Opposition Brief — Kolodzieczak v. Friend

Court, U.S.

FILED

or you?

Ce ocT 19

No. 92-292

In The

Supreme Court of the United States

October Term, 1992 |

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RONALD KOLODZIECZAK, et al.,

Petitioners,

VS.

JACK WAYNE FRIEND, et al.,

Respondents.

.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

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RESPONDENTS’ BRIEF IN OPPOSITION

*

AMITAI SCHWARTZ

Counsel of Record

Sue Ocns

Law Offices oF AMITAI SCHWARTZ

155 Montgomery Street, Suite 800

San Francisco, CA 94104

(415) 398-0922

Attorneys for Respondents

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QUESTION PRESENTED

Is a plaintiff class of county jail inmates who obtain

and secure access to Roman Catholic religious services,

sacraments and religious articles within a jail a prevailing

party for purposes of an award of attorneys’ fees pur-

suant to 42 U.S.C. § 1988?

ii

TABLE OF CONTENTS

Page

QUESTION PRESGINGMG? «ss sv055sereuedssaeergee i

TABLE CFP ALF TERME FUME © «6 sons one ohrevenbanuoees iii

STATEMENT OF THE CARs 6c ove xno severtuneuees 1

REASONS FOR DENYING THE WRIT............. &

CONC LUGIOIN 2. cece csv taienarestesanns ea eeeneees 11

iii

TABLE OF AUTHORITIES

Page

Cases

Estate of Farrar v. Cain, 941 F.2d 1311 (5th Cir.

1991), cert. granted, 60 U.S.L.W. 3578 (U.S. Feb.

|) rae 10

Farrar v. Hobby, No. 91-990 (U.S., Feb. 24, 1992) .... 10

Friend v. Kolodzieczak, 923 F.2d 126 (9th Cir.

Taras av h eel cs se eek eee es PaaS ee hes 5, 6

Friend v. Kolodzieczak, 965 F.2d 682 (9th Cir.

Cs ae ka sews gh 4 ES ¥ o> on Koes Koodo 6s 7

Goodman v. Lukens Steel Co., 482 U.S. 656 (1987) ..... 9

Graver Mfg. Co. v. Linde Co., 336 U.S. 271 (1949)..... 9

Hensley v. Eckerhart, 461 U.S. 424 (1983).......... 6, 9

Hewitt v. Helms, 482 U.S. 755 (1987).............. 8, 11

Maher v. Gagne, 448 U.S. 122 (1980)................ 10

McNabb v. United States, 318 U.S. 332 (1943) ........ 9

Rhodes v. Stewart, 488 U.S. 1 (1989) ................ 11

Ruggiero v. Krzeminski, 928 F.2d 558 (2d Cir.

Ee Bay oe 6h kx ce wake Sowa EK ods eo s's 10

Sablan v. Department of Finance of N. Mariana

miamas, G6 F.2G 1317° (Sth Cie. 1968) .............. 8

Texas State Teachers Assn. v. Garland Indep. Sch.

Me Bs a. ) 7, 8, 11

werper ¥; Sateey, 462 U.S. 76 (1967)............2005 10

United S ites v. Reliable Transfer Co., 421 U.S. 387

eee ee he peeve Ves oee ever eeestbased® 9

STATUTE

nes b

STATEMENT OF THE CASE

Respondents are members of a plaintiff class of jail

inmates at the Alameda North County jail in Oakland,

California. Respondents are inmates of the Roman Catho-

lic faith. They filed suit in pro per in 1987! contending that

county officials had denied them access to religious ser-

vices, sacraments and religious articles (rosaries and

scapulars), while at the same time allowing a Protestant

fundamentalist group to control religious activities

within the North County jail.

The lawsuit had two primary objectives. First,

respondents attempted to obtain and secure access to

religious services by having jail officials provide them the

opportunity for separate services distinct from the Protes-

tant group. They also sought the opportunity to partici-

pate in communion and confession. Second, respondents

sought the opportunity to possess sacramental articles,

rosary beads and scapulars, at all times.

The First Amended Complaint prepared by counsel

alleged that

The confiscation and continuing retention of

plaintiffs’ rosary beads and scapulars, defen-

dants’ practice and policy of prohibiting inmates

of the Alameda North County Jail from pos-

sessing rosary beads and scapulars, and defen-

dants’ failure to provide plaintiffs with access to

Roman Catholic religious services and sacra-

ments

1 The complaint was prepared and signed in 1986. But the

district court did not grant in forma pauperis status and order it

served until 1987. Order, filed September 17, 1987; R. 3.

violate the Free Exercise Clause of the First Amendment.?

