The Honorable Robert D. Sack, Senior Circuit Judge for the U.S. Court *

of Appeals for the Second Circuit, sitting by designation.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EDWARD TERRAN FURNACE,

Plaintiff-Appellant,

v.

PAUL SULLIVAN, CO; D. MORALES,

CO;J. SOTO,CO, sued in their official

and individual capacities,

Defendants-Appellees.

No. 10-15961

D.C. No.

3:07-cv-04441-

MMC

OPINION

Appeal from the United States District Court

for the Northern District of California

Maxine M. Chesney, Senior District Judge, Presiding

Argued and Submitted

November 6, 2012—San Francisco, California

Filed January 17, 2013

Before: Robert D. Sack, Ronald M. Gould, *

and Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.
2 FURNACE V. SULLIVAN

 This summary constitutes no part of the opinion of the court. It has

**

been prepared by court staff for the convenience of the reader.

SUMMARY

**

Prisoner Civil Rights

The panel reversed in part and affirmed in part the district

court’s summary judgment in a 42 U.S.C. § 1983 action

brought by a prison inmate who alleged that prison officials

violated his Eighth Amendment rights by spraying him with

an excessive quantity of pepper spray, and violated his

Fourteenth Amendment rights when they denied him a

vegetarian breakfast. 

The panel reversed the district court’s summary judgment

in favor of prison officials on plaintiff’s Eighth Amendment

claim, determining that the district court failed to draw all

inferences in plaintiff’s favor when resolving the issue of

qualified immunity. The panel concluded that given the facts,

as alleged by plaintiff, a significant amount of force was

employed without significant provocation from plaintiff or

warning from the officers. The panel remanded on this issue.

The panel affirmed the district court’s grant of summary

judgment in favor of prison officials with respect to plaintiff’s

Equal Protection challenge. The panel held that the district

court properly concluded that plaintiff failed to raise a triable

issue of fact with respect to whether the officers intentionally

refused to provide him with a religious breakfast tray while

providing the same to other inmates who were similarly

situated.
FURNACE V. SULLIVAN 3

COUNSEL

Victoria L. Weatherford (argued) and Daniel H. Bookin,

O’Melveny & Myers LLP, San Francisco, California, for

Plaintiff-Appellant.

Jose Zelidon-Zepeda (argued), Deputy Attorney General,

State of California, for Defendants-Appellees.

OPINION

M. SMITH, Circuit Judge:

Plaintiff-Appellant Edward Terran Furnace appeals from

the district court’s grant of summaryjudgment in DefendantsAppellees’ favor. Furnace alleges that the DefendantsAppellees, who are correctional officers at the prison where

Furnace was incarcerated at the time of the alleged

occurrence, violated his Eighth Amendment rights by

spraying him with an excessive quantity of pepper spray.

Furnace also alleges that his Fourteenth Amendment rights

were disregarded when the officers denied him a vegetarian

breakfast.

We reverse and remand on Furnace’s Eighth Amendment

claim, because the district court failed to draw all inferences

in Furnace’s favor when resolving the issue of qualified

immunity in a summary judgment, but we affirm the district

court’s grant of summary judgment with respect to Furnace’s

Equal Protection challenge.
4 FURNACE V. SULLIVAN

 The district court’s order granting summary judgment, which cites 1

Furnace’s estimate of the food port’s size, describes the food port as being

eighteen inches wide and seven or eight inches high. Record photographs

of the food port, however, confirm our description of the food port’s

dimensions.

FACTS AND PROCEDURAL BACKGROUND

During the time period relevant to this case, Furnace was

an inmate at Salinas Valley State Prison (SVSP). He

practices the Shetaut Neter religion, which requires its

advanced practitioners to be vegetarians. As a result, Furnace

was entitled to receive vegetarian meals, and he had received

them without incident at SVSP for over a year.

