Clarence Jones v. Max Williams , 791 F.3d 1023 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CLARENCE EUGENE JONES, No. 12-35131
Plaintiff-Appellant,
D.C. No.
v. 6:09-cv-00029-
TC
MAX WILLIAMS, in his official and
individual capacity as Corrections
Director for the Oregon Department OPINION
of Corrections; COLLETTE PETERS, in
her official capacity and individual
capacity as Inspector General of
Oregon Department of Corrections;
TIM O’CONNORS, in his official
capacity and individual capacity as
Administrator of Religious Services;
CHAPLAIN HOLBROOK, in his official
and individual capacity as Chaplain
of the Oregon State Penitentiary;
KEITH DAVIS, in his official and
individual capacity as Food Service
Manager of the Oregon State
Penitentiary; D. GILLIES, in his
official and individual capacity as
Assistant Food Manager of the
Oregon State Penitentiary; R.
RIDDERBUSCH, in his official and
individual capacity as Assistant Food
Manager of the Oregon State
Penitentiary; LARRY KUTNAR, in his
2 JONES V. WILLIAMS
official and individual capacity as
Lieutenant and Food Service
Coordinator; G. MCBRIDE, in his
official and individual capacity as
Food Service Coordinator of the
Oregon State Penitentiary; R. NOPP,
in his official and individual capacity
as Food Service Coordinator at the
Oregon State Penitentiary; AARON
BALES, in his official and individual
capacity as Grievance Coordinator of
the Oregon State Penitentiary;
MICHAEL DODSON, in his official
and individual capacity as
Discrimination Complaint Officer at
the Oregon State Penitentiary;
BRIAN BELLEQUE, in his official and
individual capacity as
Superintendent of the Oregon State
Penitentiary; LAURIE MINCHER, in
her official and individual capacity
as Food Service Coordinator at the
Oregon State Penitentiary; KEITH
BALLER, in his individual capacity as
an inmate assigned as a cook at the
Oregon State Penitentiary; M.
WHITNEY DODSON, in his official
and individual capacity as supervisor
of Grievance Coordinator at the
Oregon State Penitentiary,
Defendants-Appellees.
JONES V. WILLIAMS 3
Appeal from the United States District Court
for the District of Oregon
Ann Aiken, Chief District Judge, Presiding
Submitted October 6, 2014*
Portland, Oregon
Filed June 26, 2015
Before: Alex Kozinski, Ferdinand F. Fernandez,
and Andre M. Davis,** Circuit Judges.
Opinion by Judge Davis
SUMMARY***
Prisoner Civil Rights
The panel affirmed in part and reversed in part the district
court’s summary judgment and remanded in an action
brought under 42 U.S.C. § 1983 and the Religious Land Use
and Institutionalized Persons Act by a Muslim inmate whose
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**
The Honorable Andre M. Davis, Senior Circuit Judge for the United
States Court of Appeals for the Fourth Circuit, sitting by designation.
***
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 JONES V. WILLIAMS
religious beliefs forbid him from consuming or handling
pork.
Affirming the district court’s’ summary judgment in favor
of appellees on the claims brought under the Religious Land
Use and Institutionalized Persons Act, the panel held that
under Sossamon v. Texas, 131 S. Ct. 1651, 1658–59 (2011),
and Wood v. Yordy, 753 F.3d 899, 903–04 (9th Cir. 2014),
appellant could not obtain the monetary relief he sought. The
panel further determined that the claims for injunctive relief
were moot because appellant had been released.
Addressing appellant’s three free exercise claims brought
under § 1983, the panel first affirmed the district court’s
summary judgment in favor of appellees on the claim arising
from the events of May 31, 2007. The panel held that
appellant’s evidence was not sufficient to raise an issue of
fact as to whether a tamale pie contained pork or whether the
prison’s food service coordinator ordered cooks to add pork
to the dish. The panel reversed the grant of summary
judgment on a § 1983 claim arising from the events of July 8,
2007, and held that defendants were not entitled to qualified
immunity from appellant’s claim that he was ordered to cook
pork loins as part of his job duties in the kitchen. The panel
affirmed the district court’s summary judgment in favor of
appellees on appellant’s claim challenging the prison’s
method of cleaning grills on which meats served to inmates
are cooked.
Addressing appellant’s First Amendment retaliation
claim, the panel held that there were genuine issues as to
whether a food services manager retaliated against appellant
for his complaints of discrimination and his threat to sue.