Moreover, the First Amended Complaint alleged that

Defendants’ failure to provide for scheduled

Roman Catholic masses or scheduled visits by a

Roman Catholic priest while arranging for ser-

vices held by Protestants

violates the right to equal protection of the law.

First Amended Complaint, paras. 44 and 46.

The prayer sought declaratory and injunctive relief

prohibiting confiscation of the rosaries and scapulars and

requiring defendants to arrange for and provide

effective and meaningful opportunities for

Roman Catholic prisoners to attend mass and

participate in the sacraments of communion and

confession within the North County Jail.

First Amended Complaint, Prayer, paras. 3 and 4.

When the lawsuit was filed, the Jail Policy Manual

contained no provisions for Roman Catholic services or

sacraments, and it said nothing about the opportunity to

possess rosaries and scapulars during religious services.

See, Exhibit G to Appendix to Petition for a Writ of

Certiorari, “Section III 5-15, Religious Services.” Indeed,

there were no services; there were no suitable oppor-

tunities for communion and confession; and rosaries were

confiscated.

2 Petitioners inexplicably failed to include a copy of the

First Amended Complaint, in the Appendix to the Petition for a

Writ of Certiorari. A true copy is included in the Appendix to

this Brief.

The district court certified a class consisting of “all

Roman Catholic inmates who are now or will be incarcer-

ated in the Alameda North County Jail.” Exhibit E to

Appendix to Petition for a Writ of Certiorari.

Subsequently, the parties engaged in extensive dis-

covery, which culminated in cross-motions for summary

judgment. By the date of the summary judgment hearing,

the defendants had voluntarily cured many of the reli-

gious access issues. For example, as a result of the litiga-

tion, named plaintiff Jack Wayne Friend met privately

with a priest and participated in confession for the first

time since his incarceration in October, 1984. (Declaration

of Eugene J. Stelly, Sr. in Support of Plaintiffs’ Motion for

Summary Judgment, paras. 34-35; R. 60.) At his deposi-

tion the jail captain produced a letter dated September 15,

1988, announcing that “effective immediately” separate

Roman Catholic services would be held in the jail.

(Exhibits D and E to Declaration of Sue Ochs in Support

of Plaintiffs’ Motion for Attorneys’ Fees; R. 90.) The first

separately identified Roman Catholic worship services

took place in the jail on October 9, 1988 —- two weeks

before the cross-motions for summary judgment were to

be heard. Exhibit Q to Petition for a Writ of Certiorari,

Transcript of Hearing, October 24, 1988, at Q-3.

At the hearing, the district court explored with the

parties the necessity for a definitive ruling on the cross-

motions in light of the changes in the jail. After hearing

from the parties, the court ordered them to attempt

finally to resolve the dispute by

reduc[ing] to writing the policy with respect to

separate location and a specific 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 services, and

the other items, sacraments and so forth. That -

and items for those sacraments that will be per-

mitted in the services, that . . . the policy with

respect to a place for confession be reduced to

writing.

Exhibit Q to Petition for Writ of Certiorari, Transcript of

Hearing, October 24, 1988, at Q-8.

Petitioners implemented the policy changes pertain-

ing to religious access. However, they asked the district

court to rule on the summary judgment motions solely

with respect to the possession of rosaries and scapulars.

On September 29, 1989, the district court granted peti-

tioners’ motion, holding that jail officials can prohibit

unfettered possession of rosaries and scapulars. Exhibit F

to Petition for a Writ of Certiorari. But the court ordered

petitioners, as a condition of final dismissal of the law-

suit, to submit a final written policy addressing the reli-

gious access issues, which had been previously resolved.

Petitioners submitted a revised written policy, securing

the rights of the class of Roman Catholic inmates in

connection with services, sacramental acts, and posses-

sion of rosaries and scapulars during services. As the

court of appeals recognized in its first opinion in this

case:

The defendants’ alleged failure to grant the

plaintiffs access to Roman Catholic services and

sacraments was no longer in issue, because the

defendants scheduled a regular time and loca-

tion for Roman Catholic services, promulgated

rules allowing inmates an opportunity to partic-

ipate in the Roman Catholic sacraments of con-

fession and communion, and established a

policy allowing inmates to use rosaries and

wear scapulars during religious services and

meetings with religious visitors.

Friend v. Kolodzieczak, 923 F.2d 126, 127 (9th Cir. 1991);

Exhibit B to Appendix to Petition for a Writ of Certiorari.

The new Operational Order No. 1, which is the result

of this lawsuit, provides, in part:

* Purpose: To insure inmates are afforded the

opportunity of religious worship.

* Separate Catholic services will be allowed

each Sunday between the hours of 7:30 to

9:30 a.m. in the multipurpose room on any

floor .. . and Monday evenings, 7:30 p.m. to

Foy P.M... ..

