FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PATRICK M. MCCOLLUM; IAN SHANE
DUNCAN; KENNETH E. CAPOGRECO;
DONNIE DACUS; SCOTT FORREST
COLLINS; KEVIN COY ILOFF; DAVID
SPOONER; GREGORY L. MOURLAND,
individually and on behalf of all
others similarly situated,
Plaintiffs-Appellants,
v.
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND REHABILITATION;
OFFICE OF COMMUNITY RESOURCES;
CALIFORNIA STATE PERSONNEL
BOARD; AVENAL STATE PRISON;
CALIFORNIA CORRECTIONAL CENTER;
CALIFORNIA CORRECTIONAL
INSTITUTION; CALIFORNIA
INSTITUTION FOR MEN; CALIFORNIA
INSTITUTION FOR WOMEN;
CALIFORNIA MEN’S COLONY;
CALIFORNIA MEDICAL FACILITY;
CALIFORNIA REHABILITATION
CENTER; CALIFORNIA STATE PRISON,
LOS ANGELES COUNTY; CALIFORNIA
STATE PRISON, SACRAMENTO;
CALIFORNIA STATE PRISON, SOLANO;
7157
7158 MCCOLLUM v. CDCR
CALIFORNIA SUBSTANCE ABUSE
TREATMENT FACILITY AND STATE
PRISON AT CORCORAN; CALIPATRIA
STATE PRISON; CALIFORNIA STATE
PRISON, CENTINELA; CHUCKAWALLA
VALLEY STATE PRISON; CORCORAN
STATE PRISON; CORRECTIONAL
TRAINING FACILITY; DEUEL
VOCATIONAL INSTITUTION; FOLSOM
STATE PRISON; HIGH DESERT STATE
PRISON; IRONWOOD STATE PRISON;
MULE CREEK STATE PRISON; NORTH
KERN STATE PRISON; PELICAN BAY
STATE PRISON; PLEASANT VALLEY
STATE PRISON; R.J. DONOVAN
CORRECTIONAL FACILITY AT ROCK
MOUNTAIN; SALINAS VALLEY STATE
PRISON; SAN QUENTIN STATE
PRISON; VALLEY STATE PRISON FOR
WOMEN; WASCO STATE PRISON;
KATHY MENDOZA-POWERS;
KATHLEEN PROSPER; WILLIAM
SULLIVAN; M. E. POULOS; DAWN
DAVISON; JOHN MARSHALL; MARTIN
VEAL; GUILLERMINA HALL; ROBERT
AYERS; SCOTT M. KERNAN; THOMAS
L. CAREY; DERRAL G. ADAMS;
GEORGE GIURBINO; J. SALAZAR;
MADELENE A. MUNTZ; A. K.
SCRIBNER; ANTHONY KANE; STEVE
MOORE; MATTHEW KRAMER; T.
FELKER;
MCCOLLUM v. CDCR 7159
DERRICK OLLISON; ROSANNE
CAMPBELL; LEA ANN CHRONES;
RICHARD KIRKLAND; JAMES A.
YATES; ROBERT J. HERNANDEZ;
MIKE EVANS; STEVEN ORONSKI;
GLORIA HENRY; P.L. VAZQUEZ;
WILLIAM ELKINS; MAELEY TOM;
ANNE SHEEHAN; SEAN HARRIGAN;
FLOYD SHIMOMURA; RON No. 09-16404
ALVARADO; RODERICK Q. HICKMAN;
JEANNE S. WOODFORD; RONALD D.C. No.
3:04-cv-03339-CRB
BARNES; BARRY SMITH; MERRIE OPINION
KOSHELL; OCTAVIO PERAZA;
ARNOLD ORTEGA; AL BONILLA;
SABRINA JOHNSON; JORGE SARELI;
TIP KENDAL; ITO NEINHUIS; K. J.
WILLIAMS; STEWART, Chaplain;
RICHIE, Chaplain; VALENZUELA,
Chaplain; EDMUND G. BROWN,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted
October 7, 2010—San Francisco, California
Filed June 1, 2011
7160 MCCOLLUM v. CDCR
Before: Mary M. Schroeder,1 Barry G. Silverman, and
M. Margaret McKeown, Circuit Judges.
Opinion by Judge McKeown
1
Judge Schroeder was drawn to replace Judge Thompson on this panel
after his death.
MCCOLLUM v. CDCR 7163
COUNSEL
Caroline N. Mitchell, David C. Kiernan (argued), Matthew J.
Silveira, and Michael T. Scott, Jones Day, San Francisco, Cal-
ifornia; Nicole C. H. Massey and Dennis Murashko, Jones
Day, Chicago, Illinois; and Paul R. Gugliuzza, Jones Day,
Washington, DC, for the plaintiffs-appellants.
