NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 1 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MICHAEL RAY FUQUA, AKA Michael No. 20-17162 Fuqua, D.C. No. 2:15-cv-00286-NVW Plaintiff - Appellant,
v. MEMORANDUM*
CHARLES L. RYAN, Director of ADC Central Office; CAMIT, Correctional Officer II at Special Management Unit #1; FRANCISCO, CO III at SMU #1; STERNS, Sgt. at SMU #1; CLARK, Kitchen Manager at Trinity Food Services; DANCE, Disciplinary Coordinator Sgt. at SMU #1; SCHITTER, Disciplinary Captain at SMU #1; PEKCO, CO II Kitchen Security at SMU #1; JAMES O’NEIL, SMU #1 Eyman Complex Deputy Warden; JEFF RODE, SMU #1 Eyman Complex Associate Deputy Warden; JENNIFER HERNANDEZ, COIV at SMU #1 Eyman Complex; CARSON MCWILLIAMS, ADOC Divisional Director; UNKNOWN PARTIES, ADOC Correctional Officers employed at ADOC - in their official and individual capacities, Central Office COIII, Central Office COIV, Central Office Deputy Warden, CO II Kitchen Security at SMU #1, Defendants - Appellees.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Appeal from the United States District Court for the District of Arizona Neil V. Wake, District Judge, Presiding
Argued and Submitted December 7, 2023 San Francisco, California
Before: COLLINS, FORREST, and SUNG, Circuit Judges.
Plaintiff-Appellant Michael Ray Fuqua, an inmate in the Arizona state
prison system, appeals from the final judgment entered against him in this action
alleging violations of his rights under the First Amendment’s Free Exercise Clause
and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) in
connection with the denial of his request to be excused from work at the prison
kitchen on a religious holiday. Fuqua challenges the district court’s grant of
summary judgment in favor of three prison officials (Defendants-Appellees
Rebecca Francisco, Anthony Camit, and Robert Starns) on all claims; the grant of
partial summary judgment in favor of Defendant-Appellee Robert Clark, an
employee of the private company that provided meals at the prison, on Fuqua’s
RLUIPA claim; and the jury verdict rendered in favor of Clark at a trial on Fuqua’s
First Amendment claim. We have jurisdiction under 28 U.S.C. § 1291. We
affirm.
1. The district court properly granted summary judgment to all four
Defendants on Fuqua’s RLUIPA claim. In a published opinion issued today in the
related case of Fuqua v. Raak, No. 21-15492, we have held that Wood v. Yordy,
2 753 F.3d 899 (9th Cir. 2014), forecloses suits seeking monetary damages under
RLUIPA against individual prison officials. In light of that decision, the district
court correctly applied Wood in rejecting Fuqua’s monetary claims under RLUIPA
against Francisco, Camit, Starns, and Clark. Fuqua’s opening brief provides no
persuasive basis for concluding that the district court erred in finding that his
requests for equitable relief under RLUIPA against these four Defendants were
moot.
2. The district court correctly granted summary judgment to Francisco,
Camit, and Starns on Fuqua’s First Amendment claim.
a. To establish a prima facie case on a Free Exercise violation arising from
prison regulations, a prison inmate must “demonstrate[] that the challenged
regulation impinges on his sincerely held religious exercise.” Jones v. Slade, 23
F.4th 1124, 1144 (9th Cir. 2022). If that showing is made, then “the burden shifts
to the government to show that the regulation is ‘reasonably related to legitimate
penological interests’” under the factors set forth in Turner v. Safley, 482 U.S. 78,
89–91 (1987). Jones, 23 F.4th at 1144 (citation omitted). As applicable here, the
Turner test requires a court to consider “(1) whether there is a valid, rational
connection between a state interest and the prison regulation; (2) whether prisoners
have an alternative method of engaging in religious practice; (3) the impact
accommodation of the asserted constitutional right would have on guards and other
3 inmates; and (4) the absence of ready alternatives to the challenged regulation.”
Walker v. Beard, 789 F.3d 1125, 1138–39 (9th Cir. 2015) (citing Turner, 482 U.S.
at 89–90).
b. The district court properly granted summary judgment to Francisco and
Camit on the ground that there was no evidence that they were personally involved
in the challenged actions that allegedly burdened Fuqua’s Free Exercise rights. On
appeal, Fuqua argues that they could be held liable on this record under a failure-
to-intervene theory, but that is wrong. “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 acts, or omits to perform an act which he
is legally required to do that causes the deprivation of which the plaintiff
complains.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (simplified)).
“The inquiry into causation must be individualized and focus on the duties and
responsibilities of each individual defendant whose acts or omissions are alleged to
have caused a constitutional deprivation.” Id. Fuqua failed to present sufficient
evidence to create a triable issue that Francisco or Camit had the legal authority to
grant Fuqua’s requested accommodation, much less that they were “legally
required” to intervene to assist him in pursuing that accommodation.
c. With respect to Starns, the district court correctly granted summary
judgment on the ground of qualified immunity.
