Anthony Merrick v. Charles Ryan

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 17 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ANTHONY JAMES MERRICK, No. 17-16053

Plaintiff-Appellant, D.C. No. 2:15-cv-00820-SPL

v. MEMORANDUM* CHARLES L. RYAN, Warden; MICHAEL LINDERMAN,

Defendants-Appellees.

Appeal from the United States District Court for the District of Arizona Steven Paul Logan, District Judge, Presiding

Submitted April 11, 2018**

Before: SILVERMAN, PAEZ, and OWENS, Circuit Judges.

Arizona state prisoner Anthony James Merrick appeals pro se from the

district court’s summary judgment in his action under 42 U.S.C. § 1983 and the

Religious Land Use and Institutionalized Persons Act (“RLUIPA”). We have

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Merrick’s request for oral argument, set forth in his briefs, is denied. jurisdiction under 28 U.S.C. § 1291. We review de novo, Guatay Christian

Fellowship v. County of San Diego, 670 F.3d 957, 970 (9th Cir. 2011), and we

affirm.

The district court properly granted summary judgment on Merrick’s free

exercise and RLUIPA claims because Merrick failed to raise a genuine dispute of

material fact as to whether his proffered religious beliefs were sincerely held. See

Cutter v. Wilkinson, 544 U.S. 709, 725 n.13 (2005) (inquiry into sincerity of

religious belief permitted under RLUIPA); Malik v. Brown, 16 F.3d 330, 333 (9th

Cir. 1994) (a claim under the free exercise clause of the First Amendment requires

a sincerely held religious belief).

The district court properly granted summary judgment on Merrick’s

Fourteenth Amendment equal protection claim because Merrick failed to raise a

genuine dispute of material fact as to whether Merrick was intentionally denied a

reasonable opportunity to pursue his faith as compared to prisoners of other faiths.

See Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir. 1997) (under § 1983, plaintiff

must show that officials intentionally acted in a discriminatory manner to establish

an equal protection claim), abrogated on other grounds as recognized by Shakur v.

Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008).

The district court properly granted summary judgment on Merrick’s

Establishment Clause claim because Merrick failed to raise a genuine dispute of

2 17-16053 material fact as to whether defendants’ policies had the primary or principal effect

of advancing religion, inhibiting religion, or fostering excessive government

entanglement with religion. See Inouye v. Kemna, 504 F.3d 705, 712 n. 7 (9th Cir.

2007) (setting forth test for Establishment Clause violation).

The district court did not abuse its discretion by denying Merrick’s motion

for appointment of counsel because Merrick did not demonstrate exceptional

circumstances. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting

forth standard of review and requirement of “exceptional circumstances” for

appointment of counsel).

We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.

3 17-16053