Dennis Walker v. Beard

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

DENNIS WALKER, No. 12-17460
Plaintiff-Appellant,
DC No.
v. 2:11-cv- 2728
KJM-GGH
JEFFREY BEARD*, CDCR Secretary
and KATHLEEN DICKERSON, Warden,
CMF Prison, OPINION
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, District Judge, Presiding

Argued and Submitted
February 10, 2015—San Francisco, California

Filed June 18, 2015

Before: Sidney R. Thomas, Chief Judge, A. Wallace
Tashima and M. Margaret McKeown, Circuit Judges.

Opinion by Judge Tashima

*
Jeffrey Beard is substituted for his predecessor Matthew L. Cate, as
Secretary of the California Department of Corrections and Rehabilitation,
pursuant to Fed. R. App. P. 43(c)(2).
2 WALKER V. BEARD

SUMMARY**

Prisoner Civil Rights

The panel affirmed the district court’s ruling that
California’s refusal to exempt a state prisoner from its
Integral Housing Policy did not violate the Religious Land
Use and Institutionalized Persons Act or the First
Amendment.

The plaintiff prisoner is an Aryan Christian Odinist who
challenged the State’s classification of him as eligible to
occupy a prison cell with an individual of a different race,
alleging that such a placement would interfere with his
religious practice, the “warding ritual.”

The panel held that the prisoner’s challenge to his
classification as racially eligible (allowing the prison to place
him in a cell with an individual of a different race) was not
moot even though he had transferred prisons because he
remains in State custody, classified as racially eligible. The
panel also held that the prisoner was not barred from arguing
on appeal that the State improperly burdened his ability to
perform the Odinist warding ritual.

The panel held that the prisoner successfully alleged a
burden on his religious exercise under the Religious Land
Use and Institutionalized Persons Act and the First
Amendment, but the State had a compelling interest in
avoiding unconstitutional racial discrimination, and

**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 WALKER V. BEARD 3

subjecting the prisoner to integrated celling was the only
possible means of furthering that interest. The panel
concluded that the prisoner failed to state a claim under the
Act and the First Amendment. The panel further concluded
that the district court did not abuse its discretion in denying
the prisoner leave to amend.

COUNSEL

Elliot Wong (argued), San Francisco, California, for Plaintiff-
Appellant.

Kamala Harris, Attorney General of California, Jonathan L.
Wolff, Senior Assistant Attorney General, Thomas S.
Patterson, Supervising Deputy Attorney General, Jose A.
Zelidon-Zepeda (argued), Deputy Attorney General, San
Francisco, California, for Defendants-Appellees.

OPINION

TASHIMA, Circuit Judge:

Dennis Walker is a devout racist. He is an Aryan
Christian Odinist incarcerated in a California state prison.
The Odinist religion forbids adherents from integrating with
members of races other than their own and requires the
performance of rituals that may not be conducted in the
presence of non-“Aryan” individuals. Walker challenges the
State’s classification of him as eligible to occupy a prison cell
with an individual of a different race, alleging that such a
placement would interfere with his religious practice. He
appeals the district court’s ruling that the State’s refusal to
4 WALKER V. BEARD

exempt him from its Integrated Housing Policy (the “Housing
Policy”) did not violate the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”), 42 U.S.C.
§ a2000cc et seq., or the First Amendment. We have
jurisdiction under 28 U.S.C. § 1291. We conclude that the
State has a compelling interest in avoiding invidious racial
discrimination and potential liability under the Equal
Protection Clause, and the only way for the State to satisfy
this interest was to reject Walker’s request for an exemption
from the Housing Policy. We affirm.

I.

According to Walker, Odinism, the religion to which he
adheres, calls on its followers to preserve the purity of the
Aryan race.1 To that end, Odinists are forbidden from
interacting with individuals of other races. Seeking to follow
his religious dictates, Walker requested that he be celled with
an Aryan individual. The state rejected the request. Pursuant
to the Housing Policy, Walker was classified as “racially
eligible,” allowing the prison to place him in a cell with an
individual of a different race.

