                                                                                FILED
                            NOT FOR PUBLICATION
                                                                                  JUL 7 2020
                     UNITED STATES COURT OF APPEALS                          MOLLY C. DWYER, CLERK
                                                                               U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


STEVEN ERICK RILEY,                               No.    17-56298

              Plaintiff-Appellant,                D.C. No.
                                                  3:16-cv-00405-MMA-JMA
 v.

SCOTT KERNAN, Secretary of                        MEMORANDUM*
Corrections and Rehabilitations; et al.,

              Defendants-Appellees.


                    Appeal from the United States District Court
                       for the Southern District of California
                    Michael M. Anello, District Judge, Presiding

                         Argued and Submitted May 8, 2020
                               Pasadena, California

Before: MURGUIA and CHRISTEN, Circuit Judges, and STEIN,** District Judge.

      Steven Riley appeals the dismissal of his pro se complaint alleging various

constitutional violations related to Calipatria State Prison’s drug testing policies

and practices. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm in

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Sidney H. Stein, United States District Judge for the
Southern District of New York, sitting by designation.
part and reverse in part. Because the parties are familiar with the facts and

procedural history, we recite them only as necessary to resolve the issues on

appeal.

      1.     The appellees argue that Riley lacks standing to raise his claims under

the Fourth and Eighth Amendment. We are required to address this argument,

even though it was raised for the first time on appeal, because it implicates our

jurisdiction. Laub v. U.S. Dep’t of Interior, 342 F.3d 1080, 1085 (9th Cir. 2003).

We agree with Riley that construed generously he alleged enough facts to show he

has standing. See Jackson v. Gates, 975 F.2d 648, 653 (9th Cir. 1992) (holding

that plaintiff’s refusal to submit to unconstitutional drug testing and resulting

adverse consequences was sufficient to show plaintiff’s constitutional rights were

violated).

      2.     The district court did not err by dismissing Riley’s Fourth

Amendment claim on the merits. It is undisputed that urinalysis testing is a search

under the Fourth Amendment and that drug testing in the prison context is

generally constitutional unless it is conducted in an unreasonable manner. See

Thompson v. Souza, 111 F.3d 694, 701 (9th Cir. 1997). The reasonableness of

prison drug testing “requires ‘[b]alancing the significant and legitimate security

interests of the institution against the privacy interests of the inmates.’” Id. at 702


                                            2
(quoting Bell v. Wolfish, 441 U.S. 520, 560 (1979)). Whether such practices are

reasonable under the Fourth Amendment depends on their scope, manner,

justification, and place. Id. at 700, 702. Riley did not allege sufficient facts to

state a plausible claim that Calipatria’s policy or practice of drug testing exceeds

constitutional limits under this standard.1

      3.     The district court did not err by dismissing Riley’s Eighth

Amendment claim. Eighth Amendment claims in the prison context must be

viewed in light of the Supreme Court’s “admonition to accord prison officials

‘wide-ranging deference in the adoption and execution of policies and practices to

further institutional order and security.’” Jeffers v. Gomez, 267 F.3d 895, 917 (9th

Cir. 2001) (per curiam) (quoting Whitley v. Albers, 475 U.S. 312, 321–22 (1986)).

Eighth Amendment claims require (1) “an objective showing that the deprivation

was ‘sufficiently serious’ to form the basis for an Eighth Amendment violation”;

and (2) “a subjective showing that the prison official acted ‘with a sufficiently

culpable state of mind.’” Hearns v. Terhune, 413 F.3d 1036, 1042 (9th Cir. 2005)

(quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). Riley did not allege


      1
          Riley’s pro bono counsel asserted facts on appeal that did not appear in the
district court record. This is not permitted. See Ramirez v. Galaza, 334 F.3d 850,
859 n.6 (9th Cir. 2003) (“We have consistently held that a party may not raise new
issues of fact on appeal after declining to present those facts before the trial
court.”).
                                              3
sufficient facts demonstrating that he suffered a sufficiently serious deprivation, or

that prison officials acted with deliberate indifference.

      4.     The district court did not err by dismissing Riley’s First Amendment

Establishment Clause claim premised on the prison referring him to Alcoholics

Anonymous/Narcotics Anonymous (AA/NA). To state an Establishment Clause

claim, Riley must allege that “the state acted”; the action amounted to coercion;

and “the object of the coercion [was] religious rather than secular.” Inouye v.

Kemna, 504 F.3d 705, 713 (9th Cir. 2007) (quoting Kerr v. Farrey, 95 F.3d 472,

479 (7th Cir. 1996)). Riley did not allege he was compelled to attend AA/NA, nor

could he, because the regulation in place at the time provided for an explicit

alternative to AA/NA imposed as a consequence for a disciplinary infraction. See

Cal. Code Regs. tit. 15, § 3315(f)(5)(J)(1) (2015) (“For the first offense, the inmate

shall be required to attend Alcoholic Anonymous or Narcotic Anonymous

meetings or assigned to a substance abuse education and/or treatment programs to

the extent such programs are available . . . .”) (emphasis added).

      5.     The district court did not abuse its discretion by denying Riley further

leave to amend his Fourth, Eighth, or First Amendment Establishment Clause

claims. The district court granted Riley leave to amend with specific instructions

about the deficiencies in his original complaint. Riley failed to correct those


                                           4
deficiencies in his amended complaint, and on appeal he has not presented

sufficient facts that he would allege if granted additional leave on remand.

Therefore, the district court did not err by ruling that leave to amend would be

futile. See Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc).

      6.     The district court erred by dismissing Riley’s claim under the First

Amendment’s Free Exercise Clause and by failing to address Riley’s allegations

under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42

U.S.C. § 2000cc et seq. Riley clarified on appeal that he does not allege that these

claims encompass defendants’ decision to confiscate his prayer oil. His Free

Exercise and RLUIPA claims are limited to the prison’s urinalysis procedures.

Construed liberally and considering Riley’s amended complaint and “subsequent

filings,” Riley alleged sufficient facts to put the defendants on notice that the

prison’s urinalysis procedures interfered with his religious belief against giving

away his bodily fluids or DNA. See Walker v. Beard, 789 F.3d 1125, 1133 (9th

Cir. 2015); Alvarez v. Hill, 518 F.3d 1152, 1157 (9th Cir. 2008).

      7.     The district court did not address the merits of Riley’s First

Amendment retaliation claim. Riley alleged sufficient facts in his original

complaint to indicate that he was raising a First Amendment retaliation claim,

including that he was “bullied and harassed for invoking his rights,” and that his


                                           5
administrative appeals were screened out “for nefarious reasons” and to chill his

“right of redress.” His amended complaint elaborated on those allegations.

However, the district court did not address this as a retaliation claim.2

      We remand for further proceedings consistent with this disposition on

Riley’s claim under the First Amendment’s Free Exercise Clause, and for the

district court to consider Riley’s RLUIPA and First Amendment retaliation claims

in the first instance. We recommend that Riley be appointed counsel for further

proceedings.

      AFFIRMED IN PART, REVERSED IN PART AND REMANDED, with

the parties to bear their own costs.




      2
         Under the Double Jeopardy Clause, the district court addressed Riley’s
allegations that defendants retaliated against him by “stacking” his RVRs.
                                           6
