NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 24 2025

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

BLAIR ODEL HAYS, No. 23-55330

Plaintiff-Appellant, D.C. No. 2:21-cv-04227-DOC-JEM v.

J. BONNIFIELD, Community Resource MEMORANDUM*

Manager, in individual capacity; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California David O. Carter, District Judge, Presiding

Submitted February 24, 2025** San Francisco, California

Before: FRIEDLAND, BENNETT, and BADE, Circuit Judges.

Pro se Plaintiff-Appellant Blair Hays, while incarcerated at the California

Men’s Colony (“CMC”) in San Luis Obispo, California, sued CMC Community

Resource Manager J. Bonnifield, Chaplain D. Gottesfeld, and Warden J. Gastelo

* 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). over lapses in Islamic religious services following Imam E. Rasheed’s departure

from CMC. Hays alleges that Defendants repeatedly failed to make prison staff

available to supervise Friday Jumu’ah prayer services and Tuesday and Thursday

Ta’leem study groups at the CMC-East Interfaith Chapel, depriving Hays of

opportunities to practice “essential Tenets of the Islamic Faith” for a period from

2019 to 2020.1 Although Defendant Gottesfeld sometimes stepped in to supervise

Jumu’ah prayer services during this period, Hays alleges that Defendants denied his

requests for regular staff supervision of inmate-led services at the chapel until a new

imam was hired. Hays brought claims under 42 U.S.C. § 1983 for violating his First

Amendment free exercise and Fourteenth Amendment equal protection rights. The

district court dismissed the action without leave to amend. We have jurisdiction

under 28 U.S.C. § 1291. We review de novo a dismissal for failure to state a claim

under Federal Rule of Civil Procedure 12(b)(6).2 Walker v. Beard, 789 F.3d 1125,

1 Hays alleges that before resigning in or around August 2019, Imam Rasheed established the weekly services “to ensure that all Muslim inmates were receiving and learning the essential Tenets of the Islamic Faith.” To the extent that Hays bases his claims on services that he missed before Imam Rasheed’s departure, Hays fails to allege any conduct by Defendants that could serve as predicate for liability under 42 U.S.C. § 1983. See Gilbrook v. City of Westminster, 177 F.3d 839, 854 (9th Cir. 1999) (explaining that a predicate for liability under § 1983 is that the defendant caused the alleged injury). Hays does not challenge the suspension of all religious services starting in March 2020 because of the COVID-19 pandemic. 2 We do not decide whether Hays’s complaint states a free exercise claim because we conclude that the law governing any such claim was not clearly established, so Defendants are entitled to qualified immunity on that claim.

2 1131 (9th Cir. 2015). “We review the denial of leave to amend for an abuse of

discretion, but we review the question of futility of amendment de novo.” United

States v. United Healthcare Ins. Co., 848 F.3d 1161, 1172 (9th Cir. 2016) (citations

omitted). We affirm.3

1. Defendants are entitled to qualified immunity as to Hays’s First

Amendment free exercise claim. “The doctrine of qualified immunity protects

government officials ‘from liability for civil damages insofar as their conduct does

not violate clearly established statutory or constitutional rights of which a reasonable

person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009)

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). To clearly establish the

law, a case need not be “directly on point, but existing precedent must have placed

the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563

U.S. 731, 741 (2011).

Here, even if Hays’s complaint states a claim that Defendants violated his

right to free exercise by not enabling his attending Ta’leem study services and

Jumu’ah prayer services every week while the prison was trying to hire a

replacement for an imam who had resigned, that right was not “beyond debate.” Id.

3 We deny as unnecessary Defendants’ motion to strike two of the seven documents that Hays filed with his reply brief. Dkt. No. 21. We do not rely on the documents to which Defendants object, which are already reflected in the complaint’s allegations that we accept as true.

3 Although inmates are entitled to a “reasonable opportunity to freely exercise their

faith,” Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1123 (9th Cir.

2013) (quotation marks omitted), no caselaw clearly established at the time of the

alleged misconduct that inmates are deprived of a reasonable opportunity to freely

exercise their faith when, as alleged here, prison officials facilitated inmates’ access

to religious services on some occasions and were attempting to obtain the staffing to

facilitate more services in a manner that would be consistent with legitimate

penological interests. Defendants are therefore entitled to qualified immunity as to

Hays’s free exercise claim.4

2. The complaint fails to state a Fourteenth Amendment equal protection

claim. To allege an equal protection violation, “a plaintiff must show that the

defendants acted with an intent or purpose to discriminate against the plaintiff based

upon membership in a protected class,” as compared to “similarly situated” groups.

Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013) (first quoting Barren v.

4 To the extent that Hays seeks declaratory and injunctive relief, he lacks standing. Hays seeks relief only for injuries occurring in 2019 and 2020, and he does not allege any facts demonstrating that he likely will be wronged again in a similar way or that the threat of repeated injury is real and immediate. See Fellowship of Christian Athletes v. San Jose Unified Sch. Dist. Bd. of Educ., 82 F.4th 664, 723 (9th Cir. 2023) (en banc) (discussing the standing requirements for prospective injunctive relief); see also Sample v. Johnson, 771 F.2d 1335, 1340 (9th Cir. 1985) (noting that, to establish standing, “plaintiffs must demonstrate that a ‘credible threat’ exists that they will again be subject to the specific injury for which they seek injunctive or declaratory relief” (quoting Kolender v. Lawson, 461 U.S. 352, 355 n.3 (1983))).

4 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998); and then quoting Thornton v. City

of St. Helens, 425 F.3d 1158, 1167 (9th Cir. 2005)). Hays seeks to establish

Defendants’ discriminatory animus toward Muslims by alleging that “the religious

services for the Christians, Jewish Faith, Catholics, Native Americans, and all others

were being justly held on their scheduled days” at the chapel. Even given that Imam

Rasheed had “supervise[d] other religious services . . . when there were Chaplains

that were on sick call / leave or just unassigned Chaplain positions,” Hays does not

allege that these other groups enjoyed uninterrupted religious services throughout

the absence of their assigned chaplain. And the facts in the complaint about

Defendants’ continuation, though intermittent, of Jumu’ah prayer services at the

chapel under the supervision of Defendant Gottesfeld during their search for a new

imam undermine Hays’s conclusory assertions of animus. See Hartmann, 707 F.3d

at 1124 (holding that evidence of prison officials’ providing Plaintiffs with access to

a volunteer Wiccan chaplain when one was available belied the claim of animus).

3. The district court did not abuse its discretion by denying Hays leave to

amend the complaint. A pro se litigant is not entitled to leave to amend if “it is

absolutely clear that the deficiencies of the complaint could not be cured by

amendment.” Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). And leave

to amend is warranted only “if deficiencies can be cured with additional allegations

that are ‘consistent with the challenged pleading’ and that do not contradict the

5 allegations in the original complaint.” United States v. Corinthian Colls., 655 F.3d

984, 995 (9th Cir. 2011) (quoting Reddy v. Litton Indus., Inc., 912 F.2d 291, 296–97

(9th Cir. 1990)). Given Hays’s allegations about Defendants’ efforts to continue

chapel services during the vacancy of the imam position, we conclude that Hays

cannot allege any facts consistent with his original complaint that would suffice to

plead a clearly established violation of his free exercise rights or state an equal

protection claim. The district court did not abuse its discretion in denying leave to

amend after concluding the same.

AFFIRMED.

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