                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 EDWARD TERRAN FURNACE ,                            No. 10-15961
              Plaintiff-Appellant,
                                                      D.C. No.
                      v.                           3:07-cv-04441-
                                                       MMC
 PAUL SULLIVAN , CO; D. MORALES,
 CO; J. SOTO , CO, sued in their official
 and individual capacities,                           OPINION
                Defendants-Appellees.


       Appeal from the United States District Court
          for the Northern District of California
    Maxine M. Chesney, Senior District Judge, Presiding

                  Argued and Submitted
        November 6, 2012—San Francisco, California

                      Filed January 17, 2013

         Before: Robert D. Sack,* Ronald M. Gould,
          and Milan D. Smith, Jr., Circuit Judges.

             Opinion by Judge Milan D. Smith, Jr.




 *
   The Honorable Robert D. Sack, Senior Circuit Judge for the U.S. Court
of Appeals for the Second Circuit, sitting by designation.
2                     FURNACE V . SULLIVAN

                           SUMMARY**


                      Prisoner Civil Rights

    The panel reversed in part and affirmed in part the district
court’s summary judgment in a 42 U.S.C. § 1983 action
brought by a prison inmate who alleged that prison officials
violated his Eighth Amendment rights by spraying him with
an excessive quantity of pepper spray, and violated his
Fourteenth Amendment rights when they denied him a
vegetarian breakfast.

    The panel reversed the district court’s summary judgment
in favor of prison officials on plaintiff’s Eighth Amendment
claim, determining that the district court failed to draw all
inferences in plaintiff’s favor when resolving the issue of
qualified immunity. The panel concluded that given the facts,
as alleged by plaintiff, a significant amount of force was
employed without significant provocation from plaintiff or
warning from the officers. The panel remanded on this issue.

    The panel affirmed the district court’s grant of summary
judgment in favor of prison officials with respect to plaintiff’s
Equal Protection challenge. The panel held that the district
court properly concluded that plaintiff failed to raise a triable
issue of fact with respect to whether the officers intentionally
refused to provide him with a religious breakfast tray while
providing the same to other inmates who were similarly
situated.


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

                         COUNSEL

Victoria L. Weatherford (argued) and Daniel H. Bookin,
O’Melveny & Myers LLP, San Francisco, California, for
Plaintiff-Appellant.

Jose Zelidon-Zepeda (argued), Deputy Attorney General,
State of California, for Defendants-Appellees.


                         OPINION

M. SMITH, Circuit Judge:

    Plaintiff-Appellant Edward Terran Furnace appeals from
the district court’s grant of summary judgment in Defendants-
Appellees’ favor. Furnace alleges that the Defendants-
Appellees, who are correctional officers at the prison where
Furnace was incarcerated at the time of the alleged
occurrence, violated his Eighth Amendment rights by
spraying him with an excessive quantity of pepper spray.
Furnace also alleges that his Fourteenth Amendment rights
were disregarded when the officers denied him a vegetarian
breakfast.

    We reverse and remand on Furnace’s Eighth Amendment
claim, because the district court failed to draw all inferences
in Furnace’s favor when resolving the issue of qualified
immunity in a summary judgment, but we affirm the district
court’s grant of summary judgment with respect to Furnace’s
Equal Protection challenge.
4                      FURNACE V . SULLIVAN

        FACTS AND PROCEDURAL BACKGROUND

    During the time period relevant to this case, Furnace was
an inmate at Salinas Valley State Prison (SVSP). He
practices the Shetaut Neter religion, which requires its
advanced practitioners to be vegetarians. As a result, Furnace
was entitled to receive vegetarian meals, and he had received
them without incident at SVSP for over a year.

    Meals in Furnace’s cell block were delivered through a
food/handcuff port (food port), a rectangular slot in each jail
cell door covered by a metal flap that can be opened from the
outside by removing a padlock. The food port is about twelve
inches wide and six inches tall.1

    Operation Procedure 29 (OP 29) describes SVSP’s
policies regarding inmates and the food port, as follows:

         Inmates who take control of food/cuff ports
         create a serious immediate safety concern for
         staff and other inmates and mandates
         suspension of the programming of the other
         inmates housed in the unit. . . . It is imperative
         that the food/cuff port be secured in short
         order to enable inmates to continue to receive
         services.




