FILED NOT FOR PUBLICATION JUL 7 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVEN ERICK RILEY, No. 17-56298
Plaintiff-Appellant, D.C. No. 3:16-cv-00405-MMA-JMA v.
SCOTT KERNAN, Secretary of MEMORANDUM* Corrections and Rehabilitations; et al.,
Defendants-Appellees.
Appeal from the United States District Court for the Southern District of California Michael M. Anello, District Judge, Presiding
Argued and Submitted May 8, 2020 Pasadena, California
Before: MURGUIA and CHRISTEN, Circuit Judges, and STEIN,** District Judge.
Steven Riley appeals the dismissal of his pro se complaint alleging various
constitutional violations related to Calipatria State Prison’s drug testing policies
and practices. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm in
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Sidney H. Stein, United States District Judge for the Southern District of New York, sitting by designation. part and reverse in part. Because the parties are familiar with the facts and
procedural history, we recite them only as necessary to resolve the issues on
appeal.
1. The appellees argue that Riley lacks standing to raise his claims under
the Fourth and Eighth Amendment. We are required to address this argument,
even though it was raised for the first time on appeal, because it implicates our
jurisdiction. Laub v. U.S. Dep’t of Interior, 342 F.3d 1080, 1085 (9th Cir. 2003).
We agree with Riley that construed generously he alleged enough facts to show he
has standing. See Jackson v. Gates, 975 F.2d 648, 653 (9th Cir. 1992) (holding
that plaintiff’s refusal to submit to unconstitutional drug testing and resulting
adverse consequences was sufficient to show plaintiff’s constitutional rights were
violated).
2. The district court did not err by dismissing Riley’s Fourth
Amendment claim on the merits. It is undisputed that urinalysis testing is a search
under the Fourth Amendment and that drug testing in the prison context is
generally constitutional unless it is conducted in an unreasonable manner. See
Thompson v. Souza, 111 F.3d 694, 701 (9th Cir. 1997). The reasonableness of
prison drug testing “requires ‘[b]alancing the significant and legitimate security
interests of the institution against the privacy interests of the inmates.’” Id. at 702
2 (quoting Bell v. Wolfish, 441 U.S. 520, 560 (1979)). Whether such practices are
reasonable under the Fourth Amendment depends on their scope, manner,
justification, and place. Id. at 700, 702. Riley did not allege sufficient facts to
state a plausible claim that Calipatria’s policy or practice of drug testing exceeds
constitutional limits under this standard.1
3. The district court did not err by dismissing Riley’s Eighth
Amendment claim. Eighth Amendment claims in the prison context must be
viewed in light of the Supreme Court’s “admonition to accord prison officials
‘wide-ranging deference in the adoption and execution of policies and practices to
further institutional order and security.’” Jeffers v. Gomez, 267 F.3d 895, 917 (9th
Cir. 2001) (per curiam) (quoting Whitley v. Albers, 475 U.S. 312, 321–22 (1986)).
Eighth Amendment claims require (1) “an objective showing that the deprivation
was ‘sufficiently serious’ to form the basis for an Eighth Amendment violation”;
and (2) “a subjective showing that the prison official acted ‘with a sufficiently
culpable state of mind.’” Hearns v. Terhune, 413 F.3d 1036, 1042 (9th Cir. 2005)
(quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). Riley did not allege
1 Riley’s pro bono counsel asserted facts on appeal that did not appear in the district court record. This is not permitted. See Ramirez v. Galaza, 334 F.3d 850, 859 n.6 (9th Cir. 2003) (“We have consistently held that a party may not raise new issues of fact on appeal after declining to present those facts before the trial court.”). 3 sufficient facts demonstrating that he suffered a sufficiently serious deprivation, or
that prison officials acted with deliberate indifference.
4. The district court did not err by dismissing Riley’s First Amendment
Establishment Clause claim premised on the prison referring him to Alcoholics
Anonymous/Narcotics Anonymous (AA/NA). To state an Establishment Clause
claim, Riley must allege that “the state acted”; the action amounted to coercion;
and “the object of the coercion [was] religious rather than secular.” Inouye v.
