ARTHUR BERAHA V. JAMES DZURENDA

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 20, 2022
• Docket: 20-16516
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 20 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ARTHUR JULIUS-GREENE BERAHA, No. 20-16516 FKA Travers A. Greene, D.C. No. Plaintiff-Appellant, 3:17-cv-00366-RCJ-CLB

v. MEMORANDUM* JAMES DZURENDA, et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Nevada Robert Clive Jones, District Judge, Presiding

Submitted December 20, 2022** San Francisco, California

Before: BADE, LEE, and KOH, Circuit Judges.

Arthur Julius-Greene Beraha, an inmate in the custody of the Nevada

Department of Corrections (“NDOC”), appeals pro se the district court’s grant of

summary judgment and Rule 12(b)(6) order dismissing his various claims against

* 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). prison officials, Inmate Calling Solutions, LLC (“ICS”), and CenturyLink Public

Communications, Inc.

Beraha asserts claims under 42 U.S.C. § 1983 for violations of his First and

Fourteenth Amendment rights; the Religious Land Use and Institutionalized Persons

Act (“RLUIPA”), 42 U.S.C. § 2000cc et seq.; the Communications Act of 1934, 47

U.S.C. § 201 et seq.; and state law. The court has jurisdiction under 28 U.S.C. § 1291

and reviews this matter de novo. Walker v. Beard, 789 F.3d 1125, 1131 (9th Cir.

2015) (dismissal under Federal Rule of Civil Procedure 12(b)(6)); Nev. Dep’t of

Corr. v. Greene, 648 F.3d 1014, 1018 (9th Cir. 2011) (summary judgment). For the

following reasons, the court affirms in part, vacates in part, and remands.

1. Fourteenth Amendment due process claim: The district court properly

granted summary judgment on Beraha’s Fourteenth Amendment due process claim

challenging certain deductions from an inmate’s account for expenses related to an

offender’s release or funeral. See Nev. Rev. Stat. §209.247. Beraha did not establish

a triable dispute as to whether the procedural protections afforded by the regulations

are inadequate. See Nev. Dep’t of Corr., 648 F.3d at 1019 (“An agency, such as the

NDOC, violates the Due Process Clause of the Fourteenth Amendment when it

prescribes and enforces forfeitures of property without underlying statutory

authority and competent procedural protections.” (cleaned up)).

2 2. First Amendment free exercise claim: The district court properly granted

summary judgment on Beraha’s First Amendment free-exercise claim because he

failed to raise a triable dispute as to whether the restriction on inmates’ personal use

of herbs, spices, and incense was not reasonably related to a legitimate penological

interest. See Turner v. Safley, 482 U.S. 78, 89 (1987) (“[W]hen a prison regulation

impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably

related to legitimate penological interests.”).

3. RLUIPA claim: The district court properly granted summary judgment on

Beraha’s RLUIPA claim because he failed to raise a triable dispute as to whether the

restriction is not the least restrictive means of furthering a compelling government

interest. See Walker, 789 F.3d at 1134 (once an inmate shows that he participates in

a religious exercise and the regulation substantially burdens that exercise, the burden

shifts to defendant to show that the regulation is “the least restrictive means of

furthering a compelling government interest”).

4. Injunctive relief claim: The district court properly granted summary

judgment on Beraha’s claim for injunctive relief permitting him to be free of

restraints during visits from ALEPH Institute volunteers because it is moot.

Defendants provided evidence that their policy has changed and cannot reasonably

be expected to recur. Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc.,

528 U.S. 167, 189 (2000) (a case may be mooted by a defendant’s voluntary conduct

3 “if subsequent events made it absolutely clear that the allegedly wrongful behavior

could not reasonably be expected to recur” (cleaned up)).

5. Communications Act of 1934 claim: The district court properly dismissed

Beraha’s Communications Act claim because a Federal Communications

Commission determination is a prerequisite to finding a private right of action, and

no such determination exists for the alleged practice of dropping inmate calls. See

47 U.S.C. § 201(b); N. Cnty. Commc’ns Corp. v. Cal. Catalog & Tech., 594 F.3d

1149, 1156, 1160 (9th Cir. 2010) (a plaintiff “cannot demonstrate a violation of

§ 201(b) in the absence of an FCC determination”).

The district court did not err in dismissing the claim with prejudice because

Beraha could not seek an FCC determination on the intrastate communications

described in his complaint, and the deficiencies in his complaint could not be saved

by amendment. See La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 360 (1986)

(“[T]he [Communications] Act grants to the FCC the authority to regulate ‘interstate

and foreign commerce in wire and radio communication,’ while expressly denying

that agency ‘jurisdiction with respect to . . . intrastate communication service . . . .’”

(citations omitted)); Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052

(9th Cir. 2003) (per curiam) (“Dismissal with prejudice and without leave to amend

is not appropriate unless it is clear on de novo review that the complaint could not

be saved by amendment.”).

4 6. State law claims: The district court acted within its discretion in declining

to exercise supplemental jurisdiction over the remaining state-law claims, but the

dismissal should have been without prejudice. See Carnegie-Mellon Univ. v. Cohill,

484 U.S. 343, 350 (1988) (“When the balance of . . . factors indicates that a case

properly belongs in state court, as when the federal-law claims have dropped out of

the lawsuit in its early stages and only state-law claims remain, the federal court

should decline the exercise of jurisdiction by dismissing the case without

prejudice.”); Costanich v. Dep’t of Soc. & Health Servs., 627 F.3d 1101, 1107 (9th

Cir. 2010) (explaining this court reviews the district court’s refusal to exercise

supplemental jurisdiction over state-law claims for abuse of discretion). We thus

vacate the judgment to the extent it dismisses Beraha’s state-law claims against

CenturyLink and ICS with prejudice, and remand for the purpose of entering

judgment on those claims without prejudice.1

The parties shall bear their own costs on appeal.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

1 The pending Motion to Substitute Party, filed on August 28, 2020 (Dkt. No. 19), is GRANTED. The Clerk is directed to substitute ICS Corrections, Inc., for CenturyLink Public Communications, Inc., on the docket.