Opinion

Patrick Bearup v. David Shinn

Court
Court of Appeals for the Ninth Circuit
Filed
Mar 28, 2024
Status
Unpublished
Cited by
0 cases
Authority
More cited than 15.7%

affirming summary judgment where the complaint did not give fair notice of the factual basis for a claim raised for the first time in opposition to summary judgment

How later courts described this case

  • affirming summary judgment where the complaint did not give fair notice of the factual basis for a claim raised for the first time in opposition to summary judgment
  • “A right is ‘clearly established’ when its contours are sufficiently defined, such that ‘a reasonable official would understand that what he is doing violates that right.’” (quoting Wilson v. Layne, 526 U.S. 603, 615 (1999))
  • setting forth factors for evaluating whether defendant’s voluntary cessation of behavior has rendered a case moot

Written by the judges who cited it.

The opinion

NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 28 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

PATRICK WADE BEARUP, also named as: No. 22-16886

Patrick Bearup and Patrick W. Bearup,

D.C. No. 2:20-cv-02485-SPL-MHB

Plaintiff-Appellant,

v. MEMORANDUM*

RYAN THORNELL, Director of Prison

System at Central Office - in his official

capacity; DAVID SHINN, Director, in his

individual capacity,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Arizona

Steven Paul Logan, District Judge, Presiding

Submitted March 26, 2024**

Before: TASHIMA, SILVERMAN, and KOH, Circuit Judges.

Arizona state prisoner Patrick Wade Bearup appeals pro se from the district

court’s summary judgment in his 42 U.S.C. § 1983 action alleging violations of the

*

This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

**

The panel unanimously concludes this case is suitable for decision

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

First Amendment and the Religious Land Use and Institutionalized Persons Act.

We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Hamby v.

Hammond, 821 F.3d 1085, 1090 (9th Cir. 2016) (cross-motions for summary

judgment); Rosebrock v. Mathis, 745 F.3d 963, 970 n.8 (9th Cir. 2014) (mootness

determination). We affirm.

The district court properly granted summary judgment on Bearup’s First

Amendment claim for damages on the basis of qualified immunity because Bearup

failed to show that defendant Shinn violated any clearly established constitutional

right by providing a kosher vegan meal plan rather than kosher meat and dairy.

See Pearson v. Callahan, 555 U.S. 223, 232 (2009) (“Qualified immunity is

applicable unless the official’s conduct violated a clearly established constitutional

right.”); Foster v. Runnels, 554 F.3d 807, 815 (9th Cir. 2009) (“A right is ‘clearly

established’ when its contours are sufficiently defined, such that ‘a reasonable

official would understand that what he is doing violates that right.’” (quoting

Wilson v. Layne, 526 U.S. 603, 615 (1999))).

Contrary to Bearup’s contentions, the district court properly denied

injunctive relief because the prison voluntarily changed the allegedly infringing

policy by implementing a new menu option that included kosher meat and dairy.

See Rosebrock, 745 F.3d at 972 (setting forth factors for evaluating whether

defendant’s voluntary cessation of behavior has rendered a case moot).

2 22-16886

We do not consider claims that Bearup failed to allege in his complaint. See

Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 963, 969 (9th Cir. 2006) (affirming

summary judgment where the complaint did not give fair notice of the factual basis

for a claim raised for the first time in opposition to summary judgment).

We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments raised for the first time on appeal. See Padgett

v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

Bearup’s motion for default judgment (Docket Entry No. 26) is denied.

AFFIRMED.

3 22-16886

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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