Petition for Writ of Certiorari — Kolodzieczak v. Friend

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In The

Supreme Court of the United States

October Term, 1995

RONALD KOLODZIECZAK, et al.,

Petitioners,

VS.

JACK WAYNE FRIEND, et al.,

Respondents.

On Petition For Writ Of Certiorari

lo ithe United States Court Of Appeals

For The Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

RicHARD L. ReEYNOLDs, Esq.,

CSB#: 77881

Counsel of Record

Don H. Scuaerer, Esq.,

CSB#: 143431

BENNETT, SAMUELSEN, REYNOLDS

& ALLARD

Attorneys at Law

A Professional Corporation

1951 Webster Street, Suite 200

Oakland, California 94612-2909

Telephone: (510) 444-7688

Attorneys for Petitioners

Ronald Kolodzieczak, et al.

OFFICE OF JHE CLERK _

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

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED FOR REVIEW

The questions presented for review are exactly the

same questions presented in defendants’ earlier Petition

for Writ of Certiorari which was granted by this Court on

January 19, 1993 (Friend v. Kolodzieczak, 113 S.Ct. 1038

(1993)) (Appendix A2). The District Court and Ninth

Circuit’s subsequent order and opinions still do not com-

ply with the holding in Farrar v. Hobby, 113 S.Ct. 566.

I. Where jail policy prohibiting personal possession

of rosaries and scapulars is vindicated, and upheld on

appeal (Friend v. Kolodzieczak (9th Cir. 1991) 923 F.2d 126)

do the provisions of 42 United States Code §§ 1983 and

1988 authorize a finding that the losing plaintiffs are

“prevailing parties” for an award of attorneys’ fees?

A) May a District Court award over $150,000.00

in attorneys’ fees to lawyers appointed by that court to

represent county jail inmates on a religious practices

claim that enjoyed no significant success?

B) May the District Court base its award of

attorneys’ fees on the “success” the inmates achieved via

their religious minister’s request for separate religious

services prior to, and independent of, the lawsuit?

Il. Where defendants argued in the District Court

that use of religious items at services was not barred by

jail policy, can defendants’ compliance with the District

Court’s condition of granting the defendants’ motion for

summary judgment, (i.e. clarification or confirmation of

that policy), result in an award of over $150,000.00 in

attorneys’ fees to plaintiffs’ counsel?

QUESTIONS PRESENTED FOR REVIEW - Continued

A) Where a concession made by defendants in

order to terminate the litigation below is a “nuisance

settlement,” is not constitutionally required, and is not

curative of any constitutional deficiency, can the District

Court base its award of attorneys’ fees on this conces-

sion?

B) Where no constitutional provision, case or

statute requires the county jail to allow “separate reli-

gious services” or “religious items” at religious services,

can the county jail’s decision to allow a separate time slot

at one group’s request and decision to specify that “reli-

gious items” are and have always been allowed at reli-

gious services in order to obtain a dismissal of meritless

litigation, be found to be “success on a significant issue”

meriting an award of attorneys’ fees under 42 U.S.C.

§1988?

III. May the District Court award substantial attor-

neys’ fees without properly considering the relationship

between the extent of success and the amount of fees

awarded as required under Farrar v. Hobby, 113 S.Ct. 566

(1992).

IV. The final question presented by the practical

effect of this lawsuit is: Where two religious groups are in

a dispute, and one religious group threatens to withhold

or withholds its services until its demands are met, may

adherents of that group force the jail to accede to their

demands via a § 1983 lawsuit claiming the jail has denied

them religious services?

cei, ss teammate a ale

ill

QUESTIONS PRESENTED FOR REVIEW - Continued

On further consideration ordered by this Court, the

District Court and the Ninth Circuit have actually

increased the attorneys’ fees award previously summarily

vacated by this Honorable Court

PARTIES TO THE PETITION

FOR WRIT OF CERTIORARI

The parties to the proceeding in the court whose

judgment is sought to be reviewed are JACK W. FRIEND,

MICHAEL WETHERN, and JEFFREY D. GRAY, individu-

ally and as representatives of the class of Catholic

inmates in the North County Jail of Alameda County.

The defendants were RONALD KOLODZIECZAK,

HAROLD ESTES, CHUCK GREEN, R. A. FRIST and A.

THEOBALD. These were nominal parties to the litigation,

as the jail commander, CAPTAIN MORRIS HICKERSON,

was responsible for the implementation of jail policy at

all times in question. Pursuant to the stipulation of the

parties, CAPTAIN HICKERSON, who pursuant to the

Government Code of the State of California §995, was

entitled to indemnity and defense from his employer, the

SHERIFF’S DEPARTMENT OF THE COUNTY OF

ALAMEDA, was the actual defendant to this action. It is

not believed the defendants other than CAPTAIN

MORRIS HICKERSON, and his employer COUNTY OF

ALAMEDA, and supervisor, SHERIFF CHARLES PLUM-

MER, have any interest in the outcome.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ........... i

PARTIES TO PETITION FOR WRIT OF

Cans s hele Wh dbsadescadeestesiabeeetse®s iv

OFFICIAL OR UNOFFICIAL REPORTS OF OPIN-

IONS DELIVERED IN THIS CASE BY OTHER

CREE cersccenesasctenaereaciesdicnsevaaeenire j

STATEMENT OF GROUNDS ON WHICH THE

JURISDICTION OF THIS COURT IS INVOKED .. 2

SEAT Gees GE TERM CAB. coc ccccccscsdseusseces 4

REASON FER BOVE ccc cctnnpsnncssnecadwesers 10

I. STANDARD FOR DETERMINING A CONSTI-

TUTIONAL RIGHTS VIOLATION BY JAIL

pe i yg FN t . errr rrr rT ere rrr er 14

Il. THERE WAS NO CONSTITUTIONAL RIGHTS

(6 rr rrr err res reer rrr ry, or 17

Il. PLAINTIFFS FAILED TO SUCCEED ON ANY

SIGNIFICANT ISSUE INVOLVED IN THE

CIVIL RMSHTS LITMsATION . 202. ccccccncrcs. 19

CONC LAe 6 bb ike edess cacao beeeeces ee ees cere 22

TABLE OF AUTHORITIES

CASES

Allen v. Toombs, 827 F.2d 563 (9th Cir. 1987)........ 17

Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861 (1979)

WTTTTTTT TTT ee 14, 15, 21

Bryant v. Gomez, 46 F.3d 948 (9th Cir. 1993)..... 12, 17

California Association of the Physically Handi-

capped v. FCC, 721 F.2d 667 (9th Cir. 1983)....19, 22

Card v. Dugger, 709 F.Supp. 1098 (M.D. Fla. 1988)

aff'd 871 F.2d 1023 (11th Cir. 1989) ............... 17

Chicano Police Officers Assn. v. Stover, 624 F.2d

127 (20th Cle, 20GB. occ cevsesssuesteGaseeaese 20

Coen v. Harrison County School Board, 638 F.2d

24 (5th Cir. 1981), 455 U.S. 938, cert. denied, 102

S.Ct. 1429 (00M... < cvcdwoskauseeee eee 20

Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079 (1972) ..... 17

Duffey v. State Personnel Board, 232 Cal.App.3d 1,

28S Cal. Rptr. 622 (1992)... ..cccccccccscscccccscess 18

Employment Development Division, Department

of Human Resources v. Smith, 494 U.S. 872, 110

S.Ce, 1595 CISSGD. oa siccccancsncaanannneneieeee 18, 21

Farrar v. Hobby, 113 S.Ct. 566 (1992).. 2, 10, 11, 12, 14, 19

Friend v. Kolodzieczak, 113 S.Ct. 1038 (1993)...... i, 10

Friend v. Kolodzieczak, 992 F.2d 243 (9th Cir.

BOGS)... cccccccccnccesccaccunsneeenenaeee 2

Friend v. Kolodzieczak, 65 F.3d 1514 (9th Cir.

TABLE OF AUTHORITIES — Continued

Page

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

iy | PPPPPPPPPTErrrerrerre cerry. a ee 6, 17

Gittlemacker v. Prasse, 428 F.2d 1 (3d Cir. 1970)..... 17

Gonzales v. Roman Catholic Archbishop, 280 U.S.

me Flee. Reenrrrreorres rer 18

Grano v. Barry, 783 F.2d 1104 (D.C. Cir. 1986)....... 20

Hensley v. Eckerhardt, 461 U.S. 424, 103 S.Ct. 1933

SUR nacccch dectveushsscobhasaesauvenscssees ..20, 22

Horn v. People of California, (E.D. CA) 321 F.2d

961 (1968) aff'd 436 F.2d 1375 (9th Cir. 1970)

~~ -< @ Det @., Sa aarerrrrrrrre 17

johnson v. Moore, 926 F.2d 921 (9th Cir. 1991) ...... 17

Kennedy v. L.A.P.D., 887 F.2d 920 (9th Cir. 1989) .... 15

Kothe v. Smith, 771 F.2d 667 (2d Cir. 1985).......... 17

Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105

ee are ws 18

Michenfelder v. Sumner, 860 F.2d 328 (9th Cir.

coe ee Cece EGER CASE AGS CED OSES CREASES SEN GEOR Os 16

McClure v. Salvation Army, 460 F.2d 553 (5th Cir.

Ds ccinddeetsekds ben eésedwds¥iaandeessdbdacs ees 18

Nadeau v. Helgemoe, 581 F.2d 275 (1st Cir. 1978)

iach ae ae ewe ca eule dears eaedeeure 19, 20, 21

Naprstek v. City of Norwich, 433 F.Supp. 1369

SRA ee ee ce ee ee sé yk 20

O’Lone v. Estate of Shabazz, 107 S.Ct. 2400 (1987) 16, 21

Ortiz de Arroyo v. Barcelo, 765 F.2d 275 (1st Cir.

1985)....

Vili

TABLE OF AUTHORITIES - Continued

Page

Posada v. Lamb County, Texas, 716 F.2d 1066 (5th

Rk DE oteidicaecsivuateesacareedvsceweceniswecs 15

Sablan v. Dep’t of Fin. of Com. of N. Mariana

Islands, 856 F.2d 1317 (1988)............... 11, 12, 19

Texas State Teachers Associaton v. Garland Inde-

pendent School District, 488 U.S. 815, 109 S.Ct.

rrr Trae Perey 12, 20, 22

Thompson v. Cleland, 782 F.2d 719 (7th Cir. 1986) .... 16

Thornburgh v. Abbott, 490 U.S. 401, 109 S.Ct. 1874

6 ee errr Orr he rene a Onn ae ee 21

Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254 (1987) .... 16

Ward v. Walsh, 1 F.3d 873 (9th Cir. 1993) ........ 13, 17

FEDERAL STATUTES

28 United States Code §1331 jitheotehvaskeWenes vanes 4

ae CRE SUS CG Re ok crc cccaerssacndsdases 4

20 United States COG SiZ08 2 oc cccsccccssctssccsscess 4

G2 Unite SRnGes Ce BING oe ccc cc cccccesekensasvess 2

42 United States Code §1988................ a. Gy. tee oe

Rutes oF Court

United States Supreme Court Rules, Rule 10.1(a)..... 2

United States Supreme Court Rules, Rule 10.1(c)..... 2

United States Supreme Court Rules, Rule 13.4........ 2

STATE STATUTES

State of California, Government Code, §995.......... iv

COME NOW defendants and appellants, RONALD

KOLODZIECZAK, CAPTAIN MORRIS HICKERSON,

SHERIFF CHARLES PLUMMER, COUNTY OF

ALAMEDA, et al., and respectfully petition the Supreme

Court of the United States for a Writ of Certiorari to

review the judgment of the United States Court of

Appeals for the 9th Circuit, filed September 19, 1995.

OFFICIAL OR UNOFFICIAL REPORTS OF OPINIONS

DELIVERED IN THIS CASE BY OTHER COURTS

This lawsuit was initially filed in the Northern Dis-

trict of California, Marilyn Hall Patel, Judge. (D.C. No.

CV 87-0161 MHP).

Judgment in favor of defendants was affirmed by the

United States Court of Appeals (9th Cir. 1991) 923 F.2d

126 (Appendix B).

Plaintiff’s Petition for Award of Attorneys’ Fees was

granted by District Court Order dated July 10, 1990

(Appendix K) and amended July 20, 1990 (Appendix L).

The decision of the District Court awarding attorneys’

fees was affirmed by the United States Court of Appeals

for the Ninth Circuit in an opinion and judgment filed

May 19, 1992, No. 90-16140, 965 F.2d 682, opinion by

Judge Pregerson, joined by Judge O’Scannlain. Dissenting

opinion by Judge Ferguson (Appendix A).

Following a defense petition for certiorari to the

United States Supreme Court, the fee award was sum-

marily vacated by this Honorable Court and the case was

remanded to the Ninth Circuit (Appendix A2), then to the

Northern District Court for re-examination of the rea-

sonableness of the attorneys’ fees award in light of this

Court’s decision in Farrar v. Hobby, 113 S.Ct. 566 (1992).

(Friend v. Kolodzieczak, 992 F.2d 243 (1993)). Despite con-

trary precedent of the United States Supreme Court and

even the Ninth Circuit, the Ninth Circuit Court of

Appeals (before Harry Pregerson, Warren J. Ferguson,

dissenting opinion, and Diarmuid F. O’Scannlain, Circuit

Judges), upheld the latest increased District Court award.

(Friend v. Kolodzieczak, 65 F.3d 1514 (1995)).

Defendants filed a Suggestion for Rehearing In Banc

with the Ninth Circuit October 2, 1995. (Appendix S.) To

date, defendants have received no notice whether rehear-

ing will be granted.

STATEMENT OF GROUNDS ON WHICH THE

JURISDICTION OF THIS COURT IS INVOKED

Following remand, the opinion of the United States

Court of Appeals for the Ninth Circuit awarding attor-

neys’ fees to plaintiffs’ attorneys was filed September 19,

1995. (Appendix Al.) Pursuant to U.S. Supreme Court

Rule 13.4, the time within which to file a petition for writ

of certiorari expires December 18, 1995.

This Court has jurisdiction to review the judgment in

question by writ of certiorari, and, indeed, has already

done so once. Pursuant to U.S. Supreme Court Rule

10.1(a) and (c), the Court of Appeals has again sanctioned

such a departure by the Northern District of California

from the accepted and usual course of judicial proceed-

ings and interpretation of 42 United States Code §1988 as

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to call for the exercise of this Court’s power of supervi-

sion.

The federal question decided on the issue of attor-

neys’ fees in this case conflicts with the decisions of other

United States Courts of Appeals, the Ninth Circuit’s own

prior decisions, and with decisions of this Court.

This case involves an important question of federal

law on the award of attorney’s fees in civil rights litiga-

tion which, while perhaps not maliciously prosecuted,

failed to achieve success on any constitutional rights

issue in the litigation.

The statutes involved in this case are 42 United States

Code §1983 which states:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of

the United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity,

or other proper proceeding for redress. For the

purposes of this section, any Act of Congress

applicable exclusively to the District of Colum-

bia shall be considered to be a statute of the

District of Columbia.

And 42 United States Code §1988 which provides in

pertinent part:

.... In any action or proceeding to enforce a

provision of Sections 1981, 1982, 1983, 1985, and

1986 of this title, Title IX of Public Law 92-318,

or Title VI of the Civil Rights Act of 1964, 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.

The bases for subject matter jurisdiction in the Dis-

trict Court were 28 United States Code §§1331 and 1343.

The statutory basis of the Court of Appeals jurisdic-

tion was 28 United States Code §1291.

STATEMENT OF THE CASE

This action was originally filed by three inmates at

the Alameda County North County Jail on January 14,

1987. By order dated September 7, 1987 the United States

District Court for the Northern District of California,

Marilyn Hall Patel, Judge, issued an order for service of

the complaint on defendants (Appendix C) and appoint-

ing Amitai Schwartz, former staff counsel of the Ameri-

can Civil Liberties Union, as counsel to represent the

three plaintiffs (Appendix D, P). From a reading of plain-

tiffs’ complaint, the court concluded that the complaint

alleged state action depriving plaintiffs of a right, privi-

lege or immunity secured by the Constitution. In an order

dated September 17, 1987 (Appendix C) the court found

that the confiscation of rosary beads from plaintiffs’ cells

pursuant to a policy prohibiting the personal possession

of items of personal property by inmates in cells, other

than jail-issued items, stated a cognizable claim of a

rights deprivation. The court further held that the

eo eee ee

epee eS Te

inmates’ allegation that they were denied religious ser-

vices including confession, communion and Bible Study

and other religious articles also stated a cognizable claim.

By order dated June 30, 1988 the District Court

granted plaintiffs’ motion for class certification and

granted leave to file a First Amended Complaint (Appen-

dix E). The inmates alleged in their First Amended Com-

plaint not only the prohibition of personal possession of

rosaries or scapulars in their cells, but also that jail offi-

cials repeatedly denied their requests to attend mass con-

ducted by Roman Catholic priests or to participate in the

sacraments of the Catholic Church such as confession and

communion. Plaintiffs alleged that no Roman Catholic

services had been allowed in the jail since its opening in

October of 1984.! These allegations were patently and

demonstrably untrue. (Appendix M, N, O.)

In certifying the action as a Class Action, the District

Court found “the common question of law is whether the

policy of forbidding the possession of these religious

articles and denying scheduled access to the celebration

of mass and to the sacraments is constitutional.” (Order

of June 30, 1989, Appendix E, p.A63.)

1 The Catholic minister appointed by the Catholic Bishop of

Oakland (Appendix M) was not a priest and could not say mass

or hear confessions. When asked about allegations of no mass

allowed by the jail he said that celebration of the mass was neither

necessary nor practical given the logistics and circumstances of

the jail and its population. The minister provided communion,

and arranged for confessions (sometimes) but was dissatisfied

with his Protestant co-ministers and the program in general

because it was, in his assessment, ‘not a quality program’ (See

Dissent, Judge Ferguson, Appendix B.)

