Petition for Writ of Certiorari — Terhune v. Shuaibe
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} IN THE SUPREME COURT OF THE UNITED STATES
C.A. TERHUNE, et al., Petitioners
v.
SHOMARI NAEEM SHUAIBE, aka FELTON LEE GUILLORY,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
BILL LOCKYER
Attorney General
DAVID P. DRULINER
Chief Assistant Attorney General
PAUL D. GIFFORD
Senior Assistant Attorney General
*JANE CATHERINE MALICH
; Deputy Attorney General
*Counsel of Record
300 South Spring Street
Los Angeles, CA 90230
Telephone: (213) 897-2256
Fax: (213) 897-2810
Counsel for Petitioner
QUESTIONS PRESENTED
1. Whether public agency employees relying on written
policy they are required to follow are entitled to qualified immunity as a
matter of law despite a court’s later determination the policy is unlawful,
a question as to which Circuit courts differ in principle.
2. Whether Turner v. Safley, 482 U.S. 78 (1987), requires
prison officials to change or replace record-keeping practices and
computer information systems to accommodate dual use of prisoners’
commitment and legal religious names regardless of the impact on prison
resources and administration, a question presenting a direct intercircuit
conflict.
[Petitioners do not base their petition for writ of certiorari on the
following question, but respectfully reserve the right to argue this
question and subsidiary issues fairly included should this petition be
granted. |
3. Whether the Ninth Circuit’s misapplication of Turner
affects the precedential value of its opinions on inmates’ legal religious
name changes and calls into question their continuing validity.
LIST OF PARTIES
Petitioners are C.A. Terhune, Director, California
Department of Corrections (CDC),' John Ratelle, former Warden,
California State Prison-Los Angeles County (CSP-LAC), Mike
Yarborough, CSP-LAC Chief Deputy Warden, G. Bonnie Garibay,
former Chief, Inmate Appeals, CDC, D. Felix, former CSP-LAC
Correctional Counselor II, D. Lorenzen, former CSP-LAC Correctional
Counselor I, and D. Whyte, former CSP-LAC Correctional Counselor }?
Garibay, Felix, Lorenzen and Whyte are currently employed by CDC in
other positions.
The respondent is Shomari Naeem Shuaibe, also known
as Felton Lee Guillory. He is incarcerated at CSP-LAC.
1. Director C.A. Terhune is substituted for former Director, James Gomez, sued
in his official capacity only. Rule 35.3.
2. Named defendant Victor Bluestein, former CDC Hearing Examiner, is
deceased. A suggestion of death on the record was filed on December 10, 1996 and
no motion for substitution was timely filed. As of the date this petition for writ of
certiorari was filed, he had not been dismissed as a defendant in this action.
CPTIIIIT EAI oc og occa ve vpekecsecanedvecnesaanehcenes 1
STATEMENT OF JURISDICTION ............ eee ee eee eee 1
5.
CONSTITUTIONAL AMENDMENTS INVOLVED ............ 2
STATUTES SE NE oS oi ae ote bu fs tke wen ae aes ea 2
STATEMENT OF: THE CASE. 6 «5 acicas cictiye o.cge cpentene sw erne eee 2
REASONS FOR GRANTING THE WRIT .........-.-20+ 00000: 6
1. There Is a Conflict Among the Circuits on the Question
Whether Public Employee Defendants Relying on
Written Policy a Court Later Finds to Be in Error Are
Entitled to Qualified Immunity as a Matter of Law .. . 9
There Is a Pronounced Conflict Among the Circuits
Whether Prisons Must Change or Reorganize Their
Record Keeping Practices to Accommodate Inmates’
Legal Religious Name Changes ..........-...+.-- 12
Defendant Prison Officials’ Subsidiary
Questions Are Fairly Presented ...............-.- 14
The Ninth Circuit’s Approach Ignores Turner’s
Mandate to Conduct an Informed and Individualized
Reasonableness Analysis When Reviewing Regulations
Alleged to Impinge on an Inmate’s Constitutional
EN i i nc no MUO h =e FEA COE OE 15
The Questions Presented Are Important .......... 17
CT LIBIIOW, ois io ¢- caer exten cree Qe bets oe Nae nae s Se geping « 18
iv
TABLE OF AUTHORITIES
Page
CASES
Akbar v. Cannery,
634 F. 2d 339 (6th Cir. 1980) (per curiam), cert. denied, 480
U.S. 1002, 101 S. Ct. 1712, 68 L. Ed. 205 (1981) ......... 12
Barrett v. Virginia
689 F. 2d 498 (4th Cir. 1982) ©... 6... ee eee ee eee eee 12
Bartlett v. Fisher,
OES. SE ET Ce a Te oe i veel ei keene 10
Behrens v. Pelletier,
516 U.S. 299, 116 S. Ct. 834, 133 L. Ed. 2d 773 (1996) ... 11
City of Boerne v. Flores,
521 U.S. 507, 117 S. Ct. 2365, 138 L. Ed. 2d 624 (1997) ...5
Collins v. Jordan, '
FEOF .36 33635 T90i Car. UGG gc case cc eae es ep ae 6
Gorra v. Hanson,
OOF; Se DEC Ca cc os Pe eer s bbe ake 10
LSO, Ltd. v. Stroh,
BOS F SR TEAS CCA, POSE vec sc cv esas cated cans 11
Malik v. Brown,
Pee AK wy fi ke Ak. Berean is eet
Malik v. Brown,
16 F. 3d 330 (9th Cir. 1994) mandate recalled and opinion
supplemented, 65 F.3d 148 (9th Cir. 1995) ..... 5, 6, 8, 12, 15
Martinez v. Procunier,
416 U.S. 396, 94 S. Ct. 1800, 40 L. Ed. 2d 224(1971)..... 16
Vv
TABLE OF AUTHORITIES, CONT’D
Mitchell v. Forsyth,
472 U.S. 511, 105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985) .... 11.
Moorman v. Thalacker,
SS F. 36 970 (Ger Cir. 996) ooo vc vn: s deieiewe ds 10
O’Lone v. Estate of Shabazz,
482 U.S. 343, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1997) ..... 16
Procunier v. Navarette,
434 U.S. 555, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978) ........ 15
Scott v. Mississippi Department of Corrections,
SGT T2072 CO Cir AOSD ho bk RS oo ce cen 7
Spies v. Voinovich, 7
A7a E96 SOB 6s Cer. 199M sr SE AIR. cen 7,12
Ward v. Walsh,
5 Oe BF LGN Cm. FOOSE a ee AGA i oa ee cca 7
Turner v. Safley, ;
GEG MA e. PUN IR Ais SEE Us Fe PRS css ona cea 7, 16
Wolfel v. Morris,
DI Rs Oe Tae CNA, BOGE nk keke iWeass cwkaseas 10
STATUTES
BB Ue BU Gi BCG Ais oa vac ceeds ccceues 2
GE AN ROE sn PANES ess KOEN SKOOL aw Aide t
42 US.C. §§ 2000bb-200bb-4 .......... Cae pins ssbb eae aes 3
Religious Freedom Restoration Act (RFRA)................5- 3,5
vi
TABLE OF AUTHORITIES, CONT’D
Page
UNITED STATES CONSTITUTION
Fivet Asmenenet oc i eT a ee 2, 7,14
Fourteomtis AmsmmG@memt . ww. cc ccc seb Fetes bes see hinvita 2
vii
TABLE OF APPENDICES
No. Document Page
A JANUARY 25,2000 ORDER DENYING PETITION 1a-2a
FOR REHEARING AND SUGGESTION FOR
REHEARING EN BANC........ Pee
B OCTOBER 19, 1999 MEMORANDUM DECISION 3a-4a
DENYING INTERLOCUTORY APPEAL FROM
DENIAL OF MOTION FOR SUMMARY
JUDGMENT ON, INTER ALIA, GROUNDS OF
QUALIFIED IMMUNITY
C ~ SEPTEMBER 4, 1998 ORDER ADOPTING Sa-7a
FINDINGS CONCLUSIONS AND
RECOMMENDATIONS OF UNITED STATES
MAGISTRATE JUDGE
D AUGUST 18, 1997 DECLARATION OF WAGNER 8a-l6a
IN SUPPORT OF DEFENDANTS OPPOSITION TO
PARTIAL REPORT AND RECOMMENDATION
RE: CROSS-MOTIONS FOR SUMMARY
JUDGMENT REQUEST FOR JUDICIAL NOTICE
E JULY 24, 1997 PARTIAL REPORT AND 17a-52a
RECOMMENDATION OF UNITED STATES _
MAGISTRATE JUDGE IN A CIVIL RIGHTS CASE
F DECEMBER 10, 1996 EXCERPT FROM 53a-54a
DEFENDANTS’ NOTICE OF MOTION AND
MOTION FOR SUMMARY JUDGMENT;
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT THEREOF
No.
IN THE SUPREME COURT OF THE UNITED STATES
C.A. TERHUNE et al., Petitioners,
V.
SHOMARI NAEEM SHUAIBE, aka FELTON LEE GUILLORY,
Respondent.
Petitioners respectfully petition for a writ of certiorari to review
the orders of the United States Court of Appeals for the Ninth Circuit in
this case denying petitioners’ interlocutory appeal from the order denying
them qualified immunity and denying their petition for rehearing and
suggestion for rehearing en banc. -
OPINION BELOW
The opinions of the court of appeals are set forth at Appendix
ST ATEMENT OF JURISDICTION
Petitioners-defendants filed an interlocutory appeal to the Ninth
Circuit Court of Appeals following the denial of their motion for
summary judgment on, inter alia, the grounds of qualified immunity. On
October 19, 1999, the Ninth Circuit Court of Appeals affirmed the district
court’s denial of defendants’ motion for summary judgment on the basis
that defendants were not entitled to qualified immunity. The Ninth
Circuit denied petitioners’ petition for rehearing and suggestion for
rehearing en banc on January 25, 2000. On April 6, 2000, this Court
la-2a.
2
extended the time for filing this petition for writ of certiorari to and
including May 24, 2000.
The jurisdiction of the Court is invoked under 28 U.S.C. §
1254(1) (1994).
CONSTITUTIONAL AMENDMENTS INVOLVED
This appeal concerns the Free Exercise Clause of the First
Amendment of the United States Constitution, which provides, in
pertinent part:
“Congress shall make no law respecting an establishment of
religion or prohibiting the free exercise thereof...”
The Fourteenth Amendment of the United States Constitution
makes the First Amendment applicable to the states. The Fourteenth
Amendment provides, in pertinent part:
“No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States...”
STATUTES INVOLVED -
Section 1983 of Title 42 of the United States Code provides, in
pertinent part:
“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.”-
STATEMENT OF THE CASE
Respondent (plaintiff) Shomari Naeem Shuaibe, also known
as Felton Lee Guillory, is a prisoner incarcerated at California State
Prison-Los Angeles County (CSP-LAC) in California. In 1995, he
3
brought this suit for damages and declaratory and injunctive relief under
42 U.S.C. § 1983 alleging that his First Amendment and state law
guarantees freedom and free exercise of religion were violated because
he had been refused canteen, visits, Receiving and Release (R&R)
services and medical attention under his new, legal religious name
(Shuaibe). He alleged his inmate appeal had been denied. In his
administrative appeal, he had requested that he be allowed visits, medical
attention, R & R _ services, canteen, identification cards and
correspondence with the prison administration in his legal religious name
and that his legal religious name be put on his central file and in the
prison computer.
Shuaibe sued the Director of the California Department of
Corrections (CDC)’ and each of the seven CDC employees who relied on
written departmental administrative policy contained in §73010.6.1 of the
Departmental Operations Manual (DOM)’ in denying his inmate appeal.
Shuaibe also claimed that the former director violated the Religious
Freedom Restoration Act (RFRA), 42 U.S.C. §§ 2000bb-2000bb-4.
Defendants filed an answer on June 21, 1995, asserting, inter
alia, the affirmative defense of qualified immunity. Defendants did not
contest the sincerity of plaintiff's beliefs or his desire to use his religious
name.
Defendants filed a motion for summary judgment on December
10, 1996. As the RFRA was still in effect, defendants argued plaintiff
had failed to make an adequate showing that his exercise of religion was
substantially burdened because he failed to show defendants had
interfered with a tenet or belief central to his religion or prevented him
from having an experience that his faith mandated. Defendants submitted
evidence that the plaintiff told his correctional counselor he wanted to
replace his commitment name with his religious one, that the institutional
Muslim chaplain had not informed CSP-LAC Chief Deputy Warden
Yarborough adopting a new religious name was mandated by the tenets
3. James Gomez was CDC Director at the time plaintiff filed his complaint. Mr.
Gomez’s successor is C.A. Terhune.