The Housing Policy provides for prisoners to be classified
into one of five categories, including racially eligible and
“restricted to own,” meaning ineligible to be placed in a
multi-race cell. There is a strong presumption in favor of
racially eligible status. Under that policy, an inmate’s race
may not be a “primary determining factor” in determining his

1
Although the word “Aryan” has been variously used to describe Proto-
Indo-Europeans and Hindus, Walker apparently uses it to refer only to
white individuals of Northern European heritage. We follow that usage
in this opinion.
 WALKER V. BEARD 5

housing classification. Prison officials may, however,
consider certain race-related factors when classifying
inmates, such as the prisoner’s history of perpetrating or
being victimized by racial violence. A prisoner classified as
racially eligible who refuses to accept a cellmate of another
race is not forced to accept integration, but rather is
categorized as “restricted by refusal” and subjected to
disciplinary action. Following his classification as racially
eligible, the prison assigned Walker a non-white cellmate and
Walker refused the assignment. As discipline, the prison
placed him in administrative segregation.

Walker commenced this action pro se against Matthew
Cate, then-Secretary of the California Department of
Corrections and Rehabilitation, and Kathleen Dickerson, the
warden of the prison in which he was then housed (together
“Defendants” or the “State”).2 He seeks damages and
injunctive relief for a variety of statutory and constitutional
claims, including claims under RLUIPA, and the First, Fifth,
Eighth, and Fourteenth Amendments. Although inartfully
drafted, the complaint alleges that the State’s classification of
Walker as racially eligible under the Housing Policy
impermissibly abridged his religious liberty by threatening a
violation of his “religious beliefs and practices.”

Defendants moved to dismiss for failure to state a claim
under Fed. R. Civ. P. 12(b)(6). A magistrate judge
recommended granting the motion and dismissing all claims.
Still proceeding pro se, Walker filed objections to the
magistrate judge’s findings and recommendations (“F&R”).

2
As best as can be determined, Walker appears to have brought claims
against Defendants in both their official and personal capacities, and we
so construe the complaint.
6 WALKER V. BEARD

In this new filing, for the first time, Walker provided
additional information about his practice of Odinism. Walker
asserted that as part of his religious practice he engages in a
ritual known as “the spiritual circle of Odinist Warding” (the
“warding ritual”) to communicate with his gods. Integrated
housing, according to Walker, would interfere with this ritual
because the presence of a non-Aryan individual in his cell
during the ritual would “pollute” the spiritual circle.
Notwithstanding Walker’s objections to the F&R, the district
court adopted the magistrate judge’s F&R in full, dismissed
Walker’s complaint for failure to state a claim, and denied
leave to amend.

Now represented by counsel, Walker appeals the
dismissal of his RLUIPA and First Amendment claims and
the denial of leave to amend.

II.

We review de novo a district court’s dismissal for failure
to state a claim pursuant to Federal Rule of Civil Procedure
12(b)(6). Stone v. Travelers Corp., 58 F.3d 434, 436–37 (9th
Cir. 1995). We review a district court’s denial of leave to
amend for abuse of discretion. Lopez v. Smith, 203 F.3d
1122, 1130 (9th Cir. 2000) (en banc).

III.

The State asserts that Walker’s action is moot because,
since filing his complaint, Walker has been transferred to a
new prison and has not alleged he is subject to integrated
 WALKER V. BEARD 7

celling at that facility.3 A case is moot “when it has ‘lost its
character as a present, live controversy of the kind that must
exist if [the court is] to avoid advisory opinions on abstract
propositions of law.’” Oregon v. FERC, 636 F.3d 1203, 1206
(9th Cir. 2011) (per curiam) (quoting Hall v. Beals, 396 U.S.
45, 48 (1969) (per curiam)). Because “[t]he jurisdiction of
federal courts depends on the existence of a ‘case or
controversy’ under Article III of the Constitution,” we must
dismiss an appeal that has become moot. Pub. Util. Comm’n
of Cal. v. FERC, 100 F.3d 1451, 1458 (9th Cir. 1996)
(quoting GTE Cal., Inc. v. FCC, 39 F.3d 940, 945 (9th Cir.
1994)).

