Dennis Walker v. Beard

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DENNIS WALKER, No. 12-17460

Plaintiff-Appellant,

DC No.

v. 2:11-cv- 2728

KJM-GGH

JEFFREY BEARD*, CDCR Secretary

and KATHLEEN DICKERSON, Warden,

CMF Prison, OPINION

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of California

Kimberly J. Mueller, District Judge, Presiding

Argued and Submitted

February 10, 2015—San Francisco, California

Filed June 18, 2015

Before: Sidney R. Thomas, Chief Judge, A. Wallace

Tashima and M. Margaret McKeown, Circuit Judges.

Opinion by Judge Tashima

*

Jeffrey Beard is substituted for his predecessor Matthew L. Cate, as

Secretary of the California Department of Corrections and Rehabilitation,

pursuant to Fed. R. App. P. 43(c)(2).

2 WALKER V. BEARD

SUMMARY**

Prisoner Civil Rights

The panel affirmed the district court’s ruling that

California’s refusal to exempt a state prisoner from its

Integral Housing Policy did not violate the Religious Land

Use and Institutionalized Persons Act or the First

Amendment.

The plaintiff prisoner is an Aryan Christian Odinist who

challenged the State’s classification of him as eligible to

occupy a prison cell with an individual of a different race,

alleging that such a placement would interfere with his

religious practice, the “warding ritual.”

The panel held that the prisoner’s challenge to his

classification as racially eligible (allowing the prison to place

him in a cell with an individual of a different race) was not

moot even though he had transferred prisons because he

remains in State custody, classified as racially eligible. The

panel also held that the prisoner was not barred from arguing

on appeal that the State improperly burdened his ability to

perform the Odinist warding ritual.

The panel held that the prisoner successfully alleged a

burden on his religious exercise under the Religious Land

Use and Institutionalized Persons Act and the First

Amendment, but the State had a compelling interest in

avoiding unconstitutional racial discrimination, and

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

WALKER V. BEARD 3

subjecting the prisoner to integrated celling was the only

possible means of furthering that interest. The panel

concluded that the prisoner failed to state a claim under the

Act and the First Amendment. The panel further concluded

that the district court did not abuse its discretion in denying

the prisoner leave to amend.

COUNSEL

Elliot Wong (argued), San Francisco, California, for Plaintiff-

Appellant.

Kamala Harris, Attorney General of California, Jonathan L.

Wolff, Senior Assistant Attorney General, Thomas S.

Patterson, Supervising Deputy Attorney General, Jose A.

Zelidon-Zepeda (argued), Deputy Attorney General, San

Francisco, California, for Defendants-Appellees.

OPINION

TASHIMA, Circuit Judge:

Dennis Walker is a devout racist. He is an Aryan

Christian Odinist incarcerated in a California state prison.

The Odinist religion forbids adherents from integrating with

members of races other than their own and requires the

performance of rituals that may not be conducted in the

presence of non-“Aryan” individuals. Walker challenges the

State’s classification of him as eligible to occupy a prison cell

with an individual of a different race, alleging that such a

placement would interfere with his religious practice. He

appeals the district court’s ruling that the State’s refusal to

4 WALKER V. BEARD

exempt him from its Integrated Housing Policy (the “Housing

Policy”) did not violate the Religious Land Use and

Institutionalized Persons Act (“RLUIPA”), 42 U.S.C.

§ a2000cc et seq., or the First Amendment. We have

jurisdiction under 28 U.S.C. § 1291. We conclude that the

State has a compelling interest in avoiding invidious racial

discrimination and potential liability under the Equal

Protection Clause, and the only way for the State to satisfy

this interest was to reject Walker’s request for an exemption

from the Housing Policy. We affirm.

I.

According to Walker, Odinism, the religion to which he

adheres, calls on its followers to preserve the purity of the

Aryan race.1 To that end, Odinists are forbidden from

interacting with individuals of other races. Seeking to follow

his religious dictates, Walker requested that he be celled with

an Aryan individual. The state rejected the request. Pursuant

to the Housing Policy, Walker was classified as “racially

eligible,” allowing the prison to place him in a cell with an

individual of a different race.

