EDWARD M. CHEN

ORDER GRANTING IN PART DEFENDANTS' MOTION FOR

SUMMARY JUDGMENT; AND DENYING PLAINTIFF'S MOTION

FOR PRELIMINARY INJUNCTION

I. INTRODUCTION

In this pro se prisoner's civil rights action, Terrell Curry claims that Defendants have violated his religious freedom rights by denying his requests for religious oil and a religious diet. Defendants now move for summary judgment and Mr. Curry opposes the motion. For the reasons discussed below, the Court GRANTS Defendants' motion for summary judgment on the religious oil claims and DENIES it without prejudice on the religious diet claims. The Court also DENIES Mr. Curry's motion for a preliminary injunction.

II. BACKGROUND

The following facts are undisputed unless otherwise noted:

Mr. Curry is incarcerated serving a sentence of life without the possibility of parole. He was incarcerated at Salinas Valley State Prison ("Salinas Valley") from 2002 through early 2009. He was transferred from Salinas Valley to Corcoran State Prison on January 15, 2009, and was transferred from Corcoran State Prison to Centinela State Prison on May 5, 2009. Duncan Decl., Ex. B. The events and omissions that give rise to Mr. Curry's legal claims occurred from April 2007 through the filing of the complaint in July 2009.

Shetaut Neter is an "Ancient African Religion." Complaint exhibits, Declaration of Terrell Curry dated July 13, 2009 ("Curry #1 Decl."), ¶ 2. A practitioner of this religion is called a "Neterian." Id. Mr. Curry is a Neterian. The current worldwide spiritual leader of the Shetaut Neter faith is Sebai Muata Ashby. Plaintiff's Opposition to Motion For Summary Judgment, Ex. H, Declaration of Sebai Muata Ashby ("Ashby Decl."), ¶ 2.

Shetaut Neter "prescribe[s]," id., "recommend[s]," id. at ¶ 4, or "mandate[s]" a type of vegan diet that "prohibits meat, dairy, eggs, wheat, refined sugar, and table salt." Id. This diet is known as the Kemetic diet. Id. It "is primarily composed of whole foods, raw vegetables and fruits," and is "designed to aid practitioners on the path of Shetaut Neter in their pursuit of spiritual enquiry, meditation, and yoga." Id. Mr. Curry requested a Kemetic diet from the CDCR that was even stricter than that described by Ashby; among other things, his requested diet excluded genetically modified and irradiated food, and required that the vegetables and fruit be 80% raw/20% cooked. See Docket # 32-1, pp. 5, 12.

As a Neterian, Mr. Curry does ritual worship three times a day. He washes his face and hands; does yoga postures, chants, meditations, prayers and offerings. Curry # 1 Decl., ¶ 11. Incense is "supposed to be used for the fragrance smell to associate with a divine thought" but fire is not allowed in the cells, so Mr. Curry asked Defendants to grant him an accommodation authorizing him to order and possess "religious incense fragrance oil in place of incense sticks to burn for its fragrance, so to facilitate [him] during [his] prayers and meditation rituals which is central to [his] religious exercise." Id. (errors in source).

Defendant Landou was a chaplain at Salinas Valley during the relevant period. He "provide[d] spiritual guidance to inmates in Salinas Valley's Facility C, conduct[ed] Islamic religious services and instruction, supervise[d] Shetaut Neter religious services, and schedule[d] and conduct[ed] programming and activities." Landou Decl., ¶ 2. At Salinas Valley, inmates were allowed to possess religious artifacts and books used in the practice of their faiths, inmates received "nonscheduled opportunities for religious prayer, study, and reflection," and reasonable time and accommodations were provided for group religious services "in keeping with facility security and other necessary institutional operations and activities." Id. at ¶¶ 3-4.

For group services, chaplain Landou would generate pre-approved religious service lists at the beginning of each month, including a list for the C-Facility Shetaut Neter inmates to attend group religious services on Tuesdays at 1:00 p.m. Mr. Curry was on the pre-approved lists for the weekly Shetaut Neter services from July 2008 through December 2008, and for a Shetaut Neter holiday service on December 26, 2008. Id. at ¶¶ 6-7. Although his name may have been on the list, Mr. Curry states that he was allowed to attend services far less frequently than on a weekly basis. A. Mr. Curry's Inmate Appeals

Mr. Curry filed two inmate appeals to obtain certain items for his Shetaut Neter religious activities. In an April 11, 2007 inmate appeal, Mr. Curry requested that he be allowed to obtain and possess an "Ankh amulet, candles, incense oil, prayer mat, as well as religious books for study, & special dietary food items. I would also like access time to the chapel to worship & study with other Neterian followers." Docket # 32-1, p. 4. Chaplain Moon partially granted the inmate appeal, and issued a chrono authorizing Mr. Curry to have an "Ankh amulet (religious medallion), prayer mat, books, and study materials from Sema Institute of Yoga, Miami, Florida." Id. at 9. Mr. Curry pursued his inmate appeal. At the second level, chief deputy warden Neotti denied the request for religious oil, explaining: "All provided documents describing religious practices do not include 'oil' as an item necessary for Shetaut Neter African Religion. Therefore, no oil was included on chrono per interview with Chaplain Moon." Id. at 8. Mr. Curry pursued his inmate appeal to the Director's Level, where it was denied. Id. at 1. The Director's Level decision stated that Mr. Curry had been provided with a chrono "listing those allowable religious items he requested." Id.