4. See, Appendix, 53a-54a, for text of this section at the time of plaintiffs legal
name change and its 1992 and 1995 amendments.
4
of that faith, that the Departmental computer systems were not designed
to accept more than one commitment name, that updating computer
systems would be costly, that the Department was engaged in a long-term
project to computerize much of the information in inmate central files and
that there were safety and security concerns regarding inmate name
changes. Each of the six living defendants involved in reviewing,
plaintiff's inmate grievance submitted declarations’ stating that they
relied on DOM § 73101.6.1, which sets forth the Department’s
administrative policy, in denying plaintiff's administrative appeal.
Defendants argued they were entitled to qualified immunity
because 1) earlier precedent was ambiguous and the contours of an
inmate’s right to use a legal, religious name in addition to his
commitment name had not been clearly established, 2) prison officials do
not have to change their records to reflect new legal religious names of
prisoners, 3) reasonable non-policy-making employees would have
believed that following written departmental policy did not violate an
inmate’s clearly established rights, and 4) qualified immunity extends to
prison officials who rely on facially valid regulations and protects those
who relied on published regulations even if a court later determines their
reliance to be in error.
Plaintiff also filed a motion for summary judgment. Each party
filed an opposition to the other’s motion and statements of genuine
issues in support of their oppositions. The parties noted a disagreement
as to whether plaintiff told defendant Whyte he wanted to substitute his
religious name for his commitment name or to use both names. All living
defendants except former Director Gomez filed declarations stating they
relied on DOM §73010.6.1 in denying plaintiff's inmate appeal. Their
reliance on written departmental policy is not disputed. Plaintiff alleges
no other act by these defendants which he claims to violate his federally
guaranteed rights.
5. Due to her absence from the office, there was a delay in the filing of the
signed original declaration from Ms. Garibay, Chief, Inmate Appeals. The record is
unclear whether it was considered by the district court judge during her de novo
review of the Report and Recommendation.
5
. On June 25, 1997, this Court ruled the RFRA was
unconstitutional. City of Boerne v. Flores, 521 U.S. 507, 117 S. Ct.
2365, 138 L. Ed. 2d 624 (1997).
On July 24, 1997, the Magistrate Judge issued a partial report
and recommendation on the parties’ cross-motions for summary:
judgment which, inter alia, denied defendants’ motion for qualified
immunity. Appendix, 17a-53a. Relying on Malik v. Brown, 16 F. 3d 330
(9" Cir. 1994) (Malik I) (9th Cir. 1994), mandate recalled and opinion
supplemented, 65 F.3d 148 (9th Cir. 1995) (Malik II), and Malik v.
Brown, 71 F. 3d 724 (9" Cir. 1995) (Malik III), the Magistrate Judge
found that the law had been clearly established. Appendix, 39a. The
court denied defendants qualified immunity on the grounds that there was
a genuine issue of material fact which precluded the entry of judgment in
favor of - defendants. Appendix, 36a-37a. The Report and
Recommendation did not address the argument that CDC employees were
entitled to qualified immunity because they relied on written
departmental policy which a reasonable. correctional employee would
have believed was constitutional. |
The Magistrate Judge reviewed the record developed when the
RFRA provided the applicable standard of review. Applying Turner, he
concluded that defendants had not offered evidence of any legitimate
penological reasons why plaintiff should not be allowed to use his
religious name as well as his commitment name. Appendix, 40a. He
found that it was without substantial controversy that defendants had
violated, and were continuing to violate, plaintiff's constitutional rights.
He deferred a decision on plaintiff's request for prospective injunctive
relief for a later motion. Appendix, 44a-45a.
In their objections to the Report and Recommendation,
defendants asked that the motion cut-off date be reopened in light of the
recent change in the applicable standard of review or, in the alternative,
for a de novo review. Defendants filed supporting declarations
discussing, inter alia, the inability of the Department to add plaintiff's
religious name to virtually all of its existing computer networks,
information systems, and programs; competing demands for departmental
information systems resources; interference with mission critical
directives; and the length and expense of reprogramming or replacing
Departmental systems. A declaration noted that many local institutions
nN
6
and departmental contractors utilized stand alone personal computers and
non-departmental information systems. It could not be readily
ascertained whether religious names could be added to these stand alone
personal computers and private third party information systems.
Appendix, 8a-16a°.
On September 4, 1998, the district court issued an order
adopting and approving the partial Report and Recommendation. On
September 17, 1998, defendants filed a motion for reconsideration. It
was denied on October 16, 1998. On October 28, 1998, plaintiff filed a
substitution of attorneys. Defendants filed a notice of appeal on
November 16, 1998.
Defendants filed their opening brief on March 5, 1999. The
Ninth Circuit applied the de novo standard of review to defendants’
interlocutory appeal. The Ninth Circuit denied their interlocutory appeal
in an unpublished memorandum decision which did not discuss
petitioners’ contention they were entitled to qualified immunity because
they relied on written policy, a fact which was not in dispute, in denying
Shuaibe’s inmate appeals. Appendix, 3a-4a.. Citing Collins v. Jordan,
110 F.3d 1363 (9" Cir. 1997), the Ninth Circuit found that defendants
were not entitled to qualified immunity as a matter of law because there
was a disputed factual issue. The Ninth Circuit did not discuss the Sixth
and Eighth Circuit authority defendants cited in support of their qualified
immunity claim even though following this precedent would render the
dispute as to whether Shuaibe wanted only his religious name or his
religious and commitment names on his records and in the prison
computer immaterial. The Ninth Circuit did not discuss Malik v. Brown,
16 F. 3d 330 (9" Cir. 1994) (Malik I) or Malik v, Brown, 71 F. 3d. 724 (9"
Cir. 1995) (Malik III), cited and relied upon as mandatory precedent by
the district court in its denial of qualified immunity. Malik was
extensively briefed and discussed in the district court record.
Defendants filed a petition for rehearing and a suggestion for
rehearing en banc suggesting the Ninth Circuit overrule Malik v. Brown,
16 F. 3d 330 (9" Cir. 1994) (holding that an inmate is permitted to use
both his legal religious and commitment names in all his daily affairs).
6. The information in the last tow sentences of paragraph 3 of the August 14,
1997 declaration of Wagner is no longer accurate. Appendix, 10a.
7
The Ninth Circuit denied defendants’ petition in an unpublished
memorandum decision. Appendix, la-2a.
REASONS FOR GRANTING THE WRIT
This case presents the Court with the timely opportunity to
resolve two intercircuit conflicts: 1) whether public agency employees
are entitled to qualified immunity as a matter of law in a 42 U.S.C. §
1983 civil rights action when the only act complained of is their reliance
on written policy they did not create, cannot change and must follow as
a condition of their employment, and 2) whether state prison officials are
required to change or modify their record-keeping practices and replace
or reprogram all their computer information systems regardless of
expense or operational disruption in order to accommodate inmates’ new
legal religious names.’ The first question presents a conflict in principle,
the second a direct conflict.
The second intercircuit conflict also presents the court with the
opportunity to clarify the application of the Turner v. ‘Safley
reasonableness test. The Malik Court appears to have misapplied the
Turner test, because, unlike the Ninth Circuit panel in Ward v. Walsh, 1
F.3d 873 (9" Cir. 1993) (holding Turner applied to inmate’s free exercise
claims but remanding for factual findings), the Malik Court reversed a
district court determination based solely on the first Turner factor but did
not remand the case for fact-finding as to the remaining Turner factors.
The Fifth and Sixth Circuits expressly note that a trial court is not
required to weigh evenly or even consider explicitly each of the four
Turner factors. Spies v. Voinovich, 173 F. 3d 398, 403 (6" Cir. 1999);
Scott v. Mississippi Department of Corrections, 961 F.2d 77, 80 (5" Cir.
1992). The Ninth Circuit has not expressly followed or approved the
views expressed by the Fifth and Sixth Circuits. In practice, however, the
majority opinion in Spies devoted substantially more attention to the fact-
intensive analysis of each Turner factor involved in determining whether
the inmate was entitled to prevail on his First Amendment Free
Expression claim to use his legal religious name than the Malik court did.
7. Defendants do not contest the sincerity of Shuaibe’s religious beliefs or his
desire to use his religious name; they only contest the burden accommodation of that
request entails.
8
The Ninth Circuit’s unsupported conclusion in Malik that it would
not be burdensome to permit an inmate to use his religious name in his
daily affairs effectively requires a prison system to enter the religious
name in its various computer information systems if possible, or to
reprogram or replace them if not. Since prisons routinely share arrest and
conviction history with other law enforcement agencies including the
Federal Bureau of Investigation and the Federal Bureau of Prisons, and,
where appropriate, the United States Immigration and Naturalization
Service, and since they both send and receive holds, warrants and
detainers, changes in one state’s information and data reporting systems
can have a ripple effect throughout law enforcement and criminal justice
agencies across the nation. Thus, the Ninth Circuit’s conclusory
examination of the Turner factors in Malik may have grave unintended
consequences for the Federal Bureau of Prisons, the Federal Bureau of
Investigation, sister states, local correctional agencies, and cooperative
and local law enforcement agencies not parties to Malik. These agencies
are either directly subject to the holding in Malik or maintain or use
criminal history and other information systems and networks potentiaily
affected by it.
California’s inability to accommodate dual use of commitment
and legal religious names without prohibitive costs and significant
disruption of on-going operations is religiously neutral. CDC does not
permit the dual use of commitment and legal names of inmates who
obtain new legal names while incarcerated through marriage, divorce, or
other non-religious reasons. The same technological barriers, financial
considerations and security concerns attach to non-religious legal name
changes as do to religious legal name changes.
In Shuaibe, the district court did not conduct its own Turner
balancing test on a record prepared in anticipation of the Turner standard
of review. Further, it relied on Malik v. Brown, 16 F. 3d 330 (9" Cir.
1994) to find that the law was clearly established even though the relief
Shuaibe seeks is far more extensive than that sought by the plaintiff in
Malik. The issue of permanent injunctive relief has yet to be litigated in
Shuaibe. Therefore, it is appropriate for this Court to exercise its
supervisory powers to clarify the application of the Turner
reasonableness test in the circumstances presented in this case.
9
1.
THERE IS A CONFLICT AMONG THE
CIRCUITS ON THE QUESTION WHETHER
PUBLIC EMPLOYEE DEFENDANTS
RELYING ON WRITTEN POLICY A COURT
LATER FINDS TO BE IN ERROR ARE
ENTITLED TO QUALIFIED IMMUNITY ASA
MATTER OF LAW |
This petition should be granted to resolve the conflict among
the circuits regarding the question whether public employees required as
a condition of their employment to follow written policy which they did
not make, may not modify and cannot ignore are entitled to qualified
immunity as a matter of law even if a court later finds their employer’s
policy to be in error. Here, plaintiff alleged he had been refused canteen,
visits, R & R and medical attention under his new religious name. He
exhausted his administrative remedies under the inmate grievance system
prior to bringing suit. He named as defendants the CDC director and the
seven CDC employees who denied his grievance. The six living
employee defendants have asserted the defense of qualified immunity.
In this case, no party disputes that the CDC employees relied on written
departmental policy in denying plaintiff's inmate grievance. No other
federally cognizable unconstitutional acts are alleged against the
employee defendants.
At the time plaintiff's lawsuit was filed, there was no Ninth
Circuit authority explicitly holding the acts complained of violated
clearly established law. In a 1995 decision published five months after
defendants had filed their answer, a divided panel of the Ninth Circuit
held that the right of an inmate to use both his commitment and religious
names on outgoing mail was clearly established in 1990. Malik IIT, 71 F.
3d at 726, 730.* None of the cases cited by the Ninth Circuit in Malik I
or Malik III hold or suggest that it was clearly established that an
inmate’s dual use of religious and commitment names must be
8. The California Department of Corrections’ Departmental Operations Manual
(DOM) was amended in 1995 to provide for dual use of legal religious and
commitment names in conjunction with mail and visiting records. The amendment
did not require a change of primary identifier on tangible records or in computer
systems. Appendix, 53a-54a.
10
accommodated in both tangible, written records and computer
information systems. Nor do they hold or suggest that it was clearly
established that dual use of religious and commitment names must be
accommodated in tangible, written records when to do so would confuse,
disrupt, or interfere with the efficient operation of correctional and law
enforcement computer information systems.
Despite this, the Shuaibe district court denied defendants
qualified immunity. The Ninth Circuit denied their interlocutory appeal
and petition for rehearing. In so doing, both courts rejected defendants’
argument they were entitled to qualified immunity because they relied on
written departmental policy.
