# Petition for Writ of Certiorari — Kolodzieczak v. Friend

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1996
- **Citation:** 516 U.S. 1146

## Text

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- O8° 976 DEC 18 Oe

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?

li

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

iv

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

vi

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

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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.)

8

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,

10

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

11

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

12

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

13

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

14

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.

I.

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

15

”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.’

16

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

17

(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).

18

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

19

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).

20

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.”

21

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.

22

“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.

23

§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

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

A3

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

A4

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)).

A5

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).

A7

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).

A8

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. :

AY

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’

i

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.

© Although Spain addresses only the issue of interest on
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

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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1416%3A1. Public record. Not legal advice.