Hearing on cross motions for summary judgment

was held on October 24, 1988. The motions were taken

under submission at that time. On March 13, 1989 a status

conference was conducted by the District Court (Appen-

dix Q; R). On April 6, 1989 it was requested by defen-

dants that the court rule on the motions for summary

judgment (Appendix F, p.A68). On September 29, 1989

the court granted summary judgment for defendants and

denied plaintiffs’ motion for summary judgment on con-

dition that the Alameda County Jail submit a revision to

its jail manual to verify the existence of its policies and

procedures regarding accommodation of the religious

needs of inmates (Appendix F). This condition was com-

plied with on October 24, 1989 (Appendix G, H) and an

order of dismissal was entered on November 7, 1989

(Appendix 1). Plaintiffs, who claim to be the prevailing

parties in this action filed their Notice of Appeal on

December 4, 1989. The judgment of the District Court was

affirmed by the Ninth Circuit U.S. Court of Appeals in

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

dix B).

While this matter was on appeal, plaintiff’s attorney

filed a Notice of Motion for Attorneys’ Fees and Costs on

January 8, 1990. On June 20, 1990 the District Court

issued a memorandum and order awarding attorneys’

fees to Mr. Schwartz, the same attorney the District Court

had appointed to represent the inmates in 1988 (Appen-

dix J).

By order dated July 10, 1990, and amended July 18,

1990, the District Court ordered defendants to pay a total

of $93,782.72 in attorneys’ fees to the plaintiffs’ attorneys

(Appendix J, K, L).

Notice of appeal of this order was filed July 19, 1990.

The District Court issued a stay of its award of attor-

neys’ fees pending appeal in 1990.

The order granting defendants’ motion for stay was

reissued October 3, 1990 on defendants’ submission of

evidence allowing waiver of a bond.

The stay remains in effect.

On May 19, 1992, the United States Court of Appeals

for the Ninth Circuit, in a two to one decision, upheld the

District Court’s award of attorneys’ fees to plaintiffs’

attorneys. The Court of Appeal affirmed the District

Court’s finding that the jail officials had taken steps that

gave inmates benefits without addressing whether a con-

stitutional violation had occurred or whether the inmates

were entitled under the constitution to the “benefit,” nor

the reasonableness of the fee award in relation to the

“benefit” obtained. The opinion of the United States

Court of Appeals for the Ninth Circuit was filed May 19,

1992 No. 90-1614, 965 F.2d 682 (1992) (Appendix A).

The inmates argued in their lawsuit that all forms of

religious practice were prohibited by North County Jail

regulations. The allegation was absurd and demonstrably

untrue. The jail administration, offended by allegations of

religious intolerance, when exactly the opposite attitude

had always been evidenced by jail officials, presented in

opposition evidence of a comprehensive religious pro-

gram and numerous available avenues of religious prac-

tice in the North County Jail. (See Judge Ferguson’s

dissenting opinion, Appendix A.)

It was the contention of the defendants that the

inmates and their appointed counsel were more inter-

ested in litigation and confrontation than in actually

doing what they claimed the jail would not allow. This

was evidenced by the fact that inmates could have used

the religious articles at issue under existing jail regula-

tions allowing the use of religious items in connection

with religious services. The District Court suggested to

the defendants that it would be inclined to grant their

motion for summary judgment if these representations of

what the jail policies really were were clarified to the

District Court. In light of the astronomical cost of this

litigation, the defendants had no choice but to comply

with the condition imposed by the Northern District for

granting of the motion for summary judgment and “ter-

mination” of this litigation.

It is uncontested that the program objected to by the

“Catholic” inmates at the time the suit was ordered

served was the very program agreed to in writing by

their own Catholic Bishop (Appendix M)!

At the time the inmates initially filed suit, the jail’s

chaplain had retired. At the same time the three Catholic

inmates and their appointed counsel were litigating this

lawsuit, the lay Catholic jail minister was pressing the jail

administration for change in the jail program. (A separate

time slot for his group, Appendix O.) It was suggested to

the District Court that the congruity of claims being ::1ade

by the Catholic inmates and their appointed attorneys in

the lawsuit with those of the Catholic Charities minister,

James Rodgers, placed the defendant jail administration

in the unenviable position of having to respond to a

lawsuit seeking damages and attorneys’ fees on one

hand, while attempting to respond to normal requests

from the Religious Services administrator of Catholic ser-

vices on the other, all the while in the midst of a dispute

between Catholic and Protestant religious groups. This

put defendants in the impossible position of either deny-

ing a request from religious ministers practicing in the jail

in order to avoid the appearance that the inmate’s Civil

Rights suit had accomplished any goal, or granting the

request only to be found liable for attorneys’ fees and

damages and unfavorable treatment of the other religious

groups.

It was determined by the jail administration that

since there had never been any violation of inmate consti-

tutional rights to the free exercise of religion, the newly

appointed jail chaplain was free to make whatever sched-

uling arrangements and coordination of same (subject to

ultimate approval of the jail captain) he saw fit in the

continuing relationship with inmates and ministers of

various religious persuasions at the North County Jail.

The “delay” the District Court accused the jail of engag-

ing in, if anything, was due to the logistics of the jail,

temporary lack of a chaplain, the fact that the Catholic

group was not the only religious group in the jail, and

that a change in the program would necessarily affect the

other religious groups. Justifiable fear of entanglement

also cautioned deliberation. That plaintiffs’ attorneys

inspired massive enlargement of this litigation was

ignored by the District Court which accused defendants

of unnecessarily increasing legal expenses by conducting

a vigorous defense. (Appendix J, p.A95).

Following the defendants’ petition to the United

States Supreme Court, this Court granted certiorari,

vacated the fee award, and remanded the matter to the

Ninth Circuit for further review in light of this Court’s

then recent decision in Farrar v. Hobby, 113 S.Ct. 566

(1992). (Friend v. Kolodzieczak, 113 S.Ct. 1038 (1993).)

(Appendix A2). The Ninth Circuit simply remanded the

matter to the Northern District Court which appears to

have misinterpreted Farrar in order to justify reaffirmance

of its prior award of attorneys’ fees. (Appendix A1). It

then further inflated the fee award in an apparent gesture

to cheer plaintiffs “along their road to ultimate victory.”

(Appendix Al, p.A10).

On appeal once again to the Ninth Circuit, and with-

out entertaining oral argument, the Ninth Circuit rubber-

stamped its approval of the Northern District’s award

without so much as a comment from the majority.

(Appendix Al).

Finally, on October 2, 1995, defendants filed a Sug-

gestion for Rehearing In Banc which, to date, has not

been favored with a response from the Ninth Circuit.

(Appendix S).

REASONS FOR REVIEW

In this case, the Ninth Circuit Court of Appeal, on

appeal from the District Court and on remand from the

United States Supreme Court, in a sharply divided opin-

ion, has twice upheld a finding of “prevailing party”

status that is tantamount to a finding that any inmate

grievance complaint filed in Federal Court that does not

amount to malicious prosecution should provide a basis

for an award of full attorney’s fees.

AS fo eee ER Eee eM a Cee

Sea leit Li ptt be

Moreover, because, as this court has repeatedly rec-

ognized in the past, jails are particularly ill-suited to

administration by judicial decree, jails throughout this

country are virtually sitting ducks for massive attorney

fee awards where any complaint, no matter how trivial,

arises because inmates are dissatisfied with any aspect of

the religious programs administered in a jail setting.

Under Farrar v. Hobby, 113 S.Ct. 566 (1992), this Hon-

orable United States Supreme Court held that a fee award

should be based upon the amount of success achieved by

the plaintiffs, not to provide windfalls to attorneys. Id. at

Page 575. A “judicial pronouncement that the defendant

has violated the constitution, unaccompanied by an

enforceable judgment on the merits, does not render

plaintiff a prevailing party.” Id. at Page 573. Additionally,

the Ninth Circuit has applied a 2-prong test which asks 1)

whether the lawsuit resulted in the relief obtained and 2)

whether there is a legal basis for plaintiff's claim. Sablan

v. Dep't. of Fin. of Com. of N. Mariana Islands, 856 F.2d 1317,

1325. Under neither of these standards can plaintiffs be

deemed a prevailing party.

Here, no monetary award was made. No judgment

was entered against any defendant. No finding of a con-

stitutional violation, technical or otherwise, was made.

No evidence of an actual constitutional rights depriva-

tion, technical or otherwise existed.

“Concessions” made by the jail administration dur-

ing the course of litigation were pointed to by plaintiffs

as the basis for a fee award. That these “concessions”

stemmed from a policy and practice of accommodation

and jail regulations that existed prior to the institution of

suit or order for service of this litigation is undeniable.

Attorney fee awards based on nominal recovery

where actual rights violations have been found is one

thing. The principle may or may not pass muster. How-

ever, a District Court's attorney fee award where not even

technical violations have occurred results in a fundamen-

tal, far-reaching intrusion into the operations of a county

jail which has been specifically prohibited by this court in

Bell v. Wolfish, 441 U.S. 520 (1979).

In Texas State Teachers Association v. Garland Indepen-

dent School District, 109 S.Ct. 1486 (1989), the United

States Supreme Court granted certiorari specifically

“because of the conflicting views in the Court of Appeals,

and because of the importance of the definition of the term

‘prevailing party’ to the application of [42 U.S.C.]

§1988....”

Like Garland, this matter involves the very same

question of such exceptional importance: Who is the “pre-

vailing party?” Also, whereas Garland involved the lack of

uniformity amongst Fifth District Courts of Appeal in

applying one of two “prevailing party” tests, this case

simply involves lack of uniformity in applying the stan-

dard set forth under Farrar v. Hobby, supra, and Sablan v.

Dep't. of Fin. of Com. of N. Mariana Islands, 856 F.2d 1317

(9th Cir. 1988).

Previously, the Ninth Circuit has held that prison

officials are not required to provide full religious Pen-

tecostal services (including speaking in tongues and lay-

ing hands on one another) to inmates. Bryant v. Gomez, 46

F.3d 948 (9th Cir. 1995). In upholding Judge Marilyn Hall

hada

a ae ee

aa. we een ees

— ee

Patel’s summary judgment in favor of defendants, the Ninth

Circuit Court of Appeal held there was no substantial

burden on Bryant's religious rights and therefore no vio-

lation of the Religious Freedom Restoration Act. (42

U.S.C. §§2000bb.) Similarly, in an opinion authored by

Circuit Judge Diarmuid F. O’Scannlain, the Ninth Circuit

held that an Orthodox Jewish prisoner incarcerated at the

Ely State Prison was not entitled to the spiritual coun-

selor of his choice nor was the prison under any obliga-

tion to provide single-fabric clothing since such

preferential treatment could cause conflicts amongst the

inmates. Ward v. Walsh, 1 F.3d 873 (9th Cir. 1993). Given

the aforementioned rulings by the Ninth Circuit, the rul-

ing in this matter is confusing and inconsistent to say the

least

[he ramifications of such a decision provide a clear

road map for the undermining of this court’s emphatic

rulings in this area requiring deference and restraint

where correctional facilities are accused of rights viola-

tions.

While nominal damages have sometimes supported

fee awards, nominal concessions have not. Therefore, this

case insidiously allows indirectly what this court has

expressly prohibited: Undue intrusion by the District

Court in the day-to-day operations of a constitutionally

observant and compliant county jail.

Nor did the District Court’s opinion below properly

consider the relationship between the limited extent of

the insignificant “success” and the amount of the fee

awarded, which fee was three times that of the attorneys

retained by the defendant public entity and employees

This is true even after this Honorable Supreme Court sum-

marily vacated the initial District Court and Ninth Circuit

awards and remanded this for further consideration in light

of Farrar v. Hobby. The award has almost doubled despite this

Honorable Court's instruction and order.

STANDARD FOR DETERMINING A CONSTITU-

TIONAL RIGHTS VIOLATION BY JAIL ADMINIS-

TRATORS

The fundamental question that was never decided

against defendants in this litigation was:

. . . [DJoes the practice or condition violate the

constitution? (Bell v. Wolfish, 441 U.S. 520, 524.)

In Bell v. Wolfish, Id. 541 (Fn. 23) the District Courts

were admonished that in the absence of substantial evi-

dence that policy or practice impermissibly infringed on

constitutional rights, the court should defer to the jail

administration. As the record of hearings and threatened

orders in this case makes clear, no deference to the jail

administration was ever shown whatsoever. (Appendix

Q, R.)

The basis upon which an award of attorneys’ fees

was ultimately made was summarized by the District

Court’s decision as follows:

It is clear to this court that plaintiffs’ suit pro-

vided the impetus for defendants to more dili-

gently . . . coordinate services . . . to bring NCJ

practice in line with plaintiffs’ constitutional

rights (Appendix J. p. 7).

The court said “the policy now is to accommodate

Catholic inmates’ request for participation in Roman

”7

Catholic service and sacraments.” The uncontroverted

evidence in this case is that the policy of defendants was

always to reasonably accommodate where possible the

requests of all inmates for participation in religious ser-

vices.

The District Court’s memo granting attorneys’ fees

states: Defendants, on the whole, are usually rather reluc-

tant to concede that the litigation prompted them to mend

their ways. (Posada v. Lamb County, 716 F.2d 1066, 1072 (Sth

Cir. 1983).) This assumed there were “ways” to be men-

ded, and pre-judged that defendants’ jail religion policy

was wrong, or more specifically, was violative of constitu

tional rights, simply because that was alleged by plaintiffs

The District Court’s statement that the suit provided

impetus for “more diligence in coordinating religious

services” (Appendix J) was erroneous and ran directly

contrary to this court’s instruction that inmate rights suits

are not to become vehicles for implementation of the

District Court’s idea of how best to operate a detention

facility.2 The effect of the process defendants were sub-

jected to, as it turned out (Appendix Q and R, hearing

transcripts) was that the plaintiffs’ attorneys were left

2 Bell v. Wolfish, supra, Pages 539; 542-543 Fn. 25, and:

Courts must be mindful that these inquiries spring

from constitutional requirements and that judicial

answers to them must reflect that fact rather than a

court’s idea of how best to operate a detention facility.

(Id. Page 535) and, Kennedy v. L.A. Police Dept., 887

F.2d 920, 930 (9th Cir. 1989) ‘when litigants petition

the federal court to review the application of an insti-

tutional policy, the courts must proceed cautiously;

the Supreme Court has sounded this warning

emphatically and with considerable wisdom.’

with a superficially colorable claim to attorneys’ fees,

which was granted with gusto by the court which appoin-

ted them in the first place. The process used by the District

Court in this case did not avoid unnecessary intrusion of

the judiciary into problems particularly ill-suited to “res-

olution by decree” (O’Lone v. Estate of Shabazz, 107 S.Ct.

2400, 2405 (1987).)

This process revealeu bleak alternatives tor jail

administrators sued in federal court where the court

threatened to take over running of the jail: concession or

contempt of court. The situation was made worse when

the administration found itself in the middle of a “turf”

dispute between Catholic and Protestant ministers.

In Michenfelder v. Sumner, 860 F.2d 328, 331 (1988) the

Ninth Circuit noted:

In applying the Turner v. Safley [482 U.S. 72] test

we must accord great deference to prison offi-

cials’ assessments of their interests . . . and

separation of powers concerns counsel a policy

of judicial restraint’ [especially] [w]here a state

penal system is involved,.... ’

Uncontroverted facts showing as a matter of law a

constitutionally adequate religious program at the North

County Jail were presented to the District Court, but

these facts had no effect in changing the court’s conclu-

sions drawn from its reauing of the initial inmate plead-

ing, nor its apparent determination to draw

“concessions” from defendants under threat of placing

the jail under court control, which are now being used to

justify the lucrative fee award. Courts cannot improperly

intrude on the running of a county jail nor impose or

coerce a settlement. (Thompson v. Cleland, 782 F.2d 719

(7th Cir. 1986); Kothe v. Smith, 771 F.2d 667, 669 (2nd Cir.

1985).)

II.

THERE WAS NO CONSTITUTIONAL RIGHTS VIOLA-

TION BY COUNTY JAIL ADMINISTRATORS

The rosary and scapular issue was decided by final

judgment in favor of defendants. (Friend v. Kolodzieczak

923 F.2d 126 (9th Cir. 1991).) That judgment is final and

no petition for certiorari was filed.

The constitution does not require prisons to provide

each inmate with a paid chaplain of his choice. (Allen v.

Toombs, 827 F.2d 563, 569 (9th Cir. 1987); Cruz v. Beto, 405

U.S. 319, 322 (Note 2) (1972); Johnson v. Moore, 926 F.2d

921 (9th Cir. 1991).) Ward v. Walsh, 1 F.3d 873 (9th Cir.

1993). Nor are prison officials obliged to provide full

Pentecostal services. Bryant v. Gomez, 46 F.3d 948 (9th Cir.

1995) (This case involves not a prison but a county jail.

On religious services issues, courts have repeatedly

found constitutional religious programs less comprehen-

sive than those of the North County Jail. (Horn v. People of

California (E.D. CA 1968) 321 F.2d 961, 965; aff’d 436 F.2d

1375 (9th Cir. 1970); cert. denied 401 U.S. 776 (certain

prison chaplains paid but not others;) Gittlemacker v.

Prasse, 428 F.2d 1 (3rd Cir. 1970) (jail need only supply the

opportunity for worship and clergy visits, and was under

no duty to supply the clergyman). (See also Card v. Dug-

ger, M.D. Fla. 709 F.Supp. 1098; aff’d 871 F.2d 1023 (11th

Cir. 1989), finding no violation where all prison chaplains

Southern Baptist; Roman Catholic practitioners not per-

mitted contact visits).

In the absence of fraud, collusion or arbitrariness, the

decisions of church authorities regarding the qualification

and selection of prison chaplains is conclusive. (Gonzales

v. Roman Catholic Archbishop (1929) 280 U.S. 1; McClure v.