The Sixth Circuit holds that prison officials relying on
published regulations are entitled to qualified immunity even though
courts reviewing the officials’ action may subsequently find that their
interpretation of the regulation was in error. Wolfel v. Morris, 972 F.2d
712, 719-20 (6" Cir. 1992). The Eighth Circuit reaches the same result
with its holding that the doctrine of qualified immunity protects officials
from liability for their reasonable efforts even if their conclusions and
actions are arguably wrong. Moorman v. Thalacker, 83 F. 3d 970, 974
(8" Cir. 1996) (recognizing, at 83 F. 3d at 975, that prison officials’
interpretation and application of their disciplinary regulations is a “classic
situation for which qualified immunity is designed”’); Bartlett v. Fisher,
972 F. 2d 911, 914 (8" Cir. 1992); Gorra v. Hanson, 880 F. 2d 95, 97-98
(8" Cir. 1989). It is reasonable for public employees to apply the written
policies and procedures of their employers without changes,
modifications and exceptions.
In its unpublished memorandum decision in Shuaibe, the Ninth
Circuit declined, without explanation or comment, petitioners’ suggestion
it follow this precedent in deciding their interlocutory appeal on the
denial of qualified immunity. Instead, the Ninth Circuit wrongly
concluded that a factual question precluded the granting of qualified
immunity to the state employee defendants. Appendix, 3a - 4a. The
Ninth Circuit had jurisdiction to consider petitioners’ assertion, implicit
in their appeal and explicit in their petition for rehearing, that the dispute
over what relief plaintiff sought in his inmate appeal was not material to
_ petitioners’ claim their reliance on written policy entitled them to
11
qualified immunity. Cf., Behrens v. Pelletier, 516 U. S. 299, 116 S. Ct.
834, 842, 133 L. Ed. 2d 773 (1996).
The Ninth Circuit’s recent opinion in LSO, Ltd. v. Stroh, 205
F. 3d 1146 (9" Cir. 2000) demonstrates that the circuit conflict is
entrenched. In LSO, the Ninth Circuit rejected the argument of California
Alcoholic Beverage Control Board officials that they were entitled to
qualified immunity because, inter alia, Article Ul, Section 3.5,
Subdivision (a) of the California Constitution provides that an
administrative agency has no power to “refuse to enforce a statute, on the
basis of its being unconstitutional, unless an appellate court has made a
determination that such statute is unconstitutional.” Petitioners have not
relied on the California Constitution to support their claim of qualified
immunity. However, this provision illustrates the strong public policy
interests state and local public agencies have in ensuring their employees
apply policy uniformly rather than making unilateral decisions which
could lead to litigation alleging policies were being applied arbitrarily,
capriciously, or in a discriminatory manner. These interests are
particularly compelling in the prison setting.
There is no federal constitutional right to an inmate grievance
system. If the mere act of relying on written departmental policy to deny
an inmate’s administrative grievance subjects a correctional employee to
personal liability, correctional agencies will be hard-pressed to find staff
willing to review inmate appeals, Further, to avoid the risk of punitive
damages for following written departmental policy, employees would be
motivated to make independent and potentially conflicting
determinations, leading to haphazard application of policy, inefficient
penological administration, increased tensions resulting from perceived
favoritism or special treatment of individual inmates, and a breakdown
of institutional order.
As this court recognized in Mitchell v. Forsyth, 472 U.S. 511,
522, 105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985), public employees should
be able to act without undue fear in the performance of their duties.
Requiring employees as well as policy-makers to defend litigation
challenging application of agency policies diverts the attention and
resources of government and its employees from their normal duties.
12
The conflict in the circuits is irreconcilable. This petition
_ should be granted because it presents a timely and expedient vehicle for
the Court to settle the question conclusively.
2.
THERE IS A PRONOUNCED CONFLICT
AMONG THE CIRCUITS WHETHER
PRISONS MUST CHANGE OR REORGANIZE
THEIR RECORD KEEPING PRACTICES TO
ACCOMMODATE INMATES’ LEGAL
RELIGIOUS NAME CHANGES
This petition should be granted to resolve the conflict among
the Circuits regarding whether a prison system must reorganize its
records or change its record-keeping practices to accommodate inmates’
legal religious name changes. The Ninth Circuit holds that an inmate
must be permitted to use his legal religious name in all his
correspondence, on documents, and in all his daily affairs. Malik, 16 F.
3d at 332, 334. The Sixth Circuit holds that an inmate has no
constitutional right to dictate how prison officials keep their records.
Spies v. Voinovich, 173 F. 3d 398 (6" Cir. 1999); Akbar v. Cannery, 634 —
F. 2d 339, 340 (6" Cir. 1980) (per curiam), cert. denied, 480 U.S. 1002,
101 S. Ct. 1712, 68 L. Ed. 205 (1981). Even before Turner, the Fourth
Circuit reversed a district court order requiring Virginia to reorganize its
files according to an inmate’s legally adopted religious name. Barrett v.
Virginia, 689 F. 2d 498, 503 (4" Cir. 1982). In Bartlett, the Fourth
Circuit recognized the First Amendment does not command affirmative
acts on the part of the government and recognized that how prison
officials chose to organize their records is quintessentially an
administrative matter in which the courts should not intervene.
None of these cases address computer information systems or
the need for written records to be compatible with the unique identifiers
utilized by correctional administrators to track the inmates’ location, trust
account information, canteen funds, and other incidents of daily prison
life. The opinions do not define the term “record” but it is clear from the
context the courts were contemplating file folders which could be
relabeled, index cards which could be interlineated, and the like. None
of these opinions discuss the inability of a correctional department to
cross-reference its written or computer records by identifier (e.g., prison
| |
13
number, commitment name, combination of prison number and a limited
number of letters of the commitment name, legal religious name, etc.)
without significantly changing or replacing its practices and equipment.
None of the opinions discuss inherent limitations of computer hardware
or software.
Cases from the days of typewriter correction tape and carbon
paper or hole-punched No. 2 pencil-filled data entry cards do not clearly
establish whether changes can be made to late 20" century and early 21"
century prison records-keeping and information systems at de minimis
cost and penological impact. Ironically, it may be more expensive and
time-consuming for prison systems to convert to dual use of legal
religious and commitment names than it was in the days of correction
tape, carbon paper and No. 2 pencils. Prison computer systems, like
California’s, may not have been designed to permit additional data in
each of their various applications’ name fields, or may be organized by
an unique numeric or alphanumeric identifier for each inmate, rather than
by an inmate’s name. Limited number of characters in a name field may
pose a problem. The need for accurate, speedy and efficient law
enforcement data sharing and tracking is another consideration. Staff will
need to be trained when existing systems and procedures are changed or
replaced. Thus, a subsidiary question fairly included in this intercircuit
conflict is whether, in 1994, it was clearly established that a prisoner
should be permitted to use both his commitment and legal religious.
names in his daily affairs when to do so would require extensive
revamping or replacement of computer hardware and software for
multiple penological and law enforcement applications throughout a
correctional system and potentially throughout those agencies with which
it is required to share information.
The California Department of Corrections’ Information
Systems Branch supports a host of mainframes, mini-computers, micro-
computers and personal computers. Some of its thirty-three institutions
also utilize personal computers not supported by or registered with
headquarters. Most of CDC’s current computers and information systems
do not permit entry of new inmate religious or other non-commitment
names. Many systems and networks would have to be replaced entirely
as they cannot be reprogrammed to accept additional names. Private
contractors contract with CDC to provide work release and parole re-
14
entry programs. Their ability to incorporate religious names in their -
computers and information systems is unknown. Appendix, 11a.
Here, the Shuaibe district court relied on Malik in holding that
petitioners are violating respondent’s First Amendment rights. The ~
district court reserved the issue of prospective relief for a subsequent
motion. Thus, this interlocutory petition should be granted because it
presents a timely and expedient vehicle for the court to settle conclusively
the question of the extent to which correctional systems are required to
change prison record-keeping practices and information systems to
accommodate inmate religious names.
3,
DEFENDANT PRISON OFFICIALS’
SUBSIDIARY QUESTIONS ARE FAIRLY
PRESENTED
This Court’s Rule 14.1.(a) provides that only the questions set
out in the petition or fairly included therein will be considered by this
Court. The Ninth Circuit’s application of Turner in Malik is fairly
presented in this petition. Defendants were initially denied qualified
immunity because of Malik and the district court relied on Malik to hold
that defendants violated and continue to violate Shuaibe’s rights.
Moreover, Malik does not affect only the parties to this case.
It stands as precedent for state and local prison officials within the entire
Ninth Circuit, and as persuasive authority for federal inmates’ Bivens
actions. Thus the subsidiary questions set forth in this petition should not
be read merely as the complaint by one affected party that a properly
stated rule of law (Turner) was misapplied in Malik, thereby creating
unfavorable precedent which was applied against that party in Shuaibe.
Further, the California Department of Corrections and other prison
systems were not parties to Malik and had no opportunity to raise their
concerns about the effect the proposed accommodation would have on the
allocation of their prison resources. Since consideration of the
application of Turner to Malik is essential to this court’s analysis of the
qualiffed immunity denial in Shuaibe, and resolution of the inmate’s
motion for permanent injunctive relief, these subsidiary issues are fairly
15
comprised in the questions presented. Cf., Procunier v. Navarette, 434
U.S. 555, 559-560, n.6 98 S.Ct. 855, 55 L.Ed.2d 24 n. 6 (1978).
4.
THE NINTH CIRCUIT’S APPROACH IGNORES
TURNER’S MANDATE TO CONDUCT AN
INFORMED AND INDIVIDUALIZED
REASONABLENESS ANALYSIS WHEN
REVIEWING REGULATIONS ALLEGED TO
IMPINGE ON AN INMATE’S CONSTITUTIONAL
RIGHTS
In Malik v. Brown, 16 F.3d 330 (9" Cir. 1994) (Malik I) (9th
Cir. 1994), mandate recalled and opinion supplemented, 65 F.3d 148 (9th
Cir. 1995) (Malik I), the Ninth Circuit failed to conduct an informed
analysis of the four Turner factors set forth by this Court. Malik filed a
lawsuit claiming in part that he had been disciplined for using only his
religious name on outgoing correspondence in contravention of
Washington state penal regulations. The Ninth Circuit reversed the lower
court’s holding that Malik, who had converted to Islam while
incarcerated, did not have a sincerely held religious belief in the use of
his legal religious name. The District Court had considered just part of
the first of Turner’s four factors: the reasonableness of the prison’s
regulations. Malik, 16 F. 3d at 332 and 334. The Ninth Circuit did not
remand the case back to the District Court for further proceedings.
Instead, it sua sponte applied the four part Turner test on an apparently
undeveloped record. The court’s discussion of the three remaining
Turner factors consists of one paragraph, four sentences in length, which
is devoid of any reference to contentions of the parties or the district court
record. Id. at 334. The court neglected to apply the appropriate standard
of review, necessitating a recall of its mandate to supplement the opinion.
Malik II. 4
Further, the regulation in question in Malik concerned outgoing
inmate mail. The Ninth Circuit significantly expanded the scope of its
Turner analysis to include use of religious names on correspondence,
documents and in the inmate’s “daily affairs.” Malik J, 16 F.3d at 334,
335. Turner suggested that a court may consider an alternative that fully
‘accommodates a prisoner’s rights at de minimis costs to valid penological
16
interests as evidence that the regulation does not satisfy the reasonable
relationship between the challenged regulation and the penological
interests for it. There appears to have been no inquiry in Malik into
whether the dual use of an inmate’s religious and commitment names in
all his daily affairs, as opposed to outgoing correspondence, can be
achieved at de minimis cost.
The Ninth Circuit’s assumptions about the minimal impact its
sua sponte expansion of the issues presented by Malik would have on
“guards and other inmates, and on the allocation of prison resources
generally” (Turner, 482 U.S. at 90) have led to grave unintended
consequences for petitioners and the State of California. The “ripple
effect” (id.) of requiring dual recognition of commitment and religious
names within the Ninth Circuit may unduly burden federal and local law
enforcement agencies throughout the nation who rely on California’s
participation in multi-agency information sharing and tracking systems.
In O'Lone v. Estate of Shabazz, 482 U.S. 343, 107 S. Ct. 2254,
96 L. Ed. 2d 64 (1997) (holding that prison regulations which prevented
Muslim inmates from attending weekly congregational services did not
violate their First Amendment rights under the Free Exercise Clause), this
Court reaffirmed its refusal to substitute its own judgment in difficult and
sensitive matters of institutional administration, even where claims are
made under the First Amendment, recognizing that problems of
correctional administration are particularly ill-suited to “resolution by
decree. ’” /d. at 349-350, quoting Martinez v. Procunier, 416 U.S. 396,
405, 94S. Ct. 1800, 40 L. Ed. 2d 224 (1971). The Ninth Circuit strayed
from the principles enunciated in O’Lone and Turner in expanding the
scope of the questions presented in Malik and in making unsupported
assumptions about the effect accommodation of inmates’ desire to use
legal religious names in conjunction with commitment names will have
on prison administration and resources. The Ninth Circuit’s
misapplication of Turner in Malik should be reviewed because it
undermines the interest of minimizing judicial intrusion in state prison
affairs so often articulated by this Court.
