NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT WILLIAM ROUSER,

Plaintiff

- Appellant, v. THEO WHITE; et al.,

Defendants

- Appellees, and E. W. MEADS, Protestant Chaplain; et al.,

Defendants. No. 22

- 55139 D.C. No. 2:11

- cv - 09123

- RGK

- JEM

MEMORANDUM *

Appeal from the United States District Court for the Central District of California R. Gary Klausner, District Judge, Presiding Argued and Submitted April 9, 2024 Pasadena, California Before: SILER, * * BEA, and IKUTA, Circuit Judges. Dissent by Judge IKUTA. Plaintiff

- Appellant William Rouser, a practitioner of Wicca (a pagan religion)

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. 

# FILED

JUL 5 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

and inmate at Mule Creek State Prison (MCSP) in Ione, California, appeals an order of the U.S. District Court for the Central District of California that denied his motion for a preliminary injunction. Through his preliminary injunction motion, Rouser sought to enjoin Defendants

- Appellees to provide him access to candles, incense, an altar, an altar cloth, and use of an open flame in a fire pit at MCSP. Rouser argue d denial of access to and use of these items breached a binding consent decree and violated the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”) and the First Amendment. Rouser now argues the district court abused its discretion when it denied his preliminary injunction motion

. The parties are familiar with the facts, so we recount them only as necessary. We have jurisdiction under 28 U.S.C. § 1292(a)(1). We affirm. “We review a district court’s denial of a preliminary injunction motion for abuse of discretion.” Baird v. Bonta , 81 F.4th 1036, 1040 (9th Cir. 2023). “A district court abuses its discretion in denying a request for a preliminary injunction if it bases its decision on an erroneous legal standard or clearly erroneous findings of fact.” Earth Island Inst. v. Carlton , 626 F.3d 462, 468 (9th Cir. 2010). A finding of fact is clearly erroneous if it is “illogical or implausible,” or without “support in inferences that may be drawn from the facts in the record.” Anderson v. City of Bessemer City, N.C. , 470 U.S. 564, 578 (1985)

. In this way , “[t]he clear error standard is significantly deferential,” Gov’t of Guam v. Guerrero ,3

11 F.4th 1052, 1059 (9th Cir. 2021), and it “plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently,” Anderson , 470 U.S. at 573; see also United States v. Hinkson , 585 F.3d 1247, 1260 (9th Cir. 2009) (en banc) (“[O]ur review of a factual finding may not look to what we would have done had we been in the trial court’s place in the first instance, because that review would be de novo and without defe rence.”). Deference is due because “[i]t is for the trial court to resolve conflicts in the evidence

. ” Mayview Corp. v. Rodstein , 620 F.2d 1347, 1353 (9th Cir. 1980)

. Indeed, the Supreme Court “frequently ha[s] emphasized [that]

. . . ‘ [w]here there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.’” Amadeo v. Zant , 486 U.S. 214, 226 (1988) (quoting Anderson , 470 U.S. at 574). The district court identified the correct legal standard for considering whether to grant a motion for a preliminary injunction as set forth in Winter v. Natural Resources Defense Council, Inc. , 555 U.S. 7, 20 (2008) (“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his fa vor, and that an injunction is in the public interest.”). The district court then concluded that Rouser failed to establish “the most important factor” among the Winter factors: a likelihood of success on the merits of his claim4

that the consent decree was breached and his RLUIPA and First Amendment claims. See Env’t Prot. Info. Ctr. v. Carlson , 968 F.3d 985, 989 (9th Cir. 2020). We reject Rouser’s argument that the d istrict c ourt’s factual “findings about MCSP’s fire safety and security policies ” were clearly erroneous. In support of their opposition to Rouser’s preliminary injunction motion, Defendants

