Petition for Writ of Certiorari — Kolodzieczak v. Friend
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92-299 | Fr]
AUG 13 i992 |
DPEXCE OF THE CLERK ;
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NO.
IN THE SUPREME COURT OF THE UNITED STATES
October Term, 1992
RONALD KOLODZIECZAK, et al.,
Petitioners/Appellants,
VS.
JACK WAYNE FRIEND, et al.,
Respondents.
On Appeal from the United States
Court of Appeals for the Ninth Circuit
PETITION FOR CERTIORARI
RICHARD L. REYNOLDS, ESQ.
COUNSEL OF RECORD
BENNETT, SAMUELSEN, REYNOLDS & ALLARD
Attomeys at Law
A Professional Corporation
1951 Webster Street, Suite 200
Oakland, California 94612-2909
Telephone: (510) 444-7688
Attorneys for Petitioners/
Appellants RONALD
KOLODZIECZAK, ET AL.
QUESTIONS PRESENTED FOR REVIEW
!, Where jail policy prohibiting personal possession of rosaries
and scapulars is vindicated, and upheld on appeal (Eniend yv, Kolodzieczak
(9th Cir. 1991) 923 F.2d 126) do the provisions of 42 United States Code
§§ 1983 and 1988 authorize a finding that the losing plaintiffs are “‘prevail-
ing parties” for an award of attomeys’ fees?
A) May a District Court award $93,782.00 in attomeys’
fees to lawyers appointed by that court to represent county jail inmates on a
religious practices claim that enjoyed no significant success?
B) May the District Coun base its award of attorneys’ fees
on the “‘success”’ the inmates achieved via their religious minister's request
for separate religious services prior to service and independent of the
lawsuit?
II. Where defendants argued in the District Court that use of
religious items at services was not barred by jail policy, can defendants’
compliance with the District Court’s condition of granting the defendants’
mouon for summary judgment, clarification or confirmation of that policy,
result in an award of almost $100,000.00 in attorneys’ fees to plaintiffs’
counsel?
A) Where a concession made by defendant: in order to
terminate the litigation below is a ‘“‘nuisance settlement” is not constitution-
ally required and is not curative of any constitutional deficiency, can the
District Court base its award of attorneys’ fees on this concession?
B) Where no constitutional provision, Case or statute
requires the county jail to allow “separate religious services” or “religious
items” at religious services, can the county jail’s decision to allow a
separate time slot al one group’s request and decision to specify that
“religious items” are and have always been allowed at religious services, in
order to obtain a dismissal of meritiess litigation, be found to be “success
on a Significant issue”’ and result in an appropriate award of attorneys’ fees
under 42 U.S.C. §1988?
III. May the District Court award substantial attomeys’ fees
without considering the relationship between the extent of success and the
amount of fees awarded?
IV. The final question presented by the practical effect of this
lawsuit is, where two religious groups are in a dispute, and one religious
group threatens to withhold or withholds its services until its demands are
met, may adherents of that group force the jail to accede to their demands
via a 1983 lawsuit claiming the jail has denied them religious services?
[TABLE OF CONTENTS
Page
QUESTIONS PRESENTED FOR REVIEW ..........ccccccsccccecsevcesevevevseveeee.
PARTIES TO PETITION FOR WRIT OF CERTIORARI .........-..c0cc0000-- |
OFFICIAL OR UNOFFICIAL REPORTS OF OPINIONS
DELIVERED IN THIS CASE BY OTHER COURTS ......0.-...-cccccccccseeee- |
STATEMENT OF GROUNDS ON WHICH THE
JURISDICTION OF THIS COURT IS INVOKED 00000.00.oo.cccccccceceseeseee. 2
I Re ccccccccvcssccossacssscescocusecasssossesenssossonsvone 3
REASONS FOR REVIEW .o0..oc.cocccccccsccccccccsccecscsevecseevecee. RC 7
1. STANDARD FOR DETERMINING A
CONSTITUTIONAL RIGHTS VIOLATION BY
BPM TI TRA TORS acoso cc ecscececcccccccsececccceccsccsecvssescoscoesees g
II. THERE WAS NO CONSTITUTIONAL RIGHTS
VIOLATION BY COUNTY JAIL ADMINISTRATORS ........ 10
IIT. PLAINTIFFS FAILED TO SUCCEED ON
ANY SIGNIFICANT ISSUE INVOLVED
ee SUE oe Oe WONTSNE ED LOR PIRSA BHOOIN ..........sccccscncscniceneesssnens li
Nair esciiay sensu oxatisbecusdensnsvanusievnnsiovinrsnennniiconvantieest 13
ll
CASES PAGE
Allen v. Toombs
827 F.2d 563 (9th Cir. 1987) ooo cccccccccccccscssceceeescesesesceeeccccce. 10
Bell v. Wolfish
441 U.S. 520
PP AR. CIE CRI cssiccescsssrrssevissninnsenenseseoee cee... 7,8,9,12-13
Califomia Association of the Physically Handicapped v. FCC
721 F.2d 667 (9th Cir. 1983) oooceccecccccccccccccsceceeceseecececcccc 11,13
Card v. Dugger
709 F.Supp. 1098 (M.D. Fla. 1988)
Aff'd. 871 F.2d 1023 (Ith Cir. 1989) oo 10
Chicano Police Officers Assn. v. Stover
624 F.2d 127 (Oth Cir. 1980) ooo cccccccccccccesceseeeeecesceseececcecc. 12
Coen v. Harrison County School Board
638 F.2d 24 (Sth Cir. 1981)
455 U.S. 938
Cert. Denied 102 S.Ct. 1427 (1982) wooo 12
Cruz v. Beto
405 U.S. 319
sei an aie nich: cid): RT eT ET 10
Duffey v. State Personnel Board
232 Cal.App.3d 1
2B3 Cal Retr. G22 (1991) onc. ccsesceccescossssscsecscccsscessoccocoeesec...-.. 10
Employment Development Division.
Department of Human Resources v. Smith
494 U.S. 872
BOP eR RPM CRIMI sens vncncnsnsaysoveinsysenssaocovenseesaooeseeescc. 11,12
Friend v. Kolodzieczak
923 F.2d 126 (9th Cir. 1991) ooo cccccccccccesseeseeseeeeeeccccc. 11,12
ill
Gittlemacker v. Prasse
428 F.2d 1 (3rd Cir. 1970) ........cccccceesseeeeseeeeeeeeeeesseeeseenaeenenneeees 10
Gonzales v. Roman Catholic Archbishop
280 U.S. 1
SO S.Ca. S CVDDD) cvcssncsecsessccrcscccrscesssenscsssssverensescnnssnnstadsnsevannansnnss 10
Grano v. Barry
783 F.2d 1104 (D.C. Cir. 1986) .........cccecceseeeee cree eneeeeeeenees 11-12
Hensley v. Eckerhardt
461 U.S. 424
BED SO, FS CIGD oa vss ciis cnn sncccevnsacencpesentacisvcesceennaniansornenes 11,13
Hom v. People of Califomia
(E.D. CA) 321 F.2d 961 (1968)
Aff’d. 436 F.2d 1375 (9th Cir. 1970)
Cert. Denied 401 U.S. 776 ............:ccccscccsesessscseesettecessensneseeeesenens 10
Johnson v. Moore
926 F.2d 921 (Oth Cir. 1991). ..........cccccceccsseeeeeeeeeceeeeneeneeneereeenees 10
Kennedy v. L.A.P.D.
887 F.2d 920 (Sth Cir. 1989) 0.0.2... cc cece eeeeeeeeeeenneneeeeeeeeeneneees 9
Kothe v. Smith
771 F.2d 667 (2d Cir. 1985). ........cecceeesseeseeeeneneeeeetseeeneaeeeeneeees 10
Lemon v. Kurtzman
403 U.S. 602
DO S.Cr. DIOS CAGE) onc.cc.ececcevecssccscccerccsesoussosscvnsesensonsnnnaseenansnnnes 1]
Michenfelder v. Sumner
860 F.2d 328 (Sth Cir. 1988) ........... cc eecceseeeeeesseeeeeteeeeeeeeeseteeeeens G
McClure v. Salvation Army
460 F.2d 553 (Sth Cir. 1972) .........:ccsccsssssssesesseesseseeseresensenens 10
Nadeau v. Helgemoe
581 F.2d 275 (ist Cir. 1978) ...........ccccesseeeeceeeeseeeeeeneeseeseeneeens 11,12
Naprstek v. City of Norwich
433 F.Supp. 1369 (1977) ........cccccssseeseseseeesesesesssseeseeeeeeetanescnanens 12
1V
O'Lone v. Esiate of Shabazz
482 U.S. 343
MUN, SPUR OUND ssn: scsninctcansssinnscannsinisinthacadine bcccccccccescccc 9,12
Ortiz de Arroyo v. Barcelo
FOS F.20 27S (lst Cir, 1985S) .......cccecsccsscsseccsssccsesssosssecscosoossecseccs cc. 1]
Posada v. Lamb County, Texas
716 F.2d 1066 (Sth Cir. 1983) o.oo ccccccccccsccossecsseeeseeseeeseeeccec. 8-9
Romberg v. Nichols
953 F.2d 1152 (9th Cir, 1992) ooo ccccccccccccsecsssessssseesseeesseeeeseeceeccc cc 7
Ruggiero v. Krzeminski
928 F.2d 558 (2d Cir. 1991) ooo cccccccccssssecssssessssesssecesteeeeseeeeeccccccc 7
Texas State Teachers Association v. Garland Independent School District
488 U.S. 815
Wa ret ROT CIID) cs scnsecsscsarsnecccasurscceraas.coseesccce. ces. 12,13
Thompson v. Cleland
782 F.2d 719 (7th Cir, 1986) ooo... ecccccccecccccssscssecssseeseeseeeeseecccc 10
Thornburgh v. Abbott
490 U.S. 401
SOs WOM MUI sys sans nscnavinnsidbosecsssisscscirednserserieeevemeeccccesccel 12
Tumer v. Safley
482 U.S. 78
BOT S.Ct, 2254 (1987). ......csccccssscrccsscossscsessssssatsessessssesescoseesceeces Q
FEDERAL STATUTES
42 United States Code §1983 o.oo... ooooccccccccccccssseesseeseveeeeeeeeeeecc. 2,7
42 United States Code §1988 shabAblivAicaaiphoiiekdrenbus wkmbanasteailissbadneiaaiuasl cana
28 United States Code §133 1 oooo...ooccocccccccccecccsssseesesseeeeseeeeee 3
28 United States Code §1343.0.o...occcccccccccssssesssssssseseeteeeeeeesecc 3
28 United States Code $1290 o....ooocooccccccceccsssssesssssseseeeeeeeeeeecc 3
RULES OF COURT
United States Supreme Court Rules, Rule 10.1(a) oo... 2
United States Supreme Court Rules. Rule 10.1(C) cocccccccccccc 2
STATE STATUTES
State of California, Goverment Code. SE A ticecabhcete ete ]
COME NOW defendants and appellants, RONALD
KOLODZIECZAK, CAPTAIN MORRIS HICKERSON, SHERIFF
CHARLES PLUMMER, COUNTY OF ALAMEDA, et al., and respect-
fully petition the Supreme Court of the United States for a Writ of Certio-
rari to review the judgment of the United States Court of Appeals for the
9th Circuit, filed May 19, 1992.
PARTIES TO PETITION FOR WRIT OF CERTIORARI
The parties to the proceeding in the court whose judgment is
sought to be reviewed are JACK W. FRIEND, MICHAEL WETHERN,
and JEFFREY D. GRAY, individualiy and as representatives of the class
of Catholic inmates in the North County Jail of Alameda County.
The defendants were RONALD KOLODZIECZAK, HAROLD
ESTES, CHUCK GREEN, R. A. FRIST and A. THEOBALD. These were
nominal parties to the litigation, as the jail commander, CAPTAIN
MORRIS HICKERSON, was responsible for the implementation of jail
policy at all times in question. Pursuant to the stipulation of the parties,
CAPTAIN HICKERSON, who pursuant to the Govemment Code of the
State of California §995, was entitled to indemnity and defense from his
employer, the SHERIFF'S DEPARTMENT OF THE COUNTY OF
ALAMEDA, was the actual defendant to this action. It is not believed the
defendants other than CAPTAIN MORRIS HICKERSON, and his em-
ployer COUNTY OF ALAMEDA, and supervisor, SHERIFF CHARLES
PLUMMER, have any interest in the outcome.
This lawsuit was initially filed in the Northem District of Califor-
nia, Marilyn Hall Patel, Judge (D.C. No. CV 87-0161 MHP).
Judgment in favor of defendants was affirmed by the United States
Court of Appeals (9th Cir. 1991) 923 F.2d 126 (Appendix B).
Plaintiff's Petition for Award of Atomeys’ Fees was granted by
District Court Order dated July 10, 1990 (Appendix K) and arnended July
20, 1990 (Appendix L). The decision of the District Coun awarding
attomeys’ fees was affirmed by the United States Court of Appeals for the
Ninth Circuit in an opinion and judgment filed May 19, 1992, No. 90-
16140,—F. 2d — , opinion by Judge Pregerson, join 4 by Judge
O’Scannlain . Dissenting opinion by Judge Ferguson (Appendix A).
IURISDICTION OF THIS COURT IS INVOKED
The opinion of the United States Court of Appeals for the Ninth
Circuit awarding atlomeys’ fees to plaintiffs’ attomeys was filed May 19,
1992. Pursuant to U.S. Supreme Court Rule 13.4, the time within whici to
file a petition for wnt of certiorari expires August 19, 1992.
This Court has jurisdiction to review the judgment in question by
wnit of certioran . Pursuant to U. S. Supreme Coun Rule 10.1(a) and (c) the
Court of Appeals has sanctioned such a departure by the Northem District
of California from the accepted and usual course of judicial proceedings
and interpre:ation of 42 United States Code §1988 as to call for the exer-
cise of this Court’s power of supervision.
The federal question decided on the issue of attomeys’ fees in this
case conflicts with the decisions of other United States Courts of Appeals
and with decisions of this Coun.
This case involves an important question of federal law on the
award of attomey's fees in civil nghts litigation which, while perhaps not
maliciously prosecuted, failed to achieve success on any constitutional
nights issue in the litigation.
The statutes involved in this case are 42 United States Code §1983
which states:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be sub-
jected, any citizen of the United States or other person
within the junsdiction thereof io the deprivation of any
nghts, privileges, or immunities secured by the Constitu-
tion and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for
redress. For the purposes of this section, any Act of
Congress applicable exciusively to the District of Colum-
bia shall be considered to be a statute of the District of
Columbia.
And 42 United States Code §1988 which provides:
The jurisdiction in civil and criminal matters conferred on
the district courts by the provisions of this Title, and of
Title ‘CIVIL RIGHTS,’ and of Tide *CRIMES,’ for the
protection of all persons in the United States in their civil
rights, and for their vindication, shall be exercised and
enforced in conformity with the laws of the United States,
so far as such laws are suitable to carry the same into
effect; but in all cases where they are not adapted to the
object, or are deficient in the provisions necessary to
furnish suitable remedies and punish offenses against law,
the common law, as modified and changed by the constitu-
tion and statutes of the State wherein the court
having jurisdiction of such civil or criminal cause is held,
$0 far as the same is not inconsistent with the constitution
and laws of the United States, shall be extended to and
gover the said courts in the trial and disposition of the
cause, and, if it is of a criminal nature, in the infliction of
punishment on the party found guilty. In any action or
proceeding to enforce a provision of Sections 1981, 1982,
1983, 1985, and 1986 of this tide, Title IX of Public Law
92-318, or Title VI of the Civil Rights Act of 1964, the
count, in its discretion, may allow the prevailing party,
other than the United States, a reasonable attomey’s fee as
part of the costs.
The bases for subject matter jurisdiction in the District Court were
28 United States Code §§ 1331 and 1343.
The statutory basis of the Court of Appeals jurisdiction was 28
United States Code §1291.
STATEMENT OF THE CASE
This action was originally filed by three inmates at the Alameda
County North County Jail on January 14, 1987. By order dated Se,.tember
7, 1987 the United States District Coun for the Northem District of Cali-
fornia, Marilyn Hall Patel, Judge, issued an order for service of the com-
plaint on defendants (Appendix C) and appointing Amitai Schwanz,
former staff counsel of the American Civil Liberties Union, as counsel to
represent the three plaintiffs (Appendix D, P). From a reading of plaintiffs’
complaint, the court concluded that the complaint alleged state acuon
depriving plaintiffs of a right, privilege or immunity secured by the Consti-
tution. In an order dated September 17, 1987 (Appendix C) the court
found that the confiscation of rosary beads from plaintiffs’ cells pursuant to
a policy prohibiting the personal possession of items of personal property
by inmates in cells, other than jail-issued items, stated a cognizable claim
of a rights deprivation. The court further held that the inmates’ allegation
that they were denied religious services including confession, communion
and Bible Study and other religious articles also stated a cognizable claim.
By order dated June 30, 1988 the District Coun granted plaintiffs’
motion for class certification and granted leave to file a First Amended
Complaint (Appendix E). The inmates alleged in their First Amended
Complaint not only the prohibition of personal possession of rosaries or
scapulars in theii cells, but also that jail officials repeatedly denied their
requests 10 attend mass conducted by Roman Catholic priests or to partici-
pate in the sacraments of the Catholic Church such as confession and
communion. Plaintiffs alleged that no Roman Catholic services had been
allowed in the jail since its opening in October of 1984.’ These allegations
were patently and demonstrably untrue. (Appendix M, N, 0.)
In certifying the action as a Class Action, the District Court found
“the common question of law is whether the policy of forbidding the
possession of these religious articles and denying scheduled access to the
celebration of mass and to the sacraments is constitutional.” (Order of
June 30, 1989, Page 5, Lines 24-27, Appendix E.)
Hearing on cross motions for summary judgment was held on
October 24, 1988. The motions were taken under submission at that time.
