FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DARIN D. GREENE, 

No. 06-16957 Plaintiff-Appellant,

D.C. No.

v.  CV-04-0917 MCE

SOLANO COUNTY JAIL,

OPINION Defendant-Appellee. 

Appeal from the United States District Court

for the Eastern District of California

Morrison C. England, Jr., District Judge, Presiding

Argued and Submitted

October 16, 2007—San Francisco, California

Filed January 22, 2008

Before: Arthur L. Alarcón, David R. Thompson, and

Richard C. Tallman, Circuit Judges.

Opinion by Judge Thompson

857
COUNSEL

Fred Martin, Oakland, California, for the plaintiff-appellant.

Martha M. Stringer, Sacramento, California, for the

defendant-appellee, Rourk. 

OPINION

THOMPSON, Senior Circuit Judge: 

Darin D. Greene (“Greene”), a former maximum security

prisoner at the Claybank facility of the Solano County jail

GREENE v. SOLANO COUNTY JAIL 859
(“the Claybank jail”), appeals the district court’s summary

judgment as to all claims in favor of the defendant, Solano

County Sheriff’s Lieutenant Peggy Rourk (“Rourk”). 

In his civil rights action against Rourk, Greene alleged that

the Claybank jail’s policy of prohibiting maximum security

prisoners from participating in group worship was a violation

of his rights under the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. §§ 2000cc

et seq., under the First, Eighth and Fourteenth Amendments,

and under California Penal Code section 4027 (“Penal Code

section 4027”).1 Rourk moved for summary judgment on portions of Greene’s RLUIPA claim. The district court granted

summary judgment in favor of Rourk on the entire RLUIPA

claim and, sua sponte, granted summary judgment in favor of

Rourk on Greene’s 42 U.S.C. § 1983 (“section 1983”) claims

for alleged violations of the First, Eighth and Fourteenth

Amendments, as well as for his claim under Penal Code section 4027, and dismissed the case. Greene appeals. 

We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and

1294. Because disputed issues of material fact exist with

regard to Greene’s RLUIPA claim, we reverse the district

court’s summary judgment in favor of Rourk on that claim

and remand it to the district court for further proceedings.

Because Rourk did not meet her burden on summary judgment as to Greene’s section 1983 claims, or as to his Penal

Code section 4027 claim, and because Greene was not given

notice and an opportunity to oppose summary judgment as to

those claims, we vacate the district court’s summary judgment

in favor of Rourk on those claims, and remand them to the

district court as well. 

1Greene’s Penal Code section 4027 claim appears to have been raised

for the first time in his opposition to Rourk’s motion for summary judgment. The district court treated the claim as properly pleaded and dismissed it in the court’s summary judgment in favor of Rourk. 

860 GREENE v. SOLANO COUNTY JAIL
I. BACKGROUND

While Greene was awaiting trial on charges of terrorist

threats and false imprisonment, he was housed in the maximum security area at the Claybank jail for approximately

three months, from June 30, 2003 to October 9, 2003. Greene

alleged, and Rourk confirmed, that numerous times while at

the Claybank jail, Greene requested, and was denied, the

opportunity to attend group religious worship services.

Greene attempted to conduct Bible studies and morning

prayer with a number of other inmates by “yelling through the

corner edge of the cell door” but was ordered to stop because

it was bothering other prisoners, including those who “were

not able to hear the television without being disturbed.” On

September 12, 2003, Greene submitted a grievance, signed by

42 other inmates, requesting that group religious services be

provided for maximum security inmates. Rourk denied the

request, but offered to send a chaplain to visit Greene. 

Greene filed a second grievance requesting that a classroom

at the Claybank jail be provided at least once per week to

inmates in maximum security for group religious services.

This request was denied, but once again a religious visit was

offered. Greene never accepted that offer. He requested, and

was given, a Bible and a copy of “The Daily Bread,” a religious periodical. 

Greene, then acting pro se and in forma pauperis, filed a

civil rights action in the United States District Court for the

Northern District of California. The case was transferred to

the United States District Court for the Eastern District of

California, and Greene amended his complaint, naming Rourk

as the sole defendant. In his amended complaint, Greene

alleged that Rourk’s refusal to allow group religious worship

by maximum security prisoners at the Claybank jail was a

violation of his rights. 