Meals in Furnace’s cell block were delivered through a

food/handcuff port (food port), a rectangular slot in each jail

cell door covered by a metal flap that can be opened from the

outside by removing a padlock. The food port is about twelve

inches wide and six inches tall.1

Operation Procedure 29 (OP 29) describes SVSP’s

policies regarding inmates and the food port, as follows:

Inmates who take control of food/cuff ports

create a serious immediate safety concern for

staff and other inmates and mandates

suspension of the programming of the other

inmates housed in the unit. . . . It is imperative

that the food/cuff port be secured in short

order to enable inmates to continue to receive

services.
FURNACE V. SULLIVAN 5

OP 29 also prescribes how officers are to react when inmates

interfere with a food port:

If during routine duties, correctional officers

encounter an inmate who refuses to allow

staff to close and lock his food/cuff port, the

officers will verbally order the inmate to

relinquish control of the food port and allow

staff to secure it. The officer shall issue a

warning that chemical agents will be used if

he does not comply.

If the inmate refuses to relinquish control of

the food port, despite the warning, the officer

is authorized to administer chemical agents

against the inmate to secure the food port.

OP 29 also directs that if chemical agents are employed

against an inmate, health care staff at SVSP are to allow the

prisoner to decontaminate.

Defendants-Appellees, D.R. Morales, P. Sullivan, and J.

Soto (collectively, the officers,) were on duty the morning of

the events giving rise to this litigation, and were responsible

for delivering breakfast to the inmates in Furnace’s cell

block. Neither of the officers was regularly assigned to work

in Furnace’s cell block, nor was either of them familiar with

Furnace. Morales was assigned to distribute breakfast trays

to Furnace and his cell mate on the relevant morning, and he

approached Furnace’s cell carrying a large platter with two or

three meal trays on it.

Accounts of what happened next diverge dramatically.

We begin with Furnace’s account. Furnace claims he heard
6 FURNACE V. SULLIVAN

 The record does not contain details regarding the Shetaut Netur 2

religion, though Furnace’s brief on appeal states that it is entirely distinct

from Islam.

Morales say something derogatory, which he contends was

something to the effect of, “What’s up with all these fuckin’

Muslims over here?” As Morales approached Furnace’s cell, 2

he held the food tray with one hand, and opened the food port

with the other. Correctional staff rely on signs posted on the

doors of prison cells to ascertain whether an inmate has been

approved to receive a vegetarian meal. Morales claims that

he did not see such a sign on Furnace’s cell door. Inmates

also keep a form called a “chrono” that lists their

authorization to receive a vegetarian meal. Furnace concedes

that he did not show the officers his chrono, though he had it

in his cell at the time of the incident.

When Morales opened the food port on Furnace’s cell,

Furnace requested two vegetarian meals. Morales said, “You

guys ain’t vegetarian,” closed the food port, and stepped out

of view to speak with Soto. Morales then returned to the cell,

opened the food port, and told Furnace that Soto had advised

him that Furnace and his cell mate were not entitled to

vegetarian trays. Morales next told Furnace to either accept

the trays, or he would mark both Furnace and his cell mate

down as having refused them.

Furnace then attempted to ask Soto to come to the cell

door. He states that he attempted to do so by squatting down

and putting his fingertips on the bottom portion of the open

food port to balance himself, from which position he intended

to call to Soto through the food port. He did not extend his

hand or arm outside the food port. Without warning, Morales

sprayed Furnace with pepper spray. Furnace put his hand up
FURNACE V. SULLIVAN 7

to block the pepper spray, and grabbed the food port in the

process. Sullivan saw that Morales was pepper spraying

Furnace, came over, and also began pepper spraying him.

Morales discharged his can of pepper spray at Furnace until

it was empty. Furnace testified that he was pepper sprayed

for “maybe a minute,” and it was his perception that the

officers unloaded the contents of two canisters of pepper

spray on him.

Furnace was struck by pepper spray in the lower part of

his face, on his chest, on his stomach, and on his groin area.