Mr. Curry filed a second inmate appeal related to religion issues on May 8, 2008. In this appeal, Mr. Curry wrote that he wanted to obtain religious oil, to be excused from his job assignment to conduct religious services on certain days, to be designated the Neterian inmate coordinator, and to be allowed to purchase religious music. See Docket # 32-3, pp. 7-8. With regard to the oil, he wrote:

In the practice of my religion one aspect is the ritual of meditation which requires several items to aid in such affective rituals. I am only requesting that I be allowed to purchase incense oils "instead" of burning incenses which are prohibited. Incense oils can accommodate me in my ritual and can take the place of burning incense because the effect of the fragrances is to help me develop divine thoughts during my daily meditations & prayers. The incense oil will be placed on my body during meditations.

Mr. Curry's May 8, 2008 inmate appeal was partially granted at the first level on June 12, 2008: (1) Mr. Curry would be given a reasonable accommodation to attend specific religious services; (2) Mr. Curry would not be designated as the Neterian inmate coordinator because he had not provided proof of being an approved inmate coordinator; and (3) Mr. Curry would not be allowed to order any items that were not approved by the institution or were not from approved vendors. See Docket # 32-3. The first level appeal response noted that Mr. Curry "continues to request to receive a memorandum approving him to order religious music and incense oils" and that during the interview, Mr. Curry said "that the Muslim Chaplain is working with him on purchasing incense oils." Id. Mr. Curry pursued his May 8, 2008 inmate appeal to the second level, where the appeal again was partially granted. With regard to the request for religious oil, the appeal was denied because the documentation Mr. Curry provided that described the religious practices "do not include 'oil' as an item necessary for Shetaut Neter African Religion." Docket # 32-3, p. 5. At the Director's Level, the request for oil again was denied. Docket # 32-3, p. 2. B. Religious Oil At Salinas Valley

Salinas Valley chaplain Landau explained the evolution of the restrictions on usage and possession of religious oil. In the past, religious oil was stored in the chapel at Salinas Valley, and inmates were allowed to use oil only during the chapel services.

Inmate possession of religious oil was strictly controlled because often the religious oils that inmates sought were combustible and burning oil within inmate cells would create safety concerns. In addition, oils have the potential to be traded by inmates as currency and effectively violate the CDCR prohibition on inmates possessing money. See Cal. Code Regs. tit. 15, § 3006(b). [¶] Inmates filed administrative appeals documenting their religious needs for oil, and over time, the Salinas Valley policy regarding the purchase and possession of oil was revised. . . . By late January 2009, the Salinas Valley policy was revised to allow any inmate to seek authorization for the possession of a limited amount of religious oil in their cell if they went through the proper procedure to request it.

By late 2007, "Muslim and Protestant inmates, having presented evidence to support their need for oil, obtained authorization to have it in their possession." Docket # 42, p. 108 (Bonnefield's Resp. To Request For Admission No. 11). In 2008, inmates from "a variety of religious groups possessed religious oils obtained through trade with Muslim and/or Protestant inmates." Id. The policy then was reviewed and, by late 2009, Salinas Valley's "policy was revised to allow any inmate to seek authorization for the possession of religious oil if they went through the proper procedure to request it." Id. at 109.

The parties disagree whether Mr. Curry was given access to religious oil during the weekly group services in the chapel. Mr. Curry denies that he was allowed access to religious oil and Chaplain Landou states that Mr. Curry was allowed such access. Compare Declaration of Terrell D. Curry in Support of Opposition To Defendants' Summary Judgment Motion, ("Curry #2 Decl."), ¶ 11 with Landou Decl., ¶¶ 10-11. For purposes of Defendants' summary judgment motion, non-movant Mr. Curry's version is accepted as true.

Muslim prisoners at Salinas Valley were allowed to purchase and possess religious oil in their cells at some unidentified point before August 2007. See Docket # 42, p. 101 (Pina Decl., ¶¶ 2-3.) There was oil donated for use by only Muslims in the chapel who could not pay for their own prayer oil. Id. at ¶ 3. Mr. Curry was told by Landou that the oil was only for the Muslim prisoners and that Mr. Curry could not have any because he was not approved to use oil. Curry #2 Decl., ¶ 11.