The Housing Policy provides for prisoners to be classified

into one of five categories, including racially eligible and

“restricted to own,” meaning ineligible to be placed in a

multi-race cell. There is a strong presumption in favor of

racially eligible status. Under that policy, an inmate’s race

may not be a “primary determining factor” in determining his

1

Although the word “Aryan” has been variously used to describe Proto-

Indo-Europeans and Hindus, Walker apparently uses it to refer only to

white individuals of Northern European heritage. We follow that usage

in this opinion.

WALKER V. BEARD 5

housing classification. Prison officials may, however,

consider certain race-related factors when classifying

inmates, such as the prisoner’s history of perpetrating or

being victimized by racial violence. A prisoner classified as

racially eligible who refuses to accept a cellmate of another

race is not forced to accept integration, but rather is

categorized as “restricted by refusal” and subjected to

disciplinary action. Following his classification as racially

eligible, the prison assigned Walker a non-white cellmate and

Walker refused the assignment. As discipline, the prison

placed him in administrative segregation.

Walker commenced this action pro se against Matthew

Cate, then-Secretary of the California Department of

Corrections and Rehabilitation, and Kathleen Dickerson, the

warden of the prison in which he was then housed (together

“Defendants” or the “State”).2 He seeks damages and

injunctive relief for a variety of statutory and constitutional

claims, including claims under RLUIPA, and the First, Fifth,

Eighth, and Fourteenth Amendments. Although inartfully

drafted, the complaint alleges that the State’s classification of

Walker as racially eligible under the Housing Policy

impermissibly abridged his religious liberty by threatening a

violation of his “religious beliefs and practices.”

Defendants moved to dismiss for failure to state a claim

under Fed. R. Civ. P. 12(b)(6). A magistrate judge

recommended granting the motion and dismissing all claims.

Still proceeding pro se, Walker filed objections to the

magistrate judge’s findings and recommendations (“F&R”).

2

As best as can be determined, Walker appears to have brought claims

against Defendants in both their official and personal capacities, and we

so construe the complaint.

6 WALKER V. BEARD

In this new filing, for the first time, Walker provided

additional information about his practice of Odinism. Walker

asserted that as part of his religious practice he engages in a

ritual known as “the spiritual circle of Odinist Warding” (the

“warding ritual”) to communicate with his gods. Integrated

housing, according to Walker, would interfere with this ritual

because the presence of a non-Aryan individual in his cell

during the ritual would “pollute” the spiritual circle.

Notwithstanding Walker’s objections to the F&R, the district

court adopted the magistrate judge’s F&R in full, dismissed

Walker’s complaint for failure to state a claim, and denied

leave to amend.

Now represented by counsel, Walker appeals the

dismissal of his RLUIPA and First Amendment claims and

the denial of leave to amend.

II.

We review de novo a district court’s dismissal for failure

to state a claim pursuant to Federal Rule of Civil Procedure

12(b)(6). Stone v. Travelers Corp., 58 F.3d 434, 436–37 (9th

Cir. 1995). We review a district court’s denial of leave to

amend for abuse of discretion. Lopez v. Smith, 203 F.3d

1122, 1130 (9th Cir. 2000) (en banc).

III.

The State asserts that Walker’s action is moot because,

since filing his complaint, Walker has been transferred to a

new prison and has not alleged he is subject to integrated

WALKER V. BEARD 7

celling at that facility.3 A case is moot “when it has ‘lost its

character as a present, live controversy of the kind that must

exist if [the court is] to avoid advisory opinions on abstract

propositions of law.’” Oregon v. FERC, 636 F.3d 1203, 1206

(9th Cir. 2011) (per curiam) (quoting Hall v. Beals, 396 U.S.

45, 48 (1969) (per curiam)). Because “[t]he jurisdiction of

federal courts depends on the existence of a ‘case or

controversy’ under Article III of the Constitution,” we must

dismiss an appeal that has become moot. Pub. Util. Comm’n

of Cal. v. FERC, 100 F.3d 1451, 1458 (9th Cir. 1996)

(quoting GTE Cal., Inc. v. FCC, 39 F.3d 940, 945 (9th Cir.

1994)).

