Opposition Brief — Kolodzieczak v. Friend

‘Qin a

QuUorS i rf U S.

, FILE bb

4, pe me

No. 95-976 AN 22 1996

—— CLERK

In The ad

Supreme Court of the United States

October Term, 1995

~- +

RONALD KOLODZIECZAK, et al.,

Petitioners,

vs.

JACK WAYNE FRIEND, et al.,

Respondents.

7

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

¢

RESPONDENTS’ BRIEF IN OPPOSITION

¢

AMITAI SCHWARTZ

Counsel of Record

Law Orrices OF AMITAI SCHWARTZ

155 Montgomery Street, Suite 800

San Francisco, CA 94104

(415) 398-0922

Attorney for Respondents

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

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Is a plaintiff class of county jail inmates who suc-

cessfully obtain and secure access to Roman Catholic

religious services, sacraments and religious articles

within a jail after filim ; suit a prevailing party for pur-

poses of an award of attorneys’ fees pursuant to 42 U.S.C.

§ 1988?

TABLE OF CONTENTS

Page

TABLE OF AUTIIUAREEEMD << cccccecascccdsvcsscenss iii

STATEMENT OF THE CAGE... cc ccccsscccssccccees 1

REASONS FOR DENYING THE WRIT............. 10

CONCLUGOUIN 25 ..0sucnuaneeeke eel aeetaneaeeeaaeee 13

:

7

(RRR ne

TABLE OF AUTHORITIES

Page

CAsEs

American Council of the Blind v. Romer, No.

92-217, __ U.S. __, 122 L.Ed.2d 348 (1993)........ 4

Farrar v. Hobby, 506 U.S. __, 113 S.Ct. 566, 121

Ss Ff Se 8, 9, 10, 11, 13

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

eat ASEM re ee a ee ee as 5,7

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

TERT Bea a Ee ln ee 8

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

et a ussdocepvesctin y

Goodman v. Lukens Steel Co., 482 U.S. 656 (1987) .... 11

Graver Mfg. Co. v. Linde Co., 336 U.S. 271 (1949) .... 11

Hensley v. Eckerhart, 461 U.S. 424 (1983).......... 8, 11

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

Kolodzieczak v. Friend, No. 92-292, __ U.S. __,

ee Yy

Lukumi Babalu Aye, Inc. v. City of Hialeah, __

8 Ee ee |) an 12

Nichols v. Romberg, No. 92-402, __ U.S. __, 122

ok kd eo kde Ae cie wakes ek.nseedeee> 9

O’Lone v. Shabazz, 482 U.S. 342 (1987).............. 12

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

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

Se CP, OE CUD ccc ccc nec cccscacaes 8, 11

Turner v. Safley, 482 U.S. 78 (1987).................. 12

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

a eee ona big bck s cans bss se ees eek ues 11

iv

TABLE OF AUTHORITIES CITED - Continued

Page

STATUTES

Be Sk ED so 5:0.0 ts Sca s 00 cues cane semanas hee 10

CD We ee es 6 bs a wes pen 4 hea eb eckee ee 7

STATEMENT OF THE CASE

Respondents are members of a plaintiff class of jail

inmates at the Alameda North County jail in Oakland,

California. Respondents are inmates of the Roman Catho-

lic faith. They filed suit in pro per in 19871 contending that

county officials had denied them access to religious ser-

vices, sacraments and religious articles (rosaries and

scapulars), while at the same time allowing a Protestant

fundamentalist group to control religious activities within

the North County jail.

The lawsuit had two primary objectives. First,

respondents attempted to obtain and secure access to

religious services by having jail officials provide them the

opportunity for separate services distinct from the Protes-

tant fundamentalist group. They also sought the oppor-

tunity to participate in communion and confession.

Second, respondents sought the opportunity to possess

sacramental articles, rosary beads and scapulars, at all

times.

The First Amended Complaint prepared by counsel

alleged that

The confiscation and continuing retention of

plaintiffs’ rosary beads and scapulars, defen-

dants’ practice and policy of prohibiting inmates

of the Alameda North County Jail from possess-

ing rosary beads and scapulars, and defendants’

failure to provide plaintiffs with access to

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

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

served until 1987. Order, filed September 17, 1987.

Roman Catholic religious services and sacra-

ments

> Pe

violate the Free Exercise Clause of the First Amendment.?

Moreover, the First Amended Complaint alleged that

Defendants’ failure to provide for scheduled

Roman Catholic masses or scheduled visits by a

Roman Catholic priest while arranging for ser-

vices held by Protestants

violates the right to equal protection of the law. First

Amended Complaint, paras. 44 and 46.

