Petition for Writ of Certiorari — Vanke v. Baca

) Supreme @eurt, U.S.

‘ FILE pe

No. O03 857 Dic, 2003

In The ;

Supreme Court of the Anited States

R. VANKE, et al.,

Petitioners,

vs. :

LEROY BACA,

Respondent.

S

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

¢

PETITION FOR WRIT OF CERTIORARI

¢

STEPHEN YAGMAN

Counsel of Record

YAGMAN & YAGMAN & REICHMANN & BLOOMFIELD

MARION R. YAGMAN

KATHRYN S. BLOOMFIELD

JOSEPH REICHMANN

723 Ocean Front Walk

Venice Beach, California 90291-3270

(310) 452-3200

Attorneys for Petitioners, R. Vanke, et al.

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Does the Prison Litigation Reform Act of 1995 section

1997e(d)’s attorney’s fees provisions apply to prisoners’

section 1983 actions that do not involve prison conditions?

il

LIST OF PARTIES

Petitioners are R. Vanke on behalf of a class of simi-

larly situated persons.

Respondent is LeRoy Baca who succeeded to defen-

dant upon original defendant Sherman Block’s death.

Los Angeles County Board of Supervisors were defen-

dants in the lower court.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ........csscccsssssssssssessessssssssssseee i

LIST OF PARTIES ....ccssssccccsssscccsssssscsscessececssessssseesesssen ii

PET:TION FOR WRIT OF CERTIORARI .......csccs00000 1

OPENID BRE IOW nas csecscnscacccccovscesosocsnsesseocorssonssses 1

PEPMMEPOIIE oo scssssscsccovnecsconossseocoooncsooeonscesseosessevsess 1

STATUTE INVOLVED ...cccccsssscccsssssscsscsssseesseessssesesesssee 2

UN occas scvsouccvvecaccvvessannsnacoonvuvncscesvscose 2

REASONS FOR GRANTING THE PETITION ............ 3

SUMMARY OF ARGUMENT........cccccccsssesssessssseeeesessnse 4

ET 5

1. THE COURT BELOW ERRED BY APPLYING

THE PLRA TO A CASE IN WHICH NO

PRISON CONDITION WAS IN ISSUE............. 5

2. THERE IS A CONFLICT AMONG THE

CIRCUIT COURTS OF APPEALS ON ‘THE

ISSUE OF WHETHER THE PLRA APPLIES

TO SUITS BY PRISONERS THAT DO NOT

INVOLVE CONDITIONS OF CONFINE-

iV

TABLE OF AUTHORITIES

Page

CASES

Armstrong v. Davis, 318 F.3d 965 (9th Cir. 2003) ...........-. 6

Baskerville v. Goord, 1998 WL 778396 *7 (S.D.N.Y. _

TO ssc scnnvesconeiniocsensdonnnsvacatsdseutoniansnensincsaanpenebipenniniettes 12

Beeson v. Fishkill Correct. Facility, 28 F.Supp. 2d

884 (S.D.N.Y. 1998), overruled on other grounds,

Nussle v. Willette, 224 F.3d 95 (2d Cir. 2000),

rev'd on other grounds, sub nom. Porter v. Nussle,

534 U.S. 516 CO oo. cceseniarasnsssnencscbhvnbnnasetesnansnensienonensa 10

Benjamin v. Fraser, 343 F.3d 35 (2d Cir. nee 7,13

Booth v. Churner, 206 F.3d 289 (3d Cir. 2001) ...........0+ 10

Heck v. Humphrey, 512 U.S. 477 (1994).......:ceceeseeseeees 9,11

Hewitt v. Helms, 482 U.S. 755 (1987)........:sseeeceeeeeeeees 12, 13

Johnson v. Jones, 340 F.3d 625 (8th Cir. 2003)............ 8,13

Lewis v. Casey, 518 U.S. 343 (1996) 0... eeseeerseeerteeeeeeeens 9

Madrid v. Gomez, 190 F.3d 990 (9th Cir. 1999)............00++ 9

Martin v. Hadix, 527 U.S. 343 (1999).......:ccccceeeesseeeeeeeeeees 9

Miller v. French, 530 U.S. 327 (2000)........:::ceceseseserreeeeees 10

Nussle v. Willette, 224 F.3d 95 (2d Cir. 2000), rev’d

on other grounds sub nom. Porter v. Nussle, 534

TFT BU CI ov inverivincintctsicenpenretictacemscsremrtninnrineions 7,13

Porter v. Nussle, 534 U.S. 516 (2002) ........eeeseeeeeeeeees 10, 11

Rhodes v. Stewart, 488 U.S. 1 (1988) (per curiam) .....12, 13

Richardson v. Continental Grain Co., 336 F.3d 1103

(Oth Cir. 2003B).........cccccccsssscccsenscvcccceessssnsscccsccssscesccseeees 13

Stone v. INS, 514 U.S. 386 (1995) ........eeeeeeeeseseeeeeeeeeeeeeens 12

TABLE OF AUTHORITIES -— Continued

Page

Thompson v. Gomez, 993 F.Supp. 749 (N.D. Cal.

1997), rev'd on other grounds sub nom. Gilmore v.

Peo. of the State of California, 220 F.3d 987 (9th

Che, BD ivcsiisiscivacersncniiciemenrcinvantdamasemmnae 6, 7

Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003), as

amended on denial of rehearing, with suggestion

for rehearing en BANC ..............cccceserssesessecsessesssssssacssesores 8

STATUTES

18 U7.BXC. 4) BRAD cnesississvessstansrsctetnemcaeneraannsns 10 _

BE TFA. B RGIS vesescntisicciarssinssarscssccvecsciuatonnonmagenasaaias 1

TTI ON ss cstecsisccoeon ono ioerteaarme eet 6

BS UTC. © DE vinccncsonesssciiconssstsninusisnnnsiamanannaaas 6

OS TID. © TI certisescdvccticcndcccnirmnmasiamenmane 3,13

BB UBC. 6 TORO sciciitsstaricitnitririctoioicaamianmiansn 10

UBC. (UORD..cccdolo ee 4,9, 12

ES UBS. © TF iivvsccsessicinscirenncsncmamee 2, 3, 4, 5

1

PETITION FOR WRIT OF CERTIORARI

Petitioners, plaintiffs R. Vanke, et al., petition for a

writ of certiorari to review the judgment of the United

States Court of Appeals for the Ninth Circuit.

¢

OPINIONS BELOW

The memorandum disposition of the Court of Appeals

is reported at 77 Fed. Appx. 948 (9th Cir. 2003), Appendix

A hereof: the district court fees opinion is reported at 2002

WL 1836305 (C.D. Cal. 2002), Appendix B hereof; the

district court class certification, preliminary injunction

disposition is not published and is set forth at Appendix C

hereof; and the order denying rehearing and rehearing en

banc is set forth in Appendix D hereof.

¢

JURISDICTION

The disposition of the Court of Appeals was rendered

on October 9, 2003, a timely petition for rehearing with a

suggestion for rehearing en banc was filed on October 21,

2003 and was denied on November 17, 2003, and this

Petition timely is filed within 90 days’ of the order denying

rehearing with suggestion for rehearing en banc. This

Court’s jurisdiction is invoked pursuant to 28 U.S.C.

§ 1254(1).

~ 2

STATUTE INVOLVED

42 U.S.C. § 1997e(d)

1997e Suits by prisoners

(a) Applicability of administrative remedies

No action shall be brought with respect to prison

conditions under section 1983 of this title, or any

other Federal law, by a prisoner confined in any

jail, prison, or other correctional facility until

such administrative remedies as are available

are exhausted.

KKK

(d) Attorney’s fees

(1) In any action brought by a prisoner who is

confined to any jail, prison, or other correctional

facility, in which attorney’s fees are authorized

under section 1988 of this title, such fees shall

not be awarded, except to the extent that —

4

STATEMENT

Petitioners alleged they previously were confined at

the Los Angeles County jail, and previously had been

ordered released by Los Angeles Superior Court judges,

but that, notwithstanding those release orders, and in

contravention of those orders, Petitioners had not been

released and had been continued in detention, in accor-

dance with an unconstitutional jail policy.

Petitioners, who continued in confinement, sought

injunctive relief only and class certification, and were

3

successful in obtaining both class certification and a

preliminary injunction that prevented defendant Los

Angeles County sheriff from again refusing to release a

jail detainee whose release had been ordered by a court.

Defendant admitted, in support of his summary

judgment motion, that he had changed his release policy to

bring it into accord with the preliminary injunction, and,

based on this representation, the district court decertified

the class and vacated the preliminary injunction.

Plaintiffs moved under the Civil Rights Attorney's

Fees Awards Act of 1976, 42 U.S.C. § 1988(b), for an award

of attorneys’ fees, and that motion was granted. The

district court found that the provisions of section 1997e(d)

did not apply to the action because the case did not

involve any prison conditions.

Defendant appealed the attorneys’ fees award. The

court below held that the PLRA’s attorneys’ fees provision,

42 U.S.C. § 1997e(d), was applicable, notwithstanding that

the suit did not involve prison conditions, and held that

since plaintiffs had not demonstrated that they had

suffered an “actual violation of the plaintiff’s rights

protected by a statute pursuant to which a fee may be

awarded under section 1988,” 42 U.S.C. § 1997e(d)(1)(A),

therefore, plaintiffs were not entitled to the fees award.

The fees award was vacated.

e

v

REASONS FOR GRANTING THE PETITION

1. The issue presented in this Petition is of overarch-

ing national importance because it affects suits brought by

prisoners who do not complain about prison conditions,

4

but whose suits nevertheless have been found to be subject

to the PLRA.

2. The court below decided the issue contrary to

clear statutory. language and controlling precedent of this

Court.

3. The disposition of the court below is in conflict

with dispositions by other circuit courts of appeals.

¢

SUMMARY OF ARGUMENT

The Prison Litigation Reform Act, PLRA, was not

intended to be applied at all, and has not been applied, to

actions by prisoners that do not involve prison conditions.

Suits by prisoners who sue to challenge the fact of

their confinement, but who do not challenge the conditions

of their confinement, are not subject to the PLRA.

Because the court below interpreted the PLRA and its

attorneys’ fees provision to encompass a prisoners’ suit

that did not challenge any prison condition, therefore, the

court below erred as a matter of law.

The nub of the issue is whether the PLRA’s attorrreys’

fees provision can be read in a vacuum and separately

from the entire PLRA, so that the fact that 42 U.S.C.

§ 1997e(d) does not contain the words “prison conditions”

trumps the pervasive use of the same words in numerous

other parts of the statute, such as 42 U.S.C. § 1997e(a).

Clearly, Congress never intended any section of the PLRA

to govern any action that did not involve both a prisoner

and a prison condition, nor has this Court ever inter-

preted the PLRA to apply to non-prison condition lawsuits.

¢

Aeon.

ARGUMENT

Petitioners contend that the court below erred in

applying the PRLA to a suit in which prison conditions

were not in issue, but in which only the fact of confine-

ment was in issue. Petitioners have been unable to find

any case in which this Court or any other court has ap-

plied the PLRA when “prison conditions” were not in issue.

1. THE COURT BELOW ERRED BY APPLYING

THE PLRA TO A CASE IN WHICH NO PRISON

CONDITION WAS IN ISSUE.

The instant action clearly challenges the fact of and

not any condition of confinement, PLRA’s section

1997e(d) does not limit attorneys’ fees in prisoner cases

that have nothing to do with conditions of confinement,

and the PLRA does not apply to an action simply or only

because the plaintiff is a prisoner. But the court below

held, erroneously, that section 1997e(d) applied to non-

prison conditions lawsuits.

The disposition ignores entirely the statutory scheme

of the PLRA. Instead it focuses on and incorrectly inter-

prets several words contained within a subsection of one of

the many statutes that comprise the PLRA’s much broader

statutory scheme. And, it ignores the basic principle of

statutory construction, that instructs that statutes must

be read as a whole. The interpretation of the court below

would lead to unintended, absurd results, viz.: a prisoner

suit against police who beat the prisoner during his arrest,

and before his incarceration, would have fee limits im-

posed by the PLRA; a breach of contract action by a

prisoner for acts alleged to have been committed before

incarceration, similarly, would be subject to the PLRA; a

RnR ETE

6

prisoner’s suit for injuries sustained in an automobile

accident before the time of incarceration would be subject

to the PLRA. Absurd results evidence a parallactic error.

Despite the breadth of the PLRA, it does not apply

even to all prisoner challenges to prison conditions. As

even the court below has held, the PLRA limits attorneys’

fees only “in certain actions brought by prisoners.... *

Armstrong v. Davis, 318 F.3d 965, 970 (9th Cir. 2003)

(emphasis added). For example, when prisoners succeed in

challenging even prison conditions, when the conditions

affect disabled prisoners, showing the conditions violate

the Americans with Disabilities Act, 42 U.S.C. § 12205,

and the Rehabilitation Act, 29 U.S.C. § 794, the PLRA,

including its restrictions on recovery of attorneys’ fees, is

inapplicable. Armstrong, 318 F.3d at 970, 973-74. Such is

the case here, and Armstrong and its reasoning should

have been dispositive of this issue for the court below.

In Thompson v. Gomez, 993 F.Supp. 749, 754 (N.D.

Cal. 1997), rev'd on other grounds sub nom. Gilmore v. Peo.

of the State of California, 220 F.3d 987 (9th Cir. 2000), the

court below found that “Congress stated its intention that

federal courts should intrude into state prison conditions

only where necessary to correct a federal right, and not to

otherwise interfere with the state’s operations of prisons.

In Gilmore, the court below exhaustively reviewed the

legislative history of the PLRA, including the congres-

sional commentary, and found that the PLRA was enacted

in response to “[l]itigation over prison conditions. .. . ” 220

F.3d at 990-91 (emphasis added). As the court below itself

explained in Gilmore, the PLRA was Congress’ reaction to

inmate lawsuits challenging “[flirst, how warm the food is;

second, how bright the lights are; third, whether there are

electrical outlets in each cell; fourth, whether windows are

7

inspected and up to code; fifth, whether prisoners’ hair is

cut only by licensed barbers; and sixth . . . whether air and

water temperatures are comfortable.” Jd. at 997 n.10. See

also Benjamin v. Fraser, 343 F.3d 35, 41-42, 53-55 (2d Cir.

2003) (delineating application of PLRA to “prison condi-

tions,” including: “various environmental health and

- hygiene issues at the jails;” “(1) ventilation; (2) air tem-

perature; (3) plumbing; (4) vermin; (5) food service; (6)

personal hygiene; (7) sanitation in non-medical areas; (8)

lighting in non-medical areas; (9) noise; (10) medical

areas; and (11) modular units[;] *** Bed-spacing re-

quirement[;] ... Operational windows[;] ... Heating-

system. certification[;] ... Lighting requirement[;] ...

Power washing [of showers] with bleach quaterly[;] ...

Scalding hot water ... in showers and sinks[;] . .. Sanita-

tion in food areas.”)

Other statements in the congressional record reflect

that the PLRA was Congress’ reaction to inmate lawsuits

challenging “insufficient storage locker space, a defective

haircut by a prison barber, the failure of prison officials to

invite a prisoner to a pizza party for a departing prison

employee, and yes, being served chunky peanut butter

instead of the creamy variety.” Nussle v. Willette, 224 F.3d

95, 105 (2d Cir. 2000), rev’d on other grounds sub nom.

Porter v. Nussle, 534 U.S. 516 (2002) (finding an isolated

act of excessive force by a prison guard against a prisoner

to be a “prison condition” within the PLRA).

The PLRA applies only to prisoner lawsuits chal-

lenging prison conditions. Because the instant action is

not a lawsuit challenging, much less having anything at

all to do with, prison conditions, therefore, the PLRA has

no application.

|

The district court correctly held that “(t]he PLRA does

not apply to this action. The PLRA applies to any ‘civil

action with respect to prison conditions. 18 U.S.C.

§ 3626(a)(1), (2). This phrase is defined in the PLRA as

[para.] any civil proceeding ... with respect to the condi-

tions of confinement or the effects of actions by govern-

ment officials on the lives of persons confined in prison,

but does not include habeas corpus proceedings challeng-

ing the fact or duration of confinement in prison. 18

U.S.C. § 3626(g)(2). [Therefore, t]he claims in this case do

not involve constitutional violations arising from the

conditions of confinement[;] [iJnstead, the plaintiffs con-

tend that the Constitution is violated by a systemic policy

of continuing to hold individuals in confinement after a

judicial order of release.” Order Granting Motion for Class

Certification, Granting Motion for Preliminary Injunction,

p. 15, n.5, November 7, 1998. (Emphasis added.) App. 41.

