Walker v. Beard

• Citation: 789 F.3d 1125
• Decision Date: 18 June 2015
• Docket Number: No. 12–17460.,12–17460.
• Parties: Dennis WALKER, Plaintiff–Appellant, v. Jeffrey BEARD, CDCR Secretary and Kathleen Dickerson, Warden, CMF Prison, Defendants–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

789 F.3d 1125

Dennis WALKER, Plaintiff–Appellant

v.Jeffrey BEARD^* , CDCR Secretary and Kathleen Dickerson, Warden, CMF Prison, Defendants–Appellees.

No. 12–17460.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 10, 2015.

Filed June 18, 2015.

Elliot Wong (argued), San Francisco, CA, for Plaintiff–Appellant.

Kamala Harris, Attorney General of California, Jonathan L. Wolff, Senior Assistant Attorney General, Thomas S. Patterson, Supervising Deputy Attorney General, Jose A. Zelidon–Zepeda (argued), Deputy Attorney General, San Francisco, CA, for Defendants–Appellees.

Appeal from the United States District Court for the Eastern District of California, Kimberly J. Mueller, District Judge, Presiding. DC No. 2:11–cv2728 KJM–GGH.

Before: SIDNEY R. THOMAS, Chief Judge, A. WALLACE TASHIMA and M. MARGARET McKEOWN, Circuit Judges.

OPINION

TASHIMA, Circuit Judge:

Dennis Walker is a devout racist. He is an Aryan Christian Odinist incarcerated in a California state prison. The Odinist religion forbids adherents from integrating with members of races other than their own and requires the performance of rituals that may not be conducted in the presence of non-“Aryan” individuals. Walker challenges the State's classification of him as eligible to occupy a prison cell with an individual of a different race, alleging that such a placement would interfere with his religious practice. He appeals the district court's ruling that the State's refusal to exempt him from its Integrated Housing Policy (the “Housing Policy”) did not violate the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000 cc et seq., or the First Amendment. We have jurisdiction under 28 U.S.C. § 1291. We conclude that the State has a compelling interest in avoiding invidious racial discrimination and potential liability under the Equal Protection Clause, and the only way for the State to satisfy this interest was to reject Walker's request for an exemption from the Housing Policy. We affirm.

I.

According to Walker, Odinism, the religion to which he adheres, calls on its followers to preserve the purity of the Aryan race.¹ To that end, Odinists are forbidden from interacting with individuals of other races. Seeking to follow his religious dictates, Walker requested that he be celled with an Aryan individual. The state rejected the request. Pursuant to the Housing Policy, Walker was classified as “racially eligible,” allowing the prison to place him in a cell with an individual of a different race.

The Housing Policy provides for prisoners to be classified into one of five categories, including racially eligible and “restricted to own,” meaning ineligible to be placed in a multi-race cell. There is a strong presumption in favor of racially eligible status. Under that policy, an inmate's race may not be a “primary determining factor” in determining his housing classification. Prison officials may, however, consider certain race-related factors when classifying inmates, such as the prisoner's history of perpetrating or being victimized by racial violence. A prisoner classified as racially eligible who refuses to accept a cellmate of another race is not forced to accept integration, but rather is categorized as “restricted by refusal” and subjected to disciplinary action. Following his classification as racially eligible, the prison assigned Walker a non-white cellmate and Walker refused the assignment. As discipline, the prison placed him in administrative segregation.

Walker commenced this action pro se against Matthew Cate, then-Secretary of the California Department of Corrections and Rehabilitation, and Kathleen Dickerson, the warden of the prison in which he was then housed (together “Defendants” or the “State”).² He seeks damages and injunctive relief for a variety of statutory and constitutional claims, including claims under RLUIPA, and the First, Fifth, Eighth, and Fourteenth Amendments. Although inartfully drafted, the complaint alleges that the State's classification of Walker as racially eligible under the Housing Policy impermissibly abridged his religious liberty by threatening a violation of his “religious beliefs and practices.”

Defendants moved to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6). A magistrate judge recommended granting the motion and dismissing all claims. Still proceeding pro se, Walker filed objections to the magistrate judge's findings and recommendations (“F & R”). In this new filing, for the first time, Walker provided additional information about his practice of Odinism. Walker asserted that as part of his religious practice he engages in a ritual known as “the spiritual circle of Odinist Warding” (the “warding ritual”) to communicate with his gods. Integrated housing, according to Walker, would interfere with this ritual because the presence of a non-Aryan individual in his cell during the ritual would “pollute” the spiritual circle. Notwithstanding Walker's objections to the F & R, the district court adopted the magistrate judge's F & R in full, dismissed Walker's complaint for failure to state a claim, and denied leave to amend.

