James Benjamin Barstad v. Department of Corrections State of Washington;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES BENJAMIN BARSTAD,
Plaintiff - Appellant,
v.
DEPARTMENT OF CORRECTIONS
STATE OF WASHINGTON; et al.,
Defendants - Appellees.
No. 13-35338
D.C. No. 2:12-cv-01023-JCC
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Submitted June 22, 2015**
Before: HAWKINS, GRABER, and W. FLETCHER, Circuit Judges.
Washington state prisoner James Benjamin Barstad appeals pro se from the
district court’s summary judgment in his 42 U.S.C. § 1983 action alleging First
Amendment and the Religious Land Use and Institutionalized Persons Act
FILED
JUL 01 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

-- 1 of 3 --

(“RLUIPA”) claims. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo, Shakur v. Schriro, 514 F.3d 878, 883 (9th Cir. 2008), and we affirm.
The district court properly granted summary judgment on Barstad’s free
exercise claim because Barstad failed to raise a genuine dispute of material fact as
to whether defendants’ religious diet policy was not reasonably related to
legitimate penological interests. See Turner v. Safley, 482 U.S. 78, 89 (1987) (a
prison regulation that “impinges on inmates’ constitutional rights” is valid “if it is
reasonably related to legitimate penological interests”); Resnick v. Adams, 348
F.3d 763, 768-71 (9th Cir. 2003) (applying four-part Turner test to prisoner’s free
exercise challenge to prison policy requiring prisoner to submit an application to
receive kosher meals and granting summary judgment because policy was
reasonably related to the prison’s interest in the orderly administration of its
religious diet program).
The district court properly granted summary judgment on Barstad’s
Establishment Clause claim because Barstad failed to raise a genuine dispute of
material fact as to whether defendants’ religious diet policy had the primary or
principal effect of advancing religion. See Inouye v. Kemne, 504 F.3d 705, 712 n.7
(9th Cir. 2007) (setting forth test for Establishment Clause violation).
The district court properly granted summary judgment on Barstad’s
13-35338 2

-- 2 of 3 --

RLUIPA claim because Barstad failed to raise a genuine dispute of material fact as
to whether defendants’ religious diet policy substantially burdened the exercise of
his religious belief. See Greene v. Solano Cnty. Jail, 513 F.3d 982, 988 (9th Cir.
2008) (under RLUIPA, the prisoner bears the initial burden of showing that the
prison’s policy imposes a “substantial burden” on his religious exercise; only then
will the burden shift to the prison to demonstrate that the policy furthers a
“compelling governmental interest” by the “least restrictive means” (citation and
internal quotation marks omitted)); San Jose Christian Coll. v. City of Morgan
Hill, 360 F.3d 1024, 1034 (9th Cir. 2004) (under RLUIPA, a “substantial burden”
exists if it imposes “a significantly great restriction or onus” on a religious
exercise).
We do not consider documents or arguments that were not presented to the
district court. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per
curiam) (declining to consider arguments not raised below); United States v. Elias,
921 F.2d 870, 874 (9th Cir. 1990) (“Documents or facts not presented to the
district court are not part of the record on appeal.”). Nor do we consider issues or
arguments not specifically and distinctly raised and argued in the opening brief.
See Padgett, 587 F.3d at 985 n.2.
AFFIRMED.
13-35338 3

-- 3 of 3 --