Our precedents elaborate on how the mootness bar applies
to claims brought by prisoners subsequently transferred to
new prisons. In Dilley v. Gunn, a prisoner brought a
constitutional claim alleging denial of access to the courts on
the ground that the prison law library’s policies were overly
restrictive. 64 F.3d 1365, 1367 (9th Cir. 1995). We
concluded that the claim was moot because the prisoner had
been transferred to another prison and did not demonstrate “a
reasonable expectation that he [would be] . . . subjected
again” to the suspect library policies. Id. at 1368–69. By
contrast, in Nelson v. Heiss, we held that a prisoner’s claim

3
Walker asserts claims for both damages and injunctive relief, but we
consider only the mootness of the injunctive claims because Defendants
are immune from liability for damages. Defendants are immune from
Walker’s official capacity damages claims under the Eleventh
Amendment. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 64–65
(1989); Holley v. Cal. Dep’t of Corr., 599 F.3d 1108, 1111–12 (9th Cir.
2010). Walker’s personal capacity claims fail because Defendants plainly
did not violate clearly established rights of which a reasonable person
would (or should) have known, thus entitling Defendants to qualified
immunity. See Pearson v. Callahan, 555 U.S. 223, 232–33 (2009).
8 WALKER V. BEARD

asserting his trust account had been mishandled in violation
of federal law was not moot, even though the prisoner had
been transferred from the prison where the alleged
misconduct occurred. 271 F.3d 891, 893, 897 (9th Cir. 2001).
We concluded that the claim was not moot because the policy
pursuant to which the alleged violation occurred was “system
wide” and one of the defendants was in charge of the policy.
Id. at 897; see also Jordan v. Sosa, 654 F.3d 1012, 1028–29
(10th Cir. 2011); Lehn v. Holmes, 364 F.3d 862, 871–72 (7th
Cir. 2004).

Reading the complaint in the light most favorable to
Walker, it challenges his classification as racially eligible
under the Housing Policy, which, by its terms, regulates the
housing of inmates throughout the California prison system,
not just in Walker’s original prison. Defendant Matthew Cate
was the head of the California prison system when Walker
filed his complaint and was capable of providing relief.4
Thus, Walker has satisfied both of the requirements we
identified in Nelson for a transferred prisoner’s claim to avoid
mootness. Walker remains in State custody, classified as
racially eligible. His challenge to that classification is not
moot.

IV.

The State next asserts that Walker should be barred from
arguing on appeal that the State improperly burdened his
ability to perform the Odinist warding ritual because: (1) he
abandoned that argument; and (2) his complaint does not

4
Matthew Cate resigned as head of the state prison system in 2012 and
his successor has been substituted in his stead with respect to any official
capacity claims. See footnote *, supra.
 WALKER V. BEARD 9

contain factual allegations sufficient to support the warding
ritual theory. We discuss these related arguments in turn.

“It is a general rule that a party cannot revisit theories that
it raises but abandons at summary judgment.” Ramirez v. City
of Buena Park, 560 F.3d 1012, 1026 (9th Cir. 2009) (quoting
Davis v. City of Las Vegas, 478 F.3d 1048, 1058 (9th Cir.
2007) (internal quotation marks omitted)). “A party
abandons an issue when it has a full and fair opportunity to
ventilate its views with respect to an issue and instead
chooses a position that removes the issue from the case.” Id.
(quoting BankAmerica Pension Plan v. McMath, 206 F.3d
821, 826 (9th Cir. 2000) (internal quotation marks omitted)).

The wellspring of our recent abandonment jurisprudence
is USA Petroleum Co. v. Atl. Richfield Co., 13 F.3d 1276 (9th
Cir. 1992). Richfield was an antitrust action brought by USA
Petroleum (“USA”) against its competitor, Atlantic Richfield,
alleging predatory pricing. Id. at 1277. On appeal, USA
attempted to rely on a “below-cost pricing” theory of liability
under § 1 of the Sherman Act, 15 U.S.C. § 1, even though it
had relied on a different “below-market pricing theory” in the
district court. Id. at 1279, 1284. We barred USA from
asserting the new theory on appeal because “USA contended
that below-cost pricing was an available predatory pricing
theory but expressly chose not to rely upon it” in the lower
court. Id. at 1284.

