                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


LANCE CONWAY WOOD,                       No. 12-35336
             Plaintiff-Appellant,
                                           D.C. No.
                 v.                     1:07-cv-00350-
                                             EJL
KEITH YORDY, Ex-Deputy Warden
at Idaho State Correctional
Institution (ISCI); STEVE NELSON,          OPINION
Ex-Deputy Warden at ISCI; JAY
CHRISTENSEN, Deputy Warden at
ISCI; ERIC MACEACHERN, Deputy
Warden at Idaho Correctional
Institution of Orofino (ICIO); TODD
MARTIN, Deputy Warden of ICIO;
BILL FINELY, Sergeant of ISCI;
SANDRA MARTIN, Ex-Correctional
Officer CIO of ICIO; LAWANDA
THOMASON, Ex-Lieutenant at ICIO;
MIKE LUDLOW, C/O at ISCI; LESLIE
PETERSEN, Coordinator at ISCI,
                Defendants-Appellees.


      Appeal from the United States District Court
                for the District of Idaho
       Edward J. Lodge, District Judge, Presiding

                Argued and Submitted
   October 1, 2013—University of Idaho Law School
2                        WOOD V. YORDY

                        Filed June 3, 2014

       Before: Mary M. Schroeder, Sidney R. Thomas,
            and N. Randy Smith, Circuit Judges.

                  Opinion by Judge Schroeder


                           SUMMARY*


                      Prisoner Civil Rights

    The panel affirmed the district court’s grant of summary
judgment in favor of prison officials in an action brought by
an Idaho state prisoner under the Religious Land Use and
Institutionalized Persons Act.

    The panel held that plaintiff could not seek damages
under the Religious Land Use and Institutionalized Persons
Act against prison officials in their individual capacities. The
panel held that the Act does not authorize suits against a
person in anything other than an official or governmental
capacity because it was enacted pursuant to Congress’s
constitutional powers under the Spending Clause, and the
individual defendants were not recipients of any federal
funds.

    The panel also affirmed the district court’s dismissal of
plaintiff’s claims alleging he was retaliated against in
violation of his First Amendment rights. The panel

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                      WOOD V. YORDY                           3

determined that there was insufficient evidence to create a
material issue of fact as to a retaliatory motive.


                         COUNSEL

Warren Postman (argued) and Shay Dvoretzky, Jones Day,
Washington, D.C., for Plaintiff-Appellant.

Michael J. Elia (argued) and Brady J. Hall, Moore & Elia,
LLP, Boise, Idaho, for Defendants-Appellants.


                          OPINION

SCHROEDER, Senior Circuit Judge:

    Plaintiff Lance Wood is an Idaho state prisoner with an
apparent penchant for romantic (but, as all parties stress, not
sexual) relationships with prison guards. When prison
authorities found that he was utilizing chapel facilities for
such purposes, they curtailed his opportunities for chapel
access. He filed this action against individual prison officials
under the Religious Land Use and Institutionalized Persons
Act (“RLUIPA”), claiming they had imposed an unwarranted
burden on his exercise of religion. The issue of first
impression in this circuit is whether he may seek damages
against prison officials in their individual capacities. We
agree with the unanimous conclusion of all of the other
circuits that have addressed the issue that such a claim may
not be maintained. This is principally because RLUIPA was
enacted pursuant to Congress’s constitutional powers under
the Spending Clause, and the individual defendants are not
4                     WOOD V. YORDY

recipients of any federal funds. See, e.g., Stewart v. Beach,
701 F.3d 1322, 1335 (10th Cir. 2012).

    Wood also claims a violation of his First Amendment
rights, alleging the defendants acted in retaliation for an
earlier suit, in which he prevailed on appeal in a 42 U.S.C.
§ 1983 due process claim arising out of one of his prison
guard relationships. Wood v. Beauclair, 692 F.3d 1041 (9th
Cir. 2012). There is, however, insufficient evidence to create
a material issue of fact as to a retaliatory motive.

   We therefore affirm the district court’s grant of summary
judgment in favor of the defendants.

                      BACKGROUND

     Wood is currently serving a life sentence in Idaho prisons.
The relationship that led to Wood v. Beauclair began in 2003
in the Idaho Correctional Institute-Orofino (“ICIO”). He was
later transferred to the Idaho State Correctional Institution
(“ISCI”) where he is currently housed.

