Sabin Barendt v. Jim Gibbons

FILED

NOT FOR PUBLICATION JAN 25 2012

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

SABIN BARENDT, No. 10-15954

Plaintiff - Appellant, D.C. No. 3:08-cv-00161-LRH-

RAM

v.

JIM GIBBONS; et al., MEMORANDUM *

Defendants - Appellees.

Appeal from the United States District Court

for the District of Nevada

Larry R. Hicks, District Judge, Presiding

Submitted January 17, 2012 **

Before: LEAVY, TALLMAN, and CALLAHAN, Circuit Judges.

Sabin Barendt, a Nevada state prisoner, appeals pro se from the district

court’s summary judgment in his action under the Religious Land Use and

Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000c et seq. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo. Shakur v. Schriro, 514

*

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).

F.3d 878, 883 (9th Cir. 2008). We may affirm on any ground supported by the

record. Trimble v. City of Santa Rosa, 49 F.3d 583, 584 (9th Cir. 1995) (per

curiam). We affirm.

The district court properly granted summary judgment on Barendt’s

RLUIPA claim relating to other inmates’ ability to participate with Barendt in a

candle-lighting service, because he failed to introduce evidence that this limited

restriction on a group religious service substantially burdened his ability to

exercise his religion. See 42 U.S.C. § 2000cc-1(a)(1)-(2); Warsoldier v. Woodford,

418 F.3d 989, 994 (9th Cir. 2005) (prisoner has initial burden to demonstrate that

prison policies constitute a substantial burden on the exercise of his religious

beliefs); id. at 996 (prison policy imposes substantial burden when it “intentionally

puts significant pressure on inmates . . . to abandon their religious beliefs”).

Insofar as Barendt’s complaint can be construed as seeking damages for

temporarily restricting Barendt from participating in the candle-lighting service at

the appropriate time, summary judgment was proper because defendants would be

entitled to sovereign and qualified immunity. See Sossamon v. Texas, 131 S. Ct.

1651, 1663 (2011) (“States, in accepting federal funding, do not consent to waive

their sovereign immunity to private suits for money damages under RLUIPA”);

Pearson v. Callahan, 555 U.S. 223, 243 (2009) (state officers entitled to qualified

2 10-15954

immunity if their actions do not violate clearly established law); see also

Warsoldier, 418 F.3d at 997 n.7 (“There exists little Ninth Circuit authority

construing RLUIPA.”).

To the extent that Barendt sought the disgorgement of federal funds for any

alleged RLUIPA violations, the district court properly determined that granting

such relief would not be likely to redress his alleged injury. See Steel Co. v.

Citizens for a Better Env’t, 523 U.S. 83, 103 (1998) (party invoking federal

jurisdiction must establish the “likelihood that the requested relief will redress the

alleged injury”).

Barendt’s appeal of the denial of his motion for preliminary injunctive relief

is moot. See Mount Graham Red Squirrel v. Madigan, 954 F.2d 1441, 1450 (9th

Cir. 1992) (when underlying claims have been decided, the reversal of a denial of a

preliminary injunction would have no practical consequences, and the issue is

therefore moot).

Barendt’s remaining contentions are unpersuasive.

AFFIRMED.

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