Analogizing to Richfield, the State argues that because
Walker’s complaint did not mention the warding ritual and
discussed only general interference with his religion, Walker
abandoned the ritual argument. We reject this analogy.
Richfield and its progeny concerned situations in which a
litigant deliberately declined to pursue an argument by taking
10 WALKER V. BEARD

a position that conceded the argument or removed it from the
case. See Ramirez, 560 F.3d at 1026; Montero-Martinez v.
Ashcroft, 277 F.3d 1137, 1145 n.9 (9th Cir. 2002); McMath,
206 F.3d at 826. Here, Walker’s original complaint did not
mention the ritual, but it also did not allege a set of facts at
odds with it. Rather, the complaint argued that integrated
celling would “violate [Walker’s] religious beliefs and
practices.” This language suggests that when he filed his
complaint, Walker understood his claim as alleging a
spectrum of interferences with his religion, including
interference with ritual practice. Walker’s subsequent focus
on the warding ritual was not a change of theory, but rather
an elaboration of his initial argument. Accordingly, Walker
did not “choose a position” removing the warding ritual
argument from the case or conceding it. Id.

The State next contends that Walker’s complaint does not
make out factual allegations sufficient to support his
preferred legal theory on appeal. The basis of the State’s
argument is that Walker’s complaint does not actually discuss
the warding ritual. According to the State, we must reject
Walker’s claim and require him file a new complaint that
articulates how integrated celling interferes with the ritual.

In general, we “construe liberally motion papers and
pleadings filed by pro se inmates . . . .” Thomas v. Ponder,
611 F.3d 1144, 1150 (9th Cir. 2010). “[I]t is sufficient that
the complaint, alone or supplemented by any subsequent
filings before summary judgment, provide the defendant fair
notice” of the provision under which relief is sought. Alvarez
v. Hill, 518 F.3d 1152, 1159 (9th Cir. 2008). We expect that
“[r]esponsive pleadings . . . may be necessary for a pro se
plaintiff to clarify his legal theories.” Id. at 1158 (quoting
 WALKER V. BEARD 11

Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989))
(emendations in original) (internal quotation marks omitted).

Given this liberal standard, we reject the State’s
argument. Although Walker’s complaint did not mention the
warding ritual, it specified the general theory and nucleus of
facts under which he sought relief, which was enough to give
the State fair notice. See Alvarez, 518 F.3d at 1159.
Walker’s objection to the F&R, and now his appellate brief,
subsequently refined and clarified that broad initial claim. Cf.
id. at 1158. Walker’s objection to the F&R, which explains
the warding ritual and its importance to the Odinist religion,
is now properly part of the record. See 28 U.S.C. § 636(b)(1).
Moreover, the State has not asserted that it suffered any
prejudice from Walker’s failure to include all of the relevant
facts in his initial filing. We thus see no reason to require
Walker to institute a new action.5

V.

We now reach to the merits of Walker’s challenge:
whether his classification as racially eligible under the
Housing Policy violates RLUIPA. RLUIPA provides that
“[n]o government shall impose a substantial burden on the
religious exercise of a person residing in or confined to an
institution . . . even if the burden results from a rule of
general applicability,” unless the government demonstrates
the burden is “in furtherance of a compelling government
interest” and “is the least restrictive means of furthering that
compelling governmental interest.” 42 U.S.C. § 2000cc-1(a).
Enacted after the Supreme Court held unconstitutional the

5
Relatedly, we discuss in Part VII, below, whether Walker should have
been granted leave to amend.
12 WALKER V. BEARD

Religious Freedom and Restoration Act (“RFRA”), as applied
to the states, in City of Boerne v. Flores, 521 U.S. 507 (1997),
RLUIPA essentially reinstitutes the demanding RFRA
standard of review for intrusions on religious liberty in the
limited contexts of prisoners and federal land. See Shakur v.
Schriro, 514 F.3d 878, 888 (9th Cir. 2008).

To state a claim under RLUIPA, a prisoner must show
that: (1) he takes part in a “religious exercise,” and (2) the
State’s actions have substantially burdened that exercise. See
id. at 888–89. If the prisoner satisfies those elements, then
the State must prove its actions were the least restrictive
means of furthering a compelling governmental interest.
Warsoldier v. Woodford, 418 F.3d 989, 995 (9th Cir. 2005).
We address these elements seriatim.

A.

