Appeal from the United States District Court for the Northern District of California Charles R. Breyer, District Judge, Presiding D.C. No. No. 09-16404
The opinion of the court was delivered by: Judge McKeown
Argued and Submitted October 7, 2010
San Francisco, California
Before: Mary M. Schroeder,*fn1 Barry G. Silverman, and M. Margaret McKeown, Circuit Judges.
Under federal and California law, prison inmates are afforded a reasonable opportunity to exercise their religious freedom, consistent with security and other concerns. See U.S. Const., amend. I; Cal. Const., art. I, § 24; 42 U.S.C. § 2000cc-1; Cal. Penal Code § 2600. Putting that principle into practice is easier said than done and over time the state has faced a variety of suits by inmates to establish the contours of their rights under federal and state law.*fn2
In an effort to accommodate inmates' religious needs, the California Department of Corrections and Rehabilitation ("CDCR") has a paid chaplaincy program that employs Protestant, Catholic, Jewish, Muslim, and Native American clergy. Those chaplains serve all inmates, but other religions are also served by volunteer chaplains. The heart of this appeal is a challenge to the paid chaplaincy program by a Wiccan volunteer chaplain, Patrick McCollum, and a small group of inmates. The inmates failed to exhaust their claims or brought them in a untimely fashion. The added wrinkle in the suit is that the chaplain is pursuing constitutional claims that are derivative of the inmates' claims rather than his own. In short, McCollum claims that, as a Wiccan chaplain, he should be eligible for employment in the paid-chaplaincy program. McCollum attempts to transform his employment discrimination action into an effort to vindicate the inmates' First Amendment rights.
The district court properly dismissed and granted summary judgment in favor of the defendants on McCollum's claims because, for the most part, he lacked standing. As a prudential matter, we agree that the court need not exercise jurisdiction over these derivative claims. Although McCollum had standing to pursue his personal employment claims, and also constitutional claims for differential treatment as a volunteer chaplain and retaliation, ultimately he cannot prevail on those claims. We therefore affirm.
A. THE CHAPLAINCY PROGRAM
Recognizing its obligation to accommodate the religious needs of inmates, CDCR currently offers full- and part-time salaried positions for clergy of five faiths: Protestant, Catholic, Jewish, Muslim, and Native American. Although McCollum labels this program "The Five State-Sanctioned Faiths Policy," as we describe below, CDCR does not have a "policy" intended to restrict the paid-chaplaincy positions to these five faiths in particular-rather, over time the CDCR paid-chaplaincy program has evolved to include these five faiths. Officials indicate future evolution is envisioned as required by inmate needs.
Beginning in approximately 1930, prison inmates were served by chaplains employed by the state, apparently through positions that were denomination-specific. In 1940, the State Personnel Board ("SPB") merged all chaplaincy classes into a single, non-denominational class. In 1957, the SPB created three new denomination-specific paid chaplaincy classes: Protestant, Catholic, and Jewish, in order to insure that projected layoffs did not disparately affect any one religious group. In 1981, the SPB created a paid Muslim chaplaincy position at CDCR's request, apparently to accommodate perceived inmate need. In 1989, in response to a consent decree, CDCR requested and received a paid-chaplaincy position for a Native American Spiritual Leader.
Likely because the current positions are the result of a program that has evolved over more than fifty years and not of a single policy, CDCR acknowledges that it has not applied particular criteria to its determinations of the necessity of each of the current paid positions. However, CDCR alleged as part of this litigation that in the future it will consider the following factors in determining the need for a given paid chap-laincy position: (1) liturgical needs; (2) religious group size; (3) existing and alternative means of accommodation; (4) security; (5) cost; and, (6) other "institutional operational needs." CDCR also stated that it has applied these criteria and "determined that a paid Wiccan chaplain is not required."
The paid chaplains are responsible for providing religious services to inmates of their own faiths, as well as serving the needs of inmates of other faiths through, among other tasks, "provid[ing] spiritual and moral guidance to . . . residents" and "supervis[ing] the arranging of programs conducted in the institution by visiting religious and allied groups." The paid chaplains are also responsible for approving religious programming "by volunteer community clergy and religious representatives." Such volunteers are recruited to meet inmate needs not directly provided for by paid chaplains. If no ordained chaplain of a particular faith is able to conduct services, the warden has discretion to allow "a qualified inmate to minister to the religious needs of that particular faith."
B. WICCAN INMATES IN CDCR CUSTODY
Like the district court, we adopt the religious language of the complaint and use the term "Wiccan" to refer to Wic- can/Pagan "faith groups consisting of Wiccans, Goddess worshipers, Neo-Pagans, Pagans, Norse Pagans (and any other ethnic designation), Earth Religionists, Old Religionists, Druids, Shamans, Asatrus, and those practicing in the Faery, Celtics, Khemetic, Gardnerian, Church of All Worlds, Reclaiming, Dianic, ...