CHOY, Circuit Judge:
Arizona state prisoner Benjamin Freeman appeals the district court's summary judgment dismissal in favor of prison officials in his 42 U.S.C. § 1983 action. On June 20, 1994, Freeman, a Muslim, filed a complaint pro se against officials of Maricopa County Jail ("defendants") alleging that his constitutional rights to free exercise of religion and equal protection were violated because he was not allowed to practice his religion and was discriminated against on the basis of his faith. Defendants moved for summary judgment, which was granted on February 27, 1996. Freeman timely appealed and counsel was appointed for him. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm in part and reverse and remand in part.
Freeman, a practicing Muslim, was held at the Maricopa County Jail from December 19, 1993 to August 12, 1994. At Maricopa County Jail, Muslim Jumah services were scheduled to be held at 10:00 a.m. on every Thursday. Maricopa County Jail had entered into an agreement with Masjud Jauharatul-Islam to provide an Imam to perform the services for a fee of $15 an hour.
Freeman submitted affidavits from himself and several other inmates stating that on numerous occasions, prison officials refused
Defendants submitted evidence regarding the prison's policy on cuffing and shackling prisoners for movement within the institution. The prison's guidelines stated that the use of cuffs and shackles for minimum to medium security inmates is discretionary. Sergeant Greening stated that cuffs and/or shackles are used for security purposes whenever there are enough cuffs and/or shackles for the entire inmate group being moved. She also stated in response to Freeman's interrogatories, however, that cuffs and/or shackles normally are not used unless an inmate has been disruptive. Two different affiants testified as to the number of shackles available at the prison; one claimed there were no more than three available and the other affiant stated there were between four and six.
Defendants further submitted evidence that the Imam hired to perform Muslim services was absent on numerous occasions due to personal problems beyond the control of the prison. Finally, defendants' affiant stated that no sign-up sheets were required at any religious services.
STANDARD OF REVIEW
We review a district court's grant of summary judgment de novo. Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir.1996). Summary judgment is appropriate when there is no genuine dispute as to material facts and the moving party is entitled to judgment as a matter of law. Jung v. FMC Corp., 755 F.2d 708, 710 (9th Cir.1985); Fed.R.Civ.P. 56. Material facts are those that may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A dispute as to a material fact is "genuine" if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Id. In considering a motion for summary judgment, the court may not weigh the evidence or make credibility determinations, and is required to draw all inferences in a light most favorable to the non-moving party. Id.
I. FREE EXERCISE OF RELIGION
Freeman claims the district court erred in granting summary judgment in favor of defendants. He maintains that genuine issues of material fact exist as to whether his First Amendment right to free exercise of religion was violated by defendants, who allegedly denied him access to weekly Islamic services and placed burdens on the practice of his religion, such as shackling him during transport to services,
A. Applicable Standard: RFRA and Boerne v. Flores
On June 25, 1997, the United States Supreme Court held unconstitutional the Religious
In order to establish a free exercise violation, Freeman must show the defendants burdened the practice of his religion, by preventing him from engaging in conduct mandated by his faith,
The district court analyzed Freeman's free exercise claim under the RFRA standard and held that no genuine issues of fact existed to prove that Freeman's right to practice his religion was substantially burdened. In light of Boerne, we need not address that conclusion. Instead, having reviewed Freeman's claim under the pre-RFRA standard articulated in Turner and having considered the evidence in the light most favorable to him, we find that Freeman does raise genuine issues of material fact sufficient to defeat summary judgment on whether he was denied access to religious services without reasonable justification. Freeman set forth specific facts that he and other Muslim inmates were prevented from attending Jumah services, as mandated by their religion,
Defendants argue that Freeman was never denied access to religious services actually being conducted but that several services were canceled due to the absence of the Imam hired to provide Islamic services to the Muslim inmates. This justification arguably would satisfy Turner reasonableness. However, a genuine issue exists as to whether the dates of the Imam's absence coincide with the dates Freeman claims he was prohibited from attending services. For dates that do not coincide, defendants have not given any
As for his claims with respect to shackling, failure to give notice allowing time for "wudu", the sign-in requirement, and the abusive language, we hold they do not amount to a violation of his constitutional rights.
II. EQUAL PROTECTION
Freeman also contends that the district court erred in granting summary judgment on his equal protection claim because genuine issues of material fact existed as to whether he was treated differently from other inmates on the basis of his faith. His equal protection claim stems from a number of allegations, including that (1) only Muslim inmates were denied access to weekly religious services; (2) only Muslim inmates were shackled as they were transported to religious services; (3) only Muslim inmates were not alerted that their services were going to commence; (4) only Muslim inmates were required to sign-in at religious services; and (5) only Muslim inmates were called abusive names directed at their religion.