Edmund G. Brown, Fiel D. Tigno, Joshua C. Irwin (argued),
David A. Carrillo, Bonnie J. Chen, Michael D. Gowe, Office
7164 MCCOLLUM v. CDCR
of the Attorney General, Oakland, California, for the
defendants-appellees.
OPINION
McKEOWN, Circuit Judge:
Under federal and California law, prison inmates are
afforded a reasonable opportunity to exercise their religious
freedom, consistent with security and other concerns. See U.S.
Const., amend. I; Cal. Const., art. I, § 24; 42 U.S.C. § 2000cc-
1; Cal. Penal Code § 2600. Putting that principle into practice
is easier said than done and over time the state has faced a
variety of suits by inmates to establish the contours of their
rights under federal and state law.2
In an effort to accommodate inmates’ religious needs, the
California Department of Corrections and Rehabilitation
(“CDCR”) has a paid chaplaincy program that employs Prot-
estant, Catholic, Jewish, Muslim, and Native American
clergy. Those chaplains serve all inmates, but other religions
are also served by volunteer chaplains. The heart of this
appeal is a challenge to the paid chaplaincy program by a
Wiccan volunteer chaplain, Patrick McCollum, and a small
group of inmates. The inmates failed to exhaust their claims
or brought them in a untimely fashion. The added wrinkle in
the suit is that the chaplain is pursuing constitutional claims
2
See, e.g., Henderson v. Terhune, 379 F.3d 709, 715 (9th Cir. 2004)
(holding California’s prison grooming policy does not violate the Free
Exercise Clause because it is reasonably connected to a legitimate peno-
logical interest); Resnick v. Adams, 348 F.3d 763, 771 (9th Cir. 2003)
(requiring an inmate to complete a form before receiving Kosher meals is
not an undue burden on religious exercise); Duffy v. Cal. State Personnel
Bd., 232 Cal. App. 3d 1, 16 (1991) (“The . . . government has an obliga-
tion to, and through prison chaplaincies does, afford reasonable opportuni-
ties to inmates to exercise the religious freedom guaranteed by the First
and Fourteenth Amendments.”).
MCCOLLUM v. CDCR 7165
that are derivative of the inmates’ claims rather than his own.
In short, McCollum claims that, as a Wiccan chaplain, he
should be eligible for employment in the paid-chaplaincy pro-
gram. McCollum attempts to transform his employment dis-
crimination action into an effort to vindicate the inmates’ First
Amendment rights.
The district court properly dismissed and granted summary
judgment in favor of the defendants on McCollum’s claims
because, for the most part, he lacked standing. As a prudential
matter, we agree that the court need not exercise jurisdiction
over these derivative claims. Although McCollum had stand-
ing to pursue his personal employment claims, and also con-
stitutional claims for differential treatment as a volunteer
chaplain and retaliation, ultimately he cannot prevail on those
claims. We therefore affirm.
I. BACKGROUND
A. THE CHAPLAINCY PROGRAM
Recognizing its obligation to accommodate the religious
needs of inmates, CDCR currently offers full- and part-time
salaried positions for clergy of five faiths: Protestant, Catho-
lic, Jewish, Muslim, and Native American. Although McCol-
lum labels this program “The Five State-Sanctioned Faiths
Policy,” as we describe below, CDCR does not have a “poli-
cy” intended to restrict the paid-chaplaincy positions to these
five faiths in particular—rather, over time the CDCR paid-
chaplaincy program has evolved to include these five faiths.
Officials indicate future evolution is envisioned as required by
inmate needs.
Beginning in approximately 1930, prison inmates were
served by chaplains employed by the state, apparently through
positions that were denomination-specific. In 1940, the State
Personnel Board (“SPB”) merged all chaplaincy classes into
a single, non-denominational class. In 1957, the SPB created
7166 MCCOLLUM v. CDCR
three new denomination-specific paid chaplaincy classes:
Protestant, Catholic, and Jewish, in order to insure that pro-
jected layoffs did not disparately affect any one religious
group. In 1981, the SPB created a paid Muslim chaplaincy
position at CDCR’s request, apparently to accommodate per-
ceived inmate need. In 1989, in response to a consent decree,
CDCR requested and received a paid-chaplaincy position for
a Native American Spiritual Leader.
Likely because the current positions are the result of a pro-
gram that has evolved over more than fifty years and not of
a single policy, CDCR acknowledges that it has not applied
particular criteria to its determinations of the necessity of each
of the current paid positions. However, CDCR alleged as part
of this litigation that in the future it will consider the follow-
ing factors in determining the need for a given paid chap-
laincy position: (1) liturgical needs; (2) religious group size;
(3) existing and alternative means of accommodation; (4)
security; (5) cost; and, (6) other “institutional operational
needs.” CDCR also stated that it has applied these criteria and
“determined that a paid Wiccan chaplain is not required.”
