Clarence Jones v. Max Williams

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CLARENCE EUGENE JONES, No. 12-35131

Plaintiff-Appellant,

D.C. No.

v. 6:09-cv-00029-

TC

MAX WILLIAMS, in his official and

individual capacity as Corrections

Director for the Oregon Department OPINION

of Corrections; COLLETTE PETERS, in

her official capacity and individual

capacity as Inspector General of

Oregon Department of Corrections;

TIM O’CONNORS, in his official

capacity and individual capacity as

Administrator of Religious Services;

CHAPLAIN HOLBROOK, in his official

and individual capacity as Chaplain

of the Oregon State Penitentiary;

KEITH DAVIS, in his official and

individual capacity as Food Service

Manager of the Oregon State

Penitentiary; D. GILLIES, in his

official and individual capacity as

Assistant Food Manager of the

Oregon State Penitentiary; R.

RIDDERBUSCH, in his official and

individual capacity as Assistant Food

Manager of the Oregon State

Penitentiary; LARRY KUTNAR, in his

2 JONES V. WILLIAMS

official and individual capacity as

Lieutenant and Food Service

Coordinator; G. MCBRIDE, in his

official and individual capacity as

Food Service Coordinator of the

Oregon State Penitentiary; R. NOPP,

in his official and individual capacity

as Food Service Coordinator at the

Oregon State Penitentiary; AARON

BALES, in his official and individual

capacity as Grievance Coordinator of

the Oregon State Penitentiary;

MICHAEL DODSON, in his official

and individual capacity as

Discrimination Complaint Officer at

the Oregon State Penitentiary;

BRIAN BELLEQUE, in his official and

individual capacity as

Superintendent of the Oregon State

Penitentiary; LAURIE MINCHER, in

her official and individual capacity

as Food Service Coordinator at the

Oregon State Penitentiary; KEITH

BALLER, in his individual capacity as

an inmate assigned as a cook at the

Oregon State Penitentiary; M.

WHITNEY DODSON, in his official

and individual capacity as supervisor

of Grievance Coordinator at the

Oregon State Penitentiary,

Defendants-Appellees.

JONES V. WILLIAMS 3

Appeal from the United States District Court

for the District of Oregon

Ann Aiken, Chief District Judge, Presiding

Submitted October 6, 2014*

Portland, Oregon

Filed June 26, 2015

Before: Alex Kozinski, Ferdinand F. Fernandez,

and Andre M. Davis,** Circuit Judges.

Opinion by Judge Davis

SUMMARY***

Prisoner Civil Rights

The panel affirmed in part and reversed in part the district

court’s summary judgment and remanded in an action

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

and Institutionalized Persons Act by a Muslim inmate whose

*

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

**

The Honorable Andre M. Davis, Senior Circuit Judge for the United

States Court of Appeals for the Fourth Circuit, sitting by designation.

***

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

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

4 JONES V. WILLIAMS

religious beliefs forbid him from consuming or handling

pork.

Affirming the district court’s’ summary judgment in favor

of appellees on the claims brought under the Religious Land

Use and Institutionalized Persons Act, the panel held that

under Sossamon v. Texas, 131 S. Ct. 1651, 1658–59 (2011),

and Wood v. Yordy, 753 F.3d 899, 903–04 (9th Cir. 2014),

appellant could not obtain the monetary relief he sought. The

panel further determined that the claims for injunctive relief

were moot because appellant had been released.

Addressing appellant’s three free exercise claims brought

under § 1983, the panel first affirmed the district court’s

summary judgment in favor of appellees on the claim arising

from the events of May 31, 2007. The panel held that

appellant’s evidence was not sufficient to raise an issue of

fact as to whether a tamale pie contained pork or whether the

prison’s food service coordinator ordered cooks to add pork

to the dish. The panel reversed the grant of summary

judgment on a § 1983 claim arising from the events of July 8,

2007, and held that defendants were not entitled to qualified

immunity from appellant’s claim that he was ordered to cook

pork loins as part of his job duties in the kitchen. The panel

affirmed the district court’s summary judgment in favor of

appellees on appellant’s claim challenging the prison’s

method of cleaning grills on which meats served to inmates

are cooked.

Addressing appellant’s First Amendment retaliation

claim, the panel held that there were genuine issues as to

whether a food services manager retaliated against appellant

for his complaints of discrimination and his threat to sue.

