                                                                           FILED
                             NOT FOR PUBLICATION                            MAY 25 2012

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




                             FOR THE NINTH CIRCUIT



DORIAN DAVIS,                                    No. 11-15296

               Plaintiff - Appellant,            D.C. No. 1:08-cv-01197-JTM-
                                                 JMA
  v.

E. G. FLORES; et al.,                            MEMORANDUM *

               Defendants - Appellees.



                    Appeal from the United States District Court
                        for the Eastern District of California
                     Jeffrey T. Miller, District Judge, Presiding

                              Submitted May 15, 2012 **

Before:        CANBY, GRABER, and M. SMITH, Circuit Judges.

       California state prisoner Dorian Davis appeals pro se from the district

court’s judgment in his 42 U.S.C. § 1983 action alleging denial of the right to

practice his religion in violation of the First Amendment, the Religious Land Use




          *
             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).
and Institutionalized Person’s Act (“RLUIPA”), and the Equal Protection Clause of

the Fourteenth Amendment. We have jurisdiction under 28 U.S.C. § 1291. We

review de novo both a dismissal for failure to state a claim under 28 U.S.C.

§ 1915(e)(2), Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order),

and the district court’s summary judgment, Morrison v. Hall, 261 F.3d 896, 900

(9 th Cir. 2001). We affirm in part, vacate in part, and remand.

      The district court properly dismissed Davis’s equal protection claim because

he failed to allege facts showing he was intentionally treated differently from

similarly situated inmates. See Thornton v. City of St. Helens, 425 F.3d 1158,

1166-67 (9th Cir. 2005).

       The district court properly granted summary judgment on Davis’s First

Amendment claims premised on the seven-month prohibition against using prayer

oil in cells because Davis failed to raise a genuine dispute of material fact as to

whether the prohibition was reasonably related to legitimate penological interests.

See Turner v. Safley, 482 U.S. 78, 89-91 (1987); see also O’Lone v. Estate of

Shabazz, 482 U.S. 342, 351-52 (1987) (no First Amendment violation if inmates

unable to attend certain prayer services were free to participate in other religious

ceremonies and practices).




                                           2                                      11-15296
       The district court properly granted summary judgment on Davis’s RLUIPA

claim premised on the temporary suspension of in-cell use of prayer oil because

Davis did not raise a genuine dispute of material fact as to whether the suspension

failed to further “a compelling governmental interest” or was not “the least

restrictive means” of preventing further smuggling of contraband. 42 U.S.C.

§ 2000cc-1(a); see 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 failed to address Davis’s First Amendment and RLUIPA

claims premised on a prison prohibition of unsupervised inmate-led religious

services. Accordingly, we vacate the judgment as to these claims and remand for

further proceedings.

       Davis’s remaining contentions are unpersuasive.

       Each party shall bear its own costs on appeal.

       AFFIRMED in part; VACATED in part; and REMANDED.




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