* When an inmate notifies staff that he desires

to practice his religion and requests to be

administered to by his faith’s practi-

tioner, . . . staff shall make reasonable efforts

to accommodate the request. . . . If the inmate

does not identify a particular practitioner,

staff will attempt to contact the religious

body involved. [In the case of Catholic

inmates, staff will contact Catholic Charities,

Diocese of Oakland.]

* When an inmate’s religious practice calls for

a private consultation with his religious prac-

titioner, staff shall make every reasonable

effort to make an area available for this pur-

pose and shall use reasonable efforts to

assure the privacy of the consultation. A pri-

vate consultation includes, but is not limited

to, an inmate’s confession to his practitioner.

* Religious items allowed only during reli-

gious services are those which present only a

moderate security threat. Examples include a

rosary or a scapular... .

See, Exhibit H to Appendix to Petition for a Writ of

Certiorari (footnote omitted, brackets in original).

Following receipt of the new policy, the district court

dismissed the case. Respondents appealed solely with

respect to the possession of rosaries and scapulars out-

side religious services. The court of appeals affirmed.

Friend v. Kolodzieczak, 923 F.2d 126 (9th Cir. 1991); Exhibit

B to Appendix to Petition for a Writ of Certiorari.

Respondents moved the district court for an award of

attorneys’ fees and costs pursuant to 42 U.S.C. § 1988 for

the time expended in connection with issues upon which

the class had prevailed. They did not seek fees solely

related to the issues that were adversely decided on

appeal, including any compensation for the first appeal.

(Plaintiffs’ Memorandum in Support of Motion for Attor-

neys’ Fees; R. 88.)

Since respondents had engaged in extensive discov-

ery and briefed all issues in preparation for the motion

for summary judgment, they asked the district court to

compensate them for all work reasonably expended on

the religious access issues, except time spent solely on the

rosary and scapular questions. The district court per-

formed the analysis required by Hensley v. Eckerhart, 461

U.S. 424 (1983) and awarded fees and costs in the amount

of $93,782.72. Exhibit J to Petition for a Writ of Certiorari.

Petitioners appealed the award of fees and costs. The

appeal only raised the issue of entitlement to the award.

Petitioners did not directly challenge the amount

awarded.

A divided court of appeals affirmed, applying the

settled principle that “a party may recover its attorney’s

fees if it ‘succeed[s] on any significant issue in litigation

which achieves some of the benefit . . . sought in bringing

suit.’ ” Friend v. Kolodzieczak, 965 F.2d 682, 684 (9th Cir.

1992); Exhibit A to Appendix to Petition for a Writ of

Certiorari. “The district court concluded correctly that the

pre-litigation settlement materially altered the legal rela-

tionship of the parties: This is ‘[t]he touchstone of the

prevailing party inquiry.’” Id. at 685 (citing, Texas State

Teachers Assn. v. Garland Indep. Sch. Dist., 489 U.S. 782,

792-93 (1989)). The petition for a writ of certiorari to this

Court followed.

3 As the court of appeals recognized: “Alameda County

officials argue that the attorney’s fees awarded here are exces-

sive as a matter of law. The officials do not argue that the district

court calculated the fee amount improperly. Instead, they

merely contend that the inmates did not achieve their goals.

This argument simply restates their objection to the district

court’s finding that the class of inmates is a prevailing party

within the meaning of 42 U.S.C. § 1988.” Friend v. Kolodzieczak

965 F.2d 682, 685, n. 7 (9th Cir. 1992); Exhibit A to Petition for

Writ of Certiorari. Thus, issues with respect to the third question

presented by petitioners were not properly preserved in the

court below.

REASONS FOR DENYING THE WRIT

The court of appeal applied settled law in making its

determination that respondents prevailed in this class

action. Texas State Teachers Assn. v. Garland Indep. Sch.

Dist., 489 U.S. 782 (1989) and Hewitt v. Helms, 482 U.S. 755

(1987) provide the governing principles. The only dispute

between the majority of the court of appeals and the

dissenting judge and petitioners is a controversy over the

facts underlying the prevailing party analysis. Indeed,

the “Questions Presented” by the petitioners are so fact-

specific that they fail to identify any unsettled principle

of law. Moreover, the dissenting judge of the court of

appeals applied exactly the same legal principles as the

majority, relying on Texas State Teacher's Association and

Sablan v. Department of Finance of N. Mariana Islands, 856

F.2d 1317 (9th Cir. 1988). But the dissent saw the facts

differently. 765 F.2d at 686-691; Exhibit A to Petition for a

Writ of Certiorari at A-8 — A-19.

The petition lists three grounds for granting the writ.