Our precedents elaborate on how the mootness bar applies

to claims brought by prisoners subsequently transferred to

new prisons. In Dilley v. Gunn, a prisoner brought a

constitutional claim alleging denial of access to the courts on

the ground that the prison law library’s policies were overly

restrictive. 64 F.3d 1365, 1367 (9th Cir. 1995). We

concluded that the claim was moot because the prisoner had

been transferred to another prison and did not demonstrate “a

reasonable expectation that he [would be] . . . subjected

again” to the suspect library policies. Id. at 1368–69. By

contrast, in Nelson v. Heiss, we held that a prisoner’s claim

3

Walker asserts claims for both damages and injunctive relief, but we

consider only the mootness of the injunctive claims because Defendants

are immune from liability for damages. Defendants are immune from

Walker’s official capacity damages claims under the Eleventh

Amendment. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 64–65

(1989); Holley v. Cal. Dep’t of Corr., 599 F.3d 1108, 1111–12 (9th Cir.

2010). Walker’s personal capacity claims fail because Defendants plainly

did not violate clearly established rights of which a reasonable person

would (or should) have known, thus entitling Defendants to qualified

immunity. See Pearson v. Callahan, 555 U.S. 223, 232–33 (2009).

8 WALKER V. BEARD

asserting his trust account had been mishandled in violation

of federal law was not moot, even though the prisoner had

been transferred from the prison where the alleged

misconduct occurred. 271 F.3d 891, 893, 897 (9th Cir. 2001).

We concluded that the claim was not moot because the policy

pursuant to which the alleged violation occurred was “system

wide” and one of the defendants was in charge of the policy.

Id. at 897; see also Jordan v. Sosa, 654 F.3d 1012, 1028–29

(10th Cir. 2011); Lehn v. Holmes, 364 F.3d 862, 871–72 (7th

Cir. 2004).

Reading the complaint in the light most favorable to

Walker, it challenges his classification as racially eligible

under the Housing Policy, which, by its terms, regulates the

housing of inmates throughout the California prison system,

not just in Walker’s original prison. Defendant Matthew Cate

was the head of the California prison system when Walker

filed his complaint and was capable of providing relief.4

Thus, Walker has satisfied both of the requirements we

identified in Nelson for a transferred prisoner’s claim to avoid

mootness. Walker remains in State custody, classified as

racially eligible. His challenge to that classification is not

moot.

IV.

The State next asserts that Walker should be barred from

arguing on appeal that the State improperly burdened his

ability to perform the Odinist warding ritual because: (1) he

abandoned that argument; and (2) his complaint does not

4

Matthew Cate resigned as head of the state prison system in 2012 and

his successor has been substituted in his stead with respect to any official

capacity claims. See footnote *, supra.

WALKER V. BEARD 9

contain factual allegations sufficient to support the warding

ritual theory. We discuss these related arguments in turn.

“It is a general rule that a party cannot revisit theories that

it raises but abandons at summary judgment.” Ramirez v. City

of Buena Park, 560 F.3d 1012, 1026 (9th Cir. 2009) (quoting

Davis v. City of Las Vegas, 478 F.3d 1048, 1058 (9th Cir.

2007) (internal quotation marks omitted)). “A party

abandons an issue when it has a full and fair opportunity to

ventilate its views with respect to an issue and instead

chooses a position that removes the issue from the case.” Id.

(quoting BankAmerica Pension Plan v. McMath, 206 F.3d

821, 826 (9th Cir. 2000) (internal quotation marks omitted)).

The wellspring of our recent abandonment jurisprudence

is USA Petroleum Co. v. Atl. Richfield Co., 13 F.3d 1276 (9th

Cir. 1992). Richfield was an antitrust action brought by USA

Petroleum (“USA”) against its competitor, Atlantic Richfield,

alleging predatory pricing. Id. at 1277. On appeal, USA

attempted to rely on a “below-cost pricing” theory of liability

under § 1 of the Sherman Act, 15 U.S.C. § 1, even though it

had relied on a different “below-market pricing theory” in the

district court. Id. at 1279, 1284. We barred USA from

asserting the new theory on appeal because “USA contended

that below-cost pricing was an available predatory pricing

theory but expressly chose not to rely upon it” in the lower

court. Id. at 1284.

Analogizing to Richfield, the State argues that because

Walker’s complaint did not mention the warding ritual and

discussed only general interference with his religion, Walker

abandoned the ritual argument. We reject this analogy.

