NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 25 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UHURU’SEKOU KAMARA AJANI No. 20-35315

OBATAIYE-ALLAH,

D.C. No. 2:19-cv-00068-JR Plaintiff-Appellant,

v. MEMORANDUM*

HEIDI STEWARD, Assistant Director; et al.,

Defendants-Appellees,

and

OREGON DEPARTMENT OF

CORRECTIONS,

Defendant.

Appeal from the United States District Court for the District of Oregon Jolie A. Russo, Magistrate Judge, Presiding**

Submitted May 18, 2021***

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The parties consented to proceed before a magistrate judge. See 28 U.S.C. § 636(c). *** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Before: CANBY, FRIEDLAND, and VANDYKE, Circuit Judges.

Uhuru’sekou Kamara Ajani Obataiye-Allah appeals pro se from the district

court’s summary judgment in his action alleging federal and state law claims

arising from denial of participation in Ramadan in 2018. We have jurisdiction

under 28 U.S.C. § 1291. We review de novo the district court’s decision on cross-

motions for summary judgment. Guatay Christian Fellowship v. County of San

Diego, 670 F.3d 957, 970 (9th Cir. 2011). We affirm in part, vacate in part, and

remand.

The record reflects that the district court did not separately rule on plaintiff’s

free exercise claim for damages arising from the denial of participation in

Ramadan in 2018. Instead, the district court found that defendants were entitled to

qualified immunity “[t]o the extent any constitutional claims seeking money

damages survive.” However, resolving all factual disputes and drawing all

reasonable inferences in plaintiff’s favor, defendants are not entitled to summary

judgment on the basis of qualified immunity. Plaintiff’s declaration established

that he has a sincerely held Nation of Islam religious belief and he informed

defendants that weekly prayer meetings were not required for Nation of Islam

Muslims. The right to free exercise was clearly established in 2018, such that a

reasonable official would have known that requiring attendance at weekly prayer

meetings as a condition to participate in Ramadan, without consideration of other

2 20-35315 alternatives to establish sincerity of belief, would violate the First Amendment.

See Mullenix v. Luna, 577 U.S. 7, 11-12 (2015) (per curiam) (discussing qualified

immunity; explaining that a clearly established right “is one that is sufficiently

clear that every reasonable official would have understood that what he is doing

violates that right” and existing precedent must have placed the constitutional

question beyond debate); Turner v. Safley, 482 U.S. 78, 89-91 (1987) (setting forth

the factors to determine whether a prison regulation is reasonably related to

legitimate penological interests); McElyea v. Babbitt, 833 F.2d 196, 198 (9th Cir.

1987) (requiring prison officials to use “a reasonable method of determining

religious commitment” to avoid “prevent[ing] a legitimate adherent from following

the dictates of his faith”); see also Ward v. Walsh, 1 F.3d 873, 878 (9th Cir. 1993)

(“In religious matters, we take judicial notice of the fact that often the keenest

disputes and the most lively intolerance exists among persons of the same general

religious belief, who, however, are in disagreement as to what that faith requires in

particular matters.”).

We therefore vacate the district court’s judgment on qualified immunity and

on plaintiff’s free exercise claim for damages, and remand to allow the district

court to analyze this claim under Turner v. Safley, 482 U.S. 78 (1987), in the first

instance.

The district court properly granted summary judgment on plaintiff’s equal

3 20-35315 protection claim on the basis of race and religious preference because plaintiff

failed to raise a genuine dispute of material fact as to whether he was intentionally

discriminated against as a member of a protected class. See Furnace v. Sullivan,

705 F.3d 1021, 1030 (9th Cir. 2013) (plaintiff alleging an equal protection claim

must show that defendants acted with an intent or purpose to discriminate based

upon plaintiff’s membership in a protected class).

However, as to his “class of one” claim, plaintiff provided a declaration

stating that he knew of other inmates, two of whom he identified by name, who did

not attend weekly prayer services but were allowed to participate in Ramadan.

Defendants’ evidence did not demonstrate the absence of a triable dispute as to

whether plaintiff was intentionally treated differently from others similarly

situated, or whether there was a rational basis for the different treatment. See Vill.

of Willowbrook v. Olech, 528 U.S. 562, 564-65 (2000) (elements of “class of one”

equal protection claim); see also InteliClear, LLC v. ETC Glob. Holdings, Inc., 978

F.3d 653, 657 (9th Cir. 2020) (movant has initial burden to show no genuine

dispute of fact). We vacate the judgment on the equal protection “class of one”

claim, and remand for further proceedings.

The district court did not abuse its discretion in denying plaintiff’s motion to

compel discovery. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002)

(standard of review; discovery rulings “will not be disturbed except upon the

4 20-35315 clearest showing that denial of discovery results in actual and substantial prejudice

to the complaining litigant” (citation and internal quotation marks omitted)).

In sum, we affirm the judgment as to race and religion-based equal

protection claim. We also affirm the denial of plaintiff’s motion to compel. We

vacate summary judgment on plaintiff’s (1) free exercise claim for damages on the

basis of qualified immunity and (2) equal protection “class of one” claim, and

remand for further proceedings on these claims only.

We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

We reject as without merit plaintiff’s contention that the district court was

biased against him.

The parties will bear their own costs on appeal.

AFFIRMED in part, VACATED in part, and REMANDED.

5 20-35315