On March 13, 1989 a status conference was conducted by the District
Court (Appendix Q; R). On April 6, 1989 it was requested by defendants
that the court rule on the motions for summary judgment (Appendix F,
p.3). On September 29, 1989 the court granted summary judgment for
defendants and denied plaintiffs’ motion for summary judgment on condi-
tion that the Alameda County Jail submit a revision to its jail manual to
verify the existence of its policies and procedures regarding accommoda-
tion of the religious needs of inmates (Appendix F). This condition was
'The Catholic minister appointed by the Catholic Bishop
of Oakland (Appendix M) was not a priest and could not
say mass or hear confessions. When asked about allega-
tions of no mass allowed by the jail he said that celebration
of the mass was neither necessary nor practical given the
logistics and circumstances of the jail and its population.
The minister provided communion, and arranged for
confessions (sometimes) but was dissatisfied with his
Protestant co-ministers and the program in general because
it was in his assessment ‘not a quality program’ (See
Dissent, Judge Ferguson, Appendix B.)
complied with on October 24, 1989 (Appendix G, H) and an order of
dismissal was entered on November 7, 1989 (Appendix I). Plaintiffs, who
have been adjudged the prevailing parties in this action filed their Notice of
Appeal on December 4, 1989. The judgment of the District Court was
affirmed by the Ninth Circuit U.S. Court of Appeals in Friend v,
Kolodzieczak, (9th Cir. 1991) 923 F.2d 126 (Appendix B).
While this matter was on appeal, plaintiff's attorney filed a Notice
of Motion for Attorneys’ Fees and Costs on January 8, 1990. On June 20,
1990 the District Court issued a memorandum and order awarding attor-
neys’ fees to Mr. Schwartz, the attomey the District Court had appointed to
represent the inmates in 1988 (Appendix J).
By order dated July 10, 1990, and amended July 18, 1990, the
District Court ordered defendants to pay a total of $93,782.72 in attomeys’
fees to the plaintiffs’ attomeys (Appendix J, K, L).
Notice of appeal of this order was filed July 19, 1990.
The District Court issued a stay of its award of attorneys’ fees
pending appeal in 1990.
The order granting defendants’ motion for stay was reissued
October 3, 1990 on defendants’ submission of evidence allowing waiver of
a bond.
The stay remains in effect.
On May 19, 1992, the United States Court of Appeals for the Ninth
Circuit, in a two to one decision, upheld the District Court’s award of
attomeys’ fees to plaintiffs’ attomeys. The Court of Appeal affirmed the
District Court’s finding that the jaii officials had taken steps that gave
inmates benefits without addressing whether a constitutional violation had
occurred or whether the inmates were entitled under the constitution to the
“benefit,” nor the reasonableness of the fee award in relation to the ‘‘ben-
efit’ obtained. The opinion of the United States Coun of Appeals for the
Ninth Circuit was filed May 19, 1992 No. 90-1614,—F.2d—(1992)
(Appendix A).
The inmates argued in their lawsuit that all forms of religious
practice were prohibited by North County Jail regulations. The allegation
was absurd and wrong. The jail administration, offended by allegations of
religious intolerance, when exactly the opposite attitude had always been
evidenced by jail officials, presented in opposition evidence of a compre-
hensive religious program and numerous available avenues of religious
practice in the North County Jail. (See Judge Ferguson’s dissenting opin-
ion, Appendix A, p.5664.)
It was the contention of the defendants that the inmates and their
appointed counsel were more interested in litigation and confrontation than
in actually doing what they claimed the jail would not allow. This was
evidenced by the fact that inmates could have used the religious articles at
issue under existing jail regulations allowing the use of religious items in
connection with religious services. The District Cour suggested to the
defendants that it would be inclined to grant the motion for summary
judgment if these representations of what the jail policies really were were
clarified to the District Coun. In light of the astronomical cost of this
litigation, the defendants had no choice but to comply with the condition
imposed by the Northem District for granting of the motion for summary
judgment and “‘termination” of this litigation.
It is uncontested that the program objected io by the ‘“‘Catholic”’
Inmates at the time the suit was ordered served was the very program
agreed to in wniting by their own Catholic Bishop (Appendix M).
At the time the inmates initially filed suit, the jail’s chaplain had
retired. At the same time the three Catholic inmates and their appointed
counsel were litigating this lawsuit, the lay Catholic jail minister was
pressing the jail administration for change in the jail program. (A separate
time slot for his group, Appendix 0.) It was suggested to the Distnct Coun
that the congruity of claims being made by the Catholic inmates and their
appointed attomeys in the lawsuit with those of the Catholic Charities
minister, James Rodgers, placed the defendant jail administration in the
unenviable position of having to respond to a lawsuit seeking damages and
attomeys’ fees on one hand. while attempting to respond to normal re-
quests from the Religious Services administrator of Catholic services on
‘he other, all the while in the midst of a dispute betweer: Catholic and
Protestant religious groups. This put defendants in the impossible position
of either denying a request from religious ministers practicing in the jail in
order to avoid the appearance that the inmate Civil Rights suit had accom-
plished any goal, or granting the request only to be found liable for attor-
neys’ fees and damages and unfavorable treatment of the gther religious
groups. It was determined by the jail administration that since there had
never been any violation of inmate constitutional rights to the free exercise
of religion that the newly appointed jail chaplain was free to make what-
ever scheduling arrangements and coordination of same (subject to ulti-
mate approval of the jail captain) he saw fit in the continuing relationship
with inmates and ministers of various religious persuasions at the North
County Jail. The “delay” the District Cour accused the jail of engaging in,
if anything, was due to the logistics of the jail, temporary lack of a chap-
lain, and the fact that the Catholic group was not the only religious group
in the jail, and a change in the program would necessarily affect the other
religious groups. Justifiable fear of entanglement also cautioned delibera-
tion. The plainuffs’ attomeys inspired massive enlargement of this litiga-
tion was ignored by the District Coun which accused defendants of an
unnecessary increasing of legal expenses by conducting a vigorous de-
fense. (Appendix J, p.10).
REASONS FOR REVIEW
In this case, the Ninth Circuit Court of Appeal, in a sharply divided
opinion, has upheld a finding of “prevailing party” status that is tantamount
to a finding that any inmate grievance complaint filed in Federal Court that
does not amount to malicious prosecution should provide a basis for an
award of attomey’s fees.
Moreover, because, as this court has repeatedly recognized in the
past, jails are particularly ill-suited to administration by judicial decree,
jails throughout this country are virtually sitting ducks for massive attomey
fee awards where any complaint, no matter how trivial, arises because
inmates are dissatisfied with any aspect of the religious programs adminis-
tered in a jail setting.
This court has accepted for hearing a case involving attorney fee
awards in “nominal damage” §1983 cases. (Earrar vy, Hobby. 91-990).
It is believed that this court will be asked to accept Romberg v.
Nichols, 953 F.2d 1152, (9th Cir. 1992) involving similar issues ($1.00
award, $29,137.50 attorney’s fees) relying on Ruggiero vy, Krzeminski, 928
F.2d 558 (2d Cir. 1991). Both cases involve alleged technica! rights
violations.
Here, no monetary award was made. No judgment was entered
against any defendant. No finding of a constitutional violation, technical or
otherwise, was made. No evidence of an actual constitutional nghts
deprivation, technical or otherwise existed.
“Concessions” made by the jail administration during the course of
litigation were pointed to by plaintiffs as the basis for a fee award. That
these ‘“‘concessions” stemmed from a policy and practice of accommoda- |
tion and jail regulations that existed prior to the institution of suit or order
for service of this litigation is undeniable.
Attorney fee awards based on nominal recovery where actual
rights violations have been found is one thing. The principle may or may
not pass muster. However, a District Court’s attorney fee award where not
even technical violations have occurred results in a fundamental, far-
reaching intrusion into the operations of a county jail which has been
specifically prohibited by this court in Bel] v, Wolfish, 441 U.S. 520
(1979).
The ramifications of such a decision provide a clear road map for
the undermining of this court’s emphatic rulings in this area requiring
deference and restraint where correctional facilities are accused of nghts
violations.
While nominal damages have sometimes supported fee awards,
nominal concessions have not. Therefore, this case insidiously allows
indirectly what this court has expressly prohibited: undue intrusion by the
District Court in the day to day operations of a constitutionally observant
and compliant county jail.
Nor did the District Court’s opinion below properly consider the
relationship between the limited extent of the insignificant “‘success’’ and
the amount of the fee awarded, which fee was three times that of the
attomeys retained by the defendant public entity and employees.
I.
MININ J N
V N N
The fundamental question that was never decided against defen-
dants in this litigation was:
.. . [Does the practice or condition violate the constitution?
(Bell v, Wolfish, 441 U.S. 520, 524.)
In Bell v, Wolfish, Id, 541 (Fn. 23) the Distnct Cours were
admonished that in the absence of substantial evidence that policy or
practice impermissibly infringed on constitutional nghts, the court should
defer to the jail administration. As the record of hearings and threatened
orders in this case makes clear, no deference to the jail administration was
ever shown whatsoever. (Appendix Q, R.)
The basis upon which an award of attomeys’ fees was ultimately
made was summarized by the District Court’s decision as follows:
It is clear to this court that plaintiffs’ suit provided the
impetus for defendants to more diligently ...coordinate
services. .. to bring NCJ practice in line with plaintiffs’
constitutional nghts (Appendix J. p.7).
The count said “the policy now is to accommodate Catholic
inmates’ request for participation in Roman Catholic service and sacra-
ments.”’ The uncontroverted evidence in this case is that the policy of
defendants was always to reasonably accommodate where possible the
requests of all inmates for participation in religious services.
The District Court’s memo granting attomeys’ fees states: Defen-
dants, on the whole, are usually rather reluctant to concede that the litiga-
tion prompted them to mend their ways. (Posada vy. Lamb County, 716 F.2d
8
1066, 1072 (Sth Cir. 1983).) This assumed there were ‘“‘ways”’ to be
mended, and pre-judged that defendants’ jail religion policy was wrong, or
more specifically, was violative of constitutional nghts, simply because
that was alleged by plaintiffs.
The District Court’s statement that the suit provided impetus for
“more diligence in coordinating religious services’ (Appendix J) was
erroneous and ran directly contrary to this court’s instruction that inmate
rights suits are not to become vehicles for implementation of the District
Court’s idea of how best to operate a detention facility. ? The effect of the
process defendants were subjected to, as it turned out (Appendix Q and R,
hearing transcripts) was that the plaintiffs’ attomeys were left with a
superficially colorable claim to attomeys’ fees, which was granted with
gusto by the court which appointed them in the first place. The process
used by the District Court in this case did not avoid unnecessary intrusion
of the judiciary into problems particularly ill-suited to “resolution by
decree” (QO’Lone vy, Estate of Shabazz, 107 S.Ct. 2400, 2405 (1987).
This process revealed bleak alternatives for jail administrators sued
in federal court where the court threatened to take over running of the jail:
concession or contempt of court. The situation was made worse when the
administration found itself in the middle of a “turf” dispute between
Catholic and Protestant ministers.
In Michenfelder v. Sumner, 860 F.2d 328, 331 (1988) the Ninth
Circuit noted:
In applying the Tumer vy, Safley [482 U.S. 72] test we
must accord great deference to prison officials assessments
of their interests . . and separation of powers concerns
counsel a policy of judicial restraint’ [specially] [wJhere a
State penal system is involved, ...’
? Bell v. Wolfish, supra, Pages 539; 542-543 Fn. 25, and:
Courts must be mindful that these inquines spring from
constitutional requirements and that judicial answers to
them must reflect that fact rather than a court’s idea of
how best to operate a detention facility. Id, Page 535) and,
Kennedy yv. LA, Police Dept, 887 F.2d 920, 930 (9th Cir.
1989) ‘when litigants petition the federal court to review
the application of an institutional policy, the courts must
proceed cautiously; the Supreme Court has sounded this
waming emphatically and with considerable wisdom.’
Uncontroverted facts showing as a matter of law a constitutionally
adequate religious program at the North County Jail were presented to the
District Court, but these facts had no effect in changing the court’s conclu-
sions drawn from its reading of the initial inmate pleading, nor its apparent
determination to draw ‘“‘concessions” from defendants under threat of
placing the jail under court control, which are now being used to justify the
lucrative fee award. Courts cannot improperly intrude on the running of a
county jail nor impose or coerce a settlement. (Thompson v, Cleland, 782
F.2d 719 (7th Cir. 1986); Kothe v, Smith, 771 F.2d 667, 669 (2nd Cir.
1985).
The rosary and scapular issue was decided by final judgment in
favor of defendants. (Friend v, Kolodzieczak (9th Cir. 1991) 923 F.2d
126.)
That judgment is final and no petition for certiorari was filed.
The constitution does not require prisons to provide each inmate
with a paid chaplain of his choice. (Allen y, Toombs, 827 F.2d 563, 569
(9th Cir. 1987); Cruz v, Beto, 405 U.S. 319, 322 (Note 2) (1972); Johnson
y. Moore, 926 F.2d 921 (9th Cir. 1991).) This case involves not a prison
but a county jail.
On religious services issues, courts have repeatedly found constitu-
tional religious programs less comprehensive than those of the North
County Jail. (Hom vy, People of Califomia (E.D. CA 1968) 321 F.2d 961,
965; aff'd (9th Cir. 1970) 436 F.2d 1375; Cen. Denied 401 U.S. 776
(certain prison chaplains paid but not others;) Gittlemacker y, Prasse (3rd
Cir. 1970) 428 F.2d 1 (Gail need only supply the opportunity for worship
and clergy visits, and was under no duty to supply the clergyman). (See
also Card v, Dugger, M.D. Fla. 709 F.Supp. 1098; (aff'd (llth Cir. 1989)
871 F.2d 1023, finding no violation where all prison chaplains Southem
Baptist; Roman Catholic practitioners not permitted contact visits).
In the absence of fraud, collusion or arbitrariness, the decisions of
church authonities regarding the qualification and selection of prison
chaplains is conclusive. (Gonzales y, Roman Catholic Archbishop (1929)
280 U.S. 1; McClure vy, Salvation Amy (1972) 460 F.2d 553; and see
Duffey v. State Personne] Board, 232 Cal.App.3d 1, 283 Cal.Rptr. 622
(1991).)
Here, the Catholic Bishop of Oakland appointed Catholic detention
minister James Rodgers to participate in an ecumenical program at the jail
(Appendix M). After about one year, Rodgers requested a different pro-
10
gram, at a time when the jail’s chaplain had retired and the position was
not yet filed. There was disagreement between the Catholic jail minister
and the inmates themselves as to what constituted necessary Catholic
services. A separate time slot for Catholic inmates, while permissible (Cf.
Lemon yv. Kumzman (1971) 403 U.S. 602 (entanglement of the state in
religious affairs) was not constitutionally required.
To say that a non-discriminatory religious practice exemp-
tion is Dermitied or even that it is desirable, is not to say
that it is constitutionally required .. . (Employment
Division, Dept. of Human Resources y. Smith, 110 S.Ct.
1591, 1606 494 U.S. 872 (1990).)
When the District Coun after appointing counsel reached what
seemed like a foregone conclusion that the suit caused the jail to be more
diligent or accommodating in acceding to one group’s request for a change
in services as providing a basis for a $100,000.00 fee award, a classic
example of the District Court’s substituting its ideas on how to best run the
jail was presented. The Ninth Circuit decision affirming the award encour-
ages that practice.
N ANY SIGN N
N N N
Under Nadeau v. Helgemoe (ist Cir. 1978) 581 F.2d 275 and
Califomia Association of Physically Handicapped v, FCC (9th Cir. 1983)
721 F.2d 667, the test that plaintiff must pass is “legal as well as factual”
because “‘if it has been judicially determined that defendants’ conduct,
however beneficial it may be to the plaintiffs’ interest, is not required by
law, then defendants must be held to have acted gratuitously and plaintiffs
have not prevailed in a legal sense.” Nadeau. supra at 281. See also Ortiz
de Arroyo vy, Barcelo, 735 F.2d 275 (ist Cir. 1985).
As the amount of fees charged must be reasonably related to the
results obtained, the $100,000.00 awarded in this case in excessive as a
matter of law. (Hensley v. Eckerhardt, 461 U.S. 429 (1983).)
No finding whatsoever on this issue was made by the District
Court where plaintiffs’ attorneys’ fees were three times those charged by
the attomeys for defendant.
It has been said that attorneys’ fees may not be properly awarded
where, as here, the public entity finds itself in the middle of two groups’
demands, where, no matter which course it follows, might subject it to one
1]
EEE
group’s complaint of unconstitutional conduct (see e.g. Grano vy, Barry,
783 F.2d 1104, 1111-1112 (D.C. Cir. 1986).
The grounds for pressing the “religious access” and “religious
services” issues were as a matter of law a strawman issue, pretextual and
confrontational in nature, “‘more contrived than real’’(Naprstek v, City of
Norwich, 433 F.Supp. 1369, cited in Nadeau v, Helgemoe, supra, Fn. 3
Page 279) and constituted no more than a trivial, incidental or insignificant
“success” by plaintiffs, no different than any nuisance settlement (Chicano
Police Officers Association y, Stover, 624 F.2d 127, 131 (CA 10 1980);
cited in Texas State Teachers y, Garland Independent Schoo] District, 109
S.Ct. 1486, 1493 488 U.S. 815 (1989).)
[A! civil nghts plaintiff may not collect attomey’s fees for
demanding that a state officer do what he would have done
in any case. (Coen y, Harrison County School Board, 638
F.2d 24, 26 (Sth Cir. 1981), Cert. Denied 455 U.S. 938,
102 S.Ct. 1427 (1982).
Plaintiffs conceded use of religious items during religious services
was not a “‘core issue.”
That there is always room for improvement in practice or program
is not evidence or finding of nghts violations, especially in a setting
acknowledged by this court as one beset with “intractable problems”
(O’Lone y, Estate of Shabazz, 107 S.Ct. 2400, 2404-2405. Because some-
thing is desirable does not make it constitutionally required. (EDD y,
Smith, supra, 110 S.Ct. 1591, 1606.)
