# Petition for Writ of Certiorari — Kolodzieczak v. Friend > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1114%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1993 - **Citation:** 506 U.S. 1075 ## Text 92-299 | Fr] AUG 13 i992 | DPEXCE OF THE CLERK ; alee } 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 ———— @ &© « 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, and aliege as follows: 1. Answering the allegations of paragraph III B and C of the com- plaint, defendants admit that the named defendants are, and each of them is, an employee in the Shenff’s Department of the County of Alameda. 2. Answering the allegations of paragraph IV B of the complaint, defendants allege that it is true that inmates are not allowed to have rosary beads in their possession in the jail. It may also be true that rosary beads were removed from plaintiff Jeffrey Gray, and placed in the place where the property he cannot have in his possession is being held for him. It also appears that a rosary was removed from plaintiff Michael Wethem. Michael Wethem is no longer in the custody of the Sheriff of Alameda County, and accordingly the complaint is moot as to him, since no damages are sought. It is true that inmates are not allowed to wear clothing other than N-] that issued by the Alameda County Sheriff's Department, and no inmate is allowed to have in his possession any type of jewelry in the form of necklaces, medallions, medals, and similar items. Each of these is capable of being used as money to pay gambling debts, or traded for other contra- band such as drugs, and some of these items can be used as weapons either as they are or as modified. A chain or necklace, including a rosary, can be used to strangle another or oneself. In addition, jewelry, including rosary beads, can be the subject of theft. Theft leads to controversy and fights within inmate groups, and implicates the safety of the staff and of the inmates. Accordingly, there are significant and serious security reasons for the removal of any items such as those which have been described. In addition, plaintiff Wethem was housed in a protective custody unit which, among other things, houses inmates who are in danger from others in the inmate population. It is particularly important that no potential weapons be allowed in that unit. 3. Further answering the allegations of paragraph IV, it is not true that anyone has denied any of the plaintiffs, or any other inmates, access to religious services and observances, insofar as the same are available in the jail. Religious services for inmates at North County Jail are provided in accordance with the requirements of sections 1070 and 1072 of the Califor- nia Minimum Jail Standards, Title 15, Califomia Administrative Code. Religious services and counseling are provided in several ways: a jail chaplain; volunteer groups; and requests for individual visits by a minister or priest of the inmate’s choice. The North County Jail employs a chaplain on a half-time basis, twenty hours per week. Thceie is a full-time chaplain at Santa Rita. (At present, the chaplain position at North County Jail is vacant, since the incumbent resigned. The civil service system for the county is in the process of recruiting and testing applicants for the position, and the sheriff will be allowed to choose from the top five when a personnel list has been promulgated.) The chaplain’s normal duties encompass the entire range of religious services, with emphasis on the provision of individual contact with inmates in the coordination of volunteer services. Based on adminis- trative reports by the chaplain, personal contacts with inmates average in excess of 50 per week. Requests for special religious services are handled by the chaplain. In the absence of an empioyed chaplain, the Inmate Services Officer has been handling requests and a religious presence has been provided by one of the volunteer ministers