NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 2 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD R. WATKINSON, No. 21-35084

Plaintiff-Appellant, D.C. No. 3:17-cv-00236-JMK

v.

MEMORANDUM*

ALASKA DEPARTMENT OF

CORRECTIONS; EARL HAUSER; JAMES

DUNCAN; SCOTT DIAL,

Defendants-Appellees,

and

KEITH ROGERS; JOHN CONANT,

Defendants.

Appeal from the United States District Court for the District of Alaska Joshua M. Kindred, District Judge, Presiding

Argued and Submitted February 15, 2022 San Francisco, California

Before: McKEOWN and W. FLETCHER, Circuit Judges, and VRATIL, ** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Kathryn H. Vratil, United States District Judge for the District of Kansas, sitting by designation. Plaintiff Richard Watkinson—a prisoner in the Alaska Department

of Corrections (“ADOC”) and a practitioner of Asatru—appeals from the district

court’s judgment for Defendants ADOC, Earl Hauser, James Duncan, and Scott

Dial. Plaintiff claims that Defendants violated the Religious Land Use and

Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc et seq., Plaintiff’s

First Amendment right to free exercise of religion, and Plaintiff’s Fourteenth

Amendment right to equal protection. We have jurisdiction under 28 U.S.C.

§ 1291 and affirm.

We review district court findings of fact for clear error. Winding Creek

Solar LLC v. Peterman, 932 F.3d 861, 864 (9th Cir. 2019). We review de novo the

district court’s conclusions of law and determinations on mixed questions of law

and fact. Cal. First Amend. Coal. v. Woodford, 299 F.3d 868, 872–73 (9th Cir.

2002).

1. Plaintiff argues that the Defendants substantially burdened his religious

exercise in violation of the RLUIPA by preventing him from using firewood

purchased through ADOC’s Prison Welfare Fund (“PWF”) for religious purposes

and from using the PWF to pool funds with other prisoners to purchase his juice

and honey at discounted rates from outside bulk vendors. The RLUIPA provides

that “‘[n]o government shall impose a substantial burden on the religious exercise’

of prisoners unless the government can demonstrate that the burden both serves a

2 compelling government interest and is the least restrictive means of advancing that

interest.” Mayweathers v. Newland, 314 F.3d 1062, 1065 (9th Cir. 2002) (quoting

42 U.S.C. § 2000cc-1(a)). Plaintiff bears the initial burden of persuasion as to

whether a policy “substantially burdens” his religious exercise. 42 U.S.C. §

2000cc-2(b). A substantial burden must be more than a mere inconvenience,

imposing “a significantly great restriction or onus upon [religious] exercise.” San

Jose Christian Coll. v. City of Morgan Hill, 360 F.3d 1024, 1034 (9th Cir. 2004).

The RLUIPA does not require a state to facilitate or subsidize the exercise of

religion or pay for devotional accessories. Cutter v. Wilkinson, 544 U.S. 709, 720

n.8 (2005); see Mayweathers, 314 F.3d at 1068–69.

ADOC policies do not deny Plaintiff access to any item necessary for his

religious ceremonies, and Plaintiff may procure all necessary items without access

to the PWF. Defendants’ policies thus did not substantially burden the exercise of

Plaintiff’s religious practice, and the district court did not err in determining that

Defendants did not violate the RLUIPA. See Hartman v. Cal. Dep’t of Corr. &

Rehab., 707 F.3d 1114, 1125 (9th Cir. 2013) (prison not required to provide an

additional religious accommodation of a full-time Wiccan chaplain).

2. Plaintiff argues that Defendants violated his First Amendment rights for

the same reasons. The Free Exercise Clause of the First Amendment states that the

government shall make no law “prohibit[ing] the free exercise of religion.”

3 O’Lone v. Est. of Shabazz, 482 U.S. 342, 348 (1987). Though the right to engage in

religious practices does not terminate at the prison door, the right “is necessarily

limited by the fact of incarceration.” Jones v. Williams, 791 F.3d 1023, 1032 (9th

Cir. 2015) (citation omitted). As with the RLUIPA, a prisoner asserting a free

exercise claim must show that the government policy has substantially burdened

his practice of religion. Id. at 1031. If the burden is substantial, the challenged

conduct will be valid if “reasonably related to legitimate penological interests.” Id.

at 1032 (quoting O’Lone, 482 U.S. at 349).

For reasons stated above, the district court did not err in determining that

Defendants’ conduct did not substantially burden Plaintiff’s religious exercise.

Furthermore, even if it did so, PWF policies were reasonably related to legitimate

penological interests: avoiding constitutional issues that might arise from funding

one specific religious group, maintaining prison security, avoiding favoritism, and

ensuring that PWF funds support charitable, recreational, and educational

opportunities available to the entire prison population. See Thornburgh v. Abbott,

490 U.S. 401, 415 (1989); Walker v. Beard, 789 F.3d 1125, 1138 (9th Cir. 2015).

The district court thus did not err in denying relief on Plaintiff’s Free Exercise

claim.

3. Plaintiff argues that Defendants violated his Fourteenth Amendment

rights when they treated the Native American cultural group differently from

4 Asatru practitioners by allowing the Native American group to use PWF-purchased

firewood at the prison sweat lodge.

The Equal Protection Clause states that no state shall “deny to any

person . . . the equal protection of the laws.” U.S. Const. amend XIV, § 1. To

state an equal protection claim, an inmate must identify a group of individuals to

whom he is similarly situated and allege intentional and disparate treatment. See

McCollum v. Cal. Dep’t of Corr. & Rehab., 647 F.3d 870, 880–81 (9th Cir. 2011).

The similarly situated group need not be similar in all aspects but must be similar

“in respects that are relevant to the state’s challenged policy.” Gallinger

v. Becerra, 898 F.3d 1012, 1016 (9th Cir. 2018).

The prison director testified that the groups are not similarly situated

because the sweat lodge is a cultural rather than a religious activity. We accord

deference to such testimony in determining whether two groups are similarly

situated. See O’Lone, 482 U.S. at 349; Thornton v. City of St. Helens, 425 F.3d

1158, 1168 (9th Cir. 2005) (“Evidence of different treatment of unlike groups does

not support an equal protection claim.”). The district court did not clearly err in

relying on that testimony to determine that the two groups are not similarly situated

for purposes of the Equal Protection Clause.

AFFIRMED.

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