JONES V. WILLIAMS 5

The panel affirmed the district court’s summary judgment

in favor of prison officials on appellant’s equal protection

claim arising from an altercation. The panel determined that

appellant pointed to no evidence that his placement in

disciplinary segregation and subsequent proceedings against

him were motivated by the fact that he is African-American.

COUNSEL

Clarence Eugene Jones, Portland, Oregon, pro se.

Denise Gale Fjordbeck, Assistant Attorney General, Oregon

Department of Justice, Salem, Oregon, for Defendants-

Appellees.

OPINION

DAVIS, Circuit Judge:

Clarence Jones, a former inmate of the Oregon State

Penitentiary (“the Penitentiary”), appeals from the district

court’s grant of summary judgment in favor of Appellees,

fifteen employees of the Oregon Department of Corrections

(“the Department”),1 on several civil rights claims brought

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

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

1

An inmate, Keith Baller, is also named as a defendant-appellee.

Although Baller did not move for summary judgment and the district court

did not specifically address this claim, the district court entered judgment

in favor of all defendants. Jones does not challenge the dismissal of this

claim on appeal, and therefore any error is waived.

6 JONES V. WILLIAMS

§§ 2000cc–2000cc-5. We affirm in part, vacate in part, and

remand to the district court for further proceedings.

I.

A.

Jones is a Muslim and a member of the Nation of Islam,

a religious organization. His religious beliefs forbid him

from consuming or handling pork.

Jones’s claims arise from the following events, which we

recount in chronological order. From October 2006 to

October 2008, while in custody of the Department, Jones was

assigned to work in the kitchen at the Penitentiary, initially as

a server on the food service line. Shortly after his assignment

to the food service line, Jones complained to his supervisors

about being required to serve pork food items and requested

to be reassigned from the serving line to a kitchen-entry

position, which would allow him to avoid handling pork.

According to Jones, he and other black inmates were required

to work at least thirty days on the line before they could work

in a kitchen-entry position, whereas certain white inmates

were not subject to a thirty-day waiting period. Jones alleges

that in November 2006, Appellee Keith Davis, Food Services

Manager at the Penitentiary, told Jones that the prison would

take disciplinary action against him if he refused orders to

serve or handle pork. On January 7, 2007, Jones filed an

administrative discrimination complaint describing Davis’s

threats of disciplinary action and citing case law in support of

his asserted right to abstain from handling pork.

On January 8, 2007, Jones approached Appellee Richard

Ridderbusch, an Assistant Food Services Manager, to discuss

JONES V. WILLIAMS 7

his requests for reassignment. Jones told Ridderbusch that he

would file a lawsuit in federal court against Ridderbusch for

discrimination. The parties dispute the circumstances of the

interaction between Jones and Ridderbusch. Jones declares

that there were between 30 and 40 inmates working in the

kitchen at the time but that none were in the immediate area

or could hear the conversation. Ridderbusch declares that 40

to 50 inmates were working in the immediate area.

Ridderbusch also declares that Jones accused him of being a

racist and acted in a threatening and inflammatory manner,

which resulted in “a serious risk that other inmates would

become riled creating a security concern.” Ridderbusch

subsequently issued a daily performance failure report.2 The

report stated as reasons for the assessment “attitude” and that

Jones “accused [Ridderbusch] of discriminating in hiring,

threatened to sue in fed[eral] court, [and] was not reciptive

[sic] to earning his way.” The daily performance failure

resulted in Jones not receiving points for that day toward

awards of program incentives.

Jones was taken off the food service line and reassigned

as a cook on February 7, 2007.

On March 9, 2007, Appellee Brian Belleque,

Superintendent of the Penitentiary, responded in writing to

Jones’s January 7, 2007 administrative discrimination

complaint. In the response memorandum, Belleque stated

2

The Department administers a Performance Recognition and Award

System of monetary awards and other incentives to recognize and

encourage good institutional conduct. Inmates with work assignments in

the program are either granted or denied points based on a daily

assessment of their performance quality and effort, interpersonal

communications, and other factors.

8 JONES V. WILLIAMS

that there was “no current policy” governing the issue raised

by Jones but that “there is no need to require Muslim inmates

to handle pork.” The memorandum continued: “As a

Muslim, you should notify your supervisor of your religion

and that you are not allowed to handle pork. Every effort will

be made to provide a work program that does not require you

to handle pork.”