The prayer sought declaratory and injunctive relief

prohibiting confiscation of the rosaries and scapulars and

requiring defendants to arrange for and provide

effective and meaningful opportunities for

Roman Catholic prisoners to attend mass and

participate in the sacraments of communion and

confession within the North County Jail.

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

When the lawsuit was filed, the Jail Policy Manual

contained no provisions for Roman Catholic services or

sacraments, and it said nothing about the opportunity to

possess rosaries and scapulars during religious services.

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

Certiorari, “Section III 5-15, Religious Services,” at

A79-80. Indeed, there were no services; there were no |

? Petitioners inexplicably failed to include a copy of the

First Amended Complaint in the Appendix to the Petition for a

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

this Brief.

; :

suitable opportunities for communion and confession;

and rosaries were confiscated.

The district court certified a class consisting of “all

Roman Catholic inmates who are now or will be incarcer-

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

Appendix to Petition for a Writ of Certiorari. Subse-

quently, the parties engaged ir extensive discovery,

which culminated in cross-motions for summary judg-

ment, which were heard on October 24, 1988.

Directly in response to respondents’ motion for sum-

mary judgment, which was served on August 15, 1988,

the petitioners cured many - but not all — of the religious

access issues. For example, as a result of the litigation,

named plaintiff Jack Wayne Friend met privately with a

priest and participated in confession on August 22, 1988,

for the first time since his incarceration started in Octo-

ber, 1984. (Declaration of Eugene J. Stelly, Sr. in Support

of Plaintiffs’ Motion for Summary Judgment, paras.

34-35.) Then the jail captain wrote a letter dated Septem-

ber 15, 1988, announcing that “effective immediately”

separate Roman Catholic services would be held in the

jail. (Exhibits D and E to Declaration of Sue Ochs in

Support of Plaintiffs’ Motion for Attorneys’ Fees.) The

first separately identified Roman Catholic worship ser-

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

before the cross-motions for summary judgment were to

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

Transcript of Hearing, October 24, 1988, at A119.

At the hearing, the district court explored with the

parties the necessity for a definitive ruling on the cross-

motions in light of the changes in jail policy. The court

inquired of the current status with counsel and then

stated:

We’re talking about the day-to-day operations of

an institution when you have different people

coming on in different shifts and who may have

differing interpretations of what a, quote, policy

is.

So what I am going to do is ask that — that the

defendants come up with, in writing, a policy

that addresses the issues in this case. I mean, if

you want to work it in with, you know, another

standing policy, obviously, that’s probably pref-

erable for your management purposes, but I’m

only concerned about those issues that are

addressed here.

And I want to give you a chance to do that first

rather than my doing it. I don’t want to run the

jail or this aspect of it, or whatever, but if there’s

a failure of will on your part, then I'll have to do

something about it.

Appendix Q to Petition for Writ of Certiorari, Transcript

of Hearing, October 24, 1988, at A127. The court ordered

the parties to attempt finally to resolve the dispute by

reduc[ing] to writing the policy with respect to

separate location and a specific time for services

for Catholic inmates, and the type of place

where that — where those services will be held,

and those who will be given access to the jail for

the purpose of conducting those services, and

the other items, sacraments and so forth. That -

and items for those sacraments that will be per-

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

respect to a place for confession be reduced to

writing.

Appendix Q to Petition for Writ of Certiorari, Transcript

of Hearing, October 24, 1988, at A128.

Petitioners implemented the policy changes pertaining

to religious access. However, they subsequently asked the

district court to rule on the summary judgment motions

solely with respect to respondents’ asserted right to the

possession of rosaries and scapulars at all times. On Sep-

tember 29, 1989, the district court granted petitioners’

summary judgment motion, holding that jail officials can

prohibit unfettered possession of rosaries and scapulars.

Appendix F to Petition for a Writ of Certiorari. But the

court ordered petitioners, as a condition of final dismissal

of the lawsuit, to submit a final written policy addressing

the other religious access issues, which had been previ-

ously conceded by petitioners and resolved. Id. at A78.

Petitioners submitted a revised written policy, secur-

ing the rights of the class of Roman Catholic inmates in

connection with services, sacramental acts, and posses-

sion of rosaries and scapulars during services. Appendix

G to Petition for a Writ of Certiorari. As the Court of

Appeals recognized in its first opinion in this case:

The defendants’ alleged failure to grant the

plaintiffs access to Roman Catholic services and

sacraments was no longer in issue, because the

defendants scheduled a regular time and loca-

tion for Roman Catholic services, promulgated

rules allowing inmates an opportunity to partic-

ipate in the Roman Catholic sacraments of con-

fession and communion, and established a

policy allowing inmates to use rosaries and

wear scapulars during religious services and

meetings with religious visitors.