In its fees order, the district court held that “as this Court

held in its order granting the plaintiff's motion for prelimi-

nary injunction, ‘(t]he PLRA does not apply to this action.’

(Order Granting Prelim. Injunc. at 15: n.5).” App. 41.

The district court got it right, but the court below did

not.

“The Prison Litigation Reform Act of 1995, Pub. L. No.

104-34, 110 Stat. 1821-71 (PLRA) ... addresses actions

involving prison conditions.” Johnson v. Jones, 340 F.3d

625, 626 (8th Cir. 2003) (emphasis added). (This is only the

most recent of a plethora of recent appellate dispositions

as of this writing that stands for this basic, well-known

proposition.) Numerous Ninth Circuit dispositions have

applied the PLRA, but only to cases in which “conditions of

confinement” were present. See, e.g., Wyatt v. Terhune, 315

F.3d 1108, 1116 (9th Cir. 2003), as amended on denial of

ne EAS tae ee ae Men eer ener eee ere ee

9

rehearing, with suggestion for rehearing en banc (quoting

“prison conditions” language of 42 U.S.C. § 1997e[a)]);

Madrid v. Gomez, 190 F.3d 990, 992, 993-94, 995 (9th Cir.

1999) (discussion of attorneys’ fees in “class action chal-

lenging the conditions of confinement at Pelican Bay State

Prison in California[;]’? “PLRA ... prohibits payment of

fees that are not ‘directly and reasonably incurred in

proving a violation of prisoners’ rights[;]” quoting Supreme

Court in Lewis v. Casey, 518 U.S. 343, 356 [1996]: “The

Supreme Court has held that this right of access [to courts]

requires prison authorities to provide prisoners with ‘the

capability of bringing contemplated challenges to SEN-

TENCES OR CONDITIONS OF CONFINEMENT... .”

[Emphasis added.]). Thus, the court below recognizes the

difference between prison lawsuits brought, on the one

hand, to challenge the fect or duration of confinement,

and, on the other hand, to challenge conditions of confine-

ment. The former are subject to a potential Heck v. Hum-

phrey, 512 U.S. 477 (1994), accrual-bar rule, but are not

subject to the PLRA. Only the latter are subject to the

PLRA. Because this case falls into the former category of

prisoner cases, it is not subject to the PLRA. (Of course,

that obviously is the reason that experienced defense

counsel, who knew and understood this distinction, did not

plead the PLRA as an affirmative defense in this action.)

The plethora of cases that address the PLRA, which

became effective on April 26, 1996, deal with “limits on

fees that may be awarded to attorneys who litigate pris-

oner lawsuits[,]” Martin v. Hadix, 527 U.S. 343, 347

(1999), in “disputes before [the Supreme Court that] arose

out of ... lawsuits challenging the conditions of con-

finement in the ... prison [systems,]” (emphasis added);

10

“establish[ment of] standards for the entry and termina-

tion of prospective relief in civil actions challenging

prison conditions[,])” Miller v. French, 530 U.S. 327, 330,

333 (2000) (emphasis added); exhaustion of “‘such admin-

istrative remedies as are available before suing over

prison conditions,” Booth v. Churner, 206 F.3d 289

(2001) (quoting 42 U.S.C. § 1997e[a]; emphasis added);

and which directly address and define “prison condi-

tions[,]” Porter v. Nussle, 534 U.S. 516 (2002)': “Congress

described the cases covered by § 1997e(a)’s exhaustion

requirement as ‘action[s] ... brought with respect to

prison conditions.’ Nussle’s case requires us to determine

what the § 1997e(a) term “prison conditions” means. Id. at

525. It means, following “precedent, the pathmarking

opinion i{n] McCarthy v. Bronson, 500 U.S. 136 .. . (1991)

... ‘prisoner petitions challenging conditions of confine-

ment.’” Jd. at 526. “Prisoner petitions” fall into “two broad

categories: . . . (1) those challenging the fact or duration of

confinement itself; and (2) those challenging the conditions

of confinement.” Jd. at 527 (quoting McCarthy, 534 USS. at

140. Here, because plaintiffs’ challenge was “to the fact or

’ The prior case history of Porter is significant here. It is: Beeson v.

Fishkill Correct. Facility, 28 F.Supp. 2d 884, 887 (S.D.N.Y. 1998),

overruled on other grounds, Nussle v. Willette, 224 F.3d 95 (2d Cir.

2000), rev’d on other grounds, sub nom. Porter v. Nussle, 534 U.S. 516

(2002). The importance of the prior history is that the case interpreted

the PLRA with reference to the definition of “prison condition” and held,

as plaintiffs argued herein, that 42 U.S.C. §1997e must be read

together with 18 U.S.C. § 3226(g)(2), which defines “the term ‘civil

action with respect to prison conditions,’ stating: [w]hen Congress, in

one statute, uses the same words in two different places, those words

should generally be read to mean the same thing in both places.” The

district court here so interpreted the relevant term. Order Granting

Preliminary Injunction, n.5. App. 41.

11

duration of confinement itself,” category (1), supra, and

not a challenge to “conditions of confinement,” category

(2), supra, therefore, there is no appropriate application of

the PLRA. (While failure to exhaust habeas relief, or Heck

v. Humphrey’s peculiar accrual-bar rule, 512 U.S. 477

[1994], appropriately might be invoked to affect plaintiffs’

case, because the fact or duration of confinement is in

issue, nevertheless the PLRA may not be invoked.”’)

Just as “a Title VII claim against the prisoner’s pre-

incarceration employer, or, for that matter, a § 1983 claim

against his arresting officer ... fall outside § 1997e(a)[,]”

Porter, 534 U.S. at 529 (ellipsised matter inverted), be-

cause “Congress inserted ‘prison conditions’ into the

exhaustion provision simply to make [that] clear[,]” zbid.,

so too does the instant action “fall outside” the PLRA

because its does not involve “prison conditions” or “conditions

of confinement,” but rather involves the “fact or duration of

confinement itself.” This Court concluded Porter by holding

that “the PLRA’s exhaustion requirement applies to all

inmate suits about prison life, whether they involve

general circumstances or particular episodes, and whether

they allege excessive force or some other wrong{,]” id. at

532 (citation omitted; emphasis added), but the PLRA

does not apply when prison conditions or conditions of

* An action potentially barred by either a failure to have sought

habeas relief or Heck, because it has to do with the fact or duration of

confinement, such as the instant action, by necessary implication could

not be subject to the provisions of the PLRA, because the predicates are

mutually exclusive. Therefore, since the instant action categorically

could be subject to a Heck-bar, therefore, it cannot be subject to the

PLRA.

12

confinement, as here, are not involved. Thus, the court

below erred on this issue.

It is noteworthy that the PLRA originally referred to

“any action” by a prisoner brought pursuant to section

1983. See, e.g., Baskerville v. Goord, 1998 WL 778396 *7

(S.D.N.Y. 1998). Then Congress amended the PLRA to

apply only to actions by prisoners “with respect to prison

conditions.” The court noted that “[w]Jhile several changes

are apparent, the one of most significance to this action is

that the PLRA reduced the scope of § 1997e(a) from

‘any action’ brought by an inmate to only those

actions brought by an inmate ‘with respect to prison

conditions.’ Clearly, actions ‘with respect to prison

conditions’ are therefore a subset of all possible actions

[brought by prisoners].” Ibid.

Here, this amendment is significant because “[w]hen

Congress acts to amend a statute, [courts] presume it

intends its amendments to have real and substantial

effect.” Stone v. INS, 514 U.S. 386, 397 (1995). Thus, in

enacting the PLRA and limiting § 1997e(a)’s exhaustion

requirement to actions brought “with respect to prison

conditions,” Congress must have meant to reduce the

scope of § 1997e(a), otherwise the limiting language would

not have any “real and substantial effect.” Clearly, the

PLRA does not apply to prisoner suits that do not address

prison conditions, and the disposition of the court below to

the contrary is in error.

Thus, since the PLRA does not apply to plaintiffs’ suit

and plaintiffs were found to be prevailing parties, because

plaintiffs “cause[d] the defendant’s behavior to change for

the benefit of plaintiff[s,]” Rhodes v. Stewart, 488 U.S. 1, 4

(1988) (per curiam); Hewitt v. Helms, 482 U.S. 755, 761

a htt NO

13

(1987); Richardson v. Continental Grain Co., 336 F.3d

1103, 1106 (9th Cir. 2003) (citing Rhodes and Hewitt), see

infra, plaintiffs are entitled to an award of attorneys’ fees,

as awarded by the district court, pursuant to 42 U.S.C.

§ 1988(b).

2. THERE IS A CONFLICT AMONG THE CIRCUIT

COURTS OF- APPEALS ON THE ISSUE OF

WHETHER THE PLRA APPLIES TO SUITS BY

PRISONERS THAT DO NOT INVOLVE CONDI-

TIONS OF CONFINEMENT.

The court below, the Ninth Circuit, has held that the

PLRA applies to prisoner suits that do not involve condi-

tions of confinement.

The Second and Eighth Circuits have held that the

PLRA applies only to prisoner suits that involve conditions

of confinement. Benjamin v. Fraser, 343 F.3d 35, 41-42, 53-

55 (2d Cir. 2003); Nussle v. Willette, 224 F.3d 95 (2d Cir.

2000), rev’d on other grounds sub nom. Porter v. Nussle,

534 U.S. 516 (2002); and, Johnson v. Jones, 340 F.3d 625,

626 (8th Cir. 2003).

Because there is a conflict on this point among the

circuit courts of appeals, certiorari should be granted.

+

14

CONCLUSION

The PLRA does not apply to non-prison conditions

cases. It seriously was misconstrued by the court below, it

does not apply at all to this action because the “fact and

duration” of confinement, and not “conditions of confine-

ment,” was in issue.

Based on the foregoing, certiorari should be granted.

Respectfully submitted,

STEPHEN YAGMAN

Counsel of Record

YAGMAN & YAGMAN &

REICHMANN & BLOOMFIELD

MARION R. YAGMAN

KATHRYN S. BLOOMFIELD

JOSEPH REICHMANN

December 4, 2003

a

+

’

App. 1

APPENDIX A

77 Fed.Appx. 948

United States Court of Appeals,

Ninth Circuit.

R. VANKE, Plaintiff-Appellant,

Vv.

Sherman BLOCK; Los Angeles County Board of

Supervisors; Lee Baca, Sheriff,

Defendants-Appellees.

R. Vanke, Plaintiff-Appellee,

v.

Lee Baca, Sheriff, in his official capacity only,

Defendant-Appellant.

Nos. 02-55600, 02-56472.

Argued and Submitted Sept. 11, 2003.

Decided Oct. 9, 2003.

Before: KLEINFELD, WARDLAW, and W. FLETCHER,

Circuit Judges.

MEMORANDUM*

R. Vanke, on behalf of a class of similarly situated

persons (collectively, “Vanke”), appeals the district court's

grant of summary judgment in favor of defendants the

former and current Los Angeles County Sheriffs and the

County of Los Angeles (collectively, “Block”). Block cross-

appeals the district court’s award of attorneys’ fees to

* This disposition is not appropriate for publication and may not

be cited to or by the courts of this circuit except as provided by Ninth

Circuit Rule 36-3.

f

1

y

a App. 2

Vanke. We have jurisdiction pursuant to 28 U.S.C. § 1291

and affirm the grant of summary judgment and reverse

the award of attorneys’ fees.’

The district court correctly ruled that Vanke’s claim

for injunctive relief is moot. “A case m[ay] become moot if

subsequent events ma[ke] it absolutely clear that the

allegedly wrongful behavior c[annot] reasonably be ex-

pected to-recur.” United States v. Concentrated Phosphate

Ass’n, 393 U.S. 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344

(1968). According to the uncontroverted declaration of

Charles M. Jackson, the Commander of the Correctional

Services Division of the Los Angeles County Sheriffs

’ Department, Block has adopted a new policy for processing

court-ordered releases that complies with the terms of the

preliminary injunction, and which goes even further

toward promoting the prompt release of detainees. Such a

conclusive change in policy, absent an indication that it

was promulgated only in response to ongoing litigation, is

sufficient to render a claim moot. See White v. Lee, 227

F.3d 1214 (9th Cir.2000).

Nor did the district court abuse its discretion in

denying Vanke’s Rule 56(f) motion. Vanke’s attorneys did

not diligently pursue their previously available discovery

options, having conducted only two depositions in the

three-year period during which the preliminary injunction

was pending, one of which was terminated at Vanke’s _

counsel’s behest only twenty minutes after it commenced.

Panatronic USA v. AT & T Corp., 287 F.3d 840, 846 (9th

’ Block’s motion to strike Vanke’s “third brief on the consolidated

appeals” is DENIED.

App. 3

Cir.2002) (no abuse of discretion unless the movant

diligently pursued its previous discovery opportunities and

shows how allowing discovery would have precluded

summary judgment). Furthermore, Vanke’s counsel failed

to “proffer” facts to show that the information sought, “the

names of persons (inmates) who were subjected to the

unconstitutional policy in violation of the preliminary

injunction,” actually exists. See Nidds v. Schindler Eleva-

tor Corp., 113 F.3d 912, 921 (9th Cir.1996) (“The burden is

on the party seeking additional discovery to proffer suffi-

cient facts to show that the evidence sought exits, and that

it would prevent summary judgment”); see also VISA Int'l

Serv. Ass’n v. Bankcard Holders of Am., 784 F.2d 1472,

1475 (9th Cir.1986) (appropriate to deny a Rule 56(f)

motion “where it was clear that the evidence sought was

almost certainly nonexistent or was the object of pure

speculation”).

Although the district court correctly found that Vanke

-was the “prevailing party” under 42 U.S.C. § 1988(b),

Watson v. County of Riverside, 300 F.3d 1092, 1096 (9th

Cir.2002), it erred in awarding attorneys’ fees because the

Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e,

precludes such an award. PLRA section 1997e(d) requires

that a “prisoner” plaintiff prove an “actual violation” of his

rights to be entitled to fees. “Prisoner” is in turn defined as

“any person incarcerated or detained in any facility who is

accused of, convicted of, sentenced for, or adjudicated

delinquent for, violations of criminal law or the terms and

conditions of parole, probation, pretrial release, or diver-

sionary program.” 42-U.S.C. § 1997e(h). The definition of

plaintiffs class, as certified by the district court in its

order “Granting Motion for Class Certification,” by its

ee Le

OO a

App. 4

plain language, brings the class within the PLRA defini-

tion of a prisoner. Because this case became moot before

the plaintiff class had shown an actual violation of rights,

section 1997e(d) precludes an award of attorneys’ fees.

AFFIRMED in part/REVERSED in part. Each party

shall bear its own costs on appeal.

App. 5

APPENDIX B

United States District Court, C.D. California,

Western Division.

R. VANKE, et al., Plaintiff,

v.

Sherman BLOCK; et al., Defendants.

No. CIV.98-4111 DDP.

Aug. 8, 2002.

Stephen Yagman, Kathryn S. Bloomfield, Marion R.

Yagman, Joseph Reichmann, Yagman & Yagman & Reich-

mann & Bloomfield, Venice Beach, CA, Richard H. Millard,

Law Offices of Richard H. Millard, for plaintiffs.

Jeremy B. Warren, David Lawrence, Franscell, Strick-

land, Roberts & Lawrence, Glendale, CA for defendants.

ORDER GRANTING PLAINTIFFS’ AWARD OF

ATTORNEYS’ FEES PURSUANT TO 42 U.S.C. § 1988

PREGERSON, District J.

This matter comes before the Court on the plaintiffs’

motion for an award of attorneys’ fees pursuant to 42

U.S.C. § 1988. After reviewing and considering the mate-

rials submitted by the parties, the Court adopts the

following order.

a Background

This equitable relief action was originally brought by

a class of plaintiffs who contended that while they were

pretrial detainees, they were “over-detained in the County

Jail System so that there [could] be a check made on them

for warrants, wants, and holds.” (Verified First Amended

App. 6

Complaint { 17 (“FAC”).) On November 7, 1998, the Court

granted the plaintiffs’ motion for class certification and

issued a preliminary injunction enjoining various practices

and policies of the Los Angeles County Sheriff’s Depart-

ment (“LASD”). Specifically, the Court ordered:

that the defendants and their officers, agents,

servants, employees, and all others in active con-

cert of participation with them are enjoined dur-

ing the pendency of this action from holding

individuals who have been acquitted of the

charges on which they are being held, or whose

release has been ordered by a court, beyond the

period of time that is required to perform the

administrative steps incident to release, includ-

ing a check for wants and holds known to the de-

fendants at the conclusion of the administrative

steps incident to the release, but not including

- additional time for the receipt or processing of

wants and holds not known to the defendants at

the conclusion of the administrative steps inci-

dent to release.