The paid chaplains are responsible for providing religious
services to inmates of their own faiths, as well as serving the
needs of inmates of other faiths through, among other tasks,
“provid[ing] spiritual and moral guidance to . . . residents”
and “supervis[ing] the arranging of programs conducted in the
institution by visiting religious and allied groups.” The paid
chaplains are also responsible for approving religious pro-
gramming “by volunteer community clergy and religious rep-
resentatives.” Such volunteers are recruited to meet inmate
needs not directly provided for by paid chaplains. If no
ordained chaplain of a particular faith is able to conduct ser-
vices, the warden has discretion to allow “a qualified inmate
to minister to the religious needs of that particular faith.”
B. WICCAN INMATES IN CDCR CUSTODY
Like the district court, we adopt the religious language of
the complaint and use the term “Wiccan” to refer to Wic-
MCCOLLUM v. CDCR 7167
can/Pagan “faith groups consisting of Wiccans, Goddess wor-
shipers, Neo-Pagans, Pagans, Norse Pagans (and any other
ethnic designation), Earth Religionists, Old Religionists, Dru-
ids, Shamans, Asatrus, and those practicing in the Faery, Celt-
ics, Khemetic, Gardnerian, Church of All Worlds,
Reclaiming, Dianic, Alexandrian, Iseum of Isis, Reconstruc-
tionist, Odinist or Yoruban Traditions, and other similar
nature-based faiths.”
A concise description of Wiccan religious practices is
found in an expert declaration submitted by plaintiffs:
Ritual or liturgy is the touchstone of Wiccan/Pagan
religious identity and community. Wiccans/Pagans
honor the cycles of nature with rituals at new and
full moons and on eight seasonal festivals, including
the solstices and equinoxes. Regular rituals are often
held in small groups . . . and are typically directed
by a priestess and/or priest. Rituals are usually held
in circles and facilitated by ritual leaders who
explain the purpose of the ritual, invite deities or
spirits to be present, monitor the group’s energy and
end the ritual in such a way that everyone returns to
a normal state of consciousness. The ending of the
ritual usually includes a “grounding” exercise, in
which the presence of a priest/priestess/minister is
important to help participants return to a normal state
of consciousness.
According to a 2002 CDCR survey, there were approxi-
mately 5983 Wiccan inmates in custody, a number that plain-
tiffs contend excluded the various Wiccans/Pagans included
in plaintiffs’ definition of Wiccan. This number compares to
20,901 Protestant inmates, 11,351 Catholic inmates, 1,773
Muslim inmates, 1,482 Native American inmates, 306 Jewish
3
Because the prison population is subject to constant change and due to
inaccuracies in reporting, these figures are estimates only.
7168 MCCOLLUM v. CDCR
inmates, and 4,155 inmates identified as “other.” In Septem-
ber 2007, the inmate survey indicated 42,666 Protestant
inmates, 28,884 Muslim inmates, 23,160 Catholic inmates,
8,296 Native American inmates, 3,296 Jewish inmates, 183
Wiccan inmates, and 2,678 inmates identified as “other.”
II. THE INMATES’ CLAIMS
We begin with the inmates’ claims, each of which was dis-
missed by the district court as time-barred or unexhausted.
Although there are seven remaining inmate plaintiffs on
appeal, the plaintiffs assert arguments for only five inmates in
their opening brief. We limit our review to inmates Scott Col-
lins, David Spooner, Donnie Dacus, Kevin Iloff, and Gregory
Mourland. See Image Technical Serv., Inc. v. Eastman Kodak
Co., 136 F.3d 1354, 1356 (9th Cir. 1998) (“This court will not
ordinarily consider matters on appeal that are not specifically
and distinctly argued in appellant’s opening brief.” (internal
quotation marks omitted)). In the opening brief, the plaintiffs
also limited their arguments to various challenges related to
the chaplaincy hiring policy itself, and our review is similarly
cabined by those allegations.4 See id.
To survive a motion to dismiss, the inmates’ claims must
be both exhausted and timely. We determine whether an
inmate’s claim has been exhausted by reference to the pris-
on’s own grievance requirements, Griffin v. Arpaio, 557 F.3d
1117, 1120 (9th Cir. 2009), which necessitate that the inmate
“describe the problem and action requested,” Cal. Code Regs.
§ 3084.2(a). While an inmate need not articulate a precise
legal theory, “a grievance [only] suffices if it alerts the prison
to the nature of the wrong for which redress is sought.” Grif-
fin, 557 F.3d at 1120.
