                                                                              FILED
                           NOT FOR PUBLICATION                                MAR 17 2014

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



                            FOR THE NINTH CIRCUIT


JAMES M. WARREN,                                 No. 12-35720

              Plaintiff - Appellant,             D.C. No. 6:10-cv-00020-DWM

  v.
                                                 MEMORANDUM*
CHRIS WYANT,

              Defendant - Appellee.


                   Appeal from the United States District Court
                           for the District of Montana
                   Donald W. Molloy, District Judge, Presiding

                      Argued and Submitted February 7, 2014
                               Seattle, Washington

Before: GOULD and CHRISTEN, Circuit Judges, and KOBAYASHI, District
Judge.**

       When James Michael Warren entered Montana State Prison, he was not

allowed to keep his copy of Taking Up the Runes, a book he claims is central to his

practice of Odinism. The parties agree that prison policy allowed prisoners to

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Leslie E. Kobayashi, District Judge for the U.S.
District Court for the District of Hawaii, sitting by designation.
bring a copy of the Bible, the Torah or the Koran through the intake process.

Warren brought a § 1983 claim against state agencies and officials for violation of

the Religious Land Use and Institutionalized Prisoners Act (RLUIPA) and his

constitutional rights. On the recommendation of the magistrate judge who

screened Warren’s complaint, the district court dismissed Warren’s claims against

all defendants before they were served except Chris Wyant, the officer who

conducted his intake. The district court later granted summary judgment in favor

of Officer Wyant on all counts. Warren appeals both rulings.

      We have jurisdiction pursuant to 28 U.S.C. § 1291 and review the district

court’s orders de novo. Howard v. Everex Sys., Inc., 228 F.3d 1057, 1060 (9th Cir.

2000). We affirm in part, reverse in part, and remand.

      1.     The district court erred by granting summary judgment on
             Warren’s RLUIPA claim against Officer Wyant.

      The district court granted summary judgment in favor of Officer Wyant on

Warren’s RLUIPA claim, finding that “Warren does not deny that he can order . . .

religious books from the prison canteen, and he has not shown that ordering and

using these items would significantly pressure him to alter his religious beliefs or

violate them in any way.” But Warren did allege in his amended complaint that he

has no money to purchase a replacement copy of the book through the prison



                                          2
canteen. The district court’s finding was thus an impermissible shifting of the

burden of proof to Warren at the summary judgment level. Genuine issues of

material fact remain, including whether Taking Up the Runes is available for

purchase through the prison canteen, whether Warren can afford to purchase a

copy, and, if not, whether Warren’s practice of Odinism would be substantially

burdened without it. Summary judgment on this claim was inappropriate.

       2.     The district court erred by granting summary judgment on
              Warren’s constitutional claims against Officer Wyant.

       After concluding that Warren did not allege “a significantly great restriction

or onus” to obtain protection under RLUIPA, the district court reasoned that,

“because RLUIPA imposes a stricter standard than any of the other claims Warren

raised in his Complaint, those claims also fail.” The district court granted

summary judgment on Warren’s Free Exercise Clause, Establishment Clause, and

Equal Protection Clause claims against Officer Wyant. Officer Wyant concedes

that “there is a flaw in the district court’s reasoning . . . because the district court

did not actually apply RLUIPA’s strict scrutiny analysis.”

       Officer Wyant urges the panel to rule in the first instance that the Montana

State Prison policy satisfies strict scrutiny and the rational basis test, and urges us

to affirm the dismissal of Warren’s constitutional claims. This court gives a great



                                            3
deal of deference to prison officials in the administration of prisons, especially

when security concerns are implicated. See United States v. Loughner, 672 F.3d

731, 774 (9th Cir. 2012) (Wallace, J., concurring). But questions of fact preclude

summary judgment in this case, including whether a strict prohibition on bringing

religious books into the facility is necessary to stop contraband from entering the

prison and the administrative difficulties, if any, of implementing a more lenient

rule, such as a rule that allows each prisoner to bring one holy book into the prison

regardless of its denomination. The record on appeal cannot conclusively answer

these questions. We therefore remand for consideration of whether the prison’s

policy violates Warren’s constitutional rights.

      We note that, since Warren entered Montana State Prison, the policy

regarding the property inmates may take through the intake process has been

revised. See MSP 4.1.1 III(H)(3) (2011), available at

http://www.cor.mt.gov/content/Resources/Policy/MSPprocedures/4-1-1InmateAd

missionsProcess.pdf. Prisoners are no longer allowed to take holy books of any

kind through the intake screening process. On remand, the district court should

consider whether the new policy moots any of Warren’s claims.

      3.     Officer Wyant may be entitled to qualified immunity.




                                          4
      In her motion for summary judgment, Officer Wyant argued that she is

entitled to qualified immunity. The district court granted her summary judgment

motion on other grounds and did not reach the qualified immunity question.

“[O]ur general assumption is that we operate more effectively as a reviewing court

than as a court of first instance,” Detrich v. Ryan, 740 F.3d 1237, 1248–49 (9th

Cir. 2013) (en banc), and we decline to decide this issue in the first instance.

      4.      The district court may have erred by dismissing the other state
              officials named in Warren’s complaint.

      Warren argues that the district court improperly dismissed his claims against

the other state officials named in his complaint. Claims for money damages

against these defendants in their official capacities are barred by the Eleventh

Amendment and were properly dismissed. See Edelman v. Jordan, 415 U.S. 651,

663 (1974).

      But suits for prospective relief against individuals in their official capacities

are not barred by the Eleventh Amendment. See Ex Parte Young, 209 U.S. 123,

155–56 (1908). The district court found that declaratory relief was unwarranted.

Because we reverse the dismissal of Warren’s constitutional claims, this claim

shall also be reconsidered on remand. The district court also ruled that Warren’s

request for prospective relief was mooted by his transfer to Crossroads



                                           5
Correctional Center, a private correctional facility. “It is true that when a prisoner

is moved from a prison, his action will usually become moot as to conditions at

that particular facility.” Nelson v. Heiss, 271 F.3d 891, 897 (9th Cir. 2001) (citing

Dilley v. Gunn, 64 F.3d 1365, 1368–69 (9th Cir.1995)). Warren argues, however,

that his transfer failed to rectify the injury because he still is not in possession of

his book. The record does not reveal whether Warren could have brought his copy

of Taking Up the Runes to Crossroads Correctional Center had he been allowed to

bring it through intake at Montana State Prison. We therefore vacate the dismissal

of Warren’s claims for prospective relief against the other state officials named in

his complaint, and instruct the district court to address the issue of injunctive relief

on remand.

      As to Warren’s claims against these defendants in their personal capacities,

Warren failed to allege that the defendants, who at best acted in supervisory roles,

“personally participated in a deprivation of the plaintiff's rights, or caused such a

deprivation to occur.” Arnold v. Int’l Bus. Mach. Corp., 637 F.2d 1350, 1355 (9th

Cir. 1981). Although we interpret pro se complaints liberally, we “may not supply

essential elements of the claim that were not initially pled.” Ivey v. Bd. of Regents

of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). “Vague and conclusory

allegations of official participation in civil rights violations are not sufficient to

                                            6
withstand a motion to dismiss.” Id. The district court did not err by ruling that,

after being given an opportunity to amend his complaint, Warren’s amended

complaint was insufficiently specific in its allegations against these entities.

      We AFFIRM in part, REVERSE in part, and REMAND for proceedings

consistent with this disposition. Costs on appeal shall be taxed against Appellee

Wyant. See FED. R. APP. P. 39(d)(1); Ninth Circuit Rule 39-1.1.




                                           7