This petition presents this Court with an opportunity to provide
guidance for lower courts in their application of Turner and O’Lone.
This Court’s precedent should be applied in a manner which, while
conscious of judicial economy, will ensure that future litigants and triers
17
of fact and law will be provided the adequate exposition of the record,
contentions of the parties and analysis of the court so essential in
determining whether a published opinion may be properly followed as
binding precedent, relied upon as persuasive authority or rejected as
inapplicable to the specific facts, factors and regulations at issue in future
litigation.
5.
THE QUESTIONS PRESENTED ARE
_ IMPORTANT
This petition should be granted because the Ninth Circuit’s
decision in Shuaibe undermines the important goals of qualified
immunity. Public agency employees should be able to act without undue
fear in the performance of their duties. Here, public employees are being
required to defend an action for damages even though their only act was
their undisputed reliance on written agency policy. Denying them
qualified immunity unnecessarily diverts the attention and resources of
the government and its officials from their normal duties.
The application of the Ninth Circuit’s opinion in Malik to
respondent Shuaibe’s claims undermines the important goals of
minimizing judicial intrusion in the affairs of state and local correctional
facilities. Concerns about federal court intrusion in prison affairs are
heightened in cases involving state penal facilities. The principles of
comity as well as this Court’s decisions in Turner, O’Lone, and other
prison cases support granting this petition so that this Court can exercise
its supervisory powers to correct or limit the Ninth Circuit’s
misapplication of Turner in Malik.
~ The rapid pace of technological innovation has rendered the
cases relied upon in Malik J and II] questionable precedent when it comes
to determining whether prison officials should be denied qualified
immunity because inmate religious names are not recorded in conjunction
with commitment names in prison computers and in written documents
which are computer-generated or computer-dependent. This Court
should exercise its supervisory powers to provide guidance as to the
weight and continued validity of this increasingly outdated precedent.
18
CONCLUSION
The petition for a writ of certiorari should be granted.
Dated: May 24, 2000.
Respectfully submitted,
BILL LOCKYER
Attorney General
DAVID P. DRULINER
Chief Assistant Attorney General
PAUL D. GIFFORD
Senior Assistant Attorney General
*JANE CATHERINE MALICH
Deputy Attorney General
*Counsel of Record
Counsel for Petitioners
APPENDIX A
la
FILED
JANUARY 25, 2000
CATHY A. CATTERSON, CLERK
U.S. COURT OF APPEALS
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHOMARI NAEEM SHUAIBE, aka ) NO. 99-55049
Felton Lee Guillory, )
) D.C. No. CV-95-01764-RAP
Plaintiff-Appellee, )
v. ) ORDER
JAMES GOMEZ , former Director,
California Department of
Corrections (CDC); G. BONNIE
GARIBAY, former Chief, Inmate
Appeals, CDC; JOHN M. RATELLE,
Warden; V. BLUESTEIN, Appeals
Examiner; MIKE YARBOROUGH,
Chief Deputy Warden (formerly,
Associate Warden); D. FELIX,
Correctional Counselor II,
CSP-LAC; D. LORENZEN,
Correctional Counselor I, CSP-LAC;
D. WHYTE, Correctional Counselor
I, CSP-LAC,
Defendants-Appellants.
ll a a
Before: KOZENSKI and THOMAS, Circuit Judges and RAWLINSON’,
District Judge
The full court was advised of the suggestion for rehearing en banc.
No active judge requested a vote on whether to rehear the matter en banc.
* The Honorable Johnnie B. Rawlinson, United States District Judge, District of
Nevada, sitting by designation.
=
-
2a
The petition for rehearing and motion for leave to file appendix
in support of petition for rehearing and suggestion for rehearing en banc are
DENIED.
APPENDIX B
3a
FILED
OCTOBER 19, 1999
Sn eee sy
CATHY A. CATTERSON, CLERK
U.S. COURT OF APPEALS
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHOMARI NAEEM SHUAIBE, aka
Felton Lee Guillory,
No. 99-55049
) D.C. No. CV-95-01764-RAP
4 Plaintiff-Appellee, )
v. ) MEMORANDUM’
)
: JAMES GOMEZ, former Director, )
a California Department of Corrections )
: (CDC); G. BONNIE GARIBAY, )
é former Chief, Inmate Appeals, CDC; _)
JOHN M. RATELLE, Warden; V. )
BLUESTEIN, Appeals Examiner; )
‘ MIKE YARBOROUGH, Chief Deputy )
a Warden (formerly, Associate Warden); )
; D. FELIX, Correctional Counselor II, __)
CSP-LAC; D. LORENZEN, )
Correctional CounselorI,CSP-LAC; _ )
D. WHYTE, Correctional Counselor I, )
CSP-LAC, )
)
; ___Defendants-Appellants. )
Appeal from the United States District Court
for the Central District of California
Richard A. Paez, District Judge, Presiding
Submitted August 6, 1999"
Pasadena, California
* This disposition is not appropriate for publication and may not be cited to or by the
courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
Leachate iets
** The panel unanimously finds this case suitable for decision without oral argument. See
Fed. R. App. P. 34(a)(2).
4a
Before: KOZINSKI and THOMAS, Circuit Judges and RAWLINSON”,
District Judge.
There was a disputed issue of material fact in this case, precluding
entry of summary judgment on the qualified immunity issue. See Collins v.
Jordan, 110 F.3d 1363, 1370 (9th Cir. 1997).
AFFIRMED.
2 EE SES
*** The Honorable Johnnie B. Rawlinson, United States District Judge, District of
Nevada, sitting by designation.
APPENDIX C
\
Sa
FILED
CLERK, U.S. DISTRICT COURT
SEPTEMBER 4, 1998
CENTRAL DISTRICT OF CALIFORNIA
BY DEPUTY
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA-WESTERN DIVISION
SHOMARI NAEEM SHUAIBE, ) Civil No. CV 95-1764-KMW (Mc)
aka FELTON LEE GUILLORY, )
) ORDER ADOPTING FINDINGS,
CONCLUSIONS AND
RECOMMENDATIONS OF UNITED
Plaintiff, )
)
) STATES MAGISTRATE JUDGE
)
)
)
V.
JAMES GOMEZ, Director of
Corrections, et al.,
Defendants. )
Pursuant to 28 US.C. § 636, the Court has reviewed the parties’
motions for summary judgment and papers submitted in support thereof and
in opposition thereto, and all other papers filed in this action, including the
attached Partial Report and Recommendation of United States Magistrate
Judge.
IT IS ORDERED that:
(1) the Partial Report and Recommendation of the Magistrate
Judge is approved and adopted;
(2) summary adjudication is granted in favor of the plaintiff
6a
and against the defendants on the ground the following issues are without
substantial controversy:
a
(a) the plaintiff has exhausted administrative remedies;
(b) the plaintiff's use of his religious name is an expression of his
religious faith;
(c) the defendants have violated and are violating the plaintiff's right
to the free exercise of his religion to the extent they have:
(i) denied the plaintiff the right to be identified by his
legal, religious name, and the plaintiff's committed name, in prison
computer records and in the plaintiff's central prison file;
(ii) denied the plaintiff the right to use identification and
privilege cards which identify the plaintiff by both his committed
name and his legal, religious name; and
(iii) denied the plaintiff the right to receive mail services,
visitation, medical care, canteen services, otherwise appropriate
deliveries of money or other items from non-prisoners, and all other
services and benefits to which the plaintiff would be otherwise
entitled, in the plaintiff's legal, religious name and his committed
name;
(3) the plaintiff's motion for summary judgment is otherwise denied;
7a
(4) summary adjudication is granted in favor of the defendants and
against the plaintiff on the ground the following issues are without
substantial controversy:
(a) the plaintiff may not sue the defendants for damages in their
official capacities;
(b) defendant Gomez is not liable for damages in his individual
Capacity;
(5) the defendants’ motion for summary judgment is otherwise
denied.
DATED: 9/2/98 ae
/S/
KIM M. WARDLAW
UNITED STATES DISTRICT JUDGE
APPENDIX D
Witenes ait REA Girone x
8a
FILED
CLERK, U.S. DISTRICT COURT
AUGUST 18, 1997
CENTRAL DISTRICT OF CALIFORNIA
BY DEPUTY
DANIEL E. LUNGREN, Attorney General
of the State of California
GEORGE WILLIAMSON, Chief Assistant
Attorney General
PETER J. SIGGINS, Senior Assistant
Attorney General
DARRELL L. LEPKOWSKY, Supervising
Deputy Attorney General
JANE CATHERINE MALICH, State Bar # 101012
Deputy Attorney General
300 South Spring Street, Fifth Floor
Los Angeles, California 90013
Telephone: (213) 897-2256
Attorneys for Defendants James Gomez, G. Bonnie Garibay, V. Bluestein’,
John M. Ratelle, Mike Yarborough, D. Felix, D. Lorenzen, and D. Whyte
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA-WESTERN DIVISION
SHOMARI NAEEM SHUAIBE, aka ) Case No.: CV 95-1764 (KMW)
FELTON LEE GUILLORY, ) (Mc)
9
Plaintiff, ) OPPOSITION TO PARTIAL
v. ) REPORT AND
) RECOMMENDATION RE:
JAMES GOMEZ, Director of Corrections; ) CROSS-MOTIONS FOR
G. BONNIE GARIBAY, Chief Appeals; ) SUMMARY JUDGMENT;
V. BLUESTEIN, Appeals Examiner; ) REQUEST FOR JUDICIAL
JOHN M. RATELLE, Warden; MIKE ) NOTICE; DECLARATIONS
YARBOROUGH, Associate Warden; D. )
FELIX, Correctional Counselor II; D.
LORENZEN, Correctional Counselor I;
)
)
D. WHYTE, Correctional Counselor I, )
)
Defendants.
| Defendants have filed a suggestion of death on the record respecting Mr. Bluestein.
9a
i tee ee
i DECLARATION OF WAGNER
Ht I, Larry Wagner, hereby declare and state:
| 1. Iam employed by the California Department of Corrections as
: the Acting Division Chief for the Information Systems Branch (ISB) of the
Evaluation, Compliance and Information Services Division. I have held this
position since June 26, 1997. Prior to that I was employed as a Senior
Programmey Analyst (Sup.) over several sections of LS.B. I have been
employed by the California Department of Corrections since June 1995. I
MN am making this declaration in my official capacity. I have personal
knowledge of the facts contained herein and, if called to testify, could and
would testify competently thereto.
| 2. Among the responsibilities of my position are supervision of
departmental staff responsible for planning, developing, implementing and
maintaining headquarters-based information systems and statistics systems.
! | Some of our systems are also “rolled out” to institutions state wide. The
department uses mainframes, minicomputers, and microcomputers for its
headquarters-based information technology projects. At the local,
institutional level, some institutions use personal computers to develop and
{ :
i maintain localized information systems which are not supported by the
| s
Information Services Branch.
10a
3. In addition to the information systems already in place, the
Department has embarked on a multi-year program to make inmate central
file information electronically available. Development of that project, the
Correctional Management Information System (CMIS), is being supervised
by a specially selected task force. The department will contract with outside
vendors to develop this. There is on-going litigation regarding this project.
The current anticipated start date is August 1, 1998. The expected
completion date is 11/30/00.
4. Atpresent, the Department is technologically unable to add
plaintiff's religious name to entries of his committed name and CDC number
in every applicable Departmental computer information system.
5. There is no one single prison computer and no one single prison
computer system. The Department of Corrections is organized into multiple
divisions. The Information Systems Branch provides and supports computer
systems and programs designed to track inmates’ locations and provide other
custodial information regarding individual inmates which are utilized by the
Institutions Division, Parole and Community Services Division and Health
Care Services Division of the Department. The Branch also provides and
supports other systems and programs not relevant to the instant complaint.
Various institutions may maintain local computers and data collection
Systems as well. The Department ‘of Corrections contracts with outside
lla
vendors to provide services such as community correctional facilities and
parole re-entry programs . Information about these outside vendor’s
information systems and record-keeping practices is not readily available.
6. The Offender Based Information System (OBIS) was
originally implemented in 1977. It is a mainframe system operating at the
Stephen P. Teale Data Center. It is used primarily by Case Records staff to
record inmate commitments and movements and process the work time
credits of inmates who participate in the Inmate Work/Training Incentive
Program in order to derive an inmate’s sentence. Plaintiff's religious name
is listed on the “Also Committed As” (ACA’s) alias tracking information in
OBIS. A total of five ACA’s can be entered for each inmate listed in OBIS.
