Terrell Curry v. Cdcr , 616 F. App'x 265 ( 2015 )

FILED
NOT FOR PUBLICATION SEP 04 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TERRELL D. CURRY, No. 13-15314
Plaintiff - Appellant, D.C. No. 3:09-cv-03408-EMC
v.
MEMORANDUM*
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Edward M. Chen, District Judge, Presiding
Submitted August 25, 2015**
Before: McKEOWN, CLIFTON, and HURWITZ, Circuit Judges.
California state prisoner Terrell D. Curry appeals pro se from the district
court’s summary judgment in his action under 42 U.S.C. § 1983 and the Religious
Land Use and Institutionalized Persons Act (“RLUIPA”) alleging that defendants’
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
refusal to provide him with a Kemenic religious food diet violated the free exercise
clause of the First Amendment and RLUIPA. We have jurisdiction under 28
U.S.C. § 1291. We review de novo, Shakur v. Schriro, 514 F.3d 878, 883 (9th Cir.
2008), and we affirm.
The district court properly granted summary judgment on Curry’s RLUIPA
claim because defendants met their burden to show that their refusal to provide
Curry with a Kemenic food diet, as conceived of and described by Curry, of mostly
raw, vegan, non-genetically modified and non-irradiated food was the least
restrictive means of furthering the prison’s compelling interests in prison security
and cost-efficient food service. See 42 U.S.C. § 2000cc–1(a)(1)-(2) (stating that
under RLUIPA, “[n]o government shall impose a substantial burden on the
religious exercise” of a prisoner unless the government establishes that the burden
furthers “a compelling governmental interest” and does so by “the least restrictive
means”); Shakur, 514 F.3d at 890 (explaining that a prison cannot meet its burden
unless it “demonstrates that it has actually considered and rejected the efficacy of
less restrictive measures before adopting the challenged practice” (citation and
internal quotation marks omitted)); see also Coleman v. Quaker Oats Co., 232 F.3d
1271, 1291-92 (9th Cir. 2000) (district court did not err in refusing to entertain new
theory of liability raised for first time at summary judgment stage).
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The district court properly granted summary judgment on Curry’s free
exercise claim because Curry failed to raise a genuine dispute of material fact as to
whether defendants’ refusal to provide him with a Kemenic food diet, as conceived
of and described by Curry, was not reasonably related to legitimate penological
interests. See Turner v. Safley, 482 U.S. 78, 89 (1987) (holding that a prison
regulation that “impinges on inmates’ constitutional rights” is valid “if it is
reasonably related to legitimate penological interests”).
We do not consider issues or arguments 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) (per curiam).
AFFIRMED.
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