Asher James Becker v. BRENT CARNEY, WA DOC State Dietician;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ASHER JAMES BECKER,
Plaintiff-Appellant,
v.
BRENT CARNEY, WA DOC State
Dietician; et al.,
Defendants-Appellees.
No. 18-35373
D.C. No. 3:16-cv-05315-RBL
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Submitted March 12, 2019**
Before: LEAVY, BEA, and N.R. SMITH, Circuit Judges.
Washington state prisoner Asher James Becker appeals pro se from the
district court’s summary judgment in his action brought under 42 U.S.C. § 1983
and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”)
alleging that defendants interfered with the practice of his religion, were
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
MAR 19 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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deliberately indifferent to his serious medical needs, and retaliated against him for
filing grievances. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo. Jones v. Williams, 791 F.3d 1023, 1030 (9th Cir. 2015). We affirm in part,
reverse in part, and remand.
The district court properly granted summary judgment on Becker’s RLUIPA
claims because Becker failed to raise a genuine dispute of material fact as to
whether defendants’ actions substantially burdened a religious exercise. See
Walker v. Beard, 789 F.3d 1125, 1134-37 (9th Cir. 2015) (to state a RLUIPA
claim, a prisoner must show that he takes part in a religious exercise and the state
has substantially burdened that exercise); San Jose Christian Coll. v. City of
Morgan Hill, 360 F.3d 1024, 1034 (9th Cir. 2004) (defining substantial burden for
purposes of RLUIPA).
The district court properly granted summary judgment on Becker’s free
exercise claims because Becker failed to raise a genuine dispute of material fact as
to whether defendants’ actions substantially burdened the practice of his religion or
whether the regulations were not reasonably related to a legitimate penological
interest. See Jones, 791 F.3d at 1031-32 (defining substantial burden for purposes
of the Free Exercise Clause); see also Turner v. Safley, 482 U.S. 78, 89-90 (1987)

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(factors for determining whether a prison regulation is reasonably related to a
legitimate penological interest).
The district court properly granted summary judgment on Becker’s
deliberate indifference claim because Becker failed to raise a genuine dispute of
material fact as to whether defendants were aware of and disregarded an excessive
risk to Becker’s health or safety. See Toguchi v. Chung, 391 F.3d 1051, 1057 (9th
Cir. 2004) (elements of a deliberate indifference claim).
The district court properly granted summary judgment on Becker’s equal
protection claim because Becker failed to raise a genuine dispute of material fact as
to whether defendants discriminated against him due to his religion. See Hartmann
v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1123 (9th Cir. 2013)
(requirements for an equal protection claim).
The district court properly granted summary judgment on Becker’s
retaliation claim against defendant Roberts because Hunt failed to raise a genuine
dispute of material fact as to whether Roberts took any adverse action against him
because of his protected conduct. See Rhodes v. Robinson, 408 F.3d 559, 567-68
(9th Cir. 2005) (elements of a retaliation claim in the prison context).
The district court granted summary judgment on Becker’s retaliation claim

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against defendant Williamson on the basis that Washington’s Dead Man’s Act
would preclude Becker from testifying about this claim at trial in light of
Williamson’s intervening death. However, in the sworn declaration of Peter
McDaniels, McDaniels corroborated Becker’s allegations that Williamson
retaliated against Becker for filing a grievance. Because the McDaniels’
declaration raises a genuine dispute of material fact as to whether Williamson
retaliated against Becker, we reverse the judgment as to this claim only and
remand for further proceedings.
Because we reverse the summary judgment on one of Becker’s federal
claims, we also remand for the district court to reconsider whether it will exercise
supplemental jurisdiction over Becker’s state law claims.
The parties shall bear their own costs on appeal.
AFFIRMED in part, REVERSED in part, and REMANDED.

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