We first consider whether the warding ritual is a valid
religious exercise. RLUIPA defines a religious exercise to
include “any exercise of religion, whether or not compelled
by, or central to, a system of religious belief.” 42 U.S.C.
§ 2000cc-5(7)(A). The definition is intentionally broad. See
Greene v. Solano Cnty. Jail, 513 F.3d 982, 986 (9th Cir.
2008). It covers “not only belief and profession but the
performance of . . . physical acts [such as] assembling with
others for a worship service [or] participating in sacramental
use of bread and wine . . . .” Cutter v. Wilkinson, 544 U.S.
709, 720 (2005) (quoting Emp’t Div., Dep’t of Human Res. of
Or. v. Smith, 494 U.S 872, 877 (1990) (emendations in
original) (internal quotation marks omitted)).

The warding ritual plainly meets this standard. As a
physical act intended to bring about communication with a
 WALKER V. BEARD 13

deity, the warding ritual is a prototypical religious exercise.
See Jaffree v. Wallace, 705 F.2d 1526, 1534 (11th Cir. 1983)
(quoting Karen B. v. Treen, 653 F.2d 897, 901 (5th Cir. 1981)
(defining prayer as a “quintessential religious practice”)).
Although Odinism is not a mainstream faith, RLUIPA does
not, and constitutionally could not, pick favorites among
religions. See Lindell v. McCallum, 352 F.3d 1107, 1108,
1110 (7th Cir. 2003) (concluding that a follower of Odinism
had stated a claim under RLUIPA). We conclude that the
warding ritual constitutes a religious exercise under RLUIPA.

B.

The next question is whether the State’s classification of
Walker as racially eligible under the Housing Policy
substantially burdened his practice of Odinism. To constitute
a substantial burden, a limitation of religious practice “must
impose a significantly great restriction or onus upon such
exercise.” San Jose Christian Coll. v. City of Morgan Hill,
360 F.3d 1024, 1034 (9th Cir. 2004). A substantial burden
need not actually force a litigant to change his practices; a
violation may occur “where the state . . . denies [an important
benefit] because of conduct mandated by religious belief,
thereby putting substantial pressure on an adherent to modify
his behavior and to violate his beliefs.” Warsoldier, 418 F.3d
at 995 (quoting Thomas v. Review Bd. of the Ind. Emp’t Sec.
Div., 450 U.S. 707, 717–18 (1981) (emendations in original)
(internal quotation marks omitted)).

Our holding in Warsoldier is illuminating. In that case,
the prisoner-plaintiff, a Native American, refused to conform
to a prison restriction on hair length on the ground that doing
so would violate his religious beliefs. Id. at 991–92. After he
refused, he was “(1) . . . confined to his cell; (2) had
14 WALKER V. BEARD

additional duty hours imposed on him; (3) [was] reclassified
into a workgroup where inmates do not receive time credits
or as many privileges as others working in a higher
workgroup; (4) lost his phone call privileges; [and] (5) [was]
expelled from print shop and landscaping classes,” among
other punishments. Id. at 996. Rejecting the argument that
the prisoner’s religious practice was not substantially
burdened because he had not been physically forced to cut his
hair, we held that the grooming policy constituted a
significant burden because it put “significant pressure” on
him to conform. Id.

Walker’s asserted burden is closely analogous to the one
at issue in Warsoldier. Like the plaintiff in Warsoldier,
Walker faced a prison regulation impairing his ability to
conform to a religious ritual. See Holt v. Hobbs, 135 S. Ct.
853, 862 (2015) (holding that a threat of “serious disciplinary
action” constituted pressure to conform). Taking Walker at
his word, as we must at this stage, a non-white cellmate
would make it impossible to perform the warding ritual in his
cell. As was the case in Warsoldier, Walker accepted prison
discipline rather than the restriction on his religious practice.
The punishments he received – a rules violation report and
placement in administrative segregation – plainly placed him
under pressure to conform. See Warsoldier, 418 F.3d at 996.6

6
The State argues that preventing Walker from performing the warding
ritual in his cell did not substantially burden his religious exercise because
Walker had alternative means of gaining spiritual fulfillment – namely,
conducting the ritual outside his cell. We reject this argument because the
record does not disclose whether it is possible for Walker to perform the
ritual outside his personal space, and presuming that would be contrary to
our obligation to construe pro se § 1983 claims liberally on a motion to
dismiss. Thomas, 611 F.3d at 1150.
 WALKER V. BEARD 15

Thus, Walker has shown that his classification as racially
eligible substantially burdens his religious exercise.

C.