JONES V. WILLIAMS 5
The panel affirmed the district court’s summary judgment
in favor of prison officials on appellant’s equal protection
claim arising from an altercation. The panel determined that
appellant pointed to no evidence that his placement in
disciplinary segregation and subsequent proceedings against
him were motivated by the fact that he is African-American.
COUNSEL
Clarence Eugene Jones, Portland, Oregon, pro se.
Denise Gale Fjordbeck, Assistant Attorney General, Oregon
Department of Justice, Salem, Oregon, for Defendants-
Appellees.
OPINION
DAVIS, Circuit Judge:
Clarence Jones, a former inmate of the Oregon State
Penitentiary (“the Penitentiary”), appeals from the district
court’s grant of summary judgment in favor of Appellees,
fifteen employees of the Oregon Department of Corrections
(“the Department”),1 on several civil rights claims brought
under 42 U.S.C. § 1983 and the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”), 42 U.S.C.
1
An inmate, Keith Baller, is also named as a defendant-appellee.
Although Baller did not move for summary judgment and the district court
did not specifically address this claim, the district court entered judgment
in favor of all defendants. Jones does not challenge the dismissal of this
claim on appeal, and therefore any error is waived.
6 JONES V. WILLIAMS
§§ 2000cc–2000cc-5. We affirm in part, vacate in part, and
remand to the district court for further proceedings.
I.
A.
Jones is a Muslim and a member of the Nation of Islam,
a religious organization. His religious beliefs forbid him
from consuming or handling pork.
Jones’s claims arise from the following events, which we
recount in chronological order. From October 2006 to
October 2008, while in custody of the Department, Jones was
assigned to work in the kitchen at the Penitentiary, initially as
a server on the food service line. Shortly after his assignment
to the food service line, Jones complained to his supervisors
about being required to serve pork food items and requested
to be reassigned from the serving line to a kitchen-entry
position, which would allow him to avoid handling pork.
According to Jones, he and other black inmates were required
to work at least thirty days on the line before they could work
in a kitchen-entry position, whereas certain white inmates
were not subject to a thirty-day waiting period. Jones alleges
that in November 2006, Appellee Keith Davis, Food Services
Manager at the Penitentiary, told Jones that the prison would
take disciplinary action against him if he refused orders to
serve or handle pork. On January 7, 2007, Jones filed an
administrative discrimination complaint describing Davis’s
threats of disciplinary action and citing case law in support of
his asserted right to abstain from handling pork.
On January 8, 2007, Jones approached Appellee Richard
Ridderbusch, an Assistant Food Services Manager, to discuss
JONES V. WILLIAMS 7
his requests for reassignment. Jones told Ridderbusch that he
would file a lawsuit in federal court against Ridderbusch for
discrimination. The parties dispute the circumstances of the
interaction between Jones and Ridderbusch. Jones declares
that there were between 30 and 40 inmates working in the
kitchen at the time but that none were in the immediate area
or could hear the conversation. Ridderbusch declares that 40
to 50 inmates were working in the immediate area.
Ridderbusch also declares that Jones accused him of being a
racist and acted in a threatening and inflammatory manner,
which resulted in “a serious risk that other inmates would
become riled creating a security concern.” Ridderbusch
subsequently issued a daily performance failure report.2 The
report stated as reasons for the assessment “attitude” and that
Jones “accused [Ridderbusch] of discriminating in hiring,
threatened to sue in fed[eral] court, [and] was not reciptive
[sic] to earning his way.” The daily performance failure
resulted in Jones not receiving points for that day toward
awards of program incentives.
Jones was taken off the food service line and reassigned
as a cook on February 7, 2007.
On March 9, 2007, Appellee Brian Belleque,
Superintendent of the Penitentiary, responded in writing to
Jones’s January 7, 2007 administrative discrimination
complaint. In the response memorandum, Belleque stated
2
The Department administers a Performance Recognition and Award
System of monetary awards and other incentives to recognize and
encourage good institutional conduct. Inmates with work assignments in
the program are either granted or denied points based on a daily
assessment of their performance quality and effort, interpersonal
communications, and other factors.
8 JONES V. WILLIAMS
that there was “no current policy” governing the issue raised
by Jones but that “there is no need to require Muslim inmates
to handle pork.” The memorandum continued: “As a
Muslim, you should notify your supervisor of your religion
and that you are not allowed to handle pork. Every effort will
be made to provide a work program that does not require you
to handle pork.”