Kemna, 504 F.3d 705, 713 (9th Cir. 2007) (quoting Kerr v. Farrey, 95 F.3d 472,
479 (7th Cir. 1996)). Riley did not allege he was compelled to attend AA/NA, nor
could he, because the regulation in place at the time provided for an explicit
alternative to AA/NA imposed as a consequence for a disciplinary infraction. See
Cal. Code Regs. tit. 15, § 3315(f)(5)(J)(1) (2015) (“For the first offense, the inmate
shall be required to attend Alcoholic Anonymous or Narcotic Anonymous
meetings or assigned to a substance abuse education and/or treatment programs to
the extent such programs are available . . . .”) (emphasis added).
5. The district court did not abuse its discretion by denying Riley further
leave to amend his Fourth, Eighth, or First Amendment Establishment Clause
claims. The district court granted Riley leave to amend with specific instructions
about the deficiencies in his original complaint. Riley failed to correct those
4 deficiencies in his amended complaint, and on appeal he has not presented
sufficient facts that he would allege if granted additional leave on remand.
Therefore, the district court did not err by ruling that leave to amend would be
futile. See Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc).
6. The district court erred by dismissing Riley’s claim under the First
Amendment’s Free Exercise Clause and by failing to address Riley’s allegations
under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42
U.S.C. § 2000cc et seq. Riley clarified on appeal that he does not allege that these
claims encompass defendants’ decision to confiscate his prayer oil. His Free
Exercise and RLUIPA claims are limited to the prison’s urinalysis procedures.
Construed liberally and considering Riley’s amended complaint and “subsequent
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FILED NOT FOR PUBLICATION JUL 7 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVEN ERICK RILEY, No. 17-56298
Plaintiff-Appellant, D.C. No. 3:16-cv-00405-MMA-JMA v.
SCOTT KERNAN, Secretary of MEMORANDUM* Corrections and Rehabilitations; et al.,
Defendants-Appellees.
Appeal from the United States District Court for the Southern District of California Michael M. Anello, District Judge, Presiding
Argued and Submitted May 8, 2020 Pasadena, California
Before: MURGUIA and CHRISTEN, Circuit Judges, and STEIN,** District Judge.
Steven Riley appeals the dismissal of his pro se complaint alleging various
constitutional violations related to Calipatria State Prison’s drug testing policies
and practices. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm in
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Sidney H. Stein, United States District Judge for the Southern District of New York, sitting by designation. part and reverse in part. Because the parties are familiar with the facts and
procedural history, we recite them only as necessary to resolve the issues on
appeal.
1. The appellees argue that Riley lacks standing to raise his claims under
the Fourth and Eighth Amendment. We are required to address this argument,
even though it was raised for the first time on appeal, because it implicates our
jurisdiction. Laub v. U.S. Dep’t of Interior, 342 F.3d 1080, 1085 (9th Cir. 2003).
We agree with Riley that construed generously he alleged enough facts to show he
has standing. See Jackson v. Gates, 975 F.2d 648, 653 (9th Cir. 1992) (holding
that plaintiff’s refusal to submit to unconstitutional drug testing and resulting
adverse consequences was sufficient to show plaintiff’s constitutional rights were
violated).
2. The district court did not err by dismissing Riley’s Fourth
Amendment claim on the merits. It is undisputed that urinalysis testing is a search
under the Fourth Amendment and that drug testing in the prison context is
generally constitutional unless it is conducted in an unreasonable manner. See
Thompson v. Souza, 111 F.3d 694, 701 (9th Cir. 1997). The reasonableness of
prison drug testing “requires ‘[b]alancing the significant and legitimate security
interests of the institution against the privacy interests of the inmates.’” Id. at 702
2 (quoting Bell v. Wolfish, 441 U.S. 520, 560 (1979)). Whether such practices are
reasonable under the Fourth Amendment depends on their scope, manner,
justification, and place. Id. at 700, 702. Riley did not allege sufficient facts to
state a plausible claim that Calipatria’s policy or practice of drug testing exceeds
constitutional limits under this standard.1
3. The district court did not err by dismissing Riley’s Eighth
Amendment claim. Eighth Amendment claims in the prison context must be
viewed in light of the Supreme Court’s “admonition to accord prison officials
‘wide-ranging deference in the adoption and execution of policies and practices to
further institutional order and security.’” Jeffers v. Gomez, 267 F.3d 895, 917 (9th
Cir. 2001) (per curiam) (quoting Whitley v. Albers, 475 U.S. 312, 321–22 (1986)).
