                                                                              FILED
                           NOT FOR PUBLICATION                                 JUN 16 2014

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



                            FOR THE NINTH CIRCUIT


TREANDOUS A. COTTON,                             No. 12-15829

              Plaintiff - Appellant,             D.C. No. 3:09-cv-00385-WHA

  v.
                                                 MEMORANDUM*
MATTHEW L. CATE; ANTHONY
HEDGPETH, Warden; GEORGE A.
NEOTTI, Warden, Deputy Chief; SUE
SUMMERSETT, Departmental Food
Administrator; A. LAWDOU, Chaplain; J.
BRUNSCHER, Supervising Correctional
Cook; R. CONWAY, Correctional Food
Manager; K. ROBINSON, Assistant
Correctional Food Manager; R. MANUEL,

              Defendants - Appellees.


                   Appeal from the United States District Court
                     for the Northern District of California
                    William Alsup, District Judge, Presiding

                        Argued and Submitted April 9, 2014
                            San Francisco, California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: TALLMAN and CLIFTON, Circuit Judges, and DUFFY, District Judge.**

      Treandous Cotton began practicing the Shetaut Neter religion in a California

state prison. The religion mandates a Kemetic diet. The diet is practically, but not

by definition, vegan and organic. Cotton asked prison officials to provide him a

Kemetic diet; they refused, and he sued. He brings three claims: an Equal

Protection claim under 42 U.S.C. § 1983; a Free Exercise claim also under § 1983;

and a claim for damages and injunctive relief under the Religious Land Use and

Institutionalized Persons Act (“RLUIPA”). The district court granted a motion to

dismiss one defendant, Matthew Cate, and then disposed of the rest of Cotton’s

case on summary judgment. Cotton appeals. We affirm in part, reverse in part,

and remand.

      We affirm the dismissal of defendant Matthew Cate. Our review is de novo.

Kahle v. Gonzales, 487 F.3d 697, 699 (9th Cir. 2007). We affirm because Cotton

has not met his burden under Rule 28(a)(8)(A) of the Federal Rules of Appellate

Procedure. The rule requires appellants to present their “contentions and the

reasons for them” in their opening briefs. Fed. R. App. P. 28(a)(8)(A). In his



      **
             The Honorable Kevin Thomas Duffy, District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.


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opening brief, Cotton contends that dismissing Cate was error, but does not explain

how Cate could be personally liable. Instead, we are invited to figure it out for

ourselves. Per Rule 28, we decline the invitation. See Christian Legal Soc’y

Chapter of Univ. of Cal. v. Wu, 626 F.3d 483, 487 (9th Cir. 2010).

      We also affirm summary judgment as to Cotton’s § 1983 claims. Again,

review is de novo. Suzuki Motor Corp. v. Consumers Union of United States, Inc.,

330 F.3d 1110, 1131 (9th Cir. 2003). All constitutional claims brought by

prisoners, except Eighth Amendment claims, are subject to Turner v. Safley, 482

U.S. 78 (1987). Ward v. Walsh, 1 F.3d 873, 877 (9th Cir. 1993). Under Turner, a

prisoner’s constitutional claim fails if the challenged policy or action is rationally

related to a legitimate penological interest. 482 U.S. at 78–80. Here, Cotton

concedes that the prison officials have a legitimate penological interest in

maintaining a simple food service. Denying Cotton’s request to create and serve a

new meal plan is rationally related to that interest. See, e.g., Shakur v. Schriro, 514

F.3d 878, 886 (9th Cir. 2008).

      Next, we affirm summary judgment as to Cotton’s claims for damages under

RLUIPA. It is significant that all the defendants are individuals. The Act doesn’t

allow damages against individuals sued in their official capacities. Holley v. Cal.

Dep’t of Corr., 599 F.3d 1108, 1114 (9th Cir. 2010). And, if invoked under the


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Spending Clause, RLUIPA doesn’t allow damages against individuals sued in their

individual capacities. Wood v. Yordy, No. 12-35336, slip op. at 3, 11 (9th Cir.

June 3, 2014). There is a chance that, if invoked under the Commerce Clause,

RLUIPA would support Cotton’s claim. See Stewart v. Beach, 701 F.3d 1322,

1334–35 n.11 (10th Cir. 2012); see also 42 U.S.C. § 2000cc-1(b)(2). But Cotton

has waived that argument by failing to invoke the Commerce Clause before oral

argument. Butler v. Curry, 528 F.3d 624, 642 (9th Cir. 2008).

      Since Cotton no longer has any claims for damages, the defendants’ request

for qualified immunity, which only applies to damages, is moot. See Pearson v.

Callahan, 555 U.S. 223, 231 (2009).

      Finally, we reverse summary judgment as to Cotton’s claims for injunctive

relief under RLUIPA. Under the Act, “Once the plaintiff establishes that the

challenged state action substantially burdens his religious exercise, the government

bears the burden of establishing that the regulation serves a compelling

government interest and is the least restrictive means of achieving that interest.”

Shakur, 514 F.3d at 889.

      Here, a reasonable finder of fact could find that the defendants’ refusal to

provide Cotton with a Kemetic diet substantially burdened his religious exercise.

No one disputes that, for Cotton, diet is a religious matter. And Cotton’s religious


                                          4
leader declared that the religion’s scriptures “mandate the Kemetic diet for all

practitioners of Shetaut Neter.” Thus, not having the diet could be a substantial

burden to Cotton.

      The burden then shifts to the defendants, and they fail to meet it here. We

assume that the prison can show a compelling interest, but they have not shown

least restrictive means. “[A] prison cannot meet its burden to prove least restrictive

means unless it demonstrates that it has actually considered and rejected the

efficacy of less restrictive measures before adopting the challenged practice.”

Shakur, 514 F.3d at 890 (quoting Warsoldier v. Woodford, 418 F.3d 989, 999 (9th

Cir. 2005)). And the demonstration must be with sufficient evidence; “conclusory

assertions” are not enough. Id. Here, the prison adequately demonstrated that it

considered and rejected obtaining food for Cotton from a distant grocery store.

But it only offered a single conclusory sentence saying that using approved food

vendors—which the defendants admit carry some organic and vegan

products—wouldn’t work. The existing vendors may well be insufficient, cost-

prohibitive, or otherwise unworkable. But the prison must explain why in greater

detail than the single conclusory sentence it offered.

      We do not mean to suggest that prisons must write volumes to satisfy

RLUIPA. Nor need they run to ground all possible leads or waste time inventing,


                                          5
analyzing, and rejecting hopeless alternatives. But reversal is appropriate where,

as here, the prison fails to explain, and instead merely asserts, that a potential less

restrictive alternative won’t work.

      AFFIRMED in part, REVERSED in part, and REMANDED.

      Each party to bear its own costs.




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