    1
    The district court’s order granting summary judgment, which cites
Furnace’s estimate of the food port’s size, describes the food port as being
eighteen inches wide and seven or eight inches high. Record photographs
of the food port, however, confirm our description of the food port’s
dimensions.
                   FURNACE V . SULLIVAN                      5

OP 29 also prescribes how officers are to react when inmates
interfere with a food port:

       If during routine duties, correctional officers
       encounter an inmate who refuses to allow
       staff to close and lock his food/cuff port, the
       officers will verbally order the inmate to
       relinquish control of the food port and allow
       staff to secure it. The officer shall issue a
       warning that chemical agents will be used if
       he does not comply.

       If the inmate refuses to relinquish control of
       the food port, despite the warning, the officer
       is authorized to administer chemical agents
       against the inmate to secure the food port.

OP 29 also directs that if chemical agents are employed
against an inmate, health care staff at SVSP are to allow the
prisoner to decontaminate.

    Defendants-Appellees, D.R. Morales, P. Sullivan, and J.
Soto (collectively, the officers,) were on duty the morning of
the events giving rise to this litigation, and were responsible
for delivering breakfast to the inmates in Furnace’s cell
block. Neither of the officers was regularly assigned to work
in Furnace’s cell block, nor was either of them familiar with
Furnace. Morales was assigned to distribute breakfast trays
to Furnace and his cell mate on the relevant morning, and he
approached Furnace’s cell carrying a large platter with two or
three meal trays on it.

  Accounts of what happened next diverge dramatically.
We begin with Furnace’s account. Furnace claims he heard
6                       FURNACE V . SULLIVAN

Morales say something derogatory, which he contends was
something to the effect of, “What’s up with all these fuckin’
Muslims over here?”2 As Morales approached Furnace’s cell,
he held the food tray with one hand, and opened the food port
with the other. Correctional staff rely on signs posted on the
doors of prison cells to ascertain whether an inmate has been
approved to receive a vegetarian meal. Morales claims that
he did not see such a sign on Furnace’s cell door. Inmates
also keep a form called a “chrono” that lists their
authorization to receive a vegetarian meal. Furnace concedes
that he did not show the officers his chrono, though he had it
in his cell at the time of the incident.

    When Morales opened the food port on Furnace’s cell,
Furnace requested two vegetarian meals. Morales said, “You
guys ain’t vegetarian,” closed the food port, and stepped out
of view to speak with Soto. Morales then returned to the cell,
opened the food port, and told Furnace that Soto had advised
him that Furnace and his cell mate were not entitled to
vegetarian trays. Morales next told Furnace to either accept
the trays, or he would mark both Furnace and his cell mate
down as having refused them.

    Furnace then attempted to ask Soto to come to the cell
door. He states that he attempted to do so by squatting down
and putting his fingertips on the bottom portion of the open
food port to balance himself, from which position he intended
to call to Soto through the food port. He did not extend his
hand or arm outside the food port. Without warning, Morales
sprayed Furnace with pepper spray. Furnace put his hand up


    2
      The record does not contain details regarding the Shetaut Netur
religion, though Furnace’s brief on appeal states that it is entirely distinct
from Islam.
                   FURNACE V . SULLIVAN                     7

to block the pepper spray, and grabbed the food port in the
process. Sullivan saw that Morales was pepper spraying
Furnace, came over, and also began pepper spraying him.
Morales discharged his can of pepper spray at Furnace until
it was empty. Furnace testified that he was pepper sprayed
for “maybe a minute,” and it was his perception that the
officers unloaded the contents of two canisters of pepper
spray on him.