III. LEGAL STANDARD FOR SUMMARY JUDGMENT

Summary judgment is proper where the pleadings, discovery and affidavits show that there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The Court will grant summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial . . . since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (a fact is material if it might affect the outcome of the suit under governing law, and a dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.") The moving party bears the initial burden of identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. The burden then shifts to the nonmoving party to "go beyond the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324 (citations omitted.) The Court's function on a summary judgment motion is not to make credibility determinations or weigh conflicting evidence with respect to a disputed material fact. See T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). The evidence must be viewed in the light most favorable to the nonmoving party, and the inferences to be drawn from the facts must be viewed in a light most favorable to the nonmoving party. See id. at 631.

On issues as to which the moving party bears the burden of proof at trial - such as the qualified immunity defense in this case - he must come forward with evidence which would entitle him to a directed verdict if the evidence went uncontroverted at trial. See Houghton v. South, 965 F.2d 1532, 1536 (9th Cir. 1992). He must establish the absence of a genuine issue of fact on each issue material to his affirmative defense. Id. at 1537. Once the moving party has come forward with this evidence, the burden shifts to the non-movant to set forth specific facts showing the existence of a genuine issue of fact on the defense.

A verified complaint may be used as an opposing affidavit under Rule 56, as long as it is based on personal knowledge and sets forth specific facts admissible in evidence. See Schroeder v. McDonald, 55 F.3d 454, 460 & nn.10-11 (9th Cir. 1995) (treating plaintiff's verified complaint as opposing affidavit where, even though verification not in conformity with 28 U.S.C. § 1746, plaintiff stated under penalty of perjury that contents were true and correct, and allegations were not based purely on his belief but on his personal knowledge). Plaintiff's complaint is considered as evidence because it was signed under penalty of perjury.

IV. DISCUSSION

A. Religious Oil Claims

1. RLUIPA Claim

The Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc-1, provides that no state may impose a "substantial burden" on a prisoner's exercise of religion unless the action or policy in question provides the least restrictive means of serving a compelling governmental interest. 42 U.S.C. § 2000cc-1(a). The plaintiff bears the burden of coming forward with evidence demonstrating the state's action or policy constituted a substantial burden on his exercise of religion. Warsoldier v. Woodford, 418 F.3d 989, 994-95 (9th Cir. 2005). The focus of this initial inquiry necessarily is on the manner in which the Plaintiff's religious exercise is impacted, rather than on the reasonableness of the facility's policy or regulation. Id. at 995.

"Religious exercise," for RLUIPA purposes, includes "any exercise of religion, whether or not compelled by, or central to, a system of religious belief." San Jose Christian College v. Morgan Hill, 360 F.3d 1024, 1034 (9th Cir. 2004). The exercise of religion may involve not only the belief and profession, but the performance of physical acts such as group assembly for worship. See Greene v. Solano County Jail, 513 F.3d 982, 987 (9th Cir. 2008). The "religious exercise" protected by RLUIPA is not defined too generally (e.g., the exercise of Shetaut Neter as a whole), but most must consider specific aspects of that exercise. See id. at 987-88. Thus, for instance, in Greene, the Ninth Circuit reversed a district court's decision to grant the jail summary judgment on a claim that a policy of prohibiting maximum security inmates from participating in group worship violated the inmate's rights under RLUIPA and other provisions. The Ninth Circuit identified the religious exercise as the ability to engage in group worship, not the general practice of Christianity. Greene, 513 F.3d at 983.

By analogy to Greene, the religious exercise in Mr. Curry's religious oil claim was the thrice daily worship ritual and not the broader general practice of the Shetaut Neter religion. During the thrice daily worship ritual that he performed in his cell, Mr. Curry washed his face and hands, and did "yoga postures, chants, meditate, prayers and offerings." Docket # 1, p. 15. The issue there is whether prohibiting oil that Mr. Curry wanted to use in connection with that ritual imposed a substantial burden on Mr. Curry's exercise of religion. Plaintiff has the initial burden of demonstrating prison officials imposed a substantial burden on the exercise of his religion beliefs. Warsoldier, 418 F.3d at 994.

