Benjamin W. Espinosa; American Humanist Association v. James Dzurenda

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BENJAMIN W. ESPINOSA; AMERICAN
HUMANIST ASSOCIATION,
Plaintiffs-Appellants,
v.
JAMES DZURENDA, in his official
capacity as Director of the Nevada
Department of Corrections; JAMES
STOGNER, in his official capacity as Head
Chaplain of LCC,
Defendants-Appellees.
No. 17-17522
D.C. No.
3:16-cv-00141-RCJ-WGC
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Argued and Submitted August 6, 2019
San Francisco, California
Before: O'SCANNLAIN, SILER,** and NGUYEN, Circuit Judges.
Benjamin W. Espinosa, a Nevada state prisoner, and the American Humanist
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
FILED
AUG 22 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Association challenge the prison’s failure to recognize Humanism as a Nevada
Department of Corrections Faith Group under the Establishment Clause of the First
Amendment and the Equal Protection Clause of the Fourteenth Amendment.
During the pendency of this appeal, Defendants officially recognized Humanism as
a faith group. Defendants also represented to the court that the recognition is “very
permanent” and that Humanism is “entitled to all the same rights and privileges of
all other recognized faith groups.” 1 Defendants therefore have satisfied their
burden under the voluntary cessation doctrine because “subsequent events made it
absolutely clear that the allegedly wrongful behavior could not reasonably be
expected to recur.” See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),
Inc., 528 U.S. 167, 189 (2000) (internal citations omitted); see also Fikre v. FBI,
904 F.3d 1033, 1037 (9th Cir. 2018) (requiring the government to show that a
1 While Defendants admit they have not officially adjudicated Espinosa’s Request
for Accommodation of Religious Practices Form (DOC-3505) and Faith Group
Affiliation Declaration Form (DOC-3503) as they should have done under their
own policy, Defendants represented that the official recognition of Humanism as a
faith group automatically confers certain accommodations, including recognition
in the Nevada Offender Tracking Information System (“NOTIS”) and storage
space for “donated books, printed materials, and other items,” such as CDs,
pictures, and religious medallions. To the extent that additional accommodations
require other forms, such as the Religious Property Request Form (DOC-3528), the
Inmate Request for Recognized Holiday Service Form (DOC-3529), the Request
for NDOC to Accept Donated Items Form (DOC-4514), and the informal, quicker
Inmate Request Form (DOC-3012 or “kite”) to the chaplain for meetings,
Espinosa’s counsel conceded during oral argument that those forms have not been
filed.

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change in its behavior is “‘entrenched’ or ‘permanent’” to prove mootness (quoting
McCormack v. Herzog, 788 F.3d 1017, 1025 (9th Cir. 2015))). We therefore
dismiss this case as moot for lack of a live case or controversy and deny as moot
Defendants’ motion to dismiss.2 U.S. Const. art. III.
DISMISSED.
Each party shall bear its own costs on appeal.
2 Plaintiffs argue that the complaint’s prayer for nominal damages is sufficient to
avoid mootness. By failing on appeal to name any of the Defendants in their
personal capacities, Plaintiffs have waived this issue. See Miller v. Fairchild
Indus., Inc., 797 F.2d 727, 738 (9th Cir. 1986) (stating that we “will not ordinarily
consider matters on appeal that are not specifically and distinctly argued in
appellant’s opening brief”). An action under 42 U.S.C. § 1983 “creates no
[nominal damages] remedy against the State” and its official actors. Arizonans for
Official English v. Arizona, 520 U.S. 43, 68–69 (1997).

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