    Furnace was struck by pepper spray in the lower part of
his face, on his chest, on his stomach, and on his groin area.
The pepper spray caused his skin to blister and burn. He
experienced a burning sensation for three or four days
following the incident. After the incident, he also developed
a rash in his groin area that he believes may have been caused
by the pepper spray.

    The officers’ version of the events differs markedly from
Furnace’s. Morales claims that when he returned from
conferring with Soto about whether Furnace was entitled to
receive a vegetarian meal, Furnace abruptly forced the food
port open and yelled, “fuck you!” Morales claims that he
instructed Furnace to remove his hands from the food port,
and that he told Furnace he had ten seconds to comply with
his direct order. He avers that Furnace again said, “fuck
you,” and exhibited “an aggressive determination not to let go
of the food port.” Morales says that he discharged a one-
second blast of pepper spray at Furnace in order to gain his
compliance, and then ceased spraying because his canister
was empty. Seeing Morales pepper spraying Furnace,
Sullivan ran over to Furnace’s cell, and began discharging
pepper spray on Furnace from his own canister. Sullivan
claims he discharged one blast of pepper spray on Furnace,
8                  FURNACE V . SULLIVAN

and that Furnace eventually withdrew his hands from the food
port after Sullivan sprayed him.

    It is undisputed that after Morales and Sullivan stopped
spraying Furnace, Furnace was allowed to decontaminate in
his cell. He did not receive a vegetarian breakfast that
morning.

    Furnace brought several claims against the officers, two
of which are at issue on appeal. First, he claimed that
Morales and Sullivan used excessive force in the way they
used the pepper spray against him, in violation of the Eighth
Amendment. Second, he claimed that the officers violated
his equal protection rights by not providing him with a
vegetarian breakfast, even though they provided vegetarian
meals to other similarly situated inmates.

    The officers moved for summary judgment on both
claims, which the district court granted. Furnace appeals that
order, claiming that the district court improperly resolved
disputed issues of material fact in the officers’ favor.

                STANDARD OF REVIEW

    We review the district court’s grant of summary judgment
and its qualified immunity determinations de novo. See
Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir.
2011). “Summary judgment is appropriate only if, taking the
evidence and all reasonable inferences drawn therefrom in the
light most favorable to the non-moving party, there are no
genuine issues of material fact and the moving party is
entitled to judgment as a matter of law.” Id. If, as to any
given material fact, evidence produced by the moving party
(the officers, in this case) conflicts with evidence produced by
                      FURNACE V . SULLIVAN                            9

the nonmoving party (Furnace, in this case), we must assume
the truth of the evidence set forth by the nonmoving party
with respect to that material fact. See Leslie v. Grupo ICA,
198 F.3d 1152, 1157–58 (9th Cir. 1999). With respect to
qualified immunity determinations on summary judgment, we
assess whether the contours of Furnace’s Eighth Amendment
right were clearly established with respect to the alleged
misconduct. Saucier v. Katz, 533 U.S. 194, 201–02 (2001).3
If the right was clearly established, we then ask: “Taken in
the light most favorable to the party asserting the injury, do
the facts alleged show the officer’s conduct violated a
constitutional right?” Id.

                          DISCUSSION

                        A. Disputed Facts

    The district court correctly determined that there were
triable issues of material fact concerning whether Morales
warned Furnace to remove his hands from the food port
before pepper spraying him, and whether Furnace posed such
a threat that Morales and Sullivan were justified in employing
pepper spray against him.

    The court also concluded, however, that Furnace did not
raise a triable issue of material fact with respect to the amount
of pepper spray that Morales and Sullivan used on Furnace,
even though the quantity of pepper spray discharged by the
officers is unquestionably material, because the amount of
force used is central to a claim sounding in the alleged use of


 3
    The Supreme Court has held that courts have discretion to determine
the sequence of this inquiry. See Pearson v. Callahan, 555 U.S. 223, 236
(2009).
10                 FURNACE V . SULLIVAN

excessive force. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986) (“Only disputes over facts that
might affect the outcome of the suit under the governing law
will properly preclude the entry of summary judgment.”).

