Unpublished Disposition, 922 F.2d 845 (9th Cir. 1989)

MEMORANDUM^*

Richard Samuel, an Arizona state prisoner, appeals pro se the district court's grant of summary judgment in favor of several prison officials and employees. Samuel, a Muslim, filed a complaint under 42 U.S.C. § 1983 contending that the appellees violated his first amendment right to free exercise by serving him meals containing pork. The appellant also contends that the district court erred by postponing discovery pending disposition of the prison employees' motion to dismiss. The district court granted the appellees' motion to postpone discovery on June 9, 1989, and, treating their motion to dismiss as a motion for summary judgment, granted that motion on July 28, 1989. We have jurisdiction over this timely appeal under 28 U.S.C. § 1291, and we affirm.

The Arizona Department of Corrections has established procedures to accommodate the religiously-based dietary needs of its prisoners. According to Internal Management Policy 207.0 ("IMP 207.0"), inmates who require special diets on account of their religious beliefs need only to fill out a "Religious Preference and Privilege Request" form. The Chaplain then reviews this one-page form, and, upon determining that the request is bona fide, instructs the appropriate personnel to prepare the prisoner's meals in accordance with the special request. The dispute in this case arose because the appellant has never filled out the requisite form.

This oversight was apparently due to the fact that Samuel was served pork-free meals, based only upon his verbal request to food service personnel, from the date of his initial incarceration until July 22, 1988. On that date, the Chaplain's office issued an updated list of all prisoners who were eligible to receive special diets. Because Samuel had never completed the form, his name was not on the list. After Samuel refused to comply with IMP 207.0, the prison officials ceased serving him pork-free meals pending completion of the request form. The appellees repeatedly informed Samuel that all he needed to do to resume his special diet was to fill out the "Religious Preference and Privilege Request" form.

Rather than follow the prison guidelines, Samuel filed this suit alleging that the appellees' behavior violated his free exercise rights. The appellant has attempted to portray this as a case where the appellees' "malicious" behavior resulted in a constitutional violation. We reject this characterization. The fact that the appellant was required to fill out the form after a period during which he was served pork-free meals without having completed the form will not support a Sec. 1983 claim unless the procedures themselves are unconstitutional. We must therefore decide whether the procedures contained in IMP 207.0 violate the prisoner's free exercise rights.

In this Circuit, the question whether a prison regulation impermissibly inhibits an inmate's first amendment rights' is a mixed question of law and fact, Friedman v. State of Arizona, 912 F.2d 328, 331 (9th Cir. 1990), and under the test of United States v. McConney, 728 F.2d 1195, 1202 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984), it is a question that we review de novo.

A prison regulation that impinges on inmates' constitutional rights is "valid if it is reasonably related to legitimate penological interests." Turner v. Safley, 482 U.S. 78, 82 (1987). In Turner, the Supreme Court suggested four factors that should be used to determine whether the challenged regulation reasonably relates to a legitimate penological interest. Id. at 89-91; see also Friedman, 912 F.2d at 331. Here, we find it unnecessary to analyze each of those four factors in order to reach our conclusion that IMP 207.0 clearly withstands the appellant's constitutional attack.

We base this conclusion on two grounds. First, we fail to see how IMP 207.0 impinges on the appellant's free exercise rights at all. Before shifting the burden on the prison officials to show that the regulation relates to a legitimate penological interest, it would seem that the appellant must show that his free exercise has somehow been restricted. As we see it, in providing a procedure by which religious believers can request and receive special diets, the prison has acted to advance--and not to impinge--the free exercise rights of the inmates. If the alternative to filling out the form is to serve uniform meals to all inmates, then this regulation must be seen primarily as a means of accommodating those prisoners whose sincerely held religious beliefs require a special diet.

Of course, a procedure so burdensome as to prevent the inmates from employing it would raise a more difficult question. The appellant does not argue, however, that having to fill out a one page form constitutes such a burden. But even if the regulation could be said to be burdensome--and therefore to impinge to some degree on the appellant's rights--we find that it is reasonably related to a legitimate penological interest. Indeed, it is related to several legitimate interests. The appellees argue that the prison has an interest in "maintenance of internal prison order through documentation of inmate special needs requests," and we accept that as a sufficient justification for the regulation. We note, too, the prison's interest in respecting the inmates' free exercise rights to the extent possible; by requiring the inmates to fill out a form and demonstrate their religious commitment, the prison is able to respect the requirements of sincere adherents without devolving into a sort of short-order house where all the inmates request a custom diet based on feigned religious dictates. Absent some sort of procedure to prevent that result, it may be that none of the prisoners--not even the deserving ones--could exercise their religion in the manner the regulation permits.

We also find that the district court did not err in granting the appellees' motion to postpone discovery pending resolution of the motion to dismiss. We review the district court's decision for an abuse of discretion. Wood v. McEwen, 644 F.2d 797, 802 (9th Cir. 1982), cert. denied, 455 U.S. 942 (1982). A district court may refuse to grant summary judgment if the opposing party needs time to discover facts essential to its opposition. FRCP 56(f); Mackey v. Pioneer Nat'l Bank, 867 F.2d 520, 523 (9th Cir. 1989). The opposing party must, however, submit affidavits setting forth particular facts that it intends to discover; because Samuel did not submit such affidavits, and made no motion to permit discovery, he was not entitled to the protection of Rule 56(f). Id. at 523-24.

The district court clearly had the authority to postpone discovery. FRCP 26 provides:

Upon motion by a party ... from whom discovery is sought, and for good cause shown, the court ... may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including ... (1) that the discovery not be had....

FRCP 26(c) (1). A district court may stay discovery under Rule 26 "when it is convinced that the plaintiff will be unable to state a claim for relief." Wood, 644 F.2d at 801-02. In light of the fact that the appellant's claim is wholly without merit, we find that he district court did not abuse its discretion by postponing discovery.

The judgment of the district court is AFFIRMED.