When serving food items containing pork, the prison had
a practice of displaying a sign to indicate the items’ pork
contents. On May 31, 2007, Jones obtained a tamale pie for
lunch. There was no sign displayed indicating that the item
contained pork. Jones ate a few bites of the tamale pie before
Raymond Mayes, another inmate, told Jones that the item
contained pork. Mayes states in his affidavit that he told
Jones “that the tamale pie contained pork because [Appellee
Richard Nopp, a Food Service Coordinator working in the
kitchen that day,] had pork mixed in with the beef for the
making of the tamale pie for lunch . . . .” Jones declares that,
on June 2, 2007, Tom Peacock, a cook, told Jones that Nopp
had ordered Peacock to add pork to the meat in the tamale pie
and that Peacock added pork as directed while Nopp watched.
Nopp denies ordering cooks to add pork to the meat in the
tamale pie and declares that no pork was added to the tamale
pie.
On July 8, 2007, Appellee G. McBride, a Food Service
Coordinator, ordered Jones to fry pork loins. Jones alleges
that he told McBride that he was a Muslim and that cooking
pork was against his religious beliefs, but that McBride
threatened to issue a daily performance failure or possibly a
misconduct report if Jones refused the order. Jones declares
that he complained to Appellee Larry Kutnar, McBride’s
supervisor, and, after speaking with McBride and
JONES V. WILLIAMS 9
Ridderbusch, Kutnar told Jones that “those up high” had
ordered that Jones prepare the pork loins. Jones prepared the
pork loins as ordered, which required him to dip the loins into
a flour mixture, cook them on grills, and then place them in
pans.
On July 10, 2007, with Davis present, Ridderbusch told
Jones that he had been ordered to prepare pork loins because
the last memorandum Ridderbusch received said it was
permissible for Jones to prepare pork. Ridderbusch stated,
however, that he discovered a new memorandum issued in
January 2007 stating that Muslim inmates should not be
ordered to serve or prepare pork.3 Ridderbusch claims that he
was not aware of the new memorandum until after Jones was
ordered to cook pork on July 8, 2007. The same day, Jones
complained to Davis and Ridderbusch that the grills in the
kitchen were contaminated with pork grease by Islamic
standards, and, according to Jones, Davis acknowledged the
contamination.
On October 29, 2008, Jones and Glen Leonard, a white
inmate, got into an argument in the presence of Appellee
Laurie Mincher, a Food Service Coordinator. At some point,
Leonard walked up close to Jones, and Jones placed his hand
on Leonard’s chest and pushed him backward. Mincher
intervened, took Jones to disciplinary segregation, and issued
a misconduct report describing the incident and charging
Jones with “Assault 3,” a violation of prison rules. Colleen
Clemente, a Hearings Officer at the Penitentiary,
3
The March 9, 2007 memorandum responding to Jones’s January 7,
2007 administrative discrimination complaint states that copies of the
memorandum were to be sent to Davis and others, but the list does not
include Ridderbusch, Kutnar, or McBride.
10 JONES V. WILLIAMS
subsequently convened disciplinary hearings on November 5,
and December 1, 2008. Witness testimony and an
investigation report were presented at the hearings. Clemente
found that Jones committed a unilateral attack on another
inmate in violation of prison rules and recommended
disciplinary action against Jones.
B.
Jones filed suit in the United States District Court for the
District of Oregon against Appellees in their individual and
official capacities. Jones’s complaint alleges that Appellees
violated free speech and free exercise rights guaranteed by
the First and Fourteenth Amendments, and equal protection
rights guaranteed by the Fourteenth Amendment. Jones seeks
monetary damages and injunctive relief under § 1983 and
RLUIPA. Appellees moved for summary judgment. Jones
opposed the motion in a Response and Sur-Response, to
which Appellees replied. The district court adopted the
findings and recommendation of the magistrate judge and
granted summary judgment in favor of Appellees on all of
Jones’s claims. Jones appeals.
II.
We review the district court’s grant of summary judgment
de novo. Barnett v. Centoni, 31 F.3d 813, 815 (9th Cir. 1994)
(per curiam). “Summary judgment is only appropriate if the
evidence, read in the light most favorable to the nonmoving
party, demonstrates that there is no genuine issue of material
fact, and that the moving party is entitled to judgment as a
matter of law.” Bruce v. Ylst, 351 F.3d 1283, 1287 (9th Cir.