Because Walker has shown that the racially eligible
classification under the Housing Policy substantially burdens
his religious exercise, we must assess whether the State’s
refusal to exempt Walker from the Housing Policy’s
classification scheme was the least restrictive means of
furthering a compelling governmental interest. Our inquiry
here is analogous to the application of strict scrutiny. See
Int’l Church of Foursquare Gospel v. City of San Leandro,
673 F.3d 1059, 1066 (9th Cir. 2011); Centro Familiar
Cristiano Buenas Nuevas v. City of Yuma, 651 F.3d 1163,
1171 (9th Cir. 2011).

At the outset, we note that many possible justifications
might exist for the State’s refusal to exempt Walker from
integrated celling. See, e.g., Cutter, 544 U.S. at 723 n.11
(suggesting that a state could have a compelling interest in
“not facilitating inflammatory racist activity that could
imperil prison security and order”). However, under this
prong of RLUIPA, the State bears the burden of persuasion.
Warsoldier, 418 F.3d at 995. We may not rely on an interest
the State has failed to articulate. See Guru Nanak Sikh Soc’y
of Yuba City v. Cnty. of Sutter, 456 F.3d 978, 981 (9th Cir.
2006); Krislov v. Rednour, 226 F.3d 851, 866 n.7 (7th Cir.
2000). Here, the State has asserted only a single compelling
interest: complying with constitutional restrictions on race-
conscious action. Thus, we evaluate only that purported
interest.
16 WALKER V. BEARD

According to the State, subjecting Walker to the
integrated celling policy and denying him an exemption is
necessary to comply with constitutional restrictions on racial
segregation in prisons. The State points us to Johnson v.
California, 543 U.S. 499 (2005), in which the Supreme Court
considered an equal protection challenge to California’s
previous race-conscious celling policy and concluded that
because the policy included express racial classifications,
strict scrutiny was required.7 Id. at 508–09. The State
contends that exempting Walker from the current policy,
which was developed in response to Johnson, would
undermine the policy’s efficacy and potentially violate the
equal protection rights of non-white inmates.

Compliance with the Constitution can be a compelling
state interest. See Widmar v. Vincent, 454 U.S. 263, 275
(1981) (“We agree that the interest of the [defendant] in
complying with its constitutional obligations may be
characterized as compelling.”).8

Our precedents, however, are less clear on how certain a
constitutional violation must be to justify actions aimed at
avoiding a potential breach. The Supreme Court in Vera
explained that compliance with the Voting Rights Act

7
Rather than make the determination itself whether California’s then-
classification policy passed muster under strict scrutiny, the Court
remanded for the lower courts to make that determination. See id. at 515.
8
Adherence to a sub-constitutional restriction also may be compelling.
See Bush v. Vera, 517 U.S. 952, 977 (1996) (assuming without deciding
that compliance with the Voting Rights Act may be a compelling interest
justifying race-conscious state action); see also KDM ex rel. WJM v.
Reedsport School Dist., 196 F.3d 1046, 1052 (9th Cir. 1999) (concluding
that compliance with a state constitution is a legitimate state interest).
 WALKER V. BEARD 17

constitutes a compelling interest where there is a “strong
basis in evidence” that state action is necessary to avoid a
violation. Vera, 517 U.S. at 977; see also Ricci v. DeStefano,
557 U.S. 557, 563 (2009). Most courts to conclude that
compliance with the Constitution is a compelling interest
have not dwelled on the issue. See, e.g., Lamb’s Chapel v.
Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 395
(1993); Child Evangelism Fellowship of Minn. v. Minneapolis
Special Sch. Dist. No. 1, 690 F.3d 996, 1002–03 (8th Cir.
2012).

We need not determine the exact probability of
constitutional harm necessary to give the State a compelling
interest in curative action. Here, the State has shown more
than merely a good faith belief that exempting Walker would
be constitutionally suspect; there is an objectively strong
legal basis for believing that is the case. Were the State to
begin exempting prisoners from race-neutral celling on the
basis of their religious beliefs, its celling system would not be
race-neutral. The question would become, under the strict
scrutiny inquiry mandated by Johnson, whether the State
would have a compelling justification for race-conscious
action. Courts generally accept racial segregation in prisons
only when motivated by concerns about prisoner safety. See
Johnson, 543 U.S. at 514; Ochs v. Thalacker, 90 F.3d 293,
296–97 (8th Cir. 1996); Harris v. Greer, 750 F.2d 617, 619
(7th Cir. 1984). Although we make no conclusive
determination as to the constitutional effect of racially-based
exemptions from the Housing Policy, the State has shown a
sufficient likelihood of liability to give it a compelling
interest in refusing Walker’s request for an exemption.