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

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

|

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

of this lawsuit, provides, in part:

* Purpose: To insure inmates are afforded the

opportunity of religious worship.

* Separate Catholic services will be allowed

each Sunday between the hours of 7:30 to

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

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

* When an inmate notifies staff that he desires

to practice his religion and requests to be

administered to by his faith’s practi-

tioner, . . . staff shall make reasonable efforts

to accommodate the request. .. . If the

inmate does not identify a particular practi-

tioner, staff will attempt to contact the reli-

gious body involved. [In the case of Catholic

inmates, staff will contact Catholic Charities,

Diocese of Oakland.]

When an inmate’s religious practice calls for

a private consultation with his religious prac-

titioner, staff shall make every reasonable

effort to make an area available for this pur-

pose and shall use reasonable efforts to

assure the privacy of the consultation. A pri-

vate consultation includes, but is not limited

to, an inmate’s confession to his practitioner.

Religious items allowed only during reli-

gious services are those which present only a

moderate security threat. Examples include a

rosary or a scapular.

See Exhibit H to Appendix to Petition for a Writ of

Certiorari (footnote omitted, brackets in original).

Following receipt of the new policy - which is

directly acknowledged in the district court’s order of

dismissal - the court dismissed the case. Appendix I to

Petition for Writ of Certiorari at A-85-86. Respondents

appealed the merits solely with respect to the possession

of rosaries and scapulars outside religious services. The

court of appeals affirmed. Friend v. Kolodzieczak, 923 F.2d

126, 127 (9th Cir. 1991); Exhibit B to Appendix to Petition

for a Writ of Certiorari.

Subsequently, respondents moved the district court

for an award of attorneys’ fees and costs pursuant to 42

U.S.C. § 1988 for the time spent in connection with issues

upon which the class had prevailed. They did not seek

fees solely related to the issues that were adversely

decided on appeal, including any compensation for the

first appeal. (Plaintiffs’ Memorandum in Support of

Motion for Attorneys’ Fees.)

Since respondents had engaged in extensive discov-

ery and briefed all issues in preparation for the motion

for summary judgment, they asked the district court to

compensate them for all work reasonably expended on

the religious access issues, except time spent solely on the

rosary and scapular questions. The district court found

that “Plaintiffs partial success on the religious access

matter has materially altered the North County Jail’s

policy by accommodating Catholic inmates’ requests for

participation in Roman Catholic services and sacraments.

Plaintiffs have thus prevailed on a significant portion of

relief sought.” Appendix J to Petition for a Writ of Cer-

tiorari at A92.

The district court then performed the analysis

required by Hensley v. Eckerhart, 461 U.S. 424 (1983) before

fixing the amount of the fee award, as $72,445.00, plus

expenses of $6,462.22. Appendix L to Petition for Writ of

Certiorari at A101-102.3 Ja. at A95, A102.

Petitioners appealed the award of fees and costs. The

appeal only raised the issue of entitlement to the award.

The court of appeals affirmed on May 19, 1992, applying

the settled principle that “a party may recover its attor-

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

litigation which achieves some of the benefit . . . sought

in bringing suit.’ ” Friend v. Kolodzieczak, 965 F.2d 682, 684

(9th Cir. 1992); Appendix A to Petition for a Writ of

Certiorari. See Farrar v. Hobby, 506 U.S. __, 113 S.Ct. 566,

121 L.Ed.2d 494, 503 (1993). In affirming the judgment the

court of appeals recognized that “The district court con-

cluded correctly that the pre-litigation settlement mate-

rially altered the legal relationship of the parties. This is

‘[t]he touchstone of the prevailing party inquiry.’ ” Id. at

685 (citing, Texas State Teachers Assn. v. Garland Indep. Sch.

Dist., 489 U.S. 782, 792-93 (1989)). The court noted that

“the district court found, Alameda County officials took

actions before trial that gave the inmates benefits they

sought in filing suit.” Id. at 684. Further, “[t]he district

court found that plaintiffs partially prevailed on their

3 The court also awarded $14,875.50 for time spent.on the

motion for fees. Appendix L to Petition for Writ of Certiorari.

Petitioners’ statements in the Petition that the district court

awarded over $150,000 in fees (Question Presented I.A., and see

p. 20) misstates the record and is obviously meant to attract

attention rather than accurately reflect the judgment.

claim for inmate possession of religious articles.” Id. at

685.

