                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            DEC 11 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ANTHONY THOMAS CHERNETSKY,                       No. 15-15146

              Plaintiff-Appellant,               D.C. No.
                                                 3:06-cv-00252-RCJ-WGC
 v.

STATE OF NEVADA; GLENN                           MEMORANDUM*
WHORTON; JACK PALMER; CHERI
SCOTT; LENARD VARE; ROBERT
LEGRAND, Warden; DOROTHY NASH
HOLMES; JANE FORAKER-
THOMPSON; DONALD HELLING,

              Defendants-Appellees.


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

                    Argued and Submitted September 19, 2017
                            San Francisco, California

Before: GOULD, CLIFTON, and WATFORD, Circuit Judges.

      Anthony Thomas Chernetsky challenged several alleged restrictions on his

religious exercise pursuant to Religious Land Use and Institutionalized Persons


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Act (RLUIPA). The district court granted Chernetsky summary judgment on his

main claim: a claim for access to prison sweat lodges. It granted summary

judgment to defendants on all other claims. Defendants appealed the sweat lodge

ruling and Chernetsky appealed the ruling on his other claims. We affirm in part,

vacate in part, and remand.

      After the filing of this appeal, the Nevada Department of Corrections

Religious Practice Manual (AR 810) was amended. The revisions to the manual

affect some of the issues in this appeal.

      The manual now allows “earth-based religious adherents [for whom sweat

lodge use] constitutes ‘religious exercise’” to use a sweat lodge. We thus

previously granted the State’s motion to voluntarily dismiss its appeal. The only

issues that remain arise from Chernetsky’s cross-appeal.

      The district court granted defendants’ motion for summary judgment against

Chernetsky’s claim regarding anointing oils. The AR 810 changes also implicate

his access to oils. The manual now lists “[n]on-flammable, non-toxic anointing

oil” as an allowed “item[] of Group Religious Property” for “all Faith Groups.”

That appears to provide Chernetsky with the relief he sought. We vacate the

summary judgment on the issue of natural anointing oils and remand so that the




                                            2
district court may determine whether there is still a dispute and, if so, to adjudicate

it based on the current provisions.

      Chernetsky appeals the district court’s grant of summary judgment against

him on his claim regarding his request for unpaid time off. Chernetsky failed to

demonstrate that he asked for and was denied time off. On appeal, Chernetsky

argues that the state denied other prisoners’ requests for time off, but that does not

establish that he was injured or was deprived of the ability to practice his religion.

Thus, we affirm the summary judgment in favor of defendants on the work

proscription days claim.

      Chernetsky appeals the district court order denying his motion for leave to

amend his complaint. The proposed amended complaint attempted to revive

Chernetsky’s constitutional claims. These claims had not been part of the case

since 2007. A denial of a motion for leave to amend is reviewed for abuse of

discretion. AmerisourceBergen Corp. v. Dialysist W., Inc., 465 F.3d 946, 949 (9th

Cir. 2006). It was not “illogical, implausible, or without support in inferences that

may be drawn from the record” for the district court to conclude that adding a

variety of constitutional claims to a case that had been pending for seven years

would cause delay and prejudice defendants. See United States v. Hinkson, 585




                                           3
F.3d 1247, 1262 (9th Cir. 2009). We affirm the district court’s denial of

Chernetsky’s motion for leave to amend his complaint.

      Chernetsky appeals the summary judgment on his claim regarding a

prohibition on the use of open fires during ceremonies on the ground that the claim

had become moot. He agrees that the ban was no longer in effect at the time the

district court ruled against him, but he appeals based on a concern that he will be

precluded from presenting his challenge in the future if the ban on fires is

reinstated. For collateral estoppel to apply, “the issue must be identical” to an

issue that was critical to a prior judgment. Beauchamp v. Anaheim Union High

Sch. Dist., 816 F.3d 1216, 1225 (9th Cir. 2016). Accordingly, the result in this

case will not prevent Chernetsky from challenging some future prohibition on the

use of open fires. If the current policy is modified to limit the use of open fires, the

issue would not be identical to the issue decided by the district court. As such, we

do not exercise the equitable remedy of vacatur, which has as its purpose the

avoidance of “an unfair application of collateral estoppel.” In re Burrell, 415 F.3d

994, 1000 (9th Cir. 2005).

      The district court granted summary judgment against Chernetsky on his

claim regarding books. On appeal, Chernetsky argues that the regulations were

revised before summary judgment, mooting his claim regarding books. However,


                                           4
he does not provide an explanation of how the regulations were revised so as to

moot his claim or why summary judgment was erroneous. We affirm the summary

judgment regarding books.

      The district court granted summary judgment against Chernetsky on his

claims regarding individual possession of herbs and incenses. Chernetsky argues

that this claim was moot at the time the district court ruled on it. Chernetsky has

not cited any change in regulation that establishes his claims were moot when

decided by the district court. We affirm the summary judgment regarding

individual possession of herbs and incenses claims.

      Each party to bear its own costs.

      AFFIRMED IN PART, VACATED IN PART; REMANDED.




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