RLUIPA does not define "substantial burden." See 42 U.S.C. § 2000cc-5. The Ninth Circuit, however, has held that a "substantial burden" on "religious exercise" is one that imposes "a significantly great restriction or onus upon such exercise." San Jose Christian College, 360 F.3d at 1034 (emphasis added); see, e.g., id. at 1035 (rejecting the religious college's argument that the "substantial burden" was "its inability to use its own property 'to carry on its mission[s] of Christian education and transmitting its religious beliefs," and determining that zoning ordinance imposed no restriction on religious exercise and instead merely required the religious college to submit a complete application). The Ninth Circuit observed in San Jose Christian College that the burden was not enough to "render religious exercise effectively impracticable." 360 F.3d at 1035. In Warsolider, the court held a burden is substantial under RLUIPA "'where the state . . . denies [an important benefit] because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs.'" Warsoldier, 418 F.3d at 995, quoting Thomas v. Review Bd. of the Ind. Employment Sec. Div., 450 U.S. 707, 717-18 (1981)). Stated differently, a prison policy substantially burdens religious practice if it puts significant pressure on the inmates "'to abandon their religious beliefs.'" Shakur v. Schirro, 514 F.3d 878, 888 (9th Cir. 2008), quoting Warsolider, 418 F.3d at 995.

Mr. Curry failed to show a triable issue that the denial of scented oil placed a substantial burden on his religious exercise with the meaning of RLUIPA. He is able to carry out most nearly all other aspects of his religious faith including the thrice daily worship ritual in his cell. He does not contest the prohibition on incense; only his desire to substitute the scent with oil. Mr. Curry does not dispute that he was allowed to and did conduct Shetaut Neter worship three times a day without the oil. He was able to conduct the worship ritual that included washing his face and hands, practicing yoga postures, reciting prayers, chanting and meditating. Mr. Curry also does not dispute that he was allowed to have his Ankh amulet, prayer mat, books, and study materials to use in his worship ritual if he desired. Mr. Curry indicates that he wanted the oil for its fragrance. Without the oil, he had to do "most of [his] rituals in the cells which is very difficult being inches from a smelly toilet." Docket # 1, p. 16 (errors in source). However, the allowance of oil would not change the location of the ritual: he would still be doing the ritual in the cell. He presents no evidence that the toilet could not be cleaned or that his body had to point in a specific direction to engage in the worship such that his head had to be "inches from a smelly toilet" when he worshiped. The denial of oil while perhaps presenting some impediment, does not constitute a "significantly great restriction" upon the exercise of his religious beliefs, nor does it make that religious exercise "effectively impracticable." San Jose Christian College, 360 F.3d at 1034, 1035.

The same analysis applies to the absence of oil during the group worship services Mr. Curry attended in the latter half of 2008. Even if oil was not made available for Shetaut Neter group worship services, the undisputed evidence shows that Mr. Curry was allowed to attend some Shetaut Neter group religious services in the prison chapel in the latter half of 2008 and to attend a special Shetaut Neter holiday service on December 26, 2008. Cf. Greene, 513 F.3d at 988.

Several courts have found there is no substantial burden on religious exercise where a prisoner lacked access to prayer oils, see Riggins v. Clarke, 403 F. App'x 292, 2010 WL 4670444, **3 (9th Cir. 2010) (affirming summary judgment for defendants; "nothing in the record suggests that a lack of prayer oils placed a substantial burden on Appellant's ability to practice his religion, and it is clear that Appellant's request for transfer of funds to purchase these oils was eventually processed"), Davis v. Powell, 2011 WL 4344251, *11 (S. D. Cal. 2011) (dismissing RLUIPA claim); a prison restricted third-party purchases of prayer oil, Smith v. Marshall, 2011 WL 4794941, *1 (9th Cir. 2011) (upholding dismissal of RLUIPA claim); and a prisoner was allowed to attend a candle-lighting ceremony but without the company of other inmates, Barendt v. Gibbons, 2012 WL 210525 (9th Cir. 2012) (affirming summary judgment for defendants on RLUIPA claim; plaintiff "failed to introduce evidence that this limited restriction on a group religious service substantially burdened his ability to exercise his religion"). See also Campbell v. Alameida, 295 F. App'x 130, 2008 WL 4415151 (9th Cir. 2008) (affirming summary judgment for defendants on qualified immunity grounds against RLUIPA claim that plaintiff was refused permission to possess religious oil in his cell because he was not a Muslim). See also Parnell v. Tucker, 2011 WL 4842461 (9th Cir. 2011) (affirming summary judgment for defendants on RLUIPA claim that a prisoner was precluded from certain prayer services during Ramadan); Sefeldeen v. Alameida, 238 F. App'x 204, 2007 WL 1585599 (9th Cir. 2007) (affirming summary judgment for defendant prison officials against RLUIPA claim; plaintiff "identifies no evidence in the record suggesting that eating the offered vegetarian meal plan violated any principles of his personal religious belief"). But see Charles v. Verhagen, 220 F. Supp. 2d 937, 947-48 (W. D. Wis. 2002), aff'd, 348 F.3d 601, 611 (7th Cir. 2003) (denial of request for Islamic prayer oil constitutes substantial burden).

Thus, even viewing the evidence in the light most favorable to Mr. Curry, no reasonable jury could conclude that prison officials substantially burdened his religious exercise by denying his requests for oil. Defendants are entitled to judgment as a matter of law on the claim that the denial of oil to Mr. Curry violated his rights under RLUIPA.