When serving food items containing pork, the prison had

a practice of displaying a sign to indicate the items’ pork

contents. On May 31, 2007, Jones obtained a tamale pie for

lunch. There was no sign displayed indicating that the item

contained pork. Jones ate a few bites of the tamale pie before

Raymond Mayes, another inmate, told Jones that the item

contained pork. Mayes states in his affidavit that he told

Jones “that the tamale pie contained pork because [Appellee

Richard Nopp, a Food Service Coordinator working in the

kitchen that day,] had pork mixed in with the beef for the

making of the tamale pie for lunch . . . .” Jones declares that,

on June 2, 2007, Tom Peacock, a cook, told Jones that Nopp

had ordered Peacock to add pork to the meat in the tamale pie

and that Peacock added pork as directed while Nopp watched.

Nopp denies ordering cooks to add pork to the meat in the

tamale pie and declares that no pork was added to the tamale

pie.

On July 8, 2007, Appellee G. McBride, a Food Service

Coordinator, ordered Jones to fry pork loins. Jones alleges

that he told McBride that he was a Muslim and that cooking

pork was against his religious beliefs, but that McBride

threatened to issue a daily performance failure or possibly a

misconduct report if Jones refused the order. Jones declares

that he complained to Appellee Larry Kutnar, McBride’s

supervisor, and, after speaking with McBride and

JONES V. WILLIAMS 9

Ridderbusch, Kutnar told Jones that “those up high” had

ordered that Jones prepare the pork loins. Jones prepared the

pork loins as ordered, which required him to dip the loins into

a flour mixture, cook them on grills, and then place them in

pans.

On July 10, 2007, with Davis present, Ridderbusch told

Jones that he had been ordered to prepare pork loins because

the last memorandum Ridderbusch received said it was

permissible for Jones to prepare pork. Ridderbusch stated,

however, that he discovered a new memorandum issued in

January 2007 stating that Muslim inmates should not be

ordered to serve or prepare pork.3 Ridderbusch claims that he

was not aware of the new memorandum until after Jones was

ordered to cook pork on July 8, 2007. The same day, Jones

complained to Davis and Ridderbusch that the grills in the

kitchen were contaminated with pork grease by Islamic

standards, and, according to Jones, Davis acknowledged the

contamination.

On October 29, 2008, Jones and Glen Leonard, a white

inmate, got into an argument in the presence of Appellee

Laurie Mincher, a Food Service Coordinator. At some point,

Leonard walked up close to Jones, and Jones placed his hand

on Leonard’s chest and pushed him backward. Mincher

intervened, took Jones to disciplinary segregation, and issued

a misconduct report describing the incident and charging

Jones with “Assault 3,” a violation of prison rules. Colleen

Clemente, a Hearings Officer at the Penitentiary,

3

The March 9, 2007 memorandum responding to Jones’s January 7,

2007 administrative discrimination complaint states that copies of the

memorandum were to be sent to Davis and others, but the list does not

include Ridderbusch, Kutnar, or McBride.

10 JONES V. WILLIAMS

subsequently convened disciplinary hearings on November 5,

and December 1, 2008. Witness testimony and an

investigation report were presented at the hearings. Clemente

found that Jones committed a unilateral attack on another

inmate in violation of prison rules and recommended

disciplinary action against Jones.

B.

Jones filed suit in the United States District Court for the

District of Oregon against Appellees in their individual and

official capacities. Jones’s complaint alleges that Appellees

violated free speech and free exercise rights guaranteed by

the First and Fourteenth Amendments, and equal protection

rights guaranteed by the Fourteenth Amendment. Jones seeks

monetary damages and injunctive relief under § 1983 and

RLUIPA. Appellees moved for summary judgment. Jones

opposed the motion in a Response and Sur-Response, to

which Appellees replied. The district court adopted the

findings and recommendation of the magistrate judge and

granted summary judgment in favor of Appellees on all of

Jones’s claims. Jones appeals.

II.

We review the district court’s grant of summary judgment

de novo. Barnett v. Centoni, 31 F.3d 813, 815 (9th Cir. 1994)

(per curiam). “Summary judgment is only appropriate if the

evidence, read in the light most favorable to the nonmoving

party, demonstrates that there is no genuine issue of material

fact, and that the moving party is entitled to judgment as a

matter of law.” Bruce v. Ylst, 351 F.3d 1283, 1287 (9th Cir.

