STEVEN RILEY V. SCOTT KERNAN, ET AL, No. 22-55033 (9th Cir. 2022)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED OCT 28 2022 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT STEVEN ERICK RILEY, Plaintiff-Appellee, No. U.S. COURT OF APPEALS 22-55033 D.C. No. 3:16-cv-00405-MMA-AHG v. SCOTT KERNAN, Secretary of Corrections and Rehabilitations; et al., MEMORANDUM* Defendants-Appellants, and C. MACIAS, Community Resource Manager at Calipatria State Prison; J. L. PRADO, Sergeant/Lieutenant of Calipatria State Prison, Defendants. STEVEN ERICK RILEY, Plaintiff-Appellant, No. 22-55112 D.C. No. 3:16-cv-00405-MMA-AHG v. SCOTT KERNAN, Secretary of Corrections * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. and Rehabilitations; et al., Defendants-Appellees, and C. MACIAS, Community Resource Manager at Calipatria State Prison; J. L. PRADO, Sergeant/Lieutenant of Calipatria State Prison, Defendants. Appeal from the United States District Court for the Southern District of California Michael M. Anello, District Judge, Presiding Argued and Submitted October 20, 2022 San Francisco, California Before: HAWKINS, BEA, and NGUYEN, Circuit Judges. Defendants, the CDCR Secretary and prison officials at Calipatria State Prison where plaintiff Steven Riley (“Riley”) is an inmate, appeal the district court’s denial of qualified immunity under 42 U.S.C. § 1983.1 Riley contends that by repeatedly asking him to submit to drug testing over his religious objections, Defendants violated his First Amendment rights. We have jurisdiction over this 1 Riley cross-appealed the grant of summary judgment on his Religious Land Use and Institutionalized Person Act claim. However, Riley abandoned that claim after the district court denied Riley’s motion to certify that issue for interlocutory appeal. Only the denial of qualified immunity is at issue here. 2 interlocutory appeal because Defendants raise legal, not factual, arguments. See Ames v. King Cnty., 846 F.3d 340, 347 (9th Cir. 2017). Reviewing the denial of qualified immunity de novo and viewing the facts in the light most favorable to Riley, Est. of Aguirre v. Cnty. of Riverside, 29 F.4th 624, 627 (9th Cir. 2022), we reverse and remand. “We ask two questions when determining whether an officer is entitled to qualified immunity: (1) whether there has been a violation of a constitutional right; and (2) whether that right was clearly established at the time of the officer’s alleged misconduct.” Lam v. City of Los Banos, 976 F.3d 986, 997 (9th Cir. 2020) (citation omitted). To allege First Amendment retaliation, Riley must show: (1) the state actor took some adverse action (2) because of (3) the inmate’s protected conduct; (4) that adverse action chilled the exercise of his First Amendment rights; and (5) the action did not reasonably advance a legitimate correctional goal. See Shepard v. Quillen, 840 F.3d 686, 688 (9th Cir. 2016). In denying qualified immunity, the district court based its analysis solely on the ground that Defendants violated their own regulations by exceeding the number of times that inmates could be asked to drug test each month. Therefore, according to the district court, these “repeated attempts to drug test Plaintiff—above the frequency authorized . . . did not reasonably advance the government’s legitimate 3 correctional goals.” The district court, however, misread the regulation, which plainly sets a minimum, rather than a maximum, number of tests an inmate may be requested to take each month. See Cal. Code Regs. tit. 15, § 3315(f)(4)(A)–(C) (2014). Defendants therefore did not violate the relevant regulations. Riley nevertheless argues that the repeated requests alone are sufficient to create an inference of retaliation. We disagree. It goes without saying that, in the prison context, drug testing reasonably advances the legitimate correctional goal of ensuring inmate health and safety. Without more, the evidence on this record is not sufficient to create a triable issue of fact to preclude summary judgment on Riley’s retaliation claim. But even assuming for the sake of argument that Riley has established a constitutional violation as to the first prong of qualified immunity, he fails to identify precedent that clearly establishes that right. See Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (holding that for a right to be clearly established, “existing precedent must have placed the statutory or constitutional question beyond debate” (citation omitted)). The cases Riley relies on—Shepard v. Quillen, 840 F.3d 686 (9th Cir. 2016); Bruce v. Ylst, 351 F.3d 1283 (9th Cir. 2003); and Pratt v. Rowland, 65 F.3d 802 (9th Cir. 1995)—are not sufficiently “‘particularized’ to the facts of th[is] case” to put prison officials on reasonable notice that repeated requests to an inmate to take a random drug test—without more—violate that inmate’s 4 constitutional right. See White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)); see also Ashcroft v. alKidd, 563 U.S. 731, 742 (2011) (instructing courts “not to define clearly established law at a high level of generality”). REVERSED AND REMANDED. 5

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