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,

C-1

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.

E-]

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.

E-3

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

E-5

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

F-]

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

F-3

|

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

F-4

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,

F-5

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

K

EXHIBIT]

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

L

EXHIBIT

M

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

M

EXHIBIT

N

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.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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