4
The district court found various inmates’ claims alleging CDCR prac-
tices (not the paid-chaplaincy program per se) burdened their free exercise
rights, had been exhausted, and thus survived the motion to dismiss. The
plaintiffs voluntarily dismissed those claims to pursue this appeal.
MCCOLLUM v. CDCR 7169
[1] The district court correctly concluded that the claims
by Spooner, Iloff, Dacus, and Mourland failed to alert CDCR
that the grievance sought redress for the wrongs allegedly per-
petuated by the chaplaincy-hiring program itself. Spooner’s
grievance stated that CDCR did not have a full-time chaplain,
but did not suggest a full-time chaplain was required, instead
proposing that Spooner himself serve as an inmate minister.
Iloff’s grievance alleged religious discrimination in the form
of unequal access to worship spaces. Dascus similarly grieved
of inadequate access to sacred items and generally inadequate
accommodations of minority religions. Mourland alleged
insufficient access to Wiccan vendors of religious materials.
These grievances give notice that inmates allege the prison
policies fail to provide for certain general Wiccan religious
needs and free exercise, but do not provide notice that the
source of the perceived problem is the absence of a paid Wic-
can chaplaincy. See Griffin, 557 F.3d at 1120. We therefore
affirm the district court’s finding that the inmates’ challenges
to the paid-chaplaincy policy are unexhausted because the
grievances did not provide notice that the program “in and of
itself burdens the exercise of their religion.” The district court
found that the grievances exhausted the inmates’ claims based
on prison accommodation of their religious needs5—but not
based directly on the chaplaincy program.
Collins, however, was more specific in his grievance. In a
grievance related to his hospitalization from March 31, 2002
through April 9, 2002, Collins alleges he “requested that the
prison’s administration contact and allow visitation by clergy
of [his] own Wiccan faith. This was denied . . . because [his]
chaplain was not a regular paid chaplain at San Quentin, i.e.,
not Christian/Protestant/Catholic, Muslim, or Native Ameri-
can.” This grievance was sufficient to put CDCR on notice
that the paid-chaplaincy hiring policy was the root cause of
Collins’s complaint and thus preserved his ability to challenge
that policy. Collins was not required to articulate the precise
5
The exhausted claims are not before us in this appeal.
7170 MCCOLLUM v. CDCR
legal theory upon which his claim was based in the adminis-
trative grievance process. See Griffin, 557 F.3d at 1120.
The plaintiffs conceded that claims arising before January
1, 2003 were time-barred. Collins’s complaint is time-barred
unless he “can ‘show a systematic policy or practice that oper-
ated, in part, within the limitations period — a systematic vio-
lation.’ ” Mansourian v. Regents of the Univ. of Cal., 602
F.3d 957, 973-74 (9th Cir. 2010) (quoting Douglas v. Cal.
Department. of Youth Auth., 271 F.3d 812, 822 (9th Cir.
2001)).
[2] The district court correctly concluded that Collins’s
complaint was based on a discrete incident—the denial of
chaplain services while he was hospitalized in 2002—and
thus cannot be classified as a continuing violation. See Nat’l
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002).
Collins never filed a grievance citing repeated denials of
chaplaincy services as a result of the policy, nor did Collins
refer back to his hospitalization in subsequent grievances dur-
ing the limitations period. Because Collins failed to inform
CDCR that the paid-chaplaincy program caused him any harm
during the limitations period, he cannot succeed on his contin-
uing violation claim now. See Freeman v. Oakland Unified
Sch. Dist., 291 F.3d 632, 638-39 (9th Cir. 2002) (to exhaust
a continuing violation claim, a plaintiff must put the agency
on notice of the continuing nature of the claim). That the prior
grievance was related to his current claim is insufficient. See
Morgan, 536 U.S. at 109.
We affirm the district court’s dismissal of the inmates’
claims at issue in this appeal.
III. MCCOLLUM’S CLAIMS
The essence of McCollum’s appeal is that the internal
prison process for determining paid chaplaincy positions is
flawed and that, as a Wiccan chaplain, he was denied the
MCCOLLUM v. CDCR 7171
opportunity to compete for such a position. He challenges the
program under the Establishment Clause of the First Amend-
ment and claims that CDCR officials violated his free exer-
cise and equal protection rights, as well as the inmates’
religious rights under the Religious Land Use and Institution-
alized Persons Act (“RLUIPA”). He also appeals dismissal of
his claims under Title VII, the California Fair Employment
and Housing Act (“FEHA”), and 42 U.S.C. § 1983. Finally,
McCollum alleges that a CDCR official retaliated against him
in violation of the Establishment Clause.
McCollum’s claims fall into three categories: (1) claims
that are derivative of the inmates’ free exercise rights; (2)
claims that stem directly from McCollum’s position as a vol-
unteer chaplain and potential paid chaplain; and, (3) a statu-
tory claim under RLUIPA. We address each category in turn.