(Court’s 11/7/98 Order at 45-46 (footnote omitted).)

On April 26, 2001, nearly 30 months after issuing the

preliminary injunction, the Court denied the plaintiffs’

motion to convert the preliminary injunction into a per-

manent injunction. The Court found that, absent a judg-

ment on the merits, the plaintiffs were not entitled to

permanent injunctive relief.

The plaintiffs then moved for summary judgment and

a permanent injunction, while the defendant Sheriff Lee

Baca (the “defendant”) filed a cross-motion for summary

judgment, arguing that the action was moot as a result of

App. 7

the defendant’s full compliance with the Court’s prelimi-

nary injunction. The Court granted the defendant’s mo-

tion, finding that the defendant had presented evidence

that the County had instituted measures designed to

ensure compliance with the preliminary injunction.

Because the plaintiffs failed to come forward with any

evidence to suggest that the defendant had failed to

comply, or was likely to engage in further violations, the

plaintiffs’ motion for a permanent injunction was denied

and the action was dismissed as moot.

Counsel for the plaintiffs now move for attorney fees’

as a prevailing party under 42 U.S.C. § 1988. The defen-

dants oppose this motion on the grounds that: (1) the

plaintiffs cannot be considered prevailing parties in light

of the recent Supreme Court decision in Buckhannon, (2)

the plaintiffs’ request for attorneys’ fees is stacutorily

precluded by the Prison Litigation Reform Act (“PLRA”),

42 U.S.C. § 1997e; and (3) assuming, arguendo, that the

plaintiffs are entitled to recover despite Buckhannon and

the PLRA, their requested fees are unreasonable and

should be reduced.

II. Legal Standard

1. Attorneys Fees Under 42 U.S.C. § 1988

The fee shifting provisions of § 1988(b) state: “[iJn any

action or proceeding to enforce a provision of sections ...

1983 ... of this title [and other specified sections], the

court, in its discretion, may allow the prevailing party,

other than the United States, a reasonable attorney's fee

as part of the costs...” 42 U.S.C. § 1988(b).

App. 8

III. Discussion

In the recent case Buckhannon Board & Care Home,

Inc. v. W. Virginia Dept. of Health & Human Resources,

the Supreme Court interpreted the meaning of the term

“prevailing party” and considered the character of judicial

relief that a party must receive in order to recover attor-

ney fees. 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855

(2001). The defendants contend that because this Court

denied the plaintiffs’ request that the preliminary injunc-

tion be made permanent, and concurrently granted sum-

mary judgment to the defendants on the grounds that the

action was moot, the plaintiffs cannot be considered a

prevailing party under Buckhannon. The Court disagrees.

A. Buckhannon’s Treatment of Prevailing Par-

ties and Its Application in the Ninth Circuit

The plaintiff in Buckhannon was the operator of a

nursing home that failed a West Virginia State Fire

Marshall inspection for violating a state law requiring

that all home residents be capable of “self preservation”

(i.e. that they be able to remove themselves from danger-

ous situations such as fire). Buckhannon, 532 U.S. at 600.

After receiving a cease and desist order requiring closure

of the nursing home, the plaintiff brought suit seeking

declaratory and injunctive relief on the grounds that the

“self-preservation” requirement violated the Fair Housing

Amendments Act of 1988, 42 U.S.C. §3601 et seq.

(“FHAA”) and the Americans with Disabilities Act of 1990,

42 U.S.C. § 12101 et seg. (“ADA”). Id. at 600-01. The

respondents agreed to stay enforcement of the order

pending resolution of the controversy, and after discovery

had commenced, the state legislature enacted two bills

eliminating the “self preservation” requirement. Jd. at 601.

SS

= ie — — a

App. 9

Since the allegedly offensive provisions were eliminated

and there was no indication that the state legislature

would repeal the amendments, the District Court granted

the respondents cross-motion for summary judgment,

finding that the the [sic] action was moot. Id. The plain-

tiffs then moved for attorneys’ fees as the “prevailing

party” under the FHAA and the ADA, arguing that they

were entitled to recover under the “catalyst theory” :

In rejecting the catalyst theory, the Supreme Court

stated that “enforceable judgments on the merits and

court-ordered consent decrees create the material altera-

tion of the legal relationship of. the parties necessary to

permit an award of attorney's fees.” Id. at 604 (internal

citations omitted). A judgement on the merits “provides

the necessary foundation for a plaintiff’s status as a

prevailing party because the plaintiff has received at least

some relief based on the merits of the claim” either in the

trial court or on appeal. Perez-Arrellano v. Smith, 279 F.3d

791, 793 (9th Cir.2002) (citing Buckhannon, 532 U.S. at

604 (internal citations omitted)). A consent decree is

acceptable, even without an admission of liability, “be-

cause it is a ‘court-ordered chang[e] [in] the legal relation-

ship’ between the parties.” Id. (quoting Buckhannon, 532

U.S. at 604).

The Supreme Court also expressed concern that the

catalyst theory “allows an award where there is no

1 The catalyst theory allows a plaintiff to recover as the prevailing

party “if it achieves the desired result because the lawsuit brought

about a voluntary change in the defendant's conduct.” Id. at 601. Prior

to Buckhannon, this approach was utilized by courts in the First,

Second, Third, Sixth, Seventh, Ninth, Tenth and Eleventh Circuits. Id.

Se ee een

App. 10

judicially sanctioned change in the legal relationship of

the parties.” Buckhannon, 532 U.S. at 605. Specifically, the

Court noted that under the catalyst theory, a plaintiff

could recover if it established that the complaint had

enough merit to withstand dismissal for failure to state a

claim or lack of jurisdiction. Jd. In rejecting this potential-

ity, the Court held that “[a] defendant’s voluntary change

in conduct, although perhaps accomplishing what the

plaintiff sought to achieve by the lawsuit, lacks the neces-

sary judicial imprimatur on the change.” Jd. (emphasis in

original). The Court clearly stated that a “non-judicial

alteration of actual circumstances” has never been the

basis for awarding attorney’s fees under a prevailing party

theory.’ Id. at 606.

The Court also addressed concerns “that the catalyst

theory is necessary to prevent defendants from unilater-

ally mooting an action before judgment in an effort to

avoid an award of attorney’s fees.” Id. at 608. The Court

was skeptical of these assertions in the absence of any

empirical evidence. Jd. However, the Court did acknowl-

edge the “petitioner’s fear of mischievous defendants” and

noted that:

[These concerns] only materialize in claims for

equitable relief, for so long as the plaintiff has a

cause of action for damages, a defendant’s change

in conduct will not moot the case. Even then, it is

* In attacking the dissent, the majority opinion stated: “We cannot

agree that the term ‘prevailing party’ authorizes federal courts to award

attorney’s fees to a plaintiff who, by simply filing a nonfrivolous lawsuit

(it will never be dete*mined), has reached the ‘sought after destination’

without obtaining any judicial relief.” Id. at 606 (internal citations

omitted) (emphasis in original).

App. 11

not clear how often courts will find a case

mooted: ‘It is well settled that a defendant’s vol-

untary cessation of a challenged practice does not

deprive a federal court of its power to determine

the legality of the practice’ unless it is ‘absolutely

clear that the allegedly wrongful behavior could

not reasonably be expected to recur.’

Id. at 608-09 (quoting Friends of Earth, Inc. v. Laidlaw

Environmental Services (TOC), Inc., 528 U.S. 167, 189,

120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (internal citations

omitted)).

Lastly, the Court rejected the catalyst theory out of a

concern that its application could “spawn a second litiga-

tion of significant dimension.” Jd. at 609 (internal citations

omitted). This is because application of the catalyst theory

would require a “highly factbound inquiry [into] the

defendant’s subjective motivations in changing its con-

duct.” Id.

The Ninth Circuit has since ruled that although

Buckhannon involved .the fee-shifting provisions of the

FHAA and ADA, “the Supreme Court’s express rule of

decision sweeps more broadly.” Perez-Arellano, 279 F.3d at

794. The Perez-Arellano court noted that Buckhannon

explicitly referred to “numerous federal statutes that allow

attorney's fees and costs to the prevailing party,” including

42 U.S.C. § 1988. Id. Thus, in Perez-Arellano, the court

applied the Buckhannon rationale to the fee shifting

provisions of the Equal Access to Justice Act (“EAJA”), 28

U.S.C. § 2412(d)(1)(A). Although the EAJA is not men-

tioned in Buckhannon, the Ninth Circuit could discern no

—

App. 12

reason to interpret the “prevailing party” language of the

EAJA inconsistently with Buckhannon.’ Id. Therefore, this

Court’s analysis must comport with the Ninth Circuit’s

analysis of Buckhannon.

1. The Defendants’ Application of Buckhannon

The defendants point to language from this Court’s

November 7, 2001 order granting summary judgment to

the defendants, which states: “plaintiffs are not entitled to

a permanent injunction because their motion for summary

judgment was denied and they [have] therefore not suc-

ceeded on the merits of their claims.” (Court’s 11/7/01

Order.) The defendants cite precedent from the Fourth

Circuit explaining that:

[T]he fact that a preliminary injunction is

granted in a given circumstance, then, by no

means represents a determination that the claim

in question will or ought to succeed ultimately;

that determination is to be made upon the ‘delib-

erate investigation’ that follows the granting of

the preliminary injunction.

* Given the Ninth Circuit’s recognition of the broad sweep of

Buckhannon, and its finding that “[t]he Supreme Court did not

expressly limit its interpretation of ‘prevailing party to the FHAA,

ADA, and those statutes listed as examples of similar text,” the Court

rejects the plaintiffs’ argument that discussion of § 1988 in Buckhannon

is merely dicta. Moreover, the plaintiffs’ reference to Brickwood

Contractors, Inc. v. United States, 49 Fed. Cl. 738 (2001), as an example

of how Buckhannon may be distinguished, is misplaced in light of the

Ninth Circuit’s direct rejection of Brickwood. See Perez-Arellano, 279

F.3d at 794, fn. 4 (rejecting Brickwood’s contention that Buckhannon is

limited to the ADA and FDAA, as well as Brickwood’s consequent

interpretation of the EAJA).

App. 13

Smyth and Montgomery v. Rivero, 2002 U.S. App. LEXIS

2665 *1, *18-19 (4th Cir. 2002).

The defendants argue that because the preliminary

injunction is not a binding adjudication on the merits, and

given that the defendants prevailed at summary judgment

on grounds of mootness, the plaintiffs cannot be “prevail-

ing parties” who have secured a judgement on the merits

under Buckhannon.

2. The Proper Application of Buckhannon

The defendants’ argument belies the actual circum-

stances of this case and is inconsistent with the rationale

of Buckhannon.

a. Issuance of a Preliminary Injunction in

this Case was Judicial Action that Ma-

terially Altered the Legal Relationship

of the Parties

In this case, the plaintiffs received relief from the

Court which instituted a change in the legal relationship

between the parties. When this action was originally filed,

the plaintiffs sought injunctions requiring the LASD to: (1)

alter its claims-settlement process (including waiver

considerations); (2) regularly provide inmates with paper-

work through which they could report alleged overdeten-

tion; and (3) refrain from delaying release of inmates

against whom charges are dropped in court while checks

were made to assure the absence of any other wants or

holds against the inmate.

In opposition, the defendants filed a motion to dismiss

the FAC. This motion to dismiss was denied. in part and

App. 14

granted to the extent the Court issued the preliminary

junction previously described. (See Background, supra Sec.

I.) In opposition to the instant motion for attorneys’ fees,

the defendants state:

Rather than appeal this ruling or litigate the

matter further, following the issuance of the pre- -

liminary injunction, a department-wide policy at

the LASD was developed in order to voluntarily

comply with the preliminary injunction and de-

fendant has been in full compliance with the pre-

liminary injunction since its issuance.

(Defs’ Opp. at 1:22-26 (emphasis added).) The defendants

further state that:

Ultimately, based on the uncontroverted evidence

proving compliance with the preliminary injunc-

tion and the clear indication that there was abso-

lutely no intention of instituting any future

policy or procedure that was prohibited by the

preliminary injunction, judgement was granted

in favor of the defendants.

(Id. at 3:14-16.) In light of these admissions, it is clear that

the LASD did not voluntarily alter its behavior as a result

of the plaintiffs bringing suit. Rather, the defendants

changed their policies in order to comply with this Court’s

order.*

* The plaintiffs waited more than two years before moving for

summary judgment and requesting that the injunction be made

permanent. At that point, the defendants produced evidence of changed

policies which the plaintiffs failed to refute. Therefore, the Court

granted summary judgment on the grounds that the action was moot.

ee es es ee

ee ee a ae eee

App. 15

In this case, the judicial imprimatur was stamped on

an injunction that led to an alteration of actual circum-

stances. Here, the plaintiffs brought an action for equita-

ble relief only. In response to the injunction, the LASD

changed its conduct and mooted the case.” Because the

defendants have admitted they changed course in order to

comply with the injunction, there is no concern here of

future “mini-litigations” designed to determine the defen-

dants’ subjective motivation. Buckhannon can be further

distinguished because in this case the issue became moot

in response to actions taken by the defendant itself, as

opposed to a state legislature.°

Given the admitted compliance with the injunction,

and the subsequent determination that the equitable

action was moot on account of the defendants’ compliance, —

the Court finds that the plaintiffs were prevailing parties

who had secured a change in actual circumstances as a

result of a judicial determination. This holding complies

not only with the holding of Buckhannon, but also with

principles of fundamental fairness.

5 Moreover, although courts may not often find a case mooted, the

finding was appropriate here when there was no reasonable expectation

that the LASD was likely to engage in further violations.

‘ Further, the Court notes that in Justice Scalia’s concurring

opinion he reasoned that the Buckhannon rule was consistent with

Talmage v. Monroe, 119 P. 526 (1911). Buckhannon, 532 U.S. at 614 fn.

2 (Scalia, J., concurring). Justice Scalia explained that, in Talmage,

costs were awarded after the defendant complied with an alternative

writ of mandamus, where it was the writ, and not the mere petition,

which led to the defendant’s actions. Here too, the defendant acted to

comply with the Court’s Order and not because of the mere filing of an

action.

App. 16

3. Effect of the PLRA

The LASD contends that the PLRA applies to this

action, and that plaintiffs should not be able to recover

under the PLRA since there was never an “actual viola-

tion” of the plaintiffs’ rights. Even if there was such an

“actual violation”, the LASD contends that the plaintiffs’

fees should be reduced to comply with the provisions of the

PLRA. These arguments are without merit. In this Court’s

previous Order granting the preliminary injunction and

certifying the class, the Court held that “[t]he PLRA does

not apply to this action.” (Court’s Order Granting Prelim.

Injunc. at 15, fn.5.) lice

IV. Reasonableness of Requested Fees

Prior to analyzing the reasonableness of the requested

fees, the Court first summarizes the plaintiffs’ request:

286.25 hours @ $550.00=$157,437.50 (Stephen Yagman)

006.25 hours @ $400.00=$2,500.00 (Kathryn S. Bloomfield)

043.75 hours @ $350.00=$15,312.00 (Richard H. Millard)

[29.00 hours @ $550.00=$15,950.00 (Joseph Reichman)-NC]

Fee Total: $191,199.50, of which $175,249.50 is requested

With regard to costs, the plaintiffs request $1,653.00

($150 filing fee, $696 in depositions, $45.50 in messengers,

and $761.50 in photocopies (3,046 copies @ $0.25 per

page)).’