That inmates, church groups, chaplains, or jail personnel propose
alternatives for more or different religious services in a jail setting, whether
acted upon or not, does not equal “evidence of a wrong” or “vindication of
a nght.” The jail program did not have to be the only alternative or even
the best alternative for it to be reasonable, to say nothing of constitutional.
(Bell v. Wolfish, supra, Fn. 25, Pages 542-543.) In a jail setting, the “right”
in question must be viewed “sensibly and expansively.”” (Thomburgh vy.
Abbott, 104 L.Ed. 459, 476, 490 U.S. 401.)
While the vindication of rights by settlement or informally without
a judgment can form the basis for a finding of prevailing party status
(Nadeau v Helgemoe, 581 F.2d 275 (Ist Cir. 1978) the vindication must
be of nghts and evidence of the existence of the wrong and of its vindica-
tion as a proximate result of the lawsuit must be produced. In a jail
setting, proof of the existence of the wrong is a difficult task, one de-
scribed as a heavy burden of showing that the inherent limitation of nights
caused by the fact of incarceration itself constituted a Jegal wrong. (Bell
12
y. Wolfish, supra, Page 546, 561-562.) This action appeared to begin with
the assumption by the trial court that the jail was guilty.
“The touchtone of the prevailing party inquiry must be the matenal
alteration of the legal relationship of the parties in a manner which Con-
gress sought to promote in the fee statute.” (Texas State Teachers y.
Garland Independent Schoo] District, supra 107 S.Ct. 1486 (1989) 488
U.S. 815.)
Defendants’ conduct in revising the jail manual to reflect a pre-
existing reality in order to terminate this litigation was therefore gratuitous,
not required by law, and plaintiffs did not prevail in a legal sense as a
matter of law. (See Califomia Association of Physically Handicapped v.
ECC, supra, 721 F.2d 667, 671-672 (9th Cir. 1983).
On this record any finding of substantial success was based on
nothing but speculation and conjecture, and defies irrefutable facts showing
that this litigation was totally unnecessary.
While it has never been contested that non-monetary success can
justify an award of attomeys’ fees in civil rights litigation, it is respectfully
submitted that this case represents a “ground zero” at which success on the
merits cannot be detected. Under the principles enunciated by this court in
Hensley v, Eckerhardt, 461 U.S. 424 (1982) the decision should be re-
versed.
Review by this court is necessary to correct a situation which, if
left as it is, will severely impair the ability of county jail administrators to
run a jail. This case is an example of an emphatic pronouncement of this
court being for all practical purposes totally ignored, that the jails are not to
be run on the basis of what a district court judge would do if he or she were
the jail administrator, but that judicial intervention is to be limited only to
circumstances where constitutional violations have been shown to exist by
substantial evidence. The decision in this case cries out for resolution by
this court. The dilemmas posed to jail administrators by this case deserve
resolution by this coun.
DATED: August 3, 1992
BENNETT, SAMUELSEN, REYNOLDS & ALLARD
By:
RICHARD L. REYNOLDS
Attomeys for Petitioners/Appellants
13
a
APPENDIX
INDEX TO APPENDIX
Exhibit A - Fnend v. Kolodzieczak
F.2d (9th Cir. May 19, 1992
(No. 90-16140), Pregerson, Circuit Judge,
Joined by Judge O’Scannalain; Dissent by
Judge Ferguson
Exhibit B - Friend v. Kolodzieczak
923 F.2d 1276 (1991)
Exhibit C - Order of Service,
September 17, 1987, U.S. District Coun
Judge Patel
Exhibit D - Order Appointing Counsel,
February 23, 1988
Exhibit E - Order Certifying Class
Granting Leave To File First Amended
Complaint, June 30, 1988
Exhibit F - Memorandum and Order
Conditionally Granting Defendants’
Motion For Summary Judgment,
September 29, 1989
Exhibit G - 1987 North County Jail Policies
& Procedures Manual, Section III, 5-15, “Religious
Services”
Exhibit H - Operational Order No. 1, North County Jail Policies & Proce-
dures Manual, Section III, 5-15, “Religious Services” and correspondence
transmitting same to District Court
Exhibit I - Order of Dismissal,
November 7, 1989
Exhibit J - Memorandum and Order Awarding
Plaintiffs’ Attorneys’ Fees, June 20, 1990
Exhibit K - Memorandum and Order Awarding
Attomeys’ Fees, July 10, 1990
Exhibit L - Amended Memorandum and Order
Awarding Attorneys’ Fees, July 20, 1990
Exhibit M - Catholic Bishop’s April 7, 1987
Authorization of Interdenominational Christian
Services
Exhibit N - Answer to Complaint, October 23, 1987
Jail Religious Program Rules, Regulations, Guidelines
Exhibit O - January 12, 1988 letter from Captain Hickerson to Catholic
detention minister
Exhibit P - Declaration in Suppon of Class
Certification, April 18, 1988
Exhibit Q - October 24, 1989 Hearing Transcript
Exhibit R - March 13, 1989 Hearing Transcript
EXHIBIT
A
SS ————<S lll eC
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Jack Wayne FRIEND, et al.,
Plaintiffs-Appellees, No. 90-16140
Vv DC. No.
CV-8° 00161-MHP
RONALD KOLODZIECZAK, et al.,
Defendants-Appellants. OPINION
Appeal from the United States District Court
for the Northern District of California
Marilyn Hall Patel, District Judge, Presiding
Argued and Submitted
October 9, 1991—San Francisco, California
Filed May 19, 1992
Before: Harry Pregerson, Warten J. Ferguson, and
Diarmuid F. O ’Scannlain, Circuit Judges.
Opinion by Judge Pregerson, Dissent by Judge Ferguson
SUMMARY
Attorneys and Judges/Attorneys’ Fees
ah
Affirming a district court judgment awarding attorneys’
fees under Section 1988, the court of appeals held that the
award was proper because inmates in the underlying litigation
were “prevailing parties’ who had established the necessary
causal link between the benefits initially sought and changes
in iail policy.
5656 FRIEND v. KOLODZIECZAK
Jack Fnend, as representative of a class of Roman Catholic
prisoners, brought an action under Section 1983 alleging vio-
lations of their constitutional nght to free exercise of religion.
The issue at trial involved the inmates’ right to keep rosaries
and scapulars with them at all times. The distnct court upheld
the prison regulation as permissible, contingent upon submis-
sion by the officials of a revised prison manual setting forth
prisoners’ limited nghts to possess religious articles. The dis-
trict court also found that the inmates were “prevailing
parties” entitled to attorneys’ fees under Section 1988.
[1] A litigant need not succeed on every claim to qualify as
the prevailing party. Rather, a party may recover its attomeys’
fees if it succeeds on any significant issue in litigation that
achieves some of the benefit sought in bringing suit. In addi-
tion, the inmates may be considered prevailing parties even
though they did not gain formal judicial relief. [2] In the
absence of formal relief, the court focused on whether the
inmates established a clear, causal relationship between the
litigation brought and the practical outcome realized. [3] The
court agreed that the necessary causal link was established
between Friend's class action and changes in jail policy. The
inmates had been successful on the issue of access to religion
in a pre-trial settlement materially altering the legal relation-
ship of the parties. [4] The inmates had also partially pre-
vailed on their claim for inmate possession of religious
articles. [5] Neither were the inmates’ claims fnvolous; they
raised legitimate issues related to their free exercise nghts.
Judge Ferguson dissented, stating that the majonty’s hold-
ing that the inmates were the prevailing parties because the
necessary causa] connection existed between the class action
and changes in jail policy, and the pre-litigation settlement
which altered the legal relationship of the parties was factu-
ally and legally wrong.
A-2
FRIEND v. KOLODZIECZAK 5657
COUNSEL
Maureen C. Brooks and Richard Reynolds, Bennett, Samuel-
sen, Reynolds & Allard, Oakland, California, for the
defendants-appellants.
Sue Ochs, Law Offices of Amitai Schwartz, San Francisco,
California, for the plaintiffs-appellees.
OPINION
PREGERSON, Circuit Judge:
This appeal presents the question whether the district court
properly found appellees to be “prevailing parties” for an
award of attorney's fees under 42 U.S.C. § 1988. We have
jurisdiction to review che district court's decision under 28
U.S.C. § 1291. We affirm.
BACKGROUND
A group of Roman Catholic jail inmates filed a class action
suit against officials of Alameda County under 42 U.S.C.
§ 1983 alleging violations of their constitutional night to free
exercise of religion. Jack Fnend is the named class represen-
tative in this suit.
Some issues were settled before triai.' The only remaining
free exercise claim at trial concerned the nght of jail inmates
to keep rosary beads and scapulars with them at all times.’
The district court granted summary judgment in favor of the
‘In their initial complaint, the inmates sought improved access to reli-
gion by way of pnvate confessions and separate Roman Catholic services.
This issue was resolved before tal.
Rosary beads are used to count prayers while praying. Scapulars are
symbols of Mary, the mother of Jesus.
A-3
5658 FRIEND V. KOLODZIECZAK
Alameda County officials. The court concluded that jail pol-
icy prohibiting religious articles in prisoners’ cells was per-
mussible under the Turner standard.* The court’s order was,
however, contingent upon submission by the officials of a
revised prison manual setting forth prisoners’ limited nghts to
possess religious articles.
DISCUSSION
A district court may award attorney's fees to the prevailing
party in an action brought under 42 U.S.C. § 1983. Sabian v.
Department of Fin., 856 F.2d 1317 (9th Cir. 1988). We
review the district court's finding of prevailing party status
for clear error. Lummi Indian Tribe v. Oltman, 720 F.2d 1124,
1125 (9th Cir. 1983); Sablan, 856 F.2d at 1324. “We must
reverse, however, if the district court used incorrect legal
standards to reach this finding.” Lummi Indian Tribe, 720
F.2d at 1125.
[1] As an initial matter, we note that a litigant need not suc-
ceed on every claim to qualify as the prevailing party.
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Rather, a
partly may recover its attorney's fees if it ““succeed[s] on any
Significant issue in liugation which achieves some of the ben-
efit ... sought in bringing suit.” Jd. (quoting Nadeau vy. Hel-
gemoe, 581 F.2d 275, 278-79 (1st Cir. 1978)).* Moreover, the
In Turner v. Safley, 482 U.S. 78, 89 (1987), the Supreme Court stated
that “when a prison regulation impinges on inmates’ consutuuonal nghis,
the regulation 1s valid if it is reasonably related to legitimate penological
interests.” Reasonableness is determined by a four-part test: (1) whether
the regulation is rationally related to the legitimate government interest
invoked to justify it; (2) whether the regulation leaves open an altemmative
way for pnson inmates to exercise the mght asserted; (3) the umpact that
accommodauon of the asserted nght will have on guards, other inmates,
and pnson resources; and (4) the absence of ready alternatives to the regu-
lauon. Jd. at 89-90.
“Our recent decision in Romberg v. Nichols, Nos. 90-56125, 91-55012
(9th Cur. Feb. 20, 1992) 1s consistent with our holding in this case and with
A-4
FRIEND v. KOLODZIECZAK 5659
inmates may be considered prevailing parties even though
they did not gain formal judicial relief. Hanrahan v. Hamp-
ton, 446 U.S. 754, 757 (1980) (per curiam), Sablan 856 F.2d
at 1324; Muckleshoot Tribe v. Puget Sound Power & Light,
875 F.2d 695, 696 (9th Cir. 1989). In the present case, the dis-
trict court concluded that the inmates prevailed because they
succeeded either completely or partially on their free exercise
claims. As the distnct court found, Alameda County officials
took actions before tnal that gave the inmates benefits they
Ninth Circuit precedent. Like the Rombergs, the class of inmates 1s a pre-
vailing party within the meaning of § 1988 because it succeeded on a sig-
nificant issue. The form of that victory is not dispositive.
In Romberg, the jury found that the defendant police officers were liable
for violating the Romberg’s Fourth Amendment nghts. The jury awarded
only nominal damages of one dollar. Romberg, slip op. at 1657. The dis-
tnct court then granted the Rombergs’ motion for attorney's fees under
§ 198%, and the government appealed that decision. /d. at 1658.
We held that the Rombergs were prevailing parties within the meaning
of § 1988, and rejected the argument that their victory was too insignifi-
cant to jusufy an award of attomey’s fees. /d. at 1663. Specifically, we
held that the amount of damages awarded the Rombergs was not disposi-
uve. /d. at 1664-65. Rather, the jury’s finding that the police officers were
liable for violating the Rombergs’ Fourth Amendment nghts was suffi-
cient to establish prevailing party status under § 1988. Romberg, slip op.
at 1662 (“the Rombergs prevailed on a significant issue, and they pre-
vailed on the menits before a jury”); see Texas State Teachers Assn. v.
Garland Indep. Sch. Dist., 489 U.S. 782, 792-93 (1989) (“[t}he touchstone
of the prevailing party inquiry must be the material alteration of the legal
relauonship of the partes’).
Our holding tumed on the significance of the issue on which the Rom-
bergs prevailed, and we rejected the argument that nominal damages
reflected an insignificant victory. Romberg did not change established law
that formal judicial relief is not necessary to support prevailing party Sta-
tus under § 1988. See e.g., Maher v. Gagne, 448 U.S. 122, 129, 100 S.C1.
2570, 2575 (1980) ("Nothing in... § 1988 conditions the Distnct Court's
power to award fattomey] fees . . . on a judicial determination that the
plainuff's mghts have been violated . . . . [PJarucs may be considered to
have prevailed . . . without formally obtaining relicf.”’).
A-5
ES
5660 FRIEND Vv. KOLODZIECZAK
sought in filing suit. The inmates also benefited from the con-
ditional summary judgment motion.
{2] In the absence of formal relief, we focus on whether the
inmates have “established a ‘clear, causal relationship
between the litigation brought and the practical outcome
realized.’ *’ Sablan, 856 F.2d at 1324 (quoting Rutherford v.
Pitchess, 713 F.2d 1416, 1419 (9th Cir. 1983)) (emphasis in
original). We apply a two-part test to resolve this question.
Sablan, 856 F.2d at 1325. First, we determine whether this
lawsuit actually brought about benefits initially sought by the
inmate class. /d. Second, we examine whether the inmates’
claims had a legal basis. /d.
[3] We agree with the distnct court that the necessary
causal link was established between Frnend’s class action and
changes in jail policy. The distnct coum found that the
inmates succeeded on the issue of access to religion in a pre-
trial settlement.® In response to Friend's class action, jail offi-
cials agreed to hold separate Roman Catholic services and to
diligently arrange and coordinate policies on prisoners’ nghts
to practice religion.® The district coun concluded correctly
“Although the dissenting opinion asserts otherwise, it is Clear that dis-
unctly Roman Catholic services were one of the benefits sought by the
inmates in filing this suit. The inmates specifically complained of the lack
of scheduled Roman Catholic religious services, as distinguished from the
fundanntalist Protestant services that were available.
*The dissenting opinion suggests that this suit was simply a dispute
between a Catholic lay minister and the Bishop, or between a Catholic lay
munister and a Protestant minister, and that jail officials played no role in
the absence of Catholic services. The jail conceded, however, that only a
Protestant group operated in the jail after December, 1987, and that the jail
captain asked the Catholics to “defer” their request to be allowed a time
to conduct a Catholic service, unl some indeterminate date in the future
when a new chaplain would be hired. The record also indicates that Catho-
lic Charntes sent a letter to the jail Captain requesung “a umesiot for a
Catholic worship service” and that he responded, “I do not intend to alter
the program unul the Chaplain’s position is filled.” Thus it is undisputed
that the only scheduled religious service in the jail was operated by a fun-
damentalist Protestant ministry, and that the Catholics’ request to likewise
have a scheduled service was indefinitely postponed by the jail.
A-6
FRIEND v. KOQLODZIECZAK 5661
that the pre-litigation settlement material!y altered the legal
relationship of the parties. This is “[t]he touchstone of the pre-
vailing party inquiry.” Texas State Teachers Assn. v. Garland
Indep. Sch. Dist., 489 U.S. 782, 792-93 (1989).
[4] The district court also found that plaintiffs partially pre-
vailed on their claim for inmate possession of religious arti-
cles. Before commencement of this action, the jail policy
manual was silent on the nights of inmates to use religious
articles. County jail officials revised the manual in response
to the district court's conditional summary judgment order.
The revised manual explicitly recognized an inmate's night to
limited use of religious articles. The distnct court found, and
we agree, that a causal relationship existed between the
inmates suit and the changes in jail policy.
We tum now to the second part of the test to analyze
whether the inmates’ claims had a legal basis. Sablan, 856
F.2d at 1327. Alameda County officials contend that the
inmates’ claims had no legal basis because the actions taken
by the County were not constitutionally mandated.
We reject this contention. In this context, our evaluation of
the merits of a litigant’s claims is extremely narrow. Andrew
v. Bowen, 837 F.2d 875, 877 (9th Cir. 1988). Our inquiry is
“strictly limited to determining whether the claims asserted
are ‘frivolous, unreasonable, or groundless.” /d. at 878
(quoting Ortiz de Arroyo v. Barcelo, 765 F.2d 275, 282 (lst
Cir. 1985)).
[5] Our review reveals no basis for concluding that the
inmates’ claims were frivolous. We agree with the distnct
court that the inmates raised legitimate issues related to their
free exercise rights. Indeed, the district court conditioned its
grant of summary judgment in favor of the county officials
upon revision of the prison manual precisely because the
inmates’ free exercise claims were colorable. The district
A-7
$662 FRIEND Vv. KOLODZIECZAK
cour ’s finding that the inmates’ claims had a legal basis was
not erroneous.’
CONCLUSION
We conclude that the class of Roman Catholic inmates pre-
vailed against the Alameda North County Jail within the
meaning of 42 U.S.C. § 1988. The judgment of the distnct
coun is AFFIRMED.
FERGUSON, Circuit Judge, dissenting:
In this case the district court has ordered the taxpayers of
Alameda County to pay thousands of dollars in attorney's fees
In a Matter onginaung in a dispute between different religious
groups. Because the defendants are not responsible for reli-
gious conflicts among private parties, I dissent.
