Anthony Chernetsky v. State of Nevada , 389 F. App'x 709 ( 2010 )

FILED
NOT FOR PUBLICATION JUL 29 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ANTHONY THOMAS CHERNETSKY, No. 08-16100
Plaintiff - Appellant, D.C. No. 3:06-cv-00252-RCJ-
RAM
v.
STATE OF NEVADA; et al., MEMORANDUM *
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Robert C. Jones, District Judge, Presiding
Submitted July 19, 2010 **
Before: B. FLETCHER, REINHARDT, and WARDLAW, Circuit Judges.
Anthony Thomas Chernetsky, a Nevada state prisoner, appeals pro se from
the district court’s summary judgment for defendants in his 42 U.S.C. § 1983
action alleging that the defendants violated his rights under the Religious Land Use
and Institutionalized Person’s Act of 2000, 42 U.S.C. § 2000cc, et seq.
*
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).
(“RLUIPA”), and the First and Fourteenth Amendments. 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 vacate in part, affirm in part and remand.
Chernetsky claims that Nevada Administrative Regulation (“AR 810”)
violates his rights under RLUIPA because it burdens him, as a member of the
Wicca faith, from exercising his religion. The district court properly determined
that the named individual defendants were entitled to qualified immunity because
Chernetsky failed to demonstrate that his rights to relief under RLUIPA were
clearly established between 2004 and 2006. See Sorrels v. McKee, 290F.3d 965,
969 (9th Cir. 2002) (stating that the plaintiff bears the burden of showing that the
right is clearly established).
However, there is a genuine issue of material fact as to whether the State has
established a compelling interest in restricting Chernetsky’s religious exercise, in
particular his access to a sweat lodge, and that AR 810 is the least restrictive means
for furthering that interest. See Greene v. Solano County Jail, 513 F.3d 982, 989-
90 (9th Cir. 2008) (“[I]n light of RLUIPA, no longer can prison officials justify
restrictions on religious exercise by simply citing to the need to maintain order and
security in a prison. RLUIPA requires more.”). The State did not provide
sufficient evidence to analyze whether the prison’s application of AR 810 is the
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least restrictive means available to advance a compelling state interest. Moreover,
the State argues on appeal that AR 810 has been amended subsequent to the district
court’s decision. Accordingly, we vacate summary judgment for defendants on the
RLUIPA claim, and remand for further proceedings.
We do not address Chernetsky’s constitutional claims because he has not
raised them on appeal. See Acosta-Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir.
1992) (issues not supported by argument are deemed abandoned). However, on
remand, the district court should consider whether to grant Chernetsky leave to
amend any of these claims. See United States v. Webb, 655 F.2d 977, 979 (9th Cir.
1981) (a party may amend a complaint as a matter of course before a responsive
pleading is served).
The parties shall bear their own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.
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