    Furnace alleged that both Morales and Sullivan
discharged their canisters of pepper spray on him until each
canister was empty. The court concluded that Furnace had
not presented any evidence to support this claim. Instead, the
court credited the officers’ statements that Morales
discharged a one-second burst of pepper spray at Furnace and
then stopped because his canister lacked pressure, and that
Sullivan, seeing Morales struggling with his pepper spray
canister, fired one burst of pepper spray at Furnace, but
stopped as soon as Furnace removed his hands from the food
port.

    Furnace may have lacked a foundation to determine
precisely how many canisters of pepper spray, if any, the
officers depleted, but it does not follow that the court should
therefore automatically adopt the officers’ version of how
much pepper spray they used. See Clement v. Gomez,
298 F.3d 898, 902 & n.2 (9th Cir. 2002) (accepting on
summary judgment the nonmovants’ version of events despite
the “considerable confusion” regarding the number, sequence,
and duration of bursts of pepper spray). As the district court
noted, Furnace testified that he was pepper sprayed for
“maybe a minute,” and that he believed that officers Sullivan
and Morales both emptied their entire canisters of pepper
spray on him.

    We are unable to reconcile the officers’ testimony that
they employed two quick blasts of pepper spray at Furnace
with Furnace’s own testimony that he was pepper sprayed for
                   FURNACE V . SULLIVAN                      11

up to a full minute, especially given the extent of Furnace’s
alleged injuries. The discrepancy between these accounts is
too great to be capable of resolution on summary judgment.
Accordingly, as it must do when ruling on a motion for
summary judgment, the district court should have adopted
Furnace’s version of the events—that he was subject to
repeated bursts of pepper spray for about a minute—when
determining whether the officers were entitled to qualified
immunity. Had it done so, as more fully discussed below, its
analysis of whether the officers were entitled to qualified
immunity at the summary judgment stage of the litigation,
would have been affected.

    Additionally, though the district court found that a triable
issue of material fact remained as to whether Furnace posed
a threat, it premised its award of qualified immunity to the
officers on its determination that Morales could have
mistakenly, but reasonably, perceived that Furnace posed a
threat “when [he] held open the food port.” Furnace denies
that he held the food port open; he claims instead that he
rested his fingers on the already-open food port for balance.
This factual characterization is subtle, but is relevant to the
question of whether Morales could have reasonably believed
that Furnace posed a threat to the safety and security of the
institution. Moreover, because the determination was made
on a motion for summary judgment, the determination should
have been made by drawing all inferences in Furnace’s favor.

                  B. Qualified Immunity

   Furnace alleges that the officers violated his Eighth
Amendment right to be free from cruel and unusual
punishment by using excessive force against him when they
pepper sprayed him. For purposes of a qualified immunity
12                  FURNACE V . SULLIVAN

analysis, the officers were clearly on notice of Furnace’s
Eighth Amendment rights in this case. See Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982) (qualified immunity is
appropriate when “conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.”). First and most
generally, the “settled rule [is] that the unnecessary and
wanton infliction of pain . . . constitutes cruel and unusual
punishment forbidden by the Eighth Amendment.” Hudson
v. McMillian, 503 U.S. 1, 5 (1992) (quotations omitted).

    Second,“[p]rison regulations governing the conduct of
correctional officers are also relevant in determining whether
an inmate’s right was clearly established.” Treats v. Morgan,
308 F.3d 868, 875 (8th Cir. 2002) (citing Hope v. Pelzer,
536 U.S. 730, 743–44 (2002)). Prison regulations are drafted
to further institutional safety and other prudential
considerations, rather than being drawn to perfectly trace the
contours of prisoners’ constitutional rights. Accordingly,
they are not wholly descriptive of the extent of those rights.
However, in Hope, for example, the Supreme Court looked to
rules promulgated by the Alabama Department of Corrections
to aid it in determining whether a prison guard was on notice
of constitutional limitations on the use of force. Hope,
536 U.S. at 743–44. Here, OP 29 bears directly on the
situation that the officers confronted, and is therefore relevant
to determining whether the officers could have thought their
conduct was reasonable and lawful.

