FILED

NOT FOR PUBLICATION

MAY 16 2022

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMES AUSTIN, AKA James Russell No. 20-56028 Austin, D.C. No. Plaintiff-Appellant, 3:18-cv-00600-WQH-JLB

v.

MEMORANDUM*

ROBERT BROWN, Community Resource Manager; FABRICE HADJADJ, Rabbi Chaplain; J. DAVIES, AA/PIO; P. COVELLO, Chief Deputy Warden,

Defendants-Appellees.

Appeal from the United States District Court for the Southern District of California William Q. Hayes, District Judge, Presiding

Submitted May 13, 2022** San Francisco, California

Before: LEAVY, FERNANDEZ, and SILVERMAN, Circuit Judges.

* 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). California prisoner James Austin appeals pro se from the district court’s

grant of summary judgment in favor of Defendants1 in his action alleging that his

religious exercise was impermissibly burdened by periodic cancellations of

Buddhist chapel services at R. J. Donovan Correctional Facility. Reviewing de

novo,2 we affirm.

Austin’s First Amendment free exercise3 and RLUIPA4 claims both required

that he demonstrate that his religious exercise was substantially burdened by the

chapel service cancellations. See Jones v. Williams, 791 F.3d 1023, 1031–32 (9th

Cir. 2015) (free exercise); Warsoldier v. Woodford, 418 F.3d 989, 994–95 (9th Cir.

2005) (RLUIPA). Defendants produced evidence that when chapel services were

cancelled, services could be held in an alternative location. That obligated Austin

to come forward with “‘specific facts showing that there [was] a genuine issue for

trial’”—that is, he had to demonstrate a genuine issue of material fact that his

religious exercise was nevertheless substantially burdened by the chapel service

1 Robert Brown, Fabrice Hadjadj, J. Davies, and P. Covello (collectively, Defendants). 2 Shakur v. Schriro, 514 F.3d 878, 883 (9th Cir. 2008). 3 U.S. Const. amend. I; 42 U.S.C. § 1983. 4 Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. §§ 2000cc–2000cc-5 (RLUIPA). 2 cancellations. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505,

2511, 91 L. Ed. 2d 202 (1986); see also Warsoldier, 418 F.3d at 994–95. The

district court correctly determined that Austin failed to show that he was unable to

engage in his religious group activities. See Canell v. Lightner, 143 F.3d 1210,

1214–15 (9th Cir. 1998) (free exercise); Hartmann v. Cal. Dep’t of Corr. &

Rehab., 707 F.3d 1114, 1124–25 (9th Cir. 2013) (RLUIPA); cf. Greene v. Solano

Cty. Jail, 513 F.3d 982, 988 (9th Cir. 2008) (group worship ban was a substantial

burden). The mere fact that Buddhist chapel services were canceled for a number

of weeks does not amount to a per se substantial burden, nor does that alone create

a genuine dispute of material fact. Moreover, the mere fact that Austin’s two

claims may have survived an earlier motion to dismiss does not entitle him to

summary judgment. See Magana v. Commonwealth of the Northern Mariana

Islands, 107 F.3d 1436, 1447 (9th Cir. 1997).

We do not consider arguments raised for the first time on appeal or matters

not specifically and distinctly raised and argued in the opening brief. See Padgett

v. Wright, 587 F.3d 983, 985 & n.2 (9th Cir. 2009) (per curiam).

AFFIRMED.

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