                                                                           FILED
                           NOT FOR PUBLICATION                              APR 28 2010

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




                           FOR THE NINTH CIRCUIT



JAMES SHILLING                                   No. 08-16494

             Plaintiff - Appellant,              D.C. Nos. 2:05-CV-00889-PMP-
                                                 GWF
  v.
                                                 MEMORANDUM *
JACKIE CRAWFORD, et al.

             Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Nevada
                      Philip M. Pro, District Judge, Presiding

                      Argued and Submitted January 15, 2010
                            San Francisco, California

Before: WALLACE, HUG and CLIFTON, Circuit Judges.

       Former Nevada prisoner James Shilling appeals from the district court’s

summary judgment of his action alleging violations of 42 U.S.C. § 1983 and the

Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”). We

have jurisdiction pursuant to 28 U.S.C. § 1291. We review the district court’s



        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
grant of summary judgment de novo. Brown v. Cal. Dep’t of Corr., 554 F.3d 747,

749 (9th Cir. 2009). We must determine, viewing the evidence in the light most

favorable to the non-moving party, whether there are any genuine issues of

material fact and whether the district court correctly applied the substantive law.

Corales v. Bennett, 567 F.3d 554, 562 (9th Cir. 2009). We may affirm on any

grounds supported by the record, id., and do so here.

      As a threshold matter, it is well settled that in the First Amendment context,

      [t]he determination of what is a 'religious' belief or practice is more often
      than not a difficult and delicate task,. . . the resolution of [which] is not to
      turn upon a judicial perception of the particular belief or practice in
      question; religious beliefs need not be acceptable, logical, consistent, or
      comprehensible to others in order to merit First Amendment protection.

Thomas v. Review Bd. of Indiana Employment Sec. Div., 450 U.S. 707, 714 (1981).

RLUIPA incorporates this principle, defining "religious exercise," to include "any

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

religious belief. " 42 U.S.C. § 2000cc-5(7)(A) (emphasis added). "RLUIPA 'bars

inquiry into whether a particular belief or practice is "central" to a prisoner's

religion.'" Greene v. Solano County Jail, 513 F.3d 982, 986 (9th Cir. 2008)

(quoting Cutter v. Wilkinson, 544 U.S. 709, 725 n.13 (2005)). The suggestion that

the prison was permitted to deny Shilling a kosher diet because it determined that

he was not a "legitimate" Orthodox Jew as a matter of the formal requirements of


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Judaic law or would not be recognized as a true member of the religion by an

Orthodox Jewish congregation because his mother was not Jewish and he had not

formally converted is plainly inconsistent with RLUIPA. Because it is not our

place to question the sincerity of Shilling's religious beliefs, we credit the beliefs

he alleges as genuine.

      Shilling brought claims for both injunctive and monetary relief for

defendants’ failure to provide him with a kosher diet at the High Desert State

Prison (“HDSP”) in Nevada. Because Shilling has since been transferred to a

Washington correctional facility with no prospect of returning to HDSP, any

claims for injunctive relief are moot. See Johnson v. Moore, 948 F.2d 517, 519

(9th Cir. 1991).

      Shilling’s claims for damages were brought against defendants in both their

official and individual capacities. State officials sued for damages in their official

capacities are not “persons” within the meaning of § 1983. Doe v. Lawrence

Livermore Nat’l Lab., 131 F.3d 836, 839 (9th Cir. 1997). Rather, suits against

them are no different than suits against the state itself, and the Eleventh

Amendment bars such suits. Id. Thus, the summary judgment on Shilling’s

§ 1983 claims against defendants in their official capacities was proper.




                                            3
      Summary judgment was also proper on Shilling’s RLUIPA claims against

defendants in their official capacities. RLUIPA does not unambiguously condition

receipt of funds under RLUIPA on a waiver of sovereign immunity for money

damages against the state, see Holley v. Cal. Dept. of Corr., No. 07-15552, slip op.

5215 (9th Cir. Apr. 5, 2010). Thus, Shilling cannot recover money damages on his

RLUIPA claim by suing defendants here in their official capacities.

      This court has not yet decided whether money damages for RLUIPA claims

are available against state actors sued in their individual capacities. A number of

other circuits have answered that question in the negative. See, e.g., Nelson v.

Miller, 570 F.3d 868, 885-89 (7th Cir. 2009); Rendelman v. Rouse, 569 F.3d 182,

187-88 (4th Cir. 2009); Sossamon v. Texas, 560 F.3d 316, 327-29 (5th Cir. 2009);

Smith v. Allen, 502 F.3d 1255, 1272-73 (11th Cir. 2007). We need not settle that

question, however, because even assuming arguendo that such damages would

otherwise be available, the defendants in this case are entitled to qualified

immunity. “The doctrine of qualified immunity protects government officials from

liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would

have known." Pearson v. Callahan, 129 S. Ct. 808, 815 (2009) (internal quotation

marks omitted). The right must have been clearly established at the time of


                                           4
defendant’s alleged misconduct, id. at 816, so that a reasonable official would have

understood that what he was doing under the circumstances of the case violated

that right, Wilson v. Layne, 526 U.S. 603, 615 (1999). Qualified immunity protects

“all but the plainly incompetent or those who knowingly violate the law.” Malley

v. Briggs, 475 U.S. 335, 341 (1986).

      The conduct at issue here took place in 2003-2004. RLUIPA was enacted in

2000. Pub. L. No. 106-274, 114 Stat. 803. In pertinent part, it provides that

             [n]o government shall impose a substantial burden on the religious
             exercise of a person residing in or confined to an institution . . .
             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). Major cases interpreting RLUIPA were not

decided until after the defendants proposed Shilling’s transfer to another

correctional facility that could more easily accommodate his request for a religious

diet than HDSP. See, e.g., Warsoldier v. Woodford, 418 F.3d 989 (9th Cir. 2005);

Greene v. Solano County Jail, 513 F.3d 982 (9th Cir. 2008); Shakur v. Schriro, 514

F.3d 878 (9th Cir. 2008). It was thus not clear in 2003-2004 that Shilling was

entitled to relief under RLUIPA. Accordingly, the district court correctly applied

qualified immunity to defendants on that account.


                                          5
      The Eleventh Amendment does not bar § 1983 claims against officials in

their personal capacities. Pena v. Gardner, 976 F.2d 469, 472 (9th Cir. 1992).

However, in this case, qualified immunity was correctly applied to Shilling’s

§ 1983 claims because defendants could not reasonably have known that

transferring Shilling from one correctional facility to another to accommodate his

request for a kosher diet violated a clearly established First Amendment right. See,

e.g., Wilkinson v. Austin, 545 U.S. 209, 221-22 (2005) (holding that in most cases

“the Constitution itself does not give rise to a liberty interest in avoiding transfer to

more adverse conditions of confinement” because “[c]onfinement in any of the

State’s institutions is within the normal limits or range of custody which the

conviction has authorized the State to impose”).

      Because we hold that all defendants were entitled to summary judgment on

all of Shilling’s claims, we need not reach Shilling’s arguments regarding specific

defendants.

      AFFIRMED.




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