A petition for a writ of certiorari to this Court fol-

lowed. It coincided with this Court’s consideration and

decision in Farrar, which was decided on December 14,

1992. Several weeks after that decision the Court granted

certiorari in this case, vacated the judgment and

remanded for reconsideration in light of Farrar.

Kolodzieczak v. Friend, No. 92-292, __ U.S. __, 122

L.Ed.2d 348 (1993). On the same day the Court also

granted, vacated and remanded two other cases in light

of Farrar. American Council of the Blind v. Romer, No.

92-217, __ U.S. __, 122 L.Ed.2d 348 (1993); Nichols v.

Romberg, No. 92-402, ___ U.S. ___, 122 L.Ed.2d 348 (1993).

Following the remand the district court reaffirmed its

award of attorneys’ fees. The court noted that “in making

its original award, it relied on the same precedent that is

re-affirmed in Farrar.” Friend v. Kolodzieczak, __ F.3d ___

(9th Cir., December 21, 1995) (Amended Order, Dissent,

and Denial of Rehearing), Appendix to Petitioners’ Sup-

plemental Brief at 1la. The district court explained:

The plaintiffs in the instant case achieved far

more than the type of ‘technical’ or ‘de min-

imus’ victory won by the plaintiffs in Farrar, and

the fee award originally ordered is reasonable.

The plaintiffs here requested primarily injunc-

tive relief and were for the most part successful

in obtaining the relief they requested. . . . The

changes accomplished were the result of the

instigation of this lawsuit. . . . The record estab-

lishes that without this action defendants would

not have developed the policy ultimately

adopted in this case. This result was more than

es

10

merely ‘technical’; it ‘materially alter[ed] the

legal relationship between the parties’ in a man-

ner that was meaningful and substantial. Farrar,

113 S.Ct. at 574.

Id. at 9a-1la. The court concluded that “In short, there is

nothing in Farrar that affects this court’s original analysis

of the reasonableness of the attorneys’ fees in this case.”

Id. at 12a.4

The Court of Appeals affirmed for the reasons stated

by the district court, including the district court’s discus-

sion and conclusion that plaintiffs are prevailing parties.

Id. at 4a. The petition for rehearing having been denied

on December 21, 1995, and rehearing en banc having been

rejected, petitioners once again have come to this court

seeking reexamination of the district court’s findings.

+

REASONS FOR DENYING THE WRIT

We are not certain what issue of law the petitioners

seek to bring before this Court. Their questions presented

are a jumble of buzz words meant to attract attention

without clearly delineating the principles that they would

have this Court resolve. They do not point to any conflict

with decisions of other courts of appeals or state courts of

last resort.

* The Court went on to fix the amount of fees to be awarded

for work on the remand proceedings, and fixed the interest rate

on the original judgment, pursuant to 28 U.S.C. § 1961(a). These

determinations were not subsequently challenged on appeal.

11

Instead, petitioners attempt to invoke the Court's

supervisory power, inviting it to reexamine factual find-

ings twice determined by both the district court and the

court of appeals. But resolution of factual disputes is the

province of lower courts.

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

a court of correction of errors in factfinding,

cannot undertake to review concurrent findings

of fact by two courts below in the absence of a

very obvious and exceptional showing of error.

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

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

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

States v. Reliable Transfer Co., 421 U.S. 387 (1989). This is

especially appropriate in attorneys’ fees cases “in view of

the district court’s superior understanding of the litiga-

tion and the desirability of avoiding frequent appellate

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

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

The court of appeals applied settled law in making its

determination that respondents partially prevailed in this

class action. Farar v. Hobby, supra; Texas State Teachers

Assn. v. Garland Indep. Sch. Dist., 489 U.S. 782 (1989);

Hewitt v. Helms, 482 U.S. 755 (1987). Indeed, Farrar reaf-

firmed that fees may be awarded for an enforceable judg-

ment or “comparable relief through a consent decree or

settlement.” 121 L.Ed.2d at 503. Where equitable relief is

sought, a change in the “behavior of the defendant

toward the plaintiff” is all that is required. Rhodes v.

Stewart, 488 U.S. 1, 4 (1989).

12

Although petitioners claim that the attorneys’ fees

award intrudes on their ability to operate their jail, the

award does nothing of the sort. Petitioners, themselves,

wrote the new jail policy that secures the rights of the

respondent class of jail inmates. Petitioners settled the

aspects of the case for which fees and costs were

awarded. Petitioners were not required to settle; in fact,

they adamantly refused to settle on the rosary/scapular

issues and were vindicated on those issues by the sare

district court which they accuse in the Petition of forcing

them to settle. Petition for a Writ of Certiorari at 6.