The pepper spray caused his skin to blister and burn. He

experienced a burning sensation for three or four days

following the incident. After the incident, he also developed

a rash in his groin area that he believes may have been caused

by the pepper spray.

The officers’ version of the events differs markedly from

Furnace’s. Morales claims that when he returned from

conferring with Soto about whether Furnace was entitled to

receive a vegetarian meal, Furnace abruptly forced the food

port open and yelled, “fuck you!” Morales claims that he

instructed Furnace to remove his hands from the food port,

and that he told Furnace he had ten seconds to comply with

his direct order. He avers that Furnace again said, “fuck

you,” and exhibited “an aggressive determination not to let go

of the food port.” Morales says that he discharged a onesecond blast of pepper spray at Furnace in order to gain his

compliance, and then ceased spraying because his canister

was empty. Seeing Morales pepper spraying Furnace,

Sullivan ran over to Furnace’s cell, and began discharging

pepper spray on Furnace from his own canister. Sullivan

claims he discharged one blast of pepper spray on Furnace,
8 FURNACE V. SULLIVAN

and that Furnace eventuallywithdrew his hands from the food

port after Sullivan sprayed him.

It is undisputed that after Morales and Sullivan stopped

spraying Furnace, Furnace was allowed to decontaminate in

his cell. He did not receive a vegetarian breakfast that

morning.

Furnace brought several claims against the officers, two

of which are at issue on appeal. First, he claimed that

Morales and Sullivan used excessive force in the way they

used the pepper spray against him, in violation of the Eighth

Amendment. Second, he claimed that the officers violated

his equal protection rights by not providing him with a

vegetarian breakfast, even though they provided vegetarian

meals to other similarly situated inmates.

The officers moved for summary judgment on both

claims, which the district court granted. Furnace appeals that

order, claiming that the district court improperly resolved

disputed issues of material fact in the officers’ favor.

STANDARD OF REVIEW

We review the district court’s grant of summary judgment

and its qualified immunity determinations de novo. See

Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir.

2011). “Summary judgment is appropriate only if, taking the

evidence and all reasonable inferences drawn therefrom in the

light most favorable to the non-moving party, there are no

genuine issues of material fact and the moving party is

entitled to judgment as a matter of law.” Id. If, as to any

given material fact, evidence produced by the moving party

(the officers, in this case) conflicts with evidence produced by
FURNACE V. SULLIVAN 9

 The Supreme Court has held that courts have discretion to determine 3

the sequence of this inquiry. See Pearson v. Callahan, 555 U.S. 223, 236

(2009).

the nonmoving party (Furnace, in this case), we must assume

the truth of the evidence set forth by the nonmoving party

with respect to that material fact. See Leslie v. Grupo ICA,

198 F.3d 1152, 1157–58 (9th Cir. 1999). With respect to

qualified immunity determinations on summary judgment, we

assess whether the contours of Furnace’s Eighth Amendment

right were clearly established with respect to the alleged

misconduct. Saucier v. Katz, 533 U.S. 194, 201–02 (2001).3

If the right was clearly established, we then ask: “Taken in

the light most favorable to the party asserting the injury, do

the facts alleged show the officer’s conduct violated a

constitutional right?” Id.

DISCUSSION

A. Disputed Facts

The district court correctly determined that there were

triable issues of material fact concerning whether Morales

warned Furnace to remove his hands from the food port

before pepper spraying him, and whether Furnace posed such

a threat that Morales and Sullivan were justified in employing

pepper spray against him.

The court also concluded, however, that Furnace did not

raise a triable issue of material fact with respect to the amount

of pepper spray that Morales and Sullivan used on Furnace,

even though the quantity of pepper spray discharged by the

officers is unquestionably material, because the amount of

force used is central to a claim sounding in the alleged use of
10 FURNACE V. SULLIVAN

excessive force. See Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986) (“Only disputes over facts that

might affect the outcome of the suit under the governing law

will properly preclude the entry of summary judgment.”).

