                                                                            FILED
                             NOT FOR PUBLICATION                             JUL 29 2010

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




                             FOR THE NINTH CIRCUIT



ANTHONY THOMAS CHERNETSKY,                       No. 08-16100

               Plaintiff - Appellant,            D.C. No. 3:06-cv-00252-RCJ-
                                                 RAM
  v.

STATE OF NEVADA; et al.,                         MEMORANDUM *

               Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Nevada
                     Robert C. Jones, District Judge, Presiding

                              Submitted July 19, 2010 **

Before:        B. FLETCHER, REINHARDT, and WARDLAW, Circuit Judges.

       Anthony Thomas Chernetsky, a Nevada state prisoner, appeals pro se from

the district court’s summary judgment for defendants in his 42 U.S.C. § 1983

action alleging that the defendants violated his rights under the Religious Land Use

and Institutionalized Person’s Act of 2000, 42 U.S.C. § 2000cc, et seq.

          *
             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. See Fed. R. App. P. 34(a)(2).
(“RLUIPA”), and the First and Fourteenth Amendments. We have jurisdiction

under 28 U.S.C. § 1291. We review de novo, Shakur v. Schriro, 514 F.3d 878, 883

(9th Cir. 2008), and we vacate in part, affirm in part and remand.

       Chernetsky claims that Nevada Administrative Regulation (“AR 810”)

violates his rights under RLUIPA because it burdens him, as a member of the

Wicca faith, from exercising his religion. The district court properly determined

that the named individual defendants were entitled to qualified immunity because

Chernetsky failed to demonstrate that his rights to relief under RLUIPA were

clearly established between 2004 and 2006. See Sorrels v. McKee, 290F.3d 965,

969 (9th Cir. 2002) (stating that the plaintiff bears the burden of showing that the

right is clearly established).

       However, there is a genuine issue of material fact as to whether the State has

established a compelling interest in restricting Chernetsky’s religious exercise, in

particular his access to a sweat lodge, and that AR 810 is the least restrictive means

for furthering that interest. See Greene v. Solano County Jail, 513 F.3d 982, 989-

90 (9th Cir. 2008) (“[I]n light of RLUIPA, no longer can prison officials justify

restrictions on religious exercise by simply citing to the need to maintain order and

security in a prison. RLUIPA requires more.”). The State did not provide

sufficient evidence to analyze whether the prison’s application of AR 810 is the


                                           2                                    08-16100
least restrictive means available to advance a compelling state interest. Moreover,

the State argues on appeal that AR 810 has been amended subsequent to the district

court’s decision. Accordingly, we vacate summary judgment for defendants on the

RLUIPA claim, and remand for further proceedings.

      We do not address Chernetsky’s constitutional claims because he has not

raised them on appeal. See Acosta-Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir.

1992) (issues not supported by argument are deemed abandoned). However, on

remand, the district court should consider whether to grant Chernetsky leave to

amend any of these claims. See United States v. Webb, 655 F.2d 977, 979 (9th Cir.

1981) (a party may amend a complaint as a matter of course before a responsive

pleading is served).

      The parties shall bear their own costs on appeal.

      AFFIRMED in part, VACATED in part, and REMANDED.




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