    Third, although very few of our cases deal with
constitutional limits on the use of pepper spray on confined
inmates, it is clear that “[t]o determine that the law was
clearly established, we need not look to a case with identical
or even ‘materially similar’ facts.” Serrano v. Francis,
                   FURNACE V . SULLIVAN                      13

345 F.3d 1071, 1077 (9th Cir. 2003) (citations omitted). We
have previously found no constitutional violation where
officers discharged less pepper spray than the amount
Furnace alleges was sprayed on him in a case where, unlike
here, prisoners were engaged in potentially life-threatening
violence. See Clement, 298 F.3d at 901–02, 906 (no
constitutional violation when officers applied two bursts of
pepper spray into cell, each lasting five seconds, when one
prisoner had another prisoner in a headlock, was punching
him in the face and slamming his head against the wall, and
threatening to kill him). We have also held “that use of [tear
gas] in small amounts may be a necessary prison technique if
a prisoner refuses after adequate warning to move from a cell
or upon other provocation presenting a reasonable possibility
that slight force will be required.” Spain v. Procunier,
600 F.2d 189, 195 (9th Cir. 1979). We conclude that the
principle articulated in Spain with respect to tear gas also
applies to pepper spray. More broadly, we agree with our
sister circuits that “[i]t is generally recognized that ‘it is a
violation of the Eighth Amendment for prison officials to use
mace, tear gas or other chemical agents in quantities greater
than necessary or for the sole purpose of infliction of pain.’”
Williams v. Benjamin, 77 F.3d 756, 763 (4th Cir. 1996)
(quoting Soto v. Dickey, 744 F.2d 1260, 1270 (7th Cir. 1984),
cert. denied, 470 U.S. 1085 (1985)); see also Iko v. Shreve,
535 F.3d 225, 240 (4th Cir. 2008) (denying qualified
immunity to a prison guard because the right to be free from
excessive use of pepper spray was clearly established).
However, because, as one of our sister circuits noted, “[w]e
do not require of such officials the legal knowledge culled by
the collective hindsight of skilled lawyers and learned
judges,” Johnson v. Caudill, 475 F.3d 645, 650 (4th Cir.
2007) (internal quotation marks omitted), we place little
14                 FURNACE V . SULLIVAN

reliance on this particular premise in our qualified immunity
analysis.

    Our constitutional analysis in this case thus relies
primarily on whether the force used by the officers caused
unnecessary and wanton pain and suffering, as defined in
Hudson, since that law was undoubtedly clear. “The question
whether the measure taken inflicted unnecessary and wanton
pain and suffering ultimately turns on whether force was
applied in a good faith effort to maintain or restore discipline
or maliciously and sadistically for the very purpose of
causing harm.” Hudson, 503 U.S. at 6 (citations omitted).
We have previously identified five factors set forth in Hudson
to be considered in determining how the above question
should be answered; namely, “(1) the extent of injury suffered
by an inmate; (2) the need for application of force; (3) the
relationship between that need and the amount of force used;
(4) the threat reasonably perceived by the responsible
officials; and (5) any efforts made to temper the severity of a
forceful response.” Martinez v. Stanford, 323 F.3d 1178,
1184 (9th Cir. 2003). The application of the Hudson factors
to this case is therefore determinative of whether the force
applied to Furnace was wanton and unnecessary.

