NOT FOR PUBLICATION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 APPEALS
2 

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 argued

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 

deference.”). 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 favor, 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 claim 
4 

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 district court’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 American 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 district court’s factual findings that “[o]nly one Native American 

inmate is allowed near the fire,” and that “[t]he fire pit is not used by the entire 
5 

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 Eshelman’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 offerings and prayers to a Christian tabernacle does not require the

congregation closely to surround the tabernacle. We 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 the district court’s factual findings
6 

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 district court’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 district court 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. The 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.
Rouser v. White, No. 22-55139 

IKUTA, Circuit Judge, dissenting:

William Rouser has been fighting for the right to practice his Wiccan faith in

the California prison system for over thirty years. See Rouser v. White, 825 F.3d

1076, 1078–80, 1085 (9th Cir. 2016). Rouser first prevailed on his civil rights

claim in 1997, resulting in a comprehensive consent decree. Id. at 1079. Over the

next fourteen years, Rouser successfully complained of numerous violations of the

consent degree, resulting in the prison entering into a second consent decree in

2011. Id. In 2016, the prison system attempted to dissolve the consent decree on

the ground that the prison was in substantial compliance with its terms. Id. at

1080. In light of the prison’s numerous violations of the decree, Rouser

successfully prevented its dissolution. Id. at 1082, 1085.

Yet here we are again. It is undisputed that access to the element of fire is a

central component of Wiccan religious practice. For this reason, the consent

decree promises that Rouser “shall have access to a fire pit on the outdoor worship

area on the sabbats,” adding only that “[u]se of the fire pit shall be in accordance

with institutional safety and security concerns, including applicable fire safety

regulations.”

Despite this promise, the Mule County State Prison (MCSP), part of the

California prison system, argues that it properly prevented Rouser from having

FILED

JUL 5 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
access to fire, on the ground that no prisoners are allowed access to open fire in

group ceremonies because of institutional safety and fire concerns. But the

prison’s own evidence belies its argument. Although a declaration by Lance

Eshelman, a prison administrator, asserts that “no inmate or religious group at

MCSP is permitted to use fire for fire safety and security reasons (safety of inmates

and staff, and the security of the institution),” the declaration then states:

The one exception to the rule prohibiting fire pits relates to the Native

American purification (sweat) ceremonies. Native American religious

groups are permitted to use a fire pit to heat river or lava rocks. The

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. 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. The 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. 

Decl. of Lance Eshelman ¶ 9 (emphasis added). 

The key statement here is that “[t]he 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.” The first part of

this sentence provides the general rule that “[t]he fire pit is not used by the entire

Native American congregation.” The next word, “except,” indicates that there is

an exception to the general rule—that is, that at some point, the fire pit is used by

2
the entire Native American congregation. The clause introduced by “except”

confirms that this exception to the general rule occurs at the beginning of the

purification ceremony. At that time, “the congregation offers prayers and/or

medicine to the fire.” The use of the word “fire” indicates that there is fire in the

fire pit. The only fair reading of this sentence, therefore, is that at the beginning of

the purification ceremony, the entire congregation has access to a fire in the fire

pit. The next sentence confirms this reading: it states 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.” Reading these sentences together, the Native Americans use fire and the

fire pit at the beginning of the purification ceremony, but not do not use fire or the

fire pit during the service.

According to the majority, the statement 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,” and suggests that the

Native Americans’ “use” of the fire pit is like a Christian congregation making

“offerings and prayers to a Christian tabernacle.” Maj. op. at 5. But Christian

worship practices, which generally do not require the use of open flames, shed

little light on the practices of Native American congregations. Although we do not

3
know how closely the Native American congregation gathers around the fire pit at

the beginning of the ceremony, the declaration’s statement that during the

ceremony the Native Americans do not use the fire pit or access open flame at all

strongly implies that they do both at the beginning of the ceremony. 

More important, the district court did not even consider the majority’s

reading, much less adopt it. The district court did not discuss the declaration’s

exception clause at all, or 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. This was error. See Myers v. United States, 652 F.3d

1021, 1036 (9th Cir. 2011); see also Martinez-Gonzalez v. Elkhorn Packing Co.,

LLC, 25 F.4th 613, 625 (9th Cir. 2022) (holding that “where, as here, we are firmly

convinced the district court overlooked key facts, it is our duty to reverse”). 

Because of this, it is the majority that “substitute[s] its interpretation of the

evidence for that of the trial court” by adopting a construction of the declaration

that the district court did not. Inwood Lab’ys, Inc. v. Ives Lab’ys, Inc., 456 U.S.

844, 857 (1982).

The district court’s conclusion that Rouser did not have a likelihood of

success on the merits of his breach of Consent Decree, RLUIPA, and First

Amendment claims was based on its erroneous factual finding that the MCSP did

4
not allow any prisoners access to open flames. Therefore, I would reverse and

remand to the district court.

5