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 2022-05

James Austin v. Robert Brown ( 2022 )


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  •                                                                               FILED
NOT FOR PUBLICATION
MAY 16 2022
UNITED STATES COURT OF APPEALS                         MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES AUSTIN, AKA James Russell                  No.   20-56028
Austin,
D.C. No.
Plaintiff-Appellant,               3:18-cv-00600-WQH-JLB
v.
MEMORANDUM*
ROBERT BROWN, Community Resource
Manager; FABRICE HADJADJ, Rabbi
Chaplain; J. DAVIES, AA/PIO; P.
COVELLO, Chief Deputy Warden,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Submitted May 13, 2022**
San Francisco, California
Before: LEAVY, FERNANDEZ, and SILVERMAN, Circuit Judges.
*
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).
California prisoner James Austin appeals pro se from the district court’s
grant of summary judgment in favor of Defendants1 in his action alleging that his
religious exercise was impermissibly burdened by periodic cancellations of
Buddhist chapel services at R. J. Donovan Correctional Facility. Reviewing de
novo,2 we affirm.
Austin’s First Amendment free exercise3 and RLUIPA4 claims both required
that he demonstrate that his religious exercise was substantially burdened by the
chapel service cancellations. See Jones v. Williams,
    791 F.3d 1023
    , 1031–32 (9th
Cir. 2015) (free exercise); Warsoldier v. Woodford,
    418 F.3d 989
    , 994–95 (9th Cir.
2005) (RLUIPA). Defendants produced evidence that when chapel services were
cancelled, services could be held in an alternative location. That obligated Austin
to come forward with “‘specific facts showing that there [was] a genuine issue for
trial’”—that is, he had to demonstrate a genuine issue of material fact that his
religious exercise was nevertheless substantially burdened by the chapel service
1
Robert Brown, Fabrice Hadjadj, J. Davies, and P. Covello (collectively,
Defendants).
2
Shakur v. Schriro,
    514 F.3d 878
    , 883 (9th Cir. 2008).
3
U.S. Const. amend. I;
    42 U.S.C. § 1983
    .
4
Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C.
§§ 2000cc–2000cc-5 (RLUIPA).
2
cancellations. Anderson v. Liberty Lobby, Inc.,
    477 U.S. 242
    , 250,
    106 S. Ct. 2505
    ,
2511,
    91 L. Ed. 2d 202
     (1986); see also Warsoldier,
    418 F.3d at 
    994–95. The
district court correctly determined that Austin failed to show that he was unable to
engage in his religious group activities. See Canell v. Lightner,
    143 F.3d 1210
    ,
1214–15 (9th Cir. 1998) (free exercise); Hartmann v. Cal. Dep’t of Corr. &
Rehab.,
    707 F.3d 1114
    , 1124–25 (9th Cir. 2013) (RLUIPA); cf. Greene v. Solano
Cty. Jail,
    513 F.3d 982
    , 988 (9th Cir. 2008) (group worship ban was a substantial
burden). The mere fact that Buddhist chapel services were canceled for a number
of weeks does not amount to a per se substantial burden, nor does that alone create
a genuine dispute of material fact. Moreover, the mere fact that Austin’s two
claims may have survived an earlier motion to dismiss does not entitle him to
summary judgment. See Magana v. Commonwealth of the Northern Mariana
Islands,
    107 F.3d 1436
    , 1447 (9th Cir. 1997).
We do not consider arguments raised for the first time on appeal or matters
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.
3