Eberto Bautista v. RABI ROSKAMM; HENRY, Culinary MGR; RENEE BAKER, Warden; CHARLES DANIELS

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EBERTO BAUTISTA,
Plaintiff-Appellant,
v.
RABI ROSKAMM; HENRY, Culinary
MGR; RENEE BAKER, Warden;
CHARLES DANIELS,
Defendants-Appellees,
and
NEVADA DEPARTMENT OF
CORRECTIONS,
Defendant,
v.
STEVEN BRAUNSTEIN, Proposed
Intervenor; STEPHEN CIOLINO,
Proposed Intervenor,
Movants.
No. 21-15476
D.C. No.
3:18-cv-00194-MMD-WGC
MEMORANDUM*
FILED
JUL 11 2022
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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Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, Chief District Judge, Presiding
Submitted July 8, 2022**
San Francisco, California
Before: WALLACE, FERNANDEZ, and SILVERMAN, Circuit Judges.
Nevada prisoner Eberto Bautista appeals pro se from the district court’s
summary judgment to the Defendants1 in his action alleging that his First
Amendment, RLUIPA,2 and equal protection rights were infringed by policies and
practices regarding the food served at the LCC and consumable items he wanted
for group worship activities. See U.S. Const. amends. I, XIV; 42 U.S.C. § 1983;
42 U.S.C. §2000cc-1(a). Reviewing de novo,3 we affirm in part, vacate in part, and
remand.
** The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
1 Charles Daniels, the director of the Nevada Department of Corrections;
former Lovelock Correctional Center (LCC) warden Renee Baker; LCC Culinary
Food Services Manager Maribelle Henry; and Rabbi Yisroel Rosskamm
(collectively, Defendants).
2 Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C.
§§ 2000cc–2000cc-5 (RLUIPA).
3 Shakur v. Schriro, 514 F.3d 878, 883 (9th Cir. 2008).
2

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We affirm the district court’s summary judgment to the Defendants as to
Bautista’s First Amendment and RLUIPA claims arising from the prison’s policy
requiring inmates to acquire group worship consumables themselves. Bautista
failed to demonstrate a genuine dispute of material fact4 that the policy
substantially burdened his group worship activities. See Jones v. Williams, 791
F.3d 1023, 1031–32 (9th Cir. 2015) (free exercise); Warsoldier v. Woodford, 418
F.3d 989, 994–95 (9th Cir. 2005) (RLUIPA); cf. Greene v. Solano Cnty. Jail, 513
F.3d 982, 988 (9th Cir. 2008) (group worship ban was a substantial burden). There
was no evidence that he had attempted to procure grape juice and matzoh via the
permitted channels or was unable to do so. On this record, RLUIPA does not
require the prison to purchase those items for him. See Hartmann v. Cal. Dep’t of
Corr. & Rehab., 707 F.3d 1114, 1124–25 (9th Cir. 2013).
We also affirm the district court’s summary judgment to the Defendants on
Bautista’s equal protection claims. Bautista presented no evidence that any of the
Defendants acted with an intent to discriminate against him as a Messianic Jew —
nor does he argue otherwise on appeal. See Furnace v. Sullivan, 705 F.3d 1021,
1030–31 (9th Cir. 2013); Padgett v. Wright, 587 F.3d 983, 985 & n.2 (9th Cir.
2009) (per curiam).
4 Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir. 1989).
3

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However, the district court erred in granting summary judgment to the
Defendants on Bautista’s First Amendment and RLUIPA claims arising from the
Common Fare diet and its preparation. Although the Defendants provided some
evidence that the diet and its preparation methods satisfied the kosher dietary needs
of Orthodox Jews, the record showed that Bautista was a Messianic Jew, and there
was no evidence that his dietary needs were identical to those of Orthodox Jews.
Cf. Ashelman v. Wawrazaszek, 111 F.3d 674, 675 & n.2 (9th Cir. 1997).
Moreover, the district court erred in refusing to consider much of Bautista’s
proffered evidence detailing his religious dietary needs. See Alvarez v. Hill, 518
F.3d 1152, 1157–58 (9th Cir. 2008); cf. Walker v. Beard, 789 F.3d 1125, 1133–34
(9th Cir. 2015). That evidence appropriately explicated the factual basis of his
claims, including his understanding of “kosher” and his specific objections to the
food preparation. See Hickman v. Taylor, 329 U.S. 495, 500–01, 67 S. Ct. 385,
388–89, 91 L. Ed. 451 (1947); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555–56, 555 n.3, 127 S. Ct. 1955, 1964–65, 1965 n.3, 167 L. Ed. 2d 929 (2007).
Because there was a genuine dispute of material fact regarding the nature of
Bautista’s dietary needs and whether those had been substantially burdened, the
district court erred in entering summary judgment as to those claims.
4

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AFFIRMED in part, VACATED in part, and REMANDED. Costs on
appeal shall be borne by the Defendants.
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