Because we hold that the State has a compelling interest
in complying with Johnson, we must also conclude that
18 WALKER V. BEARD

denying Walker’s requested exemption was the least
restrictive means of furthering a compelling state interest.
The gravamen of Walker’s complaint is that the State’s
failure to offer him an exemption from race-neutral celling
constitutes a violation of RLUIPA. But granting that
exemption would be race-conscious action implicating the
Equal Protection Clause, so the only way to avert potential
constitutional liability was to deny the requested exemption.
Anything else would have introduced a non-race-neutral
element into the celling policy, thereby raising the specter of
a credible equal protection claim brought by non-white
prisoners. There is thus an “exact fit” between the potential
harm and the challenged state action. Walker v. City of
Mesquite, 169 F.3d 973, 982 (5th Cir. 1999).

Walker argues that the State fails the least restrictive
means test because it did not “demonstrate[] that it [had]
actually considered and rejected the efficacy of less
restrictive measures before adopting the challenged practice.”
Warsoldier, 418 F.3d at 999. Although the government bears
the burden of proof to show its practice is the least-restrictive
means, it is under no obligation to dream up alternatives that
the plaintiff himself has not proposed. See United States v.
Wilgus, 638 F.3d 1274, 1289 (10th Cir. 2011) (holding that,
in a least restrictive means inquiry, “the government’s burden
is two-fold: it must support its choice of regulation, and it
must refute the alternative schemes offered by the challenger,
but it must do both through the evidence presented in the
record” (emphasis added)).

Here, Walker has consistently demanded only one form
of relief: an exemption from the celling policy. As observed
earlier, this relief would require the State to engage in
constitutionally suspect racial divisions of prisoners. Of
 WALKER V. BEARD 19

course, it is possible to imagine how the State might have
maintained its race-neutral celling policy and offered an
accommodation to Walker – for example, by giving him time
outside his cell to perform the warding ritual by himself. But
Walker never asked for such relief, nor has he given any
indication that he would accept anything short of being
assigned a white cellmate. The State has no additional
obligation under RLUIPA independently to research and
propose every possible way of mitigating that practice’s
negative effects. See Vera, 517 U.S. at 977 (“state actors
should not be ‘trapped between competing hazards of
liability’ by the imposition of unattainable requirements
under the rubric of strict scrutiny”) (quoting Wygant v.
Jackson Bd. of Ed., 476 U.S. 267, 291 (1986) (O’Connor, J.,
concurring in part and concurring in the judgment)). If
Walker wants time outside his cell to perform the ritual, he
needs to ask for it. If the State were to refuse him, that might
be the basis for a separate RLUIPA challenge, but it does not
bear on the challenge here, which is to the application of the
Housing Policy to him without an exemption.

We conclude that the State’s actions were the least
restrictive means of furthering a compelling interest. Walker
has not stated a claim under RLUIPA.

VI.

Walker also contends that the state’s racially eligible
classification infringes on his rights under the Free Exercise
Clause of the First Amendment, applicable to the states
through the Fourteenth Amendment. In general, a plaintiff
will have stated a free exercise claim if: (1) “the claimant’s
proffered belief [is] sincerely held”; and (2) “the claim [is]
rooted in religious belief, not in purely secular philosophical
20 WALKER V. BEARD

concerns.” Malik v. Brown, 16 F.3d 330, 333 (9th Cir. 1994)
(internal quotation marks and citation omitted). Although
prisoners enjoy First Amendment protection, their rights
under the Free Exercise Clause are limited by “institutional
objectives and by the loss of freedom concomitant with
incarceration.” Hartmann v. Cal. Dep’t of Corr. & Rehab.,
707 F.3d 1114, 1122 (9th Cir. 2013). To that end, a
prisoner’s Free Exercise Clause claim will fail if the State
shows that the challenged action is “reasonably related to
legitimate penological interests.” Turner v. Safley, 482 U.S.
78, 89 (1987); see Ashelman v. Wawrzaszek, 111 F.3d 674,
677–78 (9th Cir. 2007).