Eighth Amendment claims require (1) “an objective showing that the deprivation
was ‘sufficiently serious’ to form the basis for an Eighth Amendment violation”;
and (2) “a subjective showing that the prison official acted ‘with a sufficiently
culpable state of mind.’” Hearns v. Terhune, 413 F.3d 1036, 1042 (9th Cir. 2005)
(quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). Riley did not allege
1 Riley’s pro bono counsel asserted facts on appeal that did not appear in the district court record. This is not permitted. See Ramirez v. Galaza, 334 F.3d 850, 859 n.6 (9th Cir. 2003) (“We have consistently held that a party may not raise new issues of fact on appeal after declining to present those facts before the trial court.”). 3 sufficient facts demonstrating that he suffered a sufficiently serious deprivation, or
that prison officials acted with deliberate indifference.
4. The district court did not err by dismissing Riley’s First Amendment
Establishment Clause claim premised on the prison referring him to Alcoholics
Anonymous/Narcotics Anonymous (AA/NA). To state an Establishment Clause
claim, Riley must allege that “the state acted”; the action amounted to coercion;
and “the object of the coercion [was] religious rather than secular.” Inouye v.
Kemna, 504 F.3d 705, 713 (9th Cir. 2007) (quoting Kerr v. Farrey, 95 F.3d 472,
479 (7th Cir. 1996)). Riley did not allege he was compelled to attend AA/NA, nor
could he, because the regulation in place at the time provided for an explicit
alternative to AA/NA imposed as a consequence for a disciplinary infraction. See
Cal. Code Regs. tit. 15, § 3315(f)(5)(J)(1) (2015) (“For the first offense, the inmate
shall be required to attend Alcoholic Anonymous or Narcotic Anonymous
meetings or assigned to a substance abuse education and/or treatment programs to
the extent such programs are available . . . .”) (emphasis added).
5. The district court did not abuse its discretion by denying Riley further
leave to amend his Fourth, Eighth, or First Amendment Establishment Clause
claims. The district court granted Riley leave to amend with specific instructions
about the deficiencies in his original complaint. Riley failed to correct those
4 deficiencies in his amended complaint, and on appeal he has not presented
sufficient facts that he would allege if granted additional leave on remand.
Therefore, the district court did not err by ruling that leave to amend would be
futile. See Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc).
6. The district court erred by dismissing Riley’s claim under the First
Amendment’s Free Exercise Clause and by failing to address Riley’s allegations
under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42
U.S.C. § 2000cc et seq. Riley clarified on appeal that he does not allege that these
claims encompass defendants’ decision to confiscate his prayer oil. His Free
Exercise and RLUIPA claims are limited to the prison’s urinalysis procedures.
Construed liberally and considering Riley’s amended complaint and “subsequent
filings,” Riley alleged sufficient facts to put the defendants on notice that the
prison’s urinalysis procedures interfered with his religious belief against giving
away his bodily fluids or DNA. See Walker v. Beard, 789 F.3d 1125, 1133 (9th
Cir. 2015); Alvarez v. Hill, 518 F.3d 1152, 1157 (9th Cir. 2008).
7. The district court did not address the merits of Riley’s First
Amendment retaliation claim. Riley alleged sufficient facts in his original
complaint to indicate that he was raising a First Amendment retaliation claim,
including that he was “bullied and harassed for invoking his rights,” and that his
5 administrative appeals were screened out “for nefarious reasons” and to chill his
“right of redress.” His amended complaint elaborated on those allegations.
However, the district court did not address this as a retaliation claim.2
We remand for further proceedings consistent with this disposition on
Riley’s claim under the First Amendment’s Free Exercise Clause, and for the
district court to consider Riley’s RLUIPA and First Amendment retaliation claims
in the first instance. We recommend that Riley be appointed counsel for further
proceedings.
AFFIRMED IN PART, REVERSED IN PART AND REMANDED, with
the parties to bear their own costs.
2 Under the Double Jeopardy Clause, the district court addressed Riley’s allegations that defendants retaliated against him by “stacking” his RVRs. 6