I. BACKGROUND
This is an appeal from an award of attorney fees and costs
to plainuff pursuant to 42 U.S.C. § 1988. The distnct coun
awarded fees and costs finding that “plaintiffs’ suit provided
the impetus for defendants to more diligently attempt to
arrange for personnel and to coordinate the services necessary
to bring [Alameda] North County Jail practices in line with
plaintiffs’ constituuonal rights.”
7Alameda County officials argue that the atlomey’s fees awarded here
are excessive aS a matter of law. The officials do not argue that the distnct
coun calculated the fee amount umproperly. Instead, they merely contend
that the inmates did not achieve their goals. This argument sumply restates
their Objecuion to the distnct court's finding that the class of inmates 1s a
prevailing party within the meaning of 42 U.S.C. § 1988. Because we
uphold the district court's decision, we need not pursue this claum further.
A-8
FRIEND Vv. KOLODZIECZAK 5663
The district court thus found that plaintiffs were prevailing
parties, despite the fact that it never found that the County at
any time had deprived the plaintiffs of any constitutional
rights. Parties may be considered prevailing parties when a
violation of nghts 1s found, see Romberg v. Nichols, 953 F.2d
1152, 1157 (9th Cir. 1992), or when they vindicate nights
through settlement without formal relief. Sablan v. Dep't of
Finance of N. Mariana Islands, 856 F.2d 1317, 1324 (9th Cir.
1988) (quoting Hanrahan v. Hampton, 446 U.S. 754, 757
(1980) (per curiam)). Here, no nghts were violated so none
could be vindicated.
The underlying case is a 42 U.S.C. § 1983 class action
alleging the failure to provide inmates at the North County
Jail in Alameda County the nght to participate in religious
services performed by a Roman Catholic priest and denying
Roman Catholic inmates the nght to possess rosary beads and
scapulars in their cells.
Both parties filed motions for summary judgment. At the
hearing on the cross-motions, the defendants agreed to set
forth in wniting the jail policies regarding religious services
and access to religious articles. On September 20, 1989, the
distnct court issued an order granting the County/defendants’
mouon for summary judgment and denying the plaintiffs’
motion on the issue of possession of rosary beads and scapu-
lars in their cells. The district court also directed defendants
to submit to the court a written copy of the policy of the jail
regarding the accommodation of the religious needs of
inmates. Following submission of the written policy. the dis-
trict court dismissed the action.
The plaintiffs appealed only the order of dismissal in regard
to the rosary/scapular issue. A panel of this court consisting
of Judges Goodwin, Browning and Rymer affirmed the dis-
trict court in an unpublished opinion (Friend v. Kolodzieczak,
No. 89-16703 (9th Cir. Oct. 24, 1990)). The panel held that
the defendants had legitimate security reasons for banning
A-9
a)
S664 FRIEND V. KOLODZIBCZAK
rosanes and scapulars. The plainuffs then filed their mouon
for attomeys fees and costs which was granted and this appeal!
followed.
The jail 1s a modem tacility which houses over 700
inmates. The average length of stay is six days. The excepuon
is about twenty-five inmates who have been at the jail for lon
ger than two years. Religious services take place in two multi
purpose rooms on each of the jail’s six housing floors.
Religious services are provided for all inmates at the jail
through the jail chaplain as well as through religious volun
teers. Although there is a Catholic church across the street
trom the jail, the Catholic Diocese of Oakland has never
assigned a Roman Catholic pnest to minister at the jail due to
a shortage of priests.
In January of 1987, the Catholic Bishop of Oakland
assigned a lay minister, James Rodgers, from Catholic Chan
lies, as the detention minister (“Rodgers”). At the jail, interde
nominational Christan services were offered on Sunday
momings, in which Catholic Charities’ volunteers partici-
pated. The Bishop had agreed to this arrangement as it was in
keeping with the Catholic Dioceses’ commitment to ecumeni-
cal cooperation. Rodgers used a Roman Catholic study guide
and scnptural teachings as the basis for the services he con-
ducted on Sunday morning. He also ministered to individuals
as requested during visiting hours, and could bring the sacra-
ment of communion to inmates at those times.
There were, however, tensions between the protestant
group involved in the interdenominational program, Follow
Up Ministnes, and the Catholic Charities volunteers. The ten-
sions escalated, and in the fall of 1987, lay minister Rodgers
attempted to get his own Catholic-identified services. This
was not due to any inability to minister to Catholics, however,
but because he wanted to be able to proselyuze to non-
A-10
Ee
FRIEND Vv. KOLODZIBCZAK 5665
Catholics. Indeed, he admitted in his deposition that he did
not even know who the Catholics in the jail were.
In December 1987 or January 1988, Rodgers stopped tak
ing part in the interdenominational services altogether. Rod
gers began to minister On an on-call basis only. He
conditioned his return upon getting his own ume slot for ser-
vices, but the jail was not made aware of this demand or that
he had quit. Neither the Catholic Church nor Catholic Chari-
ules ever appointed anyone else to take his place.
Il. APPLICABLE LAW
The majority holds that plaintiffs were the prevailing par
ties because the necessary Causal relationship exists between
the class acuon and changes in jail policy, and the pre
litivation settlement altered the legal relationship of the par
ties. Both conclusions are factually and legally wrong.
In Texas State Teachers Association v. Garland Indepen
dent School District, 489 U.S. 782 (1989), the Supreme Court
held that plainuffs who succeed “on any significant issue in
litigation which achieve[s] some of the benefit the parties
sought in bringing the suit, [have] crossed the threshold to a
fee award of some kind.” /d. at 791-92 (internal quotations
omitted). However, at a minimum, there must be a “resolution
of the dispute which changes the legal relationship between
itself and the defendant.” /d. at 792. A change in a legal rela-
tionship may be demonstrated through a judicial finding of a
constituuonal violation in cases where there is formal reliet,
see, e.g., Romberg, 953 F.2d at 1157, or in the case of infor-
mal relief, when it is determined that the lawsuit was the cata-
lyst for constitutional reform on the part of the government.
Sablan, 856 F.2d at 1325.
The Ninth Circuit has used a two part test to determine pre-
vailing party status when there has been no formal reliet.
Proper application of this test assures that fees are not
A-1]
5666 FRIEND v. KOLODZIECZAK
awarded if the government takes action but there are no con-
stituuional deficiencies. We first “determine what [plaintifts]
sought to accomplish in bringing [this] lawsuit and then deter-
mine whether the lawsuit was causally linked to the relief
actually obtained.” Sablan, 856 F.2d at 1325. Here, plaintiffs
did not prevail in any of the claims presented in their com-
plaint. Thus, the lawsuit did not bring about any benefits
sought by the inmate class, and plainuffs fail the first prong
of the Sablan test.
The second prong of the Sablan test is whether there is a
legal basis for plaintiffs’ claims. Sablan, 856 F.2d at 1325. “If
it 1s judicially determined that defendants’ conduct, however
beneficial it may be to plaintiff's interests, is not required by
law, then defendants must be held to have acted gratuitously
and plainuffs have not prevailed in a legal sense.” /d. at 1327
(citation omitted). The undisputed facts demonstrate without
question that the County has never refused the plaintiffs the
nght and opportunity to practice their Roman Catholic reli-
gion and participate in Roman Catholic sacraments at the jail.
In There was therefore no legal basis for the plaintiffs’ claims,
nor any change in the legal relationship between the parties.
Thus, plaintiffs fail the second prong of the Sablan test.
II. DISCUSSION
The plaintiffs’ complaint alleged that defendants denied
them the opportunity to possess rosanes and scapulars, to par-
ticipate in the sacraments of reconciliation (confession) and
communion, and to attend Roman Catholic mass. The plain-
tiffs further complained of the lack of visits from Catholic
priests. All of these claims were groundless, ana the plaintiffs
did not prevail on any of them, nor did they obtain any other
relief.
A. Possession of Religious Articles.
This court previously held that the defendants’ refusal to
permit personal possession of rosary beads and scapulars in
A-12
FRIEND Vv. KOLODZLECZAK $667
cells did not violate plaintiffs’ constitutional nghts. The mer-
its of that claim need not be relitigated here.
The jail’s written policy of permitting the use of all reli-
gious articles at religious services after inspection predates the
lawsuit. In the year that the lay minister attended the Chfistian
ecumenical services, he never had a problem with bringing
into the jail all religious items required to conduct services.
Nevertheless, defendants clanfied its written its policy on
religious articles.’ The policy was changed so that it specifi-
cally mentioned rosaries and scapulars as examples of articles
permitted during religious services. The majority asserts,
without explaining, that the revision was a material change in
the legal relationship between the parties. However, the litiga-
tion concerned the possession of rosary beads and scapulars
in cells, and the inmates lost. Nothing else was claimed or
contested. The County continued to permit religious articles
at religious services, as it had always done, and there is sim-
ply no evidence to the contrary.
To claim that clarifying a policy that always existed repre-
sents a material change in the legal relationship of the parties
places form before substance. The plain fact is that the new
wniting did not change in any degree the legal relationship of
the parties.
‘The earlier policy stated, in relevant part: “All matenals brought to the
jail for detainee’s religious edification will be delivered to .. . and distnb-
uted by the 1.8.0. {Inmate Services Officer]. . . . No other items may be
brought into the service and none may be taken from the service without
prior approval and physical inspection by 1.8.0.”
The revised policy states in relevant part: “[(rjeligious ttems, allowed
only during the religious services, are limited to those which present only
a moderate security threat. Examples include a rosary or a scapular.”
A-13
5668 FRIEND Vv. KOLODZJECZAK
B. Availability of Communion, Confession and Mass.
The jai] was not responsible for the availability of the sac-
raments of communion, confession (reconciliation) or mass
which can be celebrated only by a priest. The lay minister
could bring communion (wafers consecrated by a priest) to
the inmates upon request during visiting hours. While Rod-
gers knew that he and his volunteers could bring communion
during the inter-denominational services as weli, they
declined to do so.
Only priests may hear confessions. If an inmate requested
the services of a priest, that request was conveyed to Catholic
Charities by the jail chaplain or by other jail administrative
personnel.
After lengthy discovery, the record shows only one
instance in which an inmate's request for Catholic sacraments
went unfulfilled. It involved Jack Friend's (the named plain-
uff) request for confession. Catholic Chanties arranged for a
priest to hear his confession. A private room, which is used
for attorney-inmate conferences, but without a door, was
available but the priest was not comfortable hearing confes-
sion in that room, and left. The jail, at Friend's request, made
numerous attempts to contact the priest for another confession
in an appropniate setting, but the priest never responded. The
lay minister Rodgers admitted that “We've fallen down on
that particular task [arranging confession for Fnend] and it
slipped through the cracks, and I’m not particularly proud of
that.”
Jack Friend was in jail awaiting trial for murder with spe-
cial circumstances, and was considered a security risk. It is
clearly unreasonable to assert that the County as the result of
that single instance deprived an inmate of his constitutional
religious rights. The room was one in which attomeys talked
to their clients in confidence, and was se*isfactory for Sixth
Amendment purposes. The County cannot be faulted for not
A-14
FRIEND Vv. KOLODZIECZAK 5669
having the foresight to know that the room was not satisfac-
tory for one Catholic priest. It certainly cannot be held
responsible for the neglect of Catholic Charities in not sched-
uling the priest for another time.
As to the sacrament of mass, Rodgers acknowledged that
the celebration of a Roman Catholic mass was neither neces-
Sary nor practical given the circumstances and logistics of a
jail and the shortage of Catholic pnests. The lack of pnests is,
of course, something outside the power of the County to cor-
rect.
In summary, the County did not violate the plaintiffs’ nghts
vis-a-vis the Roman Catholic sacraments of confession, com-
munion or mass, nor was any relief obtained which vindicated
their religious nghts in this regard. The County only set forth
certain jail policies in writing which had always existed.
There is absolutely no basis for prevailing party status on
these issues. That leaves the issue of providing for separate
Roman Catholic services by Catholic lay ministers.
C. Separate Catholic-ldentified Services.
In their complaint, the inmates alleged a lack of Catholic
religious services, in contrast to the services conducted by the
group Follow Up Ministnes, described as a fundamentalist
Protestant group. The majonity, pointing to this allegation,
claims that through the suit the inmates won the nght to con-
duct Catholic services.
The Catholic Charities lay minister, with the approval of
the Bishop, joined in with the Follow Up Ministnes volun-
teers to perform interdemonational services for much of 1987.
During these services, he identified himself as a Catholic and
used Catholic readings and scriptures as the basis for the ser-
vice. Thus, contrary to the assertions of the majority, the Fol-
low Up Ministry program permitted truly interdenominational
services.
A-15
5670 FRIEND Vv. KOLODZIECZAK
In the fall of 1987, the Catholic lay minister became dissat-
isfied with the interdenominational service which was
approved and accepted by the Catholic Bishop and wanted to
conduct a program separate from those services. His motive
was to permit him to proselytize to non-religious or non-
Catholic inmates and had absolutely nothing to do with the
religious nghts of Catholic inmates. After December 1987,
the Catholic lay minister refused to take part in Sunday ser-
vices. This refusal explains why there were only services run
by Follow Up Ministnes after that date. It was not, as the
majority implies, the fault of the jail; it was due to the prefer-
ences of the Catholic lay minister.
When the jail commander received Catholic Chanities’
written request for separate Catholic services in January 1988,
he responded that he would not make any changes in the jail 's
religious program until the then vacant chaplain position was
filled. That certainly should be understandable. The Bishop
had informed the jail commander that the Catholic Charities
lay minister would be participating an interdenominational
service, citing the Church's commitment to ecumenical coop-
eration. But the lay minister became dissatisfied with this
approach, and told the jail commander he wanted separate
Catholic-identified services. When faced with a difference in
opinion between the lay minister and his Bishop, the jail com-
mander proceeded carefully and with caution, waiting for the
new chaplain to arrive before making any change. It makes
sense that the jail commander would not want to make this
change without advice from the jail chaplain who was directly
responsible for the religious program at the jail. To contend
that the jail interfered with the religious rights of the jail
inmates by waiting simply cannot stand.
The request for a space for separate Catholic services was
not “indefinitely postponed,” as the majority ciaims. Rather,
it was implemented four or five months after the new chaplain
started. The failure to move more rapidly, however, does not
implicate any of plaintiffs’ constitutional rights. The impetus
A-16
; a
FRIEND Vv. KOLODZIECZAK 5671
for the separate service was the Catholic lay minister's own
idea of what should be provided, contrary to the program of
his own Bishop. The previous lack of separate, Catholic iden-
tified services was not a constitutional violation. Thus, the
Sablan test cannot be satisfied, because the lawsuit was not
the “catalyst for constitutional reform.” Sablan, supra, 856
F.2d at 1325. The institution of separate Catholic-identified
services at the jail therefore does not entitle the plaintiffs to
prevailing party status.
The Christian ecumenical service did not deprive the Cath-
Olic inmates of any religious constitutional nght. That being
the case, it cannot be asserted that slowness in instituting
Catholic services was a constitutional violation. Section 1988
simply does not authorize the award of attorney fees because
the jail did not make a change which was not consututionally
required as fast as the distnci coun thought it should.
Before dismissing the case, the district court required a
revised jail policy addressing accommodation to plaintiffs’
religious needs, including the scheduling of religious services.
However this writing also fails to transform plaintiffs into
prevailing parties. The evidence is definite that the wnitten
policy was the same policy that the jail always carned out.
There was no evidence that the jail had a practice or condition
that violated the constitution. There was never a policy that
interdenominational services were sufficient for all religious
groups. The County had consistently provided separate facili-
ties to the Black Muslims. The regular time and location for
Catholic- identified services agreed to by the jail chaplain and
administration was at the request of Catholic Chanties. The
Catholic-identified service does not address the deficiency,
alleged in the complaint, of Catholic pnests to perform sacra-
ments and minister to inmates.
The lay minister, who was authorized to minister to the
Catholics, stopped taking part in Sunday services for his own
reasons. The jail had nothing to do with the pique of the lay
A-17
a
5672 FRIEND v. KOLODZIECZAK
minister and the resulting absence of Catholic representatives
at the Sunday services from January through October of 1988.
In order to bring back a Catholic presence on Sunday mom-
ings (it remains unclear whether the inmates had a position or
preference in the dispute between the Catholic lay minister
and his protestant contemporaries), the new jail chaplain and
the jail administration established a place for separate
Catholic-identified services in Octcber 1988. The district
court considered this a vindication of plaintiffs’ free exercise
rights. As explained, this leap in logic is not supported by the
facts or law. Catholic Charities, which performs the services,
remains a lay ministry group that cannot address the lack of
Catholic priests which was the basis of the litigation.
The distnct court also put much stock in the chronology of
events, regarding the lawsuit as the “impetus” to bring the jail
“in line with plainuffs” constitutional nghts.” However, the
County never violated the plaintiffs’ constitutional nghts, the
actions taken by the County never expanded those rights in
any way nor gave the plaintiffs anymore of what they asked
for in the complaint. The Catholic lay minister was the impe-
tus for the Catholic- identified services, which can scarcely
implicate a constitutional nght if even the Bishop did not
require them! The plaintuffs simply got no relief, and there
was no “constitutional reform,” Sablan, supra, 856 F.2d. at
1325, so the lawsuit could not have been the impetus for any-
thing.
IV. CONCLUSION
This litigation arose because of plaintiffs’ dissatisfaction
with the inability to possess certain religious items and prob-
lems with access to confession, communion and mass. As
explained, the former was justified because of security con-
cems and the latter was not the fault of the jail. The litigation
continued with the original demand transformed to one for
separate Catholic-identified services. This demand came from
A-18
FRIEND v. KOLODZIECZAK 5673
the Catholic lay minister who was dedicated to proselytizing
non-Catholics and who disagreed with his Bishop's approval
of interdenominational services. It was further fueled by the
fact that the Catholic lay minister had a dispute with his prot-
estant associates over that proselytizing and left the jail. A
Catholic lay minister doesn’t agree with his Bishop and gets
into a dispute with his protestant associates, and the tax pay-
ers of Alameda County become subject to $100,000 attorney
fees! It really is difficult to understand why that is not
“frivolous, unreasonable or groundless.”
