Opinion
21-16068
07-01-2024
ERNEST JORD GUARDADO, Plaintiff-Appellant, v. NEVADA DEPARTMENT OF CORRECTIONS; JAMES DZURENDA, Director; K. THOMAS, Dep Dir Pro; BRIAN WILLIAMS, Warden; JULIO CALDERIN; JENNIFER NASH, Associate Warden; RICHARD SNYDER; HAROLD WICKHAM; STATE OF NEVADA, Defendants-Appellees.
NOT FOR PUBLICATION
Argued and Submitted May 13, 2024 San Francisco, California
Appeal from the United States District Court for the District of Nevada, D.C. No. 2:18-cv-00198-GMN-VCF Gloria M. Navarro, District Judge, Presiding
Before: CALLAHAN and NGUYEN, Circuit Judges, and KRONSTADT, [**] District Judge.
MEMORANDUM [*]
Ernest Guardado appeals the district court's grant of summary judgment in favor of Neveda Department of Correction officials ("Defendants"). We presume the parties' familiarity with the facts and do not discuss them in detail here. We have jurisdiction pursuant to 28 U.S.C. § 1291.
Guardado's motions for judicial notice (Dkt. 35) and for filing a substitute or correct brief (Dkt. 63) are granted.
"We review de novo a district court's grant or denial of summary judgment." Duarte v. City of Stockton, 60 F.4th 566, 570 (9th Cir. 2023). We may "affirm on any ground supported by the record even if not explicitly relied upon by the district court." Johnson v. Barr, 79 F.4th 996, 1003 (9th Cir. 2023). We affirm the district court's order because Defendants are entitled to qualified immunity as it was not "sufficiently clear" that Nevada Department of Corrections' Religious Practice Manual ("AR 810.3") violated Guardado's "clearly established" constitutional rights. District of Columbia v. Wesby, 583 U.S. 48, 63 (2018); Pearson v. Callahan, 555 U.S. 223, 231 (2009).
Because there are no cases of "controlling authority" from the Ninth Circuit or U.S. Supreme Court, Guardado relies on several cases from other jurisdictions to argue that a consensus of decisions "clearly establish" that AR 810.3 violates his constitutional rights. See Kramer v. Cullinan, 878 F.3d 1156, 1163 (9th Cir. 2018). However, each of the cases on which Guardado relies found prison regulations and policies unconstitutional because they turned exclusively on racial classifications. See Combs v. Corrections Corp. of Am., 977 F.Supp. 799, 801-03 (W.D. La. 1997) (holding "ethnicity test . . . does not pass constitutional muster"); Mitchell v. Angelone, 82 F.Supp.2d 485, 488-91 (E.D. Va. 1999) (finding policy that required "proof of [] Native American heritage" to be racially discriminatory); Morrison v. Garraghty, 239 F.3d 648, 65259 (4th Cir. 2001) (holding unconstitutional regulation that conditioned inmate's religious practice on having "Native American blood"); Brown ex rel. Indigenous Inmates v. Schuetzle, 368 F.Supp.2d 1009, 1024 (D.N.D. 2005) (holding unconstitutional regulation that prevented "non-Native Americans" from religious participation). Here, it is not "beyond debate" that AR 810.3 turns on exclusively racial criteria, because it permits a non-Native American inmate to participate in Native American ceremonies if the inmate can "[d]emonstrate credible association with tribal living via written documentation from a recognized tribe." See Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).
Like the policies challenges in Combs, Mitchell, Morrison, and Brown ex rel., there are other limitations in AR 810.3 that appear to turn on racial lines. For example, Paragraph 9, subparagraph (d) of AR 810.3 permits participation in Native American ceremonies if an inmate can "[s]uccessfully obtain written verification of Native American ethnicity from the Nevada Indian Commission." We find it significant, however, that the Nevada Indian Commission requested that subparagraph (d) be removed from AR 810.3, and that Defendants represented both in the district court and on appeal that they are revising AR 810.3 to remove its racial limitations. No. 2:18-cv-00198, Dkt. 41 at 19:21-20:6; Oral Arg. 17:2818:18.
Guardado also relies on two unpublished decisions to argue that his constitutional rights were "clearly established." Neither is helpful. To begin, the district court in Mauwee v. Donat, No. 3:06-cv-00122, 2009 WL 3062787, at *7 (D. Nev. Sept. 18, 2009), explained that the "state of the law regarding the forced exclusion of non-Indian persons from Indian religious ceremonies is not entirely clear." If the state of the law was not "entirely clear" at the time Mauwee was decided, the district court's unpublished decision did not change this circumstance. See Hines v. Youseff, 914 F.3d 1218, 1230 (9th Cir. 2019) (holding that unpublished district court decisions "show that the law was developing-not that it was already clearly established."). Next, in Kille v. Calderin, the Nevada Supreme Court in an unpublished opinion held AR 810.3 facially discriminatory because inmates seeking to practice their Native American beliefs "are the only group required to demonstrate association or ethnicity in order to participate in ceremonies," while other faith groups are not subject to these requirements. No. 72358, 2019 WL 2089533 at *2 (Nev. May 10, 2019). Therefore, a reasonable interpretation of Kille is that AR 810.3 discriminates on the basis of religion, and not race. "[I]t will be a rare instance in which, absent any published opinions on point or overwhelming obviousness of illegality, we can conclude that the law was clearly established on the basis of unpublished decision only." Rico v. Ducart, 980 F.3d 1292, 1300-01 (9th Cir. 2020) (quoting Sorrels v. McKee, 290 F.3d 965, 971 (9th Cir. 2002)). This is not such a rare instance, especially because Kille appears to have found AR 810.3 unconstitutional partly for different reasons than the "consensus of cases" relied on by Guardado.
AFFIRMED.
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
[**] The Honorable John A. Kronstadt, United States District Judge for the Central District of California, sitting by designation.