NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 2 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD R. WATKINSON, No. 21-35084
Plaintiff-Appellant, D.C. No. 3:17-cv-00236-JMK
v.
MEMORANDUM*
ALASKA DEPARTMENT OF
CORRECTIONS; EARL HAUSER; JAMES
DUNCAN; SCOTT DIAL,
Defendants-Appellees,
and
KEITH ROGERS; JOHN CONANT,
Defendants.
Appeal from the United States District Court
for the District of Alaska
Joshua M. Kindred, District Judge, Presiding
Argued and Submitted February 15, 2022
San Francisco, California
Before: McKEOWN and W. FLETCHER, Circuit Judges, and VRATIL, ** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Kathryn H. Vratil, United States District Judge for the
District of Kansas, sitting by designation.
Plaintiff Richard Watkinson—a prisoner in the Alaska Department
of Corrections (“ADOC”) and a practitioner of Asatru—appeals from the district
court’s judgment for Defendants ADOC, Earl Hauser, James Duncan, and Scott
Dial. Plaintiff claims that Defendants violated the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc et seq., Plaintiff’s
First Amendment right to free exercise of religion, and Plaintiff’s Fourteenth
Amendment right to equal protection. We have jurisdiction under 28 U.S.C.
§ 1291 and affirm.
We review district court findings of fact for clear error. Winding Creek
Solar LLC v. Peterman, 932 F.3d 861, 864 (9th Cir. 2019). We review de novo the
district court’s conclusions of law and determinations on mixed questions of law
and fact. Cal. First Amend. Coal. v. Woodford, 299 F.3d 868, 872–73 (9th Cir.
2002).
1. Plaintiff argues that the Defendants substantially burdened his religious
exercise in violation of the RLUIPA by preventing him from using firewood
purchased through ADOC’s Prison Welfare Fund (“PWF”) for religious purposes
and from using the PWF to pool funds with other prisoners to purchase his juice
and honey at discounted rates from outside bulk vendors. The RLUIPA provides
that “‘[n]o government shall impose a substantial burden on the religious exercise’
of prisoners unless the government can demonstrate that the burden both serves a
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compelling government interest and is the least restrictive means of advancing that
interest.” Mayweathers v. Newland, 314 F.3d 1062, 1065 (9th Cir. 2002) (quoting
42 U.S.C. § 2000cc-1(a)). Plaintiff bears the initial burden of persuasion as to
whether a policy “substantially burdens” his religious exercise. 42 U.S.C. §
2000cc-2(b). A substantial burden must be more than a mere inconvenience,
imposing “a significantly great restriction or onus upon [religious] exercise.” San
Jose Christian Coll. v. City of Morgan Hill, 360 F.3d 1024, 1034 (9th Cir. 2004).
The RLUIPA does not require a state to facilitate or subsidize the exercise of
religion or pay for devotional accessories. Cutter v. Wilkinson, 544 U.S. 709, 720
n.8 (2005); see Mayweathers, 314 F.3d at 1068–69.
ADOC policies do not deny Plaintiff access to any item necessary for his
religious ceremonies, and Plaintiff may procure all necessary items without access
to the PWF. Defendants’ policies thus did not substantially burden the exercise of
Plaintiff’s religious practice, and the district court did not err in determining that
Defendants did not violate the RLUIPA. See Hartman v. Cal. Dep’t of Corr. &
Rehab., 707 F.3d 1114, 1125 (9th Cir. 2013) (prison not required to provide an
additional religious accommodation of a full-time Wiccan chaplain).
2. Plaintiff argues that Defendants violated his First Amendment rights for
the same reasons. The Free Exercise Clause of the First Amendment states that the
government shall make no law “prohibit[ing] the free exercise of religion.”
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O’Lone v. Est. of Shabazz, 482 U.S. 342, 348 (1987). Though the right to engage in
religious practices does not terminate at the prison door, the right “is necessarily
limited by the fact of incarceration.” Jones v. Williams, 791 F.3d 1023, 1032 (9th
Cir. 2015) (citation omitted). As with the RLUIPA, a prisoner asserting a free
exercise claim must show that the government policy has substantially burdened
his practice of religion. Id. at 1031. If the burden is substantial, the challenged
conduct will be valid if “reasonably related to legitimate penological interests.” Id.
at 1032 (quoting O’Lone, 482 U.S. at 349).
For reasons stated above, the district court did not err in determining that
Defendants’ conduct did not substantially burden Plaintiff’s religious exercise.
Furthermore, even if it did so, PWF policies were reasonably related to legitimate
penological interests: avoiding constitutional issues that might arise from funding
one specific religious group, maintaining prison security, avoiding favoritism, and
ensuring that PWF funds support charitable, recreational, and educational
opportunities available to the entire prison population. See Thornburgh v. Abbott,
490 U.S. 401, 415 (1989); Walker v. Beard, 789 F.3d 1125, 1138 (9th Cir. 2015).
The district court thus did not err in denying relief on Plaintiff’s Free Exercise
claim.
3. Plaintiff argues that Defendants violated his Fourteenth Amendment
rights when they treated the Native American cultural group differently from
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Asatru practitioners by allowing the Native American group to use PWF-purchased
firewood at the prison sweat lodge.
The Equal Protection Clause states that no state shall “deny to any
person . . . the equal protection of the laws.” U.S. Const. amend XIV, § 1. To
state an equal protection claim, an inmate must identify a group of individuals to
whom he is similarly situated and allege intentional and disparate treatment. See
McCollum v. Cal. Dep’t of Corr. & Rehab., 647 F.3d 870, 880–81 (9th Cir. 2011).
The similarly situated group need not be similar in all aspects but must be similar
“in respects that are relevant to the state’s challenged policy.” Gallinger
v. Becerra, 898 F.3d 1012, 1016 (9th Cir. 2018).
The prison director testified that the groups are not similarly situated
because the sweat lodge is a cultural rather than a religious activity. We accord
deference to such testimony in determining whether two groups are similarly
situated. See O’Lone, 482 U.S. at 349; Thornton v. City of St. Helens, 425 F.3d
1158, 1168 (9th Cir. 2005) (“Evidence of different treatment of unlike groups does
not support an equal protection claim.”). The district court did not clearly err in
relying on that testimony to determine that the two groups are not similarly situated
for purposes of the Equal Protection Clause.
AFFIRMED.
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