The uncontested facts show that there was never any depn-
vation of religious constitutional nghts by the defendants. The
sole cause of there being any less opportunity to participate in
religious services than they might have enjoyed otherwise was
the fact of incarceration and the lack of resources of the Cath-
olic Church and Catholic Chanties.
A-19
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A-20
EXHIBIT
B
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
.
Jack W. Frienp; MICHAEL
WeETHERN; JEFFREY D. Gray,
Plaintiffs-Appellants, No. 89-16703
Vv D.C. No.
- CV-87-0161-MHP
RONALD KOLODZIECZAK, HAROLD ORDER AND
Estes: CHUCK GREEN; R.A. FRIST: OPINION
A. THEOBALD,
Defendants-A ppellees.
J
Appeal from the United States District Court
for the Northern District of California
Marilyn H. Patel, District Judge, Presiding
Argued and Submitted October 3, 1990
San Francisco, California
Memorandum Filed October 24, 1990
Order and Opinion Filed January 3, 1991
Before: Alfred T. Goodwin, Chief Judge.
James R. Browning and Pamela Ann Rymer, Circuit Judges.
Opinion by Chief Judge Goodwin
SUMMARY
Constitutional Law
Redesignating its previous memorandum disposition as an
opinion, and affirming the district court grant of summary
B-1
15810 FRIEND V. KOLODZIECZAK
judgment, the court of appeals held that a prison regulation
prohibiting the possession of rosaries and scapulars in
inmates’ cells was constitutional.
Appellant Jack W. Friend brought a class action to chal-
lenge a prison regulation that prohibited inmates from pos-
sessing rosaries and scapulars in their cells. However, the
prison inmates were allowed to attend Roman Catholic ser-
vices and wear the scapulars and use the rosaries during the
religious services and meetings with religious visitors. The
district court found that prison officials had legitimate secur-
ity and administrative reasons for banning these items from
the inmates’ cells, and that the appellants retained the ability
to practice Roman Catholicism.
{1] Although inmates retain their first amendment right to
free exercise of religion, this right is limited by virtue of their
incarceration. A regulation that impinges on inmates’ consti-
tutional rights is valid if reasonably related to legitimate
penological interests (the Turner test). [2] Prison officials
introduced evidence that the purpose of the underlying policy
in question was to limit the means by which inmates may
obtain drugs, fabricate weapons, and otherwise disrupt jail
security. They also introduced evidence that to allow inmates
to possess rosaries and scapulars could threaten prison secur-
ity by creating an impression of favoritism toward Roman
Catholic prisoners, thereby generating resentment, envy and
intimidation. [3] The court noted that the inmates in this case
had alternative means of practicing Roman Catholicism in
addition to having periodic access to rosaries and scapulars.
[4] 7urner instructs that where, as here, accommodation of an
asserted right will have a significant ripple effect on fellow
inmates or on prison staff, courts should be particularly defer-
ential to the informed discretion of corrections officials. {5}
The inmates’ proposed alternative of inspecting rosary beads
and scapulars to determine whether they conform to pre-set
standards of construction and compositon was inadequate
B-2
FRIEND V. KOLODZIECZ4Kk 15811
because it did not satisfy the prison officials’ concern with the
impression of favoritism.
COUNSEL
Sue Ochs, San Francisco, California, for the plaintiffs- |
appellants.
Richard L. Reynolds, Oakland, California, for the
defendants-appellees.
ORDER
The request for publication is GRANTED. The memoran-
dum disposition filed in this case on October 24, 1990 is
hereby designated as an opinion.
OPINION
GOODWIN, Chief Judge:
In this class action, inmates of Alameda North County Jail
appeal the summary judgment in their section 1983 action
challenging as unconstitutional a prison regulation prohibit-
ing them from possessing rosaries and scapulars in their cells.
We affirm.
On behalf of all Roman Catholic prisoners of the North
County Jail, plaintiffs alleged in their complaint that the
defendants denied them (1) the right to possess rosaries and
scapulars in their cells, and (2) the opportunity to attend
Roman Catholic services and to participate in religious sacra-
ments performed by a Roman Catholic priest. They sought
declaratory and injunctive relief and damages.
B-3
A
ae
15812 FRIEND V. KOLODZIECZAK
The defendants’ answer generally denied that they had
refused plaintiffs access to Roman Catholic services and sac-
raments, but admitted that the plaintiffs were not permitted
lo possess rosaries and scapulars in their cells.
The plaintiffs were prohibited from keeping rosaries and
scapulars in their cells pursuant to a jail policy limiting items
that inmates may have in their cells to items supplied by the
jail or miscellaneous small items approved by a deputy at the
jail. All other items are considered contraband.
Prior to the district court’s ruling on cross motions for sum-
mary judgment. the parties agreed that the only remaining
issue was whether the defendants could bar the plaintiffs from
possessing rosaries and scapulars in their cells. The defen-
dants’ alleged failure to grant the plaintiffs access to Roman
Catholic services and sacraments was no longer in issue,
because the defendants scheduled a regular time and location
for Roman Catholic services, promulgated rules allowing
inmates an opportunity to participate in the Roman Catholic
sacraments of confession and communion, and established a
policy allowing inmates to use rosaries and wear scapulars |
during religious services and meetings with religious visitors.
The district court found that the defendants had Iegitimate
security and administrative reasons for banning rosaries and
scapulars, and that the plaintiffs retained the ability to prac-
tice Roman Catholicism.
{1] Inmates retain their First Amendment right to free exer-
cise of religion: however, this right is limited by virtue of their
incarceration. O'Lone v. Shabazz, 482 U.S. 342, 348 (1987).
Prison regulations are examined under a reasonableness stan-
dard that is “less restrictive than that ordinarily applied to
alleged infringements of fundamental constitutional rights.”
Id at 349. “[W)hen a prison regulation impinges on inmates’
constitutional rights. the regulation is valid if it is reasonably
related to legitimate penological interests.” Turner v. Safley,
B-4
FRIEND V. KOLODZIECZ4K 15813
482 U.S. 78, 89 (1987). In determining whether the regulation
is “reasonably related to legitimate penological interests,”
four factors should be considered (“the Turner test”):
(1) whether the regulation has a logical connection
to the legitimate government interests invoked
to justify it;
(2) whether alternative means of exercising the
right on which the regulation impinges remain
open to prison inmates;
(3) the impact that accommodation of the asserted
right will have on guards, other inmates, and
prison resources; and
(4) the absence of ready alternatives that fully
accommodate the prisoner's rights at de
minimis cost to valid penological interests.
Friedman v. Arizona, Nos. 89-15671, 89-15696, 89-16720.
slip op. 12121, 12130 (9th Cir. Sept. 27, 1990), citing Harper
v. Wallingford, 877 F.2d 728, 732 (9th Cir. 1989)(emphasis in
original); see also Turner, 482 U.S. at 89-90. All four factors
weigh in favor of the regulation.
(1) Logical Connection to a Legitimate Penological Interest
{2] The plaintiffs introduced evidence that the purpose of
the underlying policy prohibiting inmates from possessing
items of personal property not supplied by the jail is to limit
the means by which inmates may obtain drugs, fabricate
weapons and otherwise disrupt jail security. The defendants
also introduced evidence that allowing plaintiffs to possess
rosaries and scapulars could threaten jail security by creating
an impression of favoritism toward Roman Catholic prison-
ers, thereby generating resentment, envy and intimidation.
These are legitimate penological interests. See Sianding Deer
B-5
ee
15814 FRIEND V. KOLODZIECZAK
v. Carlson, 831 F.2d 1525, 1529 (9th Cir. 1987)(upholding a
prison regulation banning the wearing of headgear in the
prison dining room against a free exercise challenge by Native
Americans in part on the ground that “special arrangements
for one group could create an appearance of favoritism that
could generate resentment and unrest.”)
(2) Aliernative to Exercise Right
[3] Here. the plaintiffs nave alternative means of practicing
Roman Catholicism in addition to having periodic access to
rosaries and scapulurs. The parties do not dispute that
Roman Catholic inmates may: (1) attend Roman Catholic
services weekly; (2) use rosary beads and scapulars during
these religious services: (3) receive sacraments of the Roman
Catholic church such as confession and communion: (4)
receive visits from religious workers; (5) say the rosary with
the aid of rosary pamphlets, which they are permitted to have
in their cells.
(3) Impact of Accommodation
{4} The defendants introduced evidence that allowing
plaintiffs to possess rosary beads and scapulars would create
an impression of favoritism to Catholics and would lead to
inmate requests for a variety of personal items on religious
grounds. Turner instructs that where, as_ here,
“accommodation of an asserted right will have a significant
‘ripple effect’ on fellow inmates or on prison staff, courts
should be particularly deferential to the informed discretion
of corrections officials.” Turner, 482 U.S. at 90.
(4) Ready Alternatives
(5] The plaintiffs’: proposed alternative — requiring prison
officials to set up a system for inspecting rosary beads and
scapulars to determine whether they conform to pre-set stan-
dards of construction and composition — is inadequate
B-6
FRIEND V. KOLODZIECZAK 15815
because it does not satisfy prison officials’ concerns that
allowing rosary beads and scapulars would create an impres-
sion of favoritism toward Roman Catholics and would lead to
endless inmate requests for nonapproved personal items on
religious grounds. Cf Standing Deer, 831 F.2d at 1529 (re-
jecting Native American inmates’ proposal that prison off-
cials inspect religious headgear as alternative to ban on
headgear on the ground that it did not answer prison officials”
concern that allowing the headgear could create an appear-
ance of favoritism and gencrate unrest).
Accordingly. we conclude that the prison regulation satis-
hes the Turner test and affirm the summary judgment.’
AFFIRMED
‘We need not decide whether Employment Div., Dept. of Human
Resources v. Smith, — U.S. —, 110 S.Ct. 1595 (1990), lessens the govern-
ment'’s burden under 7urner, because appellants fail the Turner test
B-7
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B-8
EXHIBIT
C
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
JACK WAYNE FRIEND, et al.,
NO. C-87-0161 MHP
Plaintiffs,
V. ORDER
RONALD KOLODZIECZAK, et al.,
Defendants.
Plaintiffs allege viotation of their constitutional nghts in connec-
tion with Alameda North County Jail authorities’ denial of religious
services and removal of religious articles under 42 U.S.C. §1983. Plain-
tiffs seek leave to proceed in forma pauperis against defendants: Ronald
Kolodzieczak, Harold Estes, Chuck Green, R.A. Frist, and A. Theobald.
This court, in its discretion, grants plaintiffs leave to proceed in forma
pauperis. 28 U.S.C. §1915.
For the reasons set forth below, plaintiffs have stated a cognizable
claim against the defendants. Therefore, this court orders that all named
defendants be served.
DISCUSSION
To State a cognizable claim under section 1983, plaintiffs must
allege: (1) defendants acted under color of law and (2) defendants’ action
deprived plaintiffs of a right, privilege, or immunity secured by the Consti-
tution. Baker vy, McCollan, 443 U.S. 137, 140 (1979). In accordance with
section 1983, plaintiffs have properly sued state actors and alleged four-
teenth and first amendment violations.
I. intiffs Have Fai Vi
Due Process only requires that a post-deprivation remedy be available to a
prisoner who is negligently deprived of his or her property. See Parratt v,
Taylor, 451 U.S. 527, 543 (1981). In Parvatt, the prisoner was negligently
deprived of his hobby kit. Despite the prisoner’s deprivation of property,
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the Supreme Court held that the prisoner had not established a violation of
his fourteenth amendment rights. Jd. at 537. Plaintiffs claim that while
incarcerated at the Alameda North County Jail, Jeff Gray’s rosary beads
were confiscated. Plaintiffs allege that all the named defendants denied
plaintiffs’ requests to return the rosary beads. Since plaintiffs allege that
the rosary beads were intentionally taken in an effort to deprive plaintiffs
their Opportunity to practice their religion, Hudson vy. Palmer, 468 U.S.
517, 533 (1984) instead of Parratt is controlling. Under Hudson, a prisoner
does not have a cognizable claim when the seizure is “random and unau-
thorized” and a post deprivation remedy is available. In Hudson, the Court
explains that a prisoner has a cognizable claim only when the seizure is the
result of an “established state procedure”. Id, at 534. Here, plaintiffs have
failed to allege that the seizure was intentional and the result of an “‘estab-
lished state procedure”, and therefore, have failed to state a violation of
their due process nights.
il. inti Vv Violati
Amendment Rights And Therefore Have Stated A
Cognizable Claim Under Section 1983.
Prisoners clearly retain protections afforded by the first amend-
ment, Pell v, Procunier, 417 U.S. 817, 822 (1974), albeit limited. The
Supreme Court recently discussed prisoners’ religious rights in O’Lone v.
Estate of Shabazz, 482 U.S. 343 , 107 S. Ct. 2400 (1987). The Coun
reiterated that the first amendment’s prohibition on the free exercise of
religion extends to prisoners. Jd, at 2404. However, the Court went on to
State that prisoners’ first amendment nights, like all constitutional nghts
possessed by prisoners, may be limited if the limitation serves “valid
penological objectives- including deterrence of crime, rehabilitation of
prisoners, and institutional security”. Jd. Accepting the plaintiffs’ allega-
tions as true, it does not appear that any of the penological objectives
mentioned above are served by confiscating plaintiff Gray’s rosary beads.
Plaintiffs also allege that prison authorities have denied them
access to religious services including confession, communion, and bible
study, and religious articles. Again accepting plaintiffs’ allegations as true,
it does not appear that any penological objectives are served by these
actions, especially in light of plaintiffs’ allegations that inmates of Protes-
tant faiths are permitted religious services. These allegations are sufficient
to state a claim.
On facts similar to these, another district court denied a motion to
dismiss because the plaintiff alleged that religious items, such as bibles,
prayer books, prayer shawl, tefillin, and yarmulke, had been seized and that
C-2
the seizure had curtailed his religious practices in violation of his first
amendment nghts. Balabin v, Scully, 606 F. Supp. 176 (S.D.N.Y.
1985)The court explained that the plaintiff's allegation, if proved, would -
warrant recovery at trial, and therefore, defendants’ motion to dismiss
should be denied. The plaintiffs in this case, like the plaintiff in Balabin,
have alleged facts sufficient to state a first amendment violation claim, and
therefore, have stated a cognizable claim under section 1983.
As all defendants are named as participating in the continued
confiscation of the rosary beads and the denial of religious services and
other religious articles, plaintiffs have stated a cognizable 1983 claim
against all named defendants. Accordingly, this court orders that (1) all
defendants be served and (2) counsel be appointed to represent plaintiffs.
IT IS SO ORDERED.
DATED: Sept. 17 1987 MARYLIN HALL PATEL
United States District Judge
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EXHIBIT
D
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
JACK WAYNE FRIEND.
NO. C-87-~0161 MHP
Plaintiff,
ORDER APPOINTING
VS.- COUNSEL
RONALD KOLODZIECZAK,
et al.,
Defendants.
Plaintiff in this prisoner section 1983 (42 U.S.C. § 1983) claim
requests and qualifies for appointment of counsel. Attorney Amitai
Schwartz has consented to accept appointment Accordingly,
IT IS ORDERED as follows:
1) Amitai Schwartz, Esq., is appointed counsel in this
action in accordance with and subject to General Order No. 25 of
this court;
2) Counsel may obtain authorization for reimbursement of out-of-
pocket expenses as needed by application to this court in letter form stating
the nature of the expenses to be incurred;
3) A-Status conference shall be held in Courtroom No. 5, 17th
floor, 450 Golden Gate Avenue, San Francisco, on April 25, 1988 at 9:30
a.m. and a joint statement on the enclosed pretrial preparation form shall be
filed by the parties on or before April 18, 1988.
DATED: FEB. 2 3, 1988 MARILYN HALL PATEL
United States District Judge
EXHIBIT
z
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
JACK WAYNE FRIEND, et al.,
Plaintiffs, NO. C-87-0161 MHP
VS.-
RONALD KOLODZIECZAK, et al.,
Defendants. MEMORANDUM AND ORDER
Plaintiffs Jack Wayne Friend, Jeffery Dee Gray and Michael
Wether filed this action in proper seeking declaratory and injunctive relief
as well as compensatory damages under 421 U.S.C. §1983, alleging
violation of their first amendment rights to the free exercise of religion. By
order filed September 17, 1987, this coun granted plaintiffs leave to
proceed in forma pauperis, found that the complaint stated cognizable
claims, ordered that the defendants be served and ordered that counsel be
appointed for plaintiffs. By order filed February 23, 1988 the court
appointed counsel pursuant to General Order No. 25 of this court. The
case is now before the court on plaintiffs’ motion to file a first amended
complaint and motion to certify the action as a class action. Having
considered the memoranda of the parties and their arguments at hearing,
for the following reasons, the court grants the motion to certify the class
and grants leave to file an amended complaint
A ROUN
Jack Wayne Friend is a pre-trial detainee in the Alameda North
County Jail (“the Jail’’); Jeffery Dee Gray is incarcerated -in the Jail as a
prisoner of the County of Alameda; and Michael Wethern was incarcerated
in the Jail as a prisoner of the County of Alameda but is now incarcerated
at San Quentin. All three plaintiffs practice Catholicism and all three were
deprived of their rosaries and scapulars according to an official policy of
the Jail that forbids prisoners to have such items in their possession. A
rosary is a string of beads used for counting a series of prayers. A scapular
is a religious garment wom over the shou!ders made of two pieces of cloth
joined by a cloth string.
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Plaintiffs also allege that Jail officials repeatedly denied their
requests to attend a mass conducted by a Roman Catholic priest or to
participate in the sacraments of the Catholic church, such as confession and
communion. No Roman Catholic services have been held in the Jail since
October 1984. Plaintiffs allege that the only religious services regularly
made available to inmates by Jail officials are those conducted or overseen
by Follow Up Ministries, a Protestant fundamentalist group which neither
adheres to nor permits the teachings of Roman Catholicism.