In addition to Defendants' entitlement to judgment on the merits of the claim, Plaintiff's request for injunctive relief with regard to the oil appears to be moot because there is no evidence that Mr. Curry is denied access to oil at his current prison, Centinela State Prison, where he has been incarcerated for almost two years. See Alvarez v. Hill, 667 F.3d 1061, 1061-65 (9th Cir. 2012).

Lastly, the parties agree that Mr. Curry is not entitled to recover monetary damages under RLUIPA. See Opposition, pp. 2-3; Reply, p. 12; see generally Sossamon v. Texas, 131 S. Ct. 1651, 1663 (2011); Alvarez, 667 F.3d at 1061; cf. Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d 916, 922 n.3 (9th Cir. 2011).

2. Free Exercise Claim

This claim, in which Mr. Curry asserts a violation of the Free Exercise Clause of the First Amendment to the U.S. Constitution is brought under 42 U.S.C. § 1983, which "provides a cause of action for the 'deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983).

The First Amendment guarantees the right to the free exercise of religion. The free exercise right, however, is necessarily limited by the fact of incarceration, and may be curtailed in order to achieve legitimate correctional goals or to maintain prison security. See O'Lone v. Shabazz, 482 U.S. 342, 348-49 (1987). In order to establish a free exercise violation, a prisoner must show a defendant burdened the practice of his religion without any justification reasonably related to legitimate penological interests. See Shakur v. Schriro, supra, 514 F.3d at 883-84. As Mr. Curry has offered evidence that he was denied access to oil in his cell and that he had a sincerely held religious belief in the need for oil for his worship service, the analysis of his Free Exercise claim turns on whether the denial was reasonably related to legitimate penological interests. See O'Lone, 482 U.S. at 349 (citing Turner v. Safley, 482 U.S. 78, 89 (1987)).

The Supreme Court has identified four factors for Courts to consider when determining whether a regulation or practice is reasonably related to legitimate penological interests: (1) whether there is a "valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it"; (2) "whether there are alternative means of exercising the right that remain open to prison inmates"; (3) "the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally"; and (4) the "absence of ready alternatives," or, in other words, whether the rule at issue is an "exaggerated response to prison concerns." Turner, 482 U.S. at 89-90. The task in considering the Turner factors is not to balance the four factors, but, rather, to determine whether the state shows a "reasonable" relation between the policy and legitimate penological objectives, rather than simply a "logical" one. Beard v. Banks, 548 U.S. 521, 533 (2006). While all justifiable inferences must be drawn in the prisoner-plaintiff's favor with respect to matters of disputed fact, in disputed matters of professional judgment the Court's inferences must accord deference to the views of prison authorities. See id. at 529-30. Unless a prisoner can point to evidence showing the policy is not reasonably related to legitimate penological objectives, sufficient to allow him to prevail on the merits, he cannot prevail at the summary judgment stage. Id. at 530.

With respect to the first Turner factor, the evidence shows a rational and valid connection between the restriction on inmate access to oil and a legitimate governmental interest. The undisputed evidence shows that prison officials were trying to prevent oil from being used as a potential currency in the inmate population. Inmate possession of money was prohibited by regulation, see 15 Cal. Code Regs. § 3006, and there were increased safety risks and potential for inmate disputes if the inmates could trade oil. The prison had a legitimate interest in controlling potential contraband. See Pell v. Procunier, 417 U.S. 817, 822-23 (1974) (identifying four central penological objectives as deterrence (by making incarceration undesirable), protection (by quarantining criminal offenders), rehabilitation, and ensuring internal security of the prison facility). There also is undisputed evidence that often the religious oils were combustible and that burning oil within inmate cells posed fire safety concerns. The oil policy was eventually changed (i.e., as of 2009, any inmate was allowed to seek authorization for the possession of a limited amount of oil in his cell) but that change does not entirely negate the legitimacy of the governmental interests that supported the earlier policy. The ban was modified because it was not realistically enforceable, not because it was not supported by a governmental interest. The undisputed evidence was that in 2007-2008, Salinas Valley officials were concerned about providing religious accommodations to inmates unless there was a documented religious need for the accommodation, and that the oil policy was in transition. The Muslim and Protestant inmates, having presented evidence to support their need for religious oil, obtained authorization to have it in their possession first. As a result of trading between inmates from a variety of religious groups and the Muslims and Protestant inmates, inmates from a variety of religious groups possessed religious oil by 2008. The policy was reviewed and revised, so that by late 2009, any inmate could seek authorization for possession of religious oil. The change in policy is not proof of the irrationality of the earlier policy and instead appears to be a constructive attempt to afford First Amendment freedoms to inmates in an orderly manner. Defendants have satisfied the first Turner factor, in that Defendants have shown a logical connection between the policy of not allowing inmates to possess oil in their cells and the legitimate need for ensuring prison security. See O'Lone, 482 U.S. at 350 (finding policy not allowing inmates to return from outside work detail to attend Jumu'ah services logically connected to prison's legitimate security and administrative concerns).

