                                                                           FILED
                             NOT FOR PUBLICATION                            OCT 04 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



ROBERTO CORTEZ,                                  No. 09-15690

               Plaintiff - Appellant,            D.C. No. 5:06-cv-03827-JW

  v.
                                                 MEMORANDUM *
C. NOLL; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                      for the Northern District of California
                      James Ware, District Judge, Presiding

                           Submitted September 22, 2010 **

Before:        WALLACE, HAWKINS and THOMAS, Circuit Judges.

       Roberto Cortez (“Cortez”), a California state prisoner, appeals pro se from

the summary dismissal of his 42 U.S.C. § 1983 action alleging prison officials

violated his rights under the Religious Land Use and Institutionalized Persons Act




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
(“RLUIPA”) by disciplining him for refusing to comply with the prison body-

piercing regulations.

       The district court did not abuse its discretion when it denied Cortez’s

requests for appointment of counsel because he did not demonstrate exceptional

circumstances. See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991).

       The district court assumed that Cortez sincerely believed that wearing body

piercings is mandated by his religion, but concluded that he had not shown that his

inability to wear them resulted in a substantial burden on the exercise of his

religion. However, viewing the evidence in the light most favorable to Cortez, we

conclude that Cortez sufficiently demonstrated a prima facie claim that the

grooming policy and its punitive sanctions constituted a substantial burden on the

exercise of his religious beliefs. See Cutter v. Wilkinson, 544 U.S. 709, 725 n.13

(2005) (RLUIPA bars inquiry into whether a particular belief or practice is central

to a prisoner’s religion); Warsoldier v. Woodford, 418 F.3d 989, 994-96 (9th Cir.

2005) (grooming policy imposed a substantial burden on an inmate’s religious

practice where it intentionally put significant pressure on inmates to abandon their

religious beliefs).

       Accordingly, we vacate summary judgment on Cortez’s RLUIPA claim and

remand to the district court to consider, in the first instance, whether the piercing


                                           2                                     09-15690
regulation was the least restrictive means of furthering a compelling government

interest. See Greene v. Solano County Jail, 513 F.3d 982, 988-90 (9th Cir. 2008).

      Appellees shall bear Cortez’s costs on appeal.

      AFFIRMED in part, VACATED in part, and REMANDED.




                                         3                                  09-15690
