NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       OCT 28 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

DAVID JONATHAN THOMAS,                          No.    19-16283

                Plaintiff-Appellee,             D.C. No.
                                                3:13-cv-00508-RCJ-CBC
 v.

ISIDRO BACA, Warden; et. al.,                   MEMORANDUM*

                Defendants-Appellants.

                   Appeal from the United States District Court
                            for the District of Nevada
                    Robert C. Jones, District Judge, Presiding

                      Argued and Submitted October 8, 2020
                              Seattle, Washington

Before: GILMAN,** CALLAHAN, and CHRISTEN, Circuit Judges.

      Officials associated with the Nevada Department of Corrections (NDOC)

and the Northern Nevada Correctional Center (NNCC) appeal the district court’s

denial of their motion for summary judgment based on qualified immunity. David

Jonathan Thomas, an inmate at NNCC, filed suit under 42 U.S.C. § 1983, alleging


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Ronald Lee Gilman, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
that the officials violated his rights under the First Amendment and the Religious

Land Use and Institutionalized Persons Act (RLUIPA) by denying him a

vegetarian-kosher diet. The district court held that genuine disputes of material

fact precluded the grant of summary judgment in favor of the officials. We affirm.

      The district court’s denial of summary judgment on qualified-immunity

grounds is reviewed de novo. S.B. v. County of San Diego, 

, 1013

(9th Cir. 2017). In resolving questions of law, we ignore the officials’ attempts to

dispute the facts, accept Thomas’s version of the facts as true, and draw all

reasonable inferences in Thomas’s favor. See Plumhoff v. Rickard, 

,

768 (2014); see also Scott v. Harris, 

, 377–78 (2007).

      An analysis regarding qualified immunity involves two elements:

(1) whether the officials’ conduct violated a statutory or constitutional right, and

(2) whether that right was clearly established at the time of the alleged violation.

See Pearson v. Callahan, 

, 232 (2009). The officials concede for the

purpose of this interlocutory appeal that a genuine dispute of material fact exists

regarding the first element. They therefore limit their argument on appeal to the

contention that Thomas’s First Amendment right to a vegetarian-kosher diet was

not clearly established at the time of the officials’ actions. Their argument is

unavailing.




                                           2                                    19-16283
      This court established long ago that inmates “have the right to be provided

with food sufficient to sustain them in good health that satisfies the dietary laws of

their religion.” McElyea v. Babbitt, 

, 198 (9th Cir. 1988). More

recently, we held that a Muslim inmate had a right under the First Amendment’s

Free Exercise Clause to a diet in line with his sincere religious beliefs even though

the diet was uncommon to the mainstream mandates of his religion. Shakur v.

Schriro, 

, 882, 893 (9th Cir. 2008) (upholding a Muslim inmate’s

request to substitute a vegetarian halal diet with a meat-based kosher diet in order

to prevent stomach upsets that interfered with the state of “purity and cleanliness”

needed for Muslim prayer). These precedents are sufficiently similar to the case

before us to put prison officials on notice that, when an inmate holds sincere

religious beliefs and requests a diet rooted in those beliefs, refusing to

accommodate that request violates the inmate’s First Amendment rights unless the

refusal is reasonably related to a legitimate penological interest. Turner v. Safley,

, 89–91 (1987) (establishing a four-factor balancing test to determine

whether officials’ actions that adversely impact the Free Exercise Clause are

justified by legitimate penological interests and are, therefore, valid).

      The facts as viewed most favorably to Thomas show that his requests for a

vegetarian-kosher diet were rooted in sincerely held religious beliefs. Each of

Thomas’s requests was accompanied both by an assertion that his religious beliefs


                                           3                                     19-16283
commanded such a diet and by numerous citations to relevant scripture. The

officials, moreover, have not asserted a legitimate penological interest that would

justify the denial of Thomas’s requests. Indeed, the officials have failed to put

forth any argument related to the Turner factors. The present state of the record

therefore supports the decision of the district court to deny summary judgment in

favor of the officials.

       Judgement AFFIRMED and case REMANDED.




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