Salvation Army (1972) 460 F.2d 553; and see Duffey v. State

Personnel Board, 232 Cal.App.3d 1, 283 Cal.Rptr. 622

(1991).)

Here, the Catholic Bishop of Oakland appointed

Catholic detention minister James Rodgers to participate

in an ecumenical program at the jail (Appendix M). After

about one year, Rodgers requested a different program, at

a time when the jail’s chaplain had retired and the posi-

tion was not yet filled. There was disagreement between

the Catholic jail minister and the inmates themselves as

to what constituted necessary Catholic services. A sepa-

rate time slot for Catholic inmates, while permissible (Cf.

Lemon v. Kurtzman (1971) 403 U.S. 602 (entanglement of

the state in religious affairs), was not constitutionally

required.

To say that a non-discriminatory religious prac-

tice exemption is permitted or even that it is

desirable, is not to say that it is constitutionally

required . . . (Employment Division, Dept. of

Human Resources v. Smith, 110 S.Ct. 1591, 1606,

494 U.S. 872 (1990).)

When the District Court, after appointing counsel,

reached what seemed like a foregone conclusion, i.e. that

the suit caused the jail to be more diligent or accom-

modating in acceding to one group’s request for a change

in services, thus providing a basis for a $150,000.00 fee

award, it became a classic example of the District Court

substituting its ideas on how to best run the jail. The

Ninth Circuit decision affirming the award encourages

that practice.

PLAINTIFFS FAILED TO SUCCEED ON ANY SIGNIFI-

CANT ISSUE INVOLVED IN THE CIVIL RIGHTS

LITIGATION

Under Farrar v. Hobby, 113 S.Ct. 566 (1992), this Hon-

orable United States Supreme Court held a fee award

should be based upon the amount of success achieved by

the plaintiffs, not to provide windfalls to attorneys. /d. at

Page 575. A “judicial pronouncement that the defendant

has violated the constitution, unaccompanied by an

enforceable judgment on the merits, does not render

plaintiff a prevailing party.” i... at Page 573. Additionally,

the Ninth Circuit has applied a 2-prong test which asks 1)

whether the lawsuit resulted in the relief obtained and 2)

whether there is a legal basis for plaintiffs’ claim. Sablan,

supra, at 856 F.2d at Page 1325. Under neither of these

standards can plaintiffs be deemed a prevailing party.

Under Nadeau v. Helgemoe (1st Cir. 1978) 581 F.2d 275

and California Association of Physically Handicapped v. FCC

(9th Cir. 1983) 721 F.2d 667, the test that plaintiff must

pass is “legal as well as factual” because “if it has been

judicially determined that defendants’ conduct, however

beneficial it may be to the plaintiffs’ interest, is not

required by law, then defendants must be held to have

acted gratuitously and plaintiffs have not prevailed in a

legal sense.” Nadeau, supra at 281. See also Ortiz de Arroyo

v. Barcelo, 735 F.2d 275 (1st Cir. 1985).

As the amount of fees charged must be reasonably

related to the results obtained, the $150,000.00 awarded in

this case is excessive as a matter of law. (Hensley v.

Eckerhardt, 461 U.S. 429 (1983).)

No finding whatsoever on this issue was made by the

District Court where plaintiffs’ attorneys’ fees were three

times those charged by the attorneys for defendant. It has

been said that attorneys’ fees may not be properly

awarded where, as here, the public entity finds itself in

the middle of two groups’ demands, where, no matter

which course it follows, might subject it to one group’s

complaint of unconstitutional conduct (see e.g. Grano v.

Barry, 783 F.2d 1104, 1111-1112 (D.C. Cir. 1986).)

The grounds for pressing the “religious access” and

“religious services” issues were as a matter of law a

strawman issue, pretextual and confrontational in nature,

“more contrived than real” (Naprstek v. City of Norwich,

433 F.Supp. 1369, cited in Nadeau v. Helgemoe, supra, Fn. 3

Page 279) and constituted no more than a trivial, inciden-

tal or insignificant “success” by plaintiffs, no different

than any nuisance settlement (Chicano Police Officers Asso-

ciation v. Stover, 624 F.2d 127, 131 (CA 10 1980); cited in

Texas State Teachers v. Garland Independent School District,

109 S.Ct. 1486, 1493, 488 U.S. 815 (1989).)

[A] civil rights plaintiff may not collect attor-

ney’s fees for demanding that a state officer do

what he would have done in anv case. (Coen v.

Harrison County School Board, 638 F.2d 24, 26 (5th

Cir. 1981), Cert. Denied 455 U.S. 938, 102 S.Ct.

1427 (1982).)

Plaintiffs conceded use of religious items during reli-

gious services was not a “core issue.”

That there is always room for improvement in prac-

tice or program is not evidence or finding of rights viola-

tions, especially in a setting acknowledged by this court

as one beset with “intractable problems” (O’Lone v. Estate

of Shabazz, 107 S.Ct. 2400, 2404-2405.) Because something

is desirable does not make it constitutionally required.

(EDD v. Smith, supra, 110 S.Ct. 1591, 1606.)

That inmates, church groups, chaplains, or jail per-

sonnel propose alternatives for more or different reli-

gious services in a jail setting, whether acted upon or not,

does not equal “evidence of a wrong” or “vindication of a

right.” The jail program did not have to be the only

alternative or even the best alternative for it to be reason-

able, to say nothing of constitutional. (Bell v. Wolfish,

supra, Fn. 25, Pages 542-543.) In a jail setting, the “right”

in question must be viewed “sensibly and expansively.”

(Thornburgh v. Abbott, 104 L.Ed. 459, 476, 490 U.S. 401.)

While the vindication of rights by settlement or infor-

mally without a judgment can form the basis for a finding

of prevailing party status (Nadeau v. Helgemoe, 581 F.2d

275 (1st Cir. 1978)), the vindication must be of rights and

evidence of the existence of the wrong and of its vindica-

tion as a proximate result of the lawsuit must be pro-

duced. In a jail setting, proof of the existence of the

wrong is a difficult task, one described as a heavy burden

of showing that the inherent limitation of rights caused

by the fact of incarceration itself constituted a legal wrong.

(Bell v. Wolfish, supra, Page 546, 561-562.) This action

appeared to begin with the assumption by the trial court

that the jail was guilty.

“The touchtone of the prevailing party inquiry must

be the material alteration of the legal relationship of the

parties in a manner which Congress sought to promote in

the fee statute.” (Texas State Teachers v. Garland Independent

School District, supra 107 S.Ct. 1486 (1989) 488 U.S. 815.)

Defendants’ conduct in revising the jail manual to

reflect a pre-existing reality in order to terminate this

litigation was therefore gratuitous, not required by law,

and plaintiffs did not prevail in a legal sense as a matter

of law. (See California Association of Physically Handicapped

v. FCC, supra, 721 F.2d 667, 671-672 (9th Cir. 1983).)

On this record any finding of substantial success was

based on nothing but speculation and conjecture, and

defies irrefutable facts showing that this massive litiga-

tion was totally unnecessary.

While it has never been contested that non-monetary

success can justify an award of attorneys’ fees in civil

rights litigation, it is respectfully submitted that this case

represents a “ground zero” at which success on the merits

can not be detected. Under the principles enunciated by

this court in Hensley v. Eckerhardt, 461 U.S. 424 (1982) the

decision should be reversed.

CONCLUSION

Review by this court is again necessary to correct a

situation which, if left as it is, will severely impair the

ability of county jail administrators to run a jail. 42 U.S.C.

§1988 was never intended to reward attorneys for base-

less claims or hollow victories. Left unresolved, the pre-

cedential significance of such a patently erroneous ruling

is both staggering and frightening. For example, an attor-

ney can now potentially sue a jail facility for §1983 relief

alleging inadequate medical care, then claim victory after

doing no more than obtaining copies of the medical

school diplomas of the prison physicians. Or, an attorney

could bring a lawsuit alleging malnutrition, then claim

victory when all he obtains are copies of the prison’s food

service recipes. Finally, an attorney could file a lawsuit

alleging overcrowded prison conditions, then claim vic-

tory when he receives a roster of inmates.

This case is an example of the District Court totally

ignoring an emphatic pronouncement of this court, speci-

fically that jails are not to be run on the basis of what a

district court judge would do if he or she were the jail

administrator, but that judicial intervention is to be lim-

ited only to circumstances where constitutional violations

have been shown to exist by substantial evidence. The

decision in this case cries out for resolution by this court.

The dilemmas posed to jail administrators by this case

deserve resolution by this court.

DATED: December 18, 1995

RicHARD L. REYNOLDS

BENNETT, SAMUELSEN, REYNOLDS &

ALLARD

Attorneys for Petitioners

INDEX TO APPENDIX

Appendix Al - Friend v. Kolodzieczak 65 F.3d

FOOD oendnteerivhi serene eee

Appendix A2 ~ Friend v. Kolodzieczak January 19,

1993 letter from William Suter, Clerk of the

United States Supreme Court..................

Appendix A — Friend v. Kolodzieczak F.2d (9th

Cir. May 19, 1992, No. 90-16140), Pregerson,

Circuit Judge, Joined by Judge O’Scannalain;

Dissent by Judge Ferguson ....................

Appendix B - Friend v. Kolodzieczak 923 F.2d 126

PF 08 sixtaeadsuntsae eee ee

Appendix C —- Order of Service, September 17,

1987, U.S. District Court Judge Patel...........

Appendix D — Order Appointing Counsel, Febru-

MEY £3; POOR: 6 Since ts aan Coe

Appendix E — Order Certifying Class Granting

Leave To File First Amended Complaint, June

SOy: MID « 6n op cas 0e4S ea RN ete ee

Appendix F - Memorandum and Order Condi-

tionally Granting Defendants’ Motion For Sum-

mary Judgment, September 29, 1989 ...........

Appendix G — 1987 North County Jail Policies &

Procedures Manual, Section III, 5-15, “Religious

DOOWSRNE gs oie bee eee eee

Appendix H - Operational Order No. 1, North

County Jail Policies & Procedures Manual, Sec-

tion III, 5-15, “Religious Services” and corre-

spondence transmitting same to District Court ..

Appendix I - Order of Dismissal, November 7,

EPOF 8 used kde y os CAAA eee

INDEX TO APPENDIX - Continued

Page

Appendix J - Memorandum and Order Awarding

Plaintiffs’ Attorneys’ Fees, June 20, 1990......... A87

Appendix K - Memorandum and Order Awarding

Attorneys’ Fees, July 10, 1990.................... A99

Appendix L - Amended Memorandum and Order

Awarding Attorneys’ Fees, July 20, 1990........ A101

Appendix M —- Catholic Bishop’s April 7, 1987

Authorization of Interdenominational Christian

PE ee APP PER) Oe A103

Appendix N — Answer to Complaint, October 23,

1987 Jail Religious Program Rules, Regulations,

Guidelines. . Pr or rr iecddetcaako den cueaes A105

Appendix O - January 12, 1988 letter from Cap-

tain Hickerson to Catholic detention minister ...Al11

Appendix P —- Declaration in elon of Class

Certification, April 18, 1988. sivcecsheswuen’ All3

Appendix Q - October 24, 1989 Hearing Tran-

script + TYTTT ITTY Se All6

Appendix R - March 13, 1989 Hearing Transcript ..A131

Appendix S — Petition to Ninth Circuit for Rehear-

8 | Pee re ieee Pee

APPENDIX Al

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

as } No. 93-16918

Jack W. Frienp, et al., ) oo:

7 D.C. No

af tts-Annellees y

Plaintiffs-Appellee | CV-87-0161-MHP

Vv. ) ORDER,

RONALD KOLopzigcCZAK, et al., | APPENDIX AND

DISSENT

Defendants-Appellants. )

Appeal from the United States District Court

for the Northern District of California

Marilyn Hall Patel, District Judge, Presiding

Submitted* May 22, 1995

San Francisco, California

Filed September 19, 1995

Before: Harry Pregerson, Warren J. Ferguson, and

Diarmuid F. O’Scannlain, Circuit Judges.

COUNSEL

Richard L. Reynolds, Bennett, Samuelsen, Reynolds &

Allard, Oakland, California, for the defendants-appel-

lants.

Amitai Schwartz, San Francisco, California, for the plain-

tiffs-appellees.

*The panel unanimously found this case suitable for decision

without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit

Rule 34-4.

ORDER

We affirm the district court’s order on remand for the

reasons stated in the district court’s Memorandum and

Order Re Attorneys’ Fees and Costs (On Remand), filed

September 14, 1993, attached as Appendix A.

APPENDIX A

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

) No. C 87-0161

Jack Wayne FRienp, et al., ) MHP

Plaintiffs, ; MEMORANDUM

V. ) AND ORDER RE

RONALD KOLODZIECZAK, et al ) AL TORN YS

a : ‘ ) FEES AND

Defendants. ) COSTS (ON

) REMAND)

This case is back before this court on remand from

the Supreme Court and the Ninth Circuit Court of

Appeals for reexamination of the reasonableness of the

attorneys’ fees award in light of the Supreme Court's

recent decision in Farrar v. Hobby, __ U.S. __, 113 S. Ct.

566 (1992). Plaintiffs also seek fees and costs for time

spent defending the fee award and seek interest on the

fee award.

Having considered the submissions of the parties, the

court re-affirms its original award, orders that plaintiffs

en en en

be awarded fees and costs for time expended defending

the fee award, and orders that all fee awards be paid with

interest.

BACKGROUND

The facts of this case are treated in detail in this

court’s previous order of September 29, 1989. Briefly,

plaintiffs, a class of all Roman Catholic inmates at

Alameda County’s North County Jail, brought this suit

against county officials under the Civil Rights Act of

1964, 42 U.S.C. § 1983, seeking to secure access to Roman

Catholic services and to possess certain sacramental arti-

cles (rosary beads and scapulars).

At hearings on cross-motions for summary judgment

in October 1988 and March 1989, the parties indicated to

the court that all issues regarding inmates’ access to

religious services had been resolved. Defendants further

represented to the court that they were willing to allow

inmates to possess rosaries and scapulars, but only under

supervision. In September 1989, this court granted defen-

dants’ motion for summary judgment on the issue of

whether jail officials were required to permit inmates

access to rosaries and scapulars at all times, finding that

unfettered and unsupervised possession of the sacramen-

tal articles was not constitutionally required. Friend v.

Kolodzieczak, No. C-87-0161 (N.D. Cal. September 29,

1989). At the court’s instruction, the defendants put in

writing a policy regarding accommodation of inmates’

religious needs.

Plaintiffs subsequently brought a motion for attor-

neys’ fees and costs under the Civil Rights Attorney’s

Fees Award Act of 1976, 42 U.S.C. § 1988. On June 20,

1990, the court granted plaintiffs’ motion, awarding

$72,445.00 in fees and $6462.22 in out-of pocket costs for

the original litigation on the merits; the court further

ruled that plaintiffs were entitled to fees and costs for

time spent litigating the fee award. On July 10, 1990, the

court fixed this latter amount at $14,875.50. On July 18,

1990, the court issued an amended order consolidating

the previous two orders.

Defendants appealed this court’s award of fees to the

Ninth Circuit, which affirmed. Friend v. Kolodzieczak, 965

F.2d 682 (9th Cir. 1992). Defendants then appealed the

Ninth Circuit ruling to the Supreme Court, which granted

certiorari, vacated the judgment, and remanded the fee

award to the Ninth Circuit for consideration in light of

Farrar. Friend v. Kolodzieczak, 113 S.Ct. 1038 (1993). The

Ninth Circuit subsequently remanded to this court with

instructions to “re-examine its determination of the rea-

sonableness of the attorneys’ fees award” in light of

Farrar. Friend v. Kolodzieczak, 992 F.2d 243 (9th Cir. 1993).

LEGAL STANDARD

Under the Civil Rights Attorney’s Fees Award Act of

1976, 42 U.S.C. § 1988, a court may award reasonable

attorneys’ fees to a prevailing party in a civil rights

action. In the absence of special circumstances, a prevail-

ing party should recover reasonable attorneys’ fees.

Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 (9th

Cir. 1986), reh’g denied and opinion amended, 808 F.2d 1373

(9th Cir. 1987) (citing Hensley v. Eckerhart, 461 U.S. 424,

429 (1983)).

As an initial matter, a court must first determine

whether or not the Party seeking fees has “prevailed.” In

order to qualify as a prevailing party, a plaintiff must

obtain some relief on the merits of his claim that mate-

rially alters the legal relationship between the Parties.

Texas State Teachers Ass'n v. Garland Independent School

Dist., 489 U.S. 782 (1989).

Having determined that a civil rights plaintiff is a

prevailing party, the court may award reasonable attor-

neys’ fees. In determining the amount of the award, a

court generally should begin by calculating the so-called

“lodestar” amount, arrived at by multiplying the number

of hours reasonably spent in achieving the results

obtained by a redsonable hourly rate. Gates v. Deukmejian,

987 F.2d 1392, 1397 (9th Cir. 1992). A court may also

consider other factors, including the degree of success

obtained, and make adjustments to the lodestar accord-

ingly. See Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70

(9th Cir. 1975) (enumerating the factors that may be con-

sidered in adjusting the lodestar amount), cert. denied, 425

U.S. 951 (1976).

DISCUSSION

I. Reasonableness of the Fee Award in Light of Farrar

The Supreme Court in Farrar did not dramatically

alter the law relevant to attorneys’ fees awards; instead

the Court refined its analysis of the fee award issue while

A6é

in large part re-affirming its precedents. The Farrar deci-

sion does not undermine this court’s original determina-

tion of what constitutes a reasonable fee award in this

case.

In Farrar, the plaintiffs sued multiple defendants for

$17 million but were ultimately awarded only one dollar

in damages against a single defendant. Farrar, 113 S. Ct.

at 570. On the plaintiffs’ motion for attorneys’ fees under

section 1988, the district court awarded over $300,000 in

fees, costs, and interest. The Fifth Circuit reversed the fee

award, holding that plaintiffs could not be considered

prevailing parties, given the minimal recovery. Estate of

Farrar v. Cain, 941 F.2d 1311 (5th Cir. 1991).