2003) (citing Fed. R. Civ. P. 56(c)). “In order to carry its
burden of production, the moving party must either produce
JONES V. WILLIAMS 11
evidence negating an essential element of the nonmoving
party’s claim or defense or show that the nonmoving party
does not have enough evidence of an essential element to
carry its ultimate burden of persuasion at trial.” Nissan Fire
& Marine Ins. Co. v. Fritz Cos., Inc., 210 F.3d 1099, 1102
(9th Cir. 2000).
A.
Jones cannot obtain the monetary and injunctive relief he
seeks under RLUIPA. The statute provides that a person
asserting a violation of the statute “as a claim or defense in a
judicial proceeding” may “obtain appropriate relief against a
government.” 42 U.S.C. § 2000cc-2(a). In Sossamon v.
Texas, the Supreme Court held that RLUIPA’s use of the
phrase “appropriate relief” is not an unequivocal expression
of state consent to private suits for monetary damages and
therefore does not operate to effect a waiver of the states’
sovereign immunity from such suits. 131 S. Ct. 1651,
1658–59 (2011); see also Oklevueha Native Am. Church of
Haw. v. Holder, 676 F.3d 829, 840–41 (9th Cir. 2012).
Additionally, as we recognized in Wood v. Yordy, RLUIPA
does not authorize suits for damages against state officials in
their individual capacities because individual state officials
are not recipients of federal funding and nothing in the statute
suggests any congressional intent to hold them individually
liable. 753 F.3d 899, 903–04 (9th Cir. 2014).
Jones’s RLUIPA claims for injunctive relief are moot
because Jones has been released from custody.4 Federal
4
We take judicial notice of the fact that Jones was released during the
pendency of this appeal. See Harris v. Cnty. of Orange, 682 F.3d 1126,
1132 (9th Cir. 2012).
12 JONES V. WILLIAMS
courts lack jurisdiction over claims that have been rendered
moot because “the issues presented are no longer live” or
because the parties no longer possess “a legally cognizable
interest in the outcome.” Alvarez v. Hill, 667 F.3d 1061,
1064 (9th Cir. 2012) (quoting U.S. Parole Comm’n v.
Geraghty, 445 U.S. 388, 396 (1980)). “Once an inmate is
removed from the environment in which he is subjected to the
challenged policy or practice, absent a claim for damages, he
no longer has a legally cognizable interest in a judicial
decision on the merits of his claim.” Alvarez, 667 F.3d at
1064 (quoting Incumaa v. Ozmint, 507 F.3d 281, 287 (4th Cir.
2007)). Jones has been removed from the environment in
which he was subjected to the alleged RLUIPA violations.
The record discloses no evidence of continuing effects of the
alleged violations on Jones and no reasonable expectation that
Appellees could violate Jones’s rights in the future. See Cnty.
of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); Lindquist
v. Idaho State Bd. of Corr., 776 F.2d 851, 854 (9th Cir. 1985).
In this situation, any injunctive relief ordered in Jones’ favor
“would have no practical impact on [his] rights and would not
redress in any way the injury he originally asserted.”
Incumaa, 507 F.3d at 287.
Accordingly, we affirm the district court’s grant of
summary judgment in favor of Appellees on all of Jones’s
RLUIPA claims.
B.
We now turn to Jones’s three § 1983 free exercise claims.
A person asserting a free exercise claim must show that
the government action in question substantially burdens the
person’s practice of her religion. Graham v. C.I.R., 822 F.2d
JONES V. WILLIAMS 13
844, 851 (9th Cir. 1987), aff’d sub nom. Hernandez v. C.I.R.,
490 U.S. 680, 699 (1989). “A substantial burden . . . place[s]
more than an inconvenience on religious exercise; it must
have a tendency to coerce individuals into acting contrary to
their religious beliefs or exert substantial pressure on an
adherent to modify his behavior and to violate his beliefs.”
Ohno v. Yasuma, 723 F.3d 984, 1011 (9th Cir. 2013) (quoting
Guru Nanak Sikh Soc’y of Yuba City v. Cnty. of Sutter,
456 F.3d 978, 988 (9th Cir. 2006) (internal quotation marks
and alterations omitted)).
“The right to exercise religious practices and beliefs does
not terminate at the prison door[,]” McElyea v. Babbitt,
833 F.2d 196, 197 (9th Cir. 1987) (citing O’Lone v. Estate of
Shabazz, 482 U.S. 342, 348 (1987)), but a prisoner’s right to
free exercise of religion “is necessarily limited by the fact of
incarceration,” Ward v. Walsh, 1 F.3d 873, 876 (9th Cir.