    First, we conclude that Furnace’s injuries caused by the
pepper spray were moderate, though relatively enduring for
a chemical agent intended to cause only temporary
discomfort. In addition to the pain of the initial contact,
Furnace suffered from burns, blisters, and skin irritation that
persisted for three or four days. Furnace also suffered from
a rash on his groin that persisted for months, which may have
been caused by the incident, though Furnace does not present
any evidence demonstrating that the rash was caused by the
spray.
                     FURNACE V . SULLIVAN                           15

    Second, we conclude that it is not clear that the
application of force was required under Furnace’s version of
the facts because Morales could have, as SVSP’s OP 29
prescribes, simply ordered Furnace to remove his fingers
from the food port rather than immediately discharging
pepper spray on him. OP 29 directs correctional officers to
“issue a warning that chemical agents will be used” likely
because “the threat of the use of mace, except in a few
instances, brings about compliance and in most instances,
avoids any necessity of physical force.” Soto v. Dickey,
744 F.2d at 1263 (summarizing the testimony of a prison
superintendent and other prison officials). Officers cannot
justify force as necessary for gaining inmate compliance
when inmates have been given no order with which to
comply.4

    Third, we are not persuaded, after resolving all factual
disputes in the light most favorable to Furnace, that the use of
violent force, prior to a verbal warning, was necessary to gain
Furnace’s compliance. The force used—discharging bursts
of pepper spray at Furnace for about a minute, such that one
canister of pepper spray (whatever portion remained) was
depleted and another was allegedly applied at some
length—seems quite extensive and disproportionate relative
to the disturbance posed by Furnace’s fingertips on the food
port. See, e.g., Clement, 298 F.3d at 901–02 (two five-second
bursts of pepper spray applied to prisoners beating each other
and making homicidal threats).

    Fourth, the district court properly found that it remained
a disputed fact whether Furnace posed a threat to the officers,

  4
    Spontaneous use of force can be necessary, though, in response to a
perceived danger or threat, discussed under the fourth factor below.
16                 FURNACE V . SULLIVAN

such that they were justified in discharging pepper spray on
him. In Furnace’s version of the facts, the threat posed by
Furnace placing his fingertips on the edge of the food port
was likely not great, if it was a threat at all. Furnace was
locked in his cell behind a large metal door, and had not, by
his account, made any aggressive or threatening remarks, or
taken any actions against Morales or anyone else. Here,
Furnace’s most menacing act was to question Morales’s
decision not to deliver a vegetarian meal to him, and to try to
communicate with Soto through the food port. See Treats,
308 F.3d at 872–73 (pepper spray is not justified when an
inmate only questions orders or seeks redress for an officer’s
actions). The officers rely on OP 29 and their training for the
proposition that prisoners who “take control” of food ports
pose a “serious immediate safety concern” to other inmates
and to prison staff. As we have already noted though, OP 29
also directs that “[t]he officer shall issue a warning that
chemical agents will be used” if the inmate takes control of
the port; Furnace alleges he was given no warning. The
officers are entitled to qualified immunity for “reasonable,
but mistaken, beliefs as to the facts establishing the existence
of . . . exigent circumstances,” Saucier, 533 U.S. at 206, and
the district court granted qualified immunity on summary
judgment largely on this premise. However, Furnace’s
resting his fingers on the port appears less threatening than
the situation described by OP 29, where an inmate “refuses to
relinquish control of the food port, despite the warning.” We
therefore disagree with the district court’s conclusion that
Furnace’s actions, as he describes them, were reasonably
perceived as an exigency that justified deviation from OP 29
and justified discharging pepper spray at Furnace without
warning.
                   FURNACE V . SULLIVAN                    17

    Fifth and finally, SVSP staff made an effort to temper the
severity of their forceful response by allowing Furnace to
decontaminate, and giving him medical treatment. This
factor favors the officers.

    Applying the Hudson factors to the facts as Furnace
alleges them, we find that a significant amount of force was
employed without significant provocation from Furnace or
warning from the officers. We therefore conclude that
qualified immunity was inappropriately granted at the
summary judgment phase of this litigation. See Martinez,
323 F.3d at 1184 (reversing summary judgment on the issue
of qualified immunity when the district court “resolved all
material disputes in favor of the officers, based on their
declarations alone”). We therefore reverse and remand the
issue of qualified immunity to the district court for further
proceedings.