who is in the jail approxi- mately three days a week. The volunteer groups referred to previously are: (1) Non-denominational services are provided by Follow-up Ministries of Castro Valley headed by the Reverend Glenn Morrison. He N-2 has conducted programs in Alameda County jails and in the state prison system for many years. This group provides a non-denominational service on Sunday momings and a Bible study class on Monday evenings. There are also services on Wednesdays and Thursdays. Normally a minimum of Six ministers will attend and one will go to each floor of the jail to meet with inmates who wish to attend services or participate in the study group. (2) Roman Catholics are assisted by arrangements with the Dio- cese of Oakland through the Catholic Charities Office for Prisoner and Community Justice located on Jefferson Street in Oakland. Normally two to four persons from Catholic Charities are in the jail on Sunday momings to provide services for those who wish to attend. Communion is provided by this group upon request of the innate. Requests for visitation or other religious services at times other than Sunday momings are also h .dled by Catholic Chanities. In addition to the foregoing, requests by inmates for religious counseling or special needs other than provided in the scheduled services are coordinated by the Inmate Services Officer. The inmate sends a request slip to the Inmate Services Officer who will make the arrangements with one of the religious volunteer groups or a personal minister or priest if requested. Follow Up Ministries and Catholic Charities have been very responsive to requests from the inmates. Defendants are not aware of any instances where a request by an inmate has not been answered by either group. In addition, since the inmates have almost unlimited access to telephones in their living area, they can make whatever calls to spintual advisors they may wish. There is attached hereto page 1 of the General Information and Rules for North County Jail, which indicates the kinds of services available and to whom the requests should be made. Page 8 is also attached, as that is concemed with the chaplain and with inmate services 4. Except as herein alleged, defendants deny the allegations of the complaint. WHEREFORE, defendants pray that plaintiffs take nothing by reason of the complaint, and for such other relief as the court may grant. Dated: October 22, 1987 RICHARD J-.MOORE, County Counsel in and for the County of State of California By: KELVIN H. BOOTY, JR., Assistant County Counsel] Attomeys for Defendants N-3 RELIGIOUS VOLUNTEER MANUAL APRIL 1987 Exhibit 19, Defendants’ Motion for Summary Judgment CONTENTS FORWARD ROLE OF THE RELIGIOUS VOLUNTEER IN THE ALAMEDA COUNTY JAIL SYSTEM PURPOSE OF CHAPLAINCY PHILOSOPHY OF CHAPLAINCY RULES, REGULATIONS AND DIRECTIVES SANTA RITA JAIL ADDENDUM GUIDELINES OF THE RELIGIOUS VOLUNTEER GLOSSARY OF TERMS NOTE N-4 EXHIBIT Sheriff's Department January 12, 1988 Mr. James F. Rodgers Office for Prisoner & Community Justice Catholic Charities 433 Jefferson St. Oakland, CA 94607 Dear Mr. Rodgers My apologies for the delay in responding to your letter of 12-12-87. My absence from the office has been the cause. As you are aware, North County Jail has been without a Chaplain for some period of time. Due to a hiring freeze, we were unable to fill the Chaplain’s position after the resignation of Chaplain Ford. Most recently, a delay has been caused by the process of upgrading the position to a full-time position and some changes in the requirements for persons applying. I am happy to State that the process is near completion and we should be getting close the point of testing and hiring. I] understand the concems expressed in your letter. I am sure you will understand my reluctance to make any changes in the religious program at the jail without the benefit of a person in the Chaplain’s position who will ultimately be