On September 17, 1987, this court ordered that the defendants be
served and respond and that counsel for plaintiffs be appointed. The
defendants answered on October 23, 1987. The answer admitted that
inmates of the Jail are not permitted to possess rosary beads or to wear
scapulars. Defendants denied that Roman Catholic services are not avail-
able to inmates of the Jail
Counsel was appointed for plaintiffs by order of February 23,
1988. Plaintiffs’ counsel filed these motions on Apmil 18, 1988.
T ] T
I. Motion to Certify the Action as a Class Action
Plaintiff Jack Wayne Friend moves the court to certify this action
as a Class action pursuant to Federal Rule of Civil Procedure 23(b)(2) or,
alternatively, under Rule 23(b)(1)(A). The class he seeks to represent
consists of “all Roman Catholic inmates who are now or will be incarcer-
ated in the Alameda North County Jail.” Proposed first amended complaint
{hereinafter ““complaint’’] at para. 13. Defendants oppose class certification
on the grounds that the requirements of Rule 23(a) have not been met.
A motion for class certification must first meet the requirements of
Rule 23(a). National n lation iv v, Walters, 111
F.R.D. 595, 598 (N.D. Cal. 1986). Subsection (a) provides four prerequi-
sites for a class action. See Fed. R. Civ. P. 23(a). The court must determine
that the class is so numerous as to make joinder of all parties impracticable;
that there are common questions of law or fact; that the claims or defenses
of the class representative are typical of the class; and that the class repre-
sentative will fairly and adequately protect the interests of the class. See id.
To satisfy the numerosity requirement of Rule 23(a), the exact
number of class members need not be known, so long as the evidence
indicates that the number is large enough to make joinder of all parties
impracticable. NARS, 111 F.R.D. at 598-99. Plaintiffs have demonstrated
that the numerosity requirement is met. First, relying on an estimate by the
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7
j
Jail’s former chaplain, plaintiffs estimate that Roman Catholic inmates at
the Jail number about 80 at any time. Declaration of Sue Ochs at para. 4.
This number is sufficiently large to meet the numerosity requirement. See
Perez-Funez vy, District Director, INS, 611 F. Supp. 990, 995 (C.D. Cal.
1984) (there is no fixed number establishing a lower threshold for class
certification) Second, when evaluating the practicability of joinder, it is
appropriate to consider not only the nature of the action and the relief
sought, but also the inability of the members of the class to institute
individual suits, which weighs against the possibility of joinder and in
favor of class certification. NARS, 111 F.R.D. at 599. Where, as here, the
proposcd class includes unnamed and unknown future members and by its
nature its population is a changing one, joinder is patently impracticable
and the numerosity requirement is met regardless of class size. See id.
Further, the action is a constitutional challenge that seeks declaratory and
injunctive relief. Such actions have been recognized by this court to be
particularly appropriate for class action treatment. Jd, at 599-600.
Defendants argue that it is feasible and preferable to join as
plaintiffs ‘‘all inmates who may voice similar concems as to their indi-
vidual ability to worship being affected by policies and regulations which
address overall jail security/safety.” Defendants’ Opposition at 6. Recon-
Stituting the issues as defendants would like, however, does not change the
nature of the action or make joinder more practicable. Neither does this
argument address the concems of the numerosity requirement as set out in
the case law. Indeed, defendants fail to cite a single case supporting their
theory of numerosity. Accordingly, the court finds that the numerosity
requirement has been met.
By admitting that no inmates are permitted to possess rosaries or to
wear scapulars, defendants as much as concede that there are questions of
law and of fact common to all members of the class. The common ques-
tion of law is whether the policy of forbidding the possession of these
religious articles and denying scheduled access to the celebration of mass
and to the sacraments is constitutional. Defendants’ principal objection
seems to be that the Jail is according all inmates equal protection—that is,
that no inmates are permitted to have such articles. This argument, how-
ever, goes to the ments of the case rather than the certification of the class.
The issue here is not whether the Jail’s policy is unconstitutional, but
whether this issue is common to all members of the proposed class. The
court concludes that it is. All inmates of the Jail, present and future, who
are adherents of the Roman Catholic faith and wish to observe their
religion while incarcerated are affected by the policy, which may prove to
violate the free exercise clause of the Constitution.
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The claims of plaintiff Friend, who will represent the class, are
also typical of those of the class. Defendants contend to the contrary on the
grounds that religious worship is a highly personal and individual pursuit
which is incapable of proper class representation. The implication seems to
be that Friend’s style of worship is anomalous and that relief would force
all Roman Catholic inmates to practice according to his style. The claims
in this case, however, are not peculiar to him. Friend claims the right to
have the opportunity to say prayers using a rosary and wearing a scapular
and to take part in mass and holy sacraments. These are commonly prac-
ticed methods of worship in the Catholic faith. Moreover, if this argument
were permitted to prevail, it would eviscerate the class action as a mecha-
nism for redressing violations of constitutional nights. International Mold-
ers & Allied Workers v, Nelson, 102 F.R.D. 457, 462 (N.D. Cal. 1983).
The argument that Friend cannot know if other inmates have suffered from
the Jail’s policies begs the question. Plaintiffs have alleged that those
inmates who wish to practice Roman Catholicism have been prevented In
every meaningful way from doing so. Further, the argument that inmates
have different secunty statuses goes to the question of the scope of appro-
priate relief, not to the availability of relief. In sum, defendants have
advanced no argument which weighs against a finding that Friend’s claims
are typical of all those inmates who might wish to practice Roman Catholi-
cism.
Plaintiffs wiil fairly and adequately represent the class. This court
appointed plaintiffs’ attomey and knows him to be experienced and skilled
in this type of litigation. Defendants have failed to point out any conflicts
or the potential for conflicts between plaintiff Friend and the class he seeks
to represent. Accordingly, the requirements of Rule 23(a) have been met .
The requirements of Rule 23(b)(1) and (b)(2) are also met. Be-
cause the focus of the action is on the issue of constitutionality and because
injunctive and declaratory relief are sought, certification pursuant to
subsection (b)(2) is more appropriate. Accordingly, a class of all Roman
Catholic inmates who are now or who will be incarcerated in the Alameda
North County Jail is certified to proceed pursuant to Rule 23(b)(2) on the
claims for declaratory and injunctive relief. If this certification proves to
be too broad, the court may later redefine or narrow the class. The claim
for compensatory damages will be tried individually because it is not
brought by Friend on behalf of the class.
II. Motion to File Amended Complaint
Defendants do not seriously oppose the motion for leave to file the
first amended complaint. Their opposition is limited to the ments of the
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case and the advisability of class action certification. No prejudice to the
defendants is alleged. Moreover, this is the first complaint submitted in this
case by an attomey. The first amended complaint alleges additional facts,
adds new claims for relief and adds as defendants the County of Alameda
and those officials who are responsible for promulgating the challenged
policy.
In view of the early stage of the proceedings and the fact that
defendants have failed to bring to the court’s attention any prejudice that
might result, the court exercises its discretion to permit the filing of the
proposed first amended complaint. See Fed. R. Civ. P. 15(c); Ashelman y,
Pope, 793 F.2d 1072, 1078 (9th Cir. 1986). Defendants have thirty (30)
days from the date of the hearing, that is until June 15, 1988, to file and
serve an answer to the amended complaint.
CONCLUSION
For the foregoing reasons, the motion to certify a class and the
mouon for leave to file the first amended complaint are granted:
IT IS SO ORDERED
Dated: JUNE 3 0 ,1988
MARILYN HALL PATEL
United States Distnct Judge
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EXHIBIT
4
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
JACK WAYNE FRIEND, et al.,
Plaintiffs NO. C 87-0161 MHP
“Ve.”
RONALD KOLODZIECZAK. et al.,
MEMORANDUM AND ORDER
Defendants
Plaintiffs, a class of all Roman Catholic inmates at the Alameda
North County Jail, brought this action under 42 U.S.C. § 1983, seeking
damages and injunctive relief for alleged violations of their First Amend-
ment nght to the free exercise of religion. At hearings on October 24, 1988
and March 13, 1989, the parties agreed that the sole remaining issue in the
case is whether plaintiffs have a constitutional night to possess religious
articles in their cells at all times. Having considered the arguments of the
parties, the court grants defendants’ motion for summary judgment on this
issue and denies plaintiffs’ motion. Upon defendants* submission of a final
written statement detailing the jail policy on religious exercise, the court
will dismiss the action.
ACKGROUND
At the time this suit was filed, Jack Wayne Friend was a pre-trial
detainee in the Alameda North County Jail (“the Jail’); Michael Wethem
was incarcerated in the Jail as a prisoner of the County of Alameda but is
now incarcerated at San Quentin; and Jeffery Dee Gray remains incarcer-
ated in the Jail as a prisoner of the County of Alameda. All three plaintiffs
practice Catholicism and all three were deprived of their rosaries and
scapulars according to an official policy of the Jail that forbids prisoners to
have such items in their possession. A rosary is a string of beads used for
counting a series of prayers. A scapular is a religious garment wom over
the shoulders made of two pieces of cloth joined by a cloth string.
In the complaint, plaintiffs also alleged that Jail officials repeatedly
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denied their requests to attend a mass conducted by a Roman Catholic
priest or to participate in the sacraments of the Catholic church, such as
confession and communion. Plaintiffs alleged that the only religious
services regularly made available to inmates by Jail officials were those
conducted or overseen by Follow Up Ministries, a Protestant fundamental-
ist group which neither adheres to nor permits the teachings of Roman
Catholicism.
At hearings on October 24, 1988 and March 13, 1989, the parties
indicated to the court that all issues regarding religious access for inmates
at the jail had been resolved, except the question of the possession of
rosary beads and scapulars at all times by inmates in their cells. Defendants
represented to the court that they were willing to allow inmates to use the
religious articles under the supervision of visiting priests or lay workers,
but that secunty and administrative concems would not allow for the
permanent possession of rosary beads and scapulars by inmates. On April
3, 1989, Richard L. Reynolds, counsel for defendants, wrote the court that
an impasse on the rosary bead and scapular issue had been reached, and
requested that the court adjudicate the pending cross-motions for summary
judgment.
LEGAL STANDARD
Under Federal Rule of Civil Procedure 56, summary judgment
shall be granted ‘against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at tnal . . . since a complete
failure of proof concerning an essential element of the non moving party's
case necessarily renders ali other facts immaterial.”’ Celotex Corp, v,
Catrett, 477 U.S. 317, 322-23 (1986), on remand, 826 F.2d 33 (D.C. Cir.
1987), cer. denied, U.S. , 108 S.Ct. 1028 (1988). See also T.W., Elec.
Serv. v. Pacific Elec, Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987)
(If the moving party meets its initial burden of demonstrating the absence
of any genuine issue of material fact, the non moving party may not rely on
the pleadings but must present specific facts creating a genuine issue of
material fact); Anderson v, Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)
(a dispute about a material fact is genuine “‘if the evidence is such that a
reasonable jury could retum a verdict for the non moving party.”).
DISCUSSION
Prison inmates are protected by the First Amendment's directive
that no law shall prohibit the free exercise of religion. O’Lone y, Estate of
Shabazz, 482 U.S. 342, 348 (1987)(citing Cruz v, Beto, 405 U.S. 319
F-2
(1972)(per curiam)). However, not all prison regulations which infringe on
constitutional rights are invalid. O’Lone, 482 U.S. at 348. Instead, “prison
regulations alleged to infringe constitutional rights are judged under a
‘reasonableness’ test less restrictive than that ordinarily applied to alleged
infringements of fundamental constitutional rights.” Id, at 349- Under this
standard, “the regulation is valid if it is reasonably related to legitimate
penological interests.”’ Tumer y, Safley, 482 U.S. 78, 89 (1987).
In Tumer, the Court enunciated a four-part test for evaluating
regulations burdening prisoners’ First Amendment nights. First, a regula-
tion must have a logical connection to legitimate governmental interests
invoked to justify it. 482 U.S. at 89. Second, the reviewing court must
examine “whether there are alternative means of exercising the nght that
remain open to prison inmates.” Jd, at 90. The third consideration is “the
impact accommodation of the asserted constitutional right will have on
guards and other inmates, and on the allocation of prison resources gener-
ally.” Id, Finally, “the absence of ready alternatives is evidence of the
reasonableness of a prison regulation.” Jd.
In QO’Lone, the Coun applied Tumer’s test to a situation similar in
some respects to that of the case at bar. O’Lone, involved the claims of
Muslim prisoners who were prevented by a prison regulation from partici-
pating in Jumu’ah, a weekly religious service commanded by the Koran.
The Court held that, despite “the central importance of Jumu’ah,” 482 U.S.
at 351, the regulation was not unconstitutional. In so holding, the Court
stressed the deference granted the professional judgment of prison adminis-
trators in n-atters of security. Jd, at 349. The Coun specifically rejected the
Third Circuit’s approach, which had required that prison administrators
prove “that no reasonable method exists by which [prisoners’] religious
nghts can be accommodated without creating bona fide security problems.”
Id, at 347 (quoting Shabazz v, O’Lone, 782 F.2d 416, 420 (3d Cir. 1986)).
The court has found only one case applying the Tyumer analysis to
a Situation involving inmates desiring to possess religious articles.' In
Higgins v, Burroughs, 1988 U.S. Dist. LEXIS 2885 (E.D. Pa. 1988), a
regulation banning the carrying of rosary beads by inmates in the prison
visiting room was upheld by a Pennsylvania district court. The administra-
tion defendants in that case presented affidavits detailing their belief that
rosary beads could be reinforced with wire or other matenials, rendering
them potentially dangerous weapons 1988 U.S. Dist. LEXIS at 12. No
evidence that such a use of rosary beads had ever occurred was presented.
Defendants also presented affidavits supporting their view that the beads
could be used to conceal contraband, id, at 9-10, and that inspecting the
beads would be administratively burdensome. Id, at 13-14.
The court upheld the regulation, finding defendants’ statements of
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|
the dangers of rosary beads “‘unrefuted.”” Jd, at 25. The court also noted
that the plaintiff retained alternative means of exercising his religious
beliefs, including participating in Mass, using the beads at other times,
possessing a Catholic missal and consulting with chaplains. Jd, at 16-17.
The court now tums to the application of the Tumer factors to the
case at bar. ?
L Connection Between the Governmental Interest
and the Rule
Defendants’ have stated two reasons for banning the full-time
possession of rosary beads and scapulars by inmates at the jail. First, they
state a concem that the articles could be used as weapons. Second, they
allege that increasing the number of items prisoners are allowed to have in
their possession would unduly burcen the prison administrators, since
maintaining a very restricted list of permitted items fosters institutional
control. Defendants also make a “floodgates” argument, claiming that if
Catholic inmates are allowed rosaries and scapulars, other inmates of other
faiths will require other religious articles and substantial administrative
resources will be required to handle such other requests and monitor the
expanded list of permissible possessions.
Defendants have introduced no evidence that rosary beads or
scapulars have ever been used as weapons. Instead, they rely on the
statements of jail administrators speaking generally from their experience
and specifically from their knowledge of the named plaintiffs. See, e.g..
Shores Dec. at 1-3; Hickerson Dep. at 132, 143. While the court would
prefer to see the kind of detailed showing the authorities made in Higgins.
1988 U.S. Dist. LEXIS at 8-10, under the Ninth Circuit's interpretation of
the first Tumer factor in Standing Deer v, Carlson, 831 F.2d 1525 (9th Cir.
1987), the court may “not require that prison officials demonstrate that the
prisoners’ religious practices are causally related to existing institutional
problems.” 831 F.2d at 1528. The plaintiffs in Standing Deer, like plaintiffs
here, argued that the prison’s mere statement that the proposed accommo-
dation of inmate religious needs (the wearing of Indian headbands) would
Cause security and safety problems was insufficient to satisfy the first
prong of the Tumer test. 831 F.2d at 1528. The Ninth Circuit disagreed,
noting the court’s duty to defer to “the ability of corrections officials ‘to
anticipate security problems and to adopt innovative solutions’ to those
problems.” [d,, quoting Tumer, 482 U.S. at 349. Under Standing Deer and
Tumer, therefore, the court is unable to find that the ban on the possession
of religious articles is not logically connected to legitimate penological
needs. see also McCabe v, Arave, 827 F.2d 634, 637 (9th Cir. 1987) (ban
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on inmate group worship not unconstitutional under Tymer and O’Lone).
In Fromer yv. Scully, 874 F.2d 69, 74 (2d Cir. 1989) the Coun of Appeals
reversed a judgment in favor of an Orthodox Jewish inmate seeking to
invalidate a pnson ban on beards longer than one inch. The court found
that under Tumer and O’Lone “there was no burden on [defendants] to
persuade the district court that its concerns were justifiable. Rather, the
burden was on the plaintiff to show that these concerns were irrational.” Jd,
2. Availability of Al ve M ’ Religious Exerci
Altemative means of practicing Catholicism clearly remain open to
the plaintiff class, some in direct response to this action. Mass is now held
regularly at the jail. Transcript of October 24, 1988 Hearing (“Tr.”) at 2-3.
A separate room is available for that purpose. Id, at 3-4. A relatively
private place for the sacrament of confession has been made available. Id.
at 9-10. Inmates may meet in private with religious visitors. Jd, at 6.
Inmates may possess rosary beads and scapuiars during mass, if the items
are collected by the religious visitors after the service. Shores Dec. at 143.
Defendants introduced evidence to show that neither rosary beads nor
Scapulars are central to the practice of Catholicism. Dec. of Father Wall at
2. Itis entirely possible to pray the rosary without having rosary beads. Id.
The court is unable to conclude that plaintiffs’ practice of their religion is
substantially infringed by the denial of rosary beads or scapulars. 3
3. Impact of Accommodating the Right
Defendants allege that accommodating plaintiffs’ request for
religious articles would have a substantial impact on pnson personnel and
prison resources. Defendants claim in particular that allowing Catholic
inmates to possess these items would lead to a virtually endless chain of
requests from other inmates of other faiths, Opp. to Plaintiffs’ Motion at
15, or would create an impression of favoritism of Catholics. Defendants
also warm of the administrative costs of requiring them to “account for,
measure, weigh, assay, restrict .. .and police in general” additional items
which might be added to the approved list of prisoner possessions. Opp. at
12 n.2.