Walker easily satisfies the threshold requirements for a
Free Exercise Clause claim because he has alleged a sincerely
held religious belief, so his Free Exercise Clause challenge
thus turns on whether the State’s interest in compliance with
the Equal Protection Clause is reasonably related to
legitimate penological interests.

Potential legal liability may constitute a legitimate
penological interest under Turner. See Acorn Inv., Inc. v.
City of Seattle, 887 F.2d 219, 226 (9th Cir. 1989) (indicating
that compliance with an ordinance constitutes a “legitimate
interest”); Victoria W. v. Larpenter, 369 F.3d 475, 486 (5th
Cir. 2004) (noting that the threat of legal liability stemming
from prison escapes gave the state a legitimate penological
interest in restricting prisoner access to off-site medical care);
cf. Goodwin v. Turner, 908 F.2d 1395, 1399 n.7 (8th Cir.
1990) (holding that the state did not have a legitimate
penological interest stemming from potential legal liability,
in part, because the grounds for liability were “far-fetched”).
As we discuss in Part V.C, there is a reasonable likelihood
that exempting Walker from integrated celling would expose
 WALKER V. BEARD 21

the State to liability in an equal protection suit brought by
other inmates. Liability is not “far fetched.” Goodwin,
908 F.3d at 1399 n.7.

The traditional factors we use to weigh prisoners’ Free
Exercise Clause claims also weigh against Walker. In
Turner, the Supreme Court articulated four factors that bear
on whether a legitimate penological interest exists:
(1) whether there is a valid, rational connection between a
state interest and the prison regulation; (2) whether prisoners
have an alternative method of engaging in religious practice;
(3) the impact accommodation of the asserted constitutional
right would have on guards and other inmates; and (4) the
absence of ready alternatives to the challenged regulation.
Turner, 482 U.S. at 89–90.

Three of these factors favor the State. First, given the real
threat of liability and the high-profile nature of California’s
celling procedures post-Johnson, the connection between the
state’s interest in avoiding liability and denying Walker’s
requested relief is substantial. Second, exempting Odinists
such as Walker from the integrated celling policy but not
providing similar exemptions to inmates of other races and
religions might exacerbate tensions within California prisons
and endanger guards. Finally, as discussed in Part V.C, there
are no alternatives to denying Walker’s request that would
mitigate the liability concern. We hold that Walker has failed
to state a claim under the First Amendment.

VII.

Last, Walker contends that he should be granted leave to
amend his complaint. We review a district court’s denial of
leave to amend for abuse of discretion. Lopez, 203 F.3d at
22 WALKER V. BEARD

1130. The district court’s discretion on whether to grant
leave, however, “must be guided by the underlying purpose
of Rule 15 to facilitate decision on the merits, rather than on
the pleadings or technicalities.” United States v. Webb,
655 F.2d 977, 979 (9th Cir. 1981). A pro se litigant is
entitled to an opportunity to amend “[u]nless it is absolutely
clear that no amendment can cure the defect.” Lucas v. Dep’t
of Corr., 66 F.3d 245, 248 (9th Cir. 1995). Here, the district
court did not abuse its discretion in denying leave to amend
because no amendment would cure the deficiency in Walker’s
complaint, given his insistence on a wholesale exemption
from the Housing Policy. The threat of equal protection
liability that requires us to reject Walker’s RLUIPA claim is
rooted in legal precedent. No facts that Walker could adduce
would mitigate the concern. Although Walker might have a
colorable RLUIPA claim if the State refused to accommodate
the warding ritual by giving him time alone and a place to
perform it, that claim would be fundamentally different from
the one here, i.e., it is not tied to the Housing Policy.

VIII.

Walker successfully alleged a burden on his religious
exercise under RLUIPA and the First Amendment, but the
State has a compelling interest in avoiding unconstitutional
racial discrimination, and subjecting Walker to integrated
celling is the only possible means of furthering that interest.
Accordingly, we conclude that Walker has failed to state
claims under RLUIPA and the First Amendment; we further
conclude that the district court did not abuse its discretion in
denying leave to amend.
 WALKER V. BEARD 23

The judgment of the district court is

AFFIRMED.