" Yagman’s resume speaks for itself. Kathryn Bloomfield is a

partner in Yagman’s firm, a lawyer for 15 years, holds a chemical

engineering degree in addition to her JD, and has clerked for several

magistrates. Richard Millard has practiced law since 1966, working as

(Continued on following page)

App. 17

The filings drafted by Stephen Yagman (“Yagman”) in

this case are:

1) Complaint (5/24/98)

2) Motion for Class Certification (5/27-28/98)

3) Motion for Preliminary Injunction (5/30/98)

4) First Amended Complaint (7/1/98)

5) Reply to Opposition to Prelim. Injunc. (7/8/98)

6) Reply to Opposition to Class Certification (7/10/98)

7) Opposition to Motion to Dismiss (7/26/98)

8) 4 Mot.’s for Findings of Viol. of Prelim. Injunc. (3/23&

29/01)

9) Opp. to Def.’s Ex Parte Motion (6/21/01)

10) 10 Sets of Interrogatories (7/18/01)

11) Motion for Summary Judgment (8/16/01)

12) Reply to Pl.’s Opp. to Summary Judgment (9/01/01)

13) Reply to Pl.’s Objections to Evidence for MSJ (09/11/01)

14) Reply to Opp.’s Sanctions Motion (9/14/01)-(no charge)

15) Reply to Opp.’s Motion to Strike (9/16/01)

16) Opp. to Def.’s Cross-Motion for Summary Judgment

(10/15/01)

In addition to time spent drafting pleadings, most of

Yagman’s other hours were spent reading pleadings,

making telephone calls, having discussions with co-

counsel, taking depositions and reviewing deposition

testimony, and drafting various office memos and letters.

a public defender for most of that time until leaving for private practice

in 1989. Over the last 8 years, he has been co-counsel with Yagman on

approximately 20 cases, in addition to working on various civil rights

and capital cases. -

PES ie Se ee

SN I a Ng a cu I RRO ae a, RNAse

PRN rc rene SSS ee

App. 18

Richard Millare’s 43.75 hours were spent interviewing

clients, making telephone calls, studying the various motions

and orders, and conferencing with co-counsel.

Kathryn Bloomfield billed 6.25 hours for researching

and preparing memoranda, and attending a hearing.

In addition, Yagman provides receipts for three deposi-

tions, as well as a messenger service receipt.

A. Legal Standard

To determine the amount of an award of attorney’s

fees, the court must first calculate the “lodestar amount”

by multiplying the number of hours reasonably spent on

the litigation by the reasonable hourly billing rate.° Long

vu. United States Internal Revenue Service, 932 F.2d 1309

(9th Cir.1991). A prevailing plaintiff must submit to the

court documentation of the hours expended in the case and

the hourly fees claimed. “If these two figures are reason-

able, there is a ‘strong presumption’ that their product, the

lodestar figure, represents a reasonable award.” Jordan v.

Multnomah County, 815 F.2d 1258 (9th Cir.1987) (quoting

Pennsylvania v. Delaware Valley Citizens’ Council for

Clean Air, 478 U.S. 546, 106 S.Ct. 3088, 92 L.Ed.2d 439

(1986)).

* The LASD contends that the PLRA applies to this action, and

that, as such, the award of attorney’s fees under the statute is limited

to a maximum hourly rate of 150% of the rate paid to court appointed

counsel under 18 U.S.C. § 3006A: (Opp. at 10:22-28.) However, as this

Court held in its order granting the plaintiff’s motion for preliminary

injunction, “(t]he PLRA does not apply to this action.” (Order Granting

Prelim. Injunc. at 15:fn.5.)

App. 19

In determining the reasonableness of the hours billed

the court will also examine whether the time spent is

compensable, what hourly rates should be applied, and

whether the hours should be reduced because of excessive

time spent on a particular activity. Nat? Ass’n of Con-

cerned Veterans v. Sec. of Def., 675 F.2d 1319, 13827-1328

(D.C.Cir.1982). Additionally, the court may reduce the

amount of an award of attorney’s fees if the hours billed

are (1) duplicative, Carter v. Sedgwick County, 36 F.3d 952

(10th Cir.1998), cert denied, (2) not allotted to specific

tasks, Case v. Unif. Sch. Dist. No. 233, Johnson City, 157

F3d 1243 (10th Cir.1998), or (3) if the plaintiff obtains

only partial or limited success. Hensley v. Eckerhart, 461

U.S. 424, 436-37, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983).”

B. Summary of Plaintiff’s Fee Requests

As detailed supra, the plaintiffs are entitled to an

award of attorneys’ fees under Section 1988. The plaintiffs’

counsel have submitted documentation regarding the

number of hours expended on this matter since it began in

1998. The Fee Summaries document that Stephen Yag-

man, who served as lead counsel in this matter, expended

286.25 hours on this matter and Kathryn S. Bloomfield

° The defendants contend that this Court should also consider (1)

the novelty and complexity of the disputed issues, (2) the special skill

and experience of counsel, (3) the quality of the representation, and (4)

the results obtained, in determining the reasonableness of the re-

quested hours expended. Blum v. Stevenson, 465 U.S. 886, 898-900, 104

S.Ct. 1541, 79 L.Ed.2d 891 (1984). However, when the court in Blum

considered these factors, it did so in order to determine the “appropri-

ateness of the upward adjustment of the fee award,” and not the

reasonableness of the hours reported. Id.

App. 20

and Richard R. Millard spent 6.25 and 43.75 hours respec-

tively. The plaintiffs do not seek fees for Joseph

Reichman’s work on the matter, which totaled 29 hours at

an hourly rate of $550.00. In sum, the plaintiffs seek an

award of attorneys’ fees in the amount of $182,537.00.”

Plaintiffs’ counsel indicate the present hourly rate for

Stephen Yagman is $550.00 and Kathryn S. Bloomfield’s

and Richard R. Millard’s hourly rates are $400.00 and

$350.00 respectively. While the plaintiff’s attorneys billed

hours in years where they charged lower hourly rates, it is

appropriate to apply current hourly rates rather than

historic rates in reaching an award of attorney’s fees.

Missouri v. Jenkins by Agyei, 491 U.S. 274, 109 S.Ct. 2463,

105 L.Ed.2d 229 (1989). The billing rate used by the

district court in arriving at its lodestar figure should be

established by reference to the fees that private attorneys

of an ability and reputation comparable to that of prevail-

ing counsel charge their paying clients for legal work of

similar complexity. Davis v. City of San Francisco, 976

F.2d 1536, 1542 (9th Cir.1992).

The Court finds that the hourly rates are excessive.

Based on the Court’s own experience in considering fee

’° The plaintiffs’ motion for an award of attorney’s fees requested

an award of $175,249.50. This figure has been adjusted to include fees

totaling $7,287.50 for Yagman’s work on the plaintiffs’ reply to the

defendant’s opposition to the fee application. Yagman billed 13.25 hours

at $550.00/hour, for reading and analyzing the defendant’s opposition to

the plaintiffs’ fees motion, additional research, and writing the plain-

tiffs’ reply to the defendant’s opposition to the motion for attorney’s fees.

(Reply at 8:9-17.) The Court finds that the amount of time spent by

Yagman responding to the defendant’s opposition to the fee application

was reasonable.

App. 21

requests by other counsel, and given the lack of contempo-

rary evidence submitted by the plaintiff to demonstrate

the reasonableness of the claimed rates, the Court finds it

appropriate to reduce the rates as follows: the hourly rate

for Stephen Yagman for this case is $400.00, and Kathryn

S. Bloomfieid’s and Richard R. Millard’s hourly rates are

$300.00 and $250.00 respectively.” Specifically, Yagman

has not submitted any evidence that he was awarded a fee

in excess of this adjusted rate for any similar case. Other

cases where the plaintiff’s counsel was awarded an hourly

rate of $450 are distinguishable from the instant case

because, in those cases, the court specifically found that

the complexity of the issues merited such an award. In

this case, the Court does not find that the complexity of

the issues merit a rate at the highest end of the spectrum,

as Yagman requests.

1. Fees Relating to Unsuccessful Claims

While a court may reduce the fee award in cases

where the plaintiff only received partial or limited success,

Hensley, 461 U.S. at 436-37, such a reduction is not war-

ranted in this case. As the Ninth Circuit held in Cabrales

" The Court notes that the plaintiff’s evidence also does not

support a fee award for an hourly rate of $550 in part because most of

the plaintiffs’ supporting evidence is out-of-date. The Blecher declara-

tion states that Mr. Blecher bills at a maximum of $450 per hour,

although this declaration is dated 1996. (Blecher Decl. 7 3.) The chart

detailing the highest hourly rates at law firms reflects a maximum

hourly rate of $400, although it appears to reflect 1988 figures. Out of

the evidence that addresses billing rates for the more recent past, there

is minimal support for the requested rate. For example, the O'Neill

declaration executed in 2002 suggests only that a billing range between

$400 and $600 is appropriate. (O'Neill Decl. { 4.)

App. 22

v. County of Los Angeles, “[a] plaintiff who is unsuccessful

at a stage of litigation that was a necessary step to her

ultimate victory is entitled to attorney's fees even for the

unsuccessful stage.” 935 F.2d 1050, 1052 (9th Cir.1991).

The defendants claim that because judgment was

ultimately entered in favor of the defendants, a substan-

tial amount of the hours claimed by the plaintiffs are

unreasonable.” Specifically, the defendants claim that the

defendants “should not have to pay for plaintiff’s counsel’s

choice to spend inordinate amounts of time on frivolous

matters following April 24, 2001.” (Defs’ Opp. at 19:4-5.)

The defendants appear to contend that the April 26, 2001

Order was dispositive on the issue of whether a permanent

injunction would be issued. This is not the case: The Order

reads:

The plaintiffs must succeed on the merits of their

claims to be entitled to a permanent injunction.

Here, the plaintiffs have not succeeded on the

merits of their claims through a motion for sum-

mary judgment or trial, and therefore are not en-

titled to summary judgment.

(Court’s April 26, 2001 Order) (citations omitted) (empha-

sis added).

Accordingly, the plaintiffs filed a motion for summary

judgment. The Court does not find that the hours spent by

the plaintiffs’ counsel following the April 26, 2001 order

2 The defendant’s argument that the amount of the plaintiffs’ fee

award should be reduced because some of the plaintiff’s claims were

dismissed on the defendant’s motion to dismiss fails for the reasons

discussed above.

App. 23

were “frivolous.” Therefore, the Court finds that the hours

billed after April 2001 should not be reduced solely be-

cause the Court ultimately denied the plaintiffs’ motion for

a permanent injunction.

2. Specificity of Descriptions for Hours Billed

The defendants claim that, as in Case, the plaintiffs’

accounting for hours marked as “conference” do not meet

the plaintiffs’ burden of showing that the billed hours were

allotted to specific tasks. Case, 157 F.3d at 1253. In Case,

the court found reductions appropriate for time spent in

“conference” because the billing entries did not show how

much time was spent in or what happened at conference.

Id. Discussing the specificity which billing hours must

meet, the Supreme Court stated, “counsel, of course, is not

required to record in great detail how each minute of time

was expended. But, at least counsel should identify the

general matter of his time expenditures.” Brady v. Fort

Bend County, 145 F.3d 691, 716 (5th Cir.1998) (citing

Hensley v. Eckerhart, 461 U.S. 424, 437 n. 12, 103 S.Ct.

1933, 76 L.Ed.2d 40 (1983)).

Yagman rendered services on March 22, 2001 which

are described solely as “telephone” and “memo to file,” and

which record the time spent at one hour. (Pls’ Decl. in

Support of Mot. for Attys’ Fees at 1, hereinafter “Pls’

Decl”.) Except for the March 22, 2001 entry, all of Yag-

man’s entries for “telephone” either list the person with

whom he spoke, or the entries are bundled with other

tasks. Richard H. Millard’s fee summary contains a total of

4.55 billed hours described only as “Telephone call(s)". (Pls’

Decl., Ex. A.) As in Case, the Court finds that hours billed

only as “telephone” or “telephone call(s)” do not meet the

ee

App. 24

requirement that billed hours be allotted to specific tasks.

Hensley, 461 U.S. at 437 n. 12. (finding that “at least

counsel should identify the general matter of his time

expenditures.”)

Therefore, the Court reduces the plaintiffs’ fee award

by a total of $1537.50 for failing to present with sufficient

specificity the tasks undertaken by Millard for a total of

4.55 hours and by Yagman for a total of one hour.

3. Excessive and Duplicative Fees

When more then one attorney works on a case or one

aspect of a case, the court may reduce the number of hours

billed as duplicative. LaPrade v. Kidder, Peabody & Co.,

146 F3d 899 (D.C.Cir.1998) (ten percent reduction in

attorney’s fees when six partners and seven associates

worked on case). It is within a court’s discretion to reduce

“the proposed lodestar by a reasonable amount without

performing an item-by-item accounting.” Jd.

In this case, there is some overlap in the work per-

formed by Yagman and Millard. As an example of such

overlap, the defendants point to the fact that Yagman

spent 7.75 hours reading the objections to the original

motions for preliminary injunction and class certification,

and Millard billed 0.5 hours for conducting the same

task.’ Another example cited by the defendants is that

Yagman spent five hours studying Sheriff Sherman Block's

% Millard’s June 12, 1998 entry also includes “Rec'd Ct. order

changing date of 6/15 to 6/29 in ctrm. 3.” (Pls’ Decl., Ex. A.)

App. 25

deposition and Millard spent 4.75 on the same task.”

Where both Yagman and Millard have billed for the same

task, the total accounting for these hours is as follows:

Yagman spent 38.25 hours and Millard spent 11 hours on

the same tasks. The Court finds that duplicative billing for

these matters is inappropriate and therefore denies fees

for the eleven hours that Millard billed for tasks that were

also performed by Yagman. Ramos v. Lamm, 713 F.2d 546,

554 (9th Cir. 1983).

The defendants also claim that Yagman overstated his

billable hours because on five different days, he expended

over eight hours on this matter. While ten and fourteen

hour days are extraordinary, the Court finds that Yag-

man’s Fee Summary is reasonable in light of the case

matter and length. The Court therefore finds that no

reduction of the plaintiffs’ fee award is warranted on this

basis because the hours billed are not necessarily exces-

sive nor duplicative.

4. Allowable Costs

Federal Rule of Civil Procedure 54(d)(1) provides

generally that “costs other than attorney’s fees shall be

allowed as of course to the prevailing party unless the

court otherwise directs.” Fed. R. Civ. P. 54(d)(1). An award

“ The defense fails to note that Millard recorded the time he spent

studying Block’s deposition with other services, such as: reviewing the

file, studying court rulings in related overdetention cases, and a

telephone call. (Pls’ Decl. Ex. A.)

The Court finds the amount of time billed for reading the deposi-

tion to be excessive and therefore reduces the amount of time for which

Yagman may be reimbursed for this task to two hours.

App. 26

of costs under Section 1988 may only include costs that

would “ordinarily be treated as reimbursable in a private

attorney-client relationship.” Davis v. City and County of

San Francisco, 976 F.2d 1536, 1557 (9th Cir.1992). The

plaintiffs’ attorneys claim costs totaling $1,653.00." The

Court finds that the costs incurred by the plaintiffs are

fully compensable under Section 1988 and therefore

awards $1,653.00 in costs to the plaintiffs.

IV. Conclusion

For the foregoing reasons, the Court awards the

plaintiffs attorneys’ fees in the amount of $128,325 and

costs totaling $1,653.00.”

IT IS SO ORDERED.

Costs are claimed as follows: filing fee costs of $150.00; deposi-

tion costs of $696.00; messenger costs of $45.50; and photocopying costs

of $761.50.

‘ The Court calculated the attorneys’ fee award in this case as

follows: 298.5 hours for Yagman (286.25 hours plus 13.25 hours minus

one hour) at an hourly rate of $400, 28.2 hours for Millard at an hourly

rate of $250, and 6.25 hours for Bloomfield at an hourly rate of $300.

App. 27

APPENDIX C

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

R. VANKE, et al., ) Case No. CV 98-4111 DDP (SHx)

Plaintiffs, )~ORDER

)

GRANTING MOTION FOR

CLASS CERTIFICATION,

GRANTING MOTION FOR

PRELIMINARY INJUNCTION,

DENYING IN PART AND

GRANTING IN PART

MOTION TO DISMISS.

(Filed Nov. 7, 1998)

V.

SHERMAN BLOCK,

et al.

Defendants.

wee eee ee Se”

This matter comes before the Court on the plaintiffs’

motions for class certification and preliminary injunction,

and on the motion of defendant Sheriff Sherman Block

(the “Sheriff’) to dismiss the action for failure to state a

claim upon which relief can be granted. The plaintiffs

contend that the Los Angeles County Sheriffs Department

(the “Department”) maintains an unconstitutional policy of

continuing to hold pretrial detainees who are entitled to be

released after acquittal or dismissal of the charges against

them in order to check for warrants,’ wants and holds.’

’ The complaint alleges that the Department checks for warrants.

The Sheriff contends that the Department does not check for warrants,

but only for wants and holds. (Walker Decl. { 5.)

? Wants and holds are the means by which one law enforcement

agency notifies another agency that the notifying agency has authority

to detain an individual currently in the custody of the notified agency.

