                                                                            FILED
                            NOT FOR PUBLICATION                              DEC 22 2011

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




                            FOR THE NINTH CIRCUIT



STRIDER ROGNIRHAR, AKA Jonathan                   No. 09-15529
A. Picollo,
                                                  D.C. No. 2:08-cv-00892-LRS
              Plaintiff - Appellant,

  v.                                              MEMORANDUM *

N. GRANNIS; S. R. MOORE; R.
RUSSELL; MATTHEW CATE,

              Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Eastern District of California
                     Lonny R. Suko, District Judge, Presiding

                      Argued and Submitted December 5, 2011
                             San Francisco, California

Before: SCHROEDER, W. FLETCHER, and BERZON, Circuit Judges.

       Strider Rognirhar contends that the district court erred in dismissing his

Complaint under the Prison Litigation Reform Act (“PLRA”) (1) as “frivolous,” 28

U.S.C. § 1915(e)(2)(B)(i); and (2) for “fail[ure] to state a claim on which relief



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
may be granted,” id. § 1915(e)(2)(B)(ii). Rognirhar’s Complaint alleged that

defendants violated the Religious Land Use and Institutionalized Persons Act

(“RLUIPA”) and the First Amendment by refusing to grant him a religious

exemption from California’s prison grooming regulation, which prohibits inmates

from maintaining facial hair that extends more than one-half inch outward from the

face. See Cal. Code Regs. tit 15, § 3062(h).

      1.     This case is not moot. It is not “absolutely clear,” Friends of the

Earth v. Laidlaw Ent’l Servs. (TOC), Inc., 528 U.S. 167, 190 (2000), that § 3062(h)

will not be enforced against Rognirhar. California has not yet amended § 3062(h)

to eliminate restrictions on the length of inmates’ facial hair, and the Basra v. Cate

settlement agreement is not enforceable by Rognirhar. As the case is not presently

moot, we must decide this appeal on the merits. Should California promulgate its

proposed amendment to § 3062(h) after the case is returned to the district court, the

district court will then determine whether the new provision does, in fact, moot the

case. See, e.g., Jacobus v. Alaska, 338 F.3d 1095, 1103 (9th Cir. 2003) (“[I]n cases

involving the amendment or repeal of a statute, . . . we may continue to exercise

authority over a purportedly moot case where the balance of interests favors such

continued authority.”) (internal quotation marks omitted); Gluth v. Kangas, 951

F.2d 1504, 1507 (9th Cir. 1991) (holding that where a policy is enacted but


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contains vague standards, whether it moots the case depends on whether it “can[]

be said with assurance that there is no reasonable expectation that the alleged

violations will recur.”) (internal quotation marks omitted).

      Rognirhar’s claims against S.R. Moore and R. Russell, however, are moot.

Moore and Russell were employees of Deuel Vocational Institute. Rognirhar is no

longer imprisoned at Deuel and has not alleged that he is reasonably likely to

return there. See Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991).

      2.     Particularly in light of California’s settlement with another inmate

challenging § 3062(h) in Basra v. Cate, No. CV11-01676 (C.D. Cal. 2011), the

district court erred in dismissing Rognirhar’s Complaint as “frivolous” under the

PLRA, 28 U.S.C. § 1915(e)(2)(B)(I). See also Warsoldier v. Woodford, 418 F.3d

989 (9th Cir. 2005).

      Nor is the suit frivolous for any of the principal reasons now argued by the

defendants. Rognirhar has standing to bring this suit even though he shaved his

beard just before being transferred to a California prison, to comply with §

3062(h). See MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128-29 (2007).

Violation of § 3062(h) would have subjected him to discipline. See Cal. Code

Regs. tit. 15, § 3062(m). Any doubt in this regard was resolved by the course of

events after Rognirhar filed an administrative grievance requesting a religious


                                          3
exemption from § 3062(h)’s prohibition of facial hair exceeding one-half inch. His

request was denied, and Rognirhar was warned that “[a]n inmate who fails to

comply with these grooming standards may be deemed a program failure subject to

progressive discipline and classification committee review.” Rognirhar thus

alleged a “genuine threat of imminent prosecution,” Thomas v. Anchorage Equal

Rights Comm’n, 220 F.3d 1134, 1139 (9th Cir. 1999), in his Complaint. He also

specifically requested that the defendants “be enjoined from subjecting [him] to

any form of discipline for growing [his] facial hair according to [his] faith.” With

these allegations and plea, Rognirhar indicated sufficient intent to violate the

grooming regulation to render his pre-enforcement challenge ripe. See id. at 1139-

41.

      3.     We only partially reach the merits of whether Rognirhar’s Complaint

stated a claim upon which relief can be granted. The district court sua sponte

dismissed the Complaint prior to service on the defendants, who thus did not have

the opportunity to respond to Rognirhar’s Complaint. Neither did the defendants,

on appeal, address whether Rognirhar’s Complaint stated a RLUIPA claim upon

which relief may be granted. We therefore do not reach the merits of that question.

Cf. Wages v. I.R.S., 915 F.2d 1230, 1234-35 (9th Cir. 1990).




                                           4
      In contrast, we decide the merits of whether Rognirhar stated a First

Amendment claim upon which relief can be granted, because both parties fully

briefed this issue on appeal. See id. Rognirhar did not allege that § 3062(h) lacks

a reasonable relation to valid penological interests and thus failed to state a First

Amendment claim on which relief may be granted. See Turner v. Safley, 482 U.S.

78, 89 (1987). Moreover, the district court did not abuse its discretion in denying

Rognirhar leave to amend his Complaint with regard to the First Amendment

challenge. Friedman v. Arizona rejected a First Amendment challenge to

Arizona’s inmate grooming policy that prohibited facial hair altogether, holding

that the policy “reasonably relates to legitimate penological interests,” 912 F.2d

328, 331 (1990). Because a regulation that prohibits any facial hair does not

violate the First Amendment, it is clear that the deficiencies of Rognirhar’s

constitutional challenge to § 3062(h) cannot be cured by amendment. See Silva v.

Di Vittorio, 658 F.3d 1090, 1105 (9th Cir. 2011).

      4.     The fact that N. Grannis was responsible solely for denying

Rognirhar’s administrative grievance does not preclude Rognirhar from stating a

claim against Grannis. Grannis’s denial of the grievance constituted part of the

alleged violation against Rognirhar, and enjoining Grannis from denying




                                            5
Rognirhar a religious exemption from § 3062(h) would constitute an effective form

of relief.

       We AFFIRM the district court’s judgment with respect to defendants Moore

and Russell and with respect to Rognirhar’s First Amendment challenge against all

defendants. We REVERSE with respect to Rognirhar’s RLUIPA challenge

against defendants Grannis and Cate and REMAND for further proceedings.




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