                                                                             FILED
                            NOT FOR PUBLICATION                              NOV 07 2014

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



                            FOR THE NINTH CIRCUIT


STEVEN HYPOLITE,                                 No. 10-16365

              Plaintiff - Appellant,             D.C. No. 2:05-cv-00428-MCE-
                                                 KJN
  v.

CALIFORNIA DEPARTMENT OF                         MEMORANDUM*
CORRECTIONS; et al.,

              Defendants - Appellees.


                   Appeal from the United States District Court
                       for the Eastern District of California
              Morrison C. England, Jr., Chief District Judge, Presiding

                       Argued and Submitted October 6, 2014
                             San Francisco, California

Before: O’SCANNLAIN, THOMAS, and McKEOWN, Circuit Judges.

       California state prisoner Steven Hypolite appeals from the district court’s

grant of summary judgment on his damages claims alleging violations of the

Religious Land Use and Institutionalized Persons Act (“RLUIPA”). The district




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
court granted summary judgment to the defendants, including the Secretary of the

California Department of Corrections, the Warden of the California Medical

Facility prison, and numerous other prison officials, on Hypolite’s official capacity

claims because of the defendants’ Eleventh Amendment sovereign immunity. It

also granted summary judgment to the defendants on Hypolite’s individual

capacity claims for money damages, reasoning that RLUIPA does not create a

cause of action for such claims.

      On appeal, Hypolite contends that the defendants waived sovereign

immunity by extensively litigating his claims. Thus, Hypolite argues that the

district court erred when it granted summary judgment to the defendants based on

their sovereign immunity. Hypolite also contends that the district court erred when

it held that RLUIPA does not authorize money damages for individual capacity

claims.1

      The “test for determining whether a State has waived its immunity from

federal-court jurisdiction is a stringent one.” Coll. Sav. Bank v. Fla. Prepaid

Postsecondary Ed. Expense Bd., 527 U.S. 666, 675 (1999) (quoting Atascadero

State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985)). In general, “[t]he fact that the

      1
       Defendants’ Motion for Summary Affirmance is denied. Hypolite’s
Request for Judicial Notice is granted. Defendants’ Motion to Strike is denied as
moot.

                                          2
State appeared and offered defenses on the merits does not foreclose consideration

of the Eleventh Amendment issue . . . .” Fla. Dept. of State v. Treasure Salvors,

Inc., 458 U.S. 670, 683 n.18 (1982).

       “A waiver of Eleventh Amendment immunity must unequivocally evidence

the state’s intention to subject itself to the jurisdiction of the federal court.” Hill v.

Blind Indus. & Servs., 179 F.3d 754, 758, amended on denial of reh’g by 201 F.3d

1186 (9th Cir. 1999). While “waiver must be unambiguous” an “express written

waiver” is not “invariably required.” Id. “[C]onduct that is incompatible with an

intent to preserve” Eleventh Amendment immunity may waive that immunity. Id.

       Here, the defendants did not unequivocally waive Eleventh Amendment

immunity. The defendants raised their sovereign immunity promptly after the

magistrate judge requested supplemental briefing and before he issued his report

and recommendation on the motion for summary judgment. Moreover, there is no

indication that the defendants sought tactical advantage by waiting to raise

sovereign immunity in this case. See, e.g., Hill, 179 F.3d at 756-57 (explaining that

state “hedged its bet” when it waited until the day of trial to raise sovereign

immunity defense); In re Bliemeister, 296 F.3d 858, 862 (9th Cir. 2002) (finding

that the state made a “tactical decision” when it asserted sovereign immunity after

the trial court suggested its leanings on a motion for summary judgment).

                                             3
       Hypolite also contends that the district court erred when it granted summary

judgment to the defendants on his individual capacity claims. He argues that

RLUIPA allows him to recover damages from the defendants in their individual

capacities because Congress enacted RLUIPA under Section 5 of the 14th

Amendment. But “Congress . . . enact[ed] RLUIPA pursuant to its Spending

Clause and Commerce Clause authority.” Sossamon v. Lone Star State of Tex., 131

S. Ct. 1651, 1656 (2011); see also Wood v. Yordy, 753 F.3d 899, 901 (9th Cir.

2014) (“RLUIPA was enacted pursuant to Congress’s constitutional powers under

the Spending Clause . . .”). RLUIPA, therefore, does not authorize damages against

defendants in their individual capacities. Wood, 753 F.3d at 904 (“[T]here is

nothing in the language or structure of RLUIPA to suggest that Congress

contemplated liability of government employees in an individual capacity.”).

      AFFIRMED




                                         4
