                                                                            FILED
                           NOT FOR PUBLICATION                               JUN 17 2010

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




                            FOR THE NINTH CIRCUIT



DENNIS GRIMES,                                   No. 09-55578

             Plaintiff - Appellee,               D.C. No. 3:06-cv-02309-BTM-
                                                 LSP
  v.

JAMES E. TILTON,                                 MEMORANDUM *

             Defendant,

 and

A. FAVILA; et al.,

             Defendants - Appellants.



                   Appeal from the United States District Court
                       for the Southern District of California
                   Barry T. Moskowitz, District Judge, Presiding

                             Submitted May 25, 2010 **




        *
             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).
Before:      CANBY, THOMAS, and W. FLETCHER, Circuit Judges.

      Defendant prison officials appeal from the district court’s order denying

them qualified immunity in California state prisoner Dennis Grimes’s 42 U.S.C.

§ 1983 action. We have jurisdiction over an interlocutory appeal from the denial

of qualified immunity. Clement v. Gomez, 298 F.3d 898, 901 (9th Cir. 2002). We

review de novo, Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir. 2002), and we

affirm in part, vacate in part, and remand.

      The district court properly concluded that defendants were not entitled to

qualified immunity on Grimes’s claim under the Religious Land Use and

Institutionalized Persons Act (“RLUIPA”) because Grimes’s rights under RLUIPA

were clearly established in late 2005 and 2006 when defendants denied his requests

for a vegetarian diet based on 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); see also Warsoldier v. Woodford,

418 F.3d 989, 995, 1000 (9th Cir. 2005) (RLUIPA is to be construed broadly in

favor of protecting an inmate’s right to exercise his religious beliefs and “[w]here a

prisoner challenges the [prison’s] justifications, prison officials must set forth

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




                                              2                                      09-55578
failings in the alternatives advanced by the prisoner.”) (citation and internal

quotation marks omitted).

       Defendants correctly contend that the district court erred by refusing to

consider their arguments pertaining to qualified immunity on Grimes’s First

Amendment claim. However, we decline to consider their arguments in the first

instance, and vacate and remand to the district court for consideration of this issue.

See Richardson v. Runnels, 594 F.3d 666, 672 (9th Cir. 2010) (declining to reach

qualified immunity because the issue had never been addressed by the district

court).

       Defendants’ remaining contentions are unpersuasive.

       We have considered Defendants’ April 16, 2010 letter, and decline to

reverse and remand in light of Holley v. California Dep’t of Corrs., 599 F.3d 1108

(9th Cir. 2010), because the district court in its September 5, 2007 order, already

dismissed Grimes’s RLUIPA claims for monetary damages against Defendants in

their official capacities.

       Defendants shall bear all costs on appeal.

       AFFIRMED in part, VACATED in part, and REMANDED.




                                           3                                      09-55578