A user must request to see an inmate’s ACA information as the Department
relies on the commitment name and inmate’s CDC number as primary
identifiers. :
7. The Department’s Distributed Data Processing System (DDPS), a
conglomeration of other systems, does not currently track aliases. The
DDPS is located in all institutions and the central office. Minicomputers are
used for the DDPS. Some of the subsystems of DDPS utilize or store inmate
names; some do not. The subsystems include automated conteen sales and
inventory, visiting information system, inmate job assignments, inmate
medical alert, inmate restitution fine collection system, inmate roster
12a
classification system, inmate roster movement system, inmate trust
accounting system, and interim transportation scheduling systems. Of those
systems which are programmed to accept or track inmate names, none
currently accept or track inmates’ ACA’s.
8. Reprogramming the DDPS system itself would be a major
undertaking, if indeed it could be accomplished without endangering
institutional and departmental security and disrupting departmental
operations. The project could take from two to three years to complete. It
is not possible to estimate the cost of reprogramming DDPS at this time
because too may variables are unknown. If it is reprogrammed, headquarters
and institutional staff would have to be retrained to use the new programs, at
additional expense and loss of staff time.
9. Various other, PC based systems are maintained by I.S.B.
Fourteen of these systems contain inmates’ names among the data stored.
Of these, only the Critical Case Management System has the capacity to
accept, and does accept, inmate aliases and ACA’s. It allows for an infinite
number of aliases to be entered. It is uncertain whether technical barriers or
roadblocks, suclras a limit on the number of characters which can be entered
into a given field or limited memory capacity or other technological
problems might thwart reprogramming attempts. Assuming it is possible to
reprogram them, a very rough estimate of the time that it would take to
i
13a
reprogram these thirteen other smaller systems to accept religious name
ACA’s would be approximately six weeks per system. This effort would
require two to three staff members at a cost of approximately $20,000 to
$25,000 per system.
10. Most of the thirteen other systems containing inmate names are
used by the Institutions Division of the Department and its thirty-two
prisons. The newest system, the Population Psychiatric Rolodex, is not on
line yet. When it does go on line, it will be utilized by only approximately
seven or eight institutions because the other institutions have built their own.
local systems to track this information.
11. There is no centralized inventory of computers or computer
systems programmed and utilized by individual Departmental institutions or
Departmental contractors. Since the number of computers and programs is
unknown, it is difficult to estimate how much time would have to be devoted
to reprogram local computers to accept religious name ACA’s if they do not
already do so.
12. The Parole and Community Services Division (P&CSD) of the
Department of Corrections operates several computer systems independently
of other systems. The largest of these, the Interim Parolee Tracking System,
stores a parolees’ aliases and monikers in a separate table which is
separately accessed. It allows for an infinite number of aliases an monikers
14a
to be entered. Another system maintained by P&CSD contains information
compiled from the 64 Interim Parolee Tracking System databases. Parolees’
aliases and monikers can be found in that system. They can also be found in’
the Parolee-At-Large system. The other three systems presently maintained
by the P&CSD do not contain aliases and would have to be reprogrammed,
if reprogramming is possible, to accept them.
13. The Department relies upon an inmate’s commitment name and
his California Department of Corrections (CDC) number for identification
purposes. All of the Department’s programming and systems have been
developed with the understanding that an inmate’s commitment name will
be linked to his CDC number and vice versa. The overwhelming majority of
the systems which do accept ACA’s as AKA’s rely on the inmates’s
commitment name and his CDC number as the way to access information
about that particular inmate.
14. The Departments’s limited ability to enter and store AKA’s and
ACA'’s is religiously neutral. An inmate who marries and adopts his or her
spouse's name is still designated by the commitment name in the computer,
with the married name as an AKA. Inmates who have legally changed their
names for other non-religious and non-family reasons are afforded the same
treatment as all other inmates who have legal name changes. AKA’s or
lSa
ACA’s are noted when the system can accept the additional data. They are
not noted when the system cannot accept the additional data.
15. The Department would be adversely affected by shifting its scarce’
information systems resources from basic operations to rebuilding a myriad
of system to accept additional name changes.
16. For example, the timely conversation of Departmental data bases
to solve the “year 2000 problem” could be sacrificed. The “year 2000
problem” refers to computer programs which utilize, require or recognize
just the last two digits of a year rather than the entire year - - for example,
8/18/97 or ‘97 rather than 8/18/1997 or 1997. These programs have no way
of distinguishing the date 2001 from the date 1901. The Department’s
inability to devote its full complement of scarce resources to arriving at a
timely solution to the “year 2000 problem” would lead to numerous errors in
calculating time periods for inmate hearing or parole dates. Such errors
would be both unacceptable and unavoidable.
17. In my view, it would cause immeasurable harm to the Department
and to inmates and parolees were Departmental resources diverted from
tackling exigent issues like the “year 2000 program” and from routine
operations so that the Department could expand the number of data bases
and systems which permit or accept the addition of inmate religious names,
ACA’s and AKA’s.
16a
I declare under penalty of perjury and the laws of the United States
that the forgoing is true and correct. Executed he 14th Day of August,
1997 at Sacramento, California.
/S/
Larry Wagner
APPENDIX E
17a
FILED
CLERK U.S. DISTRICT COURT
JULY 24, 1997
CENTRAL DISTRICT OF CALIFORNIA
BY DEPUTY
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA-WESTERN DIVISION
SHOMARI NAEEM SHUAIBE, ) Civil No.: CV 95-1764-KMW (Mc)
aka FELTON LEE GUILLORY, ) .
) PARTIAL REPORT AND
Plaintiff, ) RECOMMENDATION OF
v. ) UNITED STATES MAGISTRATE
: ) JUDGE IN A CIVIL RIGHTS CASE
JAMES GOMEZ, Director of
Corrections, et al.,
)
)
)
Defendants. )
)
This Partial Report and Recommendation is submitted to the
Honorable Kim M. Wardlaw, United States District Judge, pursuant to 28
U.S.C. § 636 (b) (1) (B) and General Order 194 of the United States District
Court for the Central District of California.
BACKGROUND
The pro se plaintiff, a state prisoner, filed this civil rights action
pursuant to 42 U.S.C. § 1983, claiming that California prison officials have
violated his right to the free exercise of his religion under the First
Amendment and the California Constitution.
Tan iM lit
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The defendants are: James Gomez, the Director of the California Department
of Corrections (“CDC”); G. Bonnie Garibay, CDC Chief, Inmate Appeals;
CDC Appeals Examiner V. Bluestein;' John M. Ratelle, Warden at the
California State Prison, Los Angeles County (Lancaster) (“CSP-Los Angeles
County”); Mike Yarborough, Associate Warden at CSP-Los Angeles
County; and CSP-Los Angeles County Correctional Counselors D. Felix, D.
Lorenzen and D. Whyte.
The plaintiff was originally convicted of murder and sentenced to the
state prison under the name Felton Lee Guillory (“the committed name”). In
March of 1992, a California Superior Court allowed the plaintiff to change
his name to Shomari Naeem Shuaibe (“the religious name”). In his
unverified complaint, the plaintiff alleges that, in 1994 while at CSP-Los
Angeles County, prison officials refused to accord the plaintiff privileges,
services, and medical attention under his religious name. The plaintiff
claims that he filed a “602” inmate appeal with defendant Whyte, stating
that the plaintiff is Muslim, and oaneaiie that the plaintiff be allowed
“visits, medical care, ‘R&R services,’ canteen, I.D. cards and
correspondence with the Administration in [his] Religious, Court ordered
name.” The plaintiff also allegedly requested that his religious name be
placed in his central file and in the iat computer. The plaintiff claims: \
that defendant Whyte denied this appeal.
1 According to the defendants, defendant Bluestein died after the filing of this action.
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The plaintiff alleges that defendants Felix and Yarborough denied his
appeal at the next level of review. Defendant Ratelle allegedly approved the
denial of the plaintiff's appeal. Defendants Bluestein and Garibay allegedly °
denied the plaintiff's appeal at the director’s level. Defendant Gomez is sued
because he is allegedly responsible for the promulgation end enforcement of
CDC rules and for the behavior of his subordinates. The plaintiff seeks
injunctive and declaratory relief, and damages. Attached to the complaint
are copies of documents concerning the alleged appeals, as well as other
documents allegedly evidencing the plaintiff's name change.
On June 21, 1995, the defendants filed an answer. On December 10,
1996, the defendants filed a motion for summary judgment. On December
17, 1996, the court issued and Order re Plaintiff's Response to Summary
Judgment Motion, advising the plaintiff of the requirements of Rule 56 of
- the Federal Rules of Civil Procedure, and of his need to respond to the
defendants’ motion by presenting evidence setting forth specific facts
showing the existence of a genuine issue for trial.” On January 16,1997, the
court received from the plaintiff a motion for summary judgment. On
January 16, 1997, the court ordered the plaintiff's motion taken off calendar
as untimely. In the meantime, however, on January 14, 1997, the defendants
filed an opposition to the plaintiffs motion for summary judgment. On
2 See Klingele v. Eikenberry, 849 F.2d 409, 411-412 9" Cir. (1988).
3 |
—————ooOOo
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—January 27, 1997, the plaintiff filed an opposition to the defendants’ motion
for summary judgment.
On February 11, 1997, the plaintiff filed an ex parte motion for leave
to have his summary judgment motion placed back on the court’s calendar,
asserting that he had mailed his motion for summary judgment on the last
day of the motion cut-off deadline. On February 12, 1997, the court denied
the ex parte motion on the ground that the plaintiff's proof failed to establish
that he had timely mailed his motion for summary judgment. On March 19,
1997, the plaintiff filed a second ex parte motion for leave to have his
summary judgment motion placed back on calendar. .
In the meantime, at least two documents mailed to the plaintiff by the
Clerk of the Court and addressed to Shomari N. Shuaibe, the plaintiff's
religious name, were returned undelivered, on the ground of “Unable to
Locate by CDC Number - - Name and CDC# Do Not Match.” One.of these
documents was the court’s order of December 17, 1996 advising the plaintiff
of the requirements of Rule 56 of the Federal Rules of Civil Procedure and
of his need to respond to the defendants’ motion by presenting evidence
setting forth specific facts showing the existence of a genuine issue for trial.
On April 4, 1997, the court issued an order granting the defendants leave to
file an opposition to the plaintiff's ex parte motion. Also on April 4, 1997,
the court issued another order advising the plaintiff of the requirements of
Rule 56 of the Federal Rules of Civil Procedure, and of his need to respond
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to the defendants’ motion by presenting evidence setting forth specific facts
showing the existence of a genuine issue for trial. On April 23, 1997, the
defendants filed a statement of non-opposition to the plaintiff's second ex
parte motion for leave to have his motion for summary judgment placed
back on calendar. On May 2, 1997, the plaintiff filed a supplemental
opposition to the defendants’ motion for summary judgment.
DISCUSSION
I. The Plaintiff's Motion for Summary Judgment Was Timely
Filed and Should Be Considered by the Court.
The parties do not dispute that the plaintiff's motion for a
judgment was sent from the prison mailroom on December 16, 1996, the
first court day after the motion cut-off date (which was a Sunday).
Therefore, the court deems the plaintiff's motion for summary judgment
timely filed. See Houston v. Lack, 487 U.S. 266, 276, 108 S.Ct. 2379, 10!
L.Ed.2d 245 (1988); Faile v. Upjohn Co., 988 F.2d 985, 988 (9" Cir. 1993).
II. Summary of Parties’ Contentions
The defendants contend: (1) the plaintiff has not produced
evidence to show a violation of his rights under the Religious Freedom
Restoration Act,° because the plaintiff has not shown that his ie change
was a religious practice central to his religion; (2) the plaintiff has no
constitutional right to substitute his religious name for his committed name
3 42 U.S.C. § 2000bb et seq.
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in prison records; (3) the Eleventh Amendment bars the plaintiff's suit for
damages against the defendants in their official capacities; (4) the plaintiff
has no damage remedy under the Religious Freedom Restoration Act; (5) the
plaintiff has failed to plead specific acts showing that the defendants caused
the alleged constitutional violation; (6) the plaintiff has failed to exhaust
remedies as required by the Prison Litigation Reform Act of 1995;* (7) the
plaintiff has shown no entitlement of injunctive relief; (8) the plaintiff has
failed to plead a cognizable conspiracy claim; (9) the plaintiff has failed to
plead compliance with the filing fee requirements of the Prison Litigation
Reform Act; (10) the defendants cannot be held liable on a theory of
respondeat superior; (11) the defendants are shielded by qualified immunity;
and (12) any supplemental state law claims should be dismissed. In their
opposition to the plaintiff's motion for summary judgment, the defendants
argue: (1) the plaintiff has not show compliance with the exhaustion
requirements of the Prison Litigation Reform Act; and (2) the defendants are
protected by qualified immunity.