responsible for the program. If I may ask for your patience, I do not intend to alter the program until the Chdaplain’s position is filled and the person hired has an opportunity to familiarize himself or herself with the needs of the inmates and the jail. If I may be of further assistance in this matter, please do not hesitate to make contact. Cordially yours, M. H. HICKERSON, CAPTAIN NORTH COUNTY JAIL MLH:ms cc: Charles C. Plummer, Shenff 0875a EXHIBIT P Amitai Schwarz Sue Ochs Law Offices of Amitai Schwartz 155 Montgomery Street, Suite 800 San Francisco, Califomia 94104 415/398-0922 Attomeys for Plaintiffs UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA JACK WAYNE FRIEND, on behalf NO. C 87-0161 MHP of himself and all others similarly situated, JEFFREY DEE GRAY, and DECLARATION OF MICHAEL WETHERN, AMITAI SCHWARTZ IN Plaintiffs SUPPORT OF MOTION FOR CLASS CERTIF- VS. CATION RONALD KOLODZIECZAK, CHARLES PLUMMER, Date: May 16, 1988 Shenff of Alameda County, MORRIS L. Time: 10:30 a.m. HICKERSON, Captain of Alameda Nonh Courtroom: 5 County Jail, DEAN COMPTON, Deputy for Prisoners’ Affairs-Inmate Services Officer, HAROLD ESTES, R.A. FRIST, CHUCK GREEN, A. THEOBALD, and COUNTY OF ALAMEDA, Defendants. I, Amitai Schwariz, hereby declare: 1. 1am a member of the bar of this Court and the lead attomey for the plaintiffs herein. I make this declaration in suppont of plaintiff JACK WAYNE FRIEND'S motion for class certification. 2. I am qualified to represent the proposed class in this matter. I am an attorney at law and a member of the State Bar of Califomia. I am a P-] member of the Bar of the United States District Courts for the Northem, Eastern and Central Distric’s of California, the United States Court of Appeals for the Ninth Circuit, and the Supreme Court of the 61 United States. 3. I graduated with a J.D degree from the University of California, Berkeley (Boalt Hall) in 1972. From July of 1985 9 to the present time I have maintained a private law practice 10 in San Francisco. During the fall of 1985 I also taught the 11 appellate advocacy course at Boalt Hall as a visiting lecturer 4. From July 1977 to July 1985 I was staff counsel for the Ameni- can Civil Liberties Union (ACLU) of Northerm Califomia, which has its headquarters in San Francisco. While serving as staff counsel at the ACLU I litigated 2 wide variety of civil liberties matters involving complex civil litigation and appellate work, including challenges to local policies and practices under a great number of different 20 circumstances involving numerous constitutional and statutory issues. 5. Prior to beginning work as staff counsel for the ACLU of Northem California, I was the legal director of the Northem Caiifomia Police Practices Project, a project of the ACLU of Northerm California, the Mexican American Legal Defense and Educational Fund, and the NAACP Legal Defense Fund. I have served as a faculty lecturer and prepared published wnitten material on many occasions in connection with Section 1983 civil nghts litigation for the Practicing Law Institute (1977, 1979, 1982, 1985, 1986, and 1987). I declare under penalty of perjury that the foregoing is true and correct. Executed at San Francisco, Califomia, this 18th day of April, 1988. Amitai Schwartz DECLARATION OF AMITAI SCHWARTZ EXHIBIT Q UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BEFORE THE HONORABLE MARILYN HALL PATEL, JUDGE JACK WAYNE FRIEND, et al, Plaintiffs, NO. C-87-0161 MHP -VS.