- Appellees submitted a declaration by Lance Eshelman, MCSP’s Community Resources Manager. In this declaration, Eshelman declared that “[n]o inmate or religious group at MCSP is permitted to use fire for safety and security reasons,” with “one exception,” namely, “the Native American purification (sweat) ceremonies.” In describing this exception to MCSP’s general prohibition on fire pits, Eshelman declared that “Native Amer ican religious groups are permitted to use a fire pit to heat river or lava rocks,” which “heated rocks are then used during the purification ceremony. The fire pit is tended to by a single inmate designated for the purpose of heating the rocks.” Rouser relies upon a single sentence in Eshleman’s declaration: “The fire pit is not used by the entire Native American congregation, except at the beginning of the purification ceremony, when the congregation offers prayers and/or medicine to the fire .” Rouser avers this sentence demonstrates that the entire Native American congregation accesses fire as part of the purification ceremony , which contradicts the d istrict c ourt’s factual finding s that “[o]nly one Native American inmate is allowed near the fire,” and that “[t]he fire pit is not used by the entire5

Native American congregation.” The problem with Rouser’s argument is that the very next sentence in Eshelman’s declaration provides that “[t]he Native Americans do not use the fire pit or access open flame during their ceremonies , as the heat for their ceremonies is generated from the rocks which were previously heated in the fire pit.” At oral argument, Rouser stated that these sentences in Eshelman’s declaration are “very hard to reconcile.” On this point, we do not agree . These two sentences in Eshel man’s declaration can be reconciled

. That the Native American congregation “offers prayers and/or medicine to the fire” does not necessarily imply that the congregation assembles itself around the fire

. Indeed, that a congregation makes o ffering s and prayers to a Christian tabernacle do es not require the congregation closely to surround the tabernacle. W e therefore see no basis for replacing the district court’s construction of Eshelman’s declaration with the construction Rouser prefers

. See Inwood Lab’ys, Inc. v. Ives Lab’ys, Inc. , 456 U.S. 844, 845 (1982) (“An appellate court cannot substitute its interpretation of the evidence for that of the trial court simply because the reviewing court ‘might give the facts another construction

. . . [or] resolve the ambiguities differently.’” ) (quoting United States v. Nat’l Ass’n of Real Est. Bds. , 339 U.S. 485, 495 (1950)); see also United States v. Patayan Soriano , 361 F.3d 494, 503 (9th Cir. 2004) (“So long as reasonable minds could differ, we cannot say that one of those minds is clearly erroneous.”). Hence, we conclude that t he d istrict c ourt’s factual findings6

regarding MCSP’s fire safety and security policies were not clearly erroneous , as they were based on the district court’s permissible interpretation of Eshelman’s declaration

. 1 See Hinkson , 585 F.3d at 1261 ; Anderson , 470 U.S. at 573

– 74. Ultimately, Rouser fails to demonstrate that any of the d istrict c ourt’s factual findings were clearly erroneous . Because Rouser “fail[ed] to meet th[e] threshold inquiry” of a likelihood of success on the merits of his claims, the d istrict c ourt acted within its discretion when it denied his motion for a preliminary injunction. See Disney Enterprises, Inc. v. VidAngel, Inc. , 869 F.3d 848, 856 (9th Cir. 2017) (internal quotation marks omitted). AFFIRMED.

1 The dissent maintains that the district court did not “make any effort to interpret the language indicating that the Native American congregation as a whole uses the fire pit at the beginning of its purification ceremonies.” We disagree. T he district court found that “[o]nly one Native American inmate is allowed near the fire, ” that his “ access [to the fire] is carefully monitored ,” and that he “ uses the flame for the limited purpose of heating rocks, which are then transferred elsewhere for the actual ceremony.” “Finally,” the district court found, “ [ t ] he fire pit is not used by the entire Native American congregation.” Here , the district court quoted and expressly considered the same sentence of Eshelman’s declaration that the dissent maintains it ignored.Rouse r v . W

hite , No. 22-55139 IKUTA, C irc uit Judge , disse nting: W illia m R ouse r ha s be e n fighting for the right to pra c tic e his W ic c a n fa ith in the C a l ifornia

prison sy ste m

for ove r thirty

y e a rs. Se e Rouse r v . W

hite , 825 F.3d 1076, 1078–80, 1085 (9th C ir. 2016). R ouse r first pre va ile d on his c ivil rights