First, petitioners claim that the case calls “for the exercise

of this Court’s power of supervision.” Petition for a Writ

of Certiorari at 2. But resolution of factual disputes is the

province of the district courts and courts of appeals.

A court of law, such as this Court is, rather than

a court for correction of errors in factfinding,

cannot undertake to review concurrent findings

of fact by two courts below in the absence of a

very obvious and exceptional showing of error.

Graver Mfg. Co. v. Linde Co., 336 U.S. 271, 275 (1949). The

“two-court rule” is fully applicable in this case. See, Good-

man v. Lukens Steel Co., 482 U.S. 656, 665 (1987); United

States v. Reliable Transfer Co., 421 U.S. 387 (1985).

As an institution this Court does not have the

resources to “supervise” the lower courts except in rare

instances in which such supervision addresses a recur-

ring administrative issue of national importance. Com-

pare, McNabb v. United States, 318 U.S. 332 (1943). This is

especially appropriate in attorneys’ fees cases “in view of

the district court’s superior understanding of the litiga-

tion and the desirability of avoiding frequent appellate

review of what essentially are factual matters.” Hensley v.

Eckerhart, 461 U.S. 424, 437 (1983).

Second, the petitioners contend that “The federal

question decided on the issue of attorneys’ fees in this

case conflicts with the decisions of other United States

Courts of Appeals and with decisions of this Court.” Id.

at 2. But petitioners fail to cite any directly conflicting

decisions of any other court of appeals or explain how the

decision conflicts with opinions of this Court. Third, the

petitioners submit that the petition raises important

issues Of federal law. This ground is simply a reiteration

of the claim that the Court should exercise supervisory

powers.

Although petitioners claim that the attorneys’ fees

award intrudes on their ability to operate their jail, the

award does nothing of the sort. Petitioners, themselves,

wrote the new jail policy that secures the rights of the

respondent class of jail inmates. Petitioners voluntarily

settled the aspects of the case for which fees and costs

10

were awarded. Petitioners were not required to settle; in

fact, they adamantly refused to settle on the rosary/

scapular issues and were vindicated on those issues by

the same district court which they accuse in the Petition

of forcing them to settle. Petition for a Writ of Certiorari

at 6. Petitioners’ claim that the attorneys’ fees award

intrudes on the administration of the jail (id. at 7) is

plainly an “exaggerated response,” because. the fee award

itself does not intrude on jail administration. Turner v.

Safley, 482 U.S. 78, 90 (1987).

Petitioners refer to the fact that this Court has

granted certiorari in Farrar v. Hobby, No. 91-990, (U.S. Feb

24, 1992), involving the award of attorneys’ fees follow-

ing a judgment for nominal damages. Petition for Writ of

Certiorari at 7. Compare, Estate of Farrar v. Cain, 941 F.2d

1311 (5th Cir. 1991), cert. granted, 60 U.S.L.W. 3578 (U.S.

Feb 24, 1992) (No. 91-990), with, Ruggiero v. Krzeminsk1,

928 F.2d 558 (2d Cir. 1991). However, the question pre-

sented in Farrar involves an award of attorney’s fees

following a nominal damages judgment. In this case, the

issues involve resolution of a class action lawsuit seeking

injunctive relief. Most importantly, the alteration in the

relationship between the jail officials and the plaintiff

class of Roman Catholic inmates was neither de minimis

nor a mere technical victory. It had practical conse-

quences for present and future members of the class.

Since this Court’s decision in Maher v. Gagne, 448 U.S.

122, 129 (1980), it has been settled that “Nothing in the

language of § 1988 conditions the District Court’s power

to award fees on full litigation of the issues or on a

judicial determination that the plaintiff’s rights have been

violated.”

11

It is settled law, of course, that relief need not be

judicially decreed in order to justify a fee award

under § 1988. A lawsuit sometimes produces

voluntary action by the defendant that affords

the plaintiff all or some of the relief he sought

through a judgment - e.g., a monetary settle-

ment or a change in conduct that redresses the

plaintiff’s grievances. When that occurs, the

plaintiff is deemed to have prevailed despite the

absence of a formal judgment in his favor.

Hewitt v. Helms, 482 U.S. 755, 759-60 (1987). Where equita-

ble relief is sought, a change in the “behavior of the

defendant toward the plaintiff’ is all that is required.

Rhodes v. Stewart, 488 U.S. 1, 4 (1989). See, Texas State

Teachers Assn. v. Garland Indep. Sch. Dist., 489 U.S. 782,

792-93 (1989).

Accordingly, the changes accomplished on behalf of

the plaintiff class in this case were sufficient to support

the award of attorneys’ fees and costs. In the context of

this case —- in which equitable relief was sought, the

relation between the parties changed and the respondents

have and will receive the benefit of the changes - there is

no unsettled legal principle warranting review by the

Court.