A. MCCOLLUM’S CLAIMS THAT ARE DERIVATIVE OF THE
INMATES’ RIGHTS
Although McCollum complains that he is not eligible to be
hired as a prison chaplain, the introduction to his brief high-
lights the gravaman of his complaint: “By only hiring a chap-
lain of the Five Faiths, this policy has the pernicious effect of
depriving inmates of other religious accommodations, includ-
ing access to services, worship spaces and religious items,
that are afforded to Five Faith inmates.” This statement under-
scores that the entire chaplaincy program derives from the
inmates’ rights, not those of any putative chaplains.
1. MCCOLLUM DOES NOT ASSERT HIS OWN RIGHTS AND
DOES NOT MEET THE STANDARD FOR THIRD PARTY
PRUDENTIAL STANDING.
[3] McCollum argues that he meets the requirements for
traditional Article III standing: an injury in fact that is fairly
traceable to the challenged conduct and has some likelihood
of redressability. Lujan v. Defenders of Wildlife, 504 U.S.
7172 MCCOLLUM v. CDCR
555, 556-61 (1992). McCollum’s injury in fact is clear: he
was denied the opportunity to apply for a paid-chaplaincy
position. See Gratz v. Bollinger, 539 U.S. 244, 261 (2003)
(intent to apply is sufficient to demonstrate an injury in fact
for an equal protection challenge to admissions policy).
Whether he has demonstrated causation and redressability is
a more difficult question, particularly because he challenges
not so much the program itself—that is, the state’s provision
of paid sectarian chaplains—but instead the process through
which the program has evolved. We need not parse this
important subtlety because we assume without deciding6 that
McCollum has met the requirements for Article III standing
to challenge the program in general. See Larson v. Valente,
456 U.S. 228, 242-43 (1982) (where allegedly unconstitu-
tional policy causes injury, order invalidating policy can
redress injury); Catholic League for Religious and Civil
Rights v. City of S.F., 624 F.3d 1043, 1053 (9th Cir. 2010) (en
banc) (same).
[4] Our standing inquiry does not end with the threshold
constitutional question. Even where plaintiffs meet the bare
minimum of the Article III case or controversy requirement,
we typically decline to hear cases asserting rights properly
belonging to third parties rather than the plaintiff. See Single-
ton v. Wulff, 428 U.S. 106, 113 (1976); see also Powers v.
Ohio, 499 U.S. 400, 409-10 (1991).
We have explained this prudential limitation on standing as
follows:
6
We may assume Article III standing without “violat[ing] the rule that
a federal court may not hypothesize subject-matter jurisdiction for the pur-
pose of deciding the merits,” because we uphold dismissal of these claims
not on the underlying merits but instead based on third party prudential
standing, a “non-merits ground[ ].” See Hodgers-Durgin v. de la Vina, 199
F.3d 1037, 1042 n.2 (9th Cir. 1999) (internal quotation marks and citations
omitted).
MCCOLLUM v. CDCR 7173
Standing doctrine involves both constitutional
limitations on federal-court jurisdiction and pruden-
tial limitations on its exercise. The constitutional
aspect inquires whether the plaintiff has made out a
case or controversy between himself and the defen-
dant within the meaning of Article III by demonstrat-
ing a sufficient personal stake in the outcome. The
prudential limitations, in contrast, restrict the
grounds a plaintiff may put forward in seeking to
vindicate his personal stake. Most important for our
purposes is that a litigant must normally assert his
own legal interests rather than those of third parties.
Fleck and Assocs., Inc. v. Phoenix, 471 F.3d 1100, 1103-04
(9th Cir. 2004).
[5] McCollum does not contend that the policy of having
sectarian chaplains must change to redress his injury, only
that prison officials must consider neutral criteria in allocating
denomination-specific paid chaplaincy positions. Those neu-
tral criteria, according to McCollum’s own claims, must be
measures of inmates’ free exercise needs.7 See Cruz v. Beto,
405 U.S. 319, 322 n.2 (1972) (“[A] chaplain, priest, or minis-
ter [is not required to] be provided without regard to the
extent of the demand. But reasonable opportunities must be
afforded to all prisoners to exercise the religious freedom
guaranteed by the First and Fourteenth Amendment without
fear of penalty.”). As a consequence, we “must hesitate before
resolving [this] controversy, even [though it may be] one
within [our] constitutional power to resolve, on the basis of
the rights of third persons not parties to the litigation.” Single-
ton, 428 U.S. at 113.
7
As McCollum’s counsel clarified at oral argument, McCollum seeks an
order invalidating the current paid-chaplaincy policy, ordering the state to
apply neutral criteria in determining which chaplaincies to fund, and
ordering the state to give wardens discretion to choose how to implement
such policies.
