                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       AUG 22 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

BENJAMIN W. ESPINOSA; AMERICAN                  No.    17-17522
HUMANIST ASSOCIATION,
                                                D.C. No.
                Plaintiffs-Appellants,          3:16-cv-00141-RCJ-WGC

 v.
                                                MEMORANDUM*
JAMES DZURENDA, in his official
capacity as Director of the Nevada
Department of Corrections; JAMES
STOGNER, in his official capacity as Head
Chaplain of LCC,

                Defendants-Appellees.

                   Appeal from the United States District Court
                            for the District of Nevada
                   Robert Clive Jones, District Judge, Presiding

                      Argued and Submitted August 6, 2019
                           San Francisco, California

Before: O'SCANNLAIN, SILER,** and NGUYEN, Circuit Judges.

      Benjamin W. Espinosa, a Nevada state prisoner, and the American Humanist



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
Association challenge the prison’s failure to recognize Humanism as a Nevada

Department of Corrections Faith Group under the Establishment Clause of the First

Amendment and the Equal Protection Clause of the Fourteenth Amendment.

During the pendency of this appeal, Defendants officially recognized Humanism as

a faith group. Defendants also represented to the court that the recognition is “very

permanent” and that Humanism is “entitled to all the same rights and privileges of

all other recognized faith groups.” 1 Defendants therefore have satisfied their

burden under the voluntary cessation doctrine because “subsequent events made it

absolutely clear that the allegedly wrongful behavior could not reasonably be

expected to recur.” See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),

Inc., 528 U.S. 167, 189 (2000) (internal citations omitted); see also Fikre v. FBI,

904 F.3d 1033, 1037 (9th Cir. 2018) (requiring the government to show that a



1
  While Defendants admit they have not officially adjudicated Espinosa’s Request
for Accommodation of Religious Practices Form (DOC-3505) and Faith Group
Affiliation Declaration Form (DOC-3503) as they should have done under their
own policy, Defendants represented that the official recognition of Humanism as a
faith group automatically confers certain accommodations, including recognition
in the Nevada Offender Tracking Information System (“NOTIS”) and storage
space for “donated books, printed materials, and other items,” such as CDs,
pictures, and religious medallions. To the extent that additional accommodations
require other forms, such as the Religious Property Request Form (DOC-3528), the
Inmate Request for Recognized Holiday Service Form (DOC-3529), the Request
for NDOC to Accept Donated Items Form (DOC-4514), and the informal, quicker
Inmate Request Form (DOC-3012 or “kite”) to the chaplain for meetings,
Espinosa’s counsel conceded during oral argument that those forms have not been
filed.

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change in its behavior is “‘entrenched’ or ‘permanent’” to prove mootness (quoting

McCormack v. Herzog, 788 F.3d 1017, 1025 (9th Cir. 2015))). We therefore

dismiss this case as moot for lack of a live case or controversy and deny as moot

Defendants’ motion to dismiss.2 U.S. Const. art. III.

      DISMISSED.

      Each party shall bear its own costs on appeal.




2
 Plaintiffs argue that the complaint’s prayer for nominal damages is sufficient to
avoid mootness. By failing on appeal to name any of the Defendants in their
personal capacities, Plaintiffs have waived this issue. See Miller v. Fairchild
Indus., Inc., 797 F.2d 727, 738 (9th Cir. 1986) (stating that we “will not ordinarily
consider matters on appeal that are not specifically and distinctly argued in
appellant’s opening brief”). An action under 42 U.S.C. § 1983 “creates no
[nominal damages] remedy against the State” and its official actors. Arizonans for
Official English v. Arizona, 520 U.S. 43, 68–69 (1997).

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