GENE MCLENITHAN, Jr. v. MAX WILLIAMS, Director of Oregon Department of Corrections;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GENE MCLENITHAN, Jr.,
Plaintiff-Appellant,
v.
MAX WILLIAMS, Director of Oregon
Department of Corrections; et al.,
Defendants-Appellees.
No. 16-35376
D.C. No. 3:09-cv-00085-AC
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
John V. Acosta, Magistrate Judge, Presiding
Argued and Submitted May 7, 2018
Portland, Oregon
Before: RAWLINSON and NGUYEN, Circuit Judges, and SILVER,** District
Judge.
Oregon state prisoner Gene McLenithan, Jr., appeals the district court’s
order granting summary judgment in favor of Defendants-Appellees. We have
jurisdiction under 28 U.S.C. § 1291. We review the grant of summary judgment
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Roslyn O. Silver, United States District Judge for the
District of Arizona, sitting by designation.
FILED
JUN 26 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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de novo. King v. County of Los Angeles, 885 F.3d 548, 556 (9th Cir. 2018). For
the reasons below, we affirm in part, reverse in part, and remand.
In the operative complaint, McLenithan alleged five claims for relief.
McLenithan has not made any arguments regarding his “deliberate indifference”
claim based on the Eighth Amendment. Therefore, the district court’s order
granting summary judgment on that claim will be affirmed. See Earl v. Nielsen
Media Research, Inc., 658 F.3d 1108, 1118 (9th Cir. 2011) (affirming summary
judgment on claim not argued on appeal).
As for McLenithan’s remaining four claims, two of those claims were
duplicative, leaving only three claims on appeal: a claim for injunctive relief under
the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C.
§ 2000cc et seq., a claim for injunctive relief and money damages under the First
Amendment’s Free Exercise Clause, and a claim for injunctive relief and money
damages under the Fourteenth Amendment’s Equal Protection Clause. These
claims are brought against all five Defendants-Appellees.
Defendants-Appellees concede summary judgment should not have been
granted in their favor on the three claims to the extent he seeks injunctive relief.
While McLenithan asserts that the district court should have granted summary
judgment entirely in his favor and seeks remand for calculation of damages, the
record does not support that result.

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McLenithan’s RLUIPA and First Amendment claims required he establish
that the denial of a kosher diet burdened a sincere religious belief. See Holt v.
Hobbs, 135 S. Ct. 853, 862 (2015) (RLUIPA); Malik v. Brown, 16 F.3d 330, 333
(9th Cir. 1994) (First Amendment). Viewing the record in the light most favorable
to Defendants-Appellees, there is a genuine dispute of material fact regarding
McLenithan’s sincerity. McLenithan’s long history of requesting a kosher diet
suggests he is sincere, but he routinely purchased non-kosher items both before and
after he was provided a kosher diet. A reasonable factfinder could conclude
McLenithan’s professed need for a kosher diet was not based on a sincere religious
belief.
As for McLenithan’s claim based on the Equal Protection Clause, there is a
genuine dispute of material fact whether prison officials inquired into the sincerity
of Jewish inmates’ religious beliefs before providing them with kosher diets.
According to McLenithan, prison officials did not. The record, however, contains
a statement by a prison chaplain that Jewish inmates received kosher diets only
upon showing they were “sincere practi[tioners] of Jewish belief, traditions, etc.”
Remand is required to determine whether Jewish inmates and McLenithan were, in
fact, similarly situated.
Defendants-Appellees claim they are entitled to qualified immunity on the
remaining claims, but we need not reach that issue in the first instance. The district

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court concluded that defendants are entitled to qualified immunity based on its
ruling that McLenithan failed to raise a triable issue concerning a constitutional
violation. Because we reverse that ruling, we reverse the district court’s qualified
immunity ruling as well.
On remand, the district court should identify the particular acts on which
McLenithan bases his claims and the particular Defendants-Appellees involved in
those acts. See Cunningham v. Gates, 229 F.3d 1271, 1289 (9th Cir. 2000). Once
McLenithan’s allegations are clear, the district court should apply the applicable
legal framework for the remaining claims and determine whether qualified
immunity bars McLenithan’s request for money damages.
Costs shall be taxed against Defendants-Appellees. See Fed. R. App. P.
39(a)(4).
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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