                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           DEC 21 2018
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


GAIL VINCENT,                                    No.   17-35487

              Plaintiff-Appellant,               D.C. No.
                                                 3:16-cv-05023-RBL-TLF
 v.

BELINDA STEWART, Correctional                    MEMORANDUM*
Program Administrator, DOC;
WASHINGTON STATE DEPARTMENT
OF CORRECTIONS; BERNARD
WARNER, Secretary, DOC; JOE
WILLIAMSON, Facility Food Manager,
SCCC; BRENT CARNEY; PAT DOE 1,
Religious Dietary Final Policy Makers;
PAT DOE 2, Religious Dietary Final
Policy Makers,

              Defendants-Appellees.


                   Appeal from the United States District Court
                     for the Western District of Washington
                   Ronald B. Leighton, District Judge, Presiding

                     Argued and Submitted December 4, 2018
                              Seattle, Washington

Before: W. FLETCHER, BYBEE, and WATFORD, Circuit Judges.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      Appellant Gail Vincent appeals the district court’s order granting summary

judgment to various prison officials (collectively, “defendants”) of the Washington

State Department of Corrections (“Department”) on his claims that they violated

his rights under the Religious Land Use and Institutionalized Persons Act

(“RLUIPA”), the Free Exercise Clause of the First Amendment, and the Equal

Protection Clause of the Fourteenth Amendment.1 We have jurisdiction under 28

U.S.C. § 1291, and we reverse in part and affirm in part.

      We review a district court’s grant of summary judgment de novo. Shakur v.

Schriro, 514 F.3d 878, 883 (9th Cir. 2008). “Viewing the evidence in the light

most favorable to the non-moving party, we must determine whether there are any

genuine issues of material fact and whether the district court correctly applied the

relevant substantive law.” Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004)

(internal quotations and citation omitted).

      1. We conclude that the district court incorrectly granted summary

judgment on Vincent’s RLUIPA claim. To state a claim under RLUIPA, Vincent

must show that the state placed a substantial burden on the exercise of his religious

beliefs. Warsoldier v. Woodford, 418 F.3d 989, 994 (9th Cir. 2005). While the



      1
       In his Replacement Opening Brief, Vincent “conceded that the dismissal of
the [Department] as a defendant was proper.”
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court may not “inquir[e] into whether a particular belief or practice is ‘central’ to a

prisoner’s religion, see 42 U.S.C. § 2000cc-5(7)(A), the Act does not preclude

inquiry into the sincerity of a prisoner’s professed religiousity.” Cutter v.

Wilkinson, 544 U.S. 709, 725 n.13 (2005) (citations omitted). Here, the district

court acknowledged that it could not inquire into “whether [Vincent’s] exercise of

religion is required by [his] faith.” Nevertheless, the court concluded that

Vincent’s professed personal belief was insincere on the basis of his past

commissary purchases. We disagree. Even if the evidence considered by the

district court “call[s] into question the sincerity of [Vincent’s] belief,” there

remains a factual dispute concerning Vincent’s consumption of the ramen

sufficient to preclude summary judgment. Moreover, we are unconvinced that a

single incidence of deviation occurring more than four years ago is legally

sufficient to prove a lack of sincerity.

      In addition, the district court incorrectly concluded that the defendants did

not substantially burden the practice of Vincent’s religion. To constitute a

substantial burden, the government’s conduct “must have a tendency to coerce

individuals into acting contrary to their religious beliefs or exert substantial

pressure on an adherent to modify his behavior and to violate his beliefs.” Jones v.

Williams, 791 F.3d 1023, 1031–32 (9th Cir. 2015) (citations omitted). Here, there


                                            3
remains a genuine dispute of material fact as to whether the cheese products

offered in the commissary are sufficient to satisfy the demands of Vincent’s

religious beliefs. See Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d

916, 923 (9th Cir. 2011) (finding a substantial burden where the government

“block[s] [the adherent] from obtaining religious materials or leadership from other

sources”). Furthermore, the defendants’ refusal to provide Vincent with a

metabolic diet that meets his religious needs substantially burdened his religious

beliefs. See Shakur, 514 F.3d at 888–89 (finding a substantial burden where an

inmate was forced to eat a diet that caused “adverse physical effects” in order to

comply with his religious dietary laws); McElyea v. Babbitt, 833 F.2d 196, 198

(9th Cir. 1987) (per curiam) (holding that inmates “have the right to be provided

with food sufficient to sustain them in good health that satisfies the dietary laws of

their religion”).

       2. The district court also erred in granting summary judgment on Vincent’s

First Amendment claim. Under the First Amendment’s Free Exercise Clause, a

government regulation that substantially burdens an individual’s exercise of their

religion must be “reasonably related to legitimate penological interests.” Shakur,

514 F.3d at 884. To make this determination, the court must conduct the four-part

inquiry set forth in Turner v. Safley, 482 U.S. 78 (1987). Here, dietary restrictions


                                           4
can rationally further a legitimate penological interest in running a simplified food

service. See Shakur, 514 F.3d at 885–86. In addition, Vincent’s ability to read

holy scripture and communicate with religious leaders provided him with

alternative means of practicing his religion. See id. However, the defendants’

allegations that accommodating Vincent would require significant additional labor,

time, and staff are conclusory and do not indicate that the defendants actually

looked into providing Vincent and other similarly situated inmates with religiously

compliant metabolic meals. See id. at 887–88. Thus, the defendants’ allegations

were inadequate to satisfy the third and fourth Turner factors, and summary

judgment was inappropriate. See id.

      3. We conclude that the district court correctly granted summary judgment

on Vincent’s equal protection claim. To survive summary judgment on an equal

protection claim brought under 42 U.S.C. § 1983, Vincent was required to allege

facts plausibly showing that “the defendants acted with an intent or purpose to

discriminate against [him] based upon membership in a protected class.” Thornton

v. City of St. Helens, 425 F.3d 1158, 1166 (9th Cir. 2005) (quoting Lee v. City of

L.A., 250 F.3d 668, 686 (9th Cir. 2001)). Discriminatory purpose “implies that the

decisionmaker . . . selected or reaffirmed a particular course of action at least in

part ‘because of,’ not merely ‘in spite of,’ its adverse effects.” Navarro v. Block,


                                           5
72 F.3d 712, 716 n.5 (9th Cir. 1995) (quoting Pers. Adm’r of Mass. v. Feeney, 442

U.S. 256, 279 (1979)). Here, Vincent has not shown that he was singled out and

intentionally treated differently from any other inmate in the Department’s custody

on account of his religion. The district court thus properly granted summary

judgment in favor of defendants on Vincent’s equal protection claim.

      4. We affirm the district court’s grant of qualified immunity in favor of

defendants as to Vincent’s claim for damages. To overcome the defense of

qualified immunity, Vincent must show (1) that the defendants violated his

constitutional rights and (2) that the right was clearly established at the time of the

violation. Hamby v. Hammond, 821 F.3d 1085, 1090 (9th Cir. 2016). Here, while

we conclude that Vincent raised a genuine issue of material fact as to whether his

First Amendment rights were violated, the constitutional question was not “beyond

debate,” see Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011), and qualified immunity

was thus proper.

      Accordingly, the district court’s grant of summary judgment on Vincent’s

RLUIPA and First Amendment claims is REVERSED and the district court’s

grant of summary judgment on Vincent’s Equal Protection claim and the

defendants’ qualified immunity defense is AFFIRMED.




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