Petitioners’ claim that the attorneys’ fees award intrudes

on the administration of the jail (id. at 13) is plainly an

“exaggerated response,” Turner v. Safley, 482 U.S. 78, 90

(1987), because the fee award itself does not intrude on

jail administration. It simply orders the payment of

money following final resolution of the merits of the case.

Petitioners would have this Court reopen the merits

of this entire litigation to reexamine the necessity of the

concessions they made on the eve of the cross-motions for

summary judgment in 1988. There is no procedural or

substantive reason to do so. Plaintiffs’ lawsuit raised on

behalf of Catholic prisoners in a county jail, one of the

most important rights we possess as Americans, the right

to practice our religions. See Lukumi Babalu Aye, Inc. v.

City of Hialeah, ___ U.S. ___, 124 L.Ed.2d 472 (1993). Some

accommodation of religious needs in the prison context is

required, where, as in this case, it is done by the prison

administrators themselves and does not intrude upon

prison administration. O’Lone v. Shabazz, 482 U.S. 342, |

351-52 (1987); Turner v. Safely, supra.

i

13

Farrar enunciated the principles governing fee

awards in cases involving minimal or no relief. The Court

of Appeals in this case reviewed the district court’s order

on remand in light of Farrar. There is nothing in the

Petition or in the case at this point that warrants review

by the Court.

-¢

CONCLUSION

The Petition for a Writ of Certiorari should be denied.

Dated: January 22, 1996

Respectfully submitted,

AmMITAI SCHWARTZ

Attorney for Respondents

A-1

APPENDIX

Amitai Schwartz

Sue Ochs

Law Offices of Amitai Schwartz

155 Montgomery Street, Suite 800

San Francisco, California 94104

415/398-0922

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

JACK WAYNE FRIEND, on

behalf of himself and all others

similarly situated, JEFFREY

DEE GRAY, and

MICHAEL WETHERN,

Plaintiffs,

VS.

)

)

)

)

)

)

)

)

RONALD KOLODZIECZAK, ?

CHARLES PLUMMER, Sheriff

of Alameda County; MORRIS )

L. HICKERSON, Captain of

Alameda North County Jail, )

DEAN COMPTON, Deputy for ?

Prisoners’ Affairs-Inmate )

Services Officer; HAROLD )

ESTES, R.A. FRIST, CHUCK?

GREEN, A. THEOBALD, and

COUNTY OF ALAMEDA,

)

)

Defendants.

NO.

C 87-0161 MHP

CLASS ACTION

FIRST

AMENDED

COMPLAINT

FOR

INJUNCTIVE

AND

DECLARATORY

RELIEF AND

DAMAGES

DEMAND FOR

JURY TRIAL

(Filed

Sept. 17, 1987)

|

A-2

INTRODUCTION

1. This is a class action complaint for injunctive and

declaratory relief and individual damages arising from

tiie refusal of the Alameda County Sheriff's Department

and Officials of Alameda County to allow plaintiffs the

opportunity to exercise their constitutionally protected

right to practice their religion at the North Alameda

County Jail in Oakland, California. Plaintiffs allege that

defendants deny plaintiffs and the proposed class the

opportunity to attend Roman Catholic religious services

and to participate in religious sacraments performed by a

Roman Catholic priest. Plaintiffs further allege that

defendants prohibit the possession of scapulars and

rosary beads, sacramental articles of the Roman Catholic

faith. Plaintiffs allege that their rights under the United

States Constitution and the California Constitution and

laws have been and continue to be violated.

JURISDICTION

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

with pendent state claims. Therefore jurisdiction is based

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

pendent jurisdiction over the state claims.

PARTIES

3. Plaintiff JACK WAYNE FRIEND is a pre-trial

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

ated at the North County Jail in Oakland since October

1984, awaiting trial on charges of felony murder with

A-3

special circumstances. Plaintiff could face a sentence of

death if he is found guilty.

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

vant times a prisoner of the County of Alameda incarcer-

ated at the North County Jail in Oakland.

5. Plaintiff MICHAEL WETHERN was a prisoncr of

the County of Alameda incarcerated at the North County

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

tin State Prison in San Quentin, California.

6. The COUNTY OF ALAMEDA is a political subdi-

vision of the State of California with the capacity to sue

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

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

its policies, customs and practices.

7. CHARLES PLUMMER is the Sheriff of Alameda

County, and is responsible for establishing the policies

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

He is further responsible for the direction and supervi-

sion of its subordinate officials and employees, including

officials and employees of the North County Jail.