2003) (citing Fed. R. Civ. P. 56(c)). “In order to carry its

burden of production, the moving party must either produce

JONES V. WILLIAMS 11

evidence negating an essential element of the nonmoving

party’s claim or defense or show that the nonmoving party

does not have enough evidence of an essential element to

carry its ultimate burden of persuasion at trial.” Nissan Fire

& Marine Ins. Co. v. Fritz Cos., Inc., 210 F.3d 1099, 1102

(9th Cir. 2000).

A.

Jones cannot obtain the monetary and injunctive relief he

seeks under RLUIPA. The statute provides that a person

asserting a violation of the statute “as a claim or defense in a

judicial proceeding” may “obtain appropriate relief against a

government.” 42 U.S.C. § 2000cc-2(a). In Sossamon v.

Texas, the Supreme Court held that RLUIPA’s use of the

phrase “appropriate relief” is not an unequivocal expression

of state consent to private suits for monetary damages and

therefore does not operate to effect a waiver of the states’

sovereign immunity from such suits. 131 S. Ct. 1651,

1658–59 (2011); see also Oklevueha Native Am. Church of

Haw. v. Holder, 676 F.3d 829, 840–41 (9th Cir. 2012).

Additionally, as we recognized in Wood v. Yordy, RLUIPA

does not authorize suits for damages against state officials in

their individual capacities because individual state officials

are not recipients of federal funding and nothing in the statute

suggests any congressional intent to hold them individually

liable. 753 F.3d 899, 903–04 (9th Cir. 2014).

Jones’s RLUIPA claims for injunctive relief are moot

because Jones has been released from custody.4 Federal

4

We take judicial notice of the fact that Jones was released during the

pendency of this appeal. See Harris v. Cnty. of Orange, 682 F.3d 1126,

1132 (9th Cir. 2012).

12 JONES V. WILLIAMS

courts lack jurisdiction over claims that have been rendered

moot because “the issues presented are no longer live” or

because the parties no longer possess “a legally cognizable

interest in the outcome.” Alvarez v. Hill, 667 F.3d 1061,

1064 (9th Cir. 2012) (quoting U.S. Parole Comm’n v.

Geraghty, 445 U.S. 388, 396 (1980)). “Once an inmate is

removed from the environment in which he is subjected to the

challenged policy or practice, absent a claim for damages, he

no longer has a legally cognizable interest in a judicial

decision on the merits of his claim.” Alvarez, 667 F.3d at

1064 (quoting Incumaa v. Ozmint, 507 F.3d 281, 287 (4th Cir.

2007)). Jones has been removed from the environment in

which he was subjected to the alleged RLUIPA violations.

The record discloses no evidence of continuing effects of the

alleged violations on Jones and no reasonable expectation that

Appellees could violate Jones’s rights in the future. See Cnty.

of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); Lindquist

v. Idaho State Bd. of Corr., 776 F.2d 851, 854 (9th Cir. 1985).

In this situation, any injunctive relief ordered in Jones’ favor

“would have no practical impact on [his] rights and would not

redress in any way the injury he originally asserted.”

Incumaa, 507 F.3d at 287.

Accordingly, we affirm the district court’s grant of

summary judgment in favor of Appellees on all of Jones’s

RLUIPA claims.

B.

We now turn to Jones’s three § 1983 free exercise claims.

A person asserting a free exercise claim must show that

the government action in question substantially burdens the

person’s practice of her religion. Graham v. C.I.R., 822 F.2d

JONES V. WILLIAMS 13

844, 851 (9th Cir. 1987), aff’d sub nom. Hernandez v. C.I.R.,

490 U.S. 680, 699 (1989). “A substantial burden . . . place[s]

more than an inconvenience on religious exercise; it 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.”

Ohno v. Yasuma, 723 F.3d 984, 1011 (9th Cir. 2013) (quoting

Guru Nanak Sikh Soc’y of Yuba City v. Cnty. of Sutter,

456 F.3d 978, 988 (9th Cir. 2006) (internal quotation marks

and alterations omitted)).

“The right to exercise religious practices and beliefs does

not terminate at the prison door[,]” McElyea v. Babbitt,

833 F.2d 196, 197 (9th Cir. 1987) (citing O’Lone v. Estate of

Shabazz, 482 U.S. 342, 348 (1987)), but a prisoner’s right to

free exercise of religion “is necessarily limited by the fact of

incarceration,” Ward v. Walsh, 1 F.3d 873, 876 (9th Cir.