CONCLUSION

The Petition for a Writ of Certiorari should be denied.

Respectfully submitted,

Amita SCHWARTZ

Attorney for Respondents

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APPENDIX

Amitai Schwartz

Sue Ochs

Law Offices of Amitai Schwartz

155 Montgomery Street, Suite 800

San Francisco, California 94104

415/398-0922

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

NO.

C 87-0161 MHP

CLASS ACTION

FIRST

AMENDED

COMPLAINT

FOR

INJUNCTIVE

RONALD KOLODZIECZAK, AND

CHARLES PLUMMER, Sheriff DECLARATORY

JACK WAYNE FRIEND, on )

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)

)

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)

)

)

of Alameda County; MORRIS RELIEF AND

)

)

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)

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behalf of himself and all others

similarly situated, JEFFREY

DEE GRAY, and

MICHAEL WETHERN,

Plaintiffs,

VS.

L. HICKERSON, Captain of DAMAGES

Alameda North County Jail,

DEAN COMPTON, Deputy for DEMAND FOR

' : JURY TRIAL

Prisoners’ Affairs-Inmate

Services Officer; HAROLD (Filed

ESTES, R.A. FRIST, CHUCK Sept. 17, 1987)

GREEN, A. THEOBALD, and

COUNTY OF ALAMEDA,

Defendants.

A-2

INTRODUCTION

1. This is a class action complaint for injunctive and

declaratory relief and individual damages arising from

the refusal of the Alameda County Sheriff’s Department

and Officials of Alameda County to allow plaintiffs the

opportunity to exercise their constitutionally protected

right to practice their religion at the North Alameda

County Jail in Oakland, California. Plaintiffs allege that

defendants deny plaintiffs and the proposed class the

opportunity to attend Roman Catholic religious services

and to participate in religious sacraments performed by a

Roman Catholic priest. Plaintiffs further allege that

defendants prohibit the possession of scapulars and

rosary beads, sacramental articles of the Roman Catholic —

faith. Plaintiffs allege that their rights under the United

States Constitution and the California Constitution and

laws have been and continue to be violated.

JURISDICTION

2. This case is brought pursuant to 42 U.S.C. § 1983

with pendent state claims. Therefore jurisdiction is based

upon 28 U.S.C. §§ 1331 and 1343. This court also has

pendent jurisdiction over the state claims.

PARTIES

3. Plaintiff JACK WAYNE FRIEND is a pre-trial

detainee of the County ot Alameda. He has been incarcer-

ated at the North County Jai! in Oakland since October

1984, awaiting trial on charges of felony murder with

A-3

special circumstances. Plaintiff could face a sentence of

death if he is found guilty.

4. Plaintiff JEFFREY DEE GRAY is and was at rele-

vant times a prisoner of the County of Alameda incarcer-

ated at the North County Jail in Oakland.

5. Plaintiff MICHAEL WETHERN was a prisoner of

the County of Alameda incarcerated at the North County

Jail in Oakland. He is currently incarcerated at San Quen-

tin State Prison in San Quentin, California.

6. The COUNTY OF ALAMEDA is a political subdi-

vision of the State of California with the capacity to sue

and be sued and is also a “person” for purposes of 42

U.S.C. § 1983, because the allegations herein are based on

its policies, customs and practices.

7. CHARLES PLUMMER is the Sheriff of Alameda

County, and is responsible for establishing the policies

and practices of its jails, including the North County Jail.

He is further responsible for the direction and supervi-

sion of its subordinate officials and employees, including

officials and employees of the North County Jail.

8. MORRIS L. HICKERSON is the Captain of Deten-

tion and Corrections Division - Alameda North County

Jail, and is responsible for the administration of the North

County Jail, including the establishment of its policies

and practices, and for the supervision and control of all

its employees.

9. DEAN COMPTON is the Deputy for Prisoner

Affairs-Prisoner Services Officer at the Alameda North

A-4

County Jail and is responsible for receiving and respond-

ing to inmate requests for religious counselling, visits,

sacraments or services. :

10. Defendants KOLODZIECZAK, ESTES, GREEN,

FRIST and THEOBALD are all employees of the Alameda

County Sheriff’s Department, who were at times relevant

herein, officers at the North County Jail. Each ordered,

authorized or performed the confiscation or retention of

personal religious articles from plaintiffs FRIEND, GRAY,

or WETHERN.

11. At all times mentioned herein, the defendants,

and each of them, were employees of the Alameda

County Sheriff’s Department and the COUNTY OF

ALAMEDA.