The fear that perceived “special arrangements for one group would
create problems” was accepted as a legitimate concem in evaluating the
third Tumer factor in G Lone, 482 U.S. at 353. See also Standing Deer,
831 F.2d at 1529 (same). Administrative costs of inspection, as well, were
considered in Standing Deer, 831 F.2d at 1529. Because it must defer to the
professional judgment of prison administrators, O’Lone, 482 U.S. at 349,
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eT
,
this court must accept the estimation of Alameda County officials regard-
ing the administrative and other impact of allowing inmates to possess
religious articles. The court therefore finds that, if defendants’ professional
judgment is accepted, accommodating plaintiffs’ religious needs would
have a cognizable negative impact on prison resources and administration.
4. Presence or Absence of Ready Aliematives
The final aspect of the Tymer analysis requires that the court
examine whether altematives to the challenged rule exist. “[T]he absence
of ready alternatives is evidence of the reasonableness of a prison regula-
tion.” Tumer, 482 U.S. at 90. If obvious alternatives exist, they “may be
evidence that the regulation is not reasonable, but is an ‘exaggerated
response’ to prison concems.” Id. -
In the case at bar, plaintiffs suggested at the hearing that an alter-
native exists to the current total ban on inmate possession of religious
articles. They suggested a modified rule allowing articles of certain speci-
fied dimensions and composition to be sent from religious organizations to
inmates, much as books are now sent. Defendants, on the other. hand,
contend that the present policy of allowing inmates to use religious articles
at certain times is itself a modification of the total ban existing at the outset
of the suit. They object to the increased administrative tasks and costs
which would be involved in establishing standards for acceptable religious
items, as well as monitoring and inspecting them. The court notes that
defendants’ argument is flawed. Although any movement away from a
total ban represents some accommodation, it may not, however, be suffi-
cient to meet the Tymer test.
Nevertheless, under Tumer, 482 U.S. at 90, this court may not
force defendants to adopt the least restrictive rule. “[P]rison officials do not
have to set up and then shoot down every conceivable altemative method
of accommodating the claimant’s constitutional complaint.” Jd, at 90-91.
In this case, the court notes that not only has accommodation been made
for regular services, but also the religious articles in question may be
possessed by inmates during the services. Accordingly, the court finds that
the accommodation made here satisfies Tymer and even though less
restrictive rules may be feasible, prison officials are not required to adopt
such a policy.
CONCLUSION
Under the Supreme Court’s test as established in Tumer y, Safley.
482 U.S. 78, 89 (1987), the court is unable to find that the Alameda County
Jail’s failure to include rosary beads and scapulars on the list of items
F-6
inmates may possess is unconstitutional. Given the deference to adminis-
trators’ judgment required under Tymer and Standing Deer y, Carlson, 831
F.2d 1525, 1528 (9th Cir. 1987), the court must accept defendants’ repre-
sentations regarding security and administrative costs. In addition, plain-
tiffs have failed to rebut defendants’ evidence that both rosary beads and
scapulars are merely optional items of Catholic faith. Plaintiffs retain the
ability to practice Catholicism by attending Mass, praying the rosary with
the aid of a rosary pamphlet, meeting with religious workers, receiving
sacraments, and using rosary beads and scapulars during visits by religious
workers.
The court grants summary judgment for defendants on the issue of
religious articles and denies plaintiffs’ motion for summary judgment.
Defendants are to submit to the court within thirty (30) days of this order a
wnitten copy of the policy of the Alameda County Jail regarding the
accommodation of the religious needs of inmates.
IT IS SO ORDERED
Dated: Sept. 29,1989 Manilyn Hall Patel
United States District Court
F-7
ENDNOTES
1. In 1969, the Eastem District of Pennsylvania held that the
prohibition on the possession or wearing of religious medallions by Black
Muslim inmates did not violate the First Amendment. Knuckles y, Prasse.
302 F. Supp. 1036, 1059 (E.D. Pa. 1969), aff'd, 435 F.2d 1255 (3d Cir.
1970), cert. denied. 403 U.S. 936 (1971). That case, however, which arose
well before Tumer, O’Lone and their Supreme Court predecessors, is of
virtually no precedential value in this district in 1989.
2. In another opinion, also from the Eastem District of Pennsylva-
nia, the coun dismissed (with leave to amend) a complaint alleging viola-
tion of an inmate's First Amendment religious nghts in a prison’s confisca-
tion of unspecified religious articles because the complaint failed to spell
out the particular prohibited articles. Young y, Shuler, 1988 U.S. Dist.
LEXIS 299 (E.D. Pa. 1988). The court observed that “[cJonfiscation by
prison officials of certain religious articles might be reasonably related to
the paramount penological objective of maintaining security. .. . Rosary
beads, for example, can arguably be used to conceal contraband or to injure
another inmate and, therefore, be subject to confiscation.”” 1988 U.S. Dist
LEXIS at 2.
The court notes that there is only one reported post-Q'’Lone case in
the Ninth Circuit involving inmate possession of religious articles. In
Sample y, Borg, Judge Karlton of the Eastem District of Califomia struck
down a ban on the possession of ceremonial tobacco ties by Native Ameni-
can inmates, rejecting defendants’ arguments that allowing possession of
the ties would cause security and administrative problems. The court stated
that
application of the four-fold test [the Tymer test] demonstrates the
impropriety of a total ban [on possession of the ties]. The question of
the burden on prison personnel which may be attendant upon requiring
that the sacks be opened for inspection may be made de minimis by
limiting the number of ties which may be possessed. In like manner,
limiting the tensile strength of the string which may be used minimizes
the danger of the tie being used as a weapon.
675 F. Supp. 574, 581 (E.D. Cal. 1987), vacated as moot, 870 F.2d 563
(9th Cir. 1989).
Because Sample y,. Borg was mooted when the plaintiffs were
transferred to another facility, however, the case was vacated and accord-
F-8
a |
ingly has no precedential value
3. The court notes that even were the possession of rosary beads or
scapulars central to the practice of Catholicism, their denial would not
necessarily rise to the level of a constitutional deprivation. In O’Lone, the
Supreme Court admitted that attendance at the weekly Jumu’ah service was
“central’’ to the iuslim faith, 482 U.S. at 351, but nonetheless upheld the
prison regulation which prevented the plaintiffs from participating in the
Service, noting that ‘“‘respondents retain the ability to participate in other
Muslim religicus ceremonies. The record establishes that respondents are
not deprived of al] forms of religious exercise ... .”" Jd, at 352(emphasis
added)
F.9
EXHIBIT
G
The North County Jail Chaplain, in conjunction with the 1.S.O. will sched-
ule regular religious services for each level. Religious volunteers will go
through security screening and training through the I.S.O. (See Section 3).
All materials brought into the jail for detainee’s religious edification will
be delivered to the I.S.O. and distributed by the 1.S.O. No religious mate-
rial or any other items will be given directly to the detainees by volunteers
except that which has first gone through the I.S.O. Bibles are available in
NCJ through I.S.0. Song books will be stored on each housing level for
use during religious services. They will be distributed before each service
and collected after each use. Detainees may use Bibles distributed to NCJ
by the Gideons which are found on each Housing Level. No other items
may be brought into the service and none may be taken from the service
without prior approval and physical inspection by I.S.O.
All items approved and inspected by I.S.O. are subject to inspection by any
deputy at any time, whether those items be in the hands of detainees or
volunteers.
A schedule of regular and special religious services will be distributed to
each housing level, all command personnel, and all control centers in the
building, each Thursday prior to the week reflected on the schedule. All
items appearing on the calendar will have been cleared by appropriate
command personne] at least two weeks pnor to printing.
All services will be conducted in an orderly manner. No service shall be
conducted in such a manner as to disrupt the smooth operation of the jail.
Loud singing or speaking which produces an agitated atmosphere in the jail
will not be tolerated.
Floor deputies are responsible for maintaining an atmosphere conducive to
order and safety in the jail. Deputies will, therefore, warm or dismiss
programs not adhering to this mandate.
Detainees wishing to speak with the Chaplain may fill out a message
request form and send it through jail mail to the Chaplain’s office.
—_—
et
EXHIBIT
H
PURPOSE:
To insure inmates are afforded the opportunity of religious worship.
POLICY’:
Each staff member shall comply with the following order.
ORDER:
A.
OPERATIONAL ORDER NO, 1
All religious services are under the direction of staff chaplain.
North County Jail has set aside regular hours each week for
religious services.
Separate Catholic services will be allowed each Sunday between
the hours of 7:30 to 9:30 a.m. in the multipurpose room on any
floor in which any inmate(s) desiring to attend is housed, and
Monday evenings, 7:30 p.m. to 9:30 p.m. in the multipurpose
room, on the floor on which any inmate(s) desiring to attend is
housed.* ]
When an inmate noufies staff that he desires to practice his reli-
gion and requests to be administered to by his faith’s practitioner,
pursuant to North County Jail Inmate Rules and Regulations, page
1, staff shall make reasonable efforts to accommodate the request.
1. If the inmate identifies a particular practitioner, staff will
attempt to contact that practitioner.
2. If the inmate does not identify a particular practitioner, staff
will attempt to contact the religious body involved. [In the
case of Catholic inmates, staff will contact Catholic Chari-
ties, Diocese of Oakland.*]
Inmates may visit with their religious practitioner during normal
visiting hours. Except in emergency Situations, special visits
between inmates and their religious practitioner shall be permitted
when not in conflict with the facility's or the inmates’ scheduled
H-1
events.
When an inmate's religious practice calls for a private consultation
with his religious practitioner, staff shall make every reasonable
effort to make an area available for this purpose and shall use
reasonable efforts to assure the privacy of the consultation. A
private consultation” includes, but is not limited to, an inmate’s
confession to his practitioner.
Since only Catholics are involved in this litigation, only the
Catholic services are specified in Paragraphs C and D 2 of this
Operational Order No. 1.
Because of the threat to security, inmates are not allowed to have
any religious items of their faith in their possession except as
follows:
1. Religious items allowed only during religious services are
those which present only a moderate security threat.
Examples include a rosary or a scapular. In this Paragraph
G, “religious services” means specials visits, private visits,
Monday p.m. services and Sunday a.m. services.
tN
Religious items not allowed in an inmate's possession
even during religious services are items which present a
serious threat to security. Examples of a serious threat to
security include, but are not limited to, heavy metal items
and sharp pointed items capable of being used as weapons,
and items with a sharp edge capable of being used as
weapons.
3. The religious practitioners holding the service are respon-
sible for bringing in the desired religious item(s) and collect-
ing and removing all of the same after the service .
4. Inmates are allowed to have religious literature upon their
persons and within their cells. Except for religious literature
distributed by the chaplain, the publisher-only rule applies.
All religious practitioners visiting a facility must undergo a back-
ground security check. After clearance, regularly attending reli-
gious practitioners will be issued an identification pass.
H-2
I.
All religious practitioners entering a facility are subject to a
physical search of their person and property.
The Hon. Marilyn Hall Patel, Judge
United States District Coun
Northem District
Room 18425
450 Golden Gate Avenue
San Francisco, CA 94102
Re: Jack Wayne Friend v. Ronald Kolodzieczak, et al.
No. C-87-0161 MHP
Dear Judge Patel:
Enclosed please find he wnitten policy of the North County Jail detailing
current practice and procedure as it impacts Catholic inmates pursuant to
the hearing held in this matter on Monday, October 24, 1988.
Very truly yours,
BENNETT, SAMUELSEN, REYNOLDS & ALLARD
Richard L. Reynolds
RLR:ch
Encl.
cc: Amitai Schwaniz, Esq.
EXHIBIT
I
@=e.> @ &© « de
UNITED STATES DISTRICT COURT
POR THE NORTHERN DISTRICT OF CALIFORNIA
JACK WAYNE FRIEND, et al. NO. C 87-0161 MHP
Plaintiffs, ORDER OF DISMISSAL
VS
RONALD KOLODZIECZAK, et al,
Defendants.
Pursuant to this court’s order of September 29, 1989, grant-
ing defendants’ motion for summary judgment, and denying plain-
tiffs’ motion for partial summary judgment, on the issue of whether
plaintiffs have a constitutional right to possess religious articies in
the their celis at all times,
And pursuant to defendants’ submission of the Alameda
North County Jail Policy and Procedures Manual, Section III, 5-15
“Religious Services”, revised 8/15/89, and defendants’ representa-
tion that the same 1s the policy presently in effect,
And for good cause,
IT IS HEREBY ORDERED that this action is DISMISSED.
Provided, however, that this dismissal is without prejudice to the
right of plaintiffs, or any member of the plaintiff class, to bring any
action in the future to redress any alleged violation of plaintiffs’ nght
to religious exercise (except those matters resolved by the court’s
order granting summary judgment, filed September 29, 1989),
including enforcement of Alameda North County Jail Policy and
Procedures Manual, Section III, 5-15 “Religious Services.”
IT IS FURTHER ORDERED THAT the Court shall retain
jurisdiction to determine the matter of attorneys’ fees and costs.
DATED: Nov.7, 1959
Hon. Marilyn Hall Patel
United States District Judge
EXHIBIT
J
ORDER OF DISMISSAL
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
JACK WAYNE FRIEND, et al.,
Plaintiffs, No. C-87-0161 MHP
-VB.°
RONALD KOLCDZIECZAK, et al.,
Defendants. MEMORANDUM AND ORDER
Plaintiffs, a class of all Roman Catholic inmates at Alameda North
County Jail, seek attomey’s fees under 42 U.S.C. section 1988. The parties
were previously before this court on the parties’ cross motions for sum-
mary judgment regarding plaintiffs’ action for damages and injunctive
relief for alleged violations of their First Amendment night to free exercise
of religion, brought under 42 U.S.C. section 1983. On September 29, 1989
this court entered an order granting defendants’ motion for summary
judgment on the issue of whether inmates have a constitutional nght to
possess religious articles in their cells at all times. However, the court also
required defendants to submit a written copy of the policy of the Alameda
County Jail regarding accommodation of the religious needs of inmates.
Plaintiffs’ now bring this motion for 85% of the lodestar amount as prevail-
ing parties by reason of having caused defendants to revise jail policy with
regard to a substantial part of the relief sought. Plaintiffs also seek reim-
bursement of costs and fees incurred in the filing of this motion. Having
considered the submissions of the parties, for the following reasons, the
court grants plaintiffs’ motion for partial attomey’s fees in the amount of
85% of the lodestar amount. Plaintiffs are also entitled to reimbursement of
costs and compensation for attomey’s fees for time expended in seeking
fees.
BACKGROUND
The facts of this case are treated in detail in this court’s previous
order. Briefly, plaintiffs sought the night to participate in the sacraments of
the Catholic Church and to possess rosaries and scapulars in their cells.
At hearings on October 24, 1988 and March 13, 1989, the parties
indicated to the court that all issues regarding religious access for inmates
J-1
had been resolved. Defendants represented to the court that they were
willing to allow inmates to use the religious articles under supervision, but
that security and administrative concems would not allow for the perma-
nent possession of rosary beads and scapulars by inmates.
In this court’s September 29, 1989 order, the court was unable to
find that the Alameda County Jails failure to include rosary beads and
scapulars on the list of items inmates may possess was unconstitutional, or
that plaintiffs’ ability to practice Catholicism was violated by the policy of
supervised use of scapulars and rosary beads.
In moving for partial fees as prevailing parties, plainuffs claim that
their lawsuit was the catalyst which caused defendants to revise the rel-
evant jail policies. Defendants oppose any award of fees on the grounds
that plaintiffs were not prevailing parties within the meaning of 42 U.S.C.
section 1988. Defendants argue that should the court determine that some
fees are appropnate on the basis of partial success by the plaintiffs, any
award should be substantially less than the amount that plaintiffs have
requested.
LEGAL STANDARD
A district court may authorize an award of atlomey’s fees to a
prevailing party in a civil nghts action under the Civil Rights Attorney's
Fees Awards Act of 1976, 42 U.S.C. section 1988. In the absence of
special circumstances, a prevailing party should recover reasonable
attomey’s fecs Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 (9th
Cir. 1986) (citing Hensley yv, Eckerhan, 461 U.S. 424, 429 (1983)).
If the coun determines that an applicant is a prevailing party who
should be awarded attomey’s fees under section 1988, it must next deter-
mine what fees are reasonable. In this circuit, reasonable attomey’s fees are
determined by first calculating the “lodestar.” Jordan y, Multnomah
County, 815 F.2d 1258, 1262 (9th Cir. 1987). The lodestar is found “‘by
multiplying the number of hours reasonably expended on litigation by a
reasonable hourly rate.” Chalmers, 796 F.2d at 1210; accord, Keith v.
Volpe, 833 F.2d 850, 859 (9th Cir. 1987). There is a strong presumption
that the lodestar figure represents a reasonable fee. Jordan, 815 F.2d at
1262.
In calculating the lodestar, the court must determine both a reason-
able number of hours and a reasonable hourly rate for each attomey.
Chalmers. 796 F.2d at 1210. In calculating a reasonable number of hours,
the applicant must justify his claim by submitting detailed time records.
The court may adjust these hours downward if it believes the documentta-
tion to be inadequate, if the hours were duplicative, or if the hours were
either excessive or unnecessary. Id.
J-2
Determining a reasonable hourly rate is a critical inquiry. Jordan,
815 F.2d at 1262 (citing Blum y, Stenson, 464 U.S. 886, 895 n.ll). The
court must consider several factors, including the experience, skill and
reputation of the applicant. Chalmers, 796 F.2d at 1210. The court must
look to the rate prevailing in the community for similar work performed by
attomeys of comparable skill, experience and reputation; it may not refer to
the rates actually charged to the prevailing party. Jd, at 1210-11. It is the
applicant's burden to produce evidence, other than the declarations of
interested counsel, that “the requested rates are in line with those prevailing
in the community for similar services of lawyers of reasonably comparable
skill and reputation.” Jordan, 815 F.2d at 1263.’ In addition, in figuring a
reasonable fee, the court should consider the outcome of the action,
whether a contingent fee arrangement is involved, and the novelty or
difficulty of the issues presented. Chalmers, 796 F.2d at 1211 (citing Kerr
vy. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975), cert. denied.