The Supreme Court affirmed the denial of fees.

Although the Court held that the plaintiffs were in fact

prevailing parties, see note 2 infra, the Court found that

the plaintiffs were nonetheless not entitled to attorneys’

fees, since the only reasonable fee award for such a

hollow victory was no award at all.

In reaching this conclusion, the Court reiterated that

a court must determine a reasonable fee award in light of

the degree of success obtained in the action. Id. at 574-75

(citing Hensley v. Eckerhart, 461 U.S. 424 (1983)). In certain

circumstances, the minimal nature of the party’s “suc-

cess” will compel an award of no fee at all. Id. The Court

held that in such a case a court may by-pass the initial

step of calculating the lodestar fee. The district court’s

error in Farrar was its award of substantial fees “without

‘consider[ing] the relationship between the extent of suc-

cess and the amount of the fee award.’ ” Id. at 575 (citing

Hensley, 424 U.S. at 438).

The plaintiffs in the instant case achieved far more

than the type of “technical” or “de minimus” victory won

by the plaintiffs in Farrar, and the fee award originally

ordered is reasonable.’ The plaintiffs here requested pri-

marily injunctive relief and were for the most part suc-

cessful in obtaining the relief that they requested. As this

court stated in its original order, “[p]laintiffs achieved the

right sought to expanded access to Roman Catholic

services and sacraments, and gained explicit, written

acknowledgment of the right to at least limited use of

rosaries and scapulars.” Friend, No. C-87-0161 (N.D. Cal.

June 20, 1990), at 11. The changes accomplished were the

' The issue of whether or not plaintiffs are “prevailing

parties” is not before this court on remand; the Ninth Circuit

order instructed this court to re-examine only the reasonable-

ness of the award. Friend, 992 F.2d at 243.

At any rate, Farrar clearly does not affect this court's origi-

nal determination, affirmed by the Ninth Circuit, that plaintiffs

prevailed in this case. In fact, the Farrar Court’s refinements to

the prevailing party analysis make it easier for parties to meet

this threshold requirement, if anything. In reversing the Fifth

Circuit’s finding that the plaintiffs were not “prevailing par-

ties,” the Farrar Court reiterated that a party has prevailed

“when actual relief on the merits of his claim materially alters

the legal relationship between the parties by modifying the

defendant’s behavior in a way that directly benefits the plain-

tiff.” Farrar, 113 S. Ct. at 573 (citing, inter alia, Texas State

Teachers, 489 U.S. at 792-93). The Court held that even a plaintiff

who is awarded only nominal relief is a “prevailing party”

under this definition. Farrar, 113 S. Ct. at 573.

In the instant case, as pointed out in this court’s original

order and as detailed below, plaintiffs achieved substantially all

of the results they originally sought in a way that clearly altered

the legal relationship between the parties. See Friend,

No.C-87-0161 (N.D. Cal. June 20, 1990), at 6 (citing, inter alia,

Texas State Teachers, 489 U.S. at 792-93).

result of the instigation of this lawsuit. This court found

that these policies reflected changes in jail policy brought

about by plaintiffs’ suit and were not, as defendants

claimed, pre-existing jail policies. Id. at 7. The record

establishes that without this action defendants would not

have developed the policy ultimately adopted in this

case. This result was more than merely “technical”; it

“materially alter[ed] the legal relationship between the

parties” in a manner that was meaningful and substan-

tial. Farrar, 113 S. Ct. at 574.

In making its determination of reasonable fees, this

court relied on the same precedent that is re-affirmed in

Farrar. Specifically, this court noted that Hensley dictates

that a court consider the overall results achieved by

plaintiffs. See Friend, No. C-87-0161 (N.D. Cal. June 20,

1990), at 11. Although this court noted in its original

ruling that it had granted defendants’ motion for sum-

mary judgment on the issue of whether jail officials were

required to permit inmates unlimited access to rosaries

and scapulars at all times, it found then, and reaffirms

now, that plaintiffs nonetheless prevailed on a significant

portion of the relief sought. After assessing the degree of

success achieved by the plaintiffs, this court found that

plaintiffs were entitled to recover the fees they requested,

equal to 85% of the lodestar amount. I[d.?

2 The Ninth Circuit, in affirming this court’s fee award, also

noted the extent of plaintiffs’ success. See Friend, 965 F.2d at

684-85. Although the Ninth Circuit’s discussion of plaintiffs’

success was in the context of analyzing whether plaintiffs quali-

fied as “prevailing parties,” as opposed to whether the award

was reasonable, the two prongs of the fee award analysis are

clearly related. :

The fact that plaintiffs received no monetary relief is

of no import, since, unlike the Farrar plaintiffs, the pri-

mary goal of the plaintiffs in this case was to obtain

injunctive relief. See Pembroke v. Wood County, 981 F.2d

225, 231 n.27 (5th Cir.) (distinguishing Farrar on this

ground), cert. denied, __ US. — 113 S. Ct. 2965 (1993).

Nor is it relevant that plaintiffs obtained the relief they

sought through settlement rather than a judgment in their

favor. The Supreme Court in Farrar reaffirmed the princi-

ple relied on by this court in its original fee award that

fees may be awarded due to relief obtained through a

settlement or consent decree. Farrar, 113 S.Ct. at 503 (cit-

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

In short, there is nothing in Farrar that affects this

court's original analysis of the reasonableness of the

attorneys’ fees in this case. Plaintiffs’ victory in this case

was no pyrrhic victory, as in Farrar, but rather was sub-

stantial and significant. Thus Farrar and the precedents

on which it relies dictate that this court follow the “lode-

star” method of calculating a reasonable fee award that it

did in the first instance, with due consideration given to

the degree of success obtained by the prevailing party.?

* The court declines defendants’ invitation to view this

remand as an opportunity for a full-scale re-assessment of the

court's initial fee award, including such matters (not raised by

defendants at the time of the initial fee award) as whether

plaintiffs’ attorneys spent too much time on this litigation or

exaggerated their hours. This court has already determined in

its original orders that plaintiffs’ attorneys have submitted suf-

ficiently detailed records to substantiate the number of hours

claimed. The court’s mission on remand is to re-examine its

ruling in light of Farrar, not in light of any new or previously

litigated claim that defendants wish to raise.

A10

II. Plaintiffs’ Entitlement to Fees For Hours Expended

Defending The Award of Attorneys’ Fees.

Plaintiffs are entitled to compensation for all time

reasonably spent defending this court’s original orders

awarding fees and costs, including time spent unsuc-

cessfully opposing defendants’ petition to the Supreme

Court for a writ of certiorari. See Cabrales v. County of Los

Angeles, 935 F.2d 1050, 1052-53 (9th Cir. 1991). The fact

that plaintiffs lost one battle along their road to ultimate

victory does not deprive them of their entitlement to fees

and costs for that setback. Id.4

Plaintiffs have already been awarded fees and costs

through the time of the court of appeals ruling on the fee

issue. Plaintiffs now claim a lodestar amount of

$17,005.00 for time spent litigating the fee award between

the time of the court of appeal’s ruling and July 9, 1993.5

* Contrary to defendants’ assertion, plaintiffs have not

requested fees for their appeal of this court’s summary judg-

ment ruling regarding inmates’ unsupervised possession of

rosaries and scapulars, a claim on which plaintiffs ultimately

were unsuccessful.

> Plaintiffs calculate this figure based on the following

formula:

Amitai Schwartz 51.0 hrs. x $275/hr. = $14,025.00

Sue Ochs 2.55 hrs. x $175/hr. = $437.50

Dennis Farias 8.9 hrs. x $150/hr. = $1,335.00

Antonio Ponvert III 4.0 hrs. x $130/hr. = $520.00

See Schwartz Dec. at 3 (reflecting time spent through June 18,

1993). Mr. Schwartz spent an additional 2.5 hours (equalling

$687.50 at the rate of $275 per hour) in reviewing defendants’

All

Plaintiffs also seek $779.58 in expenses for this time

period. See Schwartz Dec. at 4; Supp. Schwartz Dec. at 2.

Defendants contest this amount and contend that plain-

tiffs’ documentation is inadequate. The court finds that

given the total hours expended in this case, plaintiffs’

documentation is sufficiently specific to justify an award

of fees, and that the number of hours claimed is reason-

able for the tasks described. Plaintiffs are therefore enti-

tled to fees and costs in the amounts requested.

III. Post-Judgment Interest

Pursuant to 28 U.S.C. § 1961(a), plaintiffs are entitled

to post-judgment interest on judgments “from the date of

the entry of the judgment.” The statute applies to awards

of attorneys’ fees and costs under section 1988. Spain v.

Montanos, 690 F.2d 742, 747-48 (9th Cir. 1982). Interest

Opposition to this motion and Preparing a reply. See Supp.

Schwartz Dec. at 1-2.

Plaintiffs’ attorneys have increased slightly the hourly rate

claimed from the rates accepted by this court in the original

fees motion in 1990. See Friend, C-87-0161 (N.D. Cal. June 20,

1990), at n.3 (reflecting a rate of $235 per hour for Mr. Schwartz

and $140 per hour for Ms. Ochs). Defendants have not dis-

puted this increase in rates and the court finds the increase

reasonable in view of inflation and rising cost of legal services

over the past three years.

fees, it follows that costs, as part of the same judgment, are

also covered by the post-judgment interest statute. See R.W.T. v.

Dalton, 712 F.2d 1225, 1234-35 (8th Cir.) (awarding interest on

both fees and costs), cert. denied, 464 U.S. 1009 (1983).

Al2

runs from the date that entitlement to fees is secured,

rather than from the date that the exact quantity of fees is

set. Finkelstein v. Bergna, 804 F. Supp. 1235, 1239-40 (N.D.

Cal. 1992); see also Perkins v. Standard Oil Co., 487 F.2d 672,

674-76 (9th Cir. 1973) (post-judgment interest runs from

date attorneys’ fees are first awarded even though the fee

award is later reduced on appeal).

On June 20, 1990, this court entered an order for

$72,445.00 in attorneys’ fees, plus costs in the amount of

$6,462.22, related to plaintiffs’ litigation on the merits. In

the same order, the court awarded plaintiffs their fees

and costs related to the fee award litigation. Although the

exact amount of this latter award was not fixed until July

10, 1990, interest on this award, as on the original award,

runs from June 20, 1990, the date on which the entitle-

ment to fees was secured. Plaintiffs state, and defendants

do not dispute, that the rate of interest under 28 U.S.C.

§ 1961 on that date was 8.09 percent. Plaintiffs will there-

fore be awarded interest at this rate.

The court of appeals has previously awarded plain-

tiffs $17,244.17 for time spent defending this court's fee

award through September 17, 1992 (the date on which the

Ninth Circuit affirmed the fee award). Plaintiffs are enti-

tled to interest on this amount from the date of that

award on September 17, 1992. 28 U.S.C. § 1961; Finkel-

stein, 804 F. Supp. at 1239-40. Plaintiffs state, and defen-

dants do not dispute, that the interest rate under 28

U.S.C. § 1961 on that date was 3.13 percent; accordingly,

this court will order interest to be paid at this rate.

Al3

CONCLUSION

For the foregoing reasons, the court reaffirms its

previous orders and HEREBY ORDERS:

1) that defendants pay the sum of $72,445.00 to

plaintiffs as compensation for services rendered in con-

nection with the original litigation;

2) that defendants pay the sum of $6,462.22 to

plaintiffs as compensation for costs in the original litiga-

tion; and

3) that defendants pay the sum of $14,875.50 to

plaintiffs as compensation for services rendered in con-

nection with the fee litigation.

IT IS FURTHER ORDERED:

4) that the foregoing amounts be paid with interest

at the rate of 8.09 percent from June 20, 1990;

5) that the amount awarded in fees by the Ninth

Circuit ($17,244.17) be paid with interest, at the rate of

3.13 percent from September 17, 1992;

6) that the defendants pay the sum of $17,005.00 to

plaintiffs in compensation for services rendered in con-

nection with the defense of the fee award from September

17, 1992 through July 9, 1993; and

7) that defendants pay the sum of $779.58 to plain-

tiffs for costs incurred in defense of the fee award from

September 17, 1992 through July 9, 1993.

Al4

IT IS SO ORDERED.

Dated: SEP 14 1993

FERGUSON, Circuit Judge, dissenting:

The majority, in affirming the district court’s award

of attorneys’ fees in this case, has created an unexplained

conflict with our case of Bryant v. Gomez, 46 F.3d 948 (9th

Cir. 1995), by implicitly granting rights to Roman Catho-

lics which are denied to other religious denominations. It

must be understood that at no time during the course of

this litigation has any authority of the Catholic Church

maintained that the defendants deprived inmates of

access to any tenet or belief mandated by the Catholic

Church. Here, despite the fact that the legal relationship

between the parties was not materially altered by the

settlement of the case and despite the fact that the

inmates did not win any right to Catholic denominated

services or to unsupervised access to rosary beads or

scapulars, the district court found that the plaintiffs were

“prevailing parties” in their 42 U.S.C. § 1983 suit against

the jail. As a result of the district court’s holding and the

majority’s order, the taxpayers of Alameda County will

now be forced to pay thousands of dollars in attorneys’

fees for a civil rights case in which no civil rights were

violated; therefore, I dissent.

I. Background

The case underlying the award of fees is a 42 U.S.C.

§ 1983 class action brought by a group of Alameda North

County Jail’s (“the jail’s”) Roman Catholic inmates. The

inmates alleged that the jail violated their rights: (i) to

Al5

participate in Catholic religious services performed by a

priest and (ii) to possess rosary beads and scapulars in

their cells. At the original hearing on cross-motions for

summary judgment, the parties agreed that all of the

issues concerned with access to Catholic religious ser-

vices had been resolved. The remaining issue, the

inmates’ right to possess rosary beads and scapulars in

their cells, was resolved when this Court affirmed the

district court’s determination that the jail had legitimate

security reasons for restricting inmates’ private access to

rosary beads and scapulars. Friend v. Kolodzieczak, 923

F.2d 126, 128 (9th Cir. 1991).

At the close of the original litigation, the inmates

brought a motion for attorneys’ fees and costs under the

Civil Rights Attorney’s Fees Award Act of 1976, 42 U.S.C.

§ 1988. The district court awarded attorneys’ fees and this

Court affirmed the award. Friend v. Kolodzieczak, 965 F.2d

682, 686 (9th Cir. 1992) (Ferguson, J., dissenting), vacated,

—__. U.S. __, 113 S.Ct. 1038 (1993). Defendants appealed

the award to the Supreme Court, which granted cer-

tiorari, vacated the judgment, and remanded for recon-

sideration in light of Farrar v. Hobby, __ U.S. __, 113

S.Ct. 566 (1992). This Court, in turn, remanded the case to

the district court. Friend v. Kolodzieczak, 992 F.2d 243 (9th

Cir. 1993).

On remand, the district court reaffirmed its original

grant of fees and also awarded fees and costs for the time

expended in defending the award on appeal. Friend v.

Kolodzieczak, No. CV-87-0161-MHP, 1993 WL 372252,

(N.D. Cal. Sept. 14, 1993). The majority has upheld the

award and I must again dissent based on the fact that the

plaintiffs were not “prevailing parties.” The defendants

Al16

in this case settled neither in recognition of nor in

response to the plaintiffs’ rights, but rather, in fur-

therance of reasonable penological goals - peace and

quiet among the inmate population.

II. Discussion

In affirming the district court for the reasons stated

in the court’s opinion, the majority find that the inmates

qualify as a “prevailing party” and therefore are entitled

to an award of attorneys’ fees. A “prevailing party” is one

who succeeds “on any significant issue in litigation” and

achieves a resolution which “changes the legal relation-

ship between itself and the defendant.” Texas State

Teachers Ass'n v. Garland Independent School Dist., 489 U.S.

782, 791-92 (1989). When no formal relief is granted, a

plaintiff may nevertheless be a “prevailing party” if the

lawsuit provides the catalyst for constitutional reform by

the government. Sablan v. Dep't of Fin. of Com. of N.

Mariana Islands, 856 F.2d 1317, 1325 (9th Cir. 1988). The

Supreme Court held in Farrar that “judicial pronounce-

ment that the defendant has violated the Constitution,

unaccompanied by an enforceable judgment on the

merits, does not render the plaintiff a prevailing party.”

Farrar, 113 S.Ct. at 573. In the case at hand, the jail’s

Roman Catholic inmates won neither an enforceable

judgment against the defendants, a “judicial pronounce-

ment that the defendants had violated the Constitution,”

nor a change in the legal relationship between themselves

and the jail.

The record establishes that the jail provided inter-

denominational Christian services for the inmates on

Al7

Sunday mornings. A Catholic Charities lay minister,

approved by the Bishop of Oakland, regularly partici-

pated in the interdenominational services with Protestant

lay ministers and individually administered to the

inmates during visiting hours. The lay minister brought

holy communion to the inmates, taught with Roman

Catholic texts and study guides, and arranged for the

sacrament of confession with a priest upon an inmate’s

request. The inmates were also allowed to use rosary

beads and scapulars during services or under other

supervised conditions.

The record demonstrates that the Catholic lay minis-

ter was causing dissension in the jail by his attempts to

convert prisoners of other religions to Catholicism. As a

result of the heightened tensions between himself and the

protestant group involved in the interdenominational

worship services in the fall of 1987, the Catholic lay

minister attempted to get approval for independent,

Catholic-denominated services. Following the lay minis-

ter’s failed effort to secure independent Catholic services,

he terminated his ministry at the jail. As a result, the

Catholic inmates at the jail experienced a period of time

in which no Catholic minister, lay or otherwise, was

available. The absence was not however, due to any negli-

gence or restrictive intent on the part of the jail.