- RONALD KOLODZIECZAK, et al., Defendants. SAN FRANCISCO, CALIFORNIA MONDAY, OCTOBER 24, 1988 APPEARANCES: FOR PLAINTIFFS: LAW OFFICES OF AMITAI SCHWARTZ 15S MONTGOMERY STREET SUITE 800 SAN FRANCISCO, CALIFORNIA 94104 BY: AMITAI SCHWARTZ, ESQ. SUE OCHS, ATTORNEY AT LAW FOR DEFENDANTS: BENNETT, SAMUELSEN, REYNOLDS & ALLARD 1951 WEBSTER STREET SUITE 200 OAKLAND, CALIFORNIA 94612-200 BY: RICHARD REYNOLDS, ESQ. MAUREEN BROOKS, ATTORNEY AT LAW REPORTED BY: CANDACE L. FRANCIS, CSR, CP, CM OFFICIAL REPORTER, USDC COMPUTERIZED TRANSCRIPTION BY XSCRIBE MONDAY, OCTOBER 24, 1988 11:08 A.M, THE CLERK: CIVIL ACTION 87-161, FRIEND, ET AL. VER- SUS KOLODZIECZAK FOR PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, AND PLAINTIFFS’ MOTION TO STRIKE THE DECLA- RATION OF CAPTAIN TOM SHORES. COUNSEL, YOUR APPEARANCES, PLEASE. MR. SCHWARTZ: GOOD MORNING, YOUR HONOR. AMITAI SCHWARTZ AND SUE OCHS FOR THE PLAINTIFFS. THE COURT: GOOD MORNING. MR. REYNOLDS: GOOD MORNING, YOUR HONOR. RICH- ARD REYNOLDS AND MAUREEN BROOKS FOR THE DEFEN- DANTS. = THE COURT: GOOD MORNING. LET ME FIND OUT WHERE THINGS STAND RIGHT NOW, BECAUSE IT LOOKS AS IF PERHAPS A LOT OF THINGS HAVE BEEN WORKED OUT OR MAY BE IN THE PROCESS OF BEING WORKED OUT. EXACTLY WHAT IS GOING TO BE THE POLICY WITH RESPECT TO THE AVAILABILITY OF RELIGIOUS SERVICES, SACRAMENTS, ET CETERA, IN CONNECTION WITH — FOR CATHOLIC INMATES? MR. REYNOLDS: YOUR HONOR, IT’S MY UNDERSTAND- ING THAT THE SUNDAY MORNING AND MONDAY EVENING TIME SLOTS ARE AVAILABLE FOR STRICTLY CATHOLIC SER- VICES BY, PRESENTLY, EUGENE STELLY, THE DEACON, AND WHOEVER HE WANTS TO BRING IN ON THOSE TIMES AND THOSE DAYS OF THE WEEK TO PERFORM A SEPARATE CATHO- LIC SERVICE FOR WHOEVER WANTS TO ATTEND IS ACCEPT- ABLE TO THE JAIL. THE COURT: NOW, THAT’S SUNDAY AT WHAT TIME? MR. REYNOLDS: I BELIEVE 7:00 TO 9:30. Q-2 MR. SCHWARTZ: 7:00 TO 9:30. THE COURT: 7:00 TO 9:30 IN THE MORNING. MR. REYNOLDS: THAT’S CORRECT. THE COURT: IS THAT THE TIME THAT’S GENERALLY AVAILABLE ALSO FOR OTHER WORSHIP SERVICES, PROTES- TANT SERVICES OR WHATEVER? MR. REYNOLDS: YES. ALL RELIGIOUS SERVICES ARE AVAILABLE AT THAT TIME. THE COURT: AND THERE WILL BE A SEPARATE ROOM AVAILABLE FOR THESE PEOPLE — MR. REYNOLDS: THAT’S CORRECT, YOUR HONOR. THE COURT: — FOR THAT PURPOSE. AND WHAT WAS THE OTHER TIME? MR. REYNOLDS: MONDAY EVENINGS AT, I BELIEVE, 7:00 TO 9:00 OR 6:30 TO 9:00, I BELIEVE. THE COURT: NOW, IS THAT — IS THAT THEN ALLOWING FOR ABOUT THE SAME AMOUNT OF TIME THAT’S ALLOWED FOR OTHER RELIGIOUS GROUPS TO HOLD SERVICES? MR. REYNOLDS: ABSOLUTELY. IT’S THE SAME TIME SLOT FOR EVERYBODY. THE COURT: UH-HUH. MR. REYNOLDS: AND IF THEY NEED A SEPARATE ROOM THE JAIL HAS INDICATED THEY WILL MAKE THAT ACCOMMO- DATION FOR THE CATHOLIC GROUP TO HAVE THEIR OWN SEPARATE ROOM FOR WHOEVER WANTS TO COME IN THAT GENERAL AREA, IN THE ZEGREGATED AREA. I BELIEVE THAT EACH FLOOR IS SPLIT IN TWO, SO IF THEY WANT TO SAY THE NORTH CELLS HAVE PEOPLE AS- SEMBLED THERE, THERE WILL BE A SEPARATE ROOM FOR EITHER CATHOLIC INMATES OR PEOPLE WHO WANT TO AVAIL THEMSELVES OF THE CATHOLIC SERVICE. THAT WILL BE AVAILABLE OR IS AVAILABLE, I BELIEVE, AS OF OCTOBER 7TH. THAT WAS THE LAST SUNDAY. MR. SCHWARTZ: 9TH. MR. REYNOLDS: 9TH. THE COURT: OKAY. AS FAR AS WHAT HAS BEEN WORKED OUT, AS FAR AS YOU UNDERSTAND, MR. SCHWARTZ, DOES THAT SATISFY THE —YOU KNOW, WHAT WAS BEING SOUGHT WITH RESPECT TO, AND PROVIDE EQUAL ACCESS TO, ET CETERA, AVAILABILITY OF RELIGIOUS SERVICES FOR CATHOLIC INMATES OR THOSE WHO WISH TO ATTEND CATHO- LIC SERVICES? Q-3 MR. SCHWARTZ: WELL, WE'RE ON THE WAY, YOUR HONOR. THE COURT: HOW ABOUT — HOW ABOUT OTHER — OTHER —HOW ABOUT SACRAMENTS? DOES THAT PRESENT SOME — SOME PROBLEM? MR. SCHWARTZ: WELL, SOME OF THEM DO AND SOME OF THEM DON’T. THE — SOME OF THE SACRAMENTS APPARENTLY CAN BE GIVEN BY THE LAY MINISTERS AND BY THE DEACON. | THINK THE PRINCIPAL PROBLEMS IS IN CONNECTION WITH THE GIVING OF MASS AND THE — THE CONFESSION. THE COURT: AND WHAT IS THE PROBLEM WITH RE- SPECT TO THE MASS? MR. SCHWARTZ: WELL, IT HAS TO BE GIVEN BY A PRIEST, AS I UNDERSTAND IT. THE COURT: BUT THE PRIEST CAN HAVE ACCESS — MR. SCHWARTZ: YES. MR. REYNOLDS: SURE. THE COURT: — RIGHT? MR. SCHWARTZ: YES. THE COURT: SO IS THERE — ONCE THERE IS A PRIEST, YOU KNOW, WHOIS AVAILABLE TO GO IN, I PRESUME THAT — THAT, UNDER THIS POLICY, HE WILL BE ALLOWED IN. MR. REYNOLDS: ABSOLUTELY. THE COURT: IS THERE ANYTHING THAT —-ABOUT — THAT—THAT OTHERWISE IMPAIRS HIS ABILITY TO PRESIDE OVER MASS? MR. SCHWARTZ: NO, SO LONG AS THERE IS THE SEPA- RATE —THE SEPARATE PLACE AND THE SEPARATE TIME, THERE SHOULD NOT BE A PROBLEM. THE COURT: AND THAT'S GOING TO BE WORKED OUT. MR. REYNOLDS: THERE IS A SEPARATE PLACE, YOUR HONOR. AS FAR AS THE TIME, THE TIME SLOT IS THE SAME. THE COURT: YEAH. MR. REYNOLDS: WHAT WE’VE FORMALLY DONEIJS SAY, IF YOU WANT TO BE SEPARATE, WE CONTEND YOU'VE HAD THAT RIGHT ALL ALONG. WE CONTEND THAT THEY ORIGI- NALLY JOINED THIS INTERDENOMINATIONAL GROUP THAT DIDN’T WORK OUT. THERE’S BEEN A LOT OF CONFUSION. THERE’S BEEN A LOT OF PROBLEMS, BUT IF THIS IS WHAT THEY WANT, THE JAIL HAS NORMALLY IN WRITING SAID, YOU CAN HAVE YOUR Q-4 SEPARATE PLACE. IT’S GOING TO BE ON SUNDAY MORNINGS, BUT HERE IS YOUR PLACE TO SAY MASS. AND THERE’S NO PROBLEM WHATSOEVER WITH A PRIEST SAYING MASS IN JAIL. THE COURT: AND THERE’S NO PROBLEM, AS FAR AS THE SERVICES ARE CONCERNED — ALTHOUGH I REALIZE THAT’S ANOTHER ISSUE HERE — HAVING THE VARIOUS ACCOUTRE- MENTS OF THE SERVICE, SUCH AS ROSARIES AND SO FORTH, FOR THE SERVICES THEMSELVES. MR. REYNOLDS: ROSARIES CAN BE USED IN THE SER- VICES, ABSOLUTELY THE COURT: OKAY. THE COURT: I UNDERSTAND THAT. I UNDERSTAND THAT, BEFORE WE LEAVE HERE TODAY, THAT WE DO SOME- THING ABOUT THAT. BUT I WANTED TO GET THROUGH ALL OF THESE ISSUES. AND I THINK THE ONLY OTHER TWO THAT ARE LEFT — ONE REALLY — IS THE AVAILABILITY OF SOME OF THE THINGS — I GUESS SPECIFICALLY ON THE TWO, THE ROSA- RIES, THE RIGHT TO PETITIONERS TO HAVE ROSARIES OR SCAPULARS AVAILABLE TO THEM AS POSSESSIONS OUTSIDE OF SERVICES, CORRECT? MR. SCHWARTZ: CORRECT. THE COURT: THE IMPRESSION THAT I GOT WAS ESSEN- TIALLY — FROM DEFENDANTS’ PAPERS IS ESSENTIALLY VERY IMPRESSIONISTIC, THAT THERE WASN’T ANY REALLY HARD DATA OR EVIDENCE TO SUPPORT THE FACT THAT, WHEN PETITIONERS OR PRISONERS AT ONE TIME WERE ALLOWED TO HAVE ROSARIES AND WERE ALLOWED TO HAVE SCAPULARS, THAT SOMEHOW THAT PRESENTED SOME DANGER. MR. REYNOLDS: OH, I DON’T BELIEVE THERE’S EVER — THEY'VE EVER BEEN ALLOWED. THERE MAY HAVE BEEN A TIME WHEN INSTANCES OCCURRED WHERE THEY WERE IN THE POSSESSION OF THE INMATE AND, IN THE DAY-TO-DAY ADMINISTRATION OF THE JAIL, THAT PERHAPS WAS NOT THE MOST PRESSING CONCERN TO ENFORCE THAT ON THAT PAR- TICULAR DAY. THE COURT: UH-HUH. MR. REYNOLDS: HOWEVER, THE POLICY HAS CONSIS- TENTLY BEEN THAT THESE ITEMS OF PERSONAL PROPERTY, ANYTHING THAT IS NOT SPECIFICALLY ALLOWED IN THE POSSESSION OF THESE INMATES, IS CONSIDERED CONTRA- BAND BY THE JAIL. Q-5 THE COURT: UH-HUH. MR. REYNOLDS: NOW, THE — THE COURT: WELL, LET ME ASK YOU THIS. MR. REYNOLDS: — EVIDENCE IS — THE COURT: THE QUESTION IS, IF THESE ARE, IN FACT, ALBEIT MAYBE OPTIONAL, NEVERTHELESS APPROPRIATE RELIGIOUS OBJECTS, THAT THERE OUGHT TO BE SOME BASIS, SOME EVIDENCE, ON WHICH —ON WHICH TO EXCLUDE THEM. MR. REYNOLDS: WELL, THE EVIDENCE, YOUR HONOR, IS THE OPINION OF THE JAIL ADMINISTRATORS WHO HAVE EDUCA- TION AND EXPERIENCE — THE COURT: UH-HUH. MR. REYNOLDS: — AND HAVE ARRIVED AT THIS CON- SIDERED JUDGMENT THAT THIS IS THE PROBLEM. AND I — THE COURT: BUT WHERE IS THE EVIDENCE THAT, IN FACT, ROSARIES COULD BE USED AS SOME KIND OF A WEAPON? MR. REYNOLDS: WELL, YOU HAVE POLICE OFFICERS WHO HAVE DEDICATED THEIR LIVES TO THE ADMINISTRA- TION OF A JAIL WHO SAY THESE ARE THE TYPES OF ITEMS THAT CAN BE USED. THE COURT: OH, I'VE HAD — I’VE HEARD OFFICERS SAY ALL KINDS OF THINGS. I WANT SOME HARD DATA. I MEAN. YOU CAN — YOU KNOW, ANY OF US CAN Ex- POUND ON SOMETHING AND WE SAY IT’S BASED UPON OUR EXPERIENCE, BUT 1 WANT TO SEE SOME EVIDENCE OF IT. ] MEAN, THERE ARE OFFICERS IN SOME JAILS WHO WILL ALLOW CERTAIN KINDS OF PENS AND, IN OTHER JAILS, THEY WON'T ALLOW THEM. THEY'LL ALLOW PENCILS IN ONE BUT THEY WON’T ALLOW THEM IN OTHERS. EVERYBODY HAS THEIR OWN PERCEPTION, I SUPPOSE, OF WHAT IS DANGEROUS. BUT — MR. REYNOLDS: I AGREE, YOUR HONOR. THAT IS — THE COURT: BUT IF YOU HAVE A