FILED
NOT FOR PUBLICATION DEC 22 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
STRIDER ROGNIRHAR, AKA Jonathan No. 09-15529
A. Picollo,
D.C. No. 2:08-cv-00892-LRS
Plaintiff - Appellant,
v. MEMORANDUM *
N. GRANNIS; S. R. MOORE; R.
RUSSELL; MATTHEW CATE,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Lonny R. Suko, District Judge, Presiding
Argued and Submitted December 5, 2011
San Francisco, California
Before: SCHROEDER, W. FLETCHER, and BERZON, Circuit Judges.
Strider Rognirhar contends that the district court erred in dismissing his
Complaint under the Prison Litigation Reform Act (“PLRA”) (1) as “frivolous,” 28
U.S.C. § 1915(e)(2)(B)(i); and (2) for “fail[ure] to state a claim on which relief
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
may be granted,” id. § 1915(e)(2)(B)(ii). Rognirhar’s Complaint alleged that
defendants violated the Religious Land Use and Institutionalized Persons Act
(“RLUIPA”) and the First Amendment by refusing to grant him a religious
exemption from California’s prison grooming regulation, which prohibits inmates
from maintaining facial hair that extends more than one-half inch outward from the
face. See Cal. Code Regs. tit 15, § 3062(h).
1. This case is not moot. It is not “absolutely clear,” Friends of the
Earth v. Laidlaw Ent’l Servs. (TOC), Inc., 528 U.S. 167, 190 (2000), that § 3062(h)
will not be enforced against Rognirhar. California has not yet amended § 3062(h)
to eliminate restrictions on the length of inmates’ facial hair, and the Basra v. Cate
settlement agreement is not enforceable by Rognirhar. As the case is not presently
moot, we must decide this appeal on the merits. Should California promulgate its
proposed amendment to § 3062(h) after the case is returned to the district court, the
district court will then determine whether the new provision does, in fact, moot the
case. See, e.g., Jacobus v. Alaska, 338 F.3d 1095, 1103 (9th Cir. 2003) (“[I]n cases
involving the amendment or repeal of a statute, . . . we may continue to exercise
authority over a purportedly moot case where the balance of interests favors such
continued authority.”) (internal quotation marks omitted); Gluth v. Kangas, 951
F.2d 1504, 1507 (9th Cir. 1991) (holding that where a policy is enacted but
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contains vague standards, whether it moots the case depends on whether it “can[]
be said with assurance that there is no reasonable expectation that the alleged
violations will recur.”) (internal quotation marks omitted).
Rognirhar’s claims against S.R. Moore and R. Russell, however, are moot.
Moore and Russell were employees of Deuel Vocational Institute. Rognirhar is no
longer imprisoned at Deuel and has not alleged that he is reasonably likely to
return there. See Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991).
2. Particularly in light of California’s settlement with another inmate
challenging § 3062(h) in Basra v. Cate, No. CV11-01676 (C.D. Cal. 2011), the
district court erred in dismissing Rognirhar’s Complaint as “frivolous” under the
PLRA, 28 U.S.C. § 1915(e)(2)(B)(I). See also Warsoldier v. Woodford, 418 F.3d
989 (9th Cir. 2005).
Nor is the suit frivolous for any of the principal reasons now argued by the
defendants. Rognirhar has standing to bring this suit even though he shaved his
beard just before being transferred to a California prison, to comply with §
3062(h). See MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128-29 (2007).
Violation of § 3062(h) would have subjected him to discipline. See Cal. Code
Regs. tit. 15, § 3062(m). Any doubt in this regard was resolved by the course of
events after Rognirhar filed an administrative grievance requesting a religious
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exemption from § 3062(h)’s prohibition of facial hair exceeding one-half inch. His
request was denied, and Rognirhar was warned that “[a]n inmate who fails to
comply with these grooming standards may be deemed a program failure subject to
progressive discipline and classification committee review.” Rognirhar thus
alleged a “genuine threat of imminent prosecution,” Thomas v. Anchorage Equal
Rights Comm’n, 220 F.3d 1134, 1139 (9th Cir. 1999), in his Complaint. He also
specifically requested that the defendants “be enjoined from subjecting [him] to
any form of discipline for growing [his] facial hair according to [his] faith.” With
these allegations and plea, Rognirhar indicated sufficient intent to violate the
grooming regulation to render his pre-enforcement challenge ripe. See id. at 1139-
41.
3. We only partially reach the merits of whether Rognirhar’s Complaint
stated a claim upon which relief can be granted. The district court sua sponte
dismissed the Complaint prior to service on the defendants, who thus did not have
the opportunity to respond to Rognirhar’s Complaint. Neither did the defendants,
on appeal, address whether Rognirhar’s Complaint stated a RLUIPA claim upon
which relief may be granted. We therefore do not reach the merits of that question.
Cf. Wages v. I.R.S., 915 F.2d 1230, 1234-35 (9th Cir. 1990).
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In contrast, we decide the merits of whether Rognirhar stated a First
Amendment claim upon which relief can be granted, because both parties fully
briefed this issue on appeal. See id. Rognirhar did not allege that § 3062(h) lacks
a reasonable relation to valid penological interests and thus failed to state a First
Amendment claim on which relief may be granted. See Turner v. Safley, 482 U.S.
78, 89 (1987). Moreover, the district court did not abuse its discretion in denying
Rognirhar leave to amend his Complaint with regard to the First Amendment
challenge. Friedman v. Arizona rejected a First Amendment challenge to
Arizona’s inmate grooming policy that prohibited facial hair altogether, holding
that the policy “reasonably relates to legitimate penological interests,” 912 F.2d
328, 331 (1990). Because a regulation that prohibits any facial hair does not
violate the First Amendment, it is clear that the deficiencies of Rognirhar’s
constitutional challenge to § 3062(h) cannot be cured by amendment. See Silva v.
Di Vittorio, 658 F.3d 1090, 1105 (9th Cir. 2011).
4. The fact that N. Grannis was responsible solely for denying
Rognirhar’s administrative grievance does not preclude Rognirhar from stating a
claim against Grannis. Grannis’s denial of the grievance constituted part of the
alleged violation against Rognirhar, and enjoining Grannis from denying
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Rognirhar a religious exemption from § 3062(h) would constitute an effective form
of relief.
We AFFIRM the district court’s judgment with respect to defendants Moore
and Russell and with respect to Rognirhar’s First Amendment challenge against all
defendants. We REVERSE with respect to Rognirhar’s RLUIPA challenge
against defendants Grannis and Cate and REMAND for further proceedings.
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