As soon as the disgruntled minister left his ministry,

jail officials approached Catholic Charities for a replace-

ment minister. It was during this period that the inmates

brought suit against the jail seeking independent Catho-

lic-denominated services and the right to use rosary

beads and scapulars unsupervised in their cells. The jail

settled the religious services case to prevent the jail from

Al18

becoming another Northern Ireland or Bosnia. There was

no restraint of religious rights to the plaintiffs because

they were never without access to interdenominational

services which were approved by the Roman Catholic

Bishop of Oakland. It must be repeated that at no time

during this litigation has the proper authority of the

Catholic Church ever stated that the policies of the jail

prevented inmates from having a religious experience

mandated by the Catholic faith. See Graham v. C.I.R., 822

F.2d 844, 850-51 (9th Cir. 1987), aff'd sub nom. Hernandez v.

Commissioner, 490 U.S. 680, 699 (1989).

Under Sablan, we must follow a two part test to

determine whether or not the inmates qualify as a “pre-

vailing party.” First, we must determine whether the

lawsuit resulted in the relief obtained. Sablan, 856 F.2d at

1325. It is clear that the county did not settle the religious

services portion of this case to grant the inmates their

religious rights; the inmates were never deprived of their

right to religious services. See Bryant, 46 F.3d at 949

(holding that under the Religious Freedom Restoration

Act (“RFRA”), 42 U.S.C. §§ 2000bb-2000bb-4, an inmate’s

42 U.S.C. § 1983 challenge to a prison’s restrictions on full

religious services must meet the “substantial burden” test

to be actionable). In addition, the district court held and

this Court affirmed that the inmates suffered no loss of

rights as a result of the jail’s refusal to allow the private

possession of religious articles. Friend, 923 F.2d at 128.

Thus, the inmates suffered no violation of their rights, but

for the legitimate purpose of prison security.

The second prong of the Sablan test looks to whether

there is a legal basis for the plaintiff’s claim. Sablan, 856

Al19

F.2d at 1325. It is undisputed that the interdenomina-

tional services were approved by the authorized leaders

of the Catholic Church and they provided the religious

rights to which the plaintiffs were entitled. See Bryant, 46

F.3d at 949-50. Neither the priests nor the prison deprived

inmates of any right. Limited access to a Catholic priest is

increasingly common throughout dioceses across the

country as “[dJeclining numbers of U.S. Catholic priests

have created a shortage in key religious services.” Rich-

ard A. Schoenherr & Lawrence A. Young, Full Pews and

Empty Altars: Demographics of the Priest Shortage in the

United States Catholic Dioceses 307 (1993). Throughout the

U.S. Catholic Church lay leadership is gaining greater

and greater legitimacy both as a result of the Second

Vatican Council’s emphasis on lay participation in church

ministry and as a result of the expanding parishoner-to-

priest ratios. Id. at 354, 342. In light of such facts, it is

absurd for courts to hold that Catholic prisoners have a

greater right to access to a priest than parishioners do.

Following Farrar, this Court recently held that “to

qualify as a prevailing party, a civil rights plaintiff ‘must

obtain an enforceable judgment against the defendant

from whom fees are sought.’ ” Wilcox v. City of Reno, 42

F.3d 550, 554 (9th Cir. 1994) (quoting Farrar, 113 S.Ct. at

573). The majority, in affirming the district court, reason

that the inmates are a “prevailing party” because the jail,

in response to a court order, provided the inmates with a

written statement of the jail’s policy regarding the posses-

sion of religious items. However, the existence of a writ-

ten policy does not prove that the plaintiffs were

victorious. No proof was offered to show that the prison

changed its policy as a result of the plaintiffs’ suit. In light

A20

of the fact that this court has consistently held that: (i)

prisoners do not have an unfettered right to individual,

denomination-specific services, and that (ii) the jail has

the right to restrict access to religious objects, I find it

impossible to conclude that the plaintiffs were the “pre-

vailing party” in this suit.

By concluding that the inmates were a “prevailing

party,” the district court and the majority have granted,

in violation of the First Amendment, an alleged civil right

to Catholics which in this Circuit does not extend to

Protestants. See Bryant, 46 F.3d at 949. In Bryant, we held

that prison officials were not required to provide full

religious Pentecostal services to inmates because there

was no evidence that the services which the inmates

requested were mandated by the Pentecostal faith. The

Bryant Court relies on Graham for the rule that:

the religious adherent . . . has the obligation to

prove that a governmental [action] burdens the

adherent’s practice of his or her religion . . . by

preventing him or her from engaging in conduct

or having a religious experience which the faith

mandates. This interference must be more than

an inconvenience; the burden must be substan-

tial and an interference with a tenet or belief

that is central to religious doctrine.

Graham, 822 F.2d at 850-51. In this case the record is clear

that the Catholic Bishop specifically approved inter-

denominational services with Protestants to take the

place of the traditional Mass because of the lack of Catho-

lic priests. Without any explanation whatsoever, the

majority imply that that is not good enough for Catholics,

A21

but that it is good enough for other religious denomina-

tions. The failure of the district court and the majority to

realize that by finding the plaintiffs to be “prevailing

parties” it has granted rights to Catholics that it does not

grant to other religious denominations is remarkable and

dangerous.

The facts of this case remain uncontested. A group of

inmates brought an action to enforce religious rights

which they were never denied. As the Supreme Court

reaffirmed in Farrar, fee awards under § 1988 should be

based on the amount of success achieved by the plaintiffs

and not provide windfalls to attorneys. Farrar, 113 S.Ct. at

575. The plaintiffs in this case could not and did not

achieve any success as their rights were never violated.

Any award of attorneys’ fees is inappropriate.

APPENDIX A2

A22

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, D.C. 20543

January 19, 1993

Mr. Richard L. Reynolds

Bennett, Samuelsen, et al.

1951 Webster Street, #200

Oakland, CA 94612-2909

Re: Ronald Kolodzieczak, et al.

v. Jack Wayne Friend, et al.

No. 92-292

Dear Mr. Reynolds:

The Court today entered the following order in the

above entitled case:

The petition for a writ of certiorari is granted. The

judgment is vacated and the case is remanded to the

United States Court of Appeals for the Ninth Circuit for

further consideration in light of Farrar v. Hobby, 506 U.S.

__ (1993).

Very truly yours,

/s/ William K. Suter

William K. Suter, Clerk

APPENDIX A

SINE. eae ee

. —

A23

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Jack Wayne Frienp, et al.,

)

on No. 90-16140

Plaintiffs-Appellees, ) D.C. No.

V. ) CV-87-00161-MHP

RONALD Ko.opzieczak, et al., OPINION

Defendants-Appellants. )

)

Appeal from the United States District Court

for the Northern District of California

Marilyn Hall Patel, District Judge, Presiding

Argued and submitted

October 9, 1991 - San Francisco, California

Filed May 19, 1992

Before: Harry Pregerson, Warren J. Ferguson, and

Diarmuid F. O’Scannlain, Circuit Judges.

Opinion by Judge Pregerson; Dissent by Judge Ferguson

SUMMARY

Attorneys and Judges/Attorneys’ Fees

Affirming a district court judgment awarding attor-

neys’ fees under Section 1988, the court of appeals held

A24

that the award was proper because inmates in the under-

yling litigation were “prevailing parties” who had estab-

lished the necessary causal link between the benefits

initially sought and changes in jail policy.

Jack Friend, as representative of a class of Roman

Catholic prisoners, brought an action under Section 1983

alleging violations of their constitutional right to free

exercise of religion. The issue at trial involved the

inmates’ right to keep rosaries and scapulars with them at

all times. The district court upheld the prison regulation

as permissible, contingent upon submission by the offi-

cials of a revised prison manual setting forth prisoners’

limited rights to possess religious articles. The district

court also found that the inmates were “prevailing par-

ties” entitled to attorneys’ fees under Section 1988.

[1] A litigant need not succeed on every claim to

qualify as the prevailing party. Rather, a party may

recover its attorneys’ fees if it succeeds on any significant

issue in litigation that achieves somes of the benefits

sought in bringing suit. In addition, the inmates may be

considered prevailing parties even though they did not

gain formal judicial relief. [2] In the absence of formal

relief, the court focused on whether the inmates estab-

lished a clear, causal relationship between the litigation

brought and the practical outcome realized. [3] The court

agreed that the necessary causal link was established

between Friend’s class action and changes in jail policy.

The inmates had been successful on the issue of access to

religion in a pre-trial settlement materially altering the

legal relationship of the parties. [4] The inmates had also

partially prevailed on their claim for inamte possession of

religious articales. [5] Niether were the inmates’ claims

A25

frivolous; they raised legitimate issues related to their

free exercise rights.

Judge Ferguson dissented, stating that the majority’s

holding that the inmates were the prevailing parties

because the necessary causal connection existed between

the class action and changes in jail policy, and the pre-

litigation settlement which altered the legal relationship

of the parties was factually and legally wrong.

COUNSEL

Maureen C. Brooks and Richard Reynolds, Bennett, Sam-

uelsen, Reynolds & Allard, Oakland, California, for the

defendants-appellants.

Sue Ochs, Law Offices of Amitai Schwartz, San Francisco,

California, for the plaintiffs-appellees.

OPINION

PREGERSON, Circuit Judge:

This appeal presents the question whether the district

court properly found appellees to be “prevailing parties”

tor an award of attorney’s fees under 42 U.S.C. § 1988. We

have jurisdiction to review the district court’s decision

under 28 U.S.C. § 1291. We affirm.

BACKGROUND

A group of Roman Catholic jail inmates filed a class

action suit against officials of Alameda County under 42

U.S.C. § 1983 alleging violations of their constitutional

A26

right to free exercise of religion. Jack Friend is the named

class representative in this suit.

Some issues were settled before trial.! The only

remaining free exercise claim at trial concerned the right

of jail inmates to keep rosary beads and scapulars with

them at all times.? The district court granted summary

judgment in favor of the Alameda County officials. The

court concluded that jail policy prohibiting religious arti-

cles in prisoners’ cells was permissible under the Turner

standard.* The court’s order was, however, contingent

upon submission by the officials of a revised prison man-

ual setting forth prisoners’ limited rights to possess reli-

gious articles.

1 In their initial complaint, the inmates sought improved

access to religion by way of private confessions and separate

Roman Catholic services. This issue was resolved before trial.

2 Rosary beads are used to count prayers while praying.

Scapulars are symbols of Mary, the mother of Jesus.

3 In Turner v. Safley, 482 U.S. 78, 89 (1987), the Supreme

——Coeurt stated that “when a prison regulation impinges on

inmates’ constitutional rights, the regulation is valid if it is

reasonably related to legitimate penological interests.” Rea-

sonableness is determined by a four-part test: (1) whether the

regulation is rationally related to the legitimate government

interest invoked to justify it; (2) whether the regulation leaves

open an alternative way for prison inmates to exercise the right

asserted; (3) the impact that accommodation of the asserted

right will have on guards, other inmates, and prison resources;

and (4) the absence of ready alternatives to the regulation. Id. at

89-90.

a Re a

Ba Rit As ho oka! aca Kaas ake

A27

DISCUSSION

A district court may award attorney’s fees to the

prevailing party in an action brought under 42 U.S.C.

§ 1983. Sablan v. Department of Fin., 856 F.2d 1317 (9th

Cir.1988). We review the district court’s finding of pre-

vailing party status for clear error. Lummi Indian Tribe v.

Oltman, 720 F.2d 1.124, 1125 (9th Cir.1983); Sablan, 856 F.2d

at 1324. “We must reverse, however, if the district court

used incorrect legal standards to reach this finding.”

Lummi Indian Tribe, 720 F.2d at 1125.

As an initial matter, we note that a litigant need not

succeed on every claim to qualify as the prevailing party.

Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Rather, a

party may recover its attorney’s fees if it “succeed[s] on

any significant issue in litigation which achieves some of

the benefit . . . sought in bringing suit.” Id. (quoting

Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir.1978)).4

4 Our recent decision in Romberg v. Nichols, Nos. 90-56125,

91-55012 (9th Cir. Feb. 20, 1992) is consistent with our holding in

this case and with Nirth Circuit precedent. Like the Rombergs,

the class of inmates is prevailing party within the meaning of

§ 1988 because it succeeded on a significant issue. The form of

that victory is not dispositive.

In Romberg, the jury found that the defendant police officers

were liable for violating the Rombergs’ Fourth Amendment

rights. The jury awarded only nominal damages of one dollar.

Romberg, slip op. at 1657. The district court then granted the

Rombergs’ motion for attorney’s fees under § 1988, and the

government appealed that decision. Id. at 1658.

We held that the Rombergs were prevailing parties within

the meaning of § 1988, and rejected the argument that their

victory was too insignificant to justify an award of attorney's

fees. Id. at 1663. Specifically, we held that the amount of

A28

Moreover, the inmates may be considered prevailing par-

ties even though they did not gain formal judicial relief.

Hanrahan v. Hampton, 446 U.S. 754, 757 (1980) (per cur-

iam); Sablan, 856 F.2d at 1324; Muckleshoot Tribe v. Puget

Sound Power & Light, 875 F.2d 695, 696 (9th Cir.1989). In

the present case, the district court concluded that the

inmates prevai’ d because they succeeded either com-

pletely or partially on their free exercise claims. As the

district court found, Alameda County officials took

actions before trial that gave the inmates benefits they

sought in filing suit. The inmates also benefited from the

conditional summary judgment motion.

In the absence of formal relief, we focus on whether

the inmates have “established a ‘clear, causal relationship

damages awarded the Rombergs was not dispositive. Id. at

1664-65. Rather, the jury’s finding that the police officers were

liable for violating the Rombergs’ Fourth Amendment rights

was sufficient to establish prevailing party status under § 1988.

Romberg, slip op. at 1662. (“the Rombergs prevailed on a signifi-

cant issue, and they prevailed on the merits before a jury”); see

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

792-93, (1989) (“[t]he touchstone of the prevailing party inquiry

must be the material alteration of the legal relationship of the

parties”).

Our holding turned on the significance of the issue on

which the Rombergs prevailed, and we rejected the argument

that nominal damages reflected an insignificant victory. Rom-

berg did not change established law that formal judicial relief is

not necessary to support prevailing party status under § 1988.

See e.g., Maher v. Gagne, 448 U.S. 122, 129, 100 S.Ct. 2570, 2575

(1980) (“Nothing in. . . § 1988 conditions the District Court’s

power to award [attorney] fees . . . on a judicial determination

that the plaintiff’s rights have been violated. . . . [P]arties may

be considered to have prevailed . . . without formally obtaining

relief.”).

A29

between the litigation brought and the practical outcome

realized.’ ” Sablan, 856 F.2d at 1324 (quoting Rutherford v.

Pitchess, 713 F.2d 1416, 1419 (9th Cir.1983)) (emphasis in

original). We apply a two-part test to resolve this ques-

tion. Sablan, 856 F.2d at 1325. First, we determine whether

this lawsuit actually brought about benefits initially

sought by the inmate class. Id. Second, we examine

whether the inmates’ claims had a legal basis. Id.

We agree with the district court that the necessary

causal link was established between Friend’s class action

and changes in jail policy. The district court found that

the inmates succeeded on the issue of access to religion in

a pre-trial settlement.5 In response to Friend’s class

action, jail officials agreed to hold separate Roman Catho-

lic services and to diligently arrange and coordinate poli-

cies on prisoners’ rights to practice religion. The district

5 Although the dissenting opinion asserts otherwise, it is

clear that distinctly Roman Catholic services were one of the

benefits sought by the inmates in filing this suit. The inmates

specifically complained of the lack of scheduled Roman Catho-

lic religious services, as distinguished from the fundamentalist

Protestant services that were available.

6 The dissenting opinion suggests that this suit was simply

a dispute between a Catholic lay minister and the Bishop, or

between a Catholic lay minister and a Protestant minister, and

that jail officials played no role in the absence of Catholic serv-

ices. The jail conceded, however, that only a Protestant group

operated in the jail after December, 1987, and that the jail cap-

tain asked the Catholics to “defer” their request to be allowed a

time to conduct a Catholic service, until some indeterminate

date in the future when a new chaplain would be hired. The

record also indicates that Catholic Charities sent a letter to the

jail captain requesting “a timeslot for a Catholic worship serv-

ice” and that he responded, “I do not intend to alter the program

A30

court concluded correctly that the pre-litigation settle-

ment materially altered the legal relationship of the par-

ties. This is “[t]he touchstone of the prevailing party

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

Dist., 489 U.S. 782, 792-93 (1989).

The district court also found that plaintiffs partially

prevailed on their claim for inmate possession of reli-

gious articles. Before commencement of this action, the

jail policy manual was silent on the rights of inmates to

use religious articles. County jail officials revised the

manual in response to the district court’s conditional

summary judgment order. The revised manual explicitly

recognized an inmate’s right to limited use of religious

articles. The district court found, and we agree, that a

causal relationship existed between the inmates’ suit and

the changes in jail policy.

We turn now to the second part of the test to analyze

whether the inmates’ claims had a legal basis. Sablan, 856

F.2d at 1327. Alameda County officials contend that the

inmates’ claims had no legal basis because the actions

taken by the County were not constitutionally mandated.

We reject this contention. In this context, our evalua-

tion of the merits of a litigant’s claims is extremely nar-

row. Andrew v. Bowen, 837 F.2d 875, 877 (9th Cir.1988).

Our inquiry is “strictly limited to determining whether

the claims asserted are ‘frivolous, unreasonable, or

until the Chaplain’s position is filled.” Thus it is undisputed

that the only scheduled religious service in the jail was operated

by a fundamentalist Protestant ministry, and that the Catholics’

request to likewise have a scheduled service was indefinitely

postponed by the jail.

deh og te ORE Ee =

A31

groundless.’ ” Id. at 878 (quoting Ortiz de Arroyo v. Bar-

celo, 765 F.2d 275, 282 (1st Cir.1985)).