ROSARY THAT IS NOT OVER A CERTAIN LENGTH, THAT IS MADE OF PLASTIC, THEN I DON'T SEE HOW IT COULD POSSIBLY BE USED TO STRANGLE SOMEONE IF IT’S NOT LARGE ENOUGH TO GO OVER A HEAD. MR. REYNOLDS: WELL IT CAN BE. IT CAN BE CUT AND USED. THE COURT: HOW IT COULD BE USED AS A WEAPON? Q-6 MR. REYNOLDS: IT — YOUR HONOR, THOSE ROSARIES ARE EASILY CUT. THERE’S NO REASON NOT TO HAVE SEVERAL ROSARIES AND BE ABLE TO DO ALL SORTS OF THINGS WITH ROSARIES. WE’ VE HAD CASES OF NEWSPAPERS ROLLED TIGHT AND USED AS A WEAPON. I’D LIKE THE RECORD TO REFLECT THAT COUNSEL, OF COURSE, HAS A ROSARY HERE, BUT... MR. SCHWARTZ. BUT THESE THINGS — AH, THE OTHER PROBLEM, OF COURSE, YOUR HONOR, IS THAT — THE COURT: WELL, TECHNICALLY ANYTHING COULD BE USED, I SUPPOSE, IF YOU BECOME INVENTIVE ENOUGH. DOES THAT MEAN YOU HAVE PEOPLE RUNNING AROUND IN JAIL NUDE WITHOUT ACCESS TO ANYTHING? MR. REYNOLDS: NO. IT’S IN THE DISCRETION OF THE JAIL ADMINISTRATORS. THEY MAKE A JUDGMENT ON THESE THINGS AND, OF COURSE, OUR ISSUE, WHILE BEING PRE- SENTED BY THE PLAINTIFFS AS ROSARIES OR SCAPULARS, IT CAN’T END THERE. BY THE VERY NATURE OF THE JAIL SYSTEM, WE CAN- NOT JUST SAY, “IT’S THE END,” AT ROSARIES OR SCAPULARS. THE FLOODGATES ARE BASICALLY OPEN TO THE ADMINIS- TRATORS OF THE JAIL TO, INSTEAD OF DEALING WITH A CUR- RENT LIST OF A FINITE NUMBER OF ITEMS THAT ARE PERMIT- TED IN THE INMATE PERSONAL PROPERTY, IT WILL BECOME INFINITE AND WILL CREATE AN ADMINISTRATIVE AND SECU- RITY NIGHTMARE. THAT’S THE OTHER PROBLEM THAT WE HAVE. THE COURT: WELL, I'VE HEARD TWO ARGUMENTS, NEITHER OF WHICH WASH, BUT I HEAR EVERY TIME THE FLOODGATE ARGUMENT, AND ALL OF THE EXPERIENCE I'VE HAD IN THE FIELD, YOU KNOW, A“L THESE YEARS. I DON’? SEE ANY HARD DATA. THERE ARE NO FLOOD- GATES INVOLVED HERE. THERE ARE TWO ITEMS AND ONLY TWO ITEMS THAT ARE AT ISSUE. AND UNLESS I SEE SOME HARD EVIDENCE THAT, IN FACT, THERE IS A RATIONAL BASIS FOR THAT ARGUMENT, I'M NOT PERSUADED. THE COURT: WELL, I'LL TELL YOU WHAT I’M GOING TO DO, COUNSEL: I MEAN, I COULD, YOU KNOW, I SUPPOSE, LAY DOWN SOME POLICIES AND SO FORTH. I DON’T THINK THAT Q-7 IT’S APPROPRIATE TO DO THAT UNTIL THERE HAS BEEN A CLEAR FAILURE, UNWILLINGNESS TO COMPLY, BY THE COUNTY, AND I WOULD LIKE TO GIVE THEM THAT CHANCE, BUT I DO, YOU KNOW, AGREE THAT SOMETHING HAS TO BE IN WRITING. WE’RE TALKING ABOUT THE DAY-TO-DAY OPERATIONS OF AN INSTITUTION WHERE YOU HAVE DIFFERENT PEOPLE COMING ON IN DIFFERENT SHIFTS AND WHO MAY HAVE DIF- FERENT INTERPRETATIONS OF WHAT A, QUOTE, POLICY IS. SO WHAT I AM GOING TO DO IS ASK THAT — THAT THE DEFENDANTS COME UP WITH, IN WRITING, A POLICY THAT ADDRESSES THE ISSUES IN THIS CASE. I MEAN, IF YOU WANT TO WORK IT IN WITH, YOU KNOW, ANOTHER STANDING POLICY, OBVIOUSLY, THAT’S PROBABLY PREFERABLE FOR YOUR MANAGEMENT PURPOSES, BUT I’M ONLY CONCERNED ABOUT THOSE ISSUES THAT ARE ADDRESSED HERE. AND I WANT TO GIVE YOU A CHANCE TO DO THAT FIRST RATHER THAN MY DOING IT. 1 DON’T WANT TO RUN THE JAIL OR THIS ASPECT OF IT, OR WHATEVER. BUT IF THERE’S A FAILURE OF WILL ON YOUR PART, THEN I'LL HAVE TO DO SOMETHING ABOUT IT. AND 1 WOULD ALSO SUGGEST THAT YOU SOLICIT THE INPUT OF MR. SCHWARTZ IN CONNECTION WITH IT SO THAT, WHEN YOU DO SUBMIT IT, YOU KNOW, IT WILL NOT BE FULL OR A LOT OF HOLES THAT MR. SCHWARTZ CAN THEN TAKE — YOU KNOW, TAKE SHOTS AT. AND THAT IS THAT YOU REDUCE TO WRITING THE POLICY WITH RESPECT TO SEPARATE LOCATION AND A SPE- CIFIC TIME FOR SERVICES FOR CATHOLIC INMATES, AND THE TYPE OF PLACE WHERE THAT — WHERE THOSE SERVICES WILL BE HELD, AND THOSE WHO WILL BE GIVEN ACCESS TO THE JAIL FOR THE PURPOSE OF CONDUCTING THOSE SER- VICES, AND THE OTHER ITEMS, SACRAMENTS AND SO FORTH, THAT — AND ITEMS FOR THOSE SACRAMENTS THAT WILL BE PERMITTED IN THE SERVICES, THAT... THE POLICY WITH RESPECT TO A PLACE FOR CONFESSION BE REDUCED TO WRIT- ING. AND THE ONLY THING I AM GOING TO ORDER IN CON- NECTION WITH THAT, WITHOUT GETTING INTO ANY DETAIL UNTIL I SEE WHAT YOU SUBMIT, IS THAT