As noted earlier, the second Turner factor is "whether there are alternative means of exercising the right that remain open to prison inmates." Turner, 482 U.S. at 89-90. The denial of religious oil did not deprive Mr. Curry of all means of exercising his Shetaut Neter religion. Cf. Overton v. Bazzetta, 539 U.S. 126, 135 (2008) (limits on prison visitation passed muster under Turner test because prisoner could write letters and make telephone calls to persons not allowed to visit). It is not disputed that Mr. Curry was able to engage in some Neterian worship without the oil. See O'Lone, 482 U.S. at 352-53 (although there were no alternative means for the prisoners on work detail to attend Jumu'ah services, the prisoners nevertheless retained their ability to participate in other Muslim religious ceremonies and practices, and that ability supported the reasonableness of the restriction). Mr. Curry could attend occasional Shetaut Neter group worship services and he could engage in the in-cell worship three times a day, during which he could wash his face and hands, practice yoga postures, recite prayers, chant and mediate. There also were means, other than worship rituals, for Mr. Curry to exercise his Neterian religion: he could study the Shetaut Neter written materials he had, and could practice the Neterian teachings he had learned. See Curry # 1 Decl., ¶ 5.

The third Turner factor requires the Court to consider the "impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally." Turner, 482 U.S. at 90. Accommodating the request to possess oil in the cell would have had a negative impact on institutional safety because it would have facilitated the inmate hoarding and trading of oil that prison officials were trying to avoid at the time they disallowed oil. That the oil might have been subjected to trade with other inmates is not pure speculation in light of his evidence that Mr. Curry ran an underground purchasing service for other inmates. See Curry #2 Decl., ¶¶ 6-7. Additionally, allowing individual exceptions for personal religious beliefs held by only one prisoner (or a very small group of prisoners), and based only on his say-so of a religious need for the item, could be very disruptive to prison officials, given that prison authorities might be flooded with requests of all sorts for oil or other religious artifacts. See Henderson v. Terhune, 379 F.3d 709, 714 (9th Cir. 2004).

The fourth Turner factor requires the Court to consider whether there is an "absence of ready alternatives" to the prison policy. Turner, 482 U.S. at 90. The burden is on the prisoner challenging the regulation to show that there are obvious, easy alternatives to the regulation. See O'Lone, 482 U.S. at 350; see also Mauro v. Arpaio, 188 F.3d 1054, 1063 (9th Cir. 1999). The same safety concern arising from oil being the subject of trade among inmates also weighs in favor of Defendants on the fourth Turner factor.

Having considered the various Turner factors, the Court concludes that Mr. Curry does not raise a triable issue of fact that his right to free exercise of religion was improperly impinged upon by Defendants. Defendants are entitled to judgment in their favor on Mr. Curry's First Amendment claim.

3. Equal Protection Claim

Mr. Curry contends that prison officials treated him differently than inmates of other faiths. To survive summary judgment on his equal protection claim, Mr. Curry must show a triable issue of fact that Defendants intentionally treated Mr. Curry differently from similarly situated inmates. See McCollum v. California Dep't of Corrections and Rehabilitation, 647 F.3d 870, 880-81 (9th Cir. 2011) (granting summary judgment for prison officials on Wiccan prison chaplain's equal protection claim where plaintiff-chaplain, among other things, had failed to articulate which clergy were similarly situated to him). Mr. Curry has failed to do so. Mr. Curry does not dispute that the inmates who first received access to religious oil in 2007-2008 (i.e., the Muslims and Protestants) were those who provided documentation of the religious need for it and has not raised a triable issue of fact that he did submit such documentation. It is undisputed that Mr. Curry's request to be allowed to possess oil was due to his failure to submit documentation that oil is required for a Shetaut Neter practice. On the evidence in the record, no reasonable jury could find that Defendants denied his request for oil due to impermissible discriminatory intent against Neterian inmates. Defendants are entitled to judgment on the Fourteenth Amendment claim.