c la im in 1997, re sulting in a

c om pre he nsive c o n se n t de c re e . Id. a t 1079. Ove r the

ne xt fourte e n y e a

rs, R ouse r suc c e ssfully

c om p la ine d of num e rous viola tions of the

c onse n t de gre e , re sulting in the prison e nte ring into a

se c ond c onse nt de c re e in 2011. Id. In 2016, the prison sy ste m a tte m pte d to dissolve

the c onse nt de c re e on the g round tha

t the prison wa s in substa

ntia l c om plia nc e with its te rm s. Id. a t 1080. In light of the

prison’ s num e rous viola

tions of the de c re e , R ouse r

suc c e ssfully

pre ve nte d its dissolution. Id. a t 1082, 1085. Ye t he re we a re a g a in. It is undispute d tha t a c c e ss to the e le m e nt of fire is a

c e ntra l c om

pone nt of W ic c a n re ligious pra c tic e . For this re a son, the c onse nt de c re e prom ise s tha

t R ouse r “ sha ll ha

ve a c c e ss to a

fire pit on theoutdoor worship

a re a on the sa bba ts,” a dding only

tha t “ [u] se of the fire pit sha l l be in a c c orda nc e with institutiona

l sa fe ty a nd se c urity c onc e rns, inc luding a pplic a b le fire sa fe ty

re gula tions.” De spite this prom ise , the M ule C ounty Sta te Prison (M C SP), pa rt of the C a lifornia prison sy ste m , a

rgue s tha t it prope rly

pre ve nte d R ouse r from

ha ving 

# F IL ED

JUL 5 2024
M OLLY C. DW Y ER, CLERK U

. S. CO URT O F APPEALSa c c e ss to fire , on the ground tha t no p risone rs a

re a llowe d

a c c e ss to ope n fire in
group c e re m onie s be c a

u se of institutiona

l sa fe ty a nd fire c onc e rns. B ut the prison’ s own e vide nc e be lie s its a rgum e nt. Although a

de c la ra tion by La nc e Eshe lm a n, a

prison a dm inistra

tor, a sse rts tha

t “ no inm a te or re ligious group a t M C SP is pe rm itte d to use fire for fire sa fe ty a nd se c urity

re a sons (sa fe ty

of inm a te s

a nd sta ff, a nd the se c urity of the institution),”

the de c l a ra tion the n sta

te s: The one e xc e ption to the

rule prohibiting fire

pits re la te s to the Na tive Am e ric a n purific a tion (swe a t) c e re m onie s. Na tive Am e ric a n re l igious groups a re pe rm itte d to use a

fire pit to he a t rive r or la va roc ks. The he a te d roc ks a

re the n use d during the purific a tion c e re m ony . The fire pit is te n de d t o by a single inm a te de s igna te d for the purpose of he a ting the roc ks. The fire pit is not use

d by the e ntire

N ativ e Ame ric an c ongre

gation, e x c e pt at the be ginning of the purific a t ion c e re mony , w h e n the

c ongre gation offe rs pray e rs and/or me d ic ine to the fire

. The Na t ive Am e ric a ns do not use

the fire pit or a c c e ss ope n fla m e during the ir c e re m onie s, a s the he a t for the ir c e re m onie s is ge ne ra t e d from

the roc ks whic h we re pre viously he a te d in the fire pit. De c l. of La

nc e Eshe lm a n ¶ 9 (e m

pha sis a d de d). The ke y sta te m e nt he re is tha

t “ [t] he fire pit is not use d by the e ntire Na tive Am e ric a n c ongre ga t i on, e xc e pt a t the be g inning of the

purific a tion c e re m ony , whe n the c ongre g a tion offe rs pra y e rs a nd/or m e dic ine to the fire

