NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS NOV 1 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL RAY FUQUA, AKA Michael No. 20-17162 Fuqua, D.C. No. 2:15-cv-00286-NVW Plaintiff - Appellant,

v. MEMORANDUM*

CHARLES L. RYAN, Director of ADC Central Office; CAMIT, Correctional Officer II at Special Management Unit #1; FRANCISCO, CO III at SMU #1; STERNS, Sgt. at SMU #1; CLARK, Kitchen Manager at Trinity Food Services; DANCE, Disciplinary Coordinator Sgt. at SMU #1; SCHITTER, Disciplinary Captain at SMU #1; PEKCO, CO II Kitchen Security at SMU #1; JAMES O’NEIL, SMU #1 Eyman Complex Deputy Warden; JEFF RODE, SMU #1 Eyman Complex Associate Deputy Warden; JENNIFER HERNANDEZ, COIV at SMU #1 Eyman Complex; CARSON MCWILLIAMS, ADOC Divisional Director; UNKNOWN PARTIES, ADOC Correctional Officers employed at ADOC - in their official and individual capacities, Central Office COIII, Central Office COIV, Central Office Deputy Warden, CO II Kitchen Security at SMU #1, Defendants - Appellees.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Appeal from the United States District Court for the District of Arizona Neil V. Wake, District Judge, Presiding

Argued and Submitted December 7, 2023 San Francisco, California

Before: COLLINS, FORREST, and SUNG, Circuit Judges.

Plaintiff-Appellant Michael Ray Fuqua, an inmate in the Arizona state

prison system, appeals from the final judgment entered against him in this action

alleging violations of his rights under the First Amendment’s Free Exercise Clause

and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) in

connection with the denial of his request to be excused from work at the prison

kitchen on a religious holiday. Fuqua challenges the district court’s grant of

summary judgment in favor of three prison officials (Defendants-Appellees

Rebecca Francisco, Anthony Camit, and Robert Starns) on all claims; the grant of

partial summary judgment in favor of Defendant-Appellee Robert Clark, an

employee of the private company that provided meals at the prison, on Fuqua’s

RLUIPA claim; and the jury verdict rendered in favor of Clark at a trial on Fuqua’s

First Amendment claim. We have jurisdiction under 28 U.S.C. § 1291. We

affirm.

1. The district court properly granted summary judgment to all four

Defendants on Fuqua’s RLUIPA claim. In a published opinion issued today in the

related case of Fuqua v. Raak, No. 21-15492, we have held that Wood v. Yordy,

2 753 F.3d 899 (9th Cir. 2014), forecloses suits seeking monetary damages under

RLUIPA against individual prison officials. In light of that decision, the district

court correctly applied Wood in rejecting Fuqua’s monetary claims under RLUIPA

against Francisco, Camit, Starns, and Clark. Fuqua’s opening brief provides no

persuasive basis for concluding that the district court erred in finding that his

requests for equitable relief under RLUIPA against these four Defendants were

moot.

2. The district court correctly granted summary judgment to Francisco,

Camit, and Starns on Fuqua’s First Amendment claim.

a. To establish a prima facie case on a Free Exercise violation arising from

prison regulations, a prison inmate must “demonstrate[] that the challenged

regulation impinges on his sincerely held religious exercise.” Jones v. Slade, 23

F.4th 1124, 1144 (9th Cir. 2022). If that showing is made, then “the burden shifts

to the government to show that the regulation is ‘reasonably related to legitimate

penological interests’” under the factors set forth in Turner v. Safley, 482 U.S. 78,

89–91 (1987). Jones, 23 F.4th at 1144 (citation omitted). As applicable here, the

Turner test requires a court to consider “(1) whether there is a valid, rational

connection between a state interest and the prison regulation; (2) whether prisoners

have an alternative method of engaging in religious practice; (3) the impact

accommodation of the asserted constitutional right would have on guards and other

3 inmates; and (4) the absence of ready alternatives to the challenged regulation.”

Walker v. Beard, 789 F.3d 1125, 1138–39 (9th Cir. 2015) (citing Turner, 482 U.S.

at 89–90).

b. The district court properly granted summary judgment to Francisco and

Camit on the ground that there was no evidence that they were personally involved

in the challenged actions that allegedly burdened Fuqua’s Free Exercise rights. On

appeal, Fuqua argues that they could be held liable on this record under a failure-

to-intervene theory, but that is wrong. “A person deprives another of a

constitutional right, within the meaning of section 1983, if he does an affirmative

act, participates in another’s affirmative acts, or omits to perform an act which he

is legally required to do that causes the deprivation of which the plaintiff

complains.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (simplified)).