Our review reveals no basis for concluding that the

inmates’ claims were frivolous. We agree with the district

court that the inmates raised legitimate issues related to

their free exercise rights. Indeed, the district court condi-

tioned its grant of summary judgment in favor of the

county officials upon revision of the prison manual pre-

cisely because the inmates’ free exercise claims were col-

orable. The district court’s finding that the inmates’

claims had a legal basis was not erroneous.”

CONCLUSION

We conclude that the class of Roman Catholic

inmates prevailed against the Alameda North County Jail

within the meaning of 42 U.S.C. § 1988. The judgment of

the district court is AFFIRMED.

FERGUSON, Circuit Judge, dissenting:

In this case the district court has ordered the tax-

payers of Alameda County to pay thousands of dollars in

” Alameda County officials argue that the attorney’s fees

awarded here are excessive as a matter of law. The officials do

not argue that the district court calculated the fee amount

improperly. Instead, they merely contend that the inmates did

not achieve their goals. This argument simply restates their

objection to the district court’s finding that the class of inmates

is a prevailing party within the meaning of 42 U.S.C. § 1988.

Because we uphold the district court’s decision, we need not

pursue this claim further.

A32

attorney’s fees in a matter originating in a dispute

between different religious groups. Because the defen-

dants are not responsible for religious conflicts among

private parties, I dissent.

I. BACKGROUND

This is an appeal from an award of attorney fees and

costs to plaintiff pursuant to 42 U.S.C. § 1988. The district

court awarded fees and costs finding that “plaintiffs’ suit

provided the impetus for defendants to more diligently

attempt to arrange for personnel and to coordinate the

services necessary to bring [Alameda] North County Jail

practices in line with plaintiffs’ constitutional rights.”

The district court thus found that plaintiffs were

prevailing parties, despite the fact that it never found that

the County at any time had deprived the plaintiffs of any

constitutional rights. Parties may be considered prevail-

ing parties when a violation of rights is found, see Rom-

berg v. Nichols, 953 F.2d 1152, 1157 (9th Cir.1992), or when

they vindicate rights through settlement without formal

relief. Sablan v. Dep't of Finance of N. Mariana Islands, 856

F.2d 1317, 1324 (9th Cir.1988) (quoting Hanrahan v. Ham-

pton, 446 U.S. 754, 757 (1980) (per curiam)). Here, no

rights were violated so none could be vindicated.

The underlying case is a 42 U.S.C. § 1983 class action

alleging the failure to provide inmates at the North

County Jail in Alameda County the right to participate in

religious services performed by a Roman Catholic priest

and denying Roman Catholic inmates the right to possess

rosary beads and scapulars in their cells.

mY . tis Sige Se HSIAO ASSAM RA pa eit ar PEE REL PS fi Pen RN ay ala :

Et ER Ae Fae sl 7 RT at hills A SR ORS . om, , ea ‘ bie ba ¢ 9

AS) OL SSE TRE OS Sa i ey ig " Fe RO vist a 2 bipieege

A33

Both parties filed motions for summary judgment. At

the hearing on the cross-motions, the defendants agreed

to set forth in writing the jail policies regarding religious

services and access to religious articles. On September 20,

1989, the district court issued an order granting the

County/defendants’ motion for summary judgment and

denying the plaintiffs’ motion on the issue of possession

of rosary beads and scapulars in their cells. The district

court also directed defendants to submit to the court a

written copy of the policy of the jail regarding the accom-

modation of the religious needs of inmates. Following

submission of the written policy, the district court dis-

missed the action.

The plaintiffs appealed only the order of dismissal in

regard to the rosary/scapular issue. A panel of this court

consisting of Judges Goodwin, Browning and Rymer

affirmed the district court in an unpublished opinion

(Friend v. Kolodzieczak, No. 89-16703 (9th Cir. Oct. 24,

1990)). The panel held that the defendants had legitimate

security reasons for banning rosaries and scapulars. The

plaintiffs then filed their motion for attorneys fees and

costs which was granted and this appeal followed.

The jail is a modern facility which houses over 700

inmates. The average length of stay is six days. The

exception is about twenty-five inmates who have been at

the jail for longer than two years. Religious services take

place in two multi-purpose rooms on each of the jail’s six

housing floors.

Religious services are provided for all inmates at the

jail through the jail chaplain as well as through religious

volunteers. Although there is a Catholic church across the

A34

street from the jail, the Catholic Diocese of Oakland has

never assigned a Roman Catholic priest to minister at the

jail due to a shortage of priests.

In January of 1987, the Catholic Bishop of Oakland

assigned a lay minister, James Rodgers, from Catholic

Charities, as the detention minister (“Rodgers”). At the

jail, interdenominational Christian services were offered

on Sunday mornings, in which Catholic Charities’ volun-

teers participated. The Bishop had agreed to this arrange-

ment as it was in keeping with the Catholic Dioceses’

commitment to ecumenical cooperation. Rodgers used a

Roman Catholic study guide and scriptural teachings as

the basis for the services he conducted on Sunday morn-

ing. He also ministered to individuals as requested dur-

ing visiting hours, and could bring the sacrament of

communion to inmates at those times.

There were, however, tensions between the protes-

tant group involved in the interdenominational program,

Follow Up Ministries, and the Catholic Charities volun-

teers. The tensions escalated, and in the fall of 1987, lay

minister Rodgers attempted to get his own Catholic-iden-

tified services. This was not due to any inability to minis-

ter to Catholics, however, but because he wanted to be

able to proselytize to non-Catholics. Indeed, he admitted

in his deposition that he did not even know who the

Catholics in the jail were.

In December 1987 or January 1988, Rodgers stopped

taking part in the interdenominational services alto-

gether. Rodgers began to minister on an on-call basis

only. He conditioned his return upon getting his own

time slot for services, but the jail was not made aware of

A35

this demand or that he had quit. Neither the Catholic

Church nor Catholic Charities ever appointed anyone

else to take his place.

Il. APPLICABLE LAW

The majority holds that plaintiffs were the prevailing

parties because the necessary causal relationship exists

between the class action and changes in jail policy, and

the pre-litigation settlement altered the legal relationship

of the parties. Both conclusions are factually and legally

wrong.

In Texas State Teachers Association v. Garland Indepen-

dent School District, 489 U.S. 782 (1989), the Supreme

Court held that plaintiffs who succeed “on any significant

issue in litigation which achieve[s] some of the benefit the

parties sought in bringing the suit, [have] crossed the

threshold to a fee award of some kind.” Id. at 791-92

(internal quotations omitted). However, at a minimum,

there must be a “resolution of the dispute which changes

the legal relationship between itself and the defendant.”

Id. at 792. A change in a legal relationship may be demon-

strated through a judicial finding of a constitutional vio-

lation in cases where there\is formal relief, see, e.g.,

Romberg, 953 F.2d at 1157, or ode case of informal relief,

when it is determined that the‘Tawsuit was the catalyst

for constitutional reform on the part of the government.

Sablan, 856 F.2d at 1325.

The Ninth Circuit has used a two part test to deter-

mine prevailing party status when there has been no

formal relief. Proper application of this test assures that

fees are not awarded if the government takes action but

A36

there are no constitutional deficiencies. We first “deter-

mine what [plaintiffs] sought to accomplish in bringing

[this] lawsuit and then determine whether the lawsuit

was causally linked to the relief actually obtained.”

Sablan, 856 F.2d at 1325. Here, plaintiffs did not prevail in

any of the claims presented in their complaint. Thus, the

lawsuit did not bring about any benefits sought by the

inmate class, and plaintiffs fail the first prong of the

Sablan test.

The second prong of the Sablan test is whether there

is a legal basis for plaintiffs’ claims. Sablan, 856 F.2d at

1325. “If it is judicially determined that defendants’ con-

duct, however beneficial it may be to plaintiff’s interests,

is not required by law, then defendants must be held to

have acted gratuitously and plaintiffs have not prevailed

in a legal sense:” Id. at 1327 (citation omitted). The undis-

puted facts deraonstrate without question that the

County has never refused the plaintiffs the right and

opportunity to practice their Roman Catholic religion and

participate in Roman Catholic sacraments at the jail. In

There was therefore no legal basis for the plaintiffs’

claims, nor any change in the legal relationship between

the parties. Thus, plaintiffs fail the second prong of the

Sablan test.

Ill. DISCUSSION

The plaintiffs’ complaint alleged that defendants

denied them the opportunity to possess rosaries and

scapulars, to participate in the sacraments of reconcilia-

tion (confession) and communion, and to attend Roman

Catholic mass. The plaintiffs further complained of the

EPL AOR LIBEL I GLEE SLI OR LON OL LE ELON EIGN

Et FL get eae ee pee ea Fer

ih Be F

A37

lack of visits from Catholic priests. All of these claims

were groundless, and the plaintiffs did not prevail on any

of them, nor did they obtain any other relief.

A. Possession of Religious Articles.

This court previously heid that the defendants’

refusal to permit personal possession of rosary beads and

scapulars in cells did not violate plaintiffs’ constitutional

rights. The merits of that claim need not be relitigated

here.

The jail’s written policy of permitting the use of all

religious articles at religious services after inspection pre-

dates the lawsuit. In the year that the lay minister

attended the Christian ecumenical services, he never had

a problem with bringing into the jail all religious items

required to conduct services.

Nevertheless, defendants clarified its written its pol-

icy on religious articles. The policy was changed so that

it specifically mentioned rosaries and scapulars as exam-

ples of articles permitted during religious services. The

majority asserts, without explaining, that the revision

' The earlier policy stated, in relevant part: “All materials

brought to the jail for detainee’s religious edification will be

delivered to .. . and distributed by the I-S.O. [Inmate Services

Officer]. ... No other items may be brought into the service and

none may be taken from the service without prior approval and

physical inspection by I.S.0.”

The revised policy states in relevant part: “[rJeligious items,

allowed only during the religious services, are limited to those

which present only a moderate security threat. Examples

include a rosary or a scapular.”

A38

was a material change in the legal relationship between

the parties. However, the litigation concerned the posses-

sion of rosary beads and scapulars in cells, and the

inmates lost. Nothing else was claimed or contested. The

County continued to permit religious articles at religious

services, as it had always done, and there is simply no

evidence to the contrary.

To claim that clarifying a policy that always existed

represents a material change in the legal relationship of

the parties places form before substance. The plain fact is

that the new writing did not change in any degree the

legal relationship of the parties.

B. Availability of Communion, Confession and Mass.

The jail was not responsible for the availability of the

sacraments of communion, confession (reconciliation) or

mass which can be celebrated only by a priest. The lay

minister could bring communion (wafers consecrated by

a priest) to the inmates upon request during visiting

hours. While Rodgers knew that he and his volunteers

could bring communion during the inter-denominational

services as well, they declined to do so.

Only priests may hear confessions. If an inmate

requested the services of a priest, that request was con-

veyed to Catholic Charities by the jail chaplain or by

other jail administrative personnel.

After lengthy discovery, the record shows only one

instance in which an inmate’s request for Catholic sacra-

ments went unfulfilled. It involved Jack Friend’s (the

named plaintiff) request for confession. Catholic Charities

;

. i.

oes

A ORS NNN RES

2 Ri

A39

arranged for a priest to hear his confession. A private

room, which is used for attorney-inmate conferences, but

without a door, was available but the priest was not

comfortable hearing confession in that room, and left.

The jail, at Friend’s request, made numerous attempts to

contact the priest for another confession in an appropri-

ate setting, but the priest never responded. The lay minis-

ter Rodgers admitted that “We’ve fallen down on that

particular task [arranging confession for Friend] and it

slipped through the cracks, and I’m not particularly

proud of that.”

Jack Friend was in jail awaiting trial for murder with

special circumstances, and was considered a security risk.

It is clearly unreasonable to assert that the County as the

result of that single instance deprived an inmate of his

constitutional religious rights. The room was one in

which attorneys talked to their clients in confidence, and

was Satisfactory for Sixth Amendment purposes. The

County cannot be faulted for not having the foresight to

know that the room was not satisfactory for one Catholic

priest. It certainly cannot be held responsible for the

neglect of Catholic Charities in not scheduling the priest

for another time.

As to the sacrament of mass, Rodgers acknowledged

that the celebration of a Roman Catholic mass was nei-

ther necessary nor practical given the circumstances and

logistics of a jail and the shortage of Catholic priests. The

lack of priests is, of course, something outside the power

of the County to correct.

A40

In summary, the County did not violate the plaintiffs’

rights vis-a-vis the Roman Catholic sacraments of confes-

sion, communion or mass, nor was any relief obtained

which vindicated their religious rights in this regard. The

County only set forth certain jail policies in writing which

had always existed. There is absolutely no basis for pre-

vailing party status on these issues. That leaves the issue

of providing for separate Roman Catholic services by

Catholic lay ministers.

C. Separate Catholic-Identified Services.

In their complaint, the inmates alleged a lack of

Catholic religious services, in contrast to the services

conducted by the group Feilow Up Ministries, described

as a fundamentalist Protestant group. The majority, point-

ing to this allegation, claims that through the suit the

inmates won the right to conduct Catholic services.

The Catholic Charities lay minister, with the approval

of the Bishop, joined in with the Follow Up Ministries

volunteers to perform interdemonational services for

much of 1987. During these services, he identified himself

as a Catholic and used Catholic readings and scriptures

as the basis for the service. Thus, contrary to the asser-

tions of the majority, the Follow Up Ministry program

permitted truly interdenominational services.

In the fall of 1987, the Catholic lay minister became

dissatisfied with the interdenominational service which

was approved and accepted by the Catholic Bishop and

wanted to conduct a program separate from those ser-

vices. His motive was to permit him to proselytize to non-

A41

religious or non-Catholic inmates and had absolutely

nothing to do with the religious rights of Catholic

inmates. After December 1987, the Catholic lay minister

refused to take part in Sunday services. This refusal

explains why there were only services run by Follow Up

Ministries after that date. It was not, as the majority

implies, the fault of the jail; it was due to the preferences

of the Catholic lay minister.

When the jail commander received Catholic Chari-

ties’ written request for separate Catholic services in Jan-

uary 1988, he responded that he would not make any

changes in the jail’s religious program until the then

vacant chaplain position was filled. That certainly should

be understandable. The Bishop had informed the jail

commander that the Catholic Charities lay minister

would be participating an interdenominational service,

citing the Church’s commitment to ecumenical coopera-

tion. But the lay minister became dissatisfied with this

approach, and told the jail commander he wanted sepa-

rate Catholic-identified services. When faced with a dif-

ference in opinion between the lay minister and his

Bishop, the jail commander proceeded carefully and with

caution, waiting for the new chaplain to arrive before

making any change. It makes sense that the jail com-

mander would not want to make this change without

advice from the jail chaplain who was directly respons-

ible for the religious program at the jail. To contend that

the jail interfered with the religious rights of the jail

inmates by waiting simply cannot stand.

The request for a space for separate Catholic services

was not “indefinitely postponed,” as the majority claims.

Rather, it was implemented four or five months after the

A42

new chaplain started. The failure to move more rapidly,

however, does not implicate any of plaintiffs’ constitu-

tional rights. The impetus for the separate service was the

Catholic lay minister’s own idea of what should be pro-

vided, contrary to the program of his own Bishop. The

previous lack of separate, Catholic identified services was

not a constitutional violation. Thus, the Sablan test cannot

be satisfied, because the lawsuit was not the “catalyst for

constitutional reform.” Sablan, supra, 856 F.2d at 1325. The

institution of separate Catholic-identified services at the

jail therefore does not entitle the plaintiffs to prevailing

party status.

The Christian ecumenical service did not deprive the

Catholic inmates of any religious constitutional right.

That being the case, it cannot be asserted that slowness in

instituting Catholic services was a constitutional viola-

tion. Section 1988 simply does not authorize the award of

attorney fees because the jail did not make a change

which was not constitutionally required as fast as the

district court thought it should.

Before dismissing the case, the district court required

a revised jail policy addressing accommodation to plain-

tiffs’ religious needs, including the scheduling of reli-

gious services. However this writing also fails to

transform plaintiffs into prevailing parties. The evidence

is definite that the written policy was the same policy

that the jail always carried out. There was no evidence

that the jail had a practice or condition that violated the

constitution. There was never a policy that inter-

denominational services were sufficient for all religious

groups. The County had consistently provided separate

facilities to the Black Muslims. The regular time and

A43

location for Catholic-identified services agreed to by the

jail chaplain and administration was at the request of

Catholic Charities. The Catholic-identified service does

not address the deficiency, «ileged in the complaint, of

Catholic priests to perform sacraments and minister to

inmates.

The lay minister, who was authorized to minister to

the Catholics, stopped taking part in Sunday services for

his own reasons. The jail had nothing to do with the

pique of the lay minister and the resulting absence of

Catholic representatives at the Sunday services from Jan-

uary through October of 1988.

In order to bring back a Catholic presence on Sunday

mornings (it remains unclear whether the inmates had a

position or preference in the dispute between the Catho-

lic lay minister and his protestant contemporaries), the

new jail chaplain and the jail administration established a

place for separate Catholic-identified services in October

1988. The district court considered this a vindication of

plaintiffs’ free exercise rights. As explained, this leap in

logic is not supported by the facts or law. Catholic Chari-

ties, which performs the services, remains a lay ministry

group that cannot address the lack of Catholic priests

which was the basis of the litigation.

The district court also put much stock in the chronol-

ogy of events, regarding the lawsuit as the “impetus” to

bring the jail “in line with plaintiffs’ constitutional

rights.” However, the County never violated the plain-

tiffs’ constitutional rights; the actions taken by the

County never expanded those rights in any way nor gave

the plaintiffs anymore of what they asked for in the

A44

complaint. The Catholic lay minister as the impetus for

the Catholic-identified services, which can scarcely impli-

cate a constitutional right if even the Bishop did not

require them! The plaintiffs simply got no relief, and

‘there was no “constitutional reform,” Sablan, supra, 856

F.2d at 1325, so the lawsuit could not have been the

impetus for anything.