GREENE v. SOLANO COUNTY JAIL 861
Rourk moved for summary judgment. Her “Notice of

Motion and Motion for Summary Judgment” stated that she

was “entitled to judgment as a matter of law with respect to

the claim for relief under [42 U.S.C.] § 1983 . . . .” In her

Memorandum of Points and Authorities, however, Rourk

focused on Greene’s RLUIPA claim and omitted any discussion as to Greene’s other claims. Greene filed his pro se

response, which was dedicated almost entirely to Rourk’s

RLUIPA arguments.2

The magistrate judge recommended summary judgment be

granted in favor of Rourk on Greene’s RLUIPA claim. He

also recommended that summary judgment be granted in

favor of Rourk on Greene’s section 1983 claims as well as his

claim under Penal Code section 4027, even though neither

party had briefed those claims. In addition, he recommended

that the action be dismissed. On September 18, 2006, the district court followed the magistrate judge’s recommendation

and granted summary judgment in favor of Rourk and dismissed the action. This appeal followed.

II. DISCUSSION

A. The RLUIPA Claim 

[1] RLUIPA provides in relevant part, 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 establishes that the burden furthers

“a compelling governmental interest,” and does so by “the

least restrictive means.” 42 U.S.C. § 2000cc-1(a)(1)-(2).

RLUIPA defines “religious exercise” to include “any exercise

2Greene made general references to the other claims, i.e., he cited the

standards for various First Amendment violations, but he did not address

his other claims directly, nor did he attempt to argue against summary

judgment as to those claims. 

862 GREENE v. SOLANO COUNTY JAIL
of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc-5(7)(A); Warsoldier v. Woodford, 418 F.3d 989, 994 (9th Cir. 2005). 

The Supreme Court has recognized RLUIPA as “the latest

of long-running congressional efforts to accord religious exercise heightened protection from government-imposed burdens

. . . .” Cutter v. Wilkinson, 544 U.S. 709, 714 (2005). The statute itself reflects this intent stating, “This chapter shall be

construed in favor of a broad protection of religious exercise,

to the maximum extent permitted by the terms of this chapter

and the Constitution.” 42 U.S.C. § 2000cc-3(g). See also Warsoldier, 418 F.3d at 995. 

[2] Congress effectuated this intent by distinguishing

RLUIPA from traditional First Amendment jurisprudence in

at least two ways.3 First, it expanded the reach of the protection to include any “religious exercise,” including “any exercise of religion, whether or not compelled by or central to, a

system of religious belief.” Cutter, 544 U.S. at 715 (quoting

42 U.S.C. § 2000cc-5(7)(A)). In fact, RLUIPA “bars inquiry

into whether a particular belief or practice is ‘central’ to a

prisoner’s religion.” Cutter, 544 U.S. at 725 n.13; 42 U.S.C.

§ 2000cc-5(7)(A). Second, as opposed to the deferential rational basis standard of Turner v. Safley, 482 U.S. 78, 89-90

(1987), RLUIPA requires the government to meet the much

3RLUIPA’s language closely tracks that of its predecessor, the Religious Freedom Restoration Act of 1993 (“RFRA”), which “prohibits [the]

[g]overnment from substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability unless

the government can demonstrate the burden (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” Cutter, 544 U.S. at 714-

715 (internal citations and quotation marks omitted). In City of Boerne v.

Flores, 521 U.S. 507, 515-16 (1997), the Supreme Court invalidated

RFRA as applied to the states, because it “exceeded Congress’ remedial

powers under the Fourteenth Amendment.” Cutter, 544 U.S. at 715 (citing

City of Boerne, 521 U.S. at 532-36). 

GREENE v. SOLANO COUNTY JAIL 863
stricter burden of showing that the burden it imposes on religious exercise is “in furtherance of a compelling governmental interest; and is the least restrictive means of furthering that

compelling governmental interest.” 42 U.S.C. § 2000cc1(a)(1)-(2). See also Cutter, 544 U.S. at 717; Warsoldier, 418

F.3d at 994. 

1. Substantial Burden/Religious Exercise

The district court awarded summary judgment to Rourk on

Greene’s RLUIPA claim because, in the district court’s view,

denying Greene the ability to participate in group worship

would not “substantially burden his ability to exercise his religion” because he “was not required to act contrary to their

[sic] religious beliefs. Moreover . . . alternative means for

exercising his religion remained available to plaintiff.” (internal citations omitted). We disagree with the district court’s

analysis and its conclusion. 