7174 MCCOLLUM v. CDCR
McCollum challenges the deliberative process, or in his
view the alleged lack of process, through which prison offi-
cials have thus far measured inmates’ needs and accommo-
dated inmates’ free exercise rights. His claim, at bottom,
asserts not his own rights, but those of third party inmates.
[6] McCollum’s § 1983 claim alleging defendants violated
his free exercise rights under the First Amendment “by delib-
erately impeding his access, as an approved volunteer chap-
lain, to his prison congregation,” is illustrative. We agree with
the district court that here, again, McCollum asserts not his
own rights, but the free exercise rights of prison inmates.
McCollum’s right to minister to Wiccan inmates is derivative
of the inmates’ rights to have access to a minister of their
faith, and the inmates’ rights in that vein are not absolute. See
Cruz, 405 U.S. at 322 n.2 (recognizing chaplaincies may be
part of prison efforts to offer “reasonable opportunities . . . to
all prisoners to exercise the[ir] religious freedom”).
[7] To demonstrate third party standing, a plaintiff must
show his own injury, a close relationship between himself and
the parties whose rights he asserts, and the inability of the par-
ties to assert their own rights. Powers, 499 U.S. at 409-10. As
we have already observed, McCollum has shown an injury in
fact. In addition, we assume without deciding that the rela-
tionship between a prison chaplain and an inmate to whom he
ministers has the requisite degree of closeness to allow for
third party standing. See Powers, 499 U.S. at 414 (defendant-
juror relationship sufficiently close to justify third party stand-
ing); Department of Labor v. Triplett, 494 U.S. 715 (1990)
(attorney-client relationship sufficiently close to justify third
party standing); Griswold v. Connecticut, 381 U.S. 479 (1965)
(doctor-patient relationship sufficiently close to justify third
party standing).
[8] We agree with the district court that the inmates are
able to assert their own rights and that McCollum fails the
essential third requirement for standing—a showing that the
MCCOLLUM v. CDCR 7175
rights holders are impeded from asserting their own claims.
See Powers, 499 U.S. at 409-10. Like the district court, we
note that prisoners have challenged the program in this very
lawsuit and in at least one similar suit. See Rouser v. White,
630 F. Supp. 2d 1165, 1195-98 (E.D. Cal. 2009). Although
the inmates’ claims here were dismissed primarily for failure
to exhaust, presumably they would have the opportunity to
bring similar claims in the future if they comply with proce-
dural requirements. It is the inmates, not McCollum, who
have standing to pursue the primary claim he articulated,
namely, that the chaplaincy policy “has the pernicious effect
of depriving inmates of other religious accommodations . . .
that are afforded to . . . inmates [of the five faiths].” We con-
clude that McCollum has not met the requirements for third
party standing and we decline to exercise jurisdiction over
McCollum’s challenges to the paid-chaplaincy hiring pro-
gram, which include his 42 U.S.C. § 1983 First and Four-
teenth Amendment claims challenging the program.
2. MCCOLLUM DOES NOT HAVE TAXPAYER STANDING.
[9] We turn next to whether McCollum, as a California
taxpayer, has taxpayer standing. Apart from traditional stand-
ing based on direct harm, in limited circumstances individuals
may have standing to challenge unconstitutional conduct
under the doctrine of taxpayer standing. See Ariz. Christian
Sch. Tuition Org. v. Winn, 563 U.S. ___; 131 S. Ct. 1436,
1442-44 (2011) (describing limited circumstances in which
taxpayer standing may apply); see also Flast v. Cohen, 392
U.S. 83 (1968) (establishing test for taxpayer standing).
[10] The Supreme Court recently reiterated that taxpayer
standing is available only as a “narrow exception” to the gen-
eral rule that “the mere fact that a plaintiff is a taxpayer is not
generally deemed sufficient to establish standing in federal
court.” Ariz. Christian Sch., 131 S. Ct. at 1440. The Court has
repeatedly held that “an individual who has paid taxes [does
not have] a ‘continuing, legally cognizable interest in ensur-
7176 MCCOLLUM v. CDCR
ing that those funds are not used by the Government in a way
that violates the Constitution.’ ” Id. at 1442-43 (quoting Hein
v. Freedom From Religion Found., Inc., 551 U.S. 587, 599
(2007) (plurality opinion)). To establish taxpayer standing,
the plaintiff must show a “logical link between the plaintiff’s
taxpayer status and the type of legislative enactment attacked”
and “a nexus between [the plaintiff’s taxpayer] status and the
precise nature of the constitutional infringement alleged.” Id.
at 1451 (citing Flast, 392 U.S. at 102).
[11] McCollum’s claim lacks the necessary nexus between
his taxpayer status and the claimed constitutional violations.