Richfield and its progeny concerned situations in which a

litigant deliberately declined to pursue an argument by taking

10 WALKER V. BEARD

a position that conceded the argument or removed it from the

case. See Ramirez, 560 F.3d at 1026; Montero-Martinez v.

Ashcroft, 277 F.3d 1137, 1145 n.9 (9th Cir. 2002); McMath,

206 F.3d at 826. Here, Walker’s original complaint did not

mention the ritual, but it also did not allege a set of facts at

odds with it. Rather, the complaint argued that integrated

celling would “violate [Walker’s] religious beliefs and

practices.” This language suggests that when he filed his

complaint, Walker understood his claim as alleging a

spectrum of interferences with his religion, including

interference with ritual practice. Walker’s subsequent focus

on the warding ritual was not a change of theory, but rather

an elaboration of his initial argument. Accordingly, Walker

did not “choose a position” removing the warding ritual

argument from the case or conceding it. Id.

The State next contends that Walker’s complaint does not

make out factual allegations sufficient to support his

preferred legal theory on appeal. The basis of the State’s

argument is that Walker’s complaint does not actually discuss

the warding ritual. According to the State, we must reject

Walker’s claim and require him file a new complaint that

articulates how integrated celling interferes with the ritual.

In general, we “construe liberally motion papers and

pleadings filed by pro se inmates . . . .” Thomas v. Ponder,

611 F.3d 1144, 1150 (9th Cir. 2010). “[I]t is sufficient that

the complaint, alone or supplemented by any subsequent

filings before summary judgment, provide the defendant fair

notice” of the provision under which relief is sought. Alvarez

v. Hill, 518 F.3d 1152, 1159 (9th Cir. 2008). We expect that

“[r]esponsive pleadings . . . may be necessary for a pro se

plaintiff to clarify his legal theories.” Id. at 1158 (quoting

WALKER V. BEARD 11

Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989))

(emendations in original) (internal quotation marks omitted).

Given this liberal standard, we reject the State’s

argument. Although Walker’s complaint did not mention the

warding ritual, it specified the general theory and nucleus of

facts under which he sought relief, which was enough to give

the State fair notice. See Alvarez, 518 F.3d at 1159.

Walker’s objection to the F&R, and now his appellate brief,

subsequently refined and clarified that broad initial claim. Cf.

id. at 1158. Walker’s objection to the F&R, which explains

the warding ritual and its importance to the Odinist religion,

is now properly part of the record. See 28 U.S.C. § 636(b)(1).

Moreover, the State has not asserted that it suffered any

prejudice from Walker’s failure to include all of the relevant

facts in his initial filing. We thus see no reason to require

Walker to institute a new action.5

V.

We now reach to the merits of Walker’s challenge:

whether his classification as racially eligible under the

Housing Policy violates RLUIPA. RLUIPA provides that

“[n]o government shall impose a substantial burden on the

religious exercise of a person residing in or confined to an

institution . . . even if the burden results from a rule of

general applicability,” unless the government demonstrates

the burden is “in furtherance of a compelling government

interest” and “is the least restrictive means of furthering that

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

Enacted after the Supreme Court held unconstitutional the

5

Relatedly, we discuss in Part VII, below, whether Walker should have

been granted leave to amend.

12 WALKER V. BEARD

Religious Freedom and Restoration Act (“RFRA”), as applied

to the states, in City of Boerne v. Flores, 521 U.S. 507 (1997),

RLUIPA essentially reinstitutes the demanding RFRA

standard of review for intrusions on religious liberty in the

limited contexts of prisoners and federal land. See Shakur v.

Schriro, 514 F.3d 878, 888 (9th Cir. 2008).

To state a claim under RLUIPA, a prisoner must show

that: (1) he takes part in a “religious exercise,” and (2) the

State’s actions have substantially burdened that exercise. See

id. at 888–89. If the prisoner satisfies those elements, then

the State must prove its actions were the least restrictive

means of furthering a compelling governmental interest.

Warsoldier v. Woodford, 418 F.3d 989, 995 (9th Cir. 2005).

We address these elements seriatim.

A.

We first consider whether the warding ritual is a valid

religious exercise. RLUIPA defines a religious exercise to

include “any exercise of religion, whether or not compelled

by, or central to, a system of religious belief.” 42 U.S.C.

§ 2000cc-5(7)(A). The definition is intentionally broad. See

Greene v. Solano Cnty. Jail, 513 F.3d 982, 986 (9th Cir.