Furnace alleged that both Morales and Sullivan

discharged their canisters of pepper spray on him until each

canister was empty. The court concluded that Furnace had

not presented any evidence to support this claim. Instead, the

court credited the officers’ statements that Morales

discharged a one-second burst of pepper spray at Furnace and

then stopped because his canister lacked pressure, and that

Sullivan, seeing Morales struggling with his pepper spray

canister, fired one burst of pepper spray at Furnace, but

stopped as soon as Furnace removed his hands from the food

port.

Furnace may have lacked a foundation to determine

precisely how many canisters of pepper spray, if any, the

officers depleted, but it does not follow that the court should

therefore automatically adopt the officers’ version of how

much pepper spray they used. See Clement v. Gomez,

298 F.3d 898, 902 & n.2 (9th Cir. 2002) (accepting on

summary judgment the nonmovants’ version of events despite

the “considerable confusion” regarding the number, sequence,

and duration of bursts of pepper spray). As the district court

noted, Furnace testified that he was pepper sprayed for

“maybe a minute,” and that he believed that officers Sullivan

and Morales both emptied their entire canisters of pepper

spray on him.

We are unable to reconcile the officers’ testimony that

they employed two quick blasts of pepper spray at Furnace

with Furnace’s own testimony that he was pepper sprayed for
FURNACE V. SULLIVAN 11

up to a full minute, especially given the extent of Furnace’s

alleged injuries. The discrepancy between these accounts is

too great to be capable of resolution on summary judgment.

Accordingly, as it must do when ruling on a motion for

summary judgment, the district court should have adopted

Furnace’s version of the events—that he was subject to

repeated bursts of pepper spray for about a minute—when

determining whether the officers were entitled to qualified

immunity. Had it done so, as more fully discussed below, its

analysis of whether the officers were entitled to qualified

immunity at the summary judgment stage of the litigation,

would have been affected.

Additionally, though the district court found that a triable

issue of material fact remained as to whether Furnace posed

a threat, it premised its award of qualified immunity to the

officers on its determination that Morales could have

mistakenly, but reasonably, perceived that Furnace posed a

threat “when [he] held open the food port.” Furnace denies

that he held the food port open; he claims instead that he

rested his fingers on the already-open food port for balance.

This factual characterization is subtle, but is relevant to the

question of whether Morales could have reasonably believed

that Furnace posed a threat to the safety and security of the

institution. Moreover, because the determination was made

on a motion for summary judgment, the determination should

have been made by drawing all inferences in Furnace’s favor.

B. Qualified Immunity

Furnace alleges that the officers violated his Eighth

Amendment right to be free from cruel and unusual

punishment by using excessive force against him when they

pepper sprayed him. For purposes of a qualified immunity
12 FURNACE V. SULLIVAN

analysis, the officers were clearly on notice of Furnace’s

Eighth Amendment rights in this case. See Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982) (qualified immunity is

appropriate when “conduct does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known.”). First and most

generally, the “settled rule [is] that the unnecessary and

wanton infliction of pain . . . constitutes cruel and unusual

punishment forbidden by the Eighth Amendment.” Hudson

v. McMillian, 503 U.S. 1, 5 (1992) (quotations omitted).

Second,“[p]rison regulations governing the conduct of

correctional officers are also relevant in determining whether

an inmate’s right was clearly established.” Treats v. Morgan,

308 F.3d 868, 875 (8th Cir. 2002) (citing Hope v. Pelzer,

536 U.S. 730, 743–44 (2002)). Prison regulations are drafted

to further institutional safety and other prudential

considerations, rather than being drawn to perfectly trace the

contours of prisoners’ constitutional rights. Accordingly,

they are not wholly descriptive of the extent of those rights.

However, in Hope, for example, the Supreme Court looked to

rules promulgated by the Alabama Department of Corrections

to aid it in determining whether a prison guard was on notice

of constitutional limitations on the use of force. Hope,

536 U.S. at 743–44. Here, OP 29 bears directly on the

situation that the officers confronted, and is therefore relevant

to determining whether the officers could have thought their

conduct was reasonable and lawful.