    Wood, who characterizes himself as a very religious
person, began soon after his transfer to engage in many
activities in the prison chapel. These included working as a
janitor, attending services, and volunteering in various
capacities. In the course of investigating the relationship with
Correction Officer Taylor-Martin underlying the Wood v.
Beauclair litigation, the Deputy Warden of ISCI, Keith
Yordy, discovered that Wood may also have been involved in
an improper relationship with an ISCI officer, Cheryl Davis,
and that Wood was using the prison chaplain, Les Petersen,
as a go-between to communicate with Davis. According to
                      WOOD V. YORDY                         5

Yordy, in 2006 he limited Wood’s chapel access in order to
curtail his contacts with Petersen pending an investigation.

    In early 2007, the Deputy Warden of Operations at ISCI,
defendant Steve Nelson, directed one of the chaplains to
further restrict Wood’s access to the chapel to two hours a
week, to consist of private counseling. According to Nelson,
this action was taken because Wood’s activities had created
tension between chaplains and with other inmates who
complained Wood was monopolizing the chapel.

    In addition to the chapel restrictions, Wood alleges there
was a pattern of harassment conducted by another
correctional officer, Mike Ludlow. As part of this alleged
pattern, Ludlow falsely reported that he had seen Wood stash
contraband prescription medication in a windowsill. The
charge against Wood was later dismissed on appeal.

     Wood filed this action in 2007 under RLUIPA against
defendants Yordy and Nelson claiming damages from them
in their individual capacities, and under § 1983 against
Ludlow, as well as Yordy and Nelson, for First Amendment
retaliation. The district court granted summary judgment on
all of the claims, and Wood appeals.

                       DISCUSSION

    RLUIPA, in relevant part, prohibits any “government”
from burdening the religious exercise of a person residing in
a correctional institution. 42 U.S.C. § 2000cc-1. RLUIPA
was passed in the wake of the Supreme Court’s decision in
City of Boerne v. Flores, 521 U.S. 507 (1997), limiting
congressional power under the Fourteenth Amendment to
restrict governmental interference with the exercise of
6                                WOOD V. YORDY

religion. RLUIPA was then enacted pursuant to Congress’s
spending and commerce powers. Sossamon v. Texas, 131 S.
Ct. 1651, 1656 (2011). RLUIPA affects only prisons and
land use.

    With respect to prisons, RLUIPA’s reach is limited to
prohibiting a “government” from burdening religious exercise
in correctional institutions. 42 U.S.C. § 2000cc-1. The Act
goes on to define “government” as any governmental entity
created under the authority of the State, and “any other person
acting under the color of State law.” § 2000cc-5(4). The Act
authorizes private citizens to assert a violation as a claim or
defense in a judicial proceeding and to “obtain appropriate
relief against a government.” § 2000cc-2(a).1



    1
        The statute reads in relevant part:

              (a) General rule

              No government shall impose a substantial burden on
              the religious exercise of a person residing in or
              confined to an institution, as defined in section 1997 of
              this title, even if the burden results from a rule of
              general applicability, 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.

              (b) Scope of application

              This section applies in any case in which–
                         WOOD V. YORDY                             7

    In Sossamon v. Texas, the Supreme Court considered the
phrase “appropriate relief.” Sossamon concerned an action
for damages against state officers in their official capacity.
131 S. Ct. at 1656. The Court held the statutory language
was not sufficiently specific to abrogate state sovereign
immunity with respect to money damages. Id. at 1660.
Wood correctly points out that his suit against state officers
as individuals would not implicate sovereign immunity.
Immunity, however, is not the issue before us. The question
before us, and that has been decided adversely to plaintiffs by


             (1) the substantial burden is imposed in a program
             or activity that receives Federal financial
             assistance; or

             (2) the substantial burden affects, or removal of
             that substantial burden would affect, commerce
             with foreign nations, among the several States, or
             with Indian tribes.

42 U.S.C. § 2000cc-1. The cause of action provision states:

        [a] person may assert a violation of this chapter as a
        claim or defense in a judicial proceeding and obtain
        appropriate relief against a government.

Id. § 2000cc-2(a). “Government” is then defined as

        (i) a State, county, municipality, or other governmental
        entity created under the authority of a State;

        (ii) any branch, department, agency, instrumentality, or
        official of an entity listed in clause (i); and

        (iii) any other person acting under color of State law
        ....