(Continued on following page)

re

App. 28

The Sheriff’ contends that such record checks are not

constitutional violations, but rather are necessary steps in

the administrative process of releasing pretrial detainees.

Having considered the contentions of the parties in

light of the applicable legal authorities, the Court rules as

follows:

The motion for class certification is granted. The

Court finds that three of the named plaintiffs meet the

constitutional standing requirements, and that three of

the named plaintiffs meet the requirements set forth in

Rule 23 of the Federal Rules of Civil Procedure.

The motion for preliminary injunction is granted. The

Court makes a preliminary finding of fact that the De-

partment maintains and implements a policy under which

court-ordered releases are not carried out until the De-

partment has taken up to thirty-six hours to update its

computer database to reflect wants and holds that arrived

on the day of the order. The Court analyzes the constitu-

tional claims by separating release delays into two catego-

ries based on the government conduct causing the delay:

(1) delays caused by the administrative steps incident to

See, e.g., Cal. Code Regs. tit. 15 §§ 2000(b)(52), 2600, 5331, 5332, 5334

(authorizing parole agents and the California Board of Prison terms to

issue wants and holds for detained individuals upon reasonable

suspicion of parole violation); 8 U.S.C.A. § 1226(d) (West Supp. 1998)

(requiring Attorney General to devise and implement a system to assist

state law enforcement agencies in identifying aliens unlawfully present

in the United States pending criminal prosecutions).

* Among the two defendants remaining in the action, the Sheriff

and the County of Los Angeles (the “County”), only the Sheriff has

responded to the complaint and filed oppositions to the present motions.

errata

App. 29

release (“administrative delays”), and (2) delays caused by

the policy of deferring the commencement of those steps

until the Department has updated its database of wants

and holds (“investigative delays”). Administrative delays

are governed by the due process clause of the Fourteenth

Amendment. They violate due process if the delay is the

result of arbitrary or deliberately indifferent government

conduct that shocks the conscience. Investigative delays

constitute a reseizure and are governed by the Fourth

Amendment. Absent probable cause or reasonable suspi-

cion to believe that unprocessed wants and holds include a

want or hold against a particular individual whose release

has been ordered, continued detention of that individual

longer than required to perform the administrative steps

incident to release violates the Fourth Amendment guar-

antee against unreasonable seizure.

The Department acknowledges that it has no reason

to believe that a want or hold is more likely to arrive on

the day that an individual is ordered released than on any

other day during or after the individual’s period of lawful

custody. The speculation that a want or hold may appear,

absent any particularized reason to expect its appearance

for a given individual, does not provide a lawful basis to

detain that individual under the Fourth Amendment.

Therefore, the Department policy of continuing to detain

individuals for up to two days on the mere possibility that

a want or hold will appear creates an actual and imminent

threat to the Fourth Amendment rights of the named

plaintiffs and the class of detainees whom they represent.

Because the harm created by unlawful seizure is irrepara-

ble, injunctive relief is appropriate and required.

The Court concludes that the first amended complaint

states a claim under § 1983 based on the over-detention

App. 30

policy. The Court concludes, however, that the first

~ amended complaint fails to state a claim based on the

Department’s policy of approaching over-detained indi-

viduals with settlement offers. The motion to dismiss is

therefore granted in part and denied in part.

I. BACKGROUND

A. Parties, Claims & Remedies

The first amended complaint (“FAC”), filed July 1,

1998, alleges that plaintiff Vanke is a pretrial detainee

currently in the Sheriff's custody. (FAC q 10.) The FAC

alleges that Vanke “previously was over-detained [because

of] a check for warrants, wauis and holds and presently

believes he again will be over-detained for the same

reason. ...” (/d.)

Named plaintiffs E. Villafranco, R. Angulo, and V.

Halajian are also alleged to be pretrial detainees. (Jd.

q 16.) There are no allegations, however, that Villafranco,

Angulo or Halajian were over-detained in the past.

The action is brought on behalf of a purported class of

persons who “(1) are charged with crimes, (2) held in

County custody, (3) whose charges are dismissed, and (4)

who at that moment have an immediate and unconditional

right to be released from custody.” (Jd.) The class is al-

leged to include approximately 22,000 detainees. (Id.

q 18.)

The defendants are the Sheriff and the County. The

original complaint and the FAC also named seven mem-

bers of the Los Angeles County Board of Supervisors,

alleging that they caused over-detentions by voting to

indemnify county employees for punitive damage awards.

—————————————————ee

i

App. 31

The plaintiffs voluntarily dismissed the action against the

county supervisor defendants on the same day that the

FAC was filed. (See Stipulation and Order For Dismissal

Without Prejudice, filed July 1, 1998.)

The FAC alleges that the defendants violate detain-

ees’ Fourth Amendment right to be free from unreasonable

seizure and their Fourteenth Amendment right to due

process by continuing their detention, after an order of

release, to check for warrants, wants and holds.

The FAC seeks the following relief: (1) a declaration

that continued detention to check for warrants, wants and

holds is unconstitutional; (2) an injunction prohibiting (a)

the practice of retaining detainees whose charges have

been dismissed in order to check for warrants, wants and

holds, and (b) the practice of approaching detainees who

have been over-detained in order to offer “to pay them

relatively insubstantial sums of money in return for

waivers of a right to sue;” (3) an injunction mandating the

establishment of a mechanism to advise pretrial detainees

of their right not to sign waivers of liability, and mandat-

ing that all such waivers be unilaterally revocable for 30

days; (4) an injunction mandating that the defendants

circulate over-detention claim forms to all detainees every

five days, and requiring copies of any completed forms to

be filed with this Court, and served on the class counsel.

(FAC J 9; Mot’n at 6-7 (providing details of the claim form

process).)

II. MOTION FOR CLASS CERTIFICATION

A. Legal Standard

The party seeking class certification bears the burden

of proving that certification is appropriate. See Doninger v.

DME e MARGE Se

RS ee a eT ee

App. 32

Pacific Northwest Bell, Inc., 564 F.2d 1304, 1308 (9th Cir.

1977).

In considering a motion for class certification, the

Court does not consider the merits of the moving party’s

claims. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156,

177 (1974) (“We find nothing in either the language or

history of Rule 23 that gives a court any authority to

conduct a preliminary inquiry into the merits of a suit in

order to determine whether it may be maintained as a

class action.”).

The Court may consider the allegations of the com-

plaint in determining whether the Rule 23 requirements

are met. See Schwarzer et al., Federal Civil Procedure

Before Trial § 10:574 (Rutter 1998). In addition, the Court

may consider extrinsic evidence, and may request the

parties to supplement the allegations of the complaint

with sufficient evidence to allow informed judgment as to

each of Rule 23’s requirements. See id. § 10:575.

The plaintiffs have moved for certification under Rule

23(b)(2), which provides that a class action is maintainable

if “the party opposing the class has acted or refused to act

on grounds generally applicable to the class, thereby

making appropriate final injunctive relief or corresponding

declaratory relief with respect to the class as a whole.”

Fed. R. Civ. P. 23(b)(2).

In order to maintain a class action, a party must first

meet the following prerequisites listed in Rule 23(a):

Prerequisites to a Class Action. One or more

members of a class may sue or be sued as

representative parties on behalf of all only if (1)

the class is so numerous that joinder of all

members is impracticable, (2) there are questions

App. 33

of law or fact common to the class, (3) the claims

or defenses of the representative parties are

typical of the claims or defenses of the class, and

(4) the representative parties will fairly and

adequately protect the interest of the class.

Fed. R. Civ. P. 23(a).

B. Standing

As a threshold matter, before applying the Rule 23

factors, the Court is required to determine whether the

_named plaintiffs have Article III standing as individuals.

See O’Shea v. Littleton, 414 U.S. 488, 494 (1974); Allee v.

Medrano, 416 U.S. 802 (1974).

Class representatives must have standing at the

commencement of the action, although the action on behalf

of the class may continue if the representatives’ claims

become moot during the action. See County of Riverside v.

McLaughlin, 500 U.S. 44, 52-53 (1991); Lee v. State of

Oregon, 107 F.3d 1382, 1390 (9th Cir. 1997). In cases

alleging certain types of transitory harm, the class repre-

sentatives’ standing need not exist at the time of certifica-

tion, provided that it existed at the time the action was

filed. “‘[S]ome claims are so inherently transitory that the

trial court will not have even enough time to rule on a

motion for class certification before the proposed represen-

tative’s individual interest expires.’” McLaughlin, 500

U.S. at 52 (quoting United States Parole Comm’n v. Ger-

aghty, 445 U.S. 388, 399 (1980)); Gerstein v. Pugh, 420

U.S. 103, 110 (1975).

Under Article III of the Constitution, “the irreducible

constitutional minimum of standing contains three ele-

ments.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560

App. 34

(1992). The plaintiffs have the burden to allege‘ facts

supporting three elements: (1) an injury in fact; (2) a

causal connection between the injury and the conduct

complained of; and (3) a likelihood that the injury will be

redressed by a favorable decision. See Lujan, 504 U.S. at

560-61. om

In addition, standing to seek injunctive relief under

§ 1983 must be analyzed separately from standing to seek

retrospective relief. See City of Los Angeles v. Lyons, 461

U.S. 95 (1983). Lyons holds that a federal court plaintiff

does not have standing to obtain an injunction unless the

plaintiff shows a real or immediate threat that the plain-

tiff will be wronged again. Jd. at 105. A conjectural or

hypothetical threat of future injury is insufficient. See id.

at 105-10.

The threat that these plaintiffs will be detained for a

want and hold check is sufficiently certain under the rule

of Lyons. The plaintiff in Lyons could not allege with any

degree of certainty that he would ever by stopped by the

police again, and if stopped, subjected to a chokehold. Id.

Unlike the plaintiff in Lyons, these plaintiffs are already

in the defendants’ custody. Their custody is certain to end

either in release or remand to another law enforcement ‘a

agency. The application of the allegedly unconstitutional

policies to these plaintiffs is contingent on one event — a

* At the pleading stage, the plaintiffs burden is discharged by

“general factual allegations” to support each element. Lujan, 504 U.S.

at 561. Standing may be challenged at any stage of the litigation,

however. At summary judgment the plaintiff would have to set forth

facts demonstrating a genuine question; at trial, the facts demonstrat-

ing standing must be “supported adequately by the evidence.” Jd.

App. 35

release order — not on a speculative chain of events. See

Thomas v. County of Los Angeles, 978 F.2d 504, 507-08

(9th Cir. 1992) (holding that plaintiffs demonstrated a

realistic threat from future application of persistent

practice of police misconduct within a small neighbor-

hood); Gonzales v. City of Peoria, 722 F.2d 468, 481 (9th

Cir. 1983) (holding that where plaintiffs alleged that police

consistently applied city policy of checking immigration

status of motorists who appeared to be of Mexican descent,

contingent nature of future traffic stop did not defeat

standing).

The threatened injury — detention after a judicial

release order — will be directly caused by the defendants’

policy to delay release for a want and hold check, and

would be redressable by an injunction against the policy.

On the causation and redressability prong, however, the

situation of named plaintiffs Villafranco, Angulo, and

Halajian diverges from that of named plaintiff Vanke. The

Department currently has information that Vanke is

subject to a hold. (See Santos Decl., Ex. A. to Opp’n, { 2.)

Detention of Vanke after a judicial release order would

thus not be caused by the defendants’ policy of imposing

detention to perform a check; the check has already been

performed. Vanke’s continued detention, therefore, would

neither be caused by the current checking policy; nor

would it be redressable by an injunction against the policy.

While Vanke’s parole violation makes his standing

questionable, this lawsuit may go forward based on the

standing of named plaintiffs Villafranco, Angulo, and

Halajian. The presence of one named plaintiff with stand-

ing is sufficient to invoke federal court jurisdiction under

Article III without considering the standing of other

named plaintiffs. See Watt v. Energy Action Educ. Found.,

lial

App. 36

454 U.S. 151, 160 (1981); California ex rel. State Water

Resources Control Bd. v. F.E.R.C., 966 F.2d 1541, 1561

(9th Cir. 1992); Comer v. Cisneros, 37 F.3d 775, 788 (2d

Cir. 1994); 13A Charles A. Wright, Arthur R. Miller &

Edward H. Cooper, Federal Practice & Procedure

§ 3531.15, at 101 (1984).

The Court understands the Sheriffs contention that

Villafranco, Angulo, and Halajian might also be subject to

holds. The Court construes the allegation of the FAC that

these plaintiffs are entitled to immediate release upon

dismissal of their current charges to include an allegation

on information and belief that a check for wants and holds

would reveal no authority to hold them. (FAC 4 16.) At

this stage of the litigation, with the want and hold infor-

mation in the defendants’ control, this allegation is suffi-

cient to establish the standing of Villafranco, Angulo, and

Halajian.

The present detention of the named plaintiffs distin-

guishes this case from O’Shea, 414 U.S. 488, Lee, 107 F.3d

1382, Eggar v. City of Livingston, 40 F.3d 312 (9th Cir.

1994), and Nelsen v. King County, 895 F.2d 1248 (9th Cir.

1990). In these cases, the plaintiffs were safe from applica-

tion of the allegedly unconstitutional practices unless a

long chain of speculative events, some of which were

contingent on the plaintiffs’ voluntary choices, converged

to bring the plaintiffs within the defendants’ control, or

within a class of people likely to be harmed by the defen-

dants’ practices. See O’Shea, 414 U.S. at 496 (holding that

plaintiffs did not have standing because prospect of future

injury depended on likelihood that they would commit a

crime and be arrested); Eggar, 40 F.3d at 316 (holding

that standing did not exist where plaintiffs would have .-

to commit a crime, be arrested, plead guilty, and be

App. 37

sentenced to jail in order to be subject to challenged

practice); Nelsen, 895 F.2d at 1254 (finding only specula-

tive possibility that plaintiffs would suffer relapse into

serious alcohol dependency requiring residential treat-

ment, and leading to treatment in same facility where

previously treated); Lee, 107 F.3d at 1387-90 (finding only

speculative possibility that terminally ill plaintiff would

become depressed, explore assisted suicide option, and be

unduly pressured to choose it).

In light of the foregoing, the Court concludes that

three of the named plaintiffs have established Article III

standing.

C. Rule 23 Requirements

1. Prerequisites for Class Action Under Rule

23(a): Numerosity, Commonality, Typical-

ity, and Adequacy of Representation

a. Rules 23(a)(1) and (2): Numerosity and

Commonality

The Sheriff does not contest the plaintiffs’ showing

that the approximately 20,000 to 22,000 detainees in

County custody constitute a group too numerous for

practicable joinder, or that there are questions of law and

fact common to the class under Rules 23(a)(1) and (2). The

Court concludes that the prerequisites of Rules 23(a) and

(2) are met.

b. Rule 23(a)(3): Typicality

Typicality under Rule 23(a)(3) is shown when “a

plaintiffs injury arises from or is directly related to a

App. 38

wrong to a class, and that wrong includes the wrong to the

plaintiff.” 1 Herbert B. Newberg & Alba Conte, Newberg

on Class Actions § 3.13, at 3-72 (3d ed. 1992). In making

this determination, the Court looks to the elements that

the named plaintiffs must prove to prevail on the cause of

action. If the elements that the class representative must

prove are substantially the same as the rest of the class,

typicality is generally met. See id. §3.15 at 3-82. The

purpose of the typicality requirement is to ensure that the

interests of the named representative aligns with the

interests of the class. See Hanon v. Dataproducts Corp.,

976 F.2d 497, 508 (9th Cir. 1992).

The Sheriff contends that because detainees are not

entitled to instantaneous release, but only reasonable

release in light of all of the circumstances, proof of liability

for over-detention will require an individualized inquiry

for each class member. This contention, however, does not

defeat typicality. The individualized inquiry does not

require the named plaintiffs to prove different elements.

The contention that some class members’ detentions after

dismissal will be reasonable while those of other members

will not be reasonable does not change the fact that

liability for each class member turns on the same element,

reasonableness. See Hanon, 976 F.2d at 508 (“Typicality

refers to the nature of the claim or defense of the class

representative, and not to the specific facts from which it

arose or the relief sought.”).

The Court finds that the Rule 23(a)(3) typicality

requirement is met.

App. 39

c. Rule 23(a)(4): Adequacy of Representa-

tion

The Ninth Circuit has recognized two criteria for

determining the adequacy of class representation. See

Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 507, 512

(9th Cir. 1978). First, the representative must be able to

prosecuts the action vigorously through qualified counsel.

See id. Second, the representative must not have interests

that are antagonistic to the interest of the class. See id.