“The inquiry into causation must be individualized and focus on the duties and

responsibilities of each individual defendant whose acts or omissions are alleged to

have caused a constitutional deprivation.” Id. Fuqua failed to present sufficient

evidence to create a triable issue that Francisco or Camit had the legal authority to

grant Fuqua’s requested accommodation, much less that they were “legally

required” to intervene to assist him in pursuing that accommodation.

c. With respect to Starns, the district court correctly granted summary

judgment on the ground of qualified immunity.

4 Government officials are entitled to qualified immunity “unless (1) they

violated a federal statutory or constitutional right, and (2) the unlawfulness of their

conduct was ‘clearly established at the time.’” District of Columbia v. Wesby, 583

U.S. 48, 62–63 (2018) (citation omitted). “A right is clearly established when it is

‘sufficiently clear that every reasonable official would have understood that what

he is doing violates that right.’” Rivas-Villegas v. Cortesluna, 595 U.S. 1, 5 (2021)

(citation omitted).

When Fuqua asked Starns for the day off two days before the relevant

religious holiday, Starns complained that the kitchen “cannot operate that way”

and that Fuqua was required to submit such requests to the Senior Chaplain. The

district court concluded that there was a triable issue as to whether Starns had

violated Fuqua’s Free Exercise rights under the Turner factors, but it held that

Starns was entitled to qualified immunity because “a reasonable official in

Defendant Starns’ position would not have understood that his implementation of

[prison] policy under these circumstances was unlawful.”

In arguing for a contrary conclusion, Fuqua relies on Mayweathers v.

Newland, 258 F.3d 930 (9th Cir. 2001), but that case is “materially

distinguishable” in a way that precludes it from clearly establishing the applicable

law here. Rivas-Villegas, 595 U.S. at 5–6. Mayweathers involved prison officials’

appeal of a preliminary injunction in favor of a class of Muslim inmates who

5 sought to avoid discipline “for missing work to attend hour-long Friday Sabbath

services called Jumu’ah.” 258 F.3d at 933. There is, however, no discussion in the

opinion concerning the lawfulness of prison procedures for bringing such religious

scheduling conflicts to the attention of prison authorities in the first place.

Mayweathers thus did not clearly establish that Starns violated Fuqua’s Free

Exercise rights when Starns told Fuqua that any such request would have to go

through the prison chaplain. Moreover, there is authority upholding, in certain

circumstances, prison procedural requirements for presenting religious

accommodation requests. See Resnick v. Adams, 348 F.3d 763, 769–71 (9th Cir.

2003) (holding that a prison did not violate the Free Exercise Clause by requiring a

prisoner, who asked for a kosher diet, to fill out the standard form that the prison

used to evaluate such requests before the prison would consider any such request).

The district court correctly concluded that the applicable law was not clearly

established and that Starns was entitled to qualified immunity.

3. Fuqua has failed to present any persuasive grounds to set aside the jury’s

verdict in favor of Clark on Fuqua’s Free Exercise claim.

Fuqua asserts the district court abused its discretion by “preventing [him]

from reading the relevant verses from his Bible” that required him not to work on

the religious holiday in question. The district court did not abuse its discretion in

holding that, while Fuqua could explain the sincerity of his religious beliefs by

6 reference to relevant scriptural passages, he did not need to have a physical Bible

with him on the stand or to read the relevant passages verbatim. District courts

have discretion to “exercise reasonable control over the mode and order of

examining witnesses and presenting evidence so as to . . . make those procedures

effective for determining the truth . . . [and] avoid wasting time.” FED. R. EVID.

611(a). The district court’s modest limitations here fell well within its discretion to

avoid wasting time and to avoid what it thought was a potential for unfair prejudice

in having Fuqua testify directly from a physical Bible on the stand. But even if the

district court did abuse its discretion, there is no basis in the record for concluding

that this evidentiary limitation was more likely than not prejudicial. See Harper v.

City of Los Angeles, 533 F.3d 1010, 1030 (9th Cir. 2008).

To the extent that Fuqua challenges the jury verdict for Clark based on an

asserted lack of substantial evidence, any such appellate challenge is barred by his

failure to file a post-verdict motion for judgment as a matter of law in the district

court. See Nitco Holding Corp. v. Boujikian, 491 F.3d 1086, 1088 (9th Cir. 2007).

To the extent that Fuqua contends that Clark should have been held liable

under a failure-to-intervene theory, Fuqua failed to preserve any such issue through

an appropriate jury instruction, and he has not shown plain error on that score. See

FED. R. CIV. P. 51(d).

4. Fuqua’s remaining claims are waived by his failure to raise them on his

7 first appeal. See Fuqua v. Ryan, 890 F.3d 838 (9th Cir. 2018).

AFFIRMED.

8