In any RLUIPA claim, we must begin by identifying the

“religious exercise” allegedly impinged upon. Next, we must

ask whether the prison regulation at issue “substantially burdens” that religious exercise. 

Rourk urges an expansive interpretation of “religious exercise.” In her view, “religious exercise” is, in effect, the general practice of one’s religion, rather than any particular

practice within one’s religion. For example, she argues that

Greene’s ability to engage in group worship is not, by itself,

his religious exercise, but rather, is one component of his religious exercise. Applying Rourk’s definition, she may, without

violating RLUIPA, impose outright bans on particular aspects

of an inmate’s religious exercise, so long as, in the aggregate,

those bans do not amount to a substantial burden. 

Rourk’s definition of “religious exercise” is supported neither by the plain language of RLUIPA, nor by the caselaw

interpreting it. As noted above, RLUIPA specifically defines

864 GREENE v. SOLANO COUNTY JAIL
“religious exercise” as “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) (emphasis added). In Cutter, the

Court noted that, “[T]he ‘exercise of religion’ often involves

not only the 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.” 544 U.S. at 720 (quoting Employment Div., Dep’t of

Human Res. of Or. v. Smith, 494 U.S. 872, 878-82 (1990)). 

In San Jose Christian College v. City of Morgan Hill, 360

F.3d 1024 (9th Cir. 2004), we considered the meaning of “religious exercise” in the context of a city’s zoning process. The

college sued the city under RLUIPA after the city denied a

zoning application which sought permission to construct “an

education facility” on land zoned for use as a hospital. Id. at

1027. We described the “religious exercise” as “the conversion of real property for the purpose of religious exercise.” Id.

at 1034 (quoting 42 U.S.C. § 2000cc-5(7)(B)). The analysis

turned not on whether the owners of the school could practice

their religion even without being able to construct a facility

for religious education, but whether the denial of their application burdened a particular facet of their religious practice —

the conversion of their land for the purpose of religious exercise. See also Guru Nanak Sikh Soc’y of Yuba City v. County

of Sutter, 456 F.3d 978, 981 (9th Cir. 2006) (defining the relevant religious exercise as the congregation’s construction of

a temple). Similarly, the religious exercise at issue in

Greene’s lawsuit is not his ability to practice his religion as

a whole, but his ability to engage in group worship. 

Rourk’s reliance on Warsoldier v. Woodford, 418 F.3d 989

(9th Cir. 2005), is misplaced. At issue in Warsoldier was a

prison regulation restricting the hair length of its inmates to

three inches. Id. at 992. That regulation conflicted with Warsoldier’s religious belief that hair should only be cut “upon

the death of a close relative.” Id. Warsoldier sued the prison

under RLUIPA. Id. The prison argued that the regulation did

GREENE v. SOLANO COUNTY JAIL 865
not burden Warsoldier’s religious practice, substantially or

otherwise, because he was not actually forced to cut his hair.

Id. at 992, 996. Rather, the prison allowed him a “choice”

between two options: he could either 1) cut his hair, or 2)

remain confined in his cell, work additional duty hours, and

receive less time credits and fewer privileges, including

expulsion from vocational classes, less recreation time, and

less money to spend at the prison store. Id. We rejected this

false choice, holding that “punishments to coerce a religious

adherent to forgo her or his religious beliefs is an infringement on religious exercise.” Id. at 996 (citations omitted). 

Warsoldier is principally a case about the meaning of “substantial burden,” not “religious exercise.” There is no clear

discussion about the meaning of the term “religious exercise”

and whether forcing Warsoldier to cut his hair violates his

religion as a whole or the particular aspect of his practice that

prohibits an adherent from cutting his hair except upon the

death of a close relative. Warsoldier thus provides no support

for Greene. 

[3] RLUIPA’s plain language and our caselaw interpreting

it compel the conclusion that the “religious exercise” at issue

in Greene’s lawsuit is group worship, not Christianity. Our

conclusion is in harmony with every other case of which we

are aware to have considered this issue. See Cutter, 544 U.S.

at 720 (citing group worship as an example of religious exercise); Spratt v. R.I. Dep’t of Corrs., 482 F.3d 33, 38 (1st Cir.

2007) (relevant religious exercise was the maximum security

inmate’s ability to preach to other inmates); Baranowski v.