. ” The first pa rt of this se n te nc e provide s the ge ne ra l rule tha t “ [t] he fire pit is not use d by the e ntire Na tive Am e ric a

n c ongre ga tion.” The ne x t word, “ e xc e pt,” indic a t e s tha t the re is

a n e x c e ption to the

ge ne ra l rule

—

tha t is, tha

t a t som e point, the fire pit is use d by

2the e ntire Na tive Am e ric a n c o ngre ga tion. The c la

u se introduc e d by

“ e xc e pt”

c onfirm s tha

t this e x c e ption to the

ge ne ra l rule oc c urs a t the be ginning of the purific a tion c e re m ony . At tha t tim e , “ the c ongre ga tion offe rs pra y e rs a n d/or

m e dic ine to the fire

. ” The use of the word “ fire ” indic a te s tha t the re is fire in the fire pit. The only

fa ir re a ding of this se nte nc e , the re fore , is tha t a t the be ginning of the p urific a tion c e re m ony , the e ntire c ongre ga tion ha s a c c e ss to a fire in the fire pit. The ne xt se nte nc e c onfirm s this re a ding: it sta te s tha t “ [t] h e Na t ive Am e ric a ns do not use the fire pit or a c c e s s ope n fla m e during the ir c e re m onie s , a s the he a t for the i r c e re m onie s is ge ne ra te d from the roc ks whic h we re pre viously he a te d in the fire pit.” R e a ding the se se nte nc e s toge the r, the Na tive Am e ric a ns use fire a nd the fire pit a t the be g i nning of the purific a tion c e re m ony , but not do not use fire or the fire pit during the se rvic e . Ac c ording to the

m a jority , the sta

t e m e nt tha

t the Na t ive Am e ric a n

c ongre ga tion “ ‘ offe rs pra

y e rs a nd/or m e dic ine to the fire ’ doe s not ne c e ssa rily im ply tha t the c ongre ga tion a s se m

ble s itse lf a

round the fire ,” a nd sugge sts tha t the Na tive Am e ric a

n s’ “ use ” of the fire pit is like a C hristia n c ongre ga tion m a king

“ offe rings a

nd pra y e rs to a C h ristia n ta be rna c l e .” M a

j. op. a t 5. B ut C hristia

n worship pra c tic e s, whic h ge ne ra lly do not re quire the use of ope n fla m e s, she d little light on the

pra c tic e s of Na

tive Am e ric a n c ongre ga tions. Although we do not

3know how c lose l y the Na tive Am e ric a n c ongre g a tion ga the rs a round the fire pit a

t the b e ginning of the

c e re m ony , the de c la

ra tion’ s sta

te m e nt tha

t during the

c e re m ony the Na tive Am e ric a ns do not use the fire pit or a c c e ss ope n fla m e a t a ll strongly im

plie s tha t the y do both a t the be ginning of the

c e re m ony . M ore im porta nt, the distric t c ourt did not e v e n c onside r the m a

jority ’ s

re a d ing, m

uc h le ss a dopt it. The

distric t c ourt did not disc uss the de c la

ra tion’ s

e xc e ption c la

use a t a ll, or m a k e a ny

e ffort to inte rpre t the la

ngua ge indic a t ing tha

t the N a tive Am e ric a n c ongre ga tion a s a whole use s the fire pit a

t the be ginning of its purific a tion c e re m onie s. This wa s e rror. Se e My e rs v . Unite d State s , 652 F.3d 1021, 1036 (9th C ir. 2011); se e also Martine z-Gonzale

z v . Elk horn Pac k

ing C o., LLC , 25 F.4th 613, 625 (9th C i r. 2022) (holding tha t “ whe re , a s he re , we a re firm ly

c onvinc e d the distric t c ourt ove rlooke d ke y fa c t s, it is our duty

to re v e rse ” ). B e c a use of this, it is the

m a jority tha t “ substitute [s] its inte rpre ta tion of the

e vide nc e for tha

t of the tria l c ourt” by

a d opting a

c onstruc tion of the de c la ra tion tha t the distric t c ourt did not. Inw ood Lab’y s, Inc . v . Iv e

s Lab’y s, Inc

. , 456 U.S. 844, 857 (1982). The distric t c ourt’ s c onc lusion tha t R ouse r did not ha

ve a like l ihood of

suc c e ss on the m e rits of his bre a c h of C onse nt De c re e , R L UIPA, a nd First Am e ndm e nt c la im s wa s ba se d on its e rrone ous fa c tua l finding tha t the M C SP did

4not a llow a

ny prisone rs a c c e ss to ope n fla m e s. The re fore , I would re ve rse a nd

re m a nd to the distric t c o urt.

5