IV. CONCLUSION

This litigation arose because of plaintiffs’ dissatisfac-

tion with the inability to possess certain religious items

and problems with access to confession, communion and

mass. As explained, the former was justified because of

security concerns and the latter was not the fault of the

jail. The litigation continued with the original demand

transformed to one for separate Catholic-identified ser-

vices. This demand came from the Catholic lay minister

who was dedicated to proselytizing non-Catholics and

who disagreed with his Bishop’s approval of inter-

denominational services. It was further fueled by the fact

that the Catholic lay minister had a dispute with his

protestant associates over that proselytizing and left the

jail. A Catholic lay minister doesn’t agree with his Bishop

and gets into a dispute with his protestant associates, and

the tax payers of Alameda County become subject to

$100,000 attorney fees! It really is difficult to understand

why that is not “frivolous, unreasonable or groundless.”

The uncontested facts show that there was never any

deprivation of religious constitutional rights by the

defendants. The sole cause of there being any less oppor-

tunity to participate in religious services than they might

A45

have enjoyed otherwise was the fact of incarceration and

the lack of resources of the Catholic Church and Catholic

Charities.

APPENDIX B

A46

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Jack W. Frienp; MICHAEL No. 89-16703

WeETHERN; Jerrrey D. Gray,

ar D.C. No.

Plaintiffs-Appellants. CV-87-0161-MHP

ve ORDER AND

RONALD Ko.opzieczaAk, HAROLD OPINION

Estes; CHuck Green; R.A. Frist;

A. THEOBALD,

Defendants-Appellees.

Ne me ee ee ee ee eee ee ee ee ee”

Appeal from the United States District Court

for the Northern District of California

Marilyn H. Patel, District Judge, Presiding

Argued and Submitted October 3, 1990

San Francisco, California

Memorandum Filed October 24, 1990

Order and Opinion Filed January 3, 1991

Before: Alfred T. Goodwin, Chief Judge,

James R. Browning and Pamela Ann Rymer,

Circuit Judges.

Opinion by Chief Judge Goodwin

SUMMARY

Constitutional Law

Redesignating its previous memorandum disposition

as an opinion, and affirming the district court grant of

summary judgment, the court of appeals held that a

A47

prison regulation prohibiting the possession of rosaries

and scapulars in inmates’ cells was constitutional.

Appellant Jack W. Friend brought a class action to

challenge a prison regulation that prohibited inmates

from possessing rosaries and scapulars in their cells.

However, the prison inmates were allowed to attend

Roman Catholic services and wear the scapulars and use

the rosaries during the religious services and meetings

with religious visitors. The district court found that

prison officials had legitimate security and administrative

reasons for banning these items from the inmates’ cells,

and that the appellants retained the ability to practice

Roman Catholicism.

[1] Although inmates retain their first amendment

right to free exercise of religion, this right is limited by

virtue of their incarceration. A regulation that impinges

on inmates’ constitutional rights is valid if reasonably

related to legitimate penological interests (the Turner

test). [2] Prison officials introduced evidence that the

purpose of the underlying policy in question was to limit

the means by which inmates may obtain drugs, fabricate

weapons, and otherwise disrupt jail security. They also

introduced evidence that to allow inmates to possess

rosaries and scapulars could threaten prison security by

creating an impression of favoritism toward Roman Cath-

olic prisoners, thereby generating resentment, envy and

intimidation. [3] The court noted that the inmates in this

case had alternative means of practicing Roman Catholi-

cism in addition to having periodic access to rosaries and

scapulars. [4] Turner instructs that where, as here, accom-

modation of an asserted right will have a significant

ripple effect on fellow inmates or on prison staff, courts

A48

should be particularly deferential to the informed discre-

tion of corrections officials. [5] The inmates’ proposed

alternative of inspecting rosary beads and scapulars to

determine whether they conform to pre-set standards of

construction and composition was inadequate because it

did not satisfy the prison officials’ concern with the

impression of favoritism.

COUNSEL

Sue Ochs, San Francisco, California, for the plaintiffs-

appellants.

Richard L. Reynolds, Oakland, California, for the defen-

dants-appellees.

ORDER

The request for publication is GRANTED. The mem-

orandum disposition filed in this case on October 24, 1990

is hereby designated as an opinion.

OPINION

GOODWIN, Chief Judge:

In this class action, inmates of Alameda North

County Jail appeal the summary judgment in their section

1983 action challenging as unconstitutional a prison regu-

lation prohibiting them from possessing rosaries and

scapulars in their cells. We affirm.

On behalf of all Roman Catholic prisoners of the

North County Jail, plaintiffs alleged in their complaint

A49

that the defendants denied them (1) the right to possess

rosaries and scapulars in their cells, and (2) the oppor-

tunity to attend Roman Catholic services and to partici-

pate in religious sacraments performed by a Roman

Catholic priest. They sought declaratory and injunctive

relief and damages.

The defendants’ answer generally denied that they

had refused plaintiffs access to Roman Catholic services

and sacraments, but admitted that the plaintiffs were not

permitted to possess rosaries and scapulars in their cells.

The plaintiffs were prohibited from keeping rosaries

and scapulars in their cells pursuant to a jail policy

limiting items that inmates may have in their cells to

items supplied by the jail or miscellaneous small items

approved by a deputy at the jail. All other items are

considered contraband.

Prior to the district court’s ruling on cross motions

for summary judgment, the parties agreed that the only

remaining issue was whether the defendants could bar

the plaintiffs from possessing rosaries and scapulars in

their cells. The defendants’ alleged failure to grant the

plaintiffs access to Roman Catholic services and sacra-

ments was no longer in issue, because the defendants

scheduled a regular time and location for Roman Catholic

services, promulgated rules allowing inmates an oppor-

tunity to participate in the Roman Catholic sacraments of

confession and communion, and established a policy

allowing inmates to use rosaries and wear scapulars dur-

ing religious services and meetings with religious visi-

tors.

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A50

The district court found that the defendants had

legitimate security and administrative reasons for ban-

ning rosaries and scapulars, and that the plaintiffs

retained the ability to practice Roman Catholicism.

Inmates retain their First Amendment right to free

exercise of religion; however, this right is limited by

virtue of their incarceration. O’Lone v. Shabazz, 482 US.

342, 348 (1987). Prison regulations are examined under a

reasonableness standard that is “less restrictive than that

ordinarily applied to alleged infringements of fundamen-

tal constitutional rights.” Id. at 349. “{W]hen a prison

regulation impinges on inmates’ constitutional rights, the

regulation is valid if it is reasonably related to legitimate

penological interests.” Turner v. Safley, 482 U.S. 78, 89

(1987). In determining whether the regulation is “reason-

ably related to legitimate penological interests,” four fac-

tors should be considered (“the Turner test”):

(1) whether the regulation has a logical con-

nection to the legitimate government inter-

ests invoked to justify it;

(2) whether alternative means of exercising the

right on which the regulation impinges

remain open to prison inmates;

(3) the impact that accommodation of the

asserted right will have on guards, other

inmates, and prison resources; and

(4) the absence of ready alternatives that fully

accommodate the prisoner’s rights at de

minimis cost to valid penological interests.

Friedman v. Arizona, Nos. 89-15671, 89-15696,

89-16720, slip op. 12121, 12130 (9th Cir. Sept. 27, 1990),

citing Harper v. Wallingford, 877 F.2d 728, 732 (9th

A51

Cir.1989) (emphasis in original); see also Turner, 482 U.S. at

89-90. All four factors weigh in favor of the regulation.

(1) Logical Connection to a Legitimate Penological Interest

The plaintiffs introduced evidence that the purpose

of the underlying policy prohibiting inmates from pos-

sessing items of personal property not supplied by the

jail is to limit the means by which inmates may obtain

drugs, fabricate weapons and otherwise disrupt jail secu-

rity. The defendants also introduced evidence that allow-

ing plaintiffs to possess rosaries and scapulars could

threaten jail security by creating an impression of favori-

tism toward Roman Catholic prisoners, thereby generat-

ing resentment, envy and intimidation. These are

legitimate penological interests. See Standing Deer v. Carl-

son, 831 F.2d 1525, 1529 (9th Cir.1987) (upholding a prison

regulation banning the wearing of headgear in the prison

dining room against a free exercise challenge by Native

Americans in part on the ground that “special arrange-

ments for one group could create an appearance of favor-

itism that could generate resentment and unrest.”)

(2) Alternative to Exercise Right

Here, the plaintiffs have alternative means of practic-

ing Roman Catholicism in addition to having periodic

access to rosaries and scapulars. The parties do not dis-

pute that Roman Catholic inmates may: (1) attend Roman

Catholic services weekly; (2) use rosary beads and scapu-

lars during these religious services; (3) receive sacra-

ments of the Roman Catholic church such as confession

and communion; (4) receive visits from religious workers;

(5) say the rosary with the aid of rosary pamphlets, which

they are permitted to have in their cells.

Rae

A52

(3) Impact of Accommodation

The defendants introduced evidence that allowing

plaintiffs to possess rosary beads and scapulars would

create an impression of favoritism to Catholics and would

lead to inmate requests for a variety of personal items on

religious grounds. Turner instructs that where, as here,

“accommodation of an asserted right will have a signifi-

cant ‘ripple effect’ on fellow inmates or on prison staff,

courts should be particularly deferential to the informed

discretion of corrections officials.” Turner, 482 U.S. at 90.

(4) Ready Alternatives

The plaintiffs’ proposed alternative - requiring

prison officials to set up a system for inspecting rosary

beads and scapulars to determine whether they conform

to pre-set standards of construction and composition - is

inadequate because it does not satisfy prison officials’

concerns that allowing rosary beads and scapulars would

create an impression of favoritism toward Roman Catho-

lics and would lead to endless inmate requests for nonap-

proved personal items on religious grounds. Cf. Standing

Deer, 831 F.2d at 1529 (rejecting Native American inmates’

proposal that prison officials inspect religious headgear

as alternative to ban on headgear on the ground that it

did not answer prison officials’ concern that allowing the

headgear could create an appearance of favoritism and

generate unrest).

A53

Accordingly, we conclude that the prison regulation

satisfies the Turner test and affirm the summary judg-

ment.!

AFFIRMED.

| We need not decide whether Employment Div., Dept. of

Human Resources v. Smith, __ U.S. __, 110 S.Ct. 1595 (1990),

lessens the government’s burden under Turner, because appel-

lants fail the Turner test.

APPENDIX C

A54

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

JACK WAYNE FRIEND, et al.,

Plaintiffs, NO. C-87-0161 MHP

v. ORDER

RONALD KOLODZIECZAK, et al.,

Defendants.

Plaintiffs allege violation of their constitutional rights

in connection with Alameda North County Jail authori-

ties’ denial of religious services and removal of religious

articles under 42 U.S.C. §1983. Plaintiffs seek leave to

proceed in forma pauperis against defendants; Ronald

Kolodzieczak, Harold Estes, Chuck Green, R.A. Frist, and

A. Theobald. This court, in its discretion, grants plaintiffs

leave to proceed in forma pauperis. 28 U.S.C. §1915.

For the reasons set forth below, plaintiffs have stated

a cognizable claim against the defendants. Therefore, this

court orders that all named defendants be served.

DISCUSSION

To state a cognizable claim under section 1983, plain-

tiffs must allege: (1) defendants acted under color of law

and (2) defendants’ action deprived plaintiffs of a right,

privilege, or immunity secured by the Constitution. Baker

v. McCollan, 443 U.S. 137, 140 (1979). In accordance with

section 1983, plaintiffs have properly sued state actors

and alleged fourteenth and first amendment violations.

A55

|. Plaintiffs Have Failed To State A Violation Of Their

Fourteenth Amendment Procedural Due Process

Rights.

Due Process only requires that a post-deprivation

remedy be available to a prisoner who is negligently

deprived of his or her property. See Parratt v. Taylor, 451

U.S. 527, 543 (1981). In Parratt, the prisoner was negli-

gently deprived of his hobby kit. Despite the prisoner’s

deprivation of property the Supreme Court held that the

prisoner had not established a violation of his fourteenth

amendment rights. Id. at 537. Plaintiffs claim that while

incarcerated at the Alameda North County Jail, Jeff

Gray’s rosary beads were confiscated. Plaintiffs allege

that all the named defendants denied plaintiffs’ requests

to return the rosary beads. Since plaintiffs allege that the

rosary beads were intentionally taken in an effort to

deprive plaintiffs their opportunity to practice their reli-

gion, Hudson v. Palmer, 468 U.S. 517, 533 (1984) instead of

Parratt is controlling. Under Hudson, a prisoner does not

have a cognizable claim when the seizure is “random and

unauthorized” and a post deprivation remedy is avail-

able. In Hudson, the Court explains that a prisoner has a

cognizable claim only when the seizure is the result of an

“established state procedure”. Id. at 534. Here, plaintiffs

have failed to allege that the seizure was intentional and

the result of an “established state procedure”, and there-

fore, have failed to state a violation of their due process

rights.

ne en

A56

Il. Plaintiffs Have Stated A Violation Of Their First

Amendment Rights And Therefore Have Stated A

Cognizable Claim Under Section 1983.

Prisoners clearly retain protections afforded by the

first amendment, Pell v. Procunier, 417 U.S. 817, 822 (1974),

albeit limited. The Supreme Court recently discussed

prisoners’ religious rights in O’Lone v. Estate of Shabazz,

482 U.S. 343, 107 S. Ct. 2400 (1987). The Court reiterated

that the first amendment’s prohibition on the free exer-

cise of religion extends to prisoners. Id. at 2404. However,

the Court went on to state that prisoners’ first amend-

ment rights, like all constitutional rights possessed by

prisoners, may be limited if the limitation serves “valid

penological objectives - including deterrence of crime,

rehabilitation of prisoners, and institutional security”. Id.

Accepting the plaintiffs’ allegations as true, it does not

appear that any of the penological objectives mentioned

above are served by confiscating plaintiff Gray’s rosary

beads.

Plaintiffs also allege that prison authorities have

denied them access to religious services including confes-

sion, Communion, and Bible study, and religious articles.

Again accepting plaintiffs’ allegations as true, it does not

appear that any penological objectives are served by

these actions, especially in light of plaintiffs’ allegations

that inmates of Protestant faiths are permitted religious

services. These allegations are sufficient to state a claim.

On facts similar to these, another district court

denied a motion to dismiss because the plaintiff alleged

that religious items, such as Bibles, prayer books, prayer

shawl, tefillin, and yarmulke, had been seized and that

A57

the seizure had curtailed his religious practices in viola-

tion of his first amendment rights. Balabin v. Scully, 606

F.Supp. 176 (S.D.N.Y. 1985). The court explained that the

plaintiff's allegation, if proved, would warrant recovery

at trial, and therefore, defendants’ motion to dismiss

should be denied. The plaintiffs in this case, like the

plaintiff in Balabin, have alleged facts sufficient to state a

first amendment violation claim, and therefore, have

stated a cognizable claim under section 1983.

As all defendants are named as participating in the

continued confiscation of the rosary beads and the denial

of religious services and other religious articles, plaintiffs

have stated a cognizable 1983 claim against all named

defendants. Accordingly, this court orders that (1) all

defendants be served and (2) counsel be appointed to

represent plaintiffs.

IT IS SO ORDERED.

DATED: Sept. 17, 1987 MARYLIN HALL PATEL

United States District Judge

APPENDIX D

A58

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

JACK WAYNE FRIEND, et al.,

Plaintiffs, NO. C-87-0161 MHP

V. ORDER APPOINTING

COUNSEL

RONALD KOLODZIECZAK, et al.,

Defendants.

Plaintiffs in this prisoner section 1983 (42 U.S.C.

§ 1983) claim requests and qualifies for appointment of

counsel. Attorney Amitai Schwartz has consented to

accept appointment Accordingly,

IT IS ORDERED as follows:

1) Amitai Schwartz, Esq., is appointed counsel in

this action in accordance with the subject to General

Order No. 25 of this court;

2) Counsel may obtain authorization for reimburse-

ment of out-of-pocket expenses as needed by application

to this court in letter form stating the nature of the

expenses to be incurred;

3) A status conference shall be held in Courtroom

No. 5, 17th floor, 450 Golden Gate Avenue, San Francisco,

on April 25,1988 at 9:30 a.m. and a joint statement on the

enclosed pretrial preparation form shall be filed by the

parties on or before April 18, 1988.

DATED: FEB. 23, 1988 MARILYN HALL PATEL

United States District Judge

Zz.

Cum

A59

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

JACK WAYNE FRIEND, et al.,

Plaintiffs, NO. C-87-0161 MHP

VS.- MEMORANDUM

RONALD KOLODZIECZAK, et al., AND ORDER

Defendants.

Plaintiffs Jack Wayne Friend, Jeffery Dee Gray and

Michael Wethern filed this action in proper seeking

declaratory and injunctive relief as well as compensatory

damages under 421 U.S.C. §1983, alleging violation of

their first amendment rights to the free exercise of reli-

gion. By order filed September 17, 1987, this court

granted plaintiffs leave to proceed in forma pauperis,

found that the complaint stated cognizable claims,

ordered that the defendants be served and ordered that

counsel be appointed for plaintiffs. By order filed Febru-

ary 23, 1988 the court appointed counsel pursuant to

General Order No. 25 of this court. The case is now before

the court on plaintiffs’ motion to file a first amended

complaint and motion to certify the action as a class

action. Having considered the memoranda of the parties

and their arguments at hearing, for the following reasons,

the court grants the motion to certify the class and grants

leave to file an amended complaint.

BACKGROUND

Jack Wayne Friend is a pre-trial detainee in the

Alameda North County Jail (“the Jail”); Jeffery Dee Gray

A60

is incarcerated — in the Jail as a prisoner of the County of

Alameda; and Michael Wethern was incarcerated in the

Jail as a prisoner of the County of Alameda but is now

incarcerated at San Quentin. All three plaintiffs practice

Catholicism and all three were deprived of their rosaries

and scapulars according to an official policy of the Jail

that forbids prisoners to have such items in their posses-

sion. A rosary is a string of beads used for counting a

series of prayers. A scapular is a religious garment worn

over the shoulders made of two pieces of cloth joined by

a cloth string.

