Patrick Wade Bearup, also named as: Patrick Bearup and Patrick W. Bearup v. RYAN THORNELL, Director of Prison System at Central Office - in his official capacity

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PATRICK WADE BEARUP, also named as:
Patrick Bearup and Patrick W. Bearup,
Plaintiff-Appellant,
v.
RYAN THORNELL, Director of Prison
System at Central Office - in his official
capacity; DAVID SHINN, Director, in his
individual capacity,
Defendants-Appellees.
No. 22-16886
D.C. No. 2:20-cv-02485-SPL-MHB
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Steven Paul Logan, District Judge, Presiding
Submitted March 26, 2024**
Before: TASHIMA, SILVERMAN, and KOH, Circuit Judges.
Arizona state prisoner Patrick Wade Bearup appeals pro se from the district
court’s summary judgment in his 42 U.S.C. § 1983 action alleging violations of the
* 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 28 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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First Amendment and the Religious Land Use and Institutionalized Persons Act.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Hamby v.
Hammond, 821 F.3d 1085, 1090 (9th Cir. 2016) (cross-motions for summary
judgment); Rosebrock v. Mathis, 745 F.3d 963, 970 n.8 (9th Cir. 2014) (mootness
determination). We affirm.
The district court properly granted summary judgment on Bearup’s First
Amendment claim for damages on the basis of qualified immunity because Bearup
failed to show that defendant Shinn violated any clearly established constitutional
right by providing a kosher vegan meal plan rather than kosher meat and dairy.
See Pearson v. Callahan, 555 U.S. 223, 232 (2009) (“Qualified immunity is
applicable unless the official’s conduct violated a clearly established constitutional
right.”); Foster v. Runnels, 554 F.3d 807, 815 (9th Cir. 2009) (“A right is ‘clearly
established’ when its contours are sufficiently defined, such that ‘a reasonable
official would understand that what he is doing violates that right.’” (quoting
Wilson v. Layne, 526 U.S. 603, 615 (1999))).
Contrary to Bearup’s contentions, the district court properly denied
injunctive relief because the prison voluntarily changed the allegedly infringing
policy by implementing a new menu option that included kosher meat and dairy.
See Rosebrock, 745 F.3d at 972 (setting forth factors for evaluating whether
defendant’s voluntary cessation of behavior has rendered a case moot).

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We do not consider claims that Bearup failed to allege in his complaint. See
Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 963, 969 (9th Cir. 2006) (affirming
summary judgment where the complaint did not give fair notice of the factual basis
for a claim raised for the first time in opposition to summary judgment).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments raised for the first time on appeal. See Padgett
v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Bearup’s motion for default judgment (Docket Entry No. 26) is denied.
AFFIRMED.

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