FILED

NOT FOR PUBLICATION

MAR 10 2021

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID R. PRIEST, No. 20-35178

Plaintiff-Appellant, D.C. No. 2:17-cv-00133-RMP

v.

MEMORANDUM*

D. HOLBROOK, Superintendent;

JACKSON, Custody Program Supervisor;

A. ALVAREZ-JACKSON, Custody Unit

Supervisor; DAVID BREWER, Unit Sgt; DUNCAN, Correction Officer #7388W; DOE, Correction Officer #7423,

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of Washington Rosanna Malouf Peterson, District Judge, Presiding

Submitted March 5, 2021** Seattle, Washington

* 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). Before: RAWLINSON and BYBEE, Circuit Judges, and ENGLAND,*** District Judge.

Plaintiff/Appellant David Priest, a registered member of the Colville Indian

Tribe, appeals the district court’s grant of summary judgment in favor of various

Washington State Penitentiary (WSP) employees that he claims violated his

constitutional and statutory rights by stealing or destroying his sacred golden eagle

feathers after he was transferred from his single-person cell to segregation.

Because the parties are familiar with the facts, we will not recite them here. We

have jurisdiction under 28 U.S.C. § 1291. We review the district court’s grant of

summary judgment de novo and “may affirm on any basis supported by the

record.” Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1047 (9th Cir. 2009) (citing

Burrell v. McIlroy, 464 F.3d 853, 855 (9th Cir. 2006)). We affirm.

1. The district court correctly dismissed Priest’s constitutional claims1 based

on his failure to present evidence of Defendants’ integral participation in the taking

*** The Honorable Morrison C. England, Jr., Senior United States District Judge for the Eastern District of California, sitting by designation. 1 Priest argues that the district court erroneously dismissed his equal protection and due process claims sua sponte. It does not appear that these claims were before the district court. See Priest v. Holbrook, No. 2:17-cv-00133-JLQ, 2017 WL 6328945, at *4 (E.D. Wash. Dec. 11, 2017), rev’d by 741 F. App’x 510 (9th Cir. 2018) (reversing and remanding, and only discussing Priest’s First Amendment and RLUIPA claims). Even so, Priest’s additional constitutional claims also suffer from lack of integral participation as discussed infra. 2 or desecrating of his golden eagle feathers. An individual’s liability under § 1983

“is predicated on his ‘integral participation’ in the alleged violation.” Blankenhorn

v. City of Orange, 485 F.3d 463, 481 n.12 (9th Cir. 2007) (quoting Chuman v.

Wright, 76 F.3d 292, 294–95 (9th Cir. 1996)). Although “[i]ntegral participation

does not require that each officer’s actions themselves rise to the level of a

constitutional violation . . . it does require some fundamental involvement in the

conduct that allegedly caused the violation.” Id. (internal citation omitted).

With respect to Defendants allegedly present at the scene (Lieutenant David

Brewer, Correctional Officer (CO) William Duncan, and CO Doe, aka Jose

Barreras-Miranda), Priest’s testimony establishes that Brewer, Duncan, and

Barreras-Miranda were working the third shift, during which Priest was transferred

from his single-person cell to segregation and COs packed up his personal

property. Our precedent, however, squarely forbids a jury from inferring liability

from presence alone. See Jones v. Williams, 297 F.3d 930, 937 (9th Cir. 2002)

(“[H]olding individual officers who were merely present at the search liable for

such misconduct would go well beyond what [our precedent] would allow.”).

Thus, permitting Priest to proceed to trial on this record would not have “allow[ed]

a permissible inference, it would have afforded an impermissible basis for

liability.” Id. at 938.

3 Nor can Priest establish causation through the doctrine of res ipsa loquitur.

Even assuming, as the district court did, that such a theory of causation could apply

to Priest’s § 1983 claim, Priest has not demonstrated exclusive control. See, e.g.,

Jones, 297 F.3d at 939 (Silverman, J., concurring). The record establishes that “six

or seven COs” were in Priest’s unit during the third-shift. This precludes a finding

that named Defendants were the only officers who knew what occurred when

Priest’s cell was packed up. And while it is plausible that Duncan and Barreras-

Miranda were “at some point, uniquely responsible for Mr. Priest’s property,”

nothing in the record indicates the golden eagle feathers were not already gone by

the time Duncan and Barrerras-Miranda received Priest’s property in inventory.

Priest likewise fails to offer evidence demonstrating that Brewer,

Superintendent Holbrook, Custody Program Supervisor Jackson, and Custody

Supervisor Alvarado-Jackson are liable under a theory of supervisory liability. See

Starr v. Baca, 652 F.3d 1202, 1205 (9th Cir. 2011). Priest’s testimony merely

establishes that Brewer was present during the third shift. Priest likewise fails to

designate specific facts showing a genuine issue as to whether Holbrook, Jackson,

and Alvarado-Jackson caused the alleged constitutional violations. Instead, Priest

asks us to make broad inferences from the record, insisting his grievances

demonstrate an “obvious lack of investigation.” We decline to do so.

4 2. The district court also correctly concluded that Priest’s lack of evidence

of a policy or practice prohibiting him from practicing his religion is fatal to his

claim under the Religious Land Use and Institutionalized Persons Act of 2000

(RLUIPA), 42 U.S.C. § 2000cc et seq.; see Warsoldier v. Woodford, 418 F.3d 989,

994 (9th Cir. 2005). We first note that Priest’s 2018 release from prison moots any

claim under RLUIPA for injunctive and declaratory relief. Dilley v. Gunn, 64 F.3d

1365, 1368 (9th Cir. 1995) (“An inmate’s release from prison while his claims are

pending generally will moot any claims for injunctive relief relating to the prison's

policies unless the suit has been certified as a class action.”); Rhodes v. Stewart,

488 U.S. 1, 4 (1988) (per curiam) (same for declaratory relief). Even so, Priest’s

claim also fails on the merits. Priest argues that WSP’s COs have a “practice of

not securing religious property.” The record does not support Priest’s contention,

as he testified that he was unaware of other instances in which COs violated WSP

policy when transporting his or another an inmate’s religious property.

AFFIRMED.

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