ARTHUR BERAHA V. JAMES DZURENDA ( 2022 )

NOT FOR PUBLICATION FILED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. § 1291and 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)).
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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
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“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.”).
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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.
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