Ex. U, at 39, ECF No. 29.) Warden Small signed the addendum. (Id.)

Although Davis’s claim is that the policy targets only Muslim religious purchases, the addendum does not list any religion and is facially neutral. Lee, 250 F.3d at 686. Plaintiff has asserted a discriminatory impact on the protected class of Muslim practitioners because he and other Muslim inmates must count their orders as quarterly packages and choose between religious articles and other items. (Second Am. Compl. 9-10, ECF No. 29.)

“ ‘Discriminatory purpose’ ... implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker ... selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Navarro v. Block, 72 F.3d 712, 716 n. 5 (9th Cir.1995) (quoting Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979)). Some of the “o