The standard for qualifications and competency of

class counsel looks to the attorney’s experience, resources,

ability, ethics, and any potential conflicts of interest. Class

counsel has met these requirements.

The Court finds no evidence that the named plaintiffs

have interests antagonistic to the rest of the class mem-

bers.

In light of the foregoing, the Court finds that the

requirements of Rule 23(a)(4) are met.

2. Grounds for Class Action Under Rule 23(b)(2)

The Sheriff does not dispute that by keeping released

detainees in detention to check for wants and holds, the

defendants have acted or refused to act on grounds gener-

ally applicable to the class. The Court finds that the

plaintiffs have presented evidence indicating that the

department maintains a policy of continuing detentions

beyond the time of acquittal or dismissal to check for

wants and holds. (See Block Depo. at 33.) This policy is

generally applicable to members of the class which the

plaintiffs seek to certify.

App. 40

D. Notice

Class actions under Rule 23(b)(2) are not subject to

the individual notice requirements of Rule 23(c)(2). See 2

Newberg § 8.05. Instead, notice in such class actions is

discretionary under Rule 23(d)(2). Here, because the relief

sought would be applicable to the class members gener-

ally, with little or no likelihood of conflicting interest

among class members, it appears at this stage of the

litigation that no notice is required. This ruling, however,

is without prejudice to future motions seeking notice

under Rule 23(d)(2).

E. Conclusion as to Class Certification

In light of the foregoing, the Court certifies the follow-

ing class: persons who (1) are charged with crimes, (2) held

in County custody, (3) whose charges may be dismissed (4)

under an order directing their release from County cus-

tody.

III. PRELIMINARY INJUNCTION

A. Legal Standard

The party seeking a preliminary injunction must show

either (1) a combination of probable success on the merits

and the possibility of irreparable injury if relief is not

granted, or (2) the existence of serious questions governing

the merits and that the balance of hardships tips in its

favor. See International Jensen, Inc. v. Metrosound U.S.A.,

Inc., 4 F.3d 819, 822 (9th Cir. 1993). These standards “are

not separate tests but the outer reaches of a single contin-

uum.” Jd. In addition, in cases affecting the public inter-

est, the court must consider whether the public interest

-

App. 41

will be advanced by granting preliminary relief.’ See

Miller v. Cal. Pac. Med. Ctr., 19 F.3d 449, 456 (9th Cir.

1994).

* Additionally, the Sheriff contends that injunctive relief in this

action must meet the standards of the Prison Litigation Reform Act of

1996 (“PLRA”). In the PLRA, Congress limited the availability and

scope of federal injunctions regarding prison and jail conditions. See 18

U.S.C. § 3626(g)(5) (defining “prison” to include local facilities that

detain juveniles or adults accused of crimes). The PLRA requires that

in any civil case involving prison conditions, any prospective relief

“shall extend no further than necessary to correct the violation of the

Federal right of a particular plaintiff or plaintiffs” and that the Court

make findings that any prospective relief is [sic] “is narrowly drawn,

extends no further than necessary to correct the violation of the Federal

right, and is the least intrusive means necessary to correct the violation

of the Federal right.” 18 U.S.C. § 3626(a)(1)(A). In addition, before

granting prospective relief under the PLRA the court must “give

substantial weight to any adverse impact on public safety or the

operation of a criminal justice system caused by the relief.” Id.

The PLRA does not apply to this action. The PLRA applies to any

“civil action with respect to prison conditions.” 18 U.S.C. § 3626(a)(1),

(2). This phrase is defined in the PLRA as

any civil proceeding arising under Federal law with respect

to the conditions of confinement or the effects of actions by

government officials on the lives of persons confined in

prison, but does not include habeas corpus proceedings chal-

lenging the fact or duration of confinement in prison.

18 U.S.C. § 3626(g)(2). The claims in this case do not involve constitu-

tional violations arising from the conditions of confinement. Instead,

the plaintiffs contend that the Constitution is violated by a systemic

policy of continuing to hold individuals in confinement after a judicial

order of release.

In addition, although the PLRA does not apply, the Court, in

applying the equitable standard for preliminary injunctive relief, has

considered the potential adverse effects on public safety, and has

narrowly drawn the prospective relief granted in this order to extend no

further than necessary to protect the federal right.

~

App. 42

The Ninth Circuit applies a rigorous factual review

where the district court enjoins a state law enforcement

agency. In such cases, there must be a strong factual

showing of a pervasive pattern of police misconduct. See

Thomas v. City of Los Angeles, 978 F.2d 504, 508 (9th Cir.

1992) (citing Rizzo v. Goode, 423 U.S. 362, 375 (1976)).

B. Preliminary Findings of Fact

For purposes of ruling on the preliminary injunction

motion, the Court makes the following preliminary find-

ings of fact.°

1. The evidence before the Court indicates that

the Department has a policy to process released detainees

by taking the following steps in the following order:

* In making these findings, the Court relies on the deposition of the

Sheriff attached as an exhibit to the original complaint, and on the

declaration of Lieutenant Mike Walker.

The Court does not rely on the newspaper article submitted by the

plaintiff in a post-argument brief seeking judicial notice. (See Plaintiffs

Rule 28() Analog, filed July 21, 1998; see also, Defendants’ Objection to

Plaintiffs’ Submission of “Rule 28(j) Analog” Statement, filed July 29,

1998.) The factual assertions contained in the article are not subject to

judicial notice because they are not facts commonly known or capable of

accurate or ready determination. See Fed. R. Evid. 201(b). Nor are the

assertions, as the plaintiffs contend, adoptive admissions of the

defendants. The article attributes the statement to no one in particular,

leaving the Court unable to determine whether the purported maker of

the statement was authorized to make it. In addition, the article

presents a double hearsay problem; even if the statement to the

reporter were an admission, the statement by the reporter is hearsay

outside of any applicable exception. The Court therefore disregards the

newspaper article.

iin

ee

EEO Raat SR Aer cae as Ta

App. 43

(a) After a detainee is acquitted or other-

wise ordered released, the detainee is returned to jail’ for

processing of release.

(b) The Department continues to hold the -

individual in jail, and does not begin the process of releas-

ing the individual until the Department confirms that the

individual is not wanted by another law enforcement or

correctional agency. (See Block Depo. at 29:12-20, 31:20-

25, 33:11-15, 48:15-49:19.) The Department makes this

determination by checking the detainee’s record in a

computer. database known as the Automated Justice

Information System (the “AJIS”). The Department policy

is to wait to perform this computer check until all of the

wants and holds that arrived on the day that the detainee

was ordered released have been entered into the AJIS.

Because of the volume of orders received, averaging 3,000

to 5,000 per day, the entry of any given day’s orders is

often not completed until late the following day, and

sometimes not until midnight of the following day.

(c) Only after the AJIS has been updated,

and the Department has checked a released detainee’s

AJIS record for wants and holds, does the Department

begin the administrative steps incident to release.

7 Male detainees are brought to the Inmate Reception Center

(“IRC”) for release processing. Female detainees are brought to the

Sybil Brand Institute for Women (“SBI”) for release processing. (See

Los Angeles County Sheriffs Department Manual of Policy and

Procedures § 5-03/005.00 at 5-03/1 (1996).) The Court takes judicial

notice of the manual under Rule 201(c) of the Federal Rules of Evi-

dence. .

App. 44

2. The Department applies the above-described

policy in the administration of the County jail system,

which consists of several jails with a total average daily

population of 20,000 to 22,000 inmates and detainees.®

(See Walker Decl.’ 7 3.) Annually, the Department books

and releases an average of 200,000 to 220,000 detainees.

(See id. ¥ 3.) |

3. Every weekday, the Department transports

an average of 1,800 to 2,000 inmates and detainees from -

its jail facilities to the courts. (See id. J 6.)

4. The IRC, which processes the release of male

detainees,” is contacted 24 hours a day by other law

enforcement and correctional agencies in order to place

holds on the release of detainees. (See id. ] 7.) The De-

partment usually receives such holds by telephone or

teletype. (See id.) The holds transmitted in this manner

* The Sheriff refers to all persons in county custody as “inmates.”

In order to be precise, the Court employs “inmates” to describe indi-

viduals who have been convicted of crimes and whose sentences include

incarceration in the County jail system. The plaintiff class in this action

does not include inmates. The Court employes “detainees” to describe

individuals who are being held on a finding of probable cause and are

awaiting trial. All members of the plaintiff class in this action are

detainees.

* The factual findings regarding the operation of the County jail

system are based on the declaration of Mike Walker, the Administra-

tive Lieutenant for the IRC. (Walker Decl. J 1.) The IRC processes all

male inmates and detainees leaving the County jail system.

According to the Department manual, female detainees are

processed by the SBI. (See Los Angeles County Sheriffs Department

Manual of Policy and Procedures § 5-03/005.00 at 5-03/1 (1996).) The

parties, however, have not presented evidence regarding the release

procedures followed at the SBI for female detainees.

App. 45

include immigration holds and holds placed by the State

Board of Prison Terms regarding parole violations. (See

id.)

5. Each weekday, the IRC receives an average of

3,000 to 5,000 paper transmittals from 10 superior court

| districts and 32 municipal court districts in the County.

| (See id. 78.) These transmittals include a number of

| different types of orders. Some of these orders affect the

| status of detainees, either by ordering or authorizing a

detainee’s release, or by requiring the Department to hold

a detainee for another agency. (See id. { 11.)

6. The superior and municipal courts send paper

transmittals to the IRC by placing them in bags to be

transported on the same buses used by the Department to

transport detainees to and from the courts. (See id. q 9.)

7. The peak volume of bus arrivals at the IRC

from the courts occurs between 6:00 p.m. and 7:00 p.m.

(See id. { 9.)

8. Bags of paperwork from the courts are emp-

tied by clerks at the IRC. The clerks then read and inter-

pret each paperwork item to determine what effect it has

on the status of the inmate or detainee to whom it refers.

This task is made more time-consuming by the use of

several different types of forms, and by incidents in which

court personnel make contradictory or inconsistent nota-

tions on the form. After interpreting the form, the IRC

clerk enters the resulting changes in inmate or detainee

status in the AJIS. (See id. {J 10-11.)

9. Counsel for the Sheriff represented during

oral argument that the task of entering one day’s paper-

work into the AJIS is often not completed until the

a

a

App. 46

evening of the following day, and sometimes past midnight

of the following day.

10. The Department is currently developing a

plan to connect the superior and municipal court com-

puters to the AJIS, in order to eliminate the paper trans-

mittal of orders. (See id. ] 14.) The Department predicts

that electronic transmittal of orders will eventually allow

detainees to be released directly from court after a check

of the electronically updated AJIS from the courthouse.

(See id.)

11. After the AJIS has been updated, the De-

partment begins taking the administrative steps necessary

to release the detainee. These steps include:

(a) checking the updated AJIS for wants

and holds;

(b) positively identifying the released

detainee using fingerprints to prevent erroneous releases

caused by detainees’ switching of wristband identifica-

tions. (sze id. J 15);

(c) returning the detainee’s personal prop-

erty (see id. J 14); the Department will in some instances

release a detainee without returning his property, allow-

ing the detainee to return to the IRC later to pick up his

property (see id. {J 14, 16); and

(d) updating the Department’s records to

reflect the detainee’s release.

12. The Department policy of returning detain-

ees to the IRC after a release order includes an exception

for instances where the court explicitly orders a detainee

released “in court.” (See Walker Decl. J 16 (referring to

» meee,

App. 47

in-court release procedure set forth in the Department

manual).) The Department manual only allows in-court

releases when the judge “specifically directs the deputy

having custody of the prisoner to release the inmate

‘in court.’”” If the judge orders the detainee released

" The Court takes judicial notice under Federal Rule of Evidence

201(c) of the 1996 edition of the Department manual. The manual

includes the following provision regarding in-court releases:

Under no circumstances shall a prisoner be released directly

from Court except following a direct order by a judge. A

prisoner ordered released “forthwith” or “immediately” shall

be returned to IRC/SBI unless the judge specifically directs

the deputy having custody of the prisoner to release the in-

mate “in court.”

When a judge orders a prisoner released “in court,” the deputy

having custody of the prisoner shall:

— Obtain the release order from the court specifying the

release is to “in court,”

— Obtain the release authorization from IRC/SBI by tele-

phone,

— Indicate the date, time, and name of the document ana-

lyst (IRC/SBI) authorizing the release, on the reverse

side of the court release order,

- Establish positive identification of the prisoner to be re-

leased (the identification band worn by the inmate is not

considered positive identification). If positive identifica-

tion of the prisoner cannot be established by personal

knowledge of the bailiff or court personnel, the judge

shall be so informed. The judge will be asked to permit

the prisoner to be returned to IRC/SBI for fingerprint

comparison and expedited release. When necessary, spe-

cial transportation may be provided. If the judge denies

the request, the bailiff will release the prisoner and

document the circumstances.

(Los Angles County Sheriffs Department Manual of Policy and

Procedures § 5-03/130.05, at 5-03/32 (1996).)

App. 48

““forthwith’” or “‘immediately,’” the manual requires that

the detainee be returned to the IRC or SBI for processing.

13. The majority of detainees are processed for

release after the Department receives an order written on

a superior court form which begins as follows: “This is to

authorize you to release” the detainee. (See Walker Decl.

{ 10 and Ex. thereto.) Most court clerks add the following

notation to the form: “This Case Only.” (See id.)

14. A recently reported decision of this Court

found that an acquitted detainee who had received an

unambiguous order stating “[dJefendant is released” was

held by the Department for an additional twenty-four to

forty-eight hours pursuant to the Department’s policy of

continuing to hold released detainees for purposes of

performing an updated AJIS check for wants and holds.

See Fowler v. Block, 2 F. Supp. 2d 1268, 1276 & 1279 n.8

(C.D. Cal. 1998).

15. There is no causal connection between the

court order to release a detainee and the arrival of a new

want or hold against the detainee. Counsel for the Sheriff

acknowledged the lack of a causal connection during oral

argument. Wants or holds are no more likely to arrive on

the same day as the release order than on any other day

before or after the release order.

C. Standing

In order to establish a likelihood of success on the

merits, the plaintiffs must show that they have standing

to bring this action.

App. 49

The standing issues are analyzed above in the class

certification discussion. (See, supra, at pp. 7-11.) The

named plaintiffs in this action have demonstrated stand-

ing by alleging that they are in detention, and by present-

ing evidence that the department has a consistent policy of

keeping released detainees for want and hold checks. (See

“Preliminary Findings of Fact,” supra, at pp. 16-22.)

D. Likelihood of Success on the Merits

“To sustain an action under section 1983, a plaintiff

must show (1) that the conduct complained of was commit-

ted by a person acting under color of state law; and (2)

that the conduct deprived the plaintiff of a federal consti-

tutional or statutory right.” Wood v. Ostrander, 879 F.2d

583, 587 (9th Cir. 1989).

1. What constitutional standard applies?

The parties dispute the issue of what constitutional

framework should be applied to over-detention claims. The

plaintiffs contend that over-detention violates their Fourth

Amendment right to be free from unreasonable seizure,

and their Fourteenth Amendment right to be free from

deprivation of liberty without due process. The Sheriff

contends that only the due process clause applies. Before

determining whether the plaintiffs have shown a likeli-

hood of success on the merits, it is necessary to determine

what constitutional standard applies. See County of Sacra-

mento v. Lewis, __ U.S. __, 118 S. Ct. 1708, 1714 n.5

(1998) (“As in any action under § 1983, the first step is to

identify the exact contours of the underlying right said to

have been violated.”).

App. 50

Constitutional claims arising from improper confine-

ment are examined using either a due process or Fourth

Amendment analysis. See Mackinney v. Nielsen, 69 F.3d

1002, 1009 (9th Cir. 1995). In cases where the plaintiff

challenges the lawfulness of confinement prior to a judicial

determination of probable cause for a warrantless arrest,

the Ninth Circuit employs a Fourth Amendment analysis.

See id. In cases where the plaintiff challenges the length of

confinement after a determination of probable cause, a due

process analysis applies. See Baker v. McCollan, 443 U.S.

137 (1979); Armstrong v. Squadrito,_ F.3d __, 1998 WL

416887 *4 (7th Cir. July 24, 1998); Mackinney, 69 F.3d at

1009; Villanova v. Abrams, 972 F.2d 792, 797 (7th Cir.

1992).

Where the Fourth Amendment applies to a constitu-

tional claim, the claim must be analyzed under the more

specific guarantee against unreasonable seizure, rather

than under the more generalized notion of Fourteenth

Amendment substantive due process. See Albright v.