A. Applicable Standard
Prisoners enjoy religious freedom and equal protection of the law subject to restrictions and limitations necessitated by legitimate penological interests. Bell v. Wolfish, 441 U.S. 520, 545-46, 99 S.Ct. 1861, 1877-78, 60 L.Ed.2d 447 (1979). The Constitution's equal protection guarantee ensures that prison officials cannot discriminate against particular religions. See Cruz v. Beto, 405 U.S. 319, 321-22, 92 S.Ct. 1079, 1081-82, 31 L.Ed.2d 263 (1972) (per curiam). Prisons must afford an inmate of a minority religion "a reasonable opportunity of pursuing his faith comparable to the opportunity afforded fellow prisoners who adhere to conventional religious precepts." Id. at 322, 92 S.Ct. at 1081. Prisons need not provide identical facilities or personnel to different faiths, see id. at 322 n. 2, 92 S.Ct. at 1081 n. 2, but must make "good faith accommodation of the [prisoners'] rights in light of practical considerations." Allen v. Toombs, 827 F.2d 563, 569 (9th Cir.1987) (citing Gittlemacker v. Prasse, 428 F.2d 1, 4 (3d Cir.1970)). To succeed on an equal protection claim, a plaintiff in a section 1983 claim must show that officials intentionally acted in a discriminatory manner. FDIC v. Henderson, 940 F.2d 465, 471 (9th Cir.1991); Sischo-Nownejad v. Merced Community College Dist., 934 F.2d 1104, 1112 (9th Cir.1991) (stating that discriminatory intent can sometimes be inferred by mere fact of different treatment).
To defeat summary judgment, therefore, Freeman "must set forth specific facts showing that there is a genuine issue" as to whether he was afforded a reasonable opportunity to pursue his faith as compared to prisoners of other faiths and that such conduct was intentional. See Fed.R.Civ.P. 56(e). We find that Freeman succeeds in establishing genuine issues of material fact as to whether he was given a reasonable opportunity to pursue his faith compared to other inmates by being denied access to religious services and by being shackled on his way to services.
1. Access to Religious Services
Freeman submitted affidavits claiming that on numerous occasions prison officials
2. Use of Shackles
The practice of using shackles at Maricopa County Jail is in dispute. Sgt. Greening stated in an affidavit, dated June 20, 1995, that "cuffing and/or shackling inmates is recommended whenever there are cuffs available." She further remarked that all decisions whether or not to use shackles are left to the discretion of the officers and are made with deference to the security of the prison and not with reference to the nature of the activity requiring inmate movement. However, on September 11, 1995, Sgt. Greening responded to an interrogatory regarding the practice of shackling inmates, to which she stated:
The policy guideline "[f]or minimum and medium security inmates, [is that] the application of handcuffs and the use of an escort officer will be discretionary."
Although the policy for using shackles is somewhat unclear, the purpose behind using them is not. Sgt. Greening stated that prisoners are shackled because the prison complex has "a large yard with a lot of open space between the housing units" so cuffs are preferred to keep prisoners in line. The decision to shackle inmates is rationally related to the prison's legitimate penological interest in keeping prisoners in line while in the yard. However, Freeman submitted evidence that only the Muslim prisoners were shackled on their way to religious services. How are prisoners of other minority faiths, such as followers of Judaism or of Native American faiths, moved to and from their religious services? Are they likewise shackled, therefore, supporting defendants' contention that shackles are used in keeping with security concerns when there are enough for the entire inmate group being moved? Or are they merely escorted, therefore bolstering Freeman's claim that Muslim inmates are being treated differently in violation of equal protection?
We find that Freeman's evidence of such disparate treatment is sufficient to raise a genuine issue of fact as to whether he was given a reasonable opportunity to pursue his faith as compared to inmates of other faiths.
3. Notice, Sign-In Sheets, Abusive Language
Even without receiving the customary 10-15 minute notice prior to services, we hold that Freeman has a reasonable opportunity to pursue his faith comparable to the opportunity afforded other prisoners who are given the customary alert and that requiring him to sign attendance sheets does not implicate his opportunity to pursue his faith.
As for being subjected to abusive language directed at his religious and ethnic background, "`[v]erbal harassment or abuse ... is not sufficient to state a constitutional deprivation under 42 U.S.C. § 1983.'" Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir.1987) (quoting Collins v. Cundy, 603 F.2d 825, 827 (10th Cir.1979)).
On Freeman's First Amendment freedom of religion claim, we reverse the district court's grant of summary judgment to the