IT MUST PROVIDE FOR PRIVACY BETWEEN THE PENITENT AND THE PRIEST. I AM LESS CONCERNED WITH THE GLASS WINDOW BEING BETWEEN Q-8 THE TWO OF THEM SO LONG AS THERE IS PRIVACY. IN OTHER WORDS, OTHER PEOPLE DO NOT HAVE ACCESS TO THE AREA, ARE NOT IN THE AREA, CANNOT HEAR WHAT IS BEING SAID, AND TO PROVIDE FOR THAT. NOW, IT IS POSSIBLE, I SUPPOSE, TO PROVIDE THAT — THAT AREAS WILL BE PROVIDED FOR CONFESSION AND PRI- VACY WILL BE ASSURED, YOU KNOW, IF REQUESTED OR SOMETHING, SO — MAYBE SOME PEOPLE DON’T CARE, IT’S NOT THAT IMPORTANT TO THEM OR TO THE PRIEST. BUT I THINK CLEARLY FOR THOSE WHO DO REQUEST THAT PRIVACY, IF IT’S NOT GOING TO BE PROVIDED ACROSS THE BOARD, AT LEAST FOR THOSE WHO REQUEST IT, IT HAS TO BE MADE AVAILABLE. AND YOU CAN SORT OF PLAY AROUND WITH THAT AND SEE WHETHER YOU WANT TO DO IT BASED ON REQUEST SO THAT IT DOES LEAVE YOU A LITTLE MORE FLEXIBILITY, BUT AT LEAST IT HAS TO BE AVAILABLE FOR THOSE WHO——WHO REQUEST IT. AND BY "PRIVACY," 1 MEAN COMPLETE PRIVACY IN THAT IT CANNOT BE HEARD BY OTHERS THAN THE PENITENT AND THE PRIEST. WITH RESPECT TO THE RIGHT TO HAVE ROSARIES AND SCAPULARS, I WANT REDUCED TO WRITING A POLICY THAT WILL ALLOW FOR THAT. I MEAN, I CAN CERTAINLY SEE AP- PROPRIATE LIMITATIONS. NO MORE THAN ONE SET PER — YOU KNOW, A ROSARY AND A SCAPULAR FOR — PER PRIS- ONER. I CAN SEE APPROPRIATE PARAMETERS TO THAT. FOR EXAMPLE, IF IT IS FOUND THAT A PRISONER ABUSES THOSE POSSESSIONS IN SOME WAY THAT VIOLATES PRISON POLICY, THAT THEY CAN BE REMOVED, AND THAT OBVIOUSLY THEY’RE ONLY GIVEN UPON REQUEST. IF YOU PLACE LIMITATIONS ON THEM, I'LL TAKE A LOOK TO SEE HOW REASONABLE THOSE LIMITATIONS ARE. I’D ASK FOR THAT POLICY TO BE REDUCED TO WRITING AND SUBMITTED TO THE COURT AND TO OPPOSING COUNSEL WITHIN 60 DAYS, AND WE'LL SET A DATE FOR THAT. IF THAT IS FORTHCOMING, THEN — AND I'M SATISFIED WITH THAT, THEM, YOU KNOW, I WON’T HAVE TO TAKE ANY SPECIFIC ACTION MYSELF. AND I WOULD FIND THAT FAR PREFERABLE — Q-9 — - UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA BEFORE: THE HONORABLE MARILYN HALL PATEL, JUDGE JACK WAYNE FRIEND, et al, NO. C-87-0161 MHP Plaintiffs, SAN FRANCISCO, CA -VS.- MARCH 13, 1989 RONALD KOLODZIECZAK, et al., Defendants. P : ANSCRIPT OF PROCEEDIN APPEARANCES: FOR PLAINTIFFS: LAW OFFICES OF AMITAI SCHWARTZ 15S MONTGOMERY STREET, SUITE 800 SAN FRANCISCO, CALIFORNIA 94104 BY: AMITAI SCHWARTZ AND SUE OCHS FOR DEFENDANTS: BENNETT, SAMUELSEN, REYNOLDS & ALLARD 1951 WEBSTER STREET, SUITE 200 OAKLAND, CALIFORNIA 94612-200 BY: RICHARD REYNOLDS REPORTED BY: ROBIN JORSTAD OFFICIAL REPORTER UNITED STATES DISTRICT COURT R-] MONDAY, MARCH 13, 1989 PROCEEDINGS THE CLERK: CIVIL ACTION 87-161, FRIEND VERSUS KOLODZIECZAK FOR FURTHER STATUS. COUNSEL, YOUR APPEARANCES, PLEASE. MR. REYNOLDS: GOOD MORNING, YOUR HONOR, RICH- ARD REYNOLDS REPRESENTING DEFENDANTS. MR. SCHWARTZ: GOOD MORNING, YOUR HONOR, AMITAI SCHWARTZ AND SUE OCHS REPRESENTING THE PLAIN- TIFFS. THE COURT: GOOD MORNING. IN TERMS OF THE EQUI- TABLE RELIEF OR. INJUNCTIVE RELIEF, IT LOOKS LIKE MOST THINGS ARE WORKED OUT EXCEPT FOR THE POSSESSION OF CERTAIN RELIGIOUS ITEMS — MR. SCHWARTZ: THAT’S CORRECT, YOUR HONOR. THE COURT: — BY THE INMATES THEMSELVES. YOU ARE NOT ASKING TO HAVE THE INMATES HAVE THEM AT ALL TIMES, AS LONG AS THERE’S SOME REASONABLE AVAILABIL- ITY. IT THAT CORRECT. MR. SCHWARTZ: WELL, NO, WE ARE ASKING THAT THEY HAVE THEM AT ALL TIMES. TO THE EXTENT THAT THE POSSESSION OF ANY PARTICULAR ITEM OR THE POSSESSION OF AN ITEM AT A PARTICULAR TIME WOULD CAUSE SOME SECURITY PROBLEM, THE LAWSUIT AROSE BECAUSE MR. FRIEND, THE FIRST NAMED PLAINTIFF, WASN'T ABLE TO POSSESS HIS ROSARY AND SCAPULAR AFTER A PARTICULAR TIME AT THE JAIL. THEN THERE WAS ALSO AN ISSUE RAISED AS TO THE PROVISION OF THE RELIGIOUS WORSHIP SERVICES AND THE SACRAMENTS. THE CORE ISSUE THAT THIS STARTED OVER IS THE POSSESSION OF THESE ROSARIES AS PERSONAL ITEMS. THE COURT: WHAT DO YOU DO IF SOMEONE WANTS A COPY OF THE BIBLE