                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                           AUG 31 2015
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
TYRONE ROGERS,                                   No. 13-55527

              Plaintiff - Appellant,             D.C. No. 3:11-cv-00560-IEG-RBB

 v.
                                                 MEMORANDUM*
G. J. GIURBINO; et al.,

              Defendants - Appellees.


                    Appeal from the United States District Court
                       for the Southern District of California
                 Irma E. Gonzalez, Senior District Judge, Presiding

                        Argued and Submitted July 7, 2015
                              Pasadena, California

Before: W. FLETCHER, PAEZ, and BERZON, Circuit Judges.

      Tyrone Rogers, an inmate at Centinela State Prison, filed a complaint for

injunctive relief and damages, alleging infringement of several constitutional rights

under both 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized

Persons Act of 2000, 42 U.S.C. §§ 2000cc, et seq. (“RLUIPA”). The district court



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
dismissed several of Rogers’s § 1983 claims under 28 U.S.C. § 1915(e)(2)(B)(ii)

and others under Federal Rule of Civil Procedure 12(b)(6), all of which he

challenges on appeal. Rogers also challenges the district court’s grant of summary

judgment in favor of Defendant P. Kuzil-Ruan on his RLUIPA claim. His claims

arose from three ten-day emergency lockdowns, and rolling lockdowns connected

to a statewide staff reduction plan. We have jurisdiction under 28 U.S.C. § 1291,

and we affirm in part, reverse in part, vacate in part, and remand for further

proceedings.

1.     Rogers’s outdoor exercise and access to courts claims were dismissed under

28 U.S.C. § 1915(e)(2)(B)(ii). We review de novo a dismissal under §

1915(e)(2)(B)(ii), applying the same standard used to evaluate motions to dismiss

under Rule 12(b)(6). Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998).

A complaint will survive a motion to dismiss “only if, taking all well-pleaded

factual allegations as true, it contains enough facts to ‘state a claim to relief that is

plausible on its face.’” Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010)

(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). However, even after Iqbal

and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), we “continue to construe

pro se filings liberally.” Id. at 342.




                                             2
2.    We affirm the district court’s dismissal of Rogers’s Eighth Amendment

outdoor exercise claim because the allegations in the Second Amended Complaint

(“SAC”) are insufficient to state a claim for relief. To sustain such a claim, a

plaintiff “must meet two requirements, one objective and one subjective.” Allen v.

Sakai, 48 F.3d 1082, 1087 (9th Cir. 1994) (citing Farmer v. Brennan, 511 U.S. 825

(1994)). Under the objective requirement, “the prison official’s acts or omissions

must deprive an inmate of the minimal civilized measure of life’s necessities.” Id.

(internal quotation marks omitted). “The subjective requirement, relating to the

defendant’s state of mind, requires deliberate indifference.” Id. Rogers’s

allegations that he was denied outdoor exercise for ten consecutive days three

times, and one day every two or four days otherwise, are insufficient to satisfy

either prong of an Eighth Amendment claim. See, e.g., May v. Baldwin, 109 F.3d

557, 565-66 (9th Cir. 1997); Pierce v. Cnty. of Orange, 526 F.3d 1190, 1212-13

(9th Cir. 2008) (as amended).

3.    We also affirm the district court’s dismissal of Rogers’s access to courts

claim. Allegations of a backward-looking access to courts claim must include facts

about the underlying “lost” cause of action, including the lost remedy, and “the

official acts frustrating the litigation.” Christopher v. Harbury, 536 U.S. 403, 415-

16 (2002). Examples of such a “loss” include the “loss or inadequate settlement of


                                           3
a meritorious case,” “the loss of an opportunity to sue,” or “the loss of an

opportunity to seek some particular order of relief.” Id. at 414. Here, there was no

lost opportunity or actual injury stemming from the allegations in the SAC.

Rogers alleged that he mailed his application for leave to file a second or

successive petition—the filing at issue—with the Ninth Circuit on July 29, 2010.1

That petition was denied on January 12, 2011 for failure to make a prima facie

showing under 28 U.S.C. § 2244(b)(2). Thus, Rogers did not lose an opportunity

to sue or request relief based on an inability to file timely. Further, Rogers did not

allege that he had insufficient time to complete the filing, or that with more time

the petition for leave to file a second or successive habeas petition would have

been meritorious.

4.    Reviewing de novo, we reverse the district court’s Rule 12(b)(6) dismissal

of Rogers’s First Amendment claim. The SAC sufficiently alleges Rogers’s

sincerely held religious beliefs. See Walker v. Beard, 789 F.3d 1125, 1138 (9th

Cir. 2015). Defendants did not show that Rogers’s allegations in the SAC

      1
        We take judicial notice of the Ninth Circuit docket and documents filed in
Case No. 10-73249, the habeas proceeding referenced by Rogers in his SAC. See
United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (recognizing that under
Federal Rule of Evidence 201, a court may take judicial notice of its own records
in other cases). According to the docket for Case No. 10-73249, the application for
leave to file a second or successive petition was filed with this court on October 22,
2010.

                                           4
demonstrate that the challenged actions “reasonably related to legitimate

penological interests” under the factors outlined in Turner v. Safley, 482 U.S. 78,

89-91 (1987). See Walker, 789 F.3d at 1138. This issue is best resolved at

summary judgment or at trial, if necessary. Further, the district court improperly

relied on Whitmire v. Arizona, 298 F.3d 1134 (9th Cir. 2002), for the proposition

that, where a common-sense connection exists between an asserted penological

interest and the policy or action at issue, a district court need not analyze the other

three Turner factors. See, e.g., Shakur v. Schriro, 514 F.3d 878, 885-88 (9th Cir.