CLASS ACTION ALLEGATIONS

12. This action is maintainable as a class action

under Federal Rules of Civil Procedure 23 (a) and (b)

(1)-(2).

13. Plaintiff JACK WAYNE FRIEND brings this

action for declaratory and injunctive relief on behalf of

himself and all other Roman Catholic prisoners who are

or will be incarcerated in the Alameda North County Jail.

The class is so numerous that joinder of all members is

impracticable. There are questions of law and fact com-

mon to the class, the claims of the named plaintiff is

typical of the claims of the class, and the named plaintiff

will fairly and adequately represent the interests of the

class. Additionally, the prosecution of separate actions by

individual members of the class would create the risk of

A-5

inconsistent adjudications which would establish incom-

patible standards of conduct for defendants. Defendants

have acted and continue to act on grounds generally

applicable to all members of the proposed class, thereby

making declaratory and injunctive relief appropriate with

respect to the class as a whole.

FACTS

14. At all times mentioned herein, defendants and

each of them were acting under color of state law and in

furtherance of and accordance with the policies and prac-

tices of defendants COUNTY OF ALAMEDA, CHARLES

PLUMMER, and MORRIS L. HICKERSON.

15. Plaintiffs JACK WAYNE FRIEND and MICHAEL

WETHERN are members and practitioners of the Roman

Catholic faith. Plaintiffs’ religious beliefs are sincerely

held.

DENIAL OF THE RIGHT TO POSSESS

ROSARY BEADS AND SCAPULARS

16. The use of rosary beads and the wearing of a

cloth scapular are an integral part of plaintiffs’ practice

and expression of their faith and are long-held traditions

of Roman Catholicism.

17. Rosary beads are used to count prayers while

praying.

18. Scapulars are symbols of Mary, the mother of

Jesus. For Roman Catholics such as plaintiffs JACK

WAYNE FRIEND and MICHAEL WETHERN, the wearing

A-6

of the scapular invokes the protection of Mary and the

promise of salvation and eternal life.

19. It is the policy of defendants COUNTY OF

ALAMEDA, CHARLES PLUMMER, and MORRIS L.

HICKERSON, and the practice of all defendants to pro-

hibit prisoners in the North County Jail from possessing

rosary beads and cloth scapulars, and to confiscate such

items from prisoners when they are discovered to possess

them.

20. In July 1986, the rosary of plaintiff JEFFREY

DEE GRAY was confiscated by defendant A. THEOBALD.

Defendant CHUCK GREEN refused plaintiff’s request to

return the beads based on the order of defendant

HAROLD ESTES.

21. In July 1986, the rosary of plaintiff MICHAEL

WETHERN was confiscated by defendant FRIST. Plain-

tiffs are informed and believe, and therefore allege on

information and belief, that defendant RONALD

KOLODZIECZAK ordered the confiscation after plaintiff

WETHERN showed defendant KOLODZIECZAK his

rosary beads in the course of a discussion concerning a

grievance plaintiffs MICHAEL WETHERN and JACK

WAYNE FRIEND had filed on behalf of plaintiff JEFFREY

DEE GRAY concerning the confiscation of plaintiff

GRAY’S rosary beads.

22. In July 1986, during a cell check by North

Alameda County jail employees, the rosary of plaintiff

JACK WAYNE FRIEND disappeared.

23. In confiscating the rosary beads of plaintiffs

JACK WAYNE FRIEND, MICHAEL WETHERN, and

A-7

JEFFREY DEE GhAY, defendants were acting pursuant to

the official policy of defendants COUNTY OF

ALAMEDA, CHARLES PLUMMER and MORRIS L.

HICKERSON.

24. The rosary beads possessed by plaintiffs and

confiscated by defendants were plastic beads strung on

either narrow gauge soft fiber or plastic string.

25. Plaintiffs are informed and believe, and there-

fore allege on information and belief, that possession of

plastic rosary beads by inmates of the Alameda North

County Jail poses no threat to the safety of plaintiffs,

other inmates or employees of the Sheriff’s Department

and confiscation of these articles is not related to any

important legitimate penological interest.

26. In May, 1986, plaintiff JACK WAYNE FRIEND’S

scapular was confiscated by an officer with the initials

“D.H.” and badge number 4007. On or about September

7, 1986, plaintiff’s request for the return of his scapular

were denied. The explanation given was “not allowed to

have at NCJ per Sgt.”

27. In November 1987, plaintiff JEFFREY DEE

GRAY requested the return of his scapular so he could

have it with him during his trial. His request was denied

and the explanation given was “[s]orry we are not

allowed to issue scapulars, rosarys [sic], or other items

like that to inmates.”