See id. McCollum does not challenge the expenditure of gov-
ernment funds to provide paid chaplaincies nor even the exis-
tence of denomination-specific paid chaplaincies—he
challenges only the current allocation of chaplaincies among
religious denominations and the procedure for determining
such allocations. He lacks taxpayer standing because “the
grievance which [he seeks] to litigate here is not a direct
dollars-and-cents injury.” Doremus v. Bd. of Educ., 342 U.S.
429, 434 (1952). We affirm the district court’s judgment that
McCollum lacks taxpayer standing.
B. MCCOLLUM’S CLAIMS ASSERTING HIS OWN RIGHTS
Apart from claims challenging the chaplaincy program
itself, McCollum brings a host of other claims that stem from
his personal role as a volunteer Wiccan chaplain and potential
applicant for a paid position. As to these claims, the merits of
his claims rather than his standing to assert them are at issue.
1. THE DISTRICT COURT PROPERLY DISMISSED
MCCOLLUM’S EQUAL PROTECTION CLAIM.
[12] McCollum’s Equal Protection claim stems from com-
plaints that because he is a Wiccan he was treated differently
than other volunteer clergy and from paid clergy. He offers a
few anecdotal examples, but without much content as to the
MCCOLLUM v. CDCR 7177
basic question of “who, what, where, [and] how” as the dis-
trict court put it. Nor does he articulate which clergy were
similarly situated or how he is similar to these other clergy.
Certainly, the claims are missing evidence that any alleged
discrimination was intentional. The district court properly dis-
missed his § 1983 differential treatment claims. See Flores v.
Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1134 (9th Cir.
2003) (to survive summary judgment on an equal protection
claim, a plaintiff must raise an issue of triable fact as to
whether defendants intentionally treated the plaintiff differ-
ently from similarly situated individuals).
2. THE DISTRICT COURT PROPERLY DISMISSED
MCCOLLUM’S TITLE VII AND FEHA CLAIMS.
McCollum claims the paid-chaplaincy program violates
Title VII and the California Fair Employment and Housing
Act (“FEHA”).8 Title VII provides that an employer may not,
subject to “narrow exceptions,” refuse to hire an individual
based on his religion. Breiner v. Nev. Department of Corrs.,
610 F.3d 1202, 1207 (9th Cir. 2010) (citing 42 U.S.C.
§ 2000e-2(a)(1)). To assert these employment claims, McCol-
lum must meet the minimal requirements of Article III
standing—which he does as a result of being denied the
opportunity to apply for a paid position. See id. Further,
because McCollum asserts his own rights, there is no pruden-
tial bar to adjudicating his Title VII and FEHA claims.
[13] One key exception to Title VII’s prohibition on hiring
on the basis of religion is applicable if “a bona fide occupa-
tional qualification [‘BFOQ’] reasonably necessary to the nor-
mal operation of that particular business or enterprise” exists.
42 U.S.C. § 2000e-2(e)(1). The district court dismissed
8
McCollum treats his FEHA claim as coextensive with his Title VII
claim, and we follow suit. The statutes both contain the bona fide occupa-
tional qualification exception that defeats McCollum’s claim. See 42
U.S.C. § 2000e-2(e)(1); Cal. Gov’t. Code § 12940.
7178 MCCOLLUM v. CDCR
McCollum’s employment claims based on its finding that the
paid chaplaincies were permitted under the BFOQ exception.
We agree.
The job descriptions for paid chaplaincy positions require
that the chaplain be a clergy of the denominated faith in order
to conduct his or her duties. For example, as the district court
found, “McCollum cannot reasonably dispute that to require
one to be a Roman Catholic accredited priest in order to, for
example, provide communion to Catholic inmates, is a
BFOQ.” In light of the district court’s contemporaneous find-
ing that “it is not reasonably disputed that . . . [the paid chap-
laincy program was] adopted . . . to accommodate the
religious beliefs of inmates,” this qualification is not pretex-
tual but instead necessary to the operation of the chaplaincy
enterprise—meeting inmates’ free exercise needs. See 42
U.S.C. § 2000e-2(e)(1). Further, McCollum opposed sum-
mary judgment on the ground that the BFOQ exception could
not justify an unconstitutional job classification, but the dis-
trict court properly found, as we have held here, that whether
the classifications are a constitutional means of accommodat-
ing inmates’ free exercise rights is a question of the inmates’
rights, not a question of McCollum’s own rights.
[14] We affirm the district court’s dismissal of these
claims without prejudice, and hold that absent a court decision
establishing that the paid chaplaincy positions violate
inmates’ rights and thus are not necessary to the operation of
the program or that the Wiccan inmates should be provided a
paid chaplain, McCollum cannot proceed with these claims.
3. THE DISTRICT COURT PROPERLY DISMISSED
MCCOLLUM’S RETALIATION CLAIM.