4. Qualified Immunity Defense

Defendants also are entitled to qualified immunity against the First and Fourteenth Amendment claims with regard to the religious oil. The defense of qualified immunity protects government officials "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To determine whether an official is entitled to qualified immunity, the Court must decide whether the facts alleged show the official's conduct violated a constitutional right; and, if so, whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. Saucier v. Katz, 533 U.S. 194, 201-02 (2001); see also Pearson v. Callahan, 555 U.S. 223 (2009) (overruling Saucier's requirement that qualified immunity analysis proceed in a particular sequence). "[I]f no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity." Saucier, 533 U.S. at 201. The Court has concluded that the evidence fails to show a violation of Mr. Curry's First or Fourteenth Amendment rights with regard to the religious oil. Therefore, Defendants prevail on the first prong of the Saucier test. As a matter of law, Defendants are entitled to qualified immunity against the First and Fourteenth Amendment claims with regard to the religious oil. B. Religious Diet Request

There is an evidentiary problem with Defendants' motion for summary judgment on the Kemetic diet claims that requires that portion of the motion to be denied. Specifically, a declaration essential to Defendants' entitlement to summary judgment was submitted with the reply brief rather than with the motion for summary judgment. Mr. Curry filed an objection to the reply evidence on the ground that it should have been presented in the moving papers. Docket # 48. The Court agrees. The late submission of the declaration deprived Mr. Curry of the opportunity to address and contest it in his opposition. For this reason, the Court will deny the motion for summary judgment on the religious diet request and allow Defendants to file the motion again, this time properly supporting their moving papers.

L. Maurino, the Departmental Food Administrator for the CDCR, provided two declarations. Her first declaration (Docket # 31) was filed with the motion for summary judgment. In that declaration, Maurino discussed the three religious diets that were currently available, discussed the costs of those diets, and stated that Mr. Curry's requested diet would cost as much or more than existing diets. She spoke in general terms of the costs and difficulties of providing another dietary choice to inmates, and did not calculate the expected costs of providing the diet that Mr. Curry had requested. In her second declaration (Docket # 44), filed with Defendants' reply brief, Maurino did the math and showed that the requested Kemetic diet would cost $57,286.95 to $66,506.95 per year - apparently more than thirty times more expensive than the standard diet and more than eighteen times more expensive than the kosher diet (which was the most expensive religious diet). See Maurino # 2 Decl., ¶¶ 11-16 (calculating cost of Mr. Curry's requested diet); Maurino # 1 Decl., ¶ 12 (listing costs of other diets). Maurino also provided some more detailed information about the requested diet and the CDCR food service options in her second declaration. Defendants also submitted a declaration from a correctional administrator, B. Hedrick, who provided information about the security impact of a prison staff member leaving the prison to shop for groceries to prepare Mr. Curry's requested diet. Docket # 45. Hedrick also provided information about the costs and concerns of obtaining food from a non-registered vendor.

A party moving for summary judgment must show that he is "entitled to judgment as a matter of law," see Fed. R. Civ. P. 56(a), but the way he does that depends on what he must prove at trial. Where there is a shifting burden of proof - as in an RLUIPA claim - it appears that a defendant's burden in a motion for summary judgment depends on the ground(s) on which he intends to prevail. If a defendant urges in his moving papers only that plaintiff cannot shoulder his initial burden, defendant can point out the absence of evidence to support plaintiff's claim. See Celotex, 477 U.S. at 324. However, if defendant also urges in his moving papers that (regardless whether plaintiff satisfies his initial burden) defendant satisfies the burden that will shift to him, his showing must be sufficient for the Court to hold that no reasonable trier of fact could find other than for him on each matter as to which he has the burden of persuasion at trial. See generally Houghton, 965 F.2d at 1536. In the RLUIPA context, that means that a defendant could move for summary judgment by (1) pointing to plaintiff's inability to demonstrate a substantial burden on his religious exercise, and/or (2) pointing to evidence that the government used the least restrictive means to satisfy a compelling state interest when it burdened the religious exercise. In Mr. Curry's case, Defendants emphasized the first kind of showing in their moving papers, and then shifted to second kind of showing in their reply papers. And the "compelling state interest" evidence that was presented shifted from the administrative convenience of limited diet options to the extraordinary cost of Mr. Curry's requested diet. That was impermissible. Defendants' reply evidence is critical to the RLUIPA analysis because it brings into focus whether the rejection of the requested diet was the least restrictive means to further a compelling government purpose. The reply evidence went far beyond simply responding to matters first raised in the opposition.

Rule 56(e) allows the Court to issue any "appropriate order" when a party has failed to properly support an assertion of fact. An appropriate order under the circumstances is to deny Defendants' motion for summary judgment on the Kemetic diet claims and to allow Defendants to make a new motion in which they submit all the evidence with their moving papers rather than waiting until the reply to submit critical evidence. This will allow the pro se Plaintiff an opportunity to prepare a meaningful opposition while having in hand the evidence that purports to demonstrate the compelling government interest. Requiring a new motion rather than simply permitting Plaintiff to file a rebuttal to the existing reply also will allow both Plaintiff and Defendants to address two other matters. First, the parties are invited to discuss, and cite to cases discussing, whether cost and cost containment are compelling government interests for purposes of the RLUIPA analysis. Second, Defendants' evidence shows the cost per inmate per day of providing the standard and three existing religious diets, but it is not completely clear whether those costs include overhead or just the purchase price for the food. Defendants should explain in general terms the method by which the cost per inmate per day for the several diet options were calculated. Also, Maurino's first declaration states that Exhibit A to that declaration shows the cost per day per inmate of each diet. See Maurino #1 Decl., ¶ 12, but the Court does not see that information on the exhibit. Defendants should identify the place on that exhibit where the information is located or provide a new exhibit. The Court wants the information so that it may make apples-to-apples comparisons of the costs for the various diet options that appear to be essential to the analysis. C. Mr. Curry's Motion For Preliminary Injunction