425 U.S. 951 (1976)); Hamner y, Rios, 769 F.2d 1404, 1407-09 (9th Cir.
1985).
DISCUSSION
I . PREVAILING PARTY
The parties dispute whether plaintiffs were prevailing parties within the
meaning of section 1988. Plaintiffs will be considered “prevailing parties”
where they succeed on “any significant issue in litigation which achieves
some of the benefit the parties sought in bringing suit.”’ Texas State Teach-
ers Ass'n v, Garland Indep. School Dist. — U.S. — , 109 S. Ct 1486, 1491
(1989)(citing Hensley y, Eckerhan, 461 U.S. 424, 433).
Plaintiffs claim to have achieved complete success on the issue of
access to separate Roman Catholic services and private visits with clergy,
and partial success on the issue of personal possession of rosary beads and
scapulars.
Defendants admit that there was a substantial period of time
preceding this litigation during which separate Roman Catholic services
were unavailable to inmates at the North County Jail. Opp. at 4. Defen-
dants’ “defense” for this constitutional oversight is that “‘any deficiency or
lack of Catholic services,”’ was due to withdrawal of such services by the
designated religious provider because of an unfilled chaplain’s position,
and by infighting between Protestant and Catholic representatives. Opp. at
3-4, 8. In other words, defendants cry, “it’s not our fault.”
Fortunately, a prevailing party analysis does not require this court
to delve into defendants’ bureaucratic morass. Aside from the fact that
plaintiffs convincingly cite from the record facts which demonstrate that
defendants’ role in denying access was not in fact passive, a determination
J-3
of whether or not defendants were at fault is not necessary. Reply at 1-3.
“The touchstone of the prevailing party inquiry must be the matenal
alteration of the legal relationship of the parties.”’ Texas State Teachers.
—U.S. at — , 109 S. Ct. at 1493 (1989).
Defendants argue that because this court made no finding of any
constitutional violation, plaintiffs’ did not prevail. Opp. at 5. This argument
is not supported by Ninth Circuit law. Plaintiffs here sought a change in
access to Roman Catholic services and sacraments at North County Jail as
well as vindication of their first amendment right of free exercise of
religion. First Amend. Compl. at 5, 8. During the course of the litigation
the parties resolved the religious access issue. Sept. 29, 1989 Order at 2-3.
Consequently, separate Catholic services are being held at North County
Jail as of October 9, 1988. MPA. at 8. “Plaintiffs need not obtain formal
relief in order to enjoy prevailing party status.” Sablan v, Department of
Fin. of N. Manana Islands, 856 F.2d 1317, 1324 (9th Cir. 1988)(quoting
Clark vy, City of Los Angeles, 803 F.2d 987, 989 (9th Cir. 1986)). A district
court may award attomey’s fees where plaintiff's suit “has prompted
defendants to take action.” Harns v, McCamhy, 790 F.2d 753, 759 (9th Cir.
1986). It is clear to this court that plaintiffs’ suit provided the impetus for
defendants to more diligently attempt to arrange for the personnel and to
coordinate the services necessary to bring North County Jail practice in
line with plaintiffs’ constitutional rights.”
Plaintiffs’ partial success on the religious access matter has materi-
ally altered the North County Jail’s policy by accommodating Catholic
inmates’ requests for participation in Roman Catholic services and sacra-
ments. Opp. at 9. Plaintiffs have thus prevailed on a significant portion of
the relief sought. This qualifies plaintiffs as ‘‘prevailing parties” with’. the
meaning of § 1988. See, Texas State Teachers, — U.S. at—, 1095S. Ct.
at 1493. Thus, the only issue remaining before the court after the October
24, 1988 and March 23, 1989 hearings was the right of plaintiffs to possess
the specific religious articles.
Plaintiffs, while acknowledging that they did not prevail on the
nght to personal, in cell possession of rosaries and scapulars, claim partial
Success in gaining the right to supervised use of such items. MPA. at 6.
Defendants contend that the night to use religious paraphemalia
during religious services pre-dated the lawsuit, and that the revised written
policy submitted to the court merely embodied pre-existing policies. Opp.
at 3. However, defendants’ manual wnitten prior to this litigation does not
specifically include the night to use rosaries and scapulars, while the
revised manual does so. Compare Brooks Dec., Ex. A-1, with Brooks Dec.,
Ex. B.
The court finds it interesting that defendants now characterize as a
J-4
“recommendation,” this court’s instruction (under the threat of court
action) to reduce to writing a Clear policy regarding possession of rosaries
and scapuiars. Nonetheless, the fact is that North County Jail now explic-
itly recognizes plaintiffs’ right to use these articles in a limited manner.
Opp. at 12. Nor does the court find credible defendants’ belated contention
that Captain Hickerson did not mean “rosaries are not permitted in the jail”
when he asserted in his sworn deposition that “rosaries are not permitted in
the jail.” Hickerson Dep. at 127-28, attached to Ochs Dec. as Ex. O; Opp.
at 9.
Defendants argue that the only real result of this litigation was that
defendants submitted to the court written policies of the North County Jail.
Defendants imply that, because plaintiffs did not sue for a written jail
policy, they did not prevail. Opp. at 5, 12. By this approach, defendants
pursue a Classic “strawman”’ argument. They set up this court’s order to
submit the wnitten policy as plaintiffs’ only possible victory, only to knock
it down as insignificant and unworthy of fees. This is clearly not the issue.
Plaintiffs prevailed on the religious access issue and partially prevailed on
the issue of prisoners’ right to use religious articles.
Having determined that piaintiffs are prevailing parties for section
1988 purposes and are thus entitled to some award of attomey’s fees, the
court now tums to a determination of the size of a reasonable fee.
11. CALCULATION OF FEE AWARD
Plaintiffs claim a lodestar amount of $85,229.50. MPA. at 13. Plaintiffs
seek 85% of the lodestar amount, for an award of $72,445.00. Id. Plain-
tiffs’ attorneys have submitted sufficiently detailed records to justify their
claim. Plaintiffs’ attorneys have also submitted the required © vidence of the
prevailing rate ‘‘in the community for similar services of lawyers of reason-
ably comparable skill and reputation.” Jordan, 815 F.2d at 1263. Mayer,
Tumer and Specter Decs.
Defendants have failed to claim that plaintiffs’ counsel expended
unreasonable time or that their records are inaccurate. Nor have defendants
submitted contradictory evidence as to prevailing rates in the community.
Defendants instead contend that the court, in determining a reasonable
award, should look to the amouni of time spent and rates charged by
defendants’ counsel. This is not the accepted practice in this circuit.
Moreover, this court has taken into consideration defendants’
vigorous resistance to plaintiffs’ claims throughout this litigation, which
made it necessary for plaintiffs’ counsel to respond in kind. Where defen-
dants have stubbornly avoided liability, the court must “take into account
the time and effort they exact from their opponents.”’ Chalmers y, City of
Los Angeles, 676 F. Supp. 1515,-1524-25 (C.D. Cal. 1987); Coreland vy,
J-5
Marshall, 641 F.2d 880, 904(D.C. Cir. 1980).
Additionally, the litigation needs of both parties here were in no
way equal; as only one example, plaintiffs’ counsel spent a significant
number of hours investigating and preparing the claims and application for
class certification before defendants were even parties to the suit. Schwarz
Dec. at 4; Ochs Dec. at 1-3. This court is satisfied that the $85,229.50
lodestar figure is reasonable.
Finally, this court must consider the overall results achieved by
plaintiffs. Hensley vy. Eckerhart, 461 U.S.at 435. The district court has wide
discretion in determining the proper fee. City of Riverside y, Rivera, 477
U.S. 561 (1986). This court finds that the issues in this action were related
by virtue of their involving questions of first amendment violations created
by the religious policies at North County Jail. Plaintiffs achieved the nght
sought to expanded access to Roman Catholic services and sacraments, and
gained explicit, wntten acknowledgment of the right to at least limited use
of rosaries and scapulars. In assessing the overall results achieved by
plaintiffs. this court finds that plaintiffs’ counsel are entitled to recover
85% of the lodestar amount, for an amount of $72,44500 plus costs of $ 6,
462.22.
Ill. REIMBURSEMENT OF COSTS
Reimbursement for fees under section 1988 may take into account
other expenses beyond the work product of the attorney. Missoun y.
Jenkins, —U.S. — , 109 S. Ct. 2463, 2470 (1989).
IV. COMPENSATION FOR FEES ON FEE MOTION
The law is clear in this circuit that plaintiffs are entided to compen-
sation for the costs of bringing a motion of this type. Clark v, City of Los
Angeles, 803 F.2d at 992; In re Nucor Energy, Inc,, 764 F.2d 655 (9th
Cir. 1985).
CONCLUSION
Plaintiffs are entitled to recover reasonable attomey’s fees and
costs incurred in connection with the original litigation and this motion for
fees. The coun finds that the hours of work claimed by plaintiffs’ counsel
are a reasonable expenditure of time and that the rate of $140 per hour for
Ms. Ochs and $235 per hour for Mr. Schwarz, for a total lodestar amount
of $85,229.50 constitutes reasonable attomey’s fees in accordance with
prevailing rates in the area. This court also finds that plaintiffs are entitled
to 85% of the lodestar amount, for an award of $72,445,00. Plaintiffs are
additionally entitled to reimbursement of $6,462.22. Furthermore, the court
finds that plaintiffs should-be awarded attomey’s fees and costs for the
J-6
expense incurred by the bringing of this motion.
IT IS HEREBY ORDERED THAT defendants pay the sum of
$72,445.00 to plaintiffs as compensation for services rendered in connec-
tion with the on ginal litigation; and IT IS FURTHER ORDERED THAT
defendants shall pay reasonable attomey’s fees and costs to plaintiffs as
compensation for the costs of pursuing this action in federal court. Plain-
tiffs have submitted the figure of $19,832.50 in connection with this
mcuon for fees. In view of the court's finding above as to the reasonable-
ness of the rate, the court will award fees at that rate. Defendants have ten
(10) days from the date of this order to submit a response solely as to the
reasonableness of the hours. If no response is filed, the total amount should
be paid within forty-five (45) days of the date of this order.
IT IS SO ORDERED.
Dated: JUN. 19 90 MARILYN HALL PATEL
United States District Judge
J-7
ENDNOTES
1. In Jordan, the Ninth Circuit declined to consider the sufficiency of the
evidence required to support a claimed fee. 815 F.2d at 1263 n.9. The coun
was inscrutable on the issue of whether a declaration stating the rate
requested was comparable to the declarant’s own rates would be sufficient.
Id.
2. Defendants, in trying to absolve themselves of ‘‘fault” for the conditions
in the institution they are responsible for running, relate the following
chronology: “Prior to the institution of this lawsuit, Captain Hickerson
advised the Catholic Charities group that their request would be considered
once anew chaplain was appointed. Afier this lawsuit was filed, anew
chaplain... was appointed.”’ (emphasis added) Defendants’ Opp. at 3.
Only then was the request for separate Roman Catholic services dealt with.
Moreover, consideration of the chronology of events is proper in assessing
the causative effects of plaintiffs’ suit. Sablan, 856 F.2d at 1326.
“(DJefendants, on the whole, are usually rather reluctant to concede that
the litigation prompted them to mend their ways.” Id. (quoting Posada
v.Lamb County, 716 F.2d 1066, 1072 (Sth Cir. 1983).
3. Plaintiffs calculate this figure based on the following formula:
Amitai Schwanz: 79.7 hours $235. per hour $18,729.50
Su Ochs 475 hours $140. per hour $66,500.00
TOTAL $85,229.50
MPA. at 13-
J-8
EXHIBIT
K
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
JACK WAYNE FRIEND, et al, NO. C-87-0161 MHP
Plaintiffs,
-VS.-
RONALD KOLODZIECZAK, et al.,
Defendants. MEMORANDUM AND ORDER
Plaintiffs, a class of all Roman Catholic inmates at Alameda North
County Jail, sought attorney’s fees under 42 U.S.C. section 1988. In its
order of June 20, 1990, this court granied plaintiffs attomeys fees and costs
incurred in connection with the originai litigation. The court also ordered
that defendants shall pay reasonable attomey’s fees and costs as compensa-
tion for the costs of pursuing the motion for attomey’s fees. Plaintiffs had
subinitted a figure of $19,832.50 (124.9 attomey hours — 24.7 hours
expended by Mr. Schwartz and the 100.2 hours expended by Ms. Ochs).
The coun granted defendants ten days to respond only as to the reasonable-
ness of the number of hours expended by plaintiffs’ counsel.
Defendants responded that the 124.9 hours spent by plaintiffs’
attomeys was unreasonable in light of the fact that defendants had only
expended 43.4 hours responding to the motion. Although the court concurs
that hours expended by Mr. Schwartz and Ms. Ochs seem immoderate, the
court is not persuaded by defendants’ argument that the motion was
“simple” and that therefore plaintiffs’ attomeys should reasonably only
lave spent 62.5 hours on it.
Accordingly, the court finds that it would have been reasonable for
Mr. Schwartz to have spent 18.5 hours and Ms. Ochs to have spent 75.2
hours. Given a billable hourly rate of $235.00 per hour for Mr. Schwartz
and a rate of $140.00 for Ms. Ochs, defendants shall pay the $72,445.00
incurred in connection with the onginal litigation and $14,875.50 for the
costs associated with this motion, the total to be paid within forty-five (45)
days of the date of this order.
IT IS SO ORDERED.
Dated: JUL. 10 1990 MARILYN HALL PATEL
United States Distnct Judge
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5
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
JACK WAYNE FRIEND, et al.,
Plaintiffs, No. C-87-0161 MHP
—VvsS.—
AMENDED
RONALD KOLODZIECZAK, etal, MEMORANDUM AND ORDER
Defendants.
Plaintiffs, a class of all Roman Catholic inmates at Alameda North
County Jail, sought attorney’s fees under 42 U.S.C. section 1988. In its
order of June 20, 1990, this court granted plaintiffs attorneys fees and costs
incurred in connection with the original litigation. The coun also ordered
that defendants shall pay reasonable attomey’s fees and costs as compensa-
tion for the costs of pursuing the motion for attomey’s fees. Plaintiffs had
submitted a figure of $19,832.50 (124.9 aitorney hours — 24.7 hours
expended by Mr. Schwartz and the 100.2 hours expended by Ms. Ochs).
The court granted defendants ten days to respond only as to the reason-
ableness of the number of hours expended by plaintiffs’ counsel.
Defendants responded that the 124.9 hours spent by plaintiffs’
attomeys was unreasonable in light of the fact that defendants had only
expended 43.4 hours responding to the motion. Although the court concurs
that hours expended by Mr. Schwartz and Ms. Ochs seem immoderate, the
court is not persuaded by defendants’ argument that the motion was
“simple” and that therefore plaintiffs’ attomeys should reasonably only
have spent 62.5 hours on it.
Accordingly, the court finds that it would have been reasonable for
Mr. Schwartz to have spent 18.5 hours and Ms. Ochs to have spent 75.2
hours. Given a billable hourly rate of $235.00 per hour for Mr. Schwartz
and a rate of $140.00 for Ms. Ochs, defendants shall pay the $72,445.00
incurred in connection with the original litigation and $14,875.50 for the
costs associated with this motion, as well as $6,462.22 as reimbursement
for out of pocket costs in the original litigation, the total to be paid within
forty-five (45) days of the date of this order.
IT IS SO ORDERED.
Dated: JUL 18 ,1990 MARILYN HALL PATELL
United States District Judge
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EXHIBIT
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DIOCESE OF OAKLAND
2900 Lakeshore Avenue, Oakland, California 94610-3697 415/893-4711
April 7, 1987
Captain Morris Hickerson
North County Jail
550 6th Street
Oakland, CA 94607
Dear Captain Hickerson:
I would like to take this opportunity to communicate to you our designation
of Mr. Jim Rodgers as detention minister of the Diocese of Oakland at the
North County Jail. I realize that Mr. Rodgers has been ministering at the
jail since the first of the year. I felt it was important to inform you in a
more formal way.
I am pleased that developments in the diocesan detention ministry program
now allows for a Catholic presence in the North County Jail, expanding
upon ministry already present in other institutions within the diocese. Mr.
Rodgers has been an employee of Catholic Charities for over nine years
and brings with him the experience of four years as the diocesan detention
minister at the Alameda County Juvenile Hall.
I understand from him that he and future volunteers will be ministering
within an inter-denominational Christian service, under the coordination of
Fr. Alan Ford. This arrangement matches this diocese’s commitment to
ecumenical cooperation.
We appreciate your cooperation in creating access for the Catholic commu-
nity to the North County Jail and the prisoners held there.
Sincerely,
John S. Cummins
Bishop of Oakland
pr
6c: Mr. Ken Reggio
Executive Director
Catholic Charities
Fr. Alan Ford
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EXHIBIT
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RICHARD J. MOORE
County Counsel
County of Alameda
1221 Oak Street, Suite 463
Oakland, California 94612
Telephone: (415) 272-6700
By: KELVIN H. BOOTY, JR.
Assistant County Counsel
Attomeys for Defendants
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
JACK FRIEND, MICHAEL WETHERN,
JEFFREY GRAY No. C 87-0161 MHP
Plaintiffs, ANSWER TO COMPLAINT
RONALD KOLODZIECZAK, HAROLD ESTES, CHUCK
GREEN, R. A. FRIST, A. THEOBALD,
Defendants .
Come now defendants Ronald Kolodzieczak, Harold Estes, Chuck
Green, R. A. Frist and A. Theobald, in answering the complaint on file
herein, admit, deny
This text is long and has been trimmed here. Open the source document for the complete record.
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