4 Government officials are entitled to qualified immunity “unless (1) they
violated a federal statutory or constitutional right, and (2) the unlawfulness of their
conduct was ‘clearly established at the time.’” District of Columbia v. Wesby, 583
U.S. 48, 62–63 (2018) (citation omitted). “A right is clearly established when it is
‘sufficiently clear that every reasonable official would have understood that what
he is doing violates that right.’” Rivas-Villegas v. Cortesluna, 595 U.S. 1, 5 (2021)
(citation omitted).
When Fuqua asked Starns for the day off two days before the relevant
religious holiday, Starns complained that the kitchen “cannot operate that way”
and that Fuqua was required to submit such requests to the Senior Chaplain. The
district court concluded that there was a triable issue as to whether Starns had
violated Fuqua’s Free Exercise rights under the Turner factors, but it held that
Starns was entitled to qualified immunity because “a reasonable official in
Defendant Starns’ position would not have understood that his implementation of
[prison] policy under these circumstances was unlawful.”
In arguing for a contrary conclusion, Fuqua relies on Mayweathers v.
Newland, 258 F.3d 930 (9th Cir. 2001), but that case is “materially
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 1 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MICHAEL RAY FUQUA, AKA Michael No. 20-17162 Fuqua, D.C. No. 2:15-cv-00286-NVW Plaintiff - Appellant,
v. MEMORANDUM*
CHARLES L. RYAN, Director of ADC Central Office; CAMIT, Correctional Officer II at Special Management Unit #1; FRANCISCO, CO III at SMU #1; STERNS, Sgt. at SMU #1; CLARK, Kitchen Manager at Trinity Food Services; DANCE, Disciplinary Coordinator Sgt. at SMU #1; SCHITTER, Disciplinary Captain at SMU #1; PEKCO, CO II Kitchen Security at SMU #1; JAMES O’NEIL, SMU #1 Eyman Complex Deputy Warden; JEFF RODE, SMU #1 Eyman Complex Associate Deputy Warden; JENNIFER HERNANDEZ, COIV at SMU #1 Eyman Complex; CARSON MCWILLIAMS, ADOC Divisional Director; UNKNOWN PARTIES, ADOC Correctional Officers employed at ADOC - in their official and individual capacities, Central Office COIII, Central Office COIV, Central Office Deputy Warden, CO II Kitchen Security at SMU #1, Defendants - Appellees.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Appeal from the United States District Court for the District of Arizona Neil V. Wake, District Judge, Presiding
Argued and Submitted December 7, 2023 San Francisco, California
Before: COLLINS, FORREST, and SUNG, Circuit Judges.
Plaintiff-Appellant Michael Ray Fuqua, an inmate in the Arizona state
prison system, appeals from the final judgment entered against him in this action
alleging violations of his rights under the First Amendment’s Free Exercise Clause
and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) in
connection with the denial of his request to be excused from work at the prison
kitchen on a religious holiday. Fuqua challenges the district court’s grant of
summary judgment in favor of three prison officials (Defendants-Appellees
Rebecca Francisco, Anthony Camit, and Robert Starns) on all claims; the grant of
partial summary judgment in favor of Defendant-Appellee Robert Clark, an
employee of the private company that provided meals at the prison, on Fuqua’s
RLUIPA claim; and the jury verdict rendered in favor of Clark at a trial on Fuqua’s
First Amendment claim. We have jurisdiction under 28 U.S.C. § 1291. We
affirm.
1. The district court properly granted summary judgment to all four
Defendants on Fuqua’s RLUIPA claim. In a published opinion issued today in the
related case of Fuqua v. Raak, No. 21-15492, we have held that Wood v. Yordy,
2 753 F.3d 899 (9th Cir. 2014), forecloses suits seeking monetary damages under
RLUIPA against individual prison officials. In light of that decision, the district
court correctly applied Wood in rejecting Fuqua’s monetary claims under RLUIPA
against Francisco, Camit, Starns, and Clark. Fuqua’s opening brief provides no
persuasive basis for concluding that the district court erred in finding that his
requests for equitable relief under RLUIPA against these four Defendants were
moot.
2. The district court correctly granted summary judgment to Francisco,
Camit, and Starns on Fuqua’s First Amendment claim.
a. To establish a prima facie case on a Free Exercise violation arising from
prison regulations, a prison inmate must “demonstrate[] that the challenged
regulation impinges on his sincerely held religious exercise.” Jones v. Slade, 23
F.4th 1124, 1144 (9th Cir. 2022). If that showing is made, then “the burden shifts
to the government to show that the regulation is ‘reasonably related to legitimate
penological interests’” under the factors set forth in Turner v. Safley, 482 U.S. 78,
89–91 (1987). Jones, 23 F.4th at 1144 (citation omitted). As applicable here, the
Turner test requires a court to consider “(1) whether there is a valid, rational
connection between a state interest and the prison regulation; (2) whether prisoners
have an alternative method of engaging in religious practice; (3) the impact
accommodation of the asserted constitutional right would have on guards and other
3 inmates; and (4) the absence of ready alternatives to the challenged regulation.”
