The opinion
FILED
NOT FOR PUBLICATION MAY 21 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DONALD COLE BURCHETT, No. 08-36014
Plaintiff - Appellant, D.C. No. 2:07-cv-00346-JLQ
v.
MEMORANDUM *
ROBERT BROMPS; TODD WIGGS,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of Washington
Justin L. Quackenbush, Senior District Judge, Presiding
Argued and Submitted May 6, 2010
Seattle, Washington
Before: WARDLAW and GOULD, Circuit Judges, and MILLS, District Judge.**
Donald Cole Burchett (“Burchett”) appeals the district court’s grant of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Richard Mills, Senior United States District Judge for
the Central District of Illinois, sitting by designation.
summary judgment for Defendants-Appellees in Burchett’s pro se1 42 U.S.C.
§ 1983 action alleging that Robert Bromps (“Bromps”), the Washington state
community corrections officer supervising the community-placement portion of
Burchett’s criminal sentence, violated Burchett’s First Amendment rights by
placing restrictions on Burchett’s ability to attend church. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm in part, vacate in part, and remand.
We review summary judgments de novo. Diruzza v. County of Tehama, 323
F.3d 1147, 1152 (9th Cir. 2003).
In his pro se complaint before the district court, Burchett argued that a
stipulated agreement between himself, Bromps, and Bromps’s supervisor, Todd
Wiggs, denied Burchett the free exercise of his Seventh Day Adventist religion.
The stipulated agreement required that Burchett “[a]bstain from being in any areas
within 3 city block[s] of a church without the permission of [Bromps].” On
appeal, Burchett abandoned this claim in briefing and again at oral argument, and
1
Although Burchett appeared pro se in the district court, he was represented
on this appeal by Michael King of Carney Badley Spellman, P.S., in a pro bono
appointment. Such pro bono representation is in the best traditions of the
organized bar and is appreciated by our court.
2
we affirm the summary judgment as to this claim.2
Burchett also alleges that Bromps violated the Establishment Clause when
he issued an oral directive prohibiting Burchett from attending a Seventh Day
Adventist church and granting him permission to attend only an Assembly of God
church. In his pro se pleading before the district court, Burchett neither raised this
Establishment Clause claim nor mentioned Bromps’s alleged oral directive. The
district court did not address Burchett’s Establishment Clause claim in its order
granting summary judgment. The defendants-appellees urge that Burchett did not
raise this claim properly and therefore waived it, asking us to affirm the district
court on this basis.
We conclude, however, that Burchett raised his Establishment Clause claim
in his memorandum in opposition to summary judgment. In the case of a pro se
plaintiff, “[i]t is sufficient that the complaint, alone or supplemented by any
subsequent filings before summary judgment, provide the defendant fair notice” of
the plaintiff’s claims. Alvarez v. Hill, 518 F.3d 1152, 1159 (9th Cir. 2008); see
also Frost v. Symington, 197 F.3d 348, 352 (9th Cir. 1999). In his memorandum
opposing summary judgment, Burchett stated that “the only church Bromps would
2
Because Burchett has abandoned his free exercise claim, we decline to
address the defendants’ alternative arguments in support of the summary judgment.
3
let me go to was a[n] [Assembly] of God Church[, a] religion [I] don’t practice,”
and that “I was only allowed to go to a church that CCO Bromps w[anted] me to
go to [and] was denied the access to pra[c]tice my own religion.” This was
sufficient to put the defendants and the district court on notice of Burchett’s
Establishment Clause claim. The district court could have construed the statements
in Burchett’s opposition memorandum as a motion to amend the pleadings out of
time. See Apache Survival Coal. v. United States, 21 F.3d 895, 910 (9th Cir.
1994); Johnson v. Mateer, 625 F.2d 240, 242 (9th Cir. 1980). In any event, the pro
se complaint, as supplemented by Burchett’s memorandum opposing summary
judgment, and Burchett’s deposition testimony fairly placed the Establishment
Clause issue before the court.3 We therefore vacate the district court’s judgment
with respect to this claim and remand on an open record with instructions to allow
3
In discussing the facts, and although relating it to the free exercise claim,
the district court’s order expressly stated that Burchett had alleged that “Mr.
Bromps would only allow him to attend an Assembly of God church.”
4
Burchett to amend his pleadings and pursue his Establishment Clause claim.4
Parties shall bear their own costs.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
4
We express no opinion on the merits of Burchett’s Establishment Clause
claim or the defendants’ absolute and qualified immunity defenses, as the district
court did not address those issues below. See Singleton v. Wulff, 428 U.S. 106, 120
(1976). The parties are free to raise those issues on remand.
5