Keith Nance v. Allen Miser

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 24, 2019
• Docket: 18-15628
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 24 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

KEITH PRESTON NANCE, No. 18-15628

Plaintiff-Appellant, D.C. No. 2:14-cv-00500-SMM

v. MEMORANDUM* ALLEN MISER, Senior Chaplain at Florence Complex ADC; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Arizona Stephen M. McNamee, District Judge, Presiding

Submitted April 17, 2019**

Before: McKEOWN, BYBEE, and OWENS, Circuit Judges.

Arizona state prisoner Keith Preston Nance appeals pro se from the district

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

Land Use and Institutionalized Persons Act (“RLUIPA”) alleging that defendants

interfered with the practice of his religion. We have jurisdiction under 28 U.S.C.

* 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). § 1291. We review de novo. Rosebrock v. Mathis, 745 F.3d 963, 970 n.8 (9th

Cir. 2014) (dismissal on the basis of mootness); United States v. Kellington, 217

F.3d 1084, 1092 (9th Cir. 2000) (a district court’s compliance with a mandate).

We affirm.

In Nance’s prior appeal, we remanded for the district court to enter summary

judgment in favor of Nance regarding “his request to order scented oils from an

approved vendor . . . .” Nance v. Miser, 700 F. App’x 629, 633 (9th Cir. June 29,

2017). The district court complied with our mandate by entering a final judgment

and permanent injunction that orders defendants to permit Nance to purchase, with

some limitations, scented oils from an approved vendor of religious products for

Muslims.

The district court did not abuse its discretion by entering the permanent

injunction with restrictions on the size of the bottles of scented oil that Nance is

now allowed to purchase. See Columbia Pictures Indus., Inc. v. Fung, 710 F.3d

1020, 1030 (9th Cir. 2013) (standard of review); Kellington, 217 F.3d at 1094 (a

mandate “leaves to the district court any issue not expressly or impliedly disposed

of on appeal” (citations omitted)); see also Worldwide Church of God v. Phila.

Church of God, Inc., 227 F.3d 1110, 1121 (9th Cir. 2000) (substantial burden

under RLUIPA must be “more than an inconvenience”). We reject as unsupported

by the record Nance’s contentions that the scented oils he can now purchase do not

2 18-15628 comply with Islamic law.

The district court properly dismissed as moot Nance’s RLUIPA claim

regarding the length of his beard because defendants have instituted a permanent

grooming waiver. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),

Inc., 528 U.S. 167, 170 (2000) (“A case might become moot if subsequent events

made it absolutely clear that the allegedly wrongful behavior could not reasonably

be expected to occur.” (citation omitted)).

We do not consider allegations that were not raised in the operative

complaint, including Nance’s due process claim. See Crawford v. Lungren, 96

F.3d 380, 389 n.6 (9th Cir. 1996) (declining to address claims raised for the first

time on appeal).

AFFIRMED.

3 18-15628