Third, although very few of our cases deal with

constitutional limits on the use of pepper spray on confined

inmates, it is clear that “[t]o determine that the law was

clearly established, we need not look to a case with identical

or even ‘materially similar’ facts.” Serrano v. Francis,
FURNACE V. SULLIVAN 13

345 F.3d 1071, 1077 (9th Cir. 2003) (citations omitted). We

have previously found no constitutional violation where

officers discharged less pepper spray than the amount

Furnace alleges was sprayed on him in a case where, unlike

here, prisoners were engaged in potentially life-threatening

violence. See Clement, 298 F.3d at 901–02, 906 (no

constitutional violation when officers applied two bursts of

pepper spray into cell, each lasting five seconds, when one

prisoner had another prisoner in a headlock, was punching

him in the face and slamming his head against the wall, and

threatening to kill him). We have also held “that use of [tear

gas] in small amounts may be a necessary prison technique if

a prisoner refuses after adequate warning to move from a cell

or upon other provocation presenting a reasonable possibility

that slight force will be required.” Spain v. Procunier,

600 F.2d 189, 195 (9th Cir. 1979). We conclude that the

principle articulated in Spain with respect to tear gas also

applies to pepper spray. More broadly, we agree with our

sister circuits that “[i]t is generally recognized that ‘it is a

violation of the Eighth Amendment for prison officials to use

mace, tear gas or other chemical agents in quantities greater

than necessary or for the sole purpose of infliction of pain.’”

Williams v. Benjamin, 77 F.3d 756, 763 (4th Cir. 1996)

(quoting Soto v. Dickey, 744 F.2d 1260, 1270 (7th Cir. 1984),

cert. denied, 470 U.S. 1085 (1985)); see also Iko v. Shreve,

535 F.3d 225, 240 (4th Cir. 2008) (denying qualified

immunity to a prison guard because the right to be free from

excessive use of pepper spray was clearly established).

However, because, as one of our sister circuits noted, “[w]e

do not require of such officials the legal knowledge culled by

the collective hindsight of skilled lawyers and learned

judges,” Johnson v. Caudill, 475 F.3d 645, 650 (4th Cir.

2007) (internal quotation marks omitted), we place little
14 FURNACE V. SULLIVAN

reliance on this particular premise in our qualified immunity

analysis.

Our constitutional analysis in this case thus relies

primarily on whether the force used by the officers caused

unnecessary and wanton pain and suffering, as defined in

Hudson, since that law was undoubtedly clear. “The question

whether the measure taken inflicted unnecessary and wanton

pain and suffering ultimately turns on whether force was

applied in a good faith effort to maintain or restore discipline

or maliciously and sadistically for the very purpose of

causing harm.” Hudson, 503 U.S. at 6 (citations omitted).

We have previously identified five factors set forth in Hudson

to be considered in determining how the above question

should be answered; namely, “(1)the extent of injury suffered

by an inmate; (2) the need for application of force; (3) the

relationship between that need and the amount of force used;

(4) the threat reasonably perceived by the responsible

officials; and (5) any efforts made to temper the severity of a

forceful response.” Martinez v. Stanford, 323 F.3d 1178,

1184 (9th Cir. 2003). The application of the Hudson factors

to this case is therefore determinative of whether the force

applied to Furnace was wanton and unnecessary.

First, we conclude that Furnace’s injuries caused by the

pepper spray were moderate, though relatively enduring for

a chemical agent intended to cause only temporary

discomfort. In addition to the pain of the initial contact,

Furnace suffered from burns, blisters, and skin irritation that

persisted for three or four days. Furnace also suffered from

a rash on his groin that persisted for months, which may have

been caused by the incident, though Furnace does not present

any evidence demonstrating that the rash was caused by the

spray.
FURNACE V. SULLIVAN 15

 Spontaneous use of force can be necessary, though, in response to a 4

perceived danger or threat, discussed under the fourth factor below.

