FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PATRICK RONALD HOLLEY, SR.,
Plaintiff-Appellant,
v.
CALIFORNIA DEPARTMENT OF No. 07-15552
CORRECTIONS; CALIFORNIA MEDICAL
D.C. No.
FACILITY; DAVIS; ARONSEN; R.W.
WILLIAMS, CV-04-02006-
MCE/EFB
Defendants,
OPINION
and
YOUNGBLOOD; M. VEAL; D.S.
JONES; MORENO,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, District Judge, Presiding
Argued and Submitted
January 15, 2010—San Francisco, California
Filed April 5, 2010
Before: J. Clifford Wallace, Procter Hug, Jr. and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Clifton
5215
HOLLEY v. CDC 5217
COUNSEL
Joseph Haig Boyd, The Law Offices of Joseph H. Boyd, Ker-
man, California, for the plaintiff-appellant.
Barry Alves, Maria G. Chan, and James Flynn, Office of the
California Attorney General, Sacramento, California, for the
defendants-appellees.
5218 HOLLEY v. CDC
OPINION
CLIFTON, Circuit Judge:
State prisoner Patrick Ronald Holley, Sr., appeals from the
district court’s summary judgment in favor of defendant
prison officials. Holley alleges in his 42 U.S.C. § 1983 action
that California Department of Corrections grooming regula-
tions requiring short hair imposed a substantial burden on his
exercise of religion in violation of section 3 of the Religious
Land Use and Institutionalized Persons Act of 2000
(RLUIPA), 42 U.S.C. § 2000cc-1. He seeks damages from
defendants in their official capacities. We must decide
whether the acceptance of federal prison funding by the state
of California effected a waiver of the state’s sovereign immu-
nity that would allow the RLUIPA claim for damages against
state officials in their official capacities to proceed in federal
court. We conclude that California did not waive its Eleventh
Amendment immunity under either RLUIPA or the Rehabili-
tation Act Amendments of 1986, and we therefore affirm the
judgment of the district court.
I. Background
Holley is an inmate at the California Medical Facility in
Vacaville, California. He has, at various times, identified him-
self as a Christian, a Satan worshiper, and a Nazarite, and has
attended Muslim services. Holley has stated that no estab-
lished religion adequately describes his religious beliefs,
which involve paying close attention to his spirit. He derived
the religious practice at issue in this case—the requirement
that he refrain from cutting his hair—from Numbers 6:3-5 in
the Bible.
Holley faced disciplinary action on several occasions for
keeping his hair longer than prison grooming regulations
allowed. On April 19, 2004, Holley filed an administrative
grievance complaining that he should be permitted to grow
HOLLEY v. CDC 5219
his hair in spite of the grooming regulations because of his
religious beliefs. He appealed this grievance, which was
denied at each stage, to the Director’s Level of review, where
it was denied on September 14, 2004.1
Meanwhile, on May 13, 2004, Holley was cited for letting
his hair grow too long. He challenged this action by filing a
second grievance, contending again that he should be exempt
from the hair grooming regulations because of his religion.
On June 20, 2004, he cut his hair to avoid punishment.
Between August and October 2005, Holley was charged
three more times with violating the grooming regulations for
having braids longer than three inches. These charges were all
eventually dismissed.
The grooming regulations at issue were amended effective
January 17, 2006. Holley was allowed to have long hair under
the amended regulations. Prior disciplinary actions were
reversed and associated penalties rescinded.
Holley filed suit in the district court alleging, among other
claims, that being required to cut his hair violated his rights
under RLUIPA.2 He sought damages against each of the
1
Holley contends that the district court erred in holding that he failed to
exhaust his administrative remedies as to all of his grievances. We need
not reach this issue, however. Even assuming that the district court did err,
any error was harmless because it did not affect Holley’s ability to pursue
his claims in federal court. The district court held, and the government
does not dispute, that Holley exhausted administrative remedies as to at
least one of the grievances raising the issues he pursues here. We, like the
district court, may therefore reach the merits of his claims.
2
Section 3 of RLUIPA provides that:
No government shall impose a substantial burden on the religious
exercise of a person residing in or confined to an institution . . .
unless the government demonstrates that imposition of the burden
on that person—(1) is in furtherance of a compelling governmen-
tal interest; and (2) is the least restrictive means of furthering that
compelling governmental interest.
42 U.S.C. § 2000cc-1(a).
5220 HOLLEY v. CDC
defendant prison officials in their official capacities. The par-
ties filed cross-motions for summary judgment. The magis-
trate judge, concluding that the Eleventh Amendment bars
official-capacity suits for damages under RLUIPA, recom-
mended denying Holley’s summary judgment motion and
granting the summary judgment motion filed by defendants.
The district court fully adopted the magistrate judge’s recom-
mendations and entered judgment for defendants. This appeal
followed.
II. Discussion
Holley cannot seek injunctive or declaratory relief, because
it is undisputed that he is now allowed to have long hair and
all prior penalties for his violations of the earlier policy have
been rescinded. Holley has abandoned any request for money
damages he might have claimed against defendants in their
individual capacities. The only form of relief he currently
seeks is money damages against defendants in their official
capacities.