28. In confiscating the scapulars of plaintiffs JACK

WAYNE FRIEND and JEFFREY DEE GRAY, defendants

were acting pursuant to the official policy of defendants

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COUNTY OF ALAMEDA, CHARLES PLUMMER and

MORRIS L. HICKERSON.

29. The cloth scapulars possessed by plaintiffs and

confiscated by defendants consist of two small religious

pictures attached to cloth string, worn over the shoulders,

one picture in front, and one in back. Plaintiffs wore their

scapulars under their clothing.

30. Plaintiffs are informed and believe, and there-

fore allege on information and belief, that wearing cloth

scapulars beneath the clothing poses no threat to the

safety of plaintiffs, other inmates or employees of the

Sheriff’s Department and the prohibition of this practice

is not related to any important legitimate penological

interest.

DENIAL OF ACCESS TO SCHEDULED

ROMAN CATHOLIC SERVICES AND

ROMAN CATHOLIC SACRAMENTS

31. Defendants COUNTY OF ALAMEDA,

CHARLES PLUMMER, MORRIS L. HICKERSON, and

DEAN COMPTON arrange for, provide, facilitate and

permit weekly scheduled Protestant religious services in

the North County Jail.

32. Plaintiffs are informed and believe, and there-

fore allege on information and belief, that defendants

maintain only one time slot per week for inmates to

attend organized religious services and this time slot is

reserved by defendants solely for the services conducted

by a Protestant Fundamentalist group known as Follow

Up Ministries.

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33. Defendants COUNTY OF ALAMEDA,

CHARLES PLUMMER, MORRIS L. HICKERSON, and

DEAN COMPTON do not arrange for, facilitate or other-

wise provide effective and meaningful opportunities for

Roman Catholic prisoners to attend mass and participate

in the sacraments of confession and communion.

34. Since October 1984, when plaintiff JACK

WAYNE FRiEND was first incarcerated, there have been

no scheduled Roman Catholic religious services held at

the North County Jail, and there have been no masses

performed by a Roman Catholic priest within the North

County Jail.

35. Plaintiffs are informed and believe, and there-

fore allege on information and belief, that weekly bible

study groups sanctioned, arranged, facilitated and pro-

vided for by defendants COUNTY OF ALAMEDA,

CHARLES PLUMMER, MORRIS L. HICKERSON, and

DEAN COMPTON and held within the Alameda North

County Jail are conducted or overseen by Follow Up

Ministries which does not allow Roman Catholic teach-

ings to be presented therein.

36. There are no scheduled visits by Roman Catho-

lic priests to the prisoners at the North Alameda County

Jail.

37. Since October, 1984, plaintiff JACK WAYNE

FRIEND has repeatedly written letters and request slips

to various deputies, sergeants and prison administrators

requesting that the administration schedule Roman Cath-

olic religious services and sacraments to be performed by

a Roman Catholic priest at the North County Jail. Plain-

tiff’s requests have been denied or ignored.

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38. From October 1984, through early March 1988,

plaintiff JACK WAYNE FRIEND had no personal contact

with a Catholic priest. In late March, 1988, he was able to

see a priest but was not able to make confession to the

priest because defendants failed to provide a private

setting for the visit.

39. It is plaintiff FRIEND’S sincerely held belief that

in order to practice his religion properly, he must partici-

pate in the sacraments of confession and holy commu-

nion administered by a priest of the Roman Catholic

church.

40. Defendants’ continuing denial of plaintiffs’ right

to possess religious articles and their continued failure to

provide plaintiffs access to Roman Catholic religious ser-

vices and participation in sacraments pe:tormed by a

Roman Catholic priest is causing plaintiffs irreparable

harm as it prevents them from outwardly manifesting

their religious commitments, worshipping in accordance

with the tenets of the Roman Catholic faith, and receiving

the sacraments of Roman Catholicism.

41. The individual defendants herein acted with

reckless or callous indifference to the rights of plaintiffs

JACK WAYNE FRIEND, JEFFREY DEE GRAY, and MICH-

AEL WETHERN.

42. Asa proximate result of the policies and acts of

the defendants, plaintiffs JACK WAYNE FRIEND,

JEFFREY DEE GRAY, and MICHAEL WETHERN have

suffered damages, injury, and a loss of their rights guar-

anteed by the United States Constitution.

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FIRST CLAIM FOR RELIEF

(Free Exercise of Religion — Federal)

43. Plaintiffs reallege and incorporate herein by ref-

erence each and every allegation of paragraphs 1 through

42.

44. The confiscation and continuing retention of

plaintiffs’ rosary beads and scapulars, defendants’ prac-

tice and policy of prohibiting inmates of the Alameda

North County Jail from possessing rosary beads and

scapulars, and defendants’ failure to provide plaintiffs

with access to Roman Catholic religious services and

sacraments performed by a Roman Catholic priest, vio-

late the free exercise clause of the First Amendment as

incorporated into the Fourteenth Amendment.

