Anthony Merrick v. Charles Ryan ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 17 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTHONY JAMES MERRICK, No. 17-16053
Plaintiff-Appellant, D.C. No. 2:15-cv-00820-SPL
v.
MEMORANDUM*
CHARLES L. RYAN, Warden; MICHAEL
LINDERMAN,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Steven Paul Logan, District Judge, Presiding
Submitted April 11, 2018**
Before: SILVERMAN, PAEZ, and OWENS, Circuit Judges.
Arizona state prisoner Anthony James Merrick 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”). We have
*
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). Merrick’s request for oral
argument, set forth in his briefs, is denied.
jurisdiction under 28 U.S.C. § 1291. We review de novo, Guatay Christian
Fellowship v. County of San Diego, 670 F.3d 957, 970 (9th Cir. 2011), and we
affirm.
The district court properly granted summary judgment on Merrick’s free
exercise and RLUIPA claims because Merrick failed to raise a genuine dispute of
material fact as to whether his proffered religious beliefs were sincerely held. See
Cutter v. Wilkinson, 544 U.S. 709, 725 n.13 (2005) (inquiry into sincerity of
religious belief permitted under RLUIPA); Malik v. Brown, 16 F.3d 330, 333 (9th
Cir. 1994) (a claim under the free exercise clause of the First Amendment requires
a sincerely held religious belief).
The district court properly granted summary judgment on Merrick’s
Fourteenth Amendment equal protection claim because Merrick failed to raise a
genuine dispute of material fact as to whether Merrick was intentionally denied a
reasonable opportunity to pursue his faith as compared to prisoners of other faiths.
See Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir. 1997) (under § 1983, plaintiff
must show that officials intentionally acted in a discriminatory manner to establish
an equal protection claim), abrogated on other grounds as recognized by Shakur v.
Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008).
The district court properly granted summary judgment on Merrick’s
Establishment Clause claim because Merrick failed to raise a genuine dispute of
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material fact as to whether defendants’ policies had the primary or principal effect
of advancing religion, inhibiting religion, or fostering excessive government
entanglement with religion. See Inouye v. Kemna, 504 F.3d 705, 712 n. 7 (9th Cir.
2007) (setting forth test for Establishment Clause violation).
The district court did not abuse its discretion by denying Merrick’s motion
for appointment of counsel because Merrick did not demonstrate exceptional
circumstances. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting
forth standard of review and requirement of “exceptional circumstances” for
appointment of counsel).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
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