1993) (citing O’Lone, 482 U.S. at 348). “To ensure that
courts afford appropriate deference to prison officials,” the
Supreme Court has directed that alleged infringements of
prisoners’ free exercise rights be “judged under a
‘reasonableness’ test less restrictive than that ordinarily
applied to alleged infringements of fundamental
constitutional rights.” O’Lone, 482 U.S. at 349. The
challenged conduct “is valid if it is reasonably related to
legitimate penological interests.” Id. (quoting Turner v.
Safley, 482 U.S. 78, 89 (1987)).5
5
The factors to be considered in assessing the reasonableness of
practices that burden prisoners’ constitutional rights are well established:
(1) whether there is a “‘valid, rational connection’” between the conduct
of prison officials and “the legitimate governmental interest put forward
to justify it”; (2) “whether there are ‘alternative means of exercising the
right that remain open to prison inmates’”; (3) “the impact accommodation
of the asserted constitutional right will have on guards and other inmates,
14 JONES V. WILLIAMS
Jones asserts three § 1983 free exercise claims, all rooted
in his religious beliefs against consuming and handling pork.
1.
The first claim arises from the events of May 31, 2007.
Jones alleges that he was served and ate part of a tamale pie
without having been notified of its pork contents. Nopp
declares, however, that he did not order cooks to add pork to
the tamale pie and that the tamale pie did not contain pork.
Jones’s evidence is not sufficient to raise an issue of fact
as to whether the tamale pie contained pork and or whether
Nopp ordered cooks to add pork to the dish. The unsworn
statements of the inmate cook who told Jones that Nopp had
directed the cook to mix pork in with the meat used in the
tamale pie are hearsay, see Fed. R. Evid. 801(c), and cannot
properly be considered in opposition to a summary judgment
motion. See Fed. R. Civ. P. 56(c)(4); Block v. City of Los
Angeles, 253 F.3d 410, 419 (9th Cir. 2001) (holding that it
was an abuse of discretion for the district court, at the
summary judgment stage, to consider information from an
affidavit based on inadmissible hearsay rather than the
affiant’s personal knowledge). Raymond Mayes, another
inmate kitchen worker, states in an affidavit that he told Jones
and Appellee Michael Dodson that Nopp had pork mixed in
with the tamale pie meat, but Mayes’s statements to Jones
and Dodson were unsworn. References to such unsworn
statements are insufficient to generate a genuine dispute of
fact. Therefore, we affirm summary judgment in favor of
and on the allocation of prison resources generally”; and (4) whether there
are “ready alternatives” to the prison’s practice. Ward, 1 F.3d at 876
(quoting Turner, 482 U.S. at 89–90).
JONES V. WILLIAMS 15
Appellees on the § 1983 claim arising from the events of May
31, 2007.
2.
Jones’s second § 1983 free exercise claim arises from the
events of July 8, 2007. Jones alleges that he was ordered to
cook pork loins as part of his job duties in the kitchen at the
Penitentiary. The district court held that Appellees are
entitled to qualified immunity from this claim. We disagree.
The doctrine of qualified immunity “seeks to ensure that
defendants reasonably can anticipate when their conduct may
give rise to liability . . . by attaching liability only if the
contours of the right violated are sufficiently clear that a
reasonable official would understand that what he is doing
violates that right[.]” United States v. Lanier, 520 U.S. 259,
270 (1997) (internal quotation marks, alterations, and
citations omitted). “Government officials are not entitled to
qualified immunity if (1) the facts ‘[t]aken in the light most
favorable to the party asserting the injury . . . show [that] the
[defendants’] conduct violated a constitutional right’ and
(2) the right was clearly established at the time of the alleged
violation.” Sandoval v. Las Vegas Metro. Police Dep’t,
756 F.3d 1154, 1160 (9th Cir. 2014) (quoting Saucier v. Katz,
533 U.S. 194, 201 (2001)).
It was well established in 2007, and remains so today, that
government action places a substantial burden on an
individual’s right to free exercise of religion when it tends to
coerce the individual to forego her sincerely held religious
beliefs or to engage in conduct that violates those beliefs. See
Sherbert v. Verner, 374 U.S. 398, 404, 406 (1963); Thomas
v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 717–18
16 JONES V. WILLIAMS
(1981); Guru Nanak Sikh Soc’y, 456 F.3d at 988.