2008). It covers “not only belief and profession but the

performance of . . . physical acts [such as] assembling with

others for a worship service [or] participating in sacramental

use of bread and wine . . . .” Cutter v. Wilkinson, 544 U.S.

709, 720 (2005) (quoting Emp’t Div., Dep’t of Human Res. of

Or. v. Smith, 494 U.S 872, 877 (1990) (emendations in

original) (internal quotation marks omitted)).

The warding ritual plainly meets this standard. As a

physical act intended to bring about communication with a

WALKER V. BEARD 13

deity, the warding ritual is a prototypical religious exercise.

See Jaffree v. Wallace, 705 F.2d 1526, 1534 (11th Cir. 1983)

(quoting Karen B. v. Treen, 653 F.2d 897, 901 (5th Cir. 1981)

(defining prayer as a “quintessential religious practice”)).

Although Odinism is not a mainstream faith, RLUIPA does

not, and constitutionally could not, pick favorites among

religions. See Lindell v. McCallum, 352 F.3d 1107, 1108,

1110 (7th Cir. 2003) (concluding that a follower of Odinism

had stated a claim under RLUIPA). We conclude that the

warding ritual constitutes a religious exercise under RLUIPA.

B.

The next question is whether the State’s classification of

Walker as racially eligible under the Housing Policy

substantially burdened his practice of Odinism. To constitute

a substantial burden, a limitation of religious practice “must

impose a significantly great restriction or onus upon such

exercise.” San Jose Christian Coll. v. City of Morgan Hill,

360 F.3d 1024, 1034 (9th Cir. 2004). A substantial burden

need not actually force a litigant to change his practices; a

violation may occur “where the state . . . denies [an important

benefit] because of conduct mandated by religious belief,

thereby putting substantial pressure on an adherent to modify

his behavior and to violate his beliefs.” Warsoldier, 418 F.3d

at 995 (quoting Thomas v. Review Bd. of the Ind. Emp’t Sec.

Div., 450 U.S. 707, 717–18 (1981) (emendations in original)

(internal quotation marks omitted)).

Our holding in Warsoldier is illuminating. In that case,

the prisoner-plaintiff, a Native American, refused to conform

to a prison restriction on hair length on the ground that doing

so would violate his religious beliefs. Id. at 991–92. After he

refused, he was “(1) . . . confined to his cell; (2) had

14 WALKER V. BEARD

additional duty hours imposed on him; (3) [was] reclassified

into a workgroup where inmates do not receive time credits

or as many privileges as others working in a higher

workgroup; (4) lost his phone call privileges; [and] (5) [was]

expelled from print shop and landscaping classes,” among

other punishments. Id. at 996. Rejecting the argument that

the prisoner’s religious practice was not substantially

burdened because he had not been physically forced to cut his

hair, we held that the grooming policy constituted a

significant burden because it put “significant pressure” on

him to conform. Id.

Walker’s asserted burden is closely analogous to the one

at issue in Warsoldier. Like the plaintiff in Warsoldier,

Walker faced a prison regulation impairing his ability to

conform to a religious ritual. See Holt v. Hobbs, 135 S. Ct.

853, 862 (2015) (holding that a threat of “serious disciplinary

action” constituted pressure to conform). Taking Walker at

his word, as we must at this stage, a non-white cellmate

would make it impossible to perform the warding ritual in his

cell. As was the case in Warsoldier, Walker accepted prison

discipline rather than the restriction on his religious practice.

The punishments he received – a rules violation report and

placement in administrative segregation – plainly placed him

under pressure to conform. See Warsoldier, 418 F.3d at 996.6

6

The State argues that preventing Walker from performing the warding

ritual in his cell did not substantially burden his religious exercise because

Walker had alternative means of gaining spiritual fulfillment – namely,

conducting the ritual outside his cell. We reject this argument because the

record does not disclose whether it is possible for Walker to perform the

ritual outside his personal space, and presuming that would be contrary to

our obligation to construe pro se § 1983 claims liberally on a motion to

dismiss. Thomas, 611 F.3d at 1150.

WALKER V. BEARD 15

Thus, Walker has shown that his classification as racially

eligible substantially burdens his religious exercise.

C.