[1] We review a party’s immunity under the Eleventh
Amendment de novo. See Holz v. Nenana City Pub. Sch.
Dist., 347 F.3d 1176, 1179 (9th Cir. 2003). For sovereign-
immunity purposes, we treat Holley’s suit against state offi-
cials in their official capacities as a suit against the state of
California. See Hafer v. Melo, 502 U.S. 21, 25 (1991). The
Eleventh Amendment bars such a suit unless Congress has
abrogated state sovereign immunity under its power to
enforce the Fourteenth Amendment or a state has waived it.
See Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ.
Expense Bd., 527 U.S. 666, 670 (1999) (recognizing these
“two circumstances in which an individual may sue a State”).
Abrogation is not at issue in this case. The availability of
damages here turns, therefore, on whether California waived
its immunity to damages in RLUIPA suits by accepting fed-
eral funding that was conditioned on such a waiver.
HOLLEY v. CDC 5221
[2] To be a valid waiver, a state’s consent to suit must be
“unequivocally expressed in the statutory text.” Lane v. Pena,
518 U.S. 187, 192 (1996);3 see also Pennhurst State Sch. &
Hosp. v. Halderman, 465 U.S. 89, 99 (1984). “[T]here can be
no consent by implication or by use of ambiguous language.”
United States v. N.Y. Rayon Importing Co., 329 U.S. 654, 659
(1947). Courts must “indulge every reasonable presumption
against waiver,” Coll. Sav. Bank, 527 U.S. at 682, and waiv-
ers “must be construed strictly in favor of the sovereign and
not enlarged beyond what the [statutory] language requires.”
United States v. Nordic Village, Inc., 503 U.S. 30, 34 (1992)
(citations, ellipses, and internal quotation marks omitted). “To
sustain a claim that the Government is liable for awards of
monetary damages, the waiver of sovereign immunity must
extend unambiguously to such monetary claims.” Lane, 518
U.S. at 192.
Holley points to two federal statutes that he contends
accomplish, in conjunction with California’s acceptance of
federal funds, the waiver that he needs: RLUIPA itself, 42
U.S.C. § 2000cc-2; and section 1003 of the Rehabilitation Act
Amendments of 1986, 42 U.S.C. § 2000d-7. We conclude that
neither statute employs the explicit and unambiguous lan-
guage that waiver of sovereign immunity requires.
A. RLUIPA
[3] The RLUIPA language Holley identifies as supporting
a waiver of sovereign immunity provides that “[a] person may
assert a violation of this chapter as a claim or defense in a
3
That Lane involved waiver of the federal government’s sovereign
immunity does not change the waiver analysis. The Supreme Court has
held that “[i]n considering whether the Eleventh Amendment applies . . .
cases involving the sovereign immunity of the Federal Government . . .
provide guidance.” California v. Deep Sea Research, Inc., 523 U.S. 491,
506 (1998); see also, e.g., Van Wyhe v. Reisch, 581 F.3d 639, 653 (8th Cir.
2009) (relying on federal-immunity cases in analyzing waiver under
RLUIPA); Nelson v. Miller, 570 F.3d 868, 883-85 (7th Cir. 2009) (same).
5222 HOLLEY v. CDC
judicial proceeding and obtain appropriate relief against a gov-
ernment.”4 42 U.S.C. § 2000cc-2(a) (emphasis added). Holley
argues that “appropriate relief” includes monetary damages
and that recipients of federal funding waive sovereign immu-
nity under this phrase to make such damages available.
[4] This statutory text does not “unequivocally express[ ]”
a waiver of sovereign immunity. Lane, 518 U.S. at 192. The
phrase “appropriate relief” does not address sovereign immu-
nity specifically at all, let alone “extend [a waiver of sover-
eign immunity] unambiguously to . . . monetary claims” in
particular. Id. We join five of the six circuits to have consid-
ered this question in holding that “RLUIPA’s ‘appropriate
relief’ language does not unambiguously encompass monetary
damages so as to effect a waiver of sovereign immunity from
suit for monetary claims . . . .” Van Wyhe v. Reisch, 581 F.3d
639, 654 (8th Cir. 2009).5
The contrary holding of the Eleventh Circuit in Smith v.
Allen, 502 F.3d 1255 (11th Cir. 2007), stands alone. But
4
The statute’s definition of “government,” which includes “any . . . per-
son acting under color of State law,” 42 U.S.C. § 2000cc-5(4)(A)(iii), cov-
ers the defendants acting in their official capacities.