    We caution that we do not mean to suggest that any and
every deviation from prison policy automatically jeopardizes
a correctional officer’s entitlement to qualified immunity.
We are mindful that exigencies arise, and “[t]he point of
qualified immunity is to allow officials to take action with
independence and without fear of consequences.” Schwenk
v. Hartford, 204 F.3d 1187, 1198 (9th Cir. 2000) (citation and
internal quotation marks omitted). However, barring urgency
or exigent circumstances, that important interest is less
compelling when the appropriate response to a situation has
been prescribed by the prison’s own written policies.

                   C. Equal Protection

    Furnace alleges that his right to equal protection was
violated because he never received a vegetarian breakfast,
18                 FURNACE V . SULLIVAN

while vegetarian breakfasts were provided to other inmates
who were similarly situated. “The Equal Protection Clause
requires the State to treat all similarly situated people
equally.” Shakur v. Schriro, 514 F.3d 878, 891 (9th Cir.
2008) (citation omitted). “To state a claim under 42 U.S.C.
§ 1983 for a violation of the Equal Protection Clause of the
Fourteenth Amendment a plaintiff must show that the
defendants acted with an intent or purpose to discriminate
against the plaintiff based upon membership in a protected
class.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.
1998).

     The first step in determining whether the officers violated
Furnace’s right to equal protection is to identify the relevant
class to which he belonged. See Thornton v. City of St.
Helens, 425 F.3d 1158, 1166 (9th Cir. 2005). “The groups
must be comprised of similarly situated persons so that the
factor motivating the alleged discrimination can be
identified.” Id. at 1167. The district court properly
concluded that the relevant class of persons for comparative
purposes was those inmates who defendants did not know had
been approved to receive vegetarian meals for religious or
other reasons. Because it is undisputed that the officers did
not know that Furnace was entitled to such a meal, Furnace
was not similarly situated to all other inmates who were
approved to receive a vegetarian meal for religious reasons.
See id. (“An equal protection claim will not lie by conflating
all persons not injured into a preferred class receiving better
treatment than the plaintiff.”) (internal quotation marks
omitted). The officers stated in sworn testimony that they
had never met Furnace prior to the incident, and were not
aware of Furnace’s entitlement to a vegetarian meal. It is
also undisputed that Furnace never showed them his chrono.
Furnace offers no evidence to indicate the officers knew, or
                   FURNACE V . SULLIVAN                      19

had reason to know, about Furnace’s religion or his
entitlement to a vegetarian meal. Because Furnace adduces
no evidence that he was treated any differently than any other
inmate whom the officers did not know was entitled to
receive a vegetarian meal, we affirm the district court’s grant
of summary judgment on Furnace’s equal protection claim.

     Furnace also argues that the officers denied him a
vegetarian meal because they mistakenly believed he was
Muslim, citing Morales’s alleged statement about Muslims
before he approached Furnace’s cell. See Estate of Amos ex.
rel. Amos v. City of Page, Ariz., 257 F.3d 1086, 1094 (9th Cir.
2001) (in § 1983 suit under the Equal Protection clause,
“alleged discrimination is no less malevolent because it was
based upon an erroneous assumption”). However, Furnace
cannot overcome his failure to show that he was treated
differently than any other inmates in the relevant class—those
the officers did not know were entitled to vegetarian meals.
We also observe that the undisputed evidence showed that
defendants provided vegetarian meals to all other inmates
who they knew had been approved to receive such meals,
including Muslims, regardless of their religious affiliation.
Because the district court properly concluded that Furnace
“failed to raise a triable issue of fact with respect to whether
[the officers] intentionally refused to provide him with a
religious breakfast tray while providing the same to other
inmates who were similarly situated,” summary judgment
was appropriate on these claims.

                      CONCLUSION

    Because disputed issues of material fact in this case
preclude summary judgment for the officers on the basis of
qualified immunity, we reverse and remand on that issue. For
20                FURNACE V . SULLIVAN

the reasons noted, the district court’s denial of Furnace’s
equal protection claim is affirmed.

  REVERSED AND REMANDED in part and
AFFIRMED in part.