2008) (remanding for further factual development after analyzing all four Turner

factors where a rational nexus existed between a prison’s dietary policies and its

“legitimate administrative and budgetary concerns”); Thornburgh v. Abbott, 490

U.S. 401, 414-18 (1989) (finding a connection, and then discussing the second,

third, and fourth Turner factors). Indeed, Whitmire stated that a dismissal on the

pleadings is “appropriate only when” a common-sense connection exists, and

reversed the dismissal because there was no such connection in that case.

Whitmire, 298 F.3d at 1136 (emphasis added). Whitmire did not hold that

dismissal is always appropriate when such a connection exists, without regard to

the other Turner factors.




                                            5
5.     We vacate the district court’s dismissal of Defendant G.J. Giurbino and

Defendant Domingo Uribe, Jr. in their individual capacities. Rogers’s allegations

of causation as to these two defendants are insufficient in light of Iqbal, 556 U.S.

at 677-78. However, the record demonstrates that Rogers may be able to correct

these deficiencies in an amended complaint. See Kuzil-Ruan’s Declaration, filed

on November 13, 2012. On remand, Rogers may request leave to amend his

complaint regarding Giurbino and Uribe.

6.     The allegations are sufficient to support a claim against Giurbino and Uribe

in their official capacities. Rogers alleged that the staff reduction plan was

implemented “in order to obtain a 3% salary saving via Califs [sic] financial

deficit,” meaning the State of California was the alleged “moving force” behind

Rogers’s injuries. Kentucky v. Graham, 473 U.S. 159, 166 (1985) (internal

quotation marks omitted). Assuming the allegations in the SAC are true,

California’s policy would have played a role in violating Rogers’s constitutional

rights. See Hafer v. Melo, 502 U.S. 21, 25 (1991). Thus, Rogers alleged facts

sufficient to pursue a cause of action for injunctive relief against Giurbino and

Uribe in their official capacities.

7.     In the district court, Defendants argued in their motion to dismiss that they

were entitled to qualified immunity. Because the court dismissed Rogers’s First


                                           6
Amendment claim and all claims against Giurbino and Uribe, it did not address

whether Giurbino and Uribe are entitled to qualified immunity, or whether Kuzil-

Ruan is entitled to qualified immunity on Rogers’s First Amendment claim. On

remand, the district court should address these issues in the first instance.2

8.    We review de novo a district court’s decision to grant summary judgment.

See Bravo v. City of Santa Maria, 665 F.3d 1076, 1083 (9th Cir. 2011). Applying

that standard, we reverse the district court’s grant of summary judgment to Kuzil-

Ruan on Rogers’s RLUIPA claim for injunctive relief only. See Wood v. Yordy,

753 F.3d 899, 901 (9th Cir. 2014). Contrary to Kuzil-Ruan’s contention, there is a

genuine issue of material fact as to whether defendants substantially burdened

Rogers’s religious exercise. See Walker, 789 F.3d at 1134. To defeat a RLUIPA

claim, the government must demonstrate that any substantial burden on a

plaintiff’s exercise of his religion “(1) is in furtherance of a compelling

governmental interest; and (2) is the least restrictive means of furthering that

compelling governmental interest.” 42 U.S.C. § 2000cc-1(a). For the least

      2
        To the extent that Rogers alleged any freestanding Fourteenth Amendment
claim, we affirm the district court’s dismissal. The SAC does not allege any
“intent or purpose to discriminate against [Rogers] based on membership in a
protected class,” an essential allegation of an equal protection claim, Barren, 152
F.3d at 1194 (citing Washington v. Davis, 426 U.S. 229, 239-40 (1976)), or any
protected interest that Defendants allegedly violated that could support a due
process claim, Ingraham v. Wright, 430 U.S. 651, 672 (1977).

                                           7
restrictive means prong, “[p]rison officials must show that they ‘actually

considered and rejected the efficacy of less restrictive measures before adopting

the challenged practice.’” Greene v. Solano Cnty. Jail, 513 F.3d 982, 990 (9th Cir.

2008) (quoting Warsoldier v. Woodford, 418 F.3d 989, 999 (9th Cir. 2005)). By

contrast, Kuzil-Ruan and her successors, all former Facility Captains at Centinela,

explained in their declarations that, for each day of a lockdown, they considered

only whether group worship was possible, and then concluded that it was necessary

to limit religious services to in-cell only. There was no evidence that anyone

“ever considered a less restrictive approach.” Warsoldier, 418 F.3d at 999.

Furthermore, there exists “a factual dispute as to . . . the existence of less restrictive

alternatives,” which renders summary judgment inappropriate. Shakur, 514 F.3d at

891. The record suggests that group religious services could have been scheduled

during the lockdowns, as several inmates at a time were allowed out of their cells

for other reasons. For these reasons, we reverse the district court’s grant of

summary judgment and remand for further proceedings.

9.    Before this court, Defendants argued that Rogers’s claim for injunctive relief

is moot. However, the present record is inadequate for us to make that

determination. As this argument also implicates whether injunctive relief would be




                                            8
proper here under the changed circumstances as argued by Defendants, the district

court should examine both of these related issues on remand.

10.   Finally, Rogers raised on appeal the district court’s failure to enforce its

order granting his motion to compel discovery against Kuzil-Ruan. The district

court adopted a magistrate judge’s report and recommendations granting in part

Rogers’s motion to compel discovery six days after Rogers filed his opposition to

Kuzil-Ruan’s motion for summary judgment, and two months after discovery

closed. On remand, the district court should allow Rogers the benefit of its grant

of his motion to compel discovery.

11.   Each party shall bear their own costs on appeal.

      AFFIRMED in part, REVERSED in part, VACATED in part, and

REMANDED.




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