Now represented by counsel, Walker appeals the dismissal of his RLUIPA and First Amendment claims and the denial of leave to amend.

II.

We review de novo a district court's dismissal for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Stone v. Travelers Corp., 58 F.3d 434, 436–37 (9th Cir.1995). We review a district court's denial of leave to amend for abuse of discretion. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.2000) (en banc).

III.

The State asserts that Walker's action is moot because, since filing his complaint, Walker has been transferred to a new prison and has not alleged he is subject to integrated celling at that facility.³ A case is moot “when it has ‘lost its character as a present, live controversy of the kind that must exist if [the court is] to avoid advisory opinions on abstract propositions of law.’ ” Oregon v. FERC, 636 F.3d 1203, 1206 (9th Cir.2011) (per curiam) (quoting Hall v. Beals, 396 U.S. 45, 48, 90 S.Ct. 200, 24 L.Ed.2d 214 (1969) (per curiam)). Because “[t]he jurisdiction of federal courts depends on the existence of a ‘case or controversy’ under Article III of the Constitution,” we must dismiss an appeal that has become moot. Pub. Util. Comm'n of Cal. v. FERC, 100 F.3d 1451, 1458 (9th Cir.1996) (quoting GTE Cal., Inc. v. FCC, 39 F.3d 940, 945 (9th Cir.1994) ).

Our precedents elaborate on how the mootness bar applies to claims brought by prisoners subsequently transferred to new prisons. In Dilley v. Gunn, a prisoner brought a constitutional claim alleging denial of access to the courts on the ground that the prison law library's policies were overly restrictive. 64 F.3d 1365, 1367 (9th Cir.1995). We concluded that the claim was moot because the prisoner had been transferred to another prison and did not demonstrate “a reasonable expectation that he [would be] ... subjected again” to the suspect library policies. Id. at 1368–69. By contrast, in Nelson v. Heiss, we held that a prisoner's claim asserting his trust account had been mishandled in violation of federal law was not moot, even though the prisoner had been transferred from the prison where the alleged misconduct occurred. 271 F.3d 891, 893, 897 (9th Cir.2001). We concluded that the claim was not moot because the policy pursuant to which the alleged violation occurred was “system wide” and one of the defendants was in charge of the policy. Id. at 897 ; see also Jordan v. Sosa, 654 F.3d 1012, 1028–29 (10th Cir.2011) ; Lehn v. Holmes, 364 F.3d 862, 871–72 (7th Cir.2004).

Reading the complaint in the light most favorable to Walker, it challenges his classification as racially eligible under the Housing Policy, which, by its terms, regulates the housing of inmates throughout the California prison system, not just in Walker's original prison. Defendant Matthew Cate was the head of the California prison system when Walker filed his complaint and was capable of providing relief.⁴ Thus, Walker has satisfied both of the requirements we identified in Nelson for a transferred prisoner's claim to avoid mootness. Walker remains in State custody, classified as racially eligible. His challenge to that classification is not moot.

IV.

The State next asserts that Walker should be barred from arguing on appeal that the State improperly burdened his ability to perform the Odinist warding ritual because: (1) he abandoned that argument; and (2) his complaint does not contain factual allegations sufficient to support the warding ritual theory. We discuss these related arguments in turn.

“It is a general rule that a party cannot revisit theories that it raises but abandons at summary judgment.”Ramirez v. City of Buena Park, 560 F.3d 1012, 1026 (9th Cir.2009) (quoting Davis v. City of Las Vegas, 478 F.3d 1048, 1058 (9th Cir.2007) (internal quotation marks omitted)).

“A party abandons an issue when it has a full and fair opportunity to ventilate its views with respect to an issue and instead chooses a position that removes the issue from the case.” Id. (quoting BankAmerica Pension Plan v. McMath, 206 F.3d 821, 826 (9th Cir.2000) (internal quotation marks omitted)).

The wellspring of our recent abandonment jurisprudence is USA Petroleum Co. v. Atl. Richfield Co., 13 F.3d 1276 (9th Cir.1994). Richfield was an antitrust action brought by USA Petroleum (“USA”) against its competitor, Atlantic Richfield, alleging predatory pricing. Id. at 1277. On appeal, USA attempted to rely on a “below-cost pricing” theory of liability under § 1 of the Sherman Act, 15 U.S.C. § 1, even though it had relied on a different “below-market pricing theory” in the district court. Id. at 1279, 1284. We barred USA from asserting the new theory on appeal because “USA contended that below-cost pricing was an available predatory pricing theory but expressly chose not to rely upon it” in the...