                                NOT FOR PUBLICATION                           FILED
                        UNITED STATES COURT OF APPEALS                         JUN 29 2017
                                                                           MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS
                                FOR THE NINTH CIRCUIT


    KEITH PRESTON NANCE,                              No. 16-15321

                Plaintiff-Appellant,                  D.C. No. 2:14-cv-00500-SMM

      v.

    ALLEN MISER, Senior Chaplain at                   MEMORANDUM*
    Florence Complex ADC; et al.,

                Defendants-Appellees.

                        Appeal from the United States District Court
                                 for the District of Arizona
                      Stephen M. McNamee, District Judge, Presiding

                            Argued and Submitted May 12, 2017
                                   Pasadena, California

Before: KOZINSKI and OWENS, Circuit Judges and WILKEN,** Senior District
Judge.

           Plaintiff-appellant Keith Nance appeals the district court’s decision to grant

summary judgment for defendants-appellees Allen Miser, Mike Linderman and



*
 This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
**
  The Honorable Claudia Wilken, Senior District Judge for the U.S. District Court
for the Northern District of California, sitting by designation.
Charles Ryan (collectively, Defendants) in this prisoner civil rights case. We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse.

        We review de novo a district court’s decision to grant summary judgment.

Brunozzi v. Cable Commc’ns, Inc., 851 F.3d 990, 995 (9th Cir. 2017).

        Section 3 of the Religious Land Use and Institutionalized Persons Act

(RLUIPA) provides,

        No government shall impose a substantial burden on the religious exercise of
        a person residing in or confined to an institution . . . even if the burden
        results from a rule of general applicability, unless the government
        demonstrates that imposition of the burden on that person--

        (1) is in furtherance of a compelling governmental interest; and
        (2) is the least restrictive means of furthering that compelling governmental
        interest.

42 U.S.C. § 2000cc–1(a).1 “RLUIPA thus allows prisoners ‘to seek religious

accommodations pursuant to the same standard as set forth in [the Religious

Freedom Restoration Act (RFRA)].’” Holt v. Hobbs, 135 S. Ct. 853, 860 (2015)

(citation omitted). RLUIPA must “be construed in favor of a broad protection of

religious exercise, to the maximum extent permitted by the terms of this chapter

and the Constitution.” § 2000cc-3(g). As a result, it “may require a government to



1
    All citations to the United States Code are to Title 42 unless otherwise stated.

                                            2
incur expenses in its own operations to avoid imposing a substantial burden on

religious exercise.” § 2000cc-3(c).

      RLUIPA establishes a burden-shifting regime:
      If a plaintiff produces prima facie evidence to support a claim alleging a
      violation of the Free Exercise Clause or a violation of section 2000cc of this
      title, the government shall bear the burden of persuasion on any element of
      the claim, except that the plaintiff shall bear the burden of persuasion on
      whether the law (including a regulation) or government practice that is
      challenged by the claim substantially burdens the plaintiff’s exercise of
      religion.

§ 2000cc-2(b). Thus, a confined person challenging a policy of the confining

institution under RLUIPA must prove two things. First, the person bears “the

initial burden of proving that the [institution’s] . . . policy implicates his religious

exercise.” Holt, 135 S. Ct. at 862. Second, the person bears “the burden of proving

that the [institution’s] . . . policy substantially burden[s] that exercise of religion.”

Id. If the plaintiff succeeds, the burden shifts to the defendant institution to show

that its policy “(1) [was] in furtherance of a compelling governmental interest; and

(2) [was] the least restrictive means of furthering that compelling governmental

interest.” Id. at 863 (quoting § 2000cc-1(a)).

//

//


                                            3
          1. Religious Exercises

       Nance wishes to use scented oils for a Friday weekly prayer and on two

annual religious holidays, and he wishes to purchase the oils himself to ensure that

they are halal. He also believes that his religion requires him to grow a “fist-

length” beard. A claim under RLUIPA “must be sincerely based on a religious

belief and not some other motivation.” Holt, 135 S. Ct. at 862. Defendants do not

dispute the sincerity of Nance’s beliefs.

       “Congress defined ‘religious exercise’ capaciously to include ‘any exercise

of religion, whether or not compelled by, or central to, a system of religious

belief.’” Id. at 860 (quoting § 2000cc–5(7)(A)). Thus, “RLUIPA bars inquiry into

whether a particular belief or practice is ‘central’ to a prisoner’s religion . . . .”

Cutter v. Wilkinson, 544 U.S. 709, 725 n.13 (2005); see also Shakur v. Schriro,

514 F.3d 878, 884-85 (9th Cir. 2008) (rejecting centrality test for free exercise

claims). Furthermore, the Supreme Court has repeatedly “warned that courts must

not presume to determine the place of a particular belief in a religion or the

plausibility of a religious claim.” Emp’t Div., Dep’t of Human Res. of Or. v. Smith,

494 U.S. 872, 887 (1990) (collecting cases). “It is not within the judicial ken to

question the centrality of particular beliefs or practices to a faith, or the validity of

                                             4
particular litigants’ interpretations of those creeds.” Hernandez v. C.I.R., 490 U.S.

680, 699 (1989). Accordingly, for the purposes of RLUIPA, the practices Nance

wishes to engage in are religious exercises.

          2. Substantial Burden

      RLUIPA does not define “substantial burden.” San Jose Christian Coll. v.