Second, we conclude that it is not clear that the

application of force was required under Furnace’s version of

the facts because Morales could have, as SVSP’s OP 29

prescribes, simply ordered Furnace to remove his fingers

from the food port rather than immediately discharging

pepper spray on him. OP 29 directs correctional officers to

“issue a warning that chemical agents will be used” likely

because “the threat of the use of mace, except in a few

instances, brings about compliance and in most instances,

avoids any necessity of physical force.” Soto v. Dickey,

744 F.2d at 1263 (summarizing the testimony of a prison

superintendent and other prison officials). Officers cannot

justify force as necessary for gaining inmate compliance

when inmates have been given no order with which to

comply.4

Third, we are not persuaded, after resolving all factual

disputes in the light most favorable to Furnace, that the use of

violent force, prior to a verbal warning, was necessary to gain

Furnace’s compliance. The force used—discharging bursts

of pepper spray at Furnace for about a minute, such that one

canister of pepper spray (whatever portion remained) was

depleted and another was allegedly applied at some

length—seems quite extensive and disproportionate relative

to the disturbance posed by Furnace’s fingertips on the food

port. See, e.g., Clement, 298 F.3d at 901–02 (two five-second

bursts of pepper spray applied to prisoners beating each other

and making homicidal threats).

Fourth, the district court properly found that it remained

a disputed fact whether Furnace posed a threat to the officers,
16 FURNACE V. SULLIVAN

such that they were justified in discharging pepper spray on

him. In Furnace’s version of the facts, the threat posed by

Furnace placing his fingertips on the edge of the food port

was likely not great, if it was a threat at all. Furnace was

locked in his cell behind a large metal door, and had not, by

his account, made any aggressive or threatening remarks, or

taken any actions against Morales or anyone else. Here,

Furnace’s most menacing act was to question Morales’s

decision not to deliver a vegetarian meal to him, and to try to

communicate with Soto through the food port. See Treats,

308 F.3d at 872–73 (pepper spray is not justified when an

inmate only questions orders or seeks redress for an officer’s

actions). The officers rely on OP 29 and their training for the

proposition that prisoners who “take control” of food ports

pose a “serious immediate safety concern” to other inmates

and to prison staff. As we have already noted though, OP 29

also directs that “[t]he officer shall issue a warning that

chemical agents will be used” if the inmate takes control of

the port; Furnace alleges he was given no warning. The

officers are entitled to qualified immunity for “reasonable,

but mistaken, beliefs as to the facts establishing the existence

of . . . exigent circumstances,” Saucier, 533 U.S. at 206, and

the district court granted qualified immunity on summary

judgment largely on this premise. However, Furnace’s

resting his fingers on the port appears less threatening than

the situation described by OP 29, where an inmate “refuses to

relinquish control of the food port, despite the warning.” We

therefore disagree with the district court’s conclusion that

Furnace’s actions, as he describes them, were reasonably

perceived as an exigency that justified deviation from OP 29

and justified discharging pepper spray at Furnace without

warning.
FURNACE V. SULLIVAN 17

Fifth and finally, SVSP staff made an effort to temper the

severity of their forceful response by allowing Furnace to

decontaminate, and giving him medical treatment. This

factor favors the officers.

Applying the Hudson factors to the facts as Furnace

alleges them, we find that a significant amount of force was

employed without significant provocation from Furnace or

warning from the officers. We therefore conclude that

qualified immunity was inappropriately granted at the

summary judgment phase of this litigation. See Martinez,

323 F.3d at 1184 (reversing summary judgment on the issue

of qualified immunity when the district court “resolved all

material disputes in favor of the officers, based on their

declarations alone”). We therefore reverse and remand the

issue of qualified immunity to the district court for further

proceedings.

We caution that we do not mean to suggest that any and

every deviation from prison policy automatically jeopardizes

a correctional officer’s entitlement to qualified immunity.

