                                                                            FILED
                            NOT FOR PUBLICATION                              SEP 04 2015

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



                             FOR THE NINTH CIRCUIT


TERRELL D. CURRY,                                No. 13-15314

               Plaintiff - Appellant,            D.C. No. 3:09-cv-03408-EMC

 v.
                                                 MEMORANDUM*
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION; et al.,

               Defendants - Appellees.


                    Appeal from the United States District Court
                      for the Northern District of California
                    Edward M. Chen, District Judge, Presiding

                            Submitted August 25, 2015**

Before:        McKEOWN, CLIFTON, and HURWITZ, Circuit Judges.

      California state prisoner Terrell D. Curry appeals pro se from the district

court’s summary judgment in his action under 42 U.S.C. § 1983 and the Religious

Land Use and Institutionalized Persons Act (“RLUIPA”) alleging that defendants’

          *
             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).
refusal to provide him with a Kemenic religious food diet violated the free exercise

clause of the First Amendment and RLUIPA. We have jurisdiction under 28

U.S.C. § 1291. We review de novo, Shakur v. Schriro, 514 F.3d 878, 883 (9th Cir.

2008), and we affirm.

      The district court properly granted summary judgment on Curry’s RLUIPA

claim because defendants met their burden to show that their refusal to provide

Curry with a Kemenic food diet, as conceived of and described by Curry, of mostly

raw, vegan, non-genetically modified and non-irradiated food was the least

restrictive means of furthering the prison’s compelling interests in prison security

and cost-efficient food service. See 42 U.S.C. § 2000cc–1(a)(1)-(2) (stating that

under RLUIPA, “[n]o government shall impose a substantial burden on the

religious exercise” of a prisoner unless the government establishes that the burden

furthers “a compelling governmental interest” and does so by “the least restrictive

means”); Shakur, 514 F.3d at 890 (explaining that a prison cannot meet its burden

unless it “demonstrates that it has actually considered and rejected the efficacy of

less restrictive measures before adopting the challenged practice” (citation and

internal quotation marks omitted)); see also Coleman v. Quaker Oats Co., 232 F.3d

1271, 1291-92 (9th Cir. 2000) (district court did not err in refusing to entertain new

theory of liability raised for first time at summary judgment stage).


                                           2                                    13-15314
      The district court properly granted summary judgment on Curry’s free

exercise claim because Curry failed to raise a genuine dispute of material fact as to

whether defendants’ refusal to provide him with a Kemenic food diet, as conceived

of and described by Curry, was not reasonably related to legitimate penological

interests. See Turner v. Safley, 482 U.S. 78, 89 (1987) (holding that a prison

regulation that “impinges on inmates’ constitutional rights” is valid “if it is

reasonably related to legitimate penological interests”).

      We do not consider issues or arguments not specifically and distinctly raised

and argued in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th

Cir. 2009) (per curiam).

      AFFIRMED.




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