Id. § 2000cc-5(4)(A).
8                      WOOD V. YORDY

all of the other circuit courts to consider a suit like this one,
is whether allowing such an action against individuals who do
not receive any federal money would reach beyond the scope
of Congress’s constitutional authority. All of the circuits
have refused to allow such an action to go forward. The
principal underlying reason is the limitations of Congress’s
power under the Spending Clause.

    In the leading Spending Clause decision, Pennhurst State
School & Hospital v. Halderman, the Supreme Court
recognized that, pursuant to its spending powers, Congress
may place conditions on the disbursement of federal funds.
451 U.S. 1, 17 (1981). The Court explained that such
legislation functions like a contract. In return for funds,
states agree to adhere to any attached conditions. Id. These
conditions, however, must be clearly stated. Otherwise, states
cannot be said to have knowingly accepted them. Id.

    In reliance on Pennhurst, the Seventh Circuit in Nelson v.
Miller, 570 F.3d 868 (7th Cir. 2009), held that legislation
enacted pursuant to the Spending Clause cannot subject state
officers to individual suits, because the individual officers are
not the recipients of any federal funds. The individuals thus
cannot be bound by contractual conditions which would
attach to receipt of the funds. Id. at 888–89. The Third and
Tenth Circuits are now in accord. Sharp v. Johnson, 669 F.3d
144 (3d Cir. 2012); Stewart v. Beach, 701 F.3d 1322 (10th
Cir. 2012). The Fourth Circuit had earlier rejected such suits
on the related ground that the statute itself does not give
sufficient notice that the receipt of funds for prisons would be
conditioned on the “creation of an individual capacity
damages action.” See Rendelman v. Rouse, 569 F.3d 182,
188 (4th Cir. 2009).
                       WOOD V. YORDY                             9

    Wood, while acknowledging the force of these holdings,
contends they are undermined by the Supreme Court’s
decision in Sabri v. United States, 541 U.S. 600 (2004).
Sabri was a prosecution under the federal bribery statute,
enacted pursuant to the Spending Clause, to criminalize
bribes to recipients of federal funds. Id. at 602. In Sabri, the
question was whether the bribe had to directly affect the
expenditure of federal funds, and the Supreme Court
answered in the negative. It held that because funds are
fungible, if the entity receiving the federal funds was the
object of the bribe, the statute was violated. Id. at 606.

    Focusing on the fact that the criminal defendant in Sabri
was not the recipient of federal funds, Wood attempts to
argue that the Supreme Court opinion means defendants in a
civil damage action under RLUIPA need not be recipients of
federal funds. This is not a sensible conclusion. The point in
Sabri was to protect the financial integrity of the
governmental entity that did receive the federal funds. Thus
paying a bribe to that entity violated the statute, even if the
bribe did not directly affect the federal funds. In this case,
Wood’s suit against the defendants in their individual
capacities seeks to hold them liable for their personal
conduct. See Kentucky v. Graham, 473 U.S. 159, 165–66
(1985). By definition, in suing these defendants in their
individual capacities, Wood is not targeting assets of the
entities that receive federal funds, i.e., the prison or the State.
Wood’s argument, while novel, does not further the purpose
of the statute. It also lacks support in any of the circuit
decisions that have been decided before or after Sabri.

   Wood additionally argues that our circuit’s decision in
Centro Familiar Cristiano Buenas Neuvas v. City of Yuma,
651 F.3d 1163 (9th Cir. 2011), supports a holding that he may
10                    WOOD V. YORDY

