                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           DEC 18 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


MESQUITE GROVE CHAPEL, an                        No. 13-16633
Arizona not-for-profit corporation; et al.,
                                                 D.C. No. 4:10-cv-00769-JR
              Plaintiffs - Appellants,

 v.                                              MEMORANDUM*

CARMINE DEBONIS, JR., in his capacity
as Pima County Chief Zoning Inspector,

              Defendant - Appellee.


                   Appeal from the United States District Court
                            for the District of Arizona
                  Jacqueline Rateau, Magistrate Judge, Presiding

                    Argued and Submitted November 17, 2015
                            San Francisco, California

Before: NOONAN, WARDLAW, and PAEZ, Circuit Judges.

      Mesquite Grove Chapel (“Mesquite”) and Debi Fazio appeal the district

court’s determination on summary judgment that Pima County Chief Zoning

Inspector Carmine DeBonis, Jr. (the “Inspector”) did not substantially burden



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Mesquite’s religious exercise under the Religious Land Use and Institutionalized

Persons Act (“RLUIPA”). After Mesquite applied for permits to develop land

zoned for church use, the Inspector determined that Mesquite’s proposed use did

not meet the Pima County zoning code’s definition of “church.” The Pima County

Board of Adjustment affirmed. Mesquite brought this action in Arizona Superior

Court alleging violations of the First Amendment and RLUIPA alongside state law

claims.

       The Defendants removed the case to federal court. On January 4, 2013, the

district court entered an order granting summary judgment to the Defendants on all

claims. On the federal claims against the Inspector, it held that he had absolute

immunity and that there was insufficient evidence for any fact-finder to find a

substantial burden under RLUIPA. On June 19, 2013, in response to Mesquite’s

Rule 59 motion for a new trial, the district court reversed its absolute immunity

determination, but affirmed its prior RLUIPA decision. That disposition, however,

contained a clerical error causing it to deny Defendant’s motion for summary

judgment rather than grant it. On July 17, 2013, after a Rule 60 motion, the district

court corrected the error.




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      Mesquite filed a notice of appeal on August 13, 2013. On appeal, it

challenges the district court’s grant of summary judgment to the Inspector on the

RLUIPA claim and, in response, the Inspector invokes absolute immunity.

      We have jurisdiction to consider the appeal of the order granting summary

judgment under 28 U.S.C. § 1291. The deadline to file a notice of appeal can be

tolled twice by post-judgment motions if the first such motion substantively alters

the judgment. Wages v. IRS, 915 F.2d 1230, 1233–34 n.3 (9th Cir. 1990). Because

the district court mistakenly denied the Defendant’s motion for summary judgment

in the order disposing of the first post-judgment motion, the district court effected

a substantive change in the original grant of summary judgment. Thus, the notice

of appeal was timely and we have jurisdiction.

      We review summary judgment decisions de novo. San Jose Christian Coll.

v. City of Morgan Hill, 360 F.3d 1024, 1029–30 (9th Cir. 2004). The district court

correctly held that the Inspector does not have absolute immunity. Absolute,

quasi-judicial immunity exists if the government official can show that his or her

role is “functional[ly] comparab[le]” to that of a judge. Antoine v. Byers &

Anderson, Inc., 508 U.S. 429, 436 (1993) (alterations in original) (citations

omitted); Butz v. Economou, 438 U.S. 478, 512 (1978). To be functionally

comparable, the official must be constrained by some of the safeguards present in a


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judicial setting. Butz, 438 U.S. at 512–13. The purpose of this immunity is to

ensure that decisionmakers are not influenced by the threat of litigation. Id. at

508–09.

       The Inspector is not functionally comparable to a judge. Although the

Inspector’s decisions are reviewable on administrative and judicial appeal and land

use decisions can be “contentious,” Buckles v. King Cty., 191 F.3d 1127, 1136 (9th

Cir. 1999), proceedings before the Inspector are not adversarial and they lack

procedural protections. The Inspector also provided insufficient information to

conclude that the he is independent. Finally, the Inspector’s role is more executive

than judicial: the Inspector fails to show that he is bound to render a decision rather

than advise on compliance. The Inspector is not entitled to absolute immunity.

       Still, Mesquite has not shown a substantial burden on its religious exercise

under RLUIPA. 42 U.S.C. § 2000cc(a)(1). We “examine the particular burden

imposed” to determine whether it is substantial, that is, “oppressive to a

significantly great extent.” Int’l Church of Foursquare Gospel v. City of San

Leandro, 673 F.3d 1059, 1066–67 (9th Cir. 2011) (internal quotation marks

omitted). The primary burdens presented here—relocating or submitting a

modified application—were not substantial, especially because Mesquite presented

no evidence that other sites are unsuitable. Additionally, the Inspector’s decision


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was not arbitrary or made in bad faith. Mesquite has failed to show a substantial

burden on its religious exercise within the meaning of RLUIPA.

      The clerk shall amend the docket to reflect that Carmine DeBonis, Jr. is the

sole appellee in light of the parties’ agreement at oral argument.

      AFFIRMED.




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