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

tion and Corrections Division - Alameda North County

Jail, and is responsible for the administration of the North

County Jail, including the establishment of its policies

and practices, and for the supervision and control of all

its employees.

9. DEAN COMPTON is the Deputy for Prisoner

Affairs-Prisoner Services Officer at the Alameda North

A-4

County Jail and is responsible for receiving and respond-

ing to inmate requests for religious counselling, visits,

sacraments or services.

10. Defendants KOLODZIECZAK, ESTES, GREEN,

FRIST and THEOBALD are all employees of the Alameda

County Sheriff’s Department, who were at times relevant

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

authorized or performed the confiscation or retention of

personal religious articles from plaintiffs FRIEND, GRAY,

or WETHERN.

11. At all times mentioned herein, the defendants,

and each of them, were employees of the Alameda

County Sheriff's Department and the COUNTY OF

ALAMEDA.

CLASS ACTION ALLEGATIONS

12. This action is maintainable as a class action

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

(1)-(2).

13. Plaintiff JACK WAYNE FRIEND brings this

action for declaratory and injunctive relief on behalf of

himself and all other Roman Catholic prisoners who are

or will be incarcerated in the Alameda North County Jail.

The class is so numerous that joinder of all members is

impracticable. There are questions of law and fact com-

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

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

will fairly and adequately represent the interests of the

class. Additionally, the prosecution of separate actions by

individual members of the class would create the risk of

A-5

inconsistent adjudications which would establish incom-

patible standards of conduct for defendants. Defendants

have acted and continue to act on grounds generally

applicable to all members of the proposed class, thereby

making declaratory and injunctive relief appropriate with

respect to the class as a whole.

FACTS

14. At all times mentioned herein, defendants and

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

furtherance of and accordance with the policies and prac-

tices of defendants COUNTY OF ALAMEDA, CHARLES

PLUMMER, and MORRIS L. HICKERSON.

15. Plaintiffs JACK WAYNE FRIEND and MICHAEL

WETHERN are members and practitioners of the Roman

Catholic faith. Plaintiffs’ religious beliefs are sincerely

held.

DENIAL OF THE RIGHT TO POSSESS

ROSARY BEADS AND SCAPULARS

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

cloth scapular are an integral part of plaintiffs’ practice

and expression of their faith and are long-held traditions

of Roman Catholicism.

17. Rosary beads are used to count prayers while

praying.

18. Scapulars are symbols of Mary, the mother of

Jesus. For Roman Catholics such as plaintiffs JACK

WAYNE FRIEND and MICHAEL WETHERN, the wearing

A-6

of the scapular invokes the protection of Mary and the

promise of salvation and eternal life.

19. It is the policy of defendants COUNTY OF

ALAMEDA, CHARLES PLUMMER, and MORRIS L.

HICKERSON, and the practice of all defendants to pro-

hibit prisoners in the North County Jail from possessing

rosary beads and cloth scapulars, and to confiscate such

items from prisoners when they are discovered to possess

them.

20. In July 1986, the rosary of plaintiff JEFFREY

DEE GRAY was confiscated by defendant A. THEOBALD.

Defendant CHUCK GREEN refused plaintiff’s request to

return the beads based on the order of defendant

HAROLD ESTES.

21. In July 1986, the rosary of plaintiff MICHAEL

WETHERN was confiscated by defendant FRIST. Plain-

tiffs are informed and believe, and therefore allege on

information and belief, that defendant RONALD

KOLODZIECZAK ordered the confiscation after plaintiff

WETHERN showed defendant KOLODZIECZAK his

rosary beads in the course of a discussion concerning a

grievance plaintiffs MICHAEL WETHERN and JACK

WAYNE FRIEND had filed on behalf of plaintiff JEFFREY

DEE GRAY concerning the confiscation of plaintiff

GRAY’S rosary beads.

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

Alameda County jail employees, the rosary of plaintiff

JACK WAYNE FRIEND disappeared.

23. In confiscating the rosary beads of plaintiffs

JACK WAYNE FRIEND, MICHAEL WETHERN, and

A-7

JEFFREY DEE GRAY, defendants were acting pursuant to

the official policy of defendants COUNTY OF

ALAMEDA, CHARLES PLUMMER and MORRIS L.

HICKERSON.

24. The rosary beads possessed by plaintiffs and

confiscated by defendants were plastic beads strung on

either narrow gauge soft fiber or plastic string.

25. Plaintiffs are informed and believe, and there-

fore allege on information and belief, that possession of

plastic rosary beads by inmates of the Alameda North

County Jail poses no threat to the safety of plaintiffs,

other inmates or employees of the Sheriff’s Department

and confiscation of these articles is not related to any

important legitimate penological interest.