Hart, 486 F.3d 112, 124 (5th Cir. 2007) (relevant religious

exercise was keeping kosher and observing the Jewish Sabbath); Lovelace v. Lee, 472 F.3d 174, 187 (4th Cir. 2006) (relevant religious exercise was observing Ramadan and

attending group prayer services). 

[4] Next, we must inquire into whether the prison’s prohibition on group worship constitutes a “substantial burden” on

866 GREENE v. SOLANO COUNTY JAIL
this religious exercise. We have little difficulty in concluding

that an outright ban on a particular religious exercise is a substantial burden on that religious exercise. See Murphy v. Mo.

Dep’t of Corrs., 372 F.3d 979, 988 (8th Cir. 2004) (concluding that a ban on “communal worship” substantially burdened

inmate’s religious exercise, thereby precluding summary

judgment); Meyer v. Teslik, 411 F. Supp. 2d 983, 989 (W.D.

Wis. 2006) (holding that ban on group worship substantially

burdened inmate’s religious exercise and noting that, “It is

difficult to imagine a burden more substantial than banning an

individual from engaging in a specific religious practice”). 

[5] We conclude that the Claybank jail’s policy of prohibiting Greene, a maximum security prisoner, from attending

group religious worship services substantially burdened his

ability to exercise his religion. 

2. Compelling Governmental Interest

Once a plaintiff makes the requisite showing under

RLUIPA of a substantial burden on the exercise of his religion, it becomes the defendant’s responsibility to establish

that the burden furthers “a compelling governmental interest,”

and does so by “the least restrictive means.” 42 U.S.C.

§ 2000cc-1(a); 42 U.S.C. § 2000cc-2(b); Warsoldier, 418

F.3d at 995.

Rourk asserted, and the district court agreed, that the policy

of precluding maximum security prisoners such as Greene

from participating in group worship served the compelling

governmental interest of maintaining prison security. Prison

security is a compelling governmental interest, Cutter, 544

U.S. at 725 n.13, and the district court was correct in finding

there was no dispute as to this issue. The question is whether

precluding group worship by maximum security prisoners at

the Claybank jail is the least restrictive means of furthering

this compelling governmental interest.

GREENE v. SOLANO COUNTY JAIL 867
3. Least Restrictive Means

Because disputed issues of material fact exist as to whether

the policy of prohibiting group worship by maximum security

prisoners is the least restrictive means of maintaining security

at the Claybank jail, the district court erred in granting summary judgment in favor of Rourk on Greene’s RLUIPA claim.

[6] Rourk argued the policy was the least restrictive means

of achieving jail security for essentially two reasons. First, she

contended that the maximum security area at the Claybank

jail does not have an available classroom because there was

only one classroom in the facility, and it was located in the

minimum security area. Second, she argued that “for reasons

of prison security, inmates housed in maximum security could

not meet in a group setting.” And further that, “[j]ail security

would be severely threatened if the potentially violent offenders in maximum security were not very closely supervised and

if groups of maximum security prisoners were allowed to congregate outside their modules.” Rourk further stated that

Greene

. . . has no idea of the intricacies of operating a

prison . . . [h]e cannot seem to see the difference

between inmates who are housed in minimum or

medium security and those housed in maximum

security areas . . . [he] sees an empty space [and]

thinks he should be allowed to occupy it . . . [t]he

inmates, however, are not allowed to run the jails,

and those who are responsible for administering prisons must be accorded deference . . . 

[7] These assertions were contested by Greene. He pointed

out that, “[t]he law library is down the hall from maximum

security . . . [and] was available to inmates in maximum for

group worship.” He explained that he “and other maximum

security inmates were escorted to the law library classroom in

groups by the one custody staff assigned to Maxi. II at least

868 GREENE v. SOLANO COUNTY JAIL
once a week, being there for up to two hours. When taken to

the library, we were left unattended in group settings without

incidents.” 

While Rourk is correct that prison administrators are to be

accorded deference with regard to prison security, Cutter, 544

U.S. at 723, 725, she still must show that she “actually considered and rejected the efficacy of less restrictive measures

before adopting the challenged practice.” Warsoldier, 418

F.3d at 999 (“[E]ven outside the context of a minimum security facility, [the defendant] cannot meet its burden to prove

least restrictive means unless it demonstrates that it has actually considered and rejected the efficacy of less restrictive

measures before adopting the challenged practice.”) (citing

United States v. Playboy Entm’t Group, Inc., 529 U.S. 803,

824 (2000) (finding, in the context of a First Amendment

challenge to speech restrictions, that “[a] court should not

assume a plausible, less restrictive alternative would be ineffective”)). 