Because Walker has shown that the racially eligible

classification under the Housing Policy substantially burdens

his religious exercise, we must assess whether the State’s

refusal to exempt Walker from the Housing Policy’s

classification scheme was the least restrictive means of

furthering a compelling governmental interest. Our inquiry

here is analogous to the application of strict scrutiny. See

Int’l Church of Foursquare Gospel v. City of San Leandro,

673 F.3d 1059, 1066 (9th Cir. 2011); Centro Familiar

Cristiano Buenas Nuevas v. City of Yuma, 651 F.3d 1163,

1171 (9th Cir. 2011).

At the outset, we note that many possible justifications

might exist for the State’s refusal to exempt Walker from

integrated celling. See, e.g., Cutter, 544 U.S. at 723 n.11

(suggesting that a state could have a compelling interest in

“not facilitating inflammatory racist activity that could

imperil prison security and order”). However, under this

prong of RLUIPA, the State bears the burden of persuasion.

Warsoldier, 418 F.3d at 995. We may not rely on an interest

the State has failed to articulate. See Guru Nanak Sikh Soc’y

of Yuba City v. Cnty. of Sutter, 456 F.3d 978, 981 (9th Cir.

2006); Krislov v. Rednour, 226 F.3d 851, 866 n.7 (7th Cir.

2000). Here, the State has asserted only a single compelling

interest: complying with constitutional restrictions on race-

conscious action. Thus, we evaluate only that purported

interest.

16 WALKER V. BEARD

According to the State, subjecting Walker to the

integrated celling policy and denying him an exemption is

necessary to comply with constitutional restrictions on racial

segregation in prisons. The State points us to Johnson v.

California, 543 U.S. 499 (2005), in which the Supreme Court

considered an equal protection challenge to California’s

previous race-conscious celling policy and concluded that

because the policy included express racial classifications,

strict scrutiny was required.7 Id. at 508–09. The State

contends that exempting Walker from the current policy,

which was developed in response to Johnson, would

undermine the policy’s efficacy and potentially violate the

equal protection rights of non-white inmates.

Compliance with the Constitution can be a compelling

state interest. See Widmar v. Vincent, 454 U.S. 263, 275

(1981) (“We agree that the interest of the [defendant] in

complying with its constitutional obligations may be

characterized as compelling.”).8

Our precedents, however, are less clear on how certain a

constitutional violation must be to justify actions aimed at

avoiding a potential breach. The Supreme Court in Vera

explained that compliance with the Voting Rights Act

7

Rather than make the determination itself whether California’s then-

classification policy passed muster under strict scrutiny, the Court

remanded for the lower courts to make that determination. See id. at 515.

8

Adherence to a sub-constitutional restriction also may be compelling.

See Bush v. Vera, 517 U.S. 952, 977 (1996) (assuming without deciding

that compliance with the Voting Rights Act may be a compelling interest

justifying race-conscious state action); see also KDM ex rel. WJM v.

Reedsport School Dist., 196 F.3d 1046, 1052 (9th Cir. 1999) (concluding

that compliance with a state constitution is a legitimate state interest).

WALKER V. BEARD 17

constitutes a compelling interest where there is a “strong

basis in evidence” that state action is necessary to avoid a

violation. Vera, 517 U.S. at 977; see also Ricci v. DeStefano,

557 U.S. 557, 563 (2009). Most courts to conclude that

compliance with the Constitution is a compelling interest

have not dwelled on the issue. See, e.g., Lamb’s Chapel v.

Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 395

(1993); Child Evangelism Fellowship of Minn. v. Minneapolis

Special Sch. Dist. No. 1, 690 F.3d 996, 1002–03 (8th Cir.

2012).

We need not determine the exact probability of

constitutional harm necessary to give the State a compelling

interest in curative action. Here, the State has shown more

than merely a good faith belief that exempting Walker would

be constitutionally suspect; there is an objectively strong

legal basis for believing that is the case. Were the State to

begin exempting prisoners from race-neutral celling on the

basis of their religious beliefs, its celling system would not be

race-neutral. The question would become, under the strict

scrutiny inquiry mandated by Johnson, whether the State

would have a compelling justification for race-conscious

action. Courts generally accept racial segregation in prisons

only when motivated by concerns about prisoner safety. See

Johnson, 543 U.S. at 514; Ochs v. Thalacker, 90 F.3d 293,

296–97 (8th Cir. 1996); Harris v. Greer, 750 F.2d 617, 619

(7th Cir. 1984). Although we make no conclusive

determination as to the constitutional effect of racially-based

exemptions from the Housing Policy, the State has shown a

sufficient likelihood of liability to give it a compelling

interest in refusing Walker’s request for an exemption.