1993) (citing O’Lone, 482 U.S. at 348). “To ensure that

courts afford appropriate deference to prison officials,” the

Supreme Court has directed that alleged infringements of

prisoners’ free exercise rights be “judged under a

‘reasonableness’ test less restrictive than that ordinarily

applied to alleged infringements of fundamental

constitutional rights.” O’Lone, 482 U.S. at 349. The

challenged conduct “is valid if it is reasonably related to

legitimate penological interests.” Id. (quoting Turner v.

Safley, 482 U.S. 78, 89 (1987)).5

5

The factors to be considered in assessing the reasonableness of

practices that burden prisoners’ constitutional rights are well established:

(1) whether there is a “‘valid, rational connection’” between the conduct

of prison officials and “the legitimate governmental interest put forward

to justify it”; (2) “whether there are ‘alternative means of exercising the

right that remain open to prison inmates’”; (3) “the impact accommodation

of the asserted constitutional right will have on guards and other inmates,

14 JONES V. WILLIAMS

Jones asserts three § 1983 free exercise claims, all rooted

in his religious beliefs against consuming and handling pork.

1.

The first claim arises from the events of May 31, 2007.

Jones alleges that he was served and ate part of a tamale pie

without having been notified of its pork contents. Nopp

declares, however, that he did not order cooks to add pork to

the tamale pie and that the tamale pie did not contain pork.

Jones’s evidence is not sufficient to raise an issue of fact

as to whether the tamale pie contained pork and or whether

Nopp ordered cooks to add pork to the dish. The unsworn

statements of the inmate cook who told Jones that Nopp had

directed the cook to mix pork in with the meat used in the

tamale pie are hearsay, see Fed. R. Evid. 801(c), and cannot

properly be considered in opposition to a summary judgment

motion. See Fed. R. Civ. P. 56(c)(4); Block v. City of Los

Angeles, 253 F.3d 410, 419 (9th Cir. 2001) (holding that it

was an abuse of discretion for the district court, at the

summary judgment stage, to consider information from an

affidavit based on inadmissible hearsay rather than the

affiant’s personal knowledge). Raymond Mayes, another

inmate kitchen worker, states in an affidavit that he told Jones

and Appellee Michael Dodson that Nopp had pork mixed in

with the tamale pie meat, but Mayes’s statements to Jones

and Dodson were unsworn. References to such unsworn

statements are insufficient to generate a genuine dispute of

fact. Therefore, we affirm summary judgment in favor of

and on the allocation of prison resources generally”; and (4) whether there

are “ready alternatives” to the prison’s practice. Ward, 1 F.3d at 876

(quoting Turner, 482 U.S. at 89–90).

JONES V. WILLIAMS 15

Appellees on the § 1983 claim arising from the events of May

31, 2007.

2.

Jones’s second § 1983 free exercise claim arises from the

events of July 8, 2007. Jones alleges that he was ordered to

cook pork loins as part of his job duties in the kitchen at the

Penitentiary. The district court held that Appellees are

entitled to qualified immunity from this claim. We disagree.

The doctrine of qualified immunity “seeks to ensure that

defendants reasonably can anticipate when their conduct may

give rise to liability . . . by attaching liability only if the

contours of the right violated are sufficiently clear that a

reasonable official would understand that what he is doing

violates that right[.]” United States v. Lanier, 520 U.S. 259,

270 (1997) (internal quotation marks, alterations, and

citations omitted). “Government officials are not entitled to

qualified immunity if (1) the facts ‘[t]aken in the light most

favorable to the party asserting the injury . . . show [that] the

[defendants’] conduct violated a constitutional right’ and

(2) the right was clearly established at the time of the alleged

violation.” Sandoval v. Las Vegas Metro. Police Dep’t,

756 F.3d 1154, 1160 (9th Cir. 2014) (quoting Saucier v. Katz,

533 U.S. 194, 201 (2001)).

It was well established in 2007, and remains so today, that

government action places a substantial burden on an

individual’s right to free exercise of religion when it tends to

coerce the individual to forego her sincerely held religious

beliefs or to engage in conduct that violates those beliefs. See

Sherbert v. Verner, 374 U.S. 398, 404, 406 (1963); Thomas

v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 717–18

16 JONES V. WILLIAMS

(1981); Guru Nanak Sikh Soc’y, 456 F.3d at 988.

“[R]equiring a believer to defile himself by doing something

that is completely forbidden by his religion is different from

(and more serious than) curtailing various ways of expressing

beliefs for which alternatives are available.” Ashelman v.