SECOND CLAIM FOR RELIEF

(Denial of Equal Protection — Federal)

45. Plaintiffs reallege and incorporate herein by ref-

erence each and every allegation of paragraphs 1 through

44.

46. Defendants’ failure to provide for scheduled

Roman Catholic masses or scheduled visits by a Roman

Catholic priest while arranging for services held by Prot-

estants violates plaintiff’s right to equal protection of the

law under the Fourteenth Amendment to the United

States Constitution.

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THIRD CLAIM FOR RELIEF

(Due Process — Federal)

47. Plaintiffs reallege and incorporate herein by ref-

erence each and every allegation of paragraphs 1 through

40.

47 [sic]. Defendants’ past and continuing arbitrary

treatment of plaintiffs is a denial of due process under the

Fourteenth Amendment to the United States Constitu-

tion.

FOURTH CLAIM FOR RELIEF

(Declaratory Judgment 28 U.S.C. § 2201 [a])

49. Plaintiffs reallege and incorporate herein by ref-

erence each and every allegation of paragraphs 1 through

48.

50. An actual controversy exists between the par-

ties.

51. The parties are entitled to a declaration of their

rights and liabilities.

FIFTH CLAIM FOR RELIEF

(Free Exercise of Religion — State)

52. Plaintiffs reallege and incorporate herein by ref-

erence each and every allegation of paragraphs 1 through

51.

53. The confiscation and continuing retention of

plaintiffs’ rosary beads and scapulars, defendants’ prac-

tice and policy of prohibiting the possession of rosary

beads and scapulars, the failure to provide for scheduled

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Roman Catholic masses and scheduled visits by a Roman

Catholic priest while arranging for visits and services

held by Protestants violate Article I, § 4 of the California

Constitution.

SIXTH CLAIM FOR RELIEF

(Free Exercise of Religion - Pen. Code § 4027)

54. Plaintiffs reallege and incorporate herein by ref-

erence each and every allegation of paragraphs 1 through

53.

55. The confiscation and continuing retention of

plaintiffs’ rosary beads and scapulars and defendants’

practice and policy of prohibiting inmates of the Alameua

North County jail from possessing rosary beads and scap-

ulars violates the guarantee of Cal. Pen. Code § 4027 to

prisoners in county detention facilities of the opportunity

to exercise religious freedom.

SEVENTH CLAIM FOR RELIEF

(Equal Protection — State)

56. Plaintiffs reallege and incorporate herein by ref-

erence each and every allegation of paragraphs 1 through

30.

57. Defendants’ failure to provide for scheduled

Roman Catholic masses or scheduled visits by a Roman

Catholic priest while arranging for services held by Prot-

estant clergy violates plaintiff’s right to equal protection

of the law under Article I, § 7 of the California Constitu-

tion.

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EIGHTH CLAIM FOR RELIEF

(Due Process — State)

58. Plaintiffs reallege and incorporate herein by ref-

erence each and every allegation of paragraphs 1 through

57.

59. Defendants’ past and continuing arbitrary treat-

ment of plaintiffs is a denial of due process under Article

I, § 7 of the California Constitution.

PRAYERS FOR RELIEF

WHEREFORE, plaintiffs pray for the following relief:

1. For an order certifying the class.

2. For a declaration that plaintiff JACK WAYNE

FRIEND and the class he seeks to represent have a consti-

tutionally protected right to possess rosary beads, wear

cloth scapulars under their clothing, and have effective

and meaningful opportunities to attend Roman Catholic

mass and participate in the sacraments of confession and

communion.

3. For preliminary and permanent injunctions

enjoining defendants, their successors, agents,

employees, and all persons working in concert or partici-

pation with them, from confiscating rosary beads and

scapulars belonging to prisoners, from failing to return

such articles to inmates from whom they have been con-

fiscated, and from prohibiting possession of rosary beads

and scapulars.

4. For preliminary and permanent injunctions

requiring defendants to arrange for and provide effective

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and meaningful opportunities for Roman Catholic pris-

oners to attend mass and participate in the sacraments of

communion and confession within the North County Jail.

5. For compensatory damages against all defen-

dants in an amount according to proof.

6. For punitive damages against the individual

defendants in an amount according to proof.

7. For costs and reasonable attorneys fees pursuant

to 42 U.S.C. § 1988.

8. For such further relief as the court deems proper.

Dated: April 18, 1988

LAW OFFICES OF

AMITAI SCHWARTZ

By: Amitai Schwartz

Amitai Schwartz