5
See also Madison v. Virginia, 474 F.3d 118, 131 (4th Cir. 2006)
(“[‘Appropriate relief’] falls short of the unequivocal textual expression
necessary to waive the State immunity from suits for damages.”); Sossa-
mon v. Texas, 560 F.3d 316, 331 (5th Cir. 2009) (“RLUIPA is clear
enough to create a right for damages on the cause-of-action analysis, but
not clear enough to do so in a manner that abrogates state sovereign
immunity from suits for monetary relief.”); Cardinal v. Metrish, 564 F.3d
794, 801 (6th Cir. 2009) (“RLUIPA does not contain a clear indication
that Congress unambiguously conditioned receipt of federal prison funds
on a State’s consent to suit for monetary damages.”); Nelson v. Miller, 570
F.3d 868, 885 (7th Cir. 2009) (“ ‘[A]ppropriate relief’ does not provide the
‘unequivocal textual expression’ necessary to effect a waiver of sovereign
immunity to suits for damages.”). The Third Circuit has also held that the
Eleventh Amendment bars RLUIPA official-capacity claims for money
damages, but it did so without analysis. See Scott v. Beard, 252 F. App’x
491, 492-93 (3d Cir. 2007).
HOLLEY v. CDC 5223
Smith’s reasoning, which relied on the Supreme Court’s deci-
sion in Franklin v. Gwinnett County Public Schools, 503 U.S.
60 (1992), was undercut by the Supreme Court’s later clarifi-
cation of Franklin in Lane v. Pena, 518 U.S. 187 (1996). The
Eleventh Circuit relied on Franklin for the proposition that
“where Congress ha[s] not given any guidance or clear indica-
tion of its purpose with respect to remedies, federal courts
should presume the availability of all appropriate remedies.”
Smith, 502 F.3d at 1270. Franklin, however, involved no
claim of sovereign immunity. As the Court noted in distin-
guishing Franklin in Lane, “[w]here a cause of action is
authorized against [an immune sovereign], the available reme-
dies are not those that are ‘appropriate,’ but only those for
which sovereign immunity has been expressly waived.” 518
U.S. at 196-97. The phrase “appropriate relief” alone does not
trump sovereign immunity to make monetary relief available
under RLUIPA.
B. 42 U.S.C. § 2000d-7
[5] Holley argues that even if the language of RLUIPA
does not effect a waiver of sovereign immunity, a separate
statute, 42 U.S.C. § 2000d-7, does. This section, included as
part of the Rehabilitation Act Amendments of 1986, reads: “A
State shall not be immune under the Eleventh Amendment of
the Constitution of the United States from suit in Federal
court for a violation of [several enumerated antidiscrimination
statutes], or the provisions of any other Federal statute prohib-
iting discrimination by recipients of Federal financial assis-
tance.” 42 U.S.C. § 2000d-7(a)(1). Holley contends that
RLUIPA falls within the catch-all reference to “Federal sta-
tute[s] prohibiting discrimination by recipients of Federal
financial assistance,” and that § 2000d-7 therefore effects a
waiver of sovereign immunity for RLUIPA violations.
[6] We disagree. The Eighth Circuit considered and
cogently rejected this argument in Van Wyhe:
5224 HOLLEY v. CDC
The institutionalized persons section of RLUIPA . . .
(Section 3) . . . does not unambiguously prohibit
discrimination—it prohibits substantial burdens on
religious exercise, without regard to discriminatory
intent. Congress understands how to create a federal
statute prohibiting discrimination, and it did so
within RLUIPA’s separate section (Section 2) deal-
ing with land use regulations. Section 2 of RLUIPA
prohibits “discrimination” against religious institu-
tions “on the basis of religion” with regard to land
use regulations and prohibits land use regulations
that treat a religious institution “on less than equal
terms with a nonreligious assembly or institution.”
42 U.S.C. § 2000cc(b)(1), (2). Similar language, pro-
hibiting discrimination or requiring equal treatment,
is conspicuously omitted from the RLUIPA protec-
tions afforded to institutionalized persons under Sec-
tion 3. . . . The antidiscrimination statutes listed in
[42 U.S.C. § 2000d-7(a)(1)] all explicitly prohibit
discrimination, and the institutionalized persons sec-
tion of RLUIPA does not fit neatly within that genre.
. . . Absent an unequivocal textual indication that [42
U.S.C. § 2000d-7(a)(1)] applies to Section 3
institutionalized-person-RLUIPA claims, we will not
rely on [42 U.S.C. § 2000d-7(a)(1)] to effectuate a
knowing waiver of sovereign immunity from money
damages on those claims.
581 F.3d at 654-55 (footnotes and citations omitted). We
agree with the Eighth Circuit’s reasoning that Section 3 of
RLUIPA, 42 U.S.C. § 2000cc-1, is not among the “other Fed-
eral statute[s] prohibiting discrimination” to which § 2000d-
7(a)(1) refers. Section 2000d-7, therefore, does not effect a
waiver of sovereign immunity for damages claims brought
under section 3 of RLUIPA.
III. Conclusion
[7] Neither the “appropriate relief” language of RLUIPA,
42 U.S.C. § 2000cc-2, nor the catch-all provision of 42 U.S.C.
HOLLEY v. CDC 5225
§ 2000d-7 caused California to waive its sovereign immunity
by accepting federal prison funds. The Eleventh Amendment
bars Holley’s suit for official-capacity damages under
RLUIPA.
AFFIRMED.