                                                                              FILED
                           NOT FOR PUBLICATION                                APR 18 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


DANNY LEE MONTS,                                 No. 12-16930

              Plaintiff - Appellant,             D.C. No. 2:10-cv-00532-FJM

  v.
                                                 MEMORANDUM*
JOSEPH M. ARPAIO,

              Defendant,

  And

CHAPLAIN GREGORY MILLARD, #
A4930; CANTOR HOWARD
TABAKNEK, # R0670,

              Defendants - Appellees.


                   Appeal from the United States District Court
                             for the District of Arizona
               Frederick J. Martone, Senior District Judge, Presiding

                        Argued and Submitted April 9, 2014
                            San Francisco, California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Cir. R. 36-3.
Before: TALLMAN and CLIFTON, Circuit Judges, and DUFFY, District Judge.**

      Danny Lee Monts sued Maricopa County, Arizona, jail chaplains Howard

Tabaknek and Gregory Millard under 42 U.S.C. § 1983 for denying him a Kosher

diet. Monts appeals summary judgment against him on that claim. Jurisdiction

lies under 28 U.S.C. § 1291. We review de novo, Suzuki Motor Corp. v.

Consumers Union of United States, Inc., 330 F.3d 1110, 1131 (9th Cir. 2003), and

reverse and remand for trial.

      There are four issues: substantial burden, sincerity, qualified immunity, and

the chaplains’ individual liability.1 Tabaknek and Millard do not contest that

denying Monts a Kosher diet substantially burdened his religious exercise. As to

sincerity, a reasonable jury could conclude that Monts was sincere. Every fact

relied on below to hold otherwise was disputed. As to qualified immunity, the

right at issue here was clearly established before the relevant time, McElyea v.

Babbit, 833 F.2d 196, 198–99 (9th Cir. 1987) (per curiam), and Monts has raised,



      **
             The Honorable Kevin Thomas Duffy, District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.
      1
         The briefing refers to this issue as individual liability. We note that it is
more often referred to as causation, and relates to the requirement, under § 1983,
that each defendant be individually shown to have “subject[ed], or cause[ed] to be
subjected . . . [the plaintiff] to the deprivation” of a constitutional right. 42 U.S.C.
§ 1983.

                                            2
to the extent necessary on summary judgment, factual disputes as to the alleged

constitutional violation. Finally, as to individual liability, both chaplains admit to

personal involvement in denying Monts’s requests for a Kosher diet. That is

enough under § 1983. E.g., Preschooler II v. Clark Cnty. Sch. Bd. of Trustees, 479

F.3d 1175, 1183 (9th Cir. 2007).

      We note that the trial record may differ significantly from that on summary

judgment. Accordingly, our disposition should not be read as taking a position on

whether Monts will ultimately prevail on the merits or whether the chaplains will

ultimately prevail on qualified immunity.

      REVERSED and REMANDED.




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