City of Morgan Hill, 360 F.3d 1024, 1034 (9th Cir. 2004). A substantial burden

“must impose a significantly great restriction or onus.” Warsoldier v. Woodford,

418 F.3d 989, 995 (9th Cir. 2005). Supreme Court and Ninth Circuit precedent

“clearly hold that punishments to coerce a religious adherent to forgo her or his

religious beliefs” substantially burden religious exercise. Warsoldier, 418 F.3d at

996. Furthermore, the Ninth Circuit has had “little difficulty in concluding that an

outright ban on a particular religious exercise is a substantial burden on that

religious exercise.” Greene v. Solano Cty. Jail, 513 F.3d 982, 988 (9th Cir. 2008).

Finally, a substantial burden may also be found where “alternatives require

substantial ‘delay, uncertainty, and expense.’” Int’l Church of Foursquare Gospel

v. City of San Leandro, 673 F.3d 1059, 1068 (9th Cir. 2011) (citation omitted).

      The district court erroneously concluded that neither of Nance’s claimed

religious exercises was substantially burdened because Nance had not sufficiently

                                          5
demonstrated that the exercises were significant to his overall religious practice as

a Muslim. In so concluding, the district court improperly engaged in evaluating the

centrality of these exercises to Nance’s religion.

      Nance has shown that Arizona Department of Corrections (ADC) policies

substantially burden his claimed religious exercises because the policies prohibit

those exercises. Defendants’ arguments to the contrary are unavailing. Defendants

point out that Nance is allowed to purchase unscented oils and that he did not

respond to an offer to use scented oils in group ceremonies, if the oils were

donated. These accommodations do not permit the religious exercise Nance

identifies. Furthermore, there is no guarantee that scented oils would be donated,

resulting in uncertainty and potential delay. Defendants also argue that the threat of

disciplinary action for failing to shave is insufficiently coercive, but this is contrary

to Supreme Court and Ninth Circuit precedent. Holt, 135 S. Ct. at 862; Warsoldier,

418 F.3d at 996.

      Accordingly, the district court erred in finding that Nance had not shown

that his desired religious exercises are substantially burdened.

          3. Compelling State Interest and Least Restrictive Means

      Defendants do not respond to Nance’s argument on the second half of the

                                           6
RLUIPA analysis on appeal, instead requesting that the panel remand to the district

court for further consideration because the district court did not reach the second

half of the analysis. However, Defendants presented their evidence and arguments

on this analysis below, and the standard of review on appeal is de novo. In the

interest of judicial economy, we address the issue.

      While prison security is a compelling state interest, Cutter, 544 U.S. at 725

n.13, Defendants conceded at oral argument that allowing Nance to purchase

scented oils from an approved vendor and use them only under the supervision of

the chaplain would not infringe on this interest, and they have not shown that their

ban is the least restrictive means to advance it. In the chaplain’s custody, the oils

could not be used to hide the scent of contraband. Defendants raised the possibility

that this alternative could prove a burden on the chaplain, but they misunderstood

Nance to be asking to use scented oils five times a day. In any event, RLUIPA

explicitly provides that it “may require a government to incur expenses in its own

operations.” § 2000cc–3(c). Furthermore, “the policies followed at other well-run

institutions [are] relevant to a determination of the need for a particular type of

restriction,” Holt, 135 S. Ct. at 866 (citation omitted), and Defendants do not

dispute that other well-run institutions permit the use of scented oils, see Lewis v.

                                           7
Ollison, 571 F. Supp. 2d 1162, 1171 (C.D. Cal. 2008); LaPlante v. Massachusetts

Dep’t of Correction, 89 F. Supp. 3d 235, 244 (D. Mass. 2015). Finally,

Defendants’ concern that accommodating Nance’s request would lead to other

similar requests is the “‘classic rejoinder of bureaucrats throughout history’”

against exceptions to a rule, which was rejected in Holt. 135 S. Ct. at 866 (quoting

Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 436

(2006)).

      When a prisoner challenges a confining institution’s justifications for a

policy that substantially burdens religious exercise, “prison officials must set forth

detailed evidence, tailored to the situation before the court, that identifies the

failings in the alternatives advanced by the prisoner.” Warsoldier, 418 F.3d at 1000

(citation omitted). Defendants have not done so and, to the contrary, conceded that

Nance’s proposal would not adversely affect security. Accordingly, the panel will

direct the entry of summary judgment for Nance on his request to order scented

oils from an approved vendor, to be stored by the chaplain and used under the

chaplain’s supervision.

      Whether Defendants’ burden on Nance’s exercise of his sincerely held

religious belief that he must wear a fist-length beard furthers a compelling

                                           8
government interest, and whether the one-inch maximum under ADC’s grooming

policy is the least restrictive means of advancing that interest, is not as clear. That

issue will be remanded to the district court for further proceedings.

          4. Conclusion

      For the foregoing reasons, we find that Nance carried his burden under

RLUIPA to show that his desired religious exercises are substantially burdened

and we reverse the district court’s summary judgment. Regarding scented oils, we

find that Defendants not only failed to present detailed evidence that Nance’s

proposed alternative would be unworkable but conceded that it would not affect

prison security, and we direct the district court to enter summary judgment for

Nance on that issue. We remand for further proceedings regarding Defendants’

restriction on the length of Nance’s beard.

      REVERSED and REMANDED with instructions.




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