Plaintiffs also allege that Jail officials repeatedly

denied their requests to attend a mass conducted by a

Roman Catholic priest or to participate in the sacraments

of the Catholic church, such as confession and commu-

nion. No Roman Catholic services have been held in the

Jail since October 1984. Plaintiffs allege that the only

religious services regularly made available to inmates by

Jail officials are those conducted or overseen by Follow

Up Ministries, a Protestant fundamentalist group which

neither adheres to nor permits the teachings of Roman

Catholicism.

On September 17, 1987, this court ordered that the

defendants be served and respond and that counsel for

plaintiffs be appointed. The defendants answered on

October 23, 1987. The answer admitted that inmates of

the Jail are not permitted to possess rosary beads or to

wear scapulars. Defendants denied that Roman Catholic

services are not available to inmates of the Jail.

A61

Counsel was appointed for plaintiffs by order of

February 23, 1988. Plaintiffs’ counsel filed these motions

on April 18, 1988.

DISCUSSION

1. Motion to Certify the Action as a Class Action

Plaintiff Jack Wayne Friend moves the court to certify

this action as a class action pursuant to Federal Rule of

Civil Procedure 23(b)(2) or, alternatively, under Rule

23(b)(1)(A). The class he seeks to represent consists of “all

Roman Catholic inmates who are now or will be incarcer-

ated in the Alameda North County Jail.” Proposed first

amended complaint [hereinafter “complaint”] at para. 13.

Defendants oppose class certification on the grounds that

the requirements of Rule 23(a) have not been met.

A motion for class certification must first meet the

requirements of Rule 23(a). National Ass’n of Radiation

Survivors [NARS] v. Walters, 111 F.R.D. 595, 598 (N.D. Cal.

1986). Subsection (a) provides four prerequisites for a

class action. See Fed. R. Civ. P. 23(a). The court must

determine that the class is so numerous as to make join-

der of all parties impracticable; that there are common

questions of law or fact; that the claims or defenses of the

class representative are typical of the class; and that the

class representative will fairly and adequately protect the

interests of the class. See id.

To satisfy the numerosity requirement of Rule 23(a),

the exact number of class members need not be known,

so long as the evidence indicates that the number is large

enough to make joinder of all parties impracticable.

A62

NARS, 111 F.R.D. at 598-99. Plaintiffs have demonstrated

that the numerosity requirement is met. First, relying on

an estimate by the jail’s former chaplain, plaintiffs esti-

mate that Roman Catholic inmates at the Jail number

about 80 at any time. Declaration of Sue Ochs at para. 4.

This number is sufficiently large to meet the numerosity

requirement. See Perez-Funez v. District Director, Ins., 611

F. Supp. 990, 995 (C.D. Cal. 1984) (there is no fixed

number establishing a lower threshold for class certifica-

tion). Second, when evaluating the practicability of join-

der, it is appropriate to consider not only the nature of

the action and the relief sought, but also the inability of

the members of the class to institute individual suits,

which weighs against the possibility of joinder and in

favor of class certification. NARS, 111 F.R.D. at 599.

Where, as here, the proposed class includes unnamed and

unknown future members and by its nature its popula-

tion is a changing one, joinder is patently impracticable

and the numerosity requirement is met regardless of class

size. See id. Further, the action is a constitutional chal-

lenge that seeks declaratory and injunctive relief. Such

actions have been recognized by this court to be partic-

ularly appropriate for class action treatment. Id. at

599-600.

Defendants argue that it is feasible and preferable to

join as plaintiffs “all inmates who may voice similar

concerns as to their individual ability to worship being

affected by policies and regulations which address over-

all jail security/safety.” Defendants’ Opposition at 6.

Reconstituting the issues as defendants would like, how-

ever, does not change the nature of the action or make

joinder more practicable. Neither does this argument

A63

address the concerns of the numerosity requirement as

set out in the case law. Indeed, defendants fail to cite a

single case supporting their theory of numerosity.

Accordingly, the court finds that the numerosity require-

ment has been met.

By admitting that no inmates are permitted to pos-

sess rosaries or to wear scapulars, defendants as much as

concede that there are questions of law and of fact com-

mon to all members of the class. The common question of

law is whether the policy of forbidding the possession of

these religious articles and denying scheduled access to

the celebration of mass and to the sacraments is constitu-

tional. Defendants’ principal objection seems to be that

the Jail is according all inmates equal protection — that is,

that no inmates are permitted to have such articles. This

argument, however, goes to the merits of the case rather

than the certification of the class. The issue here is not

whether the Jail’s policy is unconstitutional, but whether

this issue is common to all members of the proposed

class. The court concludes that it is. All inmates of the

Jail, present and future, who are adherents of the Roman

Catholic faith and wish to observe their religion while

incarcerated are affected by the policy, which may prove

to violate the free exercise clause of the Constitution.

The claims of plaintiff Friend, who will represent the

class, are also typical of those of the class. Defendants

contend to the contrary on the grounds that religious

worship is a highly personal and individual pursuit

which is incapable of proper class representation. The

implication seems to be that Friend’s style of worship is

anomalous and that relief would force all Roman Catholic

inmates to practice according to his style. The claims in

A64

this case, however, are not peculiar to him. Friend claims

the right to have the opportunity to say prayers using a

rosary and wearing a scapular and to take part in mass

and holy sacraments. These are commonly practiced

methods of worship in the Catholic faith. Moreover, if

this argument were permitted to prevail, it would

eviscerate the class action as a mechanism for redressing

violations of constitutional rights. International Molders &

Allied Workers v. Nelson, 102 F.R.D. 457, 462 (N.D. Cal.

1983). The argument that Friend cannot know if other

inmates have suffered from the Jail’s policies begs the

question. Plaintiffs have alleged that those inmates who

wish to practice Roman Catholicism have been prevented

in every meaningful way from doing so. Further, the

argument that inmates have different security statuses

goes to the question of the scope of appropriate relief, not

to the availability of relief. In sum, defendants have

advanced no argument which weighs against a finding

that Friend’s claims are typical of all those inmates who

might wish to practice Roman Catholicism.

Plaintiffs will fairly and adequately represent the

class. This court appointed plaintiffs’ attorney and knows

him to be experienced and skilled in this type of litiga-

tion. Defendants have failed to point out any conflicts or

the potential for conflicts between plaintiff Friend and

the class he seeks to represent. Accordingly, the require-

ments of Rule 23(a) have been met.

The requirements of Rule 23(b)(1) and (b)(2) are also

met. Because the focus of the action is on the issue of

constitutionality and because injunctive and declaratory

relief are sought, certification pursuant to subsection

(b)(2) is more appropriate. Accordingly, a class of all

A65

Roman Catholic inmates who are now or who will be

incarcerated in the Alameda North County Jail is certified

to proceed pursuant to Rule 23(b)(2) on the claims for

declaratory and injunctive relief. If this certification

proves to be too broad, the court may later redefine or

narrow the class. The claim for compensatory damages

will be tried individually because it is not brought by

Friend on behalf of the class.

Il. Motion to File Amended Complaint

Defendants do not seriously oppose the motion for

leave to file the first amended complaint. Their opposi-

tion is limited to the merits of the case and the

advisability of class action certification. No prejudice to

the defendants is alleged. Moreover, this is the first com-

plaint submitted in this case by an attorney. The first

amended complaint alleges additional facts, adds new

claims for relief and adds as defendants the County of

Alameda and those officials who are responsible for pro-

mulgating the challenged policy.

In view of the early stage of the proceedings and the

fact that defendants have failed to bring to the court's

attention any prejudice that might result, the court exer-

cises its discretion to permit the filing of the proposed

first amended complaint. See Fed. R. Civ. P. 15(c); Ashel-

man v. Pope, 793 F.2d 1072, 1078 (9th Cir. 1986). Defen-

dants have thirty (30) days from the date of hearing, that

is until June 15, 1988, to file and serve an answer to the

amended complaint.

A66

CONCLUSION

For the foregoing reasons, the motion to certify a

class and motion for leave to file the first amended com-

plaint are granted:

IT IS SO ORDERED

Dated: JUNE 30, 1988

MARILYN HALL PATEL

United States District Judge

cm A A A i a a

APPENDIX F

i i

A67

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

JACK WAYNE FRIEND, et al.,

Plaintiffs NO. C 87-0161 MHP

-VS.- MEMORANDUM

RONALD KOLODZIECZAK, et al., AND ORDER

Defendants

Plaintiffs, a class of all Roman Catholic inmates at the

Alameda North County Jail, brought this action under 42

U.S.C. § 1983, seeking damages and injunctive relief for

alleged violations of their First Amendment right to the

free exercise of religion. At hearings on October 24, 1988

and March 13, 1989, the parties agreed that the sole

remaining issue in the case is whether plaintiffs have a

constitutional right to possess religious articles in their

cells at all times. Having considered the arguments of the

parties, the court grants defendants’ motion for summary

judgment on this issue and denies plaintiffs’ motion.

Upon defendants’ submission of a final written statement

detailing the jail policy on religious exercise, the court

will dismiss the action.

BACKGROUND

At the time this suit was filed, Jack Wayne Friend

was a pre-trial detainee in the Alameda North County Jail

(“the Jail”); Michael Wethern was incarcerated in the Jail

as prisoner of the County of Alameda but is now incar-

cerated at San Quentin; and Jeffery Dee Gray remains

incarcerated in the Jail as a prisoner of the County of

A68

Alameda. All three plaintiffs practice Catholicism and all

three were deprived of their rosaries and scapulars

according to an official policy of the Jail that forbids

prisoners to have such items in their possession. A rosary

is a string of beads used for counting a series of prayers.

A scapular is a religious garment worn over the shoul-

ders made of two pieces of cloth joined by a cloth string.

In the complaint, plaintiffs also alleged that Jail offi-

cials repeatedly denied their request to attend a mass

conducted by a Roman Catholic priest or to participate in

the sacraments of the Catholic church, such as confession

and communion. Plaintiffs alleged that the only religious

services regularly made available to inmates by Jail offi-

cials were those conducted or overseen by Follow Up

Ministries, a Protestant fundamentalist group which nei-

ther adheres to nor permits the teachings of Roman

Catholicism.

At hearings on October 24, 1988 and March 13, 1989,

the parties indicated to the court that all issues regarding

religious access for inmates at the jail had been resolved,

except the question of the possession of rosary beads and

scapulars at all times by inmates in their cells. Defen-

dants represented to the court that they were willing to

allow inmates to use the religious articles under the

supervision of visiting priests or lay workers, but that

security and administrative concerns would not allow for

the permanent possession of rosary beads and scapulars

by inmates. On April 3, 1989, Richard L. Reynolds, coun-

sel for defendants, wrote the court that an impasse on the

rosary bead and scapular issue had been reached, and

requested that the court adjudicate the pending cross-

motions for summary judgment.

A69

LEGAL STANDARD

Under Federal Rule of Civil Procedure 56, summary

judgment shall be granted “against a party who fails to

make a showing sufficient to establish the existence of an

element essential to that party’s case, and on which that

party will bear the burden of proof at trial . . . since a

complete failure of proof concerning an essential element

of the non moving party’s case necessarily renders all

other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S.

317, 322-23 (1986), on remand, 826 F.2d 33 (D.C. Cir. 1987),

cert. denied, __ U.S. __, 108 S.Ct. 1028 (1988). See also

T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d

626, 630 (9th Cir. 1987) (If the moving party meets its

initial burden of demonstrating the absence of any genu-

ine issue of material fact, the non moving party may not

rely on the pleadings but must present specific facts

creating a genuine issue of material fact); Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (a dispute

about a material fact is genuine “if the evidence is such

that a reasonable jury could return a verdict for the non

moving party.”).

DISCUSSION

Prison inmates are protected by the First Amend-

ment’s directive that no law shall prohibit the free exer-

cise of religion. O’Lone v. Estate of Shabazz, 482 U.S. 342,

348 (1987) (citing Cruz v. Beto, 405 U.S. 319 (1972) (per

curiam)). However, not all prison regulations which

infringe on constitutional rights are invalid. O’Lone, 482

U.S. at 348. Instead, “prison regulations alleged to

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infringe constitutional rights are judged under a ‘rea-

sonableness’ test less restrictive than that ordinarily

applied to alleged infringements of fundamental constitu-

tional rights.” Id. at 349. Under this standard, “the regula-

tion is valid if it is reasonably related to legitimate

penological interests.” Turner v. Safley, 482 U.S. 78, 89

(1987).

In Turner, the Court enunciated a four-part test for

evaluating regulations burdening prisoners’ First Amend-

ment rights. First, a regulation must have a logical con-

nection to legitimate governmental interests invoked to

justify it. 482 U.S. at 89. Second, the reviewing court must

examine “whether there are alternative means of exercis-

ing the right that remain open to prison inmates.” Id. at

90. The third consideration is “the impact accommodation

of the asserted constitutional right will have on guards

and other inmates, and on the allocation of prison

resources generally.” Id. Finally, “the absence of ready

alternatives is evidence of the reasonableness of a prison

regulation.” Id.

In O’Lone, the Court applied Turner's test to a situa-

tion similar in some respects to that of the case at bar.

O’Lone involved the claims of Muslim prisoners who

were prevented by a prison regulation from participating

in Jumu’ah, a weekly religious service commanded by the

Koran. The Court held that, despite “the central impor-

tance of Jumu’ah,” 482 U.S. at 351, the regulation was not

unconstitutional. In so holding, the Court stressed the

deference granted the professional judgment of prison

administrators in matters of security. Id. at 349. The Court

specifically rejected the Third Circuit’s approach, which

had required that prison administrators prove “that no

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reasonable method exists by which [prisoners’] religious

rights can be accommodated without creating bona fide

security problems.” Id. at 347 (quoting Shabazz v. O’Lone,

782 F.2d 416, 420 (3d Cir. 1986)).

The court has found only one case applying the

Turner analysis to a situation involving inmates desiring

to possess religious articles.! In Higgins v. Burroughs, 1988

U.S. Dist. LEXIS 2885 (E.D. Pa. 1988), a regulation ban-

ning the carrying of rosary beads by inmates in the prison

visiting room was upheld by a Pennsylvania district

court. The administration defendants in that case pre-

sented affidavits detailing their belief that rosary beads

could be reinforced with wire or other materials, render-

ing them potentiaily dangerous weapons. 1988 U.S. Dist.

LEXIS at 12. No evidence that such a use of rosary beads

and ever occurred was presen:od. Defendants also pre-

sented affidavits supporting their view that the beads

could be used to conceal contraband, id. at 9-10, and that

inspecting the beads would be administratively burden-

some. Id. at 13-14.

The court upheld the regulation, finding defendants’

statements of the dangers of rosary beads “unrefuted.” Id.

at 25. The court also noted that the plaintiff retained

alternative means of exercising his religious beliefs,

' In 1969, the Easterm District of Pennsylvania held that the

prohibition on the possession or wearing of religious medal-

lions by Black Muslim inmates did not violate the First Amend-

ment. Knuckles v. Prasse, 302 F. Supp. 1036, 1059 (E.D. Pa. 1969),

aff'd, 435 F.2d 1255 (3d Cir. 1970), cert. denied, 403 U.S. 936 (1971)

That case, however, which arose well before Turner, O’Lone and

their Supreme Court predecessors, is of virtually no preceden-

tial value in this district in 1989.

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including participating in Mass, using the beads at other

times, possessing a Catholic missal and consulting with

chaplains. Id. at 16-17.

_ The court now turns to the application of the Turner

factors to the case at bar.?

2 In another opinion, also from the Eastern District of Penn-

sylvania, the court dismissed (with leave to amend) a complaint

alleging violation of an inmate’s First Amendment religious

rights in a prison’s confiscation of unspecified religious articles

because the complaint failed to spell out the particular prohib-

ited articles. Young v. Shuler, 1988 U.S. Dist. LEXIS 299 (E.D. Pa.

1988). The court observed that “[c]onfiscation by prison officials

of certain religious articles might be reasonably related to the

paramount penological objective of maintaining security... .

Rosary beads, for example, can arguably be used to conceal

contraband or to injure another inmate and, therefore, be subject

to confiscation.” 1988 U.S. Dist. LEXIS at 2.

The court notes that there is only one reported post-O’Lone

case in the Ninth Circuit involving inmate possession of reli-

gious articles. In Sample v. Borg, Judge Karlton of the Eastern

District of California struck down a ban on the possession of

ceremonial tobacco ties by Native American inmates, rejecting

defendants’ arguments that allowing possession of the ties

would cause security and administrative problems. The court

stated that

application of the four-fold test [the Turner test] dem-

onstrates the impropriety of a total ban [on posses-

sion of the ties]. The question of the burden on prison

personnel which may be attendant upon requiring

that the sacks be opened for inspection may be made

de minimis by limiting the number of ties which may

be possessed. In like manner, limiting the tensile

strength of the string which may be used minimizes

the danger of the tie being used as a weapon.

675 F.Supp. 574, 581 (E.D. Cal. 1987), vacated as moot, 870 F.2d

563 (9th Cir. 1989).

ee ee

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1. Connection Between the Governmental Interest and

the Rule

Defendants’ have stated two reasons for banning the

full-time possession of rosary beads and scapulars by

inmates at the jail. First, they state a concern that the

articles could be used as weapons. Second, they allege

that increasing the number of items prisoners are allowed

to have in their possession would unduly burden the

prison administrators, since maintaining a very restricted

list of permitted items fosters institutional control. Defen-

dants also make a “floodgates” argument, claiming that if

Catholic inmates are allowed rosaries and scapulars,

other inmates of other faiths will require other religious

articles and substantial administrative resources will be

required to handle such other reque

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