DORIAN DAVIS V. E. FLORES, No. 11-15296 (9th Cir. 2012)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MAY 25 2012 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT DORIAN DAVIS, No. 11-15296 Plaintiff - Appellant, D.C. No. 1:08-cv-01197-JTMJMA v. MEMORANDUM * E. G. FLORES; et al., Defendants - Appellees. Appeal from the United States District Court for the Eastern District of California Jeffrey T. Miller, District Judge, Presiding Submitted May 15, 2012 ** Before: CANBY, GRABER, and M. SMITH, Circuit Judges. California state prisoner Dorian Davis appeals pro se from the district court s judgment in his 42 U.S.C. § 1983 action alleging denial of the right to practice his religion in violation of the First Amendment, the Religious Land Use * 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). and Institutionalized Person s Act ( RLUIPA ), and the Equal Protection Clause of the Fourteenth Amendment. We have jurisdiction under 28 U.S.C. § 1291. We review de novo both a dismissal for failure to state a claim under 28 U.S.C. § 1915(e)(2), Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order), and the district court s summary judgment, Morrison v. Hall, 261 F.3d 896, 900 (9 th Cir. 2001). We affirm in part, vacate in part, and remand. The district court properly dismissed Davis s equal protection claim because he failed to allege facts showing he was intentionally treated differently from similarly situated inmates. See Thornton v. City of St. Helens, 425 F.3d 1158, 1166-67 (9th Cir. 2005). The district court properly granted summary judgment on Davis s First Amendment claims premised on the seven-month prohibition against using prayer oil in cells because Davis failed to raise a genuine dispute of material fact as to whether the prohibition was reasonably related to legitimate penological interests. See Turner v. Safley, 482 U.S. 78, 89-91 (1987); see also O Lone v. Estate of Shabazz, 482 U.S. 342, 351-52 (1987) (no First Amendment violation if inmates unable to attend certain prayer services were free to participate in other religious ceremonies and practices). 2 11-15296 The district court properly granted summary judgment on Davis s RLUIPA claim premised on the temporary suspension of in-cell use of prayer oil because Davis did not raise a genuine dispute of material fact as to whether the suspension failed to further a compelling governmental interest or was not the least restrictive means of preventing further smuggling of contraband. 42 U.S.C. § 2000cc-1(a); see Cutter v. Wilkinson, 544 U.S. 709, 725 n.13 (2005) ( [P]rison security is a compelling state interest, and . . . deference is due to institutional officials expertise in this area. ). The district court failed to address Davis s First Amendment and RLUIPA claims premised on a prison prohibition of unsupervised inmate-led religious services. Accordingly, we vacate the judgment as to these claims and remand for further proceedings. Davis s remaining contentions are unpersuasive. Each party shall bear its own costs on appeal. AFFIRMED in part; VACATED in part; and REMANDED. 3 11-15296

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