Freddie Crespin v. State of Arizona; Charles L. Ryan

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FREDDIE CRESPIN,
Plaintiff-Appellant,
v.
STATE OF ARIZONA; CHARLES L.
RYAN,
Defendants-Appellees.
No. 21-15714
D.C. No. 4:19-cv-00539-DCB
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Argued and Submitted February 15, 2022
San Francisco, California
Before: McKEOWN and W. FLETCHER, Circuit Judges, and VRATIL,** District
Judge.
Freddie Crespin, a prisoner incarcerated by the Arizona Department of
FILED
MAR 3 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Kathryn H. Vratil, United States District Judge for the
District of Kansas, sitting by designation.

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Corrections (“ADC”), appeals from the district court’s grant of summary judgment
to Defendants–Appellees under the Religious Land Use and Institutionalized
Persons Act (“RLUIPA”) and under Arizona’s Free Exercise of Religion Act
(“FERA”). We have jurisdiction under 28 U.S.C. § 1291 and we affirm.
1. Crespin argues that the district court erred in finding that he
failed to exhaust available administrative remedies, thus barring his RLUIPA
claim. RLUIPA, 42 U.S.C. §§ 2000cc–cc-5, incorporates the administrative
exhaustion requirement of the Prison Litigation Reform Act (“PLRA”), 42 U.S.C.
§ 1997e(a). Fuqua v. Ryan, 890 F.3d 838, 844 (9th Cir. 2018). Failure to exhaust
administrative remedies is an affirmative defense. Jones v. Bock, 549 U.S. 199,
216 (2007). Where, as here, a suit is governed by the PLRA, summary judgment is
appropriate if the undisputed evidence, viewed in the light most favorable to the
plaintiff, shows a failure to exhaust. Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir.
2014) (en banc). The prison’s own requirements for grievance procedures govern
the “boundaries of proper exhaustion,” including the level of detail necessary.
Fuqua, 890 F.3d at 845 (quoting Jones, 549 U.S. at 218).
Viewed in the light most favorable to him, Crespin did exhaust two
grievances that referenced his entitlement to possess and use religious items after
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ADC seized his property: Grievance No. S06-027-017 and Grievance No.
S06-029-017. But neither of these grievances included any reference to his request
to possess or burn sage. Because he did not provide the prison with adequate
notice of his request to use sage as part of his religious practice, see McCollum v.
Cal. Dept. of Corr. & Rehab. 647 F.3d 870, 876 (9th Cir. 2011), and because the
grievance procedure remained available to him, even after he received a“Vexatious
Grievant” disciplinary warning, Crespin failed to exhaust ADC’s administrative
remedies. The district court properly dismissed his RLUIPA claim without
prejudice, allowing him to file a new grievance and to exhaust his administrative
remedies. See Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir. 2005).
2. Because Crespin’s state court suit was removed to federal court after the
state court ruled on his state-law FERA claim under A.R.S. § 41-1493.01(D), we
have appellate jurisdiction to review that ruling. See 28 U.S.C § 1450. Crespin
argues that the state court erred in holding that the physical injury requirement of
A.R.S. § 31-201.01(L) survives the later enactment of FERA. He contends that
FERA impliedly repealed § 31-201.01(L) to the extent that it prohibits prisoners
from bringing a FERA claim without alleging a serious physical injury.
Under Arizona law, repeal by implication is disfavored. UNUM Life Ins.
Co. of Am. v. Craig, 26 P.3d 510, 516 (Ariz. 2001). “Where a later statute does not
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expressly repeal a former one, they should be construed so as to give effect to each,
if possible.” State v. Cassius, 520 P.2d 1109, 1111 (Ariz. 1974). Because there is
no evidence of the Arizona legislature’s express intent to repeal § 31-201.01(L)
with its passage of FERA, Cassius, 520 P.2d at 1111, and because an implied
repeal of § 31-201.01(L)’s physical injury bar is not necessary to ensure that the
text of FERA, the later statute, has effect, id., the Superior Court did not err in
finding that Crespin’s FERA claim for injunctive relief is barred for failure to
allege a serious physical injury.
AFFIRMED.
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