Brandon Wolcott v. Board of Rabbis of No & So Ca ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 20 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRANDON LEE WOLCOTT, No. 17-16791
Plaintiff-Appellant, D.C. No. 1:14-cv-00936-DAD-JLT
v.
MEMORANDUM*
BOARD OF RABBIS OF NORTHERN
AND SOUTHERN CALIFORNIA; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Dale A. Drozd, District Judge, Presiding
Submitted September 12, 2018**
Before: LEAVY, HAWKINS, and TALLMAN, Circuit Judges.
California state prisoner Brandon Lee Wolcott appeals pro se from the
district court’s judgment in his action under 42 U.S.C. § 1983 and the Religious
Land Use and Institutionalized Persons Act (“RLUIPA”). We have jurisdiction
under 28 U.S.C. § 1291. We review de novo a dismissal under 28 U.S.C. § 1915A.
*
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).
Wilhelm v. Rotman, 680 F.3d 1113, 1118 (9th Cir. 2012). We affirm in part,
reverse in part, and remand.
The district court properly dismissed Wolcott’s free exercise and RLUIPA
religious conversion claims because Wolcott failed to allege facts sufficient to
show that defendants acted under color of state law. See Florer v. Congregation
Pidyon Shevuyim, N.A., 639 F.3d 916, 924-27 (9th Cir. 2011) (religious
determinations made by prison chaplains pursuant to religious organization policy
do not constitute state action); Gritchen v. Collier, 254 F.3d 807, 812 (9th
Cir. 2001) (§ 1983 claim requires a showing that defendant’s actions were taken
under color of state law); see also 42 U.S.C. §§ 2000cc-1(a), 5(4)(A)(iii) (under
RLUIPA, plaintiff must show that a “government” has imposed a substantial
burden on plaintiff’s religious exercise and defining “government” to include a
“person acting under color of State law”).
The district court dismissed Wolcott’s free exercise and RLUIPA claims
against defendant Reynoso on the ground that Wolcott failed to allege a sincerely
held belief in Judaism. However, Wolcott alleged that his possession and use of
Jewish artifacts were restricted, such restrictions prevented him from fulfilling the
commandments of the Jewish faith, and a substantial burden on his exercise of
Judaism resulted. Liberally construed, these allegations are “sufficient to warrant
ordering [defendant] to file an answer.” Wilhelm, 680 F.3d at 1116; Shakur v.
2 17-16791
Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008) (Free Exercise Clause implicated
when prison practice burdens inmate’s sincerely-held religious beliefs); see also 42
U.S.C. § 2000cc-5(7)(A) (defining “religious exercise” as “any exercise of
religion, whether or not compelled by, or central to, a system of religious belief”).
We reverse and remand for further proceedings as to Wolcott’s free exercise and
RLUIPA claims against defendant Reynoso only.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Wolcott’s motion for appointment of counsel (Docket Entry No. 12) is
denied.
AFFIRMED in part, REVERSED in part, and REMANDED.
3 17-16791