FILED

NOT FOR PUBLICATION

JUL 11 2022

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

EBERTO BAUTISTA, No. 21-15476

Plaintiff-Appellant, D.C. No. 3:18-cv-00194-MMD-WGC v.

RABI ROSKAMM; HENRY, Culinary MEMORANDUM* MGR; RENEE BAKER, Warden;

CHARLES DANIELS,

Defendants-Appellees,

and

NEVADA DEPARTMENT OF

CORRECTIONS,

Defendant,

v.

STEVEN BRAUNSTEIN, Proposed Intervenor; STEPHEN CIOLINO, Proposed Intervenor,

Movants.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Appeal from the United States District Court for the District of Nevada Miranda M. Du, Chief District Judge, Presiding

Submitted July 8, 2022** San Francisco, California

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

Nevada prisoner Eberto Bautista appeals pro se from the district court’s

summary judgment to the Defendants1 in his action alleging that his First

Amendment, RLUIPA,2 and equal protection rights were infringed by policies and

practices regarding the food served at the LCC and consumable items he wanted

for group worship activities. See U.S. Const. amends. I, XIV; 42 U.S.C. § 1983;

42 U.S.C. §2000cc-1(a). Reviewing de novo,3 we affirm in part, vacate in part, and

remand.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 1 Charles Daniels, the director of the Nevada Department of Corrections; former Lovelock Correctional Center (LCC) warden Renee Baker; LCC Culinary Food Services Manager Maribelle Henry; and Rabbi Yisroel Rosskamm (collectively, Defendants). 2 Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. §§ 2000cc–2000cc-5 (RLUIPA). 3 Shakur v. Schriro, 514 F.3d 878, 883 (9th Cir. 2008). 2 We affirm the district court’s summary judgment to the Defendants as to

Bautista’s First Amendment and RLUIPA claims arising from the prison’s policy

requiring inmates to acquire group worship consumables themselves. Bautista

failed to demonstrate a genuine dispute of material fact4 that the policy

substantially burdened his group worship activities. 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); cf. Greene v. Solano Cnty. Jail, 513

F.3d 982, 988 (9th Cir. 2008) (group worship ban was a substantial burden). There

was no evidence that he had attempted to procure grape juice and matzoh via the

permitted channels or was unable to do so. On this record, RLUIPA does not

require the prison to purchase those items for him. See Hartmann v. Cal. Dep’t of

Corr. & Rehab., 707 F.3d 1114, 1124–25 (9th Cir. 2013).

We also affirm the district court’s summary judgment to the Defendants on

Bautista’s equal protection claims. Bautista presented no evidence that any of the

Defendants acted with an intent to discriminate against him as a Messianic Jew —

nor does he argue otherwise on appeal. See Furnace v. Sullivan, 705 F.3d 1021,

1030–31 (9th Cir. 2013); Padgett v. Wright, 587 F.3d 983, 985 & n.2 (9th Cir.

2009) (per curiam). Defendants on Bautista’s First Amendment and RLUIPA claims arising from the

Common Fare diet and its preparation. Although the Defendants provided some

evidence that the diet and its preparation methods satisfied the kosher dietary needs

of Orthodox Jews, the record showed that Bautista was a Messianic Jew, and there

was no evidence that his dietary needs were identical to those of Orthodox Jews.

Cf. Ashelman v. Wawrazaszek, 111 F.3d 674, 675 & n.2 (9th Cir. 1997).

Moreover, the district court erred in refusing to consider much of Bautista’s

proffered evidence detailing his religious dietary needs. See Alvarez v. Hill, 518

F.3d 1152, 1157–58 (9th Cir. 2008); cf. Walker v. Beard, 789 F.3d 1125, 1133–34

(9th Cir. 2015). That evidence appropriately explicated the factual basis of his

claims, including his understanding of “kosher” and his specific objections to the

food preparation. See Hickman v. Taylor, 329 U.S. 495, 500–01, 67 S. Ct. 385,

388–89, 91 L. Ed. 451 (1947); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555–56, 555 n.3, 127 S. Ct. 1955, 1964–65, 1965 n.3, 167 L. Ed. 2d 929 (2007).

Because there was a genuine dispute of material fact regarding the nature of

Bautista’s dietary needs and whether those had been substantially burdened, the

district court erred in entering summary judgment as to those claims.

4 AFFIRMED in part, VACATED in part, and REMANDED. Costs on

appeal shall be borne by the Defendants.

5