                                                                            FILED
                             NOT FOR PUBLICATION                             AUG 02 2013

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



JEFFREY FORTER,                                   No. 12-35470

               Plaintiff - Appellant,             D.C. No. 3:10-cv-06065-MO

  v.
                                                  MEMORANDUM *
RANDY GEER; et al.,

               Defendants - Appellees.



                   Appeal from the United States District Court
                            for the District of Oregon
                   Michael W. Mosman, District Judge, Presiding

                              Submitted July 24, 2013 **

Before:        ALARCÓN, CLIFTON, and CALLAHAN, Circuit Judges.

       Oregon state prisoner Jeffrey Forter appeals pro se from the district court’s

judgment in his 42 U.S.C. § 1983 action alleging that defendants violated his

constitutional rights and the Religious Land Use and Institutionalized Persons Act

(“RLUIPA”) in connection with Christian Identity materials that defendants

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
deemed inflammatory. We have jurisdiction under 28 U.S.C. § 1291. We review

de novo the district court’s summary judgment, Jones v. Blanas, 393 F.3d 918, 926

(9th Cir. 2004), and determination that a prisoner failed to exhaust administrative

remedies under the Prison Litigation Reform Act, Wyatt v. Terhune, 315 F.3d

1108, 1117 (9th Cir. 2003). We affirm.

       The district court properly granted summary judgment on Forter’s

constitutional claims related to the prison’s refusal to provide Forter with Christian

Identity materials he had ordered because Forter failed to raise a genuine dispute of

material fact as to whether the regulation justifying withholding the materials is not

reasonably related to legitimate penological interests. See Turner v. Safley, 482

U.S. 78, 89 (1987) (“[W]hen a prison regulation impinges on inmates’

constitutional rights, the regulation is valid if it is reasonably related to legitimate

penological interests.”); see also Cutter v. Wilkinson, 544 U.S. 709, 725 n.13

(2005) (“[P]rison security is a compelling state interest, and . . . deference is due to

institutional officials’ expertise in this area.”).

       The district court properly granted summary judgment on Forter’s RLUIPA

claim regarding the Christian Identity materials that were withheld, as well as the

materials that were later given to him, because Forter failed to raise a genuine

dispute as to material fact as to whether the challenged policy substantially


                                              2                                    12-35470
burdened the exercise of his religious beliefs. See Warsoldier v. Woodford, 418

F.3d 989, 994 (9th Cir. 2005). Moreover, defendants were entitled to qualified

immunity and, as to the materials he eventually received, any injunctive relief

would be moot. See Pearson v. Callahan, 555 U.S. 223, 243 (2009) (state officers

entitled to qualified immunity if their actions did not violate clearly established

law); Warsoldier, 418 at 997 n.7 (“There exists little Ninth Circuit authority

construing RLUIPA.”); cf. 42 U.S.C. § 2000cc-3(e) (“A government may avoid the

preemptive force of any provision of [RLUIPA] . . . by providing exemptions from

the policy or practice for applications that substantially burden religious exercise,

or by any other means that eliminates the substantial burden.”).

      The district court properly dismissed Forter’s remaining claims without

prejudice because Forter failed to exhaust his administrative remedies. See

Woodford v. Ngo, 548 U.S. 81, 93-95 (2006) (requiring proper and timely

exhaustion of prisoner claims). The district court did not clearly err in finding that

Forter failed to pursue all levels of administrative grievances available to him. Cf.

Sapp v. Kimbrell, 623 F.3d 813, 822-23 (9th Cir. 2010) (exhaustion is not required

where administrative remedies are rendered “effectively unavailable”).

      Forter’s contentions regarding alleged pending discovery, judicial bias, and

the court’s failure to address his equal protection claim are unpersuasive. His


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reliance on McCabe v. Arave, 827 F.2d 634 (9th Cir. 1987), is misplaced.

      AFFIRMED.




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