Oliver, 510 U.S. 266, 273 (1994) (plurality); Graham uv.

Connor, 490 U.S. 386, 395 (1989). This case, however,

must be analyzed under both the Fourth Amendment and

the Fourteenth Amendment, because the plaintiffs chal-

lenge two distinct sources of delay, each of which is gov-

erned by a different constitutional right.

First, the plaintiffs challenge administrative delay.

Administrative delay is caused by the steps necessary to

implement the release order. Such steps include transpor-

tation, confirming the acquitted detainee’s identity

through fingerprinting or other methods, checking for

wants and holds already in the AJIS, returning the de-

tainee’s property, and physically allowing the detainee to

leave the jail. The permissible length of these steps is

oe ee a ee

App. 51

governed by substantive due process, because these

functions are part of the Sheriffs responsibility to properly

run the jail. See Block v. Rutherford, 468 U.S. 576 (1984);

Bell v. Wolfish, 441 U.S. 520 (1979). The burdens that this

administrative delay places on the plaintiff class members

can be understood as part of their transition from con-

finement to freedom.

Second, the plaintiffs challenge investigative delay.

Investigative delay results from the Department policy to

defer commencement of the administrative steps described

above until the Department staff has updated the AJIS

with wants and holds received during the day. The Sher-

iffs decision to extend confinement of acquitted detainees

for this purpose exceeds the scope of both the initial

finding of probable cause, and of the Sheriffs authority to

implement the release order in a manner consistent with

his responsibility to properly manage the jails. Because

this investigative delay exceeds the scope of the Sheriff's

lawful authority over the released detainee, it constitutes

a re-arrest, and must be analyzed under the Fourth

Amendment standard for reasonable seizures. Because the

more specific guarantees of the Fourth Amendment apply

to this investigative delay, the Court must apply the more

specific Fourth Amendment standard, rather than the

generalized substantive due process standard under the

Fourteenth Amendment.

2. Administrative Delay: Substantive due

process limits the Sheriffs authority to

continue holding an acquitted pretrial

detainee

After the government’s authority to hold the individ-

ual is established under the Fourth Amendment, the

App. 52

conditions and duration of the detention are governed by

substantive due process.” Substantive due process limits

% The Court notes that the rights of convicted inmates to be

released at the proper time as provided by indeterminate sentencing

statutes are governed by a procedural due process standard. See

Haygood v. Younger, 769 F.2d 1350 (9th Cir. 1985) (en banc). Haygood,

however, does not control this case. In Haygood, the California Adult

Authority, applying the indeterminate sentencing statute then in force,

miscalculated the prisoner’s sentence, causing him to he [sic] held in

prison five years after he should have been released. Id. at 1354. The

constitutional violation in Haygood was deprivation of a liberty interest

created by the state sentencing statute. Jd. at 1355. Sentenci_.g statutes

do not create substantive rights; instead they create the right to have

certain procedures followed to ensure an accurate calculation of the

sentence. The holding in Haygood is based on the principle that

convicted prison inmates have a due process right to fair administration

of the statute under which their sentences are calculated. Id.

Here, however, a pretrial detainee’s interest in being released after

an order of acquittal is not created by a statute for calculating the

period in which a pretrial detainee may be held. Instead, the pretrial

detainee, upon acquittal of the charge for which he is being detained,

regains his substantive liberty interest in freedom from confinement by

government without lawful authority.

Also distinguishable are cases involving a convicted inmate’s right

to be released from incarceration pursuant to a probation order, or to be

released from a more restrictive to a less restrictive form of incarcera-

tion. See Walters v. Grossheim, 990 F.2d 381, 384 (8th Cir. 1993)

(holding that failure of prison officials to comply with habeas writ

ordering prisoner moved to less restrictive level of detention deprived

prisoner of liberty interest under Fourteenth Amendment due process);

Stone v. Herman, 983 F.2d 107, 110 (8th Cir. 1993) (holding that

continued detention of prisoner after order suspending his sentence

deprives prisoner of liberty interest under Fourteenth Amendment due

process); Salahuddin v. Coughlin, 781 F.2d 24 (2d Cir. 1986). as in

Haygood, the constitutional violations in these cases arose from the

convicted prisoners’ liberty interests in the fair administration of state

statutes governing the length and conditions of their sentences. Such

cases do not address the situation of a person who was being held only

on probable cause of having committed a crime, who is acquitted of that

(Continued on following page)

App. 53

the conditions under which the individual may be held,

Bell, 441 U.S. at 536, the length of time during which the

individual may be held before his next judicial appearance,

Coleman v. Frantz, 754 F.2d 719 (7th Cir. 1985), and, most

important for this case, whether the government may

continue to hold the individual when new circumstances

arise that undermine the government’s lawful authority to

continue the detention, Duckett v City of Cedar Park, Tex.,

950 F.2d 272, 279 (5th Cir. 1992).

“The concept of ‘substantive due process’ ... forbids

the government from depriving a person of life, liberty, or

property in such a way that shocks the conscience or

interferes with rights implicit in the concept of ordered

liberty.” Nunez v. City of Los Angeles, 147 F.3d 867, 871

(9th Cir. 1998) (quoting United States v. Salerno, 481 U.S.

739, 746 (1987)). The standards for de‘ermining whether

executive action offends substantive due process are “less

rigid and more fluid than those envisaged in other specific

and particular provisions of the Bill of Rights.” County of

Sacramento v. Lewis, 118 S. Ct. at 1719 (internal quota-

tion marks omitted). Instead of applying a formal set of

fixed elements to any challenged executive practice, the

Court must examine the totality of the circumstances to

determine whether the challenged practice represents a

deliberate abuse of power that shocks the conscience. See

id. at 1718-19.

crime, and who is in effect re-arrested without probable cause to check

for wants and holds.

In light of the foregoing, the Court concludes that the procedural

due process standard applied in Haygood does not control this case.

Es ES Ge GR OR

_ ee it

App. 54

Although the substantive due process test is fluid, for

purposes of clarity, the Court must follow a basic frame-

work in analyzing the totality of the circumstances. The

Supreme Court has recently reiterated that the ultimate

question of law under substantive due process is whether

the challenged executive action “shocks the conscience” or

“interferes with rights implicit in the concept or ordered

liberty.” Jd. at 1717. Although the phrase “shocks the

conscience” carries the “unfortunate connotation of a

standard laden with subjective assessments,” the standard

does not depend on the subjective impression that the

challenged practice makes on the Court. Id. at 1722

(Kennedy, J, concurring). Instead, the standard depends ,

on the following three inquiries:

(1) Does the due process clause protect against the

challenged executive’s” conduct? This inquiry focuses on

the individual interest threatened by the challenged

government action. Not all individual interests affected by

government action receive constitutional protection.

Compare Nunez, 147 F.3d at 873-74 (holding that police

officers’ interest in promotion to higher rank is not pro-

tected by substantive due process against arbitrary gov-

ernment action), with, Armstrong, __ F.3d at __, 1998

WL 416887 *8 (holding that individuals arrested pursuant

* In County of Sacramento v. Lewis, the Court noted that the

criteria for examining government conduct under substantive due

process “Differ depending on whether it is legislation or a specific act of

a governmental officer that is at issue.” 118 S. Ct. at 1716. The chal-

lenged policy here is executive. The Court therefore applies the

standards set forth in County of Sacramento v. Lewis for examining

executive actions.

t

4

¥

App. 55

to valid warrants have a protected interest under substan-

tive due process against needlessly prolonged detention

before first appearance in court). The Supreme Court often

expresses the distinction between protected and unpro-

tected interests by repeating the formula that the Consti-

tution must not be transformed into “a font of tort law.”

County of Sacramento v. Lewis, 118 S. Ct. at 1717-18;

Daniels v. Williams, 474 U.S. 327, 332 (1986); Paul uv.

Davis, 424 U.S. 693 (1976).

(2) Does the executive’s level of culpability offend the

standards of substantive due process? An injury that

results from mere negligence cannot be characterized as

an abuse of power, and therefore does not offend substan-

tive due process. See County of Sacramento v. Lewis, 118

S. Ct. at 1718. By contrast, an injury that results from the

executive’s deliberate indifference may rise to the level of

a substantive due process violation, depending on the

totality of the circumstances. Compare id. at 1721 (holding

that in the context of a high-speed police pursuit in which

a police officer had no time for deliberation, deliberate

indifference is not sufficient to establish a substantive due

process violation; intent to injure is required), with, id. at

1719 (noting in dicta that deliberate indifference to the

welfare of inmates and pretrial detainees is sufficient to

make out constitutional violations because prison officials

have time to deliberate, except in riot conditions, which

are governed by a different standard).

(3) Does the executive’s conduct shock the con-

science? This final step is essentially a reprise of the first

two steps. Whether the challenged conduct shocks the

conscience depends on the importance of the threatened

interest, the extent of the injury to that interest, and the

level of culpability of the government actors in light of the

App. 56

factual circumstances. See Armstrong, __ F.3d at __,

1998 WL 416887 *18.

The Court applies these three questions to the period

of administrative delay and concludes that the administra-

tive delays here do not offend substantive due process.

a. Does the due process clause protect

individuals against continued deten-

tion after an order of release?

“To establish a substantive due process claim, a

plaintiff must, as a threshold matter, show a government

deprivation of life, liberty, or property.” Nunez, 147 F.3d at

871.

There can be no question that the plaintiffs in this

case have asserted a protected liberty interest. Freedom

from physical restraint or confinement in the absence of

lawful authority “has always been at the core of the liberty

protected by the Due Process Clause from arbitrary

governmental action.” Foucha v. Louisiana, 504 U.S. 71,

80 (1992); see also, Oviatt v. Pearce, 954 F.2d 1470, 1474

(9th Cir. 1992) (“the paradigmatic liberty interest under

the due process clause is freedom from incarceration”).

When the government loses lawful authority to detain an

individual, continued detention violates substantive due

process. See McNeil v. Director, Patuxent Inst., 407 U.S.

245 (1972).

During the period of pretrial detention, the Sheriffs

lawful authority to hold a detainee derives from a judicial

finding of probable cause. See Gerstein, 420 U.S. 103;

Baker, 443 U.S. at 143. The situation changes radically,

however, when the pretrial detainee is acquitted of the

charge on which he is being held, or when a judge orders

————————————————

SEG Ae aie re a Oe a eS

App. 57

him released. At that moment the Sheriffs lawful author-

ity over the individual is greatly diminished. There is little

case authority on the degree to which the government’s

authority over the individual is diminished at this point.

Neither the Ninth Circuit nor the Supreme Court has

addressed the question of how much authority the gov-

ernment retains over an acquitted pretrial detainee.“

The Seventh Circuit has addressed the question by

drawing an analogy to the Fourth Amendment limits on

the length of time a warrantless arrestee can be held

without a judicial determination of probable cause. See

Lewis v. O’Grady, 853 F.2d 1366 (7th Cir. 1988). A recent

decision of this Court has looked to Lewis v. O’Grady to

determine whether a prolonged detention to check for

wants and holds was reasonable for purposes of qualified

immunity. See Fowler, 2 F. Supp. 2d at 1278. In Lewis v.

O’Grady the plaintiff had been held an additional eleven

hours after he was ordered released. The plaintiff brought

a § 1983 claim based on the over-detention. The district

court entered a directed verdict for the defendants, con-

cluding that no reasonable jury could find that eleven

hours was an unreasonable delay. The Seventh Circuit

reversed, holding that it was for the jury to decide whether

eleven hours was reasonable in light of the administrative

demands on the sheriffs department. See id., 853 F.2d at

1370. The Seventh Circuit reached its holding by making

* The exception to this statement involves acquittals by reason of

insanity. Where a criminal defendant is acquitted by reason of insanity,

the Constitution allows continued detention as long as the individual

remains dangerously mentally ill. See Foucha, 504 U.S. at 79-80; Jones

v. United States, 463 U.S. 354, 370 (1983).

App. 58

an analogy to the Fourth Amendment standard governing

the reasonableness of the delay between a warrantless

arrest and a judicial determination of probable cause. See

id. The Seventh Circuit reasoned that although the situa-

tions are different, the reasonableness of an administra-

tive delay would depend on several of the same factors

governing the period of reasonable detention for war-

rantless arrestees, including “such matters as transporta-

tion, identity verification, and processing.” See id.

In applying the reasoning of Lewis v. O'Grady to a

damages action arising from the same policy challenged

here, the Court in Fowler analyzed the period of time after

an order of release by separating the activity performed by

the sheriffs department into two categories: (1) “adminis-

trative tasks” incident to releasing the individual, and (2)

the “check for wants and holds.” See Fowler, 2 F. Supp. 2d

at 1277-79. ;

The Fowler court concluded that the activities defined

in this order as administrative delay — the administrative

steps necessary to execute a court order of release — were

within the Sheriffs continued authority over the acquitted

detainee, and did not offend due process if the time taken

was reasonable in light of the circumstances. See id. at

1278-79. Permissible administrative steps after acquittal

include fingerprinting the acquitted detainee to confirm

that he is the person ordered released, noting the release

in the department’s records, and returning the detainee’s

property. The court concluded that due process allowed a

reasonable delay in performing these activities, the length

of which must be determined by institutional factors such

as the number of people to be processed. See id.

Ye

App. 59

The Fowler court analyzed the check for wants and

holds separately from the other administrative steps

incident to release. The court reasoned that the check for

wants and holds could have been performed in the morn-

ing, before the detainee was brought to the court appear-

ance at which he was later acquitted. See id. at 1279. The

court therefore concluded that delaying release for the

purpose of checking wants and holds unreasonably pro-

longed the detention.

The present case is distinguishable from Fowler. The

Sheriff has now presented evidence that checking for

wants and holds that are already in the AJIS is not the

only cause of the delay. (See Walker Decl. 7 7-9, 11-15.)

The Sheriff is clearly entitled to check whether a released

detainee is eligible to be released.” Therefore, checking the

AJIS for wants and holds is a logical part of the adminis-

trative steps incident to release. Any delay caused by retriev-

ing information in the AJIS, provided it is reasonable, does

** The Court notes the Sheriffs contention that one of the adminis-

trative steps incident to release is a determination of whether the

Sheriff is holding the individual on one case or several cases. The

Sheriff points to a notation on many release orders indicating that the

detainee is released for “this case only.” The distinction between such

an order and the order in Fowler, which read “defendant is released,” is

not meaningful, even though “defendant is released” appears on its face

to be more definite. See Fowler, 2 F. Supp. 2d at 1276. The court issuing

a release order has jurisdiction only over the case before it. An order

stating “defendant is released” contains the implied term “on this case

only” because the court issuing the order has jurisdiction only over the

case before it. Either order — “defendant is released” or “defendant is

released on this case only” — requires the Department to determine

whether it is holding an individual only on the terminated case, or on

other cases as well. Such a determination, like the check for wants and

holds, is one of the reasonable administrative steps incident to release.

sella enmaeil

a

App. 60

not violate the Constitution. The delay complained of here

results from the policy of not checking the AJIS until after

the department has input into the AJIS all new wants and

holds received during the day. In order to remedy the

constitutional violation caused by such delay, however, it

is not necessary to prohibit the Sheriff from conducting

any checks for wants and holds after a detainee is ordered

released.” It is important to distinguish between wants

and holds of which the department already has knowledge,

i.e., that are already entered into the AJIS, and wants and

holds which the Department speculates may exist. As

noted above, an AJIS check for wants and holds already

known to the Department is one of the administrative

steps incident to release. In contrast, the policy of defer-

ring checking for wants and holds to investigate the

speculative existence of unknown wants and holds is not

within the Sheriffs lawful authority under the Fourteenth

Amendment due process clause, and must be analyzed as

a re-seizure of the released detainee under the Fourth

Amendment.

In summary, the Court here departs from the Fowler

analysis and holds as follows: (1) An AJIS check after a

* Additionally, unlike in Fowler, the Sheriff has presented facts to

demonstrate that it would be unduly burdensome to perform the check

for wants and holds in the morning before detainees are transported to

court. The Department does not know in the morning which of the

1,800 to 2,000 transported inmates and detainees will be ordered

released during the day. (See Walker Decl. J] 6-9.) Until a detainee is

ordered released, there is no reason to check for wants and holds. Based

on the evidence presented here, the Court finds that the check for

wants and holds already in AJIS can be performed after a detainee is

ordered released without significantly delaying the administrative

steps incident to release.