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

scapular was confiscated by an officer with the initials

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

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

were denied. The explanation given was “not allowed to

have at NCJ per Sgt.”

27. In November 1987, plaintiff JEFFREY DEE

GRAY requested the return of his scapular so he could

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

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

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

like that to inmates.”

28. In confiscating the scapulars of plaintiffs JACK

WAYNE FRIEND and JEFFREY DEE GRAY, defendants

were acting pursuant to the official policy of defendants

A-8

COUNTY OF ALAMEDA, CHARLES PLUMMER and

MORRIS L. HICKERSON.

29. The cloth scapulars possessed by plaintiffs and

confiscated by defendants consist of two small religious

pictures attached to cloth string, worn over the shoulders,

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

scapulars under their clothing.

30. Plaintiffs are informed and believe, and there-

fore allege on information and belief, that wearing cloth

scapulars beneath the clothing poses no threat to the

safety of plaintiffs, other inmates or employees of the

Sheriff’s Department and the prohibition of this practice

is not related to any important legitimate penological

interest.

DENIAL OF ACCESS TO SCHEDULED

ROMAN CATHOLIC SERVICES AND

ROMAN CATHOLIC SACRAMENTS

31. Defendants COUNTY OF ALAMEDA,

CHARLES PLUMMER, MORRIS L. HICKERSON, and

DEAN COMPTON arrange for, provide, facilitate and

permit weekly scheduled Protestant religious services in

the North County Jail.

32. Plaintiffs are informed and believe, and there-

fore allege on information and belief, that defendants

maintain only one time slot per week for inmates to

attend organized religious services and this time slot is

reserved by defendants solely for the services conducted

by a Protestant Fundamentalist group known as Follow

Up Ministries.

a

A-9

33. Defendants COUNTY OF ALAMEDA,

CHARLES PLUMMER, MORRIS L. HICKERSON, and

DEAN COMPTON do not arrange for, facilitate or other-

wise provide effective and meaningful opportunities for

Roman Catholic prisoners to attend mass and participate

in the sacraments of confession and communion

34. Since October 1984, when plaintiff JACK

WAYNE FRIEND was first incarcerated, there have been

no scheduled Roman Catholic religious services held at

the North County Jail, and there have been no masses

performed by a Roman Catholic priest within the North

County Jail.

35. Plaintiffs are informed and believe, and there-

fore allege on information and belief, that weekly bible

study groups sanctioned, arranged, facilitated and pro-

vided for by defendants COUNTY OF ALAMEDA,

CHARLES PLUMMER, MORRIS L. HICKERSON, and

DEAN COMPTON and held within the Alameda North

County Jail are conducted or overseen by Follow Up

Ministries which does not allow Roman Catholic teach-

ings to be presented therein.

36. There are no scheduled visits by Roman Catho-

lic priests to the prisoners at the North Alameda County

Jail.

37. Since October, 1984, plaintiff JACK WAYNE

FRIEND has repeatedly written letters and request slips

to various deputies, sergeants and prison administrators

requesting that the administration schedule Roman Cath-

olic religious services and sacraments to be performed by

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

tiff’s requests have been denied or ignored.

eT ee ne

A-10

38. From October 1984, through early March 1988, |

plaintiff JACK WAYNE FRIEND had no personal contact

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

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

priest because defendants failed to provide a private

setting for the visit.

39. Itis plaintiff FRIEND'S sincerely held belief that

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

pate in the sacraments of confession and holy commu-

nion administered by a priest of the Roman Catholic

church.

40. Defendants’ continuing denial of plaintiffs’ right

to possess religious articles and their continued failure to

provide plaintiffs access to Roman Catholic religious ser-

vices and participation in sacraments performed by a

Roman Catholic priest is causing plaintiffs irreparable

harm as it prevents them from outwardly manifesting

their religious commitments, worshipping in accordance

with the tenets of the Roman Catholic faith, and receiving

the sacraments of Roman Catholicism.

41. The individual defendants herein acted with

reckless or callous indifference to the rights of plaintiffs

JACK WAYNE FRIEND, JEFFREY DEE GRAY, and MICH-

AEL WETHERN.

42. Asa proximate result of the policies and acts of

the defendants, plaintiffs JACK WAYNE FRIEND,

JEFFREY DEE GRAY, and MICHAEL WETHERN have

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

anteed by the United States Constitution.

|

A-11

FIRST CLAIM FOR RELIEF

(Free Exercise of Religion — Federal)

43. Plaintiffs reallege and incorporate herein by ref-

erence each and every allegation of paragraphs 1 through

42.