Because we hold that the State has a compelling interest

in complying with Johnson, we must also conclude that

18 WALKER V. BEARD

denying Walker’s requested exemption was the least

restrictive means of furthering a compelling state interest.

The gravamen of Walker’s complaint is that the State’s

failure to offer him an exemption from race-neutral celling

constitutes a violation of RLUIPA. But granting that

exemption would be race-conscious action implicating the

Equal Protection Clause, so the only way to avert potential

constitutional liability was to deny the requested exemption.

Anything else would have introduced a non-race-neutral

element into the celling policy, thereby raising the specter of

a credible equal protection claim brought by non-white

prisoners. There is thus an “exact fit” between the potential

harm and the challenged state action. Walker v. City of

Mesquite, 169 F.3d 973, 982 (5th Cir. 1999).

Walker argues that the State fails the least restrictive

means test because it did not “demonstrate[] that it [had]

actually considered and rejected the efficacy of less

restrictive measures before adopting the challenged practice.”

Warsoldier, 418 F.3d at 999. Although the government bears

the burden of proof to show its practice is the least-restrictive

means, it is under no obligation to dream up alternatives that

the plaintiff himself has not proposed. See United States v.

Wilgus, 638 F.3d 1274, 1289 (10th Cir. 2011) (holding that,

in a least restrictive means inquiry, “the government’s burden

is two-fold: it must support its choice of regulation, and it

must refute the alternative schemes offered by the challenger,

but it must do both through the evidence presented in the

record” (emphasis added)).

Here, Walker has consistently demanded only one form

of relief: an exemption from the celling policy. As observed

earlier, this relief would require the State to engage in

constitutionally suspect racial divisions of prisoners. Of

WALKER V. BEARD 19

course, it is possible to imagine how the State might have

maintained its race-neutral celling policy and offered an

accommodation to Walker – for example, by giving him time

outside his cell to perform the warding ritual by himself. But

Walker never asked for such relief, nor has he given any

indication that he would accept anything short of being

assigned a white cellmate. The State has no additional

obligation under RLUIPA independently to research and

propose every possible way of mitigating that practice’s

negative effects. See Vera, 517 U.S. at 977 (“state actors

should not be ‘trapped between competing hazards of

liability’ by the imposition of unattainable requirements

under the rubric of strict scrutiny”) (quoting Wygant v.

Jackson Bd. of Ed., 476 U.S. 267, 291 (1986) (O’Connor, J.,

concurring in part and concurring in the judgment)). If

Walker wants time outside his cell to perform the ritual, he

needs to ask for it. If the State were to refuse him, that might

be the basis for a separate RLUIPA challenge, but it does not

bear on the challenge here, which is to the application of the

Housing Policy to him without an exemption.

We conclude that the State’s actions were the least

restrictive means of furthering a compelling interest. Walker

has not stated a claim under RLUIPA.

VI.

Walker also contends that the state’s racially eligible

classification infringes on his rights under the Free Exercise

Clause of the First Amendment, applicable to the states

through the Fourteenth Amendment. In general, a plaintiff

will have stated a free exercise claim if: (1) “the claimant’s

proffered belief [is] sincerely held”; and (2) “the claim [is]

rooted in religious belief, not in purely secular philosophical

20 WALKER V. BEARD

concerns.” Malik v. Brown, 16 F.3d 330, 333 (9th Cir. 1994)

(internal quotation marks and citation omitted). Although

prisoners enjoy First Amendment protection, their rights

under the Free Exercise Clause are limited by “institutional

objectives and by the loss of freedom concomitant with

incarceration.” Hartmann v. Cal. Dep’t of Corr. & Rehab.,

707 F.3d 1114, 1122 (9th Cir. 2013). To that end, a

prisoner’s Free Exercise Clause claim will fail if the State

shows that the challenged action is “reasonably related to

legitimate penological interests.” Turner v. Safley, 482 U.S.