IN A PARTICULAR VERSION THAT IS AC- CEPTABLE TO THEIR RELIGIOUS BELIEF OR ANY OTHER SCRIP- TURES FROM ANY OTHER RELIGION? MR. REYNOLDS: THE SCRIPTURES ARE AVAILABLE R-2 THROUGH THE CHAPLAIN, AND HE ALSO MAKES RELIGIOUS VISITS TO ALL THE INMATES, NOT JUST HIS CHOSEN FAITH. THE CHAPLAIN IS SORT OF A COORDINATOR OF ALL THE RELIGIOUS SERVICES. ALSO, THE INMATE IS FREE TO ORDER THAT DIRECTLY FROM THE PUBLISHER AS LONG AS IT ARRIVES IN SEALED BOXES FROM THE PUBLISHER, PLUS THE PRACTITIONERS ARE ALLOWED TO BRING LITERATURE AND DISTRIBUTE THAT TO THE INMATES. I THINK WE HAVE A RECORD THAT HAS OCCURRED AND DOES OCCUR IN THE JAIL. THE COURT: TO FIND A WAY OF HAVING THE COURT ISSUE IT BECAUSE I THOUGHT IT WOULD BE BETTER IF YOU COULD WORK IT SO YOU CAN SEE WHERE THIS IS GOING. IF THE COURT HAS TO DOIT,1 WILL DOIT, BUT 1 THINK YOU OUGHT TO WORK OUT SOMETHING. THE COURT: LET’S DO THIS SINCE CLEARLY IT HASN’T WORKED TO LEAVE IT TO YOUR OWN HE DEVICES TO RE- SOLVE IT. ASSUME NOW, AND THIS IS NOT ARGUENDO, BECAUSE THE ORDER WILL ISSUE THAT THE COUNTY IS GOING TO HAVE TO COME UP WITH RULES, OR THE COURT WILL, THAT IT PROVIDES FOR THE SECURITY AND SAFETY OF THE INMATE AND OTHER INMATES AND OTHER PERSONS IN THE FACILITY, BUT THAT YOU THESE ITEMS WILL BE MAINTAINED OR POS- SESSED BY THE INMAIES AS RELIGIOUS ARTICLES, PERSONAL RELIGIOUS ARTICLES AT ALL TIMES. THE ONLY QUESTION WILL THEN E DO THE PARTICU- LAR ITEMS PASS MUSTER AS FAR AS SECURITY IS CON- CERNED, WHAT THEY ARE MADE OF, COMPOSITION. LET’S FACE IT. WE ALL KNOW THAT A LOT OF THE DEVICES THAT ARE MAINTAINED FOR HYGIENIC PURPOSES OR WHATEVER IN THE JAIL CAN, FOR INMATES WITH EXTRAORDI- NARY SKILL OR TOO MUCH TIME ON THEIR HANDS, BE TURNED INTO DEVICES THAT WILL BECOME WEAPONS. THERE’S NO ABSOLUTE WAY OF PROTECTING AGAINST THAT, BUT CERTAINLY THE JAIL HAS THE RIGHT TO IMPLE- MENT SOME REASONABLE SECURITY REGULATIONS AS TO WHAT THESE THINGS MAY BE MADE OF. OBVIOUSLY, THE PERSON MAY POSSESS ONLY ONE OF EACH OF ANY PARTICU- LAR TYPE OF RELIGIOUS ARTICLE. ] WILL GIVE THE COUNTY TWO WEEKS TO COME BACK R-3 —1 WILL GIVE YOU THIRTY DAYS TO COME BACK WITH A DRAFTED REGULATION THAT IMPLEMENTS THAT. IF YOU DON’T I WILL HAVE TO. GTHER THAN ORDERING THAT, YOU COME UP WITH A REGULATION BECAUSE I DON’T FEEL I AM THE PERSON TO DO THAT. SO YOU TAKE THAT BACK AND TELL THEM TO GET ON TOP OF IT, AND COME BACK WITH THE PROPOSAL IN THE NEXT THIRTY DAYS. AND IT WILL BE INCORPORATED IN THE ORDER. WITH THAT DONE, CAN YOU WORK OUT SOMETHING WITH RESPECT TO THE REMAINING ISSUES? I GUESS THE REMAINING ISSUE IS DAMAGES. DO YOU THINK YOU CAN WORK THAT OUT? THE COURT: IF WE DON’T GET SOMETHING IN WRITING IN THIRTY DAYS THAT REPRESENTS A REASONABLE RESTRIC- TION ON THE PERSONAL POSSESSION OF THESE ITEMS, REA- SONABLE FOR SECURITY PURPOSES, THEN THE COURT WILL ISSUE AN ORDER. ] WILL ISSUE AN ORDER IN ANY EVENT TO TAKE CARE OF THE PROBLEM, BUT I WILL DO THAT AFTERWARD. I JUST WANT YOU TO KNOW THAT'S FORTHCOMING. ] PREFER NOT TO PUT IN MY ORDER THE SPECIFICS BUT LEAVE THAT TO THE COUNTY, BUT IF YOU DON’T COME UP WITH IT, 1 GUESS I WILL HAVE TO. MR. REYNOLDS: WILL THERE BE AN ORDER ISSUED TODAY? THE COURT: NO, 1 AM NOT GOING TO ISSUE A WRITTEN ORDER. THE ORDER OF THE COURT IS VERBAL, AND IT WILL BE REDUCED TO WRITING IN A MORE GENERALIZED FORM THAT THEY ARE ENTITLED TO POSSESS ONE OF EACH OF THESE RELIGIOUS ITEMS THAT MEETS THE SECURITY AND OTHER REQUIREMENTS OF THE INSTITUTION AS PROVIDED FOR BY THE INSTITUTION. IF THE INSTITUTION DOES NOT COME UP WITH SUCH A PROVISION, THEN I WILL HAVE TO BE A LITTLE MORE SPECIFIC MYSELF. WE WILL CHECK WITH BOTH OF YOU AND SEE WHERE YOU STAND AS FAR AS THE REMAINING ISSUES, AND WHETHER OR NOT IT SHOULD BE REFERRED OUT TO A MAGIS- TRATE IN AN ATTEMPT TO SETTING OR HAVING ANY FURTHER MOTIONS ON THE ATTORNEYS’ FEES ISSUE. (PROCEEDINGS ADJOURNED.) R-4 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1114%3A1. Public record. Not legal advice.