Mr. Curry has filed a motion for preliminary injunction with regard to the religious diet request. He asks for an order enjoining Defendants to provide him a Kemetic diet, to change the CDCR's religious diet program to include an optional vegan diet, and to train food handlers and custody staff in the handling of the vegan food.

"A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008). Winter did not, however, completely reject the validity of the sliding scale approach to preliminary injunctions. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134 (9th Cir. 2011). Under the "sliding scale" approach used in the Ninth Circuit - also dubbed the "serious question" test in Alliance for Wild Rockies - "the elements of the preliminary injunction test are balanced, so that a stronger showing of one element may offset a weaker showing of another." Id. at 1131. Thus, even after Winter, "serious questions going to the merits and a hardship balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming the other two elements of the Winter test are also met." Id. at 1132 (citations and internal quotation marks omitted).

Mr. Curry's motion for preliminary injunction is DENIED. (Docket # 46.) Mr. Curry has not satisfied the Winter standard for a preliminary injunction. The evidence now in the recordshows that Mr. Curry has very little, if any, chance of prevailing on the merits of his RLUIPA, First Amendment or Fourteenth Amendment claims with regard to the Kemetic diet he has demanded from prison officials due to its extraordinary cost relative to the other diets available to prisoners. See Maurino Decl. # 1, ¶ 12; Maurino #2 Decl., ¶ 16. Mr. Curry also has not satisfied the Alliance for Wild Rockies standard because (1) he does not face irreparable harm - Shetaut Neter "recognizes that sometimes strict adherence to the Kemetic diet may not be possible for inmates in institutions due to the institution not being set up to meet some of the non-traditional dietary requirements," Ashby Decl., ¶ 10, and (2) requiring the CDCR to provide a diet that is estimated to cost more than fifty times as much as the standard diet is not in the public interest.

V. CONCLUSION

For the foregoing reasons, Defendants' motion for summary judgment is GRANTED IN PART. (Docket # 37.) Defendants are entitled to judgment as a matter of law on Plaintiff's RLUIPA, First Amendment and Fourteenth Amendment claims with regard to the denial of his requests for oil. The Court denies without prejudice Defendants' motion for summary judgment on the religious diet claims. Plaintiff's motion for a preliminary injunction is DENIED. (Docket # 46.)

The following briefing schedule is now set for Defendants to file a new motion for summary judgment on the religious diet claims:

1 No later than May 4, 2012, Defendants must file and serve the motion for summary judgment on the religious diet claims.

2. No later than June 8, 2012, Plaintiff must file and serve on Defendants' counsel his opposition to the motion for summary judgment.

3. No later than June 25, 2012, Defendants must file and serve their reply brief, if any.

IT IS SO ORDERED.

____________

EDWARD M. CHEN

United States District Judge

Navajo Nation, 535 F.3d at 1069-70. In Navajo Nation, the court concluded that the government-approved use of artificial snow with a small amount of wastewater on government-owned parkland on a sacred mountain was not a substantial burden on plaintiffs' religious activities on the mountains, including the spiritual fulfillment they derive from such activities, where plaintiffs continued to have virtually unlimited access to the mountain for religious and cultural purposes. See id. at 1063, 1070 n.12. "[A] government action that decreases the spirituality, the fervor, or the satisfaction with which a believer practices his religion is not" a substantial burden. Id. at 1063.

The court "express[ed] no opinion as to the standards to be applied in RLUIPA actions." Navajo Nation, 535 F.3d at 1007 n.23. Nonetheless, Navajo Nation is instructive because it based its definition of a "substantial burden" on the same line of cases used as authority for the RLUIPA "substantial burden" test, i.e., Thomas v. Review Bd., 450 U.S. at 717-18 - cited in both Warsoldier and Shakur - is also cited in Navajo Nation as an elaboration of the test from the Sherbert case. Additionally, the Navajo Nation standard appears consistent with the articulation of the test in Warsoldier, although perhaps not with San Jose Christian College's "significantly great restriction or onus upon such exercise" if that is viewed as a different standard rather than an umbrella description of the test from Warsoldier.