78, 89 (1987); see Ashelman v. Wawrzaszek, 111 F.3d 674,

677–78 (9th Cir. 2007).

Walker easily satisfies the threshold requirements for a

Free Exercise Clause claim because he has alleged a sincerely

held religious belief, so his Free Exercise Clause challenge

thus turns on whether the State’s interest in compliance with

the Equal Protection Clause is reasonably related to

legitimate penological interests.

Potential legal liability may constitute a legitimate

penological interest under Turner. See Acorn Inv., Inc. v.

City of Seattle, 887 F.2d 219, 226 (9th Cir. 1989) (indicating

that compliance with an ordinance constitutes a “legitimate

interest”); Victoria W. v. Larpenter, 369 F.3d 475, 486 (5th

Cir. 2004) (noting that the threat of legal liability stemming

from prison escapes gave the state a legitimate penological

interest in restricting prisoner access to off-site medical care);

cf. Goodwin v. Turner, 908 F.2d 1395, 1399 n.7 (8th Cir.

1990) (holding that the state did not have a legitimate

penological interest stemming from potential legal liability,

in part, because the grounds for liability were “far-fetched”).

As we discuss in Part V.C, there is a reasonable likelihood

that exempting Walker from integrated celling would expose

WALKER V. BEARD 21

the State to liability in an equal protection suit brought by

other inmates. Liability is not “far fetched.” Goodwin,

908 F.3d at 1399 n.7.

The traditional factors we use to weigh prisoners’ Free

Exercise Clause claims also weigh against Walker. In

Turner, the Supreme Court articulated four factors that bear

on whether a legitimate penological interest exists:

(1) whether there is a valid, rational connection between a

state interest and the prison regulation; (2) whether prisoners

have an alternative method of engaging in religious practice;

(3) the impact accommodation of the asserted constitutional

right would have on guards and other inmates; and (4) the

absence of ready alternatives to the challenged regulation.

Turner, 482 U.S. at 89–90.

Three of these factors favor the State. First, given the real

threat of liability and the high-profile nature of California’s

celling procedures post-Johnson, the connection between the

state’s interest in avoiding liability and denying Walker’s

requested relief is substantial. Second, exempting Odinists

such as Walker from the integrated celling policy but not

providing similar exemptions to inmates of other races and

religions might exacerbate tensions within California prisons

and endanger guards. Finally, as discussed in Part V.C, there

are no alternatives to denying Walker’s request that would

mitigate the liability concern. We hold that Walker has failed

to state a claim under the First Amendment.

VII.

Last, Walker contends that he should be granted leave to

amend his complaint. We review a district court’s denial of

leave to amend for abuse of discretion. Lopez, 203 F.3d at

22 WALKER V. BEARD

1130. The district court’s discretion on whether to grant

leave, however, “must be guided by the underlying purpose

of Rule 15 to facilitate decision on the merits, rather than on

the pleadings or technicalities.” United States v. Webb,

655 F.2d 977, 979 (9th Cir. 1981). A pro se litigant is

entitled to an opportunity to amend “[u]nless it is absolutely

clear that no amendment can cure the defect.” Lucas v. Dep’t

of Corr., 66 F.3d 245, 248 (9th Cir. 1995). Here, the district

court did not abuse its discretion in denying leave to amend

because no amendment would cure the deficiency in Walker’s

complaint, given his insistence on a wholesale exemption

from the Housing Policy. The threat of equal protection

liability that requires us to reject Walker’s RLUIPA claim is

rooted in legal precedent. No facts that Walker could adduce

would mitigate the concern. Although Walker might have a

colorable RLUIPA claim if the State refused to accommodate

the warding ritual by giving him time alone and a place to

perform it, that claim would be fundamentally different from

the one here, i.e., it is not tied to the Housing Policy.

VIII.

Walker successfully alleged a burden on his religious

exercise under RLUIPA and the First Amendment, but the

State has a compelling interest in avoiding unconstitutional

racial discrimination, and subjecting Walker to integrated

celling is the only possible means of furthering that interest.

Accordingly, we conclude that Walker has failed to state

claims under RLUIPA and the First Amendment; we further

conclude that the district court did not abuse its discretion in

denying leave to amend.

WALKER V. BEARD 23

The judgment of the district court is

AFFIRMED.