Brian Porter v. Cherylee Wegman , 671 F. App'x 442 ( 2016 )

FILED
NOT FOR PUBLICATION NOV 23 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIAN ELLIS PORTER, No. 15-16485
Plaintiff-Appellant, D.C. No. 1:10-cv-01500-LJO-DLB
v.
MEMORANDUM*
CHERYLEE WEGMAN; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, Chief Judge, Presiding
Submitted November 16, 2016**
Before: LEAVY, BERZON, and MURGUIA, Circuit Judges.
Brian Ellis Porter, a California state prisoner, appeals pro se from the district
court’s summary judgment in his 42 U.S.C. § 1983 action alleging various
constitutional claims. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo. Toguchi, v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004). We affirm in part,
*
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).
reverse in part, and remand.
The district court properly granted summary judgment on Porter’s Eighth
Amendment claim because Porter failed to raise a genuine dispute of material fact
as to whether defendant Grewal’s treatment of Porter was “medically unacceptable
under the circumstances, and was chosen in conscious disregard of an excessive
risk to [Porter’s] health.” See id. at 1058 (citation and internal quotation marks
omitted) (a difference in medical opinion does not rise to the level of deliberate
indifference).
The district court properly granted summary judgment for defendant Castro
on Porter’s First Amendment claim because Porter failed to raise a genuine dispute
of material fact as to whether Castro personally participated in any constitutional
deprivation. See Starr v. Baca, 652 F.3d 1202, 1207-08 (9th Cir. 2011) (a
supervisor is liable under § 1983 only if he or she is personally involved in the
constitutional deprivation or there is a “sufficient causal connection between the
supervisor’s wrongful conduct and the constitutional violation” (citation and
internal quotation marks omitted)).
The district court granted summary judgment for defendant Wegman on the
basis of qualified immunity. However, Porter raised a genuine dispute of material
fact as to whether Wegman violated Porter’s right to free exercise of his religion by
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switching him from a kosher diet to a vegetarian diet and denying his requested
dietary accommodations during multi-day Passover observances. See Jones v.
Williams, 791 F.3d 1023, 1033 (9th Cir. 2015) (setting forth standard for qualified
immunity); McElyea v. Babbitt, 833 F.2d 196, 198 (9th Cir. 1987) (“Inmates have
the right to be provided with food sufficient to sustain them in good health that
satisfies the dietary laws of their religion.”).
Moreover, contrary to Appellees’ contention, there is a genuine dispute of
material fact as to whether prison regulations and policies authorized Wegman to
remove Porter from the kosher diet program, place him on the vegetarian diet
program, and deny him dietary accommodations during multi-day Passover
observances. See Grossman v. City of Portland, 33 F.3d 1200, 1209 (9th Cir.
1994) (“Courts have . . . held that the existence of a statute or ordinance
authorizing particular conduct is a factor which militates in favor of the
conclusion that a reasonable official would find that conduct constitutional.”
(emphasis added)).
The parties shall bear their own costs on appeal.
AFFIRMED in part, REVERSED in part, and REMANDED.
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