“[R]equiring a believer to defile himself by doing something
that is completely forbidden by his religion is different from
(and more serious than) curtailing various ways of expressing
beliefs for which alternatives are available.” Ashelman v.
Wawrzaszek, 111 F.3d 674, 677 (9th Cir. 1997). In
Ashelman, for example, we held that a Jewish inmate had the
right to a kosher diet and disposable utensils. Id. at 678. We
explained that, in the case of dietary restrictions, the inmate
had no alternative means of exercising the right, whereas
there were “obvious, easy alternatives” that the prison could
implement. Id. (internal quotation marks omitted). “The
existence of reasonable alternatives decisively tip[ped] the
balance in favor of [the inmate’s] free exercise right.” Id.;
see also McElyea, 833 F.2d at 198.
These constitutional principles apply with “obvious
clarity” here and provided a “fair and clear warning” that
Jones had a right to abstain from conduct directly violative of
his religious beliefs. Lanier, 520 U.S. at 271. Ordering a
Muslim prisoner to handle pork requires him “to defile
himself by doing something that is completely forbidden by
his religion.” Ashelman, 111 F.3d at 677. And there are no
alternative means of allowing Jones to exercise his right to
avoid handling pork besides not ordering him to handle pork.
Accommodating Jones’s right to avoid handling pork isn’t
less burdensome than the religious-based accommodations,
such as providing Kosher diets and disposable utensils, that
we have held for many years are constitutionally required.
Indeed, several months before Jones was ordered to handle
pork, Superintendent Belleque informed Jones that “there is
no need to require Muslim inmates to handle pork.”
Belleque’s memo strongly indicates that assigning Jones a
task that did not require him to violate his religious beliefs
JONES V. WILLIAMS 17
was a ready option and would not significantly affect prison
personnel, other inmates, or the general allocation of prison
resources.
“We may also look to the law of other circuits to
determine if a principle is clearly established.” Tamas v.
Dep’t of Soc. & Health Servs., 630 F.3d 833, 846 (9th Cir.
2010). Between 1974 and 2006, four other circuits held that
prisoners have the free exercise right to avoid handling
certain foods as part of their work duties. See Williams v.
Bitner, 455 F.3d 186, 193–94 (3d Cir. 2006) (finding this
right clearly established); Hayes v. Long, 72 F.3d 70, 74 (8th
Cir. 1995) (same); Kenner v. Phelps, 605 F.2d 850, 851 (5th
Cir. 1979); Chapman v. Kleindienst, 507 F.2d 1246, 1251–52
(7th Cir. 1974).
Appellees nevertheless argue that they are entitled to
qualified immunity because ordering Jones to cook pork was
“in furtherance of what the ordering officers understood the
prison’s policy to be at the time.” To be sure, in certain
cases, the “information possessed by the officer” may be a
factor in determining whether an officer is entitled to
qualified immunity. See Inouye v. Kemna, 504 F.3d 705, 712
(9th Cir. 2007) (internal quotation marks omitted). But this
is an objective inquiry. “The subjective beliefs of the actual
officer are, of course, irrelevant.” Id. (internal quotation
marks omitted). Here, there is at least an issue of material
fact as to what a reasonable officer at the Penitentiary should
have known on July 8, 2007. Several months before McBride
ordered Jones to cook pork loins, the Penitentiary
implemented a new policy providing that an inmate could opt
out of handling pork on religious grounds. And Jones alleges
that he told the officers in charge that he had the right to not
handle pork. That some officers claim they were not
18 JONES V. WILLIAMS
personally aware of the policy change or Belleque’s memo to
Jones is not sufficient to show that Jones’s right to avoid
handling pork was not clearly established.
In sum, viewing the record in the light most favorable to
Jones, Appellees’ conduct violated Jones’s clearly established
right to avoid handling pork on the basis of his religious
beliefs. On this record, Appellees are not entitled to qualified
immunity.6 Therefore, we reverse the grant of summary
judgment on the § 1983 claim arising from the events of July
8, 2007, and remand the claim to the district court for further
proceedings.
3.
