NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

BRIAN ELLIS PORTER,

Plaintiff-Appellant,

 v.

CHERYLEE WEGMAN; et al.,

Defendants-Appellees.

No. 15-16485

D.C. No. 1:10-cv-01500-LJO-DLB

MEMORANDUM*

Appeal from the United States District Court

for the Eastern District of California

Lawrence J. O’Neill, Chief Judge, Presiding

Submitted November 16, 2016** 

Before: LEAVY, BERZON, and MURGUIA, Circuit Judges.

Brian Ellis Porter, a California state prisoner, appeals pro se from the district

court’s summary judgment in his 42 U.S.C. § 1983 action alleging various

constitutional claims. We have jurisdiction under 28 U.S.C. § 1291. We review de

novo. Toguchi, v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004). We affirm in part,

FILED

NOV 23 2016

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).
reverse in part, and remand.

The district court properly granted summary judgment on Porter’s Eighth

Amendment claim because Porter failed to raise a genuine dispute of material fact

as to whether defendant Grewal’s treatment of Porter was “medically unacceptable

under the circumstances, and was chosen in conscious disregard of an excessive

risk to [Porter’s] health.” See id. at 1058 (citation and internal quotation marks

omitted) (a difference in medical opinion does not rise to the level of deliberate

indifference).

The district court properly granted summary judgment for defendant Castro

on Porter’s First Amendment claim because Porter failed to raise a genuine dispute

of material fact as to whether Castro personally participated in any constitutional

deprivation. See Starr v. Baca, 652 F.3d 1202, 1207-08 (9th Cir. 2011) (a

supervisor is liable under § 1983 only if he or she is personally involved in the

constitutional deprivation or there is a “sufficient causal connection between the

supervisor’s wrongful conduct and the constitutional violation” (citation and

internal quotation marks omitted)). 

The district court granted summary judgment for defendant Wegman on the

basis of qualified immunity. However, Porter raised a genuine dispute of material

fact as to whether Wegman violated Porter’s right to free exercise of his religion by

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switching him from a kosher diet to a vegetarian diet and denying his requested

dietary accommodations during multi-day Passover observances. See Jones v.

Williams, 791 F.3d 1023, 1033 (9th Cir. 2015) (setting forth standard for qualified

immunity); McElyea v. Babbitt, 833 F.2d 196, 198 (9th Cir. 1987) (“Inmates have

the right to be provided with food sufficient to sustain them in good health that

satisfies the dietary laws of their religion.”). 

Moreover, contrary to Appellees’ contention, there is a genuine dispute of

material fact as to whether prison regulations and policies authorized Wegman to

remove Porter from the kosher diet program, place him on the vegetarian diet

program, and deny him dietary accommodations during multi-day Passover

observances. See Grossman v. City of Portland, 33 F.3d 1200, 1209 (9th Cir.

1994) (“Courts have . . . held that the existence of a statute or ordinance

authorizing particular conduct is a factor which militates in favor of the

conclusion that a reasonable official would find that conduct constitutional.”

(emphasis added)). 

The parties shall bear their own costs on appeal.

AFFIRMED in part, REVERSED in part, and REMANDED.

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