Anthony Thomas Chernetsky v. State of Nevada

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTHONY THOMAS CHERNETSKY,
Plaintiff-Appellant,
v.
STATE OF NEVADA; GLENN
WHORTON; JACK PALMER; CHERI
SCOTT; LENARD VARE; ROBERT
LEGRAND, Warden; DOROTHY NASH
HOLMES; JANE FORAKER-
THOMPSON; DONALD HELLING,
Defendants-Appellees.
No. 15-15146
D.C. No.
3:06-cv-00252-RCJ-WGC
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Argued and Submitted September 19, 2017
San Francisco, California
Before: GOULD, CLIFTON, and WATFORD, Circuit Judges.
Anthony Thomas Chernetsky challenged several alleged restrictions on his
religious exercise pursuant to Religious Land Use and Institutionalized Persons
FILED
DEC 11 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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Act (RLUIPA). The district court granted Chernetsky summary judgment on his
main claim: a claim for access to prison sweat lodges. It granted summary
judgment to defendants on all other claims. Defendants appealed the sweat lodge
ruling and Chernetsky appealed the ruling on his other claims. We affirm in part,
vacate in part, and remand.
After the filing of this appeal, the Nevada Department of Corrections
Religious Practice Manual (AR 810) was amended. The revisions to the manual
affect some of the issues in this appeal.
The manual now allows “earth-based religious adherents [for whom sweat
lodge use] constitutes ‘religious exercise’” to use a sweat lodge. We thus
previously granted the State’s motion to voluntarily dismiss its appeal. The only
issues that remain arise from Chernetsky’s cross-appeal.
The district court granted defendants’ motion for summary judgment against
Chernetsky’s claim regarding anointing oils. The AR 810 changes also implicate
his access to oils. The manual now lists “[n]on-flammable, non-toxic anointing
oil” as an allowed “item[] of Group Religious Property” for “all Faith Groups.”
That appears to provide Chernetsky with the relief he sought. We vacate the
summary judgment on the issue of natural anointing oils and remand so that the
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district court may determine whether there is still a dispute and, if so, to adjudicate
it based on the current provisions.
Chernetsky appeals the district court’s grant of summary judgment against
him on his claim regarding his request for unpaid time off. Chernetsky failed to
demonstrate that he asked for and was denied time off. On appeal, Chernetsky
argues that the state denied other prisoners’ requests for time off, but that does not
establish that he was injured or was deprived of the ability to practice his religion.
Thus, we affirm the summary judgment in favor of defendants on the work
proscription days claim.
Chernetsky appeals the district court order denying his motion for leave to
amend his complaint. The proposed amended complaint attempted to revive
Chernetsky’s constitutional claims. These claims had not been part of the case
since 2007. A denial of a motion for leave to amend is reviewed for abuse of
discretion. AmerisourceBergen Corp. v. Dialysist W., Inc., 465 F.3d 946, 949 (9th
Cir. 2006). It was not “illogical, implausible, or without support in inferences that
may be drawn from the record” for the district court to conclude that adding a
variety of constitutional claims to a case that had been pending for seven years
would cause delay and prejudice defendants. See United States v. Hinkson, 585
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F.3d 1247, 1262 (9th Cir. 2009). We affirm the district court’s denial of
Chernetsky’s motion for leave to amend his complaint.
Chernetsky appeals the summary judgment on his claim regarding a
prohibition on the use of open fires during ceremonies on the ground that the claim
had become moot. He agrees that the ban was no longer in effect at the time the
district court ruled against him, but he appeals based on a concern that he will be
precluded from presenting his challenge in the future if the ban on fires is
reinstated. For collateral estoppel to apply, “the issue must be identical” to an
issue that was critical to a prior judgment. Beauchamp v. Anaheim Union High
Sch. Dist., 816 F.3d 1216, 1225 (9th Cir. 2016). Accordingly, the result in this
case will not prevent Chernetsky from challenging some future prohibition on the
use of open fires. If the current policy is modified to limit the use of open fires, the
issue would not be identical to the issue decided by the district court. As such, we
do not exercise the equitable remedy of vacatur, which has as its purpose the
avoidance of “an unfair application of collateral estoppel.” In re Burrell, 415 F.3d
994, 1000 (9th Cir. 2005).
The district court granted summary judgment against Chernetsky on his
claim regarding books. On appeal, Chernetsky argues that the regulations were
revised before summary judgment, mooting his claim regarding books. However,
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he does not provide an explanation of how the regulations were revised so as to
moot his claim or why summary judgment was erroneous. We affirm the summary
judgment regarding books.
The district court granted summary judgment against Chernetsky on his
claims regarding individual possession of herbs and incenses. Chernetsky argues
that this claim was moot at the time the district court ruled on it. Chernetsky has
not cited any change in regulation that establishes his claims were moot when
decided by the district court. We affirm the summary judgment regarding
individual possession of herbs and incenses claims.
Each party to bear its own costs.
AFFIRMED IN PART, VACATED IN PART; REMANDED.
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