Jones’s third § 1983 free exercise claim challenges the
prison’s method of cleaning grills on which meats served to
inmates are cooked. Workers in the kitchen use vegetable oil
and a cinder block to scour the surfaces of grills and then
remove the excess grease without use of chemical cleaners or
grease removers. Davis declares that the grills are sanitized
by heating before use and that the prison’s cleaning practice
meets the industry standard for cleaning grills. Jones and
Robert Stephens, a lead cook at the Penitentiary, declare that
this method leaves residual amounts of pork grease on the
grills. Additionally, Jones argues that the prison’s cleaning
6
Jones alleges that McBride ordered him to cook the pork loins, but
brings this free exercise claim against McBride and eleven other
defendants in their individual and official capacities. We express no
opinion on the merits of Jones’s individual or official capacity claims
against any of the twelve named defendants. We merely hold that Jones
has raised a genuine issue of fact as to whether any defendant is entitled
to qualified immunity from Jones’s claim that being forced to handle pork
violated his free exercise rights.
JONES V. WILLIAMS 19
practices violate Oregon Administrative Rule 291-061-
0190(7) and, under Islamic standards, permit contamination
of non-pork meats by residual pork grease.
To the extent Jones seeks an injunction ordering a change
in the Penitentiary’s grill cleaning procedures, his claim is
moot because he has been released from custody. We
therefore consider the merits of this § 1983 claim only to the
extent that Jones seeks damages against Appellees for the
constitutional violations that he alleges occurred while he was
in custody.
Even assuming that Jones has raised an issue of fact as to
whether the grill-cleaning method resulted in the grills being
contaminated by Islamic standards or violations of
Department regulations, he has failed to show that the
prison’s grill-cleaning method imposed a substantial burden
on his religious exercise. There is no genuine dispute that
inmates were presented alternatives to grilled meat at every
meal while Jones was in custody.7 Jones points to no
evidence that grilled meat was such an important benefit that
he was substantially pressured to eat it and thereby violate his
religious beliefs. We have long recognized the prisoner’s
“right to be provided with food sufficient to sustain them in
good health that satisfies the dietary laws of their religion.”
McElyea, 833 F.2d at 198. Here, however, Jones has failed
to show that he needed grilled meat to remain healthy or to
satisfy the dietary requirements of his religion. In the
absence of such evidence, Jones cannot show that Appellees’
grill-cleaning method imposed a substantial burden on his
7
The menus referenced in Jones’s declaration as Exhibits A through H
disprove his claim that alternatives to grilled food were not available for
morning meals.
20 JONES V. WILLIAMS
religious exercise. Accordingly, we affirm summary
judgment in favor of Appellees on the § 1983 claim
challenging the prison’s grill-cleaning practices.
C.
Jones also asserts a First Amendment retaliation claim
against Ridderbusch under § 1983 arising from Ridderbusch’s
issuance of a daily performance failure on January 8, 2007.
The sanction was issued after Jones confronted Ridderbusch
in the Penitentiary’s kitchen with complaints of
discrimination and a threat to sue.
Section 1983 provides a cause of action for prison
inmates whose constitutionally protected activity has resulted
in retaliatory action by prison officials. See Rizzo v. Dawson,
778 F.2d 527, 532 (9th Cir. 1985). “[A] prison inmate retains
those First Amendment rights that are not inconsistent with
his status as a prisoner or with the legitimate penological
objectives of the corrections system.” Pell v. Procunier,
417 U.S. 817, 822 (1974). A viable § 1983 claim of
retaliation for engaging in activity protected by the First
Amendment in the prison context involves the following
elements:
(1) An assertion that a state actor took some
adverse action against an inmate (2) because
of (3) that prisoner's protected conduct, and
that such action (4) chilled the inmate’s
exercise of his First Amendment rights, and
(5) the action did not reasonably advance a
legitimate correctional goal.
Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005).
JONES V. WILLIAMS 21
The First Amendment guarantees a prisoner a right to
seek redress of grievances from prison authorities and as well
as a right of meaningful access to the courts. Bradley v. Hall,
64 F.3d 1276, 1279 (9th Cir. 1995); see also Hasan v. U.S.
Dep’t of Labor, 400 F.3d 1001, 1005 (7th Cir. 2005)
(“Prisoners’ grievances, unless frivolous . . . , concerning the
conditions in which they are being confined are deemed
petitions for redress of grievances and thus are protected by
the First Amendment.”); Wolfel v. Bates, 707 F.2d 932, 934
(6th Cir. 1983) (per curiam) (recognizing prisoner’s First
Amendment right to complain to prison officials about
discrimination). Accordingly, Jones’s complaints of
discrimination to his supervisors and statements of intention
to file suit were conduct protected by the First Amendment.