Wawrzaszek, 111 F.3d 674, 677 (9th Cir. 1997). In

Ashelman, for example, we held that a Jewish inmate had the

right to a kosher diet and disposable utensils. Id. at 678. We

explained that, in the case of dietary restrictions, the inmate

had no alternative means of exercising the right, whereas

there were “obvious, easy alternatives” that the prison could

implement. Id. (internal quotation marks omitted). “The

existence of reasonable alternatives decisively tip[ped] the

balance in favor of [the inmate’s] free exercise right.” Id.;

see also McElyea, 833 F.2d at 198.

These constitutional principles apply with “obvious

clarity” here and provided a “fair and clear warning” that

Jones had a right to abstain from conduct directly violative of

his religious beliefs. Lanier, 520 U.S. at 271. Ordering a

Muslim prisoner to handle pork requires him “to defile

himself by doing something that is completely forbidden by

his religion.” Ashelman, 111 F.3d at 677. And there are no

alternative means of allowing Jones to exercise his right to

avoid handling pork besides not ordering him to handle pork.

Accommodating Jones’s right to avoid handling pork isn’t

less burdensome than the religious-based accommodations,

such as providing Kosher diets and disposable utensils, that

we have held for many years are constitutionally required.

Indeed, several months before Jones was ordered to handle

pork, Superintendent Belleque informed Jones that “there is

no need to require Muslim inmates to handle pork.”

Belleque’s memo strongly indicates that assigning Jones a

task that did not require him to violate his religious beliefs

JONES V. WILLIAMS 17

was a ready option and would not significantly affect prison

personnel, other inmates, or the general allocation of prison

resources.

“We may also look to the law of other circuits to

determine if a principle is clearly established.” Tamas v.

Dep’t of Soc. & Health Servs., 630 F.3d 833, 846 (9th Cir.

2010). Between 1974 and 2006, four other circuits held that

prisoners have the free exercise right to avoid handling

certain foods as part of their work duties. See Williams v.

Bitner, 455 F.3d 186, 193–94 (3d Cir. 2006) (finding this

right clearly established); Hayes v. Long, 72 F.3d 70, 74 (8th

Cir. 1995) (same); Kenner v. Phelps, 605 F.2d 850, 851 (5th

Cir. 1979); Chapman v. Kleindienst, 507 F.2d 1246, 1251–52

(7th Cir. 1974).

Appellees nevertheless argue that they are entitled to

qualified immunity because ordering Jones to cook pork was

“in furtherance of what the ordering officers understood the

prison’s policy to be at the time.” To be sure, in certain

cases, the “information possessed by the officer” may be a

factor in determining whether an officer is entitled to

qualified immunity. See Inouye v. Kemna, 504 F.3d 705, 712

(9th Cir. 2007) (internal quotation marks omitted). But this

is an objective inquiry. “The subjective beliefs of the actual

officer are, of course, irrelevant.” Id. (internal quotation

marks omitted). Here, there is at least an issue of material

fact as to what a reasonable officer at the Penitentiary should

have known on July 8, 2007. Several months before McBride

ordered Jones to cook pork loins, the Penitentiary

implemented a new policy providing that an inmate could opt

out of handling pork on religious grounds. And Jones alleges

that he told the officers in charge that he had the right to not

handle pork. That some officers claim they were not

18 JONES V. WILLIAMS

personally aware of the policy change or Belleque’s memo to

Jones is not sufficient to show that Jones’s right to avoid

handling pork was not clearly established.

In sum, viewing the record in the light most favorable to

Jones, Appellees’ conduct violated Jones’s clearly established

right to avoid handling pork on the basis of his religious

beliefs. On this record, Appellees are not entitled to qualified

immunity.6 Therefore, we reverse the grant of summary

judgment on the § 1983 claim arising from the events of July

8, 2007, and remand the claim to the district court for further

proceedings.

3.