In his motion for summary judgment and his opposition to the
defendants’ motion, the plaintiff contends that: (1) the plaintiff has
exhausted his sdeaielianaies remedies; (2) the plaintiff's use of his religious
name was and is an expression of his religious faith; and (3) the defendants
have unconstitutionally denied the plaintiff the opportunity to use both his
4 Pub. L. No. 101-134, 110 Stat. 1321 (eff. Apr. 26, 1996).
6
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religious and his committed names. The plaintiff requests injunctive relief
in the form of an order requiring the defendants to permit the plaintiff: (1) to
use both his religious and his committed names on identification and
privilege cards; (2) to receive visits, medical attention and food from the
canteen in his religious name; and (3) to receive articles from the “R & R”
and money from home in his religious name. The plaintiff further requests
an order requiring the defendants to enter the plaintiff’s religious name in
the prison computer and in his central file.
In their opposition to the plaintiff's cross-motion for summary
judgment, the defendants ask the court to take judicial notice of the evidence
filed by the defendants in support of their motion for summary judgment.
Because it would be a waste of the resources and time of the court and the
parties to require the defendants to resubmit the same evidence in their
opposition to the plaintiff's cross-motion, the court takes judicial notice of
these documents. See Fed. R. Evid. 201. In the interest of fairness, the court
also takes judicial notice of evidence submitted by the plaintiff in his
opposition to the defendants’ motion for summary judgment, for purposes of
assessing the merits of the plaintiff's cross-motion for summary judgment.
Ill. Stan Vv
Summary judgment is appropriate if the evidence, viewed in the
light most favorable to the nonmoving party; demonstrates that there is no
genuine issue of material fact and that the moving party is entitled to
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judgment as a matter of law. Fed. R. Civ. P. 56(c). The party moving for
summary judgment bears the initial burden of offering proof of the absence
of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265, 274 (1986). “[T]he burden
on the moving party may be discharged by ‘showing’ - - that is, pointing out
to the district court - - that there is an absence of evidence to support the
nonmoving party’s case.” Id. at 325, 106 S.Ct. at 2554, 91 L.Ed.2d at 275.
Once this burden is met, the party opposing the motion is required to go
beyond the pleadings and, by the party’s own affidavits or by other evidence,
designate “specific facts showing that there is a genuine issue for trial.”
Fed. R. Civ. P. 56(e); Hansen v. United States, 7 F.3d 137, 138 (9 Cir.
1993). The party opposing the motion must submit evidence sufficient to
establish the elements that are essential to that party’s case, and for which
that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477
U.S. at 322, 106 S.Ct. at 2552, 91 L.Ed.2d at 273. To show the existence of
a genuine issue, the plaintiff “ ‘must produce at least some significant
probative evidence tending to support the complaint.’ ” Smolen v. Deloitte,
Haskins & Sells, 921 F.2d 959, 963 (9" Cir. 1990) (citation omitted). \
Only admissible evidence may be considered by the court in ruling
on a motion for summary judgment. Beyene v. Coleman Security Services,
Inc., 854 F.2d 1179, 1181-1182 (9" Cir. 1988). A motion cannot be
supported or opposed by the use of conclusory declarations unsupported by
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factual allegations. See Taylor v. List, 880 F.2d 1040, 1045 (9" Cir. 1989).
The inferences drawn from the enliilylie facts must be construed in the
light most favorable to the party opposing the motion. Valandingham v.
Bojorquez, 866 F.2d 1135, 1137 (9" Cir. 1989). Where different ultimate
inferences can be drawn, summary judgment is inappropriate. Sankovich v.
Life Ins. Co. of North America, 638 F.2d 136, 140 (9" Cir. 1981).
A factual dispute is “genuine” only if there is a sufficient
evidentiary basis ae which a reasonable jury could return a verdict for the
nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106
S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is “material” only if it
might affect the outcome of the lawsuit under governing law. Id. at 248.
In the event the court does not enter summary judgment on the
whole case, Rule 56(d) of the Federal Rules of Civil Procedure authorizes
the court to ascertain from the record what material facts exist without
substantial controversy, and to issue an order specifying the facts that appear
without substantial controversy. See also Rule 7.14.4, Local Rules of
Practice of the United States District Court for the Central District of
California.
IV. i i xhausted A rative
Remedies.
Under the Prison Litigation Reform Act of 1995 (“PLRA”), signed
into law on April 26, 1996, a prisoner plaintiff is required to exhaust
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available administrative remedies prior to see seins suit for violation of his
civil rights. See 42 U.S.C. § 1997e(a) (as amended). The defendants
contend the plaintiff has not satisfied this exhaustion requirement because he
failed to comply with the presentment of claim procedures of the California
Tort Claims Act, Cal. Gov’t Code § 905.2.
This action was filed over a year before the effective date of the
PLRA. The exhaustion requirements of the PLRA should not be applied
retroactively. See Wright v. Morris, 111 F.3d 414, 423 (6" Cir. 1997), pet.
for cert. filed, 65 U.S.L.W. 3783 (May 8, 1997) (PLRA’s exhaustion
requirements inapplicable to appeals pending on date of enactment). In any
event, the plaintiff has shown compliance with the administrative remedies
procedure of the California Department of Corrections (Complaint, Exhibit
A; Answer, {Jf 3, 4, 8, and 9).
Even if the PLRA’s exhaustion requirements applied to the
plaintiff's claim, those requirements would not compel the plaintiff to
“exhaust” state tort claims act remedies.. Congress clearly intended to
require exhaustion of prison grievance procedures. See Report on the
Activities of the Committee on the Judiciary, H RRep. 104-879 (January 2,
1997) (PLRA “requires prisoners to exhaust the administrative remedies
established by the corrections system before they may file a lawsuit in
federal court”); see also 141 Cong. Rec. S7498-01, at $7527 (remarks of
Senator Kyl) (noting that many prisoners seek relief for matters as to which
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the “prison grievance system” supplies an adequate remedy). There is no
indication Congress intended legislatively to overrule Felder v. Casey, 487
U.S. 131, 140-141, 108 S.Ct. 2302, 101 L.Ed.2d 123 (1988) (holding that
notice-of-claim statutes are inapplicable to federal court § 1983 litigation).
Therefore, summary adjudication should be granted in favor of the plaintiff
on the issue of exhaustion of administrative remedies. See Fed. R. Civ. P.
56(d); Rule 7.14.4, Local Rules of Practice of the United States District
Court for the Central District of California.
Vv. Plaintiffs Alleged Non-Compliance with the Filing Fee Provisions
May 22, 2000 of the PLRA Does Not Justify a Grant of Summary
Jud for th .
The defendants offer no justification for their apparent position
that the plaintiff's alleged failure to comply with the filing fee requirements
of the PLRA warrants a grant of summary judgment in their favor. The
plaintiff's asserted non-payment of the fee does not demonstrate the absence
of a genuine issue for trial within the meaning of Fed. R. Civ. P. 56.
Whether the court is or is not collecting its filing fee is irrelevant to the issue
whether summary judgment for the defendants is appropriate.
VI. Summary Adjudication Should Be Granted in Favor of the
Pla the W. of th
Expression of the Plaintiffs Religious Faith.
a
The defendants claim that the plaintiff has not shown that denying
the plaintiff the ability to use his religious name interferes with a tenet or
belief central to his faith, as required by the Religious Freedom Restoration
Act, 42 U.S.C. § 2000bb et seg. (“RFRA”). See Bryant v. Gomez, 46 F.3d
948, 949 (9" Cir. 1995). * On June 25, 1997, the Supreme Court ruled
RFRA unconstitutional. City of Boerne v. Flores, U.S. __, 65 U.S.L.W.
4612, 1997 WL 345322 (June 25, 1997). Therefore, RFRA is inapplicable.
The Ninth Circuit has recognized that the adoption of a religious
name by a member of the Muslim faith may be considered to be an
expression of religious faith. See Malik v. Brown, 16 F.3d 330, 335 (9" Cir.
1994) (Malik I), mandate recalled and opinion supplemented, 65 F.3d 148
(9 Cir. 1995) (Malik II); see also Malik y. Brown, 71 F.3d 724, 727 (9" Cir.
1995) (Malik III) (“In 1987, the Fifth Circuit recognized that ‘[t]he adoption
of Muslim names by inmates practicing that religion is generally recognized
to be an exercise of both first amendment speech and religious freedom
[citation]”). The plaintiff states in his sworn opposition that the use of his
religious name reflects the attributes of God and is part of his religious
| ry
5 Congress enacted RFRA in response to the Supreme Court’s decision in Employment
| | Division v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L. Ed.2d 876 (1990), a free exercise
case which, according to Congress, “virtually eliminated the requirement that the government
| justify burdens on religious exercise imposed by laws neutral toward religion. . . .” 42 U.S.C.
i § 2000bb(a). RFRA’s declared purpose was to “restore the compelling state interest test as
| set forth in Sherbert v. Verner, 374 U.S. 298, 83 S.Ct. 1790, 10 L.Ed.2d. 965 (1963) and
| Wisconsin v. Yoder , 406 U.S. 205, 92 S.Ct. 1526, ee
t application in all cases where free exercise of religion is substantially burdened . . . .” 42
| U.S.C. § 2000bb(b).
29a
experience and belief (Plaintiff's Opposition, pp. 5-6). The defendants rely
upon Warden Yarborough’s declaration testimony that the Muslim chaplain
at the prison has never informed Yarborough that the Muslim faith requires ;
members to change their names as a central tenet of their faith, and has |
never informed Yarborough that Muslim inmates must have their religious
names on their prison identification cards (Declaration of M. Yarborough, J
10). The alleged fact that the Muslim chaplain has not so informed
Yarborough is not probative of whether the plaintiff's use of his legal,
religious name is an expression of his religious faith. Therefore, there is no
evidence to controvert the plaintiff's sworn statement that the use of his
legal, religious name is an expression of his faith. Summary adjudication
should be granted in favor of the plaintiff and against the defendants on the
issue that the plaintiff's use of his religious name is protected religious
expression.
VII. A Genuine Issue of Fact Exists as to Whether the Plaintiff Sought
to Require Prison Officials to Use Only His Religious Name or to Use
is Religious and His Committed Names; Therefore, Summa
Ju is ropriate on the Plaintiffs’ Claim for Damages.
In Malik I, the Court of Appeals for the Ninth Circuit held that a
prisoner’s First Amendment rights were violated when prison officials
disciplined the plaintiff for using his religious name on incoming and
outgoing correspondence:
pe
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“(W]e agree that the state has a legitimate interest in continued use of
an inmate’s committed name. But we see no legitimate penological
interest in preventing Malik from using both his religious name and
his committed names.
Malik’s adopting of a Muslim name is an expression of his religious
faith. He is entitled to use both his religious and his committed names
on correspondence, on legal documents, and in his daily affairs.
Malik v. Brown, 16 F.3d at 334, 335.
Under Malik I, then, the plaintiff has a right to use both his
committed name and his legal, religious “in his daily affairs.” Applying the
reasonableness test set forth in Turner v. Safley, 482 U.S. 78, 107 S.Ct.
2254, 96 L.Ed.2d 64 (1987) and O’Lone v. Estate of Shabazz, 482 U.S. 342,
348, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987), the court in Malik I saw no
legitimate penological interest in preventing Malik from using both his
religrous and committed names. Malik v. Brown, 16 F.3d at 334. However,
Malik I does not support the proposition that a prisoner has a right to use
only his religious, legal name as identification in prison. See also Fawaad v.
Jones, 81 F.3d 1084, 1087 (11™ Cir. 1996) (prison policy requiring Islamic
inmate to use both religious name and committed name on incoming and
outgoing mail did not violate prisoner’s First Amendment rights).
In his verified memorandum of points and authorities, the plaintiff
14
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\
asserts that, when he appears before the prison classification committee, he
is identified by the name on his central file, which is his committed name
only (Plaintiff's Memorandum of Points and Authorities, p. 12). The
plaintiff further asserts that, when he is asked to identify himself to receive
personal property, or to obtain medical attention, canteen visits or Visitation,
_ he must present his privilege card and identification card, both of which
contain only committed name (id). The plaintiff claims he is prevented from
conducting his daily affairs “in both of his names” (id.). The defendants
have submitted no evidence to controvert these sworn statements.°
According to the defendants, the plaintiff's initial claim to prison
officials and in prison administrative proceeding is that he is entitled under
the First Amendment to require the defendants to discontinue the use of the
plaintiff's committed name entirely. If this were a correct characterization
of the plaintiff's claim, nothing in Malik would support such a claim.