Walker v. Beard, 789 F.3d 1125, 1138–39 (9th Cir. 2015) (citing Turner, 482 U.S.
at 89–90).
b. The district court properly granted summary judgment to Francisco and
Camit on the ground that there was no evidence that they were personally involved
in the challenged actions that allegedly burdened Fuqua’s Free Exercise rights. On
appeal, Fuqua argues that they could be held liable on this record under a failure-
to-intervene theory, but that is wrong. “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 acts, or omits to perform an act which he
is legally required to do that causes the deprivation of which the plaintiff
complains.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (simplified)).
“The inquiry into causation must be individualized and focus on the duties and
responsibilities of each individual defendant whose acts or omissions are alleged to
have caused a constitutional deprivation.” Id. Fuqua failed to present sufficient
evidence to create a triable issue that Francisco or Camit had the legal authority to
grant Fuqua’s requested accommodation, much less that they were “legally
required” to intervene to assist him in pursuing that accommodation.
c. With respect to Starns, the district court correctly granted summary
judgment on the ground of qualified immunity.
4 Government officials are entitled to qualified immunity “unless (1) they
violated a federal statutory or constitutional right, and (2) the unlawfulness of their
conduct was ‘clearly established at the time.’” District of Columbia v. Wesby, 583
U.S. 48, 62–63 (2018) (citation omitted). “A right is clearly established when it is
‘sufficiently clear that every reasonable official would have understood that what
he is doing violates that right.’” Rivas-Villegas v. Cortesluna, 595 U.S. 1, 5 (2021)
(citation omitted).
When Fuqua asked Starns for the day off two days before the relevant
religious holiday, Starns complained that the kitchen “cannot operate that way”
and that Fuqua was required to submit such requests to the Senior Chaplain. The
district court concluded that there was a triable issue as to whether Starns had
violated Fuqua’s Free Exercise rights under the Turner factors, but it held that
Starns was entitled to qualified immunity because “a reasonable official in
Defendant Starns’ position would not have understood that his implementation of
[prison] policy under these circumstances was unlawful.”
In arguing for a contrary conclusion, Fuqua relies on Mayweathers v.
Newland, 258 F.3d 930 (9th Cir. 2001), but that case is “materially
distinguishable” in a way that precludes it from clearly establishing the applicable
law here. Rivas-Villegas, 595 U.S. at 5–6. Mayweathers involved prison officials’
appeal of a preliminary injunction in favor of a class of Muslim inmates who
5 sought to avoid discipline “for missing work to attend hour-long Friday Sabbath
services called Jumu’ah.” 258 F.3d at 933. There is, however, no discussion in the
opinion concerning the lawfulness of prison procedures for bringing such religious
scheduling conflicts to the attention of prison authorities in the first place.
Mayweathers thus did not clearly establish that Starns violated Fuqua’s Free
Exercise rights when Starns told Fuqua that any such request would have to go
through the prison chaplain. Moreover, there is authority upholding, in certain
circumstances, prison procedural requirements for presenting religious
accommodation requests. See Resnick v. Adams, 348 F.3d 763, 769–71 (9th Cir.
2003) (holding that a prison did not violate the Free Exercise Clause by requiring a
prisoner, who asked for a kosher diet, to fill out the standard form that the prison
used to evaluate such requests before the prison would consider any such request).
The district court correctly concluded that the applicable law was not clearly
established and that Starns was entitled to qualified immunity.
3. Fuqua has failed to present any persuasive grounds to set aside the jury’s
verdict in favor of Clark on Fuqua’s Free Exercise claim.
Fuqua asserts the district court abused its discretion by “preventing [him]
from reading the relevant verses from his Bible” that required him not to work on
the religious holiday in question. The district court did not abuse its discretion in
holding that, while Fuqua could explain the sincerity of his religious beliefs by
6 reference to relevant scriptural passages, he did not need to have a physical Bible
with him on the stand or to read the relevant passages verbatim. District courts
have discretion to “exercise reasonable control over the mode and order of
examining witnesses and presenting evidence so as to . . . make those procedures
effective for determining the truth . . . [and] avoid wasting time.” FED. R. EVID.
611(a). The district court’s modest limitations here fell well within its discretion to
avoid wasting time and to avoid what it thought was a potential for unfair prejudice
in having Fuqua testify directly from a physical Bible on the stand. But even if the
district court did abuse its discretion, there is no basis in the record for concluding
that this evidentiary limitation was more likely than not prejudicial. See Harper v.
City of Los Angeles, 533 F.3d 1010, 1030 (9th Cir. 2008).
To the extent that Fuqua challenges the jury verdict for Clark based on an
asserted lack of substantial evidence, any such appellate challenge is barred by his
failure to file a post-verdict motion for judgment as a matter of law in the district
court. See Nitco Holding Corp. v. Boujikian, 491 F.3d 1086, 1088 (9th Cir. 2007).
To the extent that Fuqua contends that Clark should have been held liable
under a failure-to-intervene theory, Fuqua failed to preserve any such issue through
an appropriate jury instruction, and he has not shown plain error on that score. See
FED. R. CIV. P. 51(d).
4. Fuqua’s remaining claims are waived by his failure to raise them on his
7 first appeal. See Fuqua v. Ryan, 890 F.3d 838 (9th Cir. 2018).
AFFIRMED.