Jones’s third § 1983 free exercise claim challenges the

prison’s method of cleaning grills on which meats served to

inmates are cooked. Workers in the kitchen use vegetable oil

and a cinder block to scour the surfaces of grills and then

remove the excess grease without use of chemical cleaners or

grease removers. Davis declares that the grills are sanitized

by heating before use and that the prison’s cleaning practice

meets the industry standard for cleaning grills. Jones and

Robert Stephens, a lead cook at the Penitentiary, declare that

this method leaves residual amounts of pork grease on the

grills. Additionally, Jones argues that the prison’s cleaning

6

Jones alleges that McBride ordered him to cook the pork loins, but

brings this free exercise claim against McBride and eleven other

defendants in their individual and official capacities. We express no

opinion on the merits of Jones’s individual or official capacity claims

against any of the twelve named defendants. We merely hold that Jones

has raised a genuine issue of fact as to whether any defendant is entitled

to qualified immunity from Jones’s claim that being forced to handle pork

violated his free exercise rights.

JONES V. WILLIAMS 19

practices violate Oregon Administrative Rule 291-061-

0190(7) and, under Islamic standards, permit contamination

of non-pork meats by residual pork grease.

To the extent Jones seeks an injunction ordering a change

in the Penitentiary’s grill cleaning procedures, his claim is

moot because he has been released from custody. We

therefore consider the merits of this § 1983 claim only to the

extent that Jones seeks damages against Appellees for the

constitutional violations that he alleges occurred while he was

in custody.

Even assuming that Jones has raised an issue of fact as to

whether the grill-cleaning method resulted in the grills being

contaminated by Islamic standards or violations of

Department regulations, he has failed to show that the

prison’s grill-cleaning method imposed a substantial burden

on his religious exercise. There is no genuine dispute that

inmates were presented alternatives to grilled meat at every

meal while Jones was in custody.7 Jones points to no

evidence that grilled meat was such an important benefit that

he was substantially pressured to eat it and thereby violate his

religious beliefs. We have long recognized the prisoner’s

“right to be provided with food sufficient to sustain them in

good health that satisfies the dietary laws of their religion.”

McElyea, 833 F.2d at 198. Here, however, Jones has failed

to show that he needed grilled meat to remain healthy or to

satisfy the dietary requirements of his religion. In the

absence of such evidence, Jones cannot show that Appellees’

grill-cleaning method imposed a substantial burden on his

7

The menus referenced in Jones’s declaration as Exhibits A through H

disprove his claim that alternatives to grilled food were not available for

morning meals.

20 JONES V. WILLIAMS

religious exercise. Accordingly, we affirm summary

judgment in favor of Appellees on the § 1983 claim

challenging the prison’s grill-cleaning practices.

C.

Jones also asserts a First Amendment retaliation claim

against Ridderbusch under § 1983 arising from Ridderbusch’s

issuance of a daily performance failure on January 8, 2007.

The sanction was issued after Jones confronted Ridderbusch

in the Penitentiary’s kitchen with complaints of

discrimination and a threat to sue.

Section 1983 provides a cause of action for prison

inmates whose constitutionally protected activity has resulted

in retaliatory action by prison officials. See Rizzo v. Dawson,

778 F.2d 527, 532 (9th Cir. 1985). “[A] prison inmate retains

those First Amendment rights that are not inconsistent with

his status as a prisoner or with the legitimate penological

objectives of the corrections system.” Pell v. Procunier,

417 U.S. 817, 822 (1974). A viable § 1983 claim of

retaliation for engaging in activity protected by the First

Amendment in the prison context involves the following

elements:

(1) An assertion that a state actor took some

adverse action against an inmate (2) because

of (3) that prisoner's protected conduct, and

that such action (4) chilled the inmate’s

exercise of his First Amendment rights, and

(5) the action did not reasonably advance a

legitimate correctional goal.

Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005).

JONES V. WILLIAMS 21

The First Amendment guarantees a prisoner a right to

seek redress of grievances from prison authorities and as well

as a right of meaningful access to the courts. Bradley v. Hall,

64 F.3d 1276, 1279 (9th Cir. 1995); see also Hasan v. U.S.

Dep’t of Labor, 400 F.3d 1001, 1005 (7th Cir. 2005)

(“Prisoners’ grievances, unless frivolous . . . , concerning the

conditions in which they are being confined are deemed

petitions for redress of grievances and thus are protected by

the First Amendment.”); Wolfel v. Bates, 707 F.2d 932, 934

(6th Cir. 1983) (per curiam) (recognizing prisoner’s First

Amendment right to complain to prison officials about

discrimination). Accordingly, Jones’s complaints of

discrimination to his supervisors and statements of intention

to file suit were conduct protected by the First Amendment.

