                                                                           FILED
                              NOT FOR PUBLICATION                           OCT 04 2013

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




                              FOR THE NINTH CIRCUIT



GUSTAVO McKENZIE,                                No. 12-56841

                Plaintiff - Appellant,           D.C. No. 3:10-cv-01490-LAB-
                                                 MDD
  v.

G. ELLIS, Sergeant; et al.,                      MEMORANDUM *

                Defendants - Appellees.



                     Appeal from the United States District Court
                       for the Southern District of California
                      Larry A. Burns, District Judge, Presiding

                            Submitted September 24, 2013 **

Before:         RAWLINSON, N.R. SMITH, and CHRISTEN, Circuit Judges.

       California state prisoner Gustavo McKenzie appeals pro se from the district

court’s judgment dismissing his 42 U.S.C. § 1983 action alleging First and

Fourteenth Amendment violations arising from the denial of a religious diet to him


            *
             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, and therefore, denies McKenzie’s request for oral
argument. See Fed. R. App. P. 34(a)(2).
as a Rastafarian. We have jurisdiction under 28 U.S.C. § 1291. We review de

novo, Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 989 (9th Cir. 2009),

and we affirm.

      The district court properly dismissed McKenzie’s claim for denial of free

exercise of religion because denying McKenzie’s special requests for poultry was

consistent with his religious diet, and because regulations requiring McKenzie to

re-apply to the religious diet program at his new prison were related to valid

penological interests and did not unduly burden his ability to practice his religion.

See Resnick v. Adams, 348 F.3d 763, 768-71 (9th Cir. 2003) (requiring an

application to provide a religious diet does not unduly burden a prisoner’s right to

practice his religion); Ward v. Walsh, 1 F.3d 873, 877 (9th Cir. 1993) (prisons have

a valid interest in keeping their food service system administratively simple); see

also Turner v. Safley, 482 U.S. 78, 89, 90-91 (1987) (regulations impinging on

constitutional rights are valid if reasonably related to valid penological interests).

      The district court properly dismissed McKenzie’s equal protection claim

because McKenzie failed to allege that defendants intentionally discriminated

against him based on his religion by failing, on some occasions, to accommodate

his special request to be served poultry even though he opted for a religious

vegetarian diet. See Thornton v. City of St. Helens, 425 F.3d 1158, 1166 (9th Cir.


                                            2                                     12-56841
2005) (to state an equal protection claim, “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.” (citation and internal quotation marks omitted));

see also Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997)

(“[A] liberal interpretation of a civil rights complaint may not supply essential

elements of the claim that were not initially pled.” (citation and internal quotation

marks omitted)).

      McKenzie’s request for judicial notice is granted. See Fed. R. Evid. 201.

      McKenzie’s contentions regarding the allegedly improper extension of time

to defendants to file an answer to the complaint after removal are unpersuasive.

      AFFIRMED.




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