We are mindful that exigencies arise, and “[t]he point of

qualified immunity is to allow officials to take action with

independence and without fear of consequences.” Schwenk

v. Hartford, 204 F.3d 1187, 1198 (9th Cir. 2000) (citation and

internal quotation marks omitted). However, barring urgency

or exigent circumstances, that important interest is less

compelling when the appropriate response to a situation has

been prescribed by the prison’s own written policies.

C. Equal Protection

Furnace alleges that his right to equal protection was

violated because he never received a vegetarian breakfast,
18 FURNACE V. SULLIVAN

while vegetarian breakfasts were provided to other inmates

who were similarly situated. “The Equal Protection Clause

requires the State to treat all similarly situated people

equally.” Shakur v. Schriro, 514 F.3d 878, 891 (9th Cir.

2008) (citation omitted). “To state a claim under 42 U.S.C.

§ 1983 for a violation of the Equal Protection Clause of the

Fourteenth Amendment a plaintiff must show that the

defendants acted with an intent or purpose to discriminate

against the plaintiff based upon membership in a protected

class.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.

1998).

The first step in determining whether the officers violated

Furnace’s right to equal protection is to identify the relevant

class to which he belonged. See Thornton v. City of St.

Helens, 425 F.3d 1158, 1166 (9th Cir. 2005). “The groups

must be comprised of similarly situated persons so that the

factor motivating the alleged discrimination can be

identified.” Id. at 1167. The district court properly

concluded that the relevant class of persons for comparative

purposes was those inmates who defendants did not know had

been approved to receive vegetarian meals for religious or

other reasons. Because it is undisputed that the officers did

not know that Furnace was entitled to such a meal, Furnace

was not similarly situated to all other inmates who were

approved to receive a vegetarian meal for religious reasons.

See id. (“An equal protection claim will not lie by conflating

all persons not injured into a preferred class receiving better

treatment than the plaintiff.”) (internal quotation marks

omitted). The officers stated in sworn testimony that they

had never met Furnace prior to the incident, and were not

aware of Furnace’s entitlement to a vegetarian meal. It is

also undisputed that Furnace never showed them his chrono.

Furnace offers no evidence to indicate the officers knew, or
FURNACE V. SULLIVAN 19

had reason to know, about Furnace’s religion or his

entitlement to a vegetarian meal. Because Furnace adduces

no evidence that he was treated any differently than any other

inmate whom the officers did not know was entitled to

receive a vegetarian meal, we affirm the district court’s grant

of summary judgment on Furnace’s equal protection claim.

Furnace also argues that the officers denied him a

vegetarian meal because they mistakenly believed he was

Muslim, citing Morales’s alleged statement about Muslims

before he approached Furnace’s cell. See Estate of Amos ex.

rel. Amos v. City of Page, Ariz., 257 F.3d 1086, 1094 (9th Cir.

2001) (in § 1983 suit under the Equal Protection clause,

“alleged discrimination is no less malevolent because it was

based upon an erroneous assumption”). However, Furnace

cannot overcome his failure to show that he was treated

differentlythan any other inmates in the relevant class—those

the officers did not know were entitled to vegetarian meals.

We also observe that the undisputed evidence showed that

defendants provided vegetarian meals to all other inmates

who they knew had been approved to receive such meals,

including Muslims, regardless of their religious affiliation.

Because the district court properly concluded that Furnace

“failed to raise a triable issue of fact with respect to whether

[the officers] intentionally refused to provide him with a

religious breakfast tray while providing the same to other

inmates who were similarly situated,” summary judgment

was appropriate on these claims.

CONCLUSION

Because disputed issues of material fact in this case

preclude summary judgment for the officers on the basis of

qualified immunity, we reverse and remand on that issue. For
20 FURNACE V. SULLIVAN

the reasons noted, the district court’s denial of Furnace’s

equal protection claim is affirmed. 

REVERSED AND REMANDED in part and

AFFIRMED in part.