Certainly prison officials are entitled, in the interest of security, to maintain
records on a prisoner identifying him by the name under which he was
committed. See Fawaad v. Jones, 81 F.3d at 1087. ~
The defendants who denied the plaintiff's administrative appeals
state in their declarations that the plaintiff sought to have his committed -
6 The defendants’ argument that a subsequent change in prison policy now permits.
inmates to use new legal names for visiting and mail purposes is irrelevant to the plaintiff's
claim for damages for alleged denial of these services prior to the change, and is irrelevant to
the plaintiff's claim that he was denied other services and benefits.
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name “replaced with” his religious name. See Declaration of D. Felix, ¥ 2;
Declaration of D. Lorenzen 4 2; Declaration of J.M. Ratelle, 4 2; Declaration
of M. Yarborough, § 2.’ The actual administrative appeal documents,
however, do not indicate unambiguously that the plaintiff sought complete
“replacement” of his committed name with his legal, religious name. In his
initial appeal, the plaintiff complained that he was being “forced to use a
religiously-offensive name” to receive privileges such as family visits and
use of the canteen (Complaint, Exhibit A; Defendants’ Exhibit 6). The
appeal stated that the plaintiffs identification card contained “only” the
offensive committed name. The plaintiff requested that he be issued an
_ identification card and a privilege card that “reflected” his legal name, and
that his legal name be “reflected” on his central file and in the prison
computer records. The plaintiff did not request that his committed name be
“replaced by” his religious name. The plaintiff signed various appeals using
first his legal, religious name, followed by the plaintiff's commitment name,
listed as an “AKA.”
In denying the plaintiff's administrative appeals, the defendants
relied upon a CDC Departmental Operations Manual (“DOM”) provision.
As of 1994, DOM section 73010.6.1 provided that, where an inmate
obtained a legal name change, the new legal name was to be recorded on
7 The court cannot consider the Declaration of defendant G.B. Garibay because is it not
executed. “i
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prison records as “ACA” (“also committed as”) (Defendants’ Motion,
Exhibit “C” to Declaration of Malich). DOM section 73010.6.1 also
provided: “Records of inmates who subsequently receive a court-ordered
legal name change shall continue to use the commitment name as provided
above” (id.). In 1995, this provision was amended to state that an inmate’s
new legal name may be used by the inmate for mail and visiting purposes
(Defendants’ Motion, Exhibit “D” to Declaration of Malich). Although the
amended provision does not state that both names must be used, it appears
the defendants have interpreted this provision to mean that the inmate can
have his new legal name listed as an “ACA” for purposes of maitand-
visiting (see Declaration of M. Yarborough, §j 9). yl
The DOM provision, even as amended, does not indicate the new
name may be used on identification cards or for the purposes of obtaining
other prison benefits and services as the plaintiff requests. In any event, the
record shows that, in 1994, the defendants relied upon the original version of
this DOM section to deny the plaintiff the ability to us his legal, religious
name to obtain benefits and services.
The administrative appeals documents are somewhat ambiguous
as to whether the plaintiff sought to have his religious name replace his
committed name, or merely wanted to be able to use both names. In his
response to the plaintiff's appeal, defendant Whyte stated: “The legal
paperwork from the Superior Court changing your name is in file but you
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were committed under Guillory and you will remain Guillory while in CDC”
(Complaint, Exhibit A; Defendants’ Exhibit 6). At the first formal level of
review, defendant Lorenzen responded: “Current CDC policy dictates that
the name under which you are committed is the name under which you will
be identified with by [sic] the California Department of Corrections. All
other names used either prior to or subsequent to your incarceration will be
listed in your C-File as AKA’s” (id.). Defendant Warden Ratelle denied the
plaintiff's appeal on the basis of DOM section 73010.6.1, stating that
records of inmates who receive a court-ordered legal name change
subsequent to incarceration would continue to use the commitment name,
and the new legal name would be recorded as “also known as” (AKA)”
(Complaint, Exhibit A).*
Defendants Bluestein and Garibay, reviewing the appeal at the
CDC level, characterized the plaintiff's claim as a claim that the CDC
“change its records so that [the plaintiff's ] legally changed name . . . is used
in CDC files and documents” (id.). Bluestein and Garibay denied the
plaintiffs’ appeal on the ground that plaintiff did not “provide substantiation
of his claim that his court-ordered legal name should be used in CDC
documents” (id.)
8 As noted above, in their answer, the defendants admitted that the plaintiff's various ~
-appeals were denied (Answer , {ff 3, 4, 8, and 9), and did not deny the accuracy of the appeals
documents attached as exhibits to the complaint.
18
3Sa
Defendant Whyte states in his declaration that he was the
plaintiff's correctional counselor at the time the plaintiff filed his appeal,
and that he spoke personally with the plaintiff (Declaration of D. Whyte, 4
2). According to Whyte, the plaintiff did not want his religious name listed
as an “also committed as” appellation, and did not want his committed name
to appear on any CDC or prison documents (Declaration of D.Whyte, 2)
There is evidence to controvert this statement. The plaintiff
contends that he did not and does not want the defendants to discontinue the
use of the plaintiff's committed name entirely. The plaintiff explains that he-
wants his legal, religious name to be reflected on his identification and
privilege cards, and in his wind file “along with the commitment name if
the Government insists on that” (see Plaintiff's Opposition, pp. 4, 8;
Plaintiff's Supplemental Opposition, pp. 4, 8).
A genuine issue of fact exists as to whether, in the period of time
from the beginning of this dispute through the time of the plaintiffs
administrative appeals, the plaintiff requested that his legal, religious name
be used in addition to, rather than as a replacement for, his commitment
name. In their opposition to the plaintiff's motion for summary judgment,
the defendants acknowledged the existence of this factual issue, arguing that
Whyte’s declaration created a genuine issue of fact concerning the nature of
the plaintiffs request. If the plaintiff did request that he be able to access
prison services using both names, and if the defendants denied this request,
19
aie all
ee eee oe
36a
then, subject to application of the doctrine of qualified immunity (discussed
below), the plaintiff could show a violation of his right to the free exercise
of his religion. An almost identical factual dispute caused the Ninth
Circuit’s remand in Malik I. See Malik v Brown, 16 F.3d at 334-335.
_ Therefore, both the plaintiff's motion for summary judgment and the
defendants’ motion for summary judgment should be denied on this issue.
VIII. The Existence of a Genuine Issue of Fact Concerning the Nature of
the Plaintiff's Claim Precludes Application of the Doctrine of Quali
Immunity on this Motion.
“The qualified immunity test requires a two part analysis: ‘(1)
Was the law governing the official’s conduct clearly established? (2) Under
that law, could a reasonable officer have believed the conduct was lawful?”
Schroeder v. McDonald, 55 F.3d 454, 461 (9" Cir. 1995); See Act
Up!/Portland v. Bagley, 988 F.2d 868, 871 (9" Cir. 1993). Qualified
immunity does not protect state officials from liability for injunctive relief.
See Malik v. Brown, 16 F.3d at 335 n. 4.
Malik I was decided approximately a month before the plaintiff
filed his initial administrative appeal. The Ninth Circuit subsequently
visited the issue of the applicability of qualified immunity in that case . In
Malik III, a 1995 case, the court reviewed the law for the past sixteen years,
and held that, for purposes of qualified immunity analysis, and inmate’s
First Amendment right in “using new his new, legal name (at least in
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conjunction with his committed name)” was clearly established in 1990
when Malik was disciplined. Malil: v. Brown, 71 F.3d at 729-739.
Tellingly, the law canvassed by the circuit was not limited to cases
replicating the facts of Malik. For example, the court cited Ali v. Dixon,
912 F.2d 86 (4" Cir. 1990). In Ali, prison officials modified the visitors’ list
to reflect the prisoner-plaintiff’s religious and committed names, and added
his new name to the mailroom list. However, the plaintiff alleged, among
other things, that the new name was not added to his prison jacket or trust
fund card. The court reversed a grant of summary judgment for the
defendants, ruling, inter alia, that if the plaintiff had been forced to use only
his old religiously offensive name to obtain access to his trust account or
other benefits, his first amendment rights had been violated. Id. at 90.
The court denied qualified immunity to the defendants in Malik III
on the ground it would have been unreasonable for them to have denied
Malik the right to use both his religious and his committed names for mail
purposes. It would have been similarly unreasonable for the defendants here
to deny the plaintiff the right to obtain services such as medical attention,
visitation and canteen privileges in both names.
The brief for the defendants in this action laments the fact that no
petition for rehearing en banc was filed in Malik II, and theorizes that “the
law may not have been clearly established as the majority in Malik II [sic]
believed” (Defendants’ Memorandum of Points and Authorities, pp. 13-14
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and fn. 7). The defendants also rely upon the dissent in Malik Il]
(Defendants’ Opposition to Plaintiff's Motion for Summary Judgment, p. 8).
Malik I and Malik II] compel the conclusion that it was “clearly established” |
law, in 1994 when the alleged events in this action occurred, that prison
officials could not constitutionally deny an inmate the right to use his
religious, legal name, in addition to his committed name, in order to obtain
prison services or benefits.
However, the law Malik III acknowledged as “clearly established”
did not include a prisoner’s right to use only his religious name. As
discussed above, a genuine issue of fact exists as to whether the plaintiff
requested that he be allowed to use his legal, religious name in addition to,
as opposed to in place of, his committed name, Therefore, summary
judgment is inappropriate on the issue of qualified immunity.
IX. The Plaintiff Is Entitled to the Prospective Relief of Using His
Legal, Religious Name in Addition to His Committed Name.
As discussed above, a genuine issue of fact exists as to whether
the plaintiff requested that prison officials substitute his religious name for
his committed name, or whether he requested that prison officials allow him
to use his religious name in addition to his committed name. This issue of
fact is relevant to the issues of liability for damages and qualified immunity.
However, regardless of what the plaintiff requested in 1994, it is undisputed
22
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that, at present, the plaintiff does not seek substitution of his religious name
for his committed name. Rather, the plaintiff seeks to be able to use his
legal, religious name, as well as his committed name, on his identification
card and privilege card, to receive mail, services and benefits in his religious
name as well as his committed name, and to have his religious name added
to the prison computer and his central file (see Plaintiff's Opposition, p. 4).
The plaintiff does not claim CDC files should be altered so as to reflect his
religious name as his principal name, rather than as an “ACA.” The
defendants do not controvert the plaintiff's statements that, at present, he
seeks this prospective relief.
The defendants argue that the plaintiff has not proffered evidence
showings his entitlement to injunctive or declaratory relief, because: (1) the
plaintiff has not demonstrated his constitutional salen have been violated;
(2) the plaintiff has not “made a convincing case” of a threat of any future
violation; and (3) there is no ongoing substantial controversy between the
parties.
The defendants have not offered evidence of any legitimate
penological reason why the plaintiff should not be allowed to use his
religious name as well as his decielaned name. The defendants’ argument
that changing their records to reflect the plaintiff's legal, religious name
would “wreak havoc” is based upon a one-page “fact sheet” listing statistical
information about the California Department of Corrections, which is
23
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inadmissible, being purportedly authenticated by defendants’ counsel, who
tdhoer states the basis for her personal knowledge about the document nor
attests that the exhibit is a true and correct copy (Declaration of Malich,
Exhibit E). Although defendant Ratelle states in his declaration that CDC
computers are not daiainid to accept more than one committed name (see
Declaration of J.M. Ratelle, | 8), the plaintiff does not request that his
committed name be eliminated, and in any event the CDC’s own
departmental manual (DOM section 73010.6.1) requires that a prisoner’s
legal name change be reflected as an “ACA” on prison records.”
~The defendants also claim “safety and security considerations”
justify their behavior, claiming that one CDC inmate recently was able to
change his name to that of another for harassment purposes, and that inmate
name changes can generate errors resulting in improper release or inability
to make security checks (Deceleration of J.M. Ratelle, 49). These
conclusory and speculative statements do not justify the defendants’ refusal
to allow the plaintiff to use both names as required by Malik I. See also
Barrett v. Commonwealth of Virginia, 689 F.2d 498, 501-502 (4" Cir. 1982)
(rejecting states’s claim that recognizing prisoner’s Muslim name would
9 In their unsworn Memorandum of Points and Authorities, the defendants indicate that
the CDC is presently involved in a “multi-year effort to develop a method of computerizing
certain inmate central file records and information”. (Defendants, Memorandum of Points
and Authorities, p. 13). The defendants do not explain how this fact, if true, compels the
conclusion that adding the plaintiff's religious name to his computer file as an “ACA” would
impair this alleged computerization effort.