App. 61

detainee is ordered released does not violate substantive

due process if it does not significantly prolong the admin-

istrative steps incident to release. (2) The policy of defer-

ring the AJIS check until all newly received paperwork

has been processed must be analyzed under the Fourth

Amendment and results in an unreasonable seizure if the

department does not have probable cause to believe that

wants or holds exist for the detainees whose confinement

is prolonged while the AJIS check is deferred. This Fourth

Amendment holding is discussed in greater detail below,

in a separate section of this order.

b. Does the executive’s level of culpability

offend the standards of substantive due

process?

As noted above, the due process clause is concerned

with abuses of executive power, and not with negligently

inflicted harm. See County of Sacramento v. Lewis, 118 S.

Ct. at 1718. Thus, if the policy complained of here results

in over-detentions only because the persons applying it

occasionally apply it without due care, the resulting

injuries would not be constitutional violations. See Erd-

man v. Cochise County, 926 F.2d 877, 882 (9th Cir. 1991)

(holding that arrest of plaintiff on felony warrant after

charges had already been adjudicated resulted from an

isolated instance of negligence, and therefore did not rise

to the level of a constitutional violation); Harris v. City of

Marion, 79 F.3d 56, 59 (7th Cir. 1996) (holding that

isolated negligent incident does not establish deliberate

indifference in otherwise inoffensive policy). If, on the

other hand, the policy regularly results in released detain-

ees being held without lawful authority, continued appli-

cation of the policy rises to the level of deliberate

App. 62

indifference. See Armstrong, __ F.3d __, 1998 WL

416887 *16.

Under this standard, delays resulting from negligent

performance of the administrative steps incident to release

do not offend substantive due process. These steps are

within the Sheriffs lawful authority. Isolated instances of

failure to exercise these steps with due care do not give

rise to a constitutional violation. The plaintiffs have not

presented facts to demonstrate a pattern of incidents in

which the administrative steps are allowed to continue for

an unreasonably long period of time. If such a pattern

exists, and the Department is aware of it, the pattern may

support a finding of deliberate indifference. This question,

however, is not currently before the Court.

c. Does the executive’s conduct shock the

conscience?

Based on the record before the Court, the administra-

tive delays in release do not shock the conscience. As noted

above these steps are performed pursuant [sic] the Sher-

iffs authority to carry out orders of release. A reasonable

period of delay to carry out these steps is not an arbitrary

exercise of government power. These steps are necessary

to fulfill the legitimate government purpose of ensuring

that the order of release is properly executed, and that the

correct person is released. See Fowler, 2 F. Supp. 2d at

1277-78 (noting the necessary purposes served by the

administrative steps incident to release). Substantive due

process, however, does limit the length of time that the

Sheriff can take to perform these administrative steps. As

discussed above, the permissible length of time will vary

depending on institutional factors such as the number of

people to be processed, the necessary transportation, and

App. 63

the state of the available technology. The facts presented

on the preliminary injunction motion do not establish that

the time currently taken for such administrative steps

constitutes a deliberate abuse of power that deprives

detainees of liberty in a manner that shocks the con-

science.

It is important to note, however, that this conclusion

does not govern the investigative delays — the delays

resulting from the Sheriffs policy to defer the administra-

tive steps incident to release until the AJIS system has

been updated. As noted above, investigative delays of any

length exceed the Sheriffs lawful authority and must be

analyzed as a re-seizure under the Fourth Amendment.

3. Investigative Delay: The Fourth Amendment

bar on re-seizure without reasonable suspicion

or re-arrest without probable cause

Investigative delays — those delays that result from

the policy of deferring release until the AJIS is updated —

restrict the liberty of individuals after a court has either

ordered their release or concluded that the lawful author-

ity to hold them on the case before the court no longer

exists. After receiving such an order, the Department may

no longer treat the individual as a pretrial detainee, but as

a former detainee, over whom the department’s authority

extends no further than necessary to execute the court’s

order directing release. The force of a court order negating

the lawful authority to hold an individual requires that

any continued detention beyond the period necessary to

execute the order be analyzed as a new arrest under the

Fourth Amendment. To analyze the situation any other

way would be to denigrate the seriousness of a judicial

order. Cf. Slone, 983 F.2d at 110; Coverdell v. Dep’t of

App. 64

Social and Health Services, 834 F.2d 758, 765 (9th Cir.

1987) (noting that “[t]he fearless and unhesitating execu-

tion of court orders is essential if the court’s authority and

ability to function are to remain uncompromised.”).

As noted above, substantive due process allows the

Sheriff to check for wants and holds against an acquitted

detainee while the Sheriff retains lawful authority to hold

the individual, i.e., at any time before the acquittal or

order of release, or during the time reasonably necessary

to carry out the administrative steps incident to release.

In order to continue holding the detainee past this

point, however, the Sheriff must meet the reasonable

seizure standards of the Fourth Amendment. These

standards are clearly defined. On a reasonable, articulable

suspicion that the defendant has committed a crime, or is

wanted for a past crime, the Sheriff may hold him for a

brief period to confirm or deny the suspicion. See Terry v.

Ohio, 392 U.S. 1 (1968); United States v. Hensley, 469 U.S.

221, 227-30 (1985) (extending Terry to allow investigative

stops on reasonable suspicion that person is wanted for a

prior crime). On a showing of probable cause, the Sheriff

may arrest the individual, holding him for a longer period

and under more intrusive circumstances than are permit-

ted in a Terry stop. See United States v. Ayarza, 874 F.2d

647, 650 (9th Cir. 1989).

The policy challenged here results in seizures that are

supported by neither probable cause nor reasonable

suspicion. The Sheriff acknowledges that there is no

causal connection between the date on which an individual

is acquitted or ordered released and the appearance of a

new want or hold.

a

App. 65

The Sheriff has not contended that a released de-

tainee’s mere status as someone who had previously been

charged with a crime gives rise to probable cause or

reasonable suspicion that the released detainee is wanted

for other crimes. Such a contention would have no support

in Fourth Amendment law. The prior arrest does not

provide authority under the Fourth Amendment to prolong

the period of pretrial detention for the purpose of investi-

gating other crimes, unless probable cause has already

been established to believe that the person has committed

a crime. See County of Riverside v. McLaughlin, 500 U.S.

44, 56 (1991) (noting that judicial determination of prob-

able cause for warrantless arrest may not be delayed for

the purpose of seeking evidence needed to establish

probable cause); Willis v. Chicago, 999 F.2d 284, 289 (7th

Cir. 1993) (holding that judicial determination of probable

cause may not be delayed for the purpose of investigating

other crimes).

In light of the foregoing, the Court concludes that the

plaintiffs have made the requisite showing of the likeli-

hood of success on the merits of their claim that the

Sheriffs policy to impose investigative delays on released

detainees violates the Fourth Amendment by causing

released detainees to be re-seized without probable cause

or reasonable suspicion. The evidence before the Court

constitutes a strong factual showing that the Department

maintains an intentional and pervasive policy, in violation

of the Fourth Amendment, to prolong detention of indi-

viduals over whom the Sheriff no longer has legal author-

ity based only on speculation that a new want or hold may

have arrived for them. See Thomas, 978 F.2d at 508.

ide, a

App. 66

E. {rreparable Injury, Balance of Hardships, and

Public Interest

When a deprivation of constitutional rights is in-

volved, most courts hold that no further showing of irrepa-

rable injury is necessary. See Gutierrez v. Mun. Court of

Southeast Judicial Dist., County of Los Angeles, 838 F.2d

1031, 1045 (9th Cir. 1988). This presumption of irrepara-

ble injury does not apply where the damage to the plaintiff

is purely economic. See Northeastern Fla. Chapter of Ass’n

of Gen. Contractors of Am. v. City of Jacksonville, 896 F.2d

1283, 1285-86 (11th Cir. 1990). It is clearly established

that prolonged detention without probable cause works an

irreparable injury on the detainee. See Gerstein, 420 U.S.

at 114 (“The consequences of prolonged detention may be

more serious than the interference occasioned by arrest.

Pretrial confinement may imperil the suspect’s job, inter-

rupt his source of income, and impair his family relation-

ships.”).

Where, as here, the public will be affected by the

injunctive relief sought, the Court must consider the

public interest. See Miller v. California Pac. Med. Ctr., i?

F.3d 449, 456 (9th Cir. 1994). As noted above, the Court

acknowledges the defendants’ responsibility to protect the

public against erroneous releases of detainees who are

wanted for serious crimes other than the ones on which

the defendants were detaining them. At the same time,

the public has a strong interest in the protection of consti-

tutional rights, and in the prevention of incidents in which

released detainees who have no wants or holds are unlaw-

fully kept from their homes, jobs and families for a sub-

stantial period after a court has ordered them released.

The Court recognizes that in order to comply with an

injunction requiring prompt checks for wants and holds,

. ——

App. 67

the Department will have to change the procedures for

processing wants and holds and for releasing pretrial

detainees. The Court notes, however, that the Department

has already begun automating the entry of wants and .

holds into AJIS, a process which, if completed, would

remove any purported need to delay court-ordered releases

while the system is updated. (See, supra, Finding of Fact

No. 11.) In order to prevent harm to the public interest

that would result from erroneous releases during a transi-

tion period, the Court finds it appropriate to stay the

execution and enforcement of this preliminary injunction

for sixty days after the filing date of this order.

F. Miscellaneous Injunctive Remedies

1. Modifying the Department’s Settlement/

Release Forms

The plaintiffs seek an order mandating that the

Department add the following language to its settle-

ment/release form:

You should consult with a lawyer before signing

this form. If you sign this form, you may revoke

your agreement within 30 days.

(Mot’n at 7.)

The form currently in use by the Department is

attached to the Declaration of Tom Laing, Lieutenant in

charge of the Sheriffs Risk Management Bureau’s Civil

Litigation Unit. (Opp’n Ex. C.) The current letter includes

the following notice in bold, italic type:

App. 68

You have the right to consult an attorney before

agreeing to the specific amount and the release

and settlement of your claim.

(Id. at Bates 30.)

The Court finds no legal basis for an order requiring

the Department to modify its settlement offer to include

the 30-day revocation term.

The motion for a preliminary injunction is therefore

denied as to this issue.

G. Court Ordered Over-Detention Claim Form

and Monitoring

The plaintiffs seek an order mandating that the

Department distribute to every detainee the claim form

reproduced at pages 5-6 of the Motion for Preliminary

Injunction. The order would require the Department to

distribute this form to every detainee every five days. A

copy of each form would be filed with the Court every

Monday.

The Court finds no legal basis for imposing a court-

monitored, over-detention claim system on the Depart-

ment at this time. The motion for preliminary injunction is

therefore denied as to this issue.

IV. THE SHERIFF'S MOTION TO DISMISS

Under Federal Rule of Civil Procedure 12(b)(6), a

federal court cannot dismiss a complaint for failure to

state a claim unless it appears beyond a doubt that the

plaintiff can prove no set of facts in support of his claim

which would entitle him to relief. See Moore v. City of

App. &9

Costa Mesa, 886 F.2d 260, 262 (9th Cir. 1989). The allega-

tions contained in the complaint must be construed in the

light most favorable to the plaintiff, and all material

allegations in the complaint — as well as any reasonable

inferences to be drawn from them — must be accepted as

true. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th

Cir. 1986).

Dismissal for failure to state a claim is with leave to

amend unless the court “determines that the pleading

could not possibly be cured by the allegation of other

facts.” Doe v. United States, 58 F.3d 494, 497 (9th Cir.

1995) (internal quotation marks omitted).

A. Standing

In the motion to dismiss, the Sheriff renews the

contention that the named plaintiffs lack standing to bring

the action. These arguments are addressed above with

regard to the class certification and preliminary injunction

-9tions. The Court concludes that even if the parole-hold

of named plaintiff Vanke defeats his standing, the FAC

adequately alleges the standing of the other named plain-

tiffs.

B. Merits

1. Over-Detention Resulting From Investiga-

tive Delay

The Court concludes that the FAC states a claim

under § 1983 for violation of the Fourth Amendment right

to be free from unreasonable seizure and the Fourteenth

Amendment right to be free from deprivations of liberty

without due process. As discussed in more detail above,

App. 70

the Court concludes that a policy of delaying the adminis-

trative steps incident to the court-ordered release of a

pretrial detainee in order to update files of newly arrived

wants and holds without probable cause to believe that a

want or hold exists for that particular released detainee

violates the Fourth and Fourteenth Amendments. The

complaint therefore states a claim for relief. The FAC

alleges that the Department, by following its wants and

holds policy, will prolong detentions beyond the time

required for administrative processing of the plaintiffs’

releases. (See FAC {J 10, 11, 16.)

2. Settlement Procedures

The plaintiffs also contend that the department policy

of approaching over-detained individuals with settlement

offers violates the Constitution and should be enjoined

under § 1983. The complaint does not allege specifically

what constitutional right is violated by approaching

detainees with settlement offers. The plaintiffs’ brief in

opposition to this motion makes no effort to describe the

constitutional violation.

There is a large body of law on the validity of § 1983

settlement agreements that are negotiated close to the

time of violation. See Town of Newton v. Rumery, 480 U.S.

386 (1987). Such agreements are not void against public

policy under federal law provided that the agreement is

voluntary, that there is no evidence of prosecutorial

misconduct, and that enforcement of the agreement would

not adversely affect the public interests served by § 1983.

See id. at 399; Davies v. Grossmont Union High School

Dist., 930 F.2d 1390 (9th Cir. 1991).

App. 71

There is no law, however, on the question of whether a

policy of offering such agreements violates the Constitu-

tion. The enforceability of § 1983 settlement agreements is

not a matter of constitutional law, but rather an applica-

tion of federal common law to the question of whether the

settlement violates public policy. See Newton, 480 U.S. at

392: Davies, 930 F.2d at 1396.

The plaintiffs have not responded to the motion to

dismiss with any theory as to how the Sheriffs settlement

policy violates the Constitution. Although on a Rule

12(b)(6) motion the Court must make every inference in

favor [sic] the plaintiffs, the Court need not accept as true

the complaint’s conclusory legal characterizations. See

Western Mining Council v. Watt, 643 F.2d 618, 624 (9th

Cir. 1981); Schwarzer, supra, § 9:226.2 (Rutter 1998).

Here, the complaint simply alleges that the department

approaches detainees with settlement offers. The com-

plaint contains no allegations as to how such offers deprive

the plaintiffs of a constitutional right. The plaintiffs in

opposing this motion have pointed to no inferences arising

from the complaint to support a constitutional violation. The

Court deems the plaintiffs’ silence as an abandonment of this

claim. This claim is therefore dismissed with leave to amend.

V. CONCLUSION

The motion for a preliminary injunction is GRANTED.

IT IS ORDERED that the defendants and their officers,

agents, servants, employees, and all others in active

concert or participation with them are enjoined during the

pendency of this action from holding individuals who have

been acquitted of the charges on which they are being

held, or whose release has been ordered by a court, beyond

App. 72

the period of time that is required to perform the adminis-

trative steps incident to release, including a check for

wants and holds known” to the defendants at the conclu-

sion of the administrative steps incident to release, but not

including additional time for the receipt or processing of

wants and holds not known to the defendants at the

conclusion of the administrative steps incident to release.

This injunction is STAYED for sixty days after the

filing date of this order.

The motion for class certification is GRANTED.

The motion to dismiss is DENIED as to the § 1983

claim based on over-detention, and GRANTED as to the

§ 1983 claim based on the settlement procedures. Any

amended complaint reasserting this dismissed claim must

be filed within 20 days of the filing date of this order.

Dated: 11-5-98

/s/ Dean D. Pregerson

DEAN D. PREGERSON

United States

District Judge

” For purposes of this order, “known” means already present in the

defendants’ jail computer system known as the Automated Justice

Information System (“AJIS”), or through another electronic or manual

records system comparable in access time to the AJIS.

App. 73

APPENDIX D

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

oe No. 02-55600

Plaintiff-Appellant, D.C. No.

V. CV-98-04111-DDP

SHERMAN BLOCK; LOS Central District of

ANGELES COUNTY California, Los Angeles

BOARD OF SUPERVISORS; ORDER

LEE BACA, Sheriff,

Defendants-Appellees.

[Va No. 02-56472

Plaintiff-Appellee, D.C. No.

v. CV-98-04111-DDP

ome te tas Central District of

LEE BACA, Sheriff, in his ; ;

official capacity only, California, Los Angeles

Defendant-Appellant. (Filed Nov. 17, 2003)

Before: KLEINFELD, WARDLAW, and W. FLETCHER,

Circuit Judges.

The panel has voted to deny the petition for panel

rehearing and petition for rehearing en banc.