Jones has made a showing in support of the remaining

elements of his retaliation claim sufficient to overcome

summary judgment. The face of the daily failure form

completed by Ridderbusch cites Jones’s discrimination

complaints and threat to sue as reasons for its issuance,

creating a genuine issue as to whether this protected conduct

was “the ‘substantial’ or ‘motivating’ factor” for the daily

performance failure. Brodheim v. Cry, 584 F.3d 1262, 1271

(9th Cir. 2009) (citation omitted). That the sanction deprived

Jones of points toward program incentives is adequate to

show that it “‘would chill or silence a person of ordinary

firmness’” from engaging in such protected activities in the

future. Id. (quoting Rhodes, 408 F.3d at 568–69); see also

Rhodes, 408 F.3d at 567 n.11 (stating that any harm that is

“more than minimal will almost always have a chilling

effect”).

Genuine issues also remain as to whether the daily failure

“reasonably advance[d] a legitimate correctional goal.”

22 JONES V. WILLIAMS

Brodheim, 584 F.3d at 1271. Appellees claim that the daily

failure served the penological purpose of maintaining “order

and security in a situation where prisoners outnumbered

supervisors 20 or 25 to 1[,]” but the document bears no

indication of any security issues arising from Jones’ behavior.

Jones admits that there were dozens of inmates working in the

kitchen when he approached Ridderbusch but declares that no

inmates were in the immediate area close enough to hear the

conversation. Jones also declares that he was not acting in a

threatening manner. There was no security issue under this

version of events. Jones’s account also casts serious doubt on

the magistrate judge’s conclusion that the sanction was

justified by the prison’s interests in “appropriate inmate

behavior[,]” “inmate rehabilitation and the development of

professional attitudes and interpersonal communication.” A

prisoner’s “impolitic choice of words” does not categorically

justify punitive action by prison officials that “burdens the

prisoner’s right of meaningful access to the courts.” Bradley,

64 F.3d at 1281. On this record, we cannot determine as a

matter of law that issuance of the daily failure was justified

by the prison’s legitimate interests.

For these reasons, we reverse the grant of summary

judgment in favor of Ridderbusch on the First Amendment

retaliation claim and remand this claim to the district court

for further proceedings.8

8

The district court did not distinguish between Jones’s individual and

official capacity claims against Ridderbusch when it granted summary

judgment to Ridderbusch. While Jones argues on appeal that Ridderbusch

violated his rights because Ridderbusch retaliated against him, Jones does

not argue that Ridderbusch had policymaking authority or that his claim

against Ridderbusch is “attributable to official policy or custom,” Larez

v. City of Los Angeles, 946 F.2d 630, 645 (9th Cir. 1991). We therefore

JONES V. WILLIAMS 23

D.

Finally, Jones asserts a § 1983 equal protection claim

based on allegations of racial discrimination in the

disciplinary proceedings following his altercation with

Leonard on October 29, 2008.

The Equal Protection Clause of the Fourteenth

Amendment “commands that no State shall deny to any

person within its jurisdiction the equal protection of the laws,

which is essentially a direction that all persons similarly

situated should be treated alike.” Lee v. City of Los Angeles,

250 F.3d 668, 686 (9th Cir. 2001) (quoting City of Cleburne

v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)) (internal

quotation marks omitted). To avoid summary judgment on a

claim of racial discrimination, the plaintiff must “produce

evidence sufficient to permit a reasonable trier of fact to find

by a preponderance of the evidence that [the challenged

action] was racially motivated.” Bingham v. City of

Manhattan Beach, 341 F.3d 939, 948–49 (9th Cir. 2003)

(internal quotation marks and citation omitted). In the prison

context, the right to equal protection is “judged by a standard

of reasonableness—specifically, whether the actions of prison

officials are ‘reasonably related to legitimate penological

interests.’” Walker v. Gomez, 370 F.3d 969, 974 (9th Cir.

2004) (quoting Turner, 482 U.S. at 89).

There is no dispute that Jones assaulted Leonard and that

Leonard did not touch Jones during the altercation. Jones

points to no evidence that the resulting placement in

disciplinary segregation and subsequent proceedings against

reverse the district court’s grant of summary judgment to Ridderbusch on

the individual capacity claim only.

24 JONES V. WILLIAMS

him were motivated by the fact that he is African-American

and Leonard is white. Accordingly, we affirm summary

judgment in favor of Appellees on the equal protection claim.

III.

For the foregoing reasons, the judgment of the district

court is

AFFIRMED in part and VACATED and

REMANDED in part.

The parties shall bear their own costs on appeal.