Edward Finley v. James Cox

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 6 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDWARD FINLEY, No. 15-17034
Plaintiff-Appellant, D.C. No. 3:14-cv-00011-MMD-
WGC
v.
JAMES GREG COX; et al., MEMORANDUM*
Defendants-Appellees.
LEODIAS EDWARDS, No. 15-17477
Plaintiff-Appellant, D.C. No. 3:14-cv-00011-MMD-
WGC
v.
JAMES GREG COX; et al.,
Defendants-Appellees.
Appeals from the United States District Court
for the District of Nevada
Miranda M. Du, District Judge, Presiding
Submitted September 26, 2017**
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes these cases are suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: SILVERMAN, TALLMAN, and N.R. SMITH, Circuit Judges.
In these companion appeals, Nevada state prisoners Edward Finley and
Leodias Edwards appeal pro se from the district court’s summary judgment in their
42 U.S.C. § 1983 action alleging violations of the First Amendment, Fourteenth
Amendment, and the Religious Land Use and Institutionalized Persons Act
(“RLUIPA”) arising from the denial of pre-packaged kosher meals. We have
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). We affirm.
The district court properly granted summary judgment on Finley and
Edwards’s First Amendment free exercise claims because Finley and Edwards
failed to raise a genuine dispute of material fact as to whether being offered a
common fare religious diet instead of pre-packaged kosher meals placed a
substantial burden on Finley and Edwards’s right to exercise their religion freely.
See Jones v. Williams, 791 F.3d 1023, 1033 (9th Cir. 2015) (“[G]overnment action
places a substantial burden on an individual’s right to free exercise of religion
when it tends to coerce the individual to forego her sincerely held religious beliefs
or to engage in conduct that violates those beliefs.”).
The district court properly granted summary judgment on Finley and
Edwards’s Fourteenth Amendment equal protection claims because Finley and
Edwards failed to raise a genuine dispute of material fact as to whether defendants
2 15-17034
acted with discriminatory intent in offering the common fare religious diet instead
of pre-packaged kosher meals to inmates who did not join a then-certified class
action. 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 883, 884-85 (9th Cir. 2008).
We dismiss as moot Finley and Edwards’s appeal of the district court’s grant
of summary judgment on the RLUIPA claim because it is undisputed that the
common fare religious diet received kosher certification as of August 2012. See
Gator.com Corp. v. L.L. Bean, Inc., 398 F.3d 1125, 1129 (9th Cir. 2005) (en banc)
(mootness must be raised sua sponte because it is a jurisdictional issue); Tate v.
Univ. Med. Ctr. of S. Nev., 606 F.3d 631, 634 (9th Cir. 2010) (a court lacks
jurisdiction when the issues in a case are moot).
We do not consider matters not specifically and distinctly raised and argued
in appellants’ opening briefs. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th
Cir. 2009).
Finley’s motion for appointment of counsel (Docket Entry No. 16) and
Edwards’s motion for appointment of counsel (Docket Entry No. 13) are denied.
AFFIRMED.
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