Jones has made a showing in support of the remaining
elements of his retaliation claim sufficient to overcome
summary judgment. The face of the daily failure form
completed by Ridderbusch cites Jones’s discrimination
complaints and threat to sue as reasons for its issuance,
creating a genuine issue as to whether this protected conduct
was “the ‘substantial’ or ‘motivating’ factor” for the daily
performance failure. Brodheim v. Cry, 584 F.3d 1262, 1271
(9th Cir. 2009) (citation omitted). That the sanction deprived
Jones of points toward program incentives is adequate to
show that it “‘would chill or silence a person of ordinary
firmness’” from engaging in such protected activities in the
future. Id. (quoting Rhodes, 408 F.3d at 568–69); see also
Rhodes, 408 F.3d at 567 n.11 (stating that any harm that is
“more than minimal will almost always have a chilling
effect”).
Genuine issues also remain as to whether the daily failure
“reasonably advance[d] a legitimate correctional goal.”
22 JONES V. WILLIAMS
Brodheim, 584 F.3d at 1271. Appellees claim that the daily
failure served the penological purpose of maintaining “order
and security in a situation where prisoners outnumbered
supervisors 20 or 25 to 1[,]” but the document bears no
indication of any security issues arising from Jones’ behavior.
Jones admits that there were dozens of inmates working in the
kitchen when he approached Ridderbusch but declares that no
inmates were in the immediate area close enough to hear the
conversation. Jones also declares that he was not acting in a
threatening manner. There was no security issue under this
version of events. Jones’s account also casts serious doubt on
the magistrate judge’s conclusion that the sanction was
justified by the prison’s interests in “appropriate inmate
behavior[,]” “inmate rehabilitation and the development of
professional attitudes and interpersonal communication.” A
prisoner’s “impolitic choice of words” does not categorically
justify punitive action by prison officials that “burdens the
prisoner’s right of meaningful access to the courts.” Bradley,
64 F.3d at 1281. On this record, we cannot determine as a
matter of law that issuance of the daily failure was justified
by the prison’s legitimate interests.
For these reasons, we reverse the grant of summary
judgment in favor of Ridderbusch on the First Amendment
retaliation claim and remand this claim to the district court
for further proceedings.8
8
The district court did not distinguish between Jones’s individual and
official capacity claims against Ridderbusch when it granted summary
judgment to Ridderbusch. While Jones argues on appeal that Ridderbusch
violated his rights because Ridderbusch retaliated against him, Jones does
not argue that Ridderbusch had policymaking authority or that his claim
against Ridderbusch is “attributable to official policy or custom,” Larez
v. City of Los Angeles, 946 F.2d 630, 645 (9th Cir. 1991). We therefore
JONES V. WILLIAMS 23
D.
Finally, Jones asserts a § 1983 equal protection claim
based on allegations of racial discrimination in the
disciplinary proceedings following his altercation with
Leonard on October 29, 2008.
The Equal Protection Clause of the Fourteenth
Amendment “commands that no State shall deny to any
person within its jurisdiction the equal protection of the laws,
which is essentially a direction that all persons similarly
situated should be treated alike.” Lee v. City of Los Angeles,
250 F.3d 668, 686 (9th Cir. 2001) (quoting City of Cleburne
v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)) (internal
quotation marks omitted). To avoid summary judgment on a
claim of racial discrimination, the plaintiff must “produce
evidence sufficient to permit a reasonable trier of fact to find
by a preponderance of the evidence that [the challenged
action] was racially motivated.” Bingham v. City of
Manhattan Beach, 341 F.3d 939, 948–49 (9th Cir. 2003)
(internal quotation marks and citation omitted). In the prison
context, the right to equal protection is “judged by a standard
of reasonableness—specifically, whether the actions of prison
officials are ‘reasonably related to legitimate penological
interests.’” Walker v. Gomez, 370 F.3d 969, 974 (9th Cir.
2004) (quoting Turner, 482 U.S. at 89).
There is no dispute that Jones assaulted Leonard and that
Leonard did not touch Jones during the altercation. Jones
points to no evidence that the resulting placement in
disciplinary segregation and subsequent proceedings against
reverse the district court’s grant of summary judgment to Ridderbusch on
the individual capacity claim only.
24 JONES V. WILLIAMS
him were motivated by the fact that he is African-American
and Leonard is white. Accordingly, we affirm summary
judgment in favor of Appellees on the equal protection claim.
III.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED in part and VACATED and
REMANDED in part.
The parties shall bear their own costs on appeal.