[8] There is a genuine issue of material fact as to whether

a total ban on group religious worship by maximum security

prisoners at the Claybank jail is the least restrictive means of

maintaining jail security. Summary judgment on this issue in

favor of Rourk was inappropriate. 

Nothing in our opinion should cast doubt on the fact that

prison officials may, under certain circumstances, substantially burden a prisoner’s ability to engage in religious exercise. But in light of RLUIPA, no longer can prison officials

justify restrictions on religious exercise by simply citing to

the need to maintain order and security in a prison. RLUIPA

requires more. Prison officials must show that they “actually

considered and rejected the efficacy of less restrictive measures before adopting the challenged practice.” Warsoldier,

418 F.3d at 999. If prison officials meet that standard, the

prison regulation passes muster under RLUIPA, regardless of

the burden it imposes on religious exercise. 

GREENE v. SOLANO COUNTY JAIL 869
B. Sua Sponte Summary Judgment on Greene’s Section

1983 and Penal Code Section 4027 Claims 

[9] Greene alleged that the prohibition on group worship

also violated his rights under the First, Eighth, and Fourteenth

Amendments. The magistrate judge entered an order explaining that Greene’s amended complaint “states a cognizable

claim for relief pursuant to 42 U.S.C. § 1983 and 28 U.S.C.

§ 1915A(b).” Rourk then moved for summary judgment.

Rourk’s Notice of Motion for Summary Judgment stated that

she was “entitled to summary judgment as a matter of law

with respect to the claim for relief under § 1983 . . . .” However, her Memorandum of Points and Authorities was dedicated solely to arguing the issues of “compelling interest”/

“least restrictive means” under RLUIPA. Because Rourk did

not “either produce evidence negating an essential element

of” Greene’s section 1983 and Penal Code section 4027

claims, or show that Greene did “not have enough evidence

of an essential element to carry [his] ultimate burden of persuasion at trial,” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz

Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000), summary

judgment in Rourk’s favor was not appropriate as to those

claims. 

Moreover, the district court’s summary judgment dismissing Greene’s section 1983 and Penal Code section 4027

claims was granted sua sponte. Sua sponte grants of summary

judgment are only appropriate if the losing party has “reasonable notice that the sufficiency of his or her claim will be in

issue.” Buckingham v. United States, 998 F.2d 735, 742 (9th

Cir. 1993). See also Evans v. United Airlines, Inc., 986 F.2d

942, 945 (5th Cir. 1993) (where the defendant’s motion for

summary judgment did not address many of the plaintiffs’

claims, the plaintiffs were not on notice as to those claims).

Greene’s response to Rourk’s Motion for Summary Judgment laid out the standard for summary judgment and went on

to respond to Rourk’s Statement of Disputed Facts, address870 GREENE v. SOLANO COUNTY JAIL
ing those facts that he believed were in dispute. He set forth

the legal standard under the First Amendment. He next set

forth the standard under RLUIPA. Then he went on to apply

the standard under RLUIPA with regard to “compelling

interest”/“least restrictive means” to the facts of his case and

to Rourk’s assertions. Though Greene made opaque mention

of his other claims, such mention was incidental and not a

focal point of his response. 

Greene was a pro se plaintiff. As such, he cannot be

expected to anticipate and prospectively oppose arguments

that an opposing defendant does not make. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998). Greene did not have

a “full and fair opportunity to ventilate the issues” prior to the

district court’s summary judgment on these claims. Cool Fuel,

Inc. v. Connett, 685 F.2d 309, 312 (9th Cir. 1982). 

[10] Because Rourk did not meet her burden as the moving

party on summary judgment as to the section 1983 and Penal

Code section 4027 claims, and because Greene did not have

notice and an opportunity to oppose summary judgment on

those claims, summary judgment on them was inappropriate.

CONCLUSION

We REVERSE the district court’s summary judgment in

favor of Rourk on Greene’s RLUIPA claim and REMAND

that claim to the district court for further proceedings. We

also VACATE the district court’s summary judgment in favor

of Rourk on Greene’s claims under 42 U.S.C. § 1983 and

Penal Code section 4027, and REMAND those claims as well

to the district court for further proceedings. 

REVERSED in part, VACATED in part, and

REMANDED. 

GREENE v. SOLANO COUNTY JAIL 871