McCollum alleges that Sabrina Johnson retaliated against
him for filing this lawsuit by making a false allegation that
McCollum misrepresented himself as a paid-chaplain on a
visit to CDCR’s Corcoran facility in February 2008. John-
MCCOLLUM v. CDCR 7179
son’s allegation launched an investigation that resulted in
McCollum losing access to the facility for seven months. The
district court granted summary judgment for Johnson on this
claim because it found the evidence did not show that Johnson
was “involved in the decision to suspend McCollum’s volun-
teer privileges.” This conclusion is inconsistent with our case
law. See Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir.
2004) (a false accusation may constitute retaliation where
deprivation of a benefit “was the natural and proximate result
of” that accusation and one can infer based on the facts
alleged that the accuser “intended that result”). We may, how-
ever, affirm on any ground supported by the record. O’Guinn
v. Lovelock Correctional Center, 502 F.3d 1056, 1059 (9th
Cir. 2007). We affirm because McCollum has failed to meet
his burden to raise a genuine issue of material fact as to retal-
iatory motive.
McCollum alleges that Johnson retaliated against him for
filing this lawsuit. Even assuming, without deciding, that
McCollum has raised a viable constitutional claim, he cannot
succeed. To raise a triable issue as to motive, McCollum must
offer “either direct evidence of retaliatory motive or at least
one of three general types of circumstantial evidence [of that
motive].” Allen v. Iranon, 283 F.3d 1070, 1077 (9th Cir.
2002). Here, no direct evidence of motive was offered—only
evidence that Johnson knew of the lawsuit.
To survive summary judgment, McCollum was required to
present circumstantial evidence of motive, which usually
includes: “(1) proximity in time between protected speech and
the alleged retaliation ; (2) [that] the [defendant] expressed
opposition to the speech; [or] (3) other evidence that the rea-
sons proffered by the [defendant] for the adverse . . . action
were false and pretextual.” Id.
[15] The incident in question took place in February 2008.
The first amended complaint in this action, naming Johnson
as a defendant, was filed in May 2005, nearly three years
7180 MCCOLLUM v. CDCR
before the incident occurred. Thus, the timing of the incident
does not support an inference of motive. See Vasquez v. Cnty.
of Los Angeles, 349 F.3d 634, 646 (9th Cir.2004) (a thirteen
month lapse is too long to support an inference of causality).
Further, McCollum does not provide any evidence that
Johnson opposed the lawsuit—his declaration states only that
Johnson was aware of the lawsuit. In his deposition, McCol-
lum claimed the interaction “progressed into [Johnson] start-
ing to attack [McCollum] and make all kinds of statements
and take [his] ID card and go through this whole process.” In
his previously filed declaration, however, McCollum explains
that “this whole process” was an inquiry by Johnson as to
whether McCollum had been hired as a state chaplain or
cleared to visit inmates without an escort on that day. Even
viewing this evidence in the light most favorable to McCol-
lum, as we must, this evidence is insufficient to raise a genu-
ine issue of material fact as to retaliatory motive. See
Anthoine v. North Central Counties Consortium, 605 F.3d
740, 753 (9th Cir. 2010) (where plaintiff relies on circumstan-
tial evidence to show retaliation, that evidence must be spe-
cific to defeat the motion for summary judgment).
Finally, despite his many arguments that Johnson’s allega-
tion was false, McCollum provides no evidence that John-
son’s allegation was, in fact, false. See Flaherty v.
Warehousemen, Garage & Service Station Employees’ Local
Union No. 334, 574 F.2d 484, 486 n. 2 (9th Cir. 1978) (asser-
tions made in complaint, legal memoranda, or oral argument
are not evidence and do not create issues of fact). We affirm
the district court’s summary judgment in favor of Johnson on
McCollum’s retaliation claim.
C. MCCOLLUM’S RLUIPA CLAIMS
[16] McCollum also argues that CDCR’s alleged actions
impeding his access to CDCR facilities violated RLUIPA’s
prohibition of “impos[ing] [a] substantial burden on the reli-
MCCOLLUM v. CDCR 7181
gious exercise of a person residing in or confined to an insti-
tution,” unless that imposition “is in furtherance of a
compelling governmental interest; and [ ] is the least restric-
tive means of furthering that compelling governmental inter-
est.” 42 U.S.C. § 2000cc-1(a). This claim necessarily fails
because McCollum is not a person residing in or confined to
an institution. See Cutter v. Wilkinson, 544 U.S. 709, 721
(2005) (“RLUIPA thus protects institutionalized persons who
are unable freely to attend to their religious needs and are
therefore dependent on the government’s permission and
accommodation for exercise of their religion.” (emphasis
added)).
AFFIRMED.