44. The confiscation and continuing retention of

plaintiffs’ rosary beads and scapulars, defendants’ prac-

tice and policy of prohibiting inmates of the Alameda

North County Jail from possessing rosary beads and

scapulars, and defendants’ failure to provide plaintiffs

with access to Roman Catholic religious services and

sacraments performed by a Roman Catholic priest, vio-

late the free exercise clause of the First Amendment as

incorporated into the Fourteenth Amendment.

SECOND CLAIM FOR RELIEF

(Denial of Equal Protection — Federal)

45. Plaintiffs reallege and incorporate herein by ref-

erence each and every allegation of paragraphs 1 through

44.

46. Defendants’ failure to provide for scheduled

Roman Catholic masses or scheduled visits by a Roman

Catholic priest while arranging for services held by Prot-

estants. violates plaintiff’s right to equal protection of the

law under the Fourteenth Amendment to the United

States Constitution.

a

A-12

THIRD CLAIM FOR RELIEF

(Due Process — Federal)

47. Plaintiffs reallege and incorporate herein by ref-

erence each and every allegation of paragraphs 1 through

46.

47 [sic]. Defendants’ past and continuing arbitrary

treatment of plaintiffs is a denial of due process under the

Fourteenth Amendment to the United States Constitu-

tion.

FOURTH CLAIM FOR RELIEF

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

49. Plaintiffs reallege and incorporate herein by ref-

erence each and every allegation of paragraphs 1 through

48. |

50. An actual controversy exists between the par-

ties.

51. The parties are entitled to a declaration of their

rights and liabilities.

FIFTH CLAIM FOR RELIEF

(Free Exercise of Religion — State)

52. Plaintiffs reallege and incorporate herein by ref-

erence each and every allegation of paragraphs 1 through

51.

53. The confiscation and continuing retention of

plaintiffs’ rosary beads and scapulars, defendants’ prac-

tice and policy of prohibiting the possession of rosary

beads and scapulars, the failure to provide for scheduled

A-13

Roman Catholic masses and scheduled visits by a Roman

Catholic priest while arranging for visits and services

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

Constitution.

SIXTH CLAIM FOR RELIEF

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

54. Plaintiffs reallege and incorporate herein by ref-

erence each and every allegation of paragraphs 1 through

53.

55. The confiscation and continuing retention of

plaintiffs’ rosary beads and scapulars and defendants’

practice and policy of prohibiting inmates of the Alameda

North County jail from possessing rosary beads and scap-

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

prisoners in county detention facilities of the opportunity

to exercise religious freedom.

SEVENTH CLAIM FOR RELIEF

(Equal Protection — State)

56. Plaintiffs reallege and incorporate herein by ref-

erence each and every allegation of paragraphs 1 through

55.

57. Defendants’ failure to provide for scheduled

Roman Catholic masses or scheduled visits by a Roman

Catholic priest while arranging for services held by Prot-

estant clergy violates plaintiff's right to equal protection

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

tion.

A-14

EIGHTH CLAIM FOR RELIEF

(Due Process —- State)

58. Plaintiffs reallege and incorporate herein by ref-

erence each and every allegation of paragraphs 1 through

~f

59. Defendants’ past and continuing arbitrary treat-

ment of plaintiffs is a denial of due process under Article

I, § 7 of the California Constitution.

PRAYERS FOR RELIEF

WHEREFORE, plaintiffs pray for the following relief:

1. For an order certifying the class.

2. For a declaration that plaintiff JACK WAYNE

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

tutionally protected right to possess rosary beads, wear

cloth scapulars under their clothing, and have effective

and meaningful opportunities to attend Roman Catholic

mass and participate in the sacraments of confession and

communion.

3. For preliminary and permanent injunctions

enjoining defendants, their successors, agents,

employees, and all persons working in concert or partici-

pation with them, from confiscating rosary beads and

scapulars belonging to prisoners, from failing to return

such articles to inmates from whom they have been con-

fiscated, and from prohibiting possession of rosary beads

and scapulars.

4. For preliminary and permanent injunctions

requiring defendants to arrange for and provide effective

A-15

and meaningful opportunities for Roman Catholic pris-

oners to attend mass and participate in the sacraments of

communion and confession within the North County Jail.

5. For compensatory damages against all defen-

dants in an amount according to proof.

6. For punitive damages against the individual

defendants in an amount according to proof.

7. For costs and reasonable attorneys fees pursuant

to 42 U.S.C. § 1988.

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

Dated: April 18, 1988

LAW OFFICES OF

AMITAI SCHWARTZ

By: Amitai Schwartz

Amitai Schwartz