maintain a cause of action against the individual defendants.
This argument is even more of a stretch than the Sabri
argument, because in Yuma we held only that the City of
Yuma, as a municipality, did not share the sovereign
immunity of the State. Id. at 1168–69. Wood’s theory is that
since our court in Yuma did not expressly say the City’s
liability depended on its receipt of federal funds, the case
stands for the proposition that any entity lacking immunity
may be held liable under RLUIPA, regardless of whether it
receives federal funds. This flies in the face of the history of
the statute, the principles underlying the Supreme Court’s
decision in Pennhurst regarding the Spending Clause, and
even the underlying facts in Yuma. Yuma concerned whether
the city had violated a different section of RLUIPA, the
“equal terms” provision of 42 U.S.C. § 2000cc(b)(1). Id. at
1169. That provision is on its face not limited to entities that
receive federal financial assistance. § 2000cc(b)(1). The
issues before this court, however, did not concern whether the
City had to be a recipient of federal funds to be liable under
RLUIPA. The issue concerned immunity and the merits of
the violation. Moreover, as the district court in Yuma
recognized, federal funds were involved since the entire case
was about the City’s establishment of the federally funded
Yuma Crossing National Heritage Area, (“YCNHA”).
Centro Familiar Cristiano Buenas Nuevas v. City of Yuma,
615 F. Supp. 2d 980, 983 (D. Ariz. 2009); YUMA CROSSING
NATIONAL HERITAGE AREA ACT OF 2000, Pub. L. No. 106-
319, October 19, 2000, 114 Stat 1280 (authorizing the
YCNHA to grant funds to state municipalities). Yuma does
not support allowing a prisoner to pursue a RLUIPA claim
against individuals who do not receive federal funds.

  Finally, there is nothing in the language or structure of
RLUIPA to suggest that Congress contemplated liability of
                       WOOD V. YORDY                           11

government employees in an individual capacity. The statute
is aimed at burdens on religious exercise by a “government.”
The statute defines the term “government” to mean “(i) a
State, county, municipality, or other governmental entity
created under the authority of a State; (ii) any branch,
department, agency, instrumentality, or official of an entity
listed in clause (i); and (iii) any other person acting under
color of State law . . . .” 42 U.S.C. § 2000cc-5(4)(A).

    Individuals acting under color of state law are thus
brought within the purview of the Act only as a part of the
definition of “government.” If an individual acts under color
of state law to burden a plaintiff’s rights to religious exercise,
the plaintiff can sue the government. The statute does not
authorize suits against a person in anything other than an
official or governmental capacity, for it is only in that
capacity that the funds are received. That is the only reading
of the statute that is consistent with the decisions of our sister
circuits and the constitutional limitations on the Spending
Clause that the Supreme Court has recognized. The district
court properly granted summary judgment in favor of the
defendants under RLUIPA.

     The remaining claim to be discussed is the First
Amendment retaliation claim. Here, Wood points to isolated
fragments of statements by prison officials, as overheard by
other inmates, expressing dislike for Wood. In addition, he
claims he read a memo in 2007 by defendant Nelson, the ISCI
Deputy Warden, to the ISCI chaplain that “we cannot make
it appear that an inmate can win.” Wood contends that these
statements suggest a link between restrictions on his ISCI
chapel usage and the earlier Beauclair lawsuit, involving
incidents that occurred in ICIO, Wood’s former prison.
12                    WOOD V. YORDY

    The statements, however, contain no indication that they
were made in reference to the prior lawsuit, as opposed to
Wood’s contemporaneous conduct in ISCI. We have
repeatedly held that mere speculation that defendants acted
out of retaliation is not sufficient. See Cafasso, U.S. ex rel.
v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1061 (9th Cir.
2011); see also McCollum v. Cal. Dep’t of Corr. & Rehab.,
647 F.3d 870, 882 (9th Cir. 2011) (specific evidence of
retaliation required). There is nothing in the record to
indicate Nelson even knew about the earlier suit. There is
similarly no evidence to show that Ludlow knew about the
earlier suit or other evidence suggesting that the claimed
harassment by Ludlow was in retaliation for the earlier suit.
The district court correctly granted summary judgment
against Wood on the retaliation claim.

    The district court also dismissed Wood’s claims against
two other prison officials, Thomason and MacEachern,
finding that he failed to exhaust his administrative remedies
as required by the Prison Litigation and Reform Act.
42 U.S.C. § 1997e(a). To the extent that Wood is seeking to
resurrect claims other than First Amendment Retaliation
against these defendants, we affirm the district court’s
dismissal. While Wood contends that prison officials
prevented him from completing the grievance process, the
district court found that he had failed to follow through with
his complaints. Nothing in the record indicates that this
conclusion was clearly erroneous. Morton v. Hall, 599 F.3d
942, 945 (9th Cir. 2010) (“In reviewing a dismissal for failure
to exhaust administrative remedies, we review the district
court’s legal conclusions de novo and factual findings for
clear error.”).

     AFFIRMED.