24
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disrupt identification, cause confusion in internal prison operations and
hinder efforts to recapture escapees). -
The defendants claim they should not be required to alter their
records to reflect the plaintiff's new name, arguing that Malik III,
acknowledged prior precedent supporting the defendants’ position. (In
Malik II, the court acknowledged cases standing for the proposition that an
inmate could not compel a prison to reorganize its filing system to reflect his
new name, citing Barrett v. Commonwealth of Virginia, supra, and Akbar v.
Canney, 634 F.2d 339 (6" cir. 1980), cert. denied, 450 U.S. 1002, 101 S.Ct.
1712, 68 L.Ed.2d 205 (1981). Malik v. Brown, 71 F.3d at 727. Barrett held
that Virginia’s policy of refusing to recognize prisoner’ Muslim names was
chnetetieiiails but that the state was not required to reorganize its files
using the prisoner’s religious name as the “principal appellation,” and
reflecting committed name as alias. The plaintiff here does not request such
relief. Barrett v. Commonwealth of Virginia, 689 F.2d at 503. In Akbar, in
a situation in which the court declined to require prison officials to show the
prisoner’s religious name, the court specifically noted that Akbar did not
claim he had been denied any prison benefit because of the use of the new
_name. Akbar v. Canney, 634 F.2d at 340. Here, it is undisputed that the
defendants have refused to provide the plaintiff with identification and
privilege cards bearing both names, and that, because of this refusal, the
plaintiff cannot access prison services and benefits except through the use of
25
FR a Te CNC eT
42a
his religiously-offensive committed name. Under these circumstances,
addition of the plaintiff's legal, religious names, to prison records and means
of identification is necessary to preserve the-plaintiff’s First Amendment
rights.
The defendants argue that the presently applicable version of
DOM Section 73010.6.1 already entitles the plaintiff to receive mail and
visitation in his religious name; however, they provide no evidence to
controvert the plaintiff's sworn statement that he has “totally” been denied
visitation in his religious name, and only receives mail in his religious name
whenever mailroom personne! allow it (Plaintiff's Opposition, p. 4). In fact,
the court’s own mail to the plaintiff in his religious name has been returned
on two occasions undelivered. Moreover, the defendants do not argue or
present evidence that the plaintiff now has identification and privilege cards
reflecting both names, or that services and benefits are now being provided :
to the plaintiff in both names.
The plaintiff has demonstrated by uncontroverted evidence that
the defendants are violating plaintiff's free exercise rights insofar as the
defendants continue to deny the plaintiff the ability to use his religious
name, in addition to his committed name, as identification and to obtain
benefits and services. Therefore, summary judgment should be granted in
favor of the plaintiff, and against the defendants, on the issue of the
26
43a
defendants’ liability for violation of the plaintiff's right to free exercise of
his religion.
The plaintiff requests that this court issue and injunction ordering
the defendants to: (1) allow the plaintiff to use identification and privilege
cards bearing both his legal, religious name and his committed name; (2)
identify the plaintiff in prison computer records and in his central file by his
committed name and also by his legal religious name, whether by an “ACA”
Sentai or otherwise; and (3) allow the plaintiff to receive mail services,
visitation, medical care, otherwise appropriate deliveries of money or other
items from non-prisoners, and other prison services and benefits in his
religious name as well as his committed name. The issue of the appropriate
scope of injunctive relief has neither been raised or briefed in these
proceedings. Therefore, at this time, the court will not decide the _
appropriate scope of a permanent injunction. Notwithstanding the expiration
of the motion cut-off date, the plaintiff may make a motion for issuance of
injunctive relief, describing the scope of any sails injunction. The
defendants may then respond to any such motion in accordance with the |
applicable provisions of the Federal Rules of Civil Procedure and Local
Rules of Practice of this court regarding motion practice. To repeat, the
entry of summary judgment in the plaintiff's favor on the issue of liability
will not constitute a remedial order at the time of the grant of the summary
judgment.
27
44a
IX. The Plaintiff Has Not Demonstrated the Personal
Involvement of Defendant Gomez Sufficient to Warrant Imposition of
Liability for Damages; However, Defendant Gomez Remains a Proper
Defendant Insofar as the Plaintiff Seeks Injunctive Relief.
The defendants claim that the plaintiff has failed to plead specific
facts showing the defendants caused the alleged constitutional violation, and
that the defendants cannot be held liable on a theory of respondeat superior.
The only defendant sued on a theory of resopondeat superior is CDC
Director Gomez. The plaintiff's evidence, including the appeals documents,
is sufficient to show that the other defendants were “personally involved” in
the alleged constitutional violation. See Hansen v. Black, 885 F.2d 642, 646
(9" Cir. 1989).
Respondeat superior is not a theory of liability available under 42
U.S.C. § 1983. Polk County v. Dodson, 454 U.S. 312, 325, 102 S.Ct. 445,
70 L.Ed.2d 509 (1981). However, a state official with the statutory duty to
enforce and administer an allegedly unconstitutional policy is a proper
defendant in a suit for prospective injunctive relief. See Chaloux v. Killeen,
886 F.2d 247, 251-252 (9" Cir.1989). Therefore, defendant Gomez is a
proper party defendant insofar as the plaintiff seeks injunctive relief.
There is no evidence that defendant Gomez was personally
involved in the denial of the plaintiff's appeals. A supervisor may be held
liable for creating a policy which resulted in the alleged unconstitutional
28
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conduct. Hansen y. Black, 885 F.2d at 646 (supervisor may be liable if he
“implements a policy so deficient that the policy is itself a violation of )
constitutional rights and is the moving force of the constitutional violation”).
However, the plaintiff has produced no evidence indicating defendant
‘Gomez was instrumental in creating or implementing any policy which
prevented the plaintiff from using his religious name. Therefore, summary
adjudication should be granted in favor of defendant Gomez insofar as the
plaintiff asserts a claim for damages against Gomez.
X. The Defendants May Be Sued For Damages in Their Individual
apaciti ut Not in Their ial Capacities.
The Eleventh Amendment bars suits for money damages against
state officials in their official capacities. See Will v. Michigan Department
of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989).
~ Therefore, summary adjudication should be granted in favor of the
defendants to the extent the plaintiff asserts a claim for damages against the
defendants in their official capacities.
However, the defendants may be sued in their individual
capacities. Moreover, the plaintiff may sue the defendants in their official
capacities for prospective injunctive relief. See id., 491 U.S. at 71 n. 10;
Kentucky v. Graham, 473 U.S. 159, 169 n. 18, 105 S.Ct. 3099, 87 L.Ed.2d
114 (1985); Ex parte Young, 209 U.S. 123, 159-160, 28 S.Ct. 441, 52 L.Ed.
29
—
46a
714 (1908); Los Angeles County Bar Ass’n v. Eu, 979 F.2d 697, 704 (9" Cir.
1992).
XI. The Conspiracy Claim Should Not Be Dismissed.
The defendants’ contention that the complaint insufficiently
pleads conspiracy is an argument more appropriately raised by a motion to
dismiss pursuant to Fed. R. Civ. P. 12(b) (6), rather than by motion for
summary judgment. Because the defendants chose to answer the complaint
rather than to challenge its sufficiency in a pre-answer motion, technically
the defendants’ motion should be treated as a motion for judgment on the
pleadings. See Fed. R. Civ. P. 12(h) (2); 12 (c). R. Civ. P. 12 (b) (6); Aldabe
v. Aldabe, 616 F.2d 1089, 1093 (9" Cir. 1980). The motion is governed by
the test used to assess the sufficiency of the complaint under Fed. R. Civ. P.
12(b) (6). McGlinchy v. Shell Chemical Co., 845 F.2d 802, 810 (9" Cir.
1988); Ludahl v. Seaview Boat Yard, 869 F.Supp. 825, 826 (W.D.Wash.
1994).
The defendants’ motion is premised solely on the argument that
the plaintiffs conspiracy claim is conclusory. While conclusory allegations
are generally considered insufficient, the purpose of wnat more
specificity is to provide notice to the defendant of the nature of the claim,
and to permit the defendant to frame an appropriate response. The plaintiff
4
30
47a
essentially bases his conspiracy claim on the defendants’ acts of uniformly
denying his appeals (Complaint, {J 48-56).
It does not appear that the alleged conclusory conspiracy claim
rendered the defendants unable to understand the plaintiff's complaint so as
to be able to mount a defense. The defendants have filed an answer,
opposed the plaintiff's motion for judgment on the pleadings, engaged in
discovery, filed a motion for summary judgment, and filed an opposition to
the plaintiff's motion for summary judgment. If the court were to conclude
these allegations insufficient to state a conspiracy claim, the court might
well be required to afford the plaintiff leave to amend his complaint. See
Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621, 623 (9"Cir.
1988). However, the discovery and motion cut-off dates have cia.
Under these circumstances, and at this stage of the proceedings, dismissal of
the plaintiff's conspiracy claim on the ground it is conclusory is
inappropriate.
The defendants have not argued that the evidence shows the
absence of a genuine issue of fact regarding the plaintiff's conspiracy claim.
we
Therefore, the court should deny the defendants’ motion insofar as it
purports to be a motion for summary judgment on the plaintiff's conspiracy
claim.
XII. The Court Should Not Determine at this Time the Propriety of
31
48a
Exercising Supplemental Jurisdiction Over the Plaintiff's St
Constitutional Claim. Sabena
Under the supplemental jurisdiction statute, a federal court may
decline to exercise supplemental jurisdiction over a state law claim where
“(1) the claim raises a novel or complex issue of state law; (2) the claim
“substantially predominates” over the claim or claims over which the district
court has original jurisdiction; (3) the district court has dismissed all claims
over which it has original jurisdiction; or (4) in exceptional circumstances,
there are other soliaaliias reeeos for declining jurisdiction.” 28 U.S.C. §
1367(c); see O’Connor v. State of Nevada, 27 F.3d 357 (9" Cir. 1994), cert.
denied, 514 U.S. 1021, 115 S.Ct. 1367, 131 L. Ed.2d 223 (1995).
The defendants urge the court to decline to exercise supplemental
jurisdiction over the piaintiff’s a for violation of the California
Constitution, on the ground that, because the defendants are entitled to
summary judgment on the plaintiff's federal constitutional claim, the
exercise of jurisdiction over the state constitutional claim would be
inappropriate under 28 U.S.C. § 1367 (c)(3). Because the court has not
dismissed all claims upon which federal jurisdiction may be based, section
1367 (c) (3) is inapplicable.
However, for another reason, the court may not exercise jurisdiction
over the plaintiff's state law claims for injunctive relief. The Eleventh
Amendment bars this court from exercising jurisdiction to order state
32
|
49a
officials to conform their conduct to state.law. See Pennhurst State School
and Hospital v. Halderman, 465 U.S. 89, 106, 104 S.Ct. 900, 79 L.Ed.2d 67
(1984). However, the Eleventh Amendment does not bar the court from
hearing a claim against state officials for damages for violation of state law. _
Pena v. Gardner, 976 F.2d 469, 474 (9" Cir. 1992).
The defendants argue, in the alternative, that they are entitled to
summary judgment on the plaintiff's state constitutional claims. The
defendants argue that the analysis of free exercise claims under the state
constitution parallels that applied to federal free exercise claims, citing
Vernon v. City of Los Angeles, 27 F.3d 1385, 1392 (9" Cir.), cert. denied,
513 U.S. 1000, 115 S. Ct. 510,130 L.Ed.2d 417 (1994). The California
Supreme Court recently cast doubt upon this proposition. See Smith v. Fair
Employment and Housing Comm’n, 12 Cal. 4th 1143, 1177-1179, 51
Cal.Rptr.2d 700, 720-722, 913 P.2d. 909 (1996), cert denied, _U.S.. pene
65 U.S.L.W. 3034 (June 27, 1997) (declining to determine “scope and
proper interpretation of California Constitution article I, section 4”). If the
defendants’ construction of California law is correct, the analysis set forth
herein would apply equally to the plaintiff's state constitutional claim, and
the same result would obtain. If, on the other hand;California law provides
the plaintiff with more free exercise protection than the current federal
regime under Employment Division v. Smith, 494 U.S. 872, 110 S.Ct. 1595,
108 L.Ed.2d 876 (1990), it is at least theoretically possible that the plaintiff
33
OD Oe a
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i
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;
tt
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‘
i
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50a
could prevail under state law on his claim for damages even if his request to
the defendants was for substitution of his committed name with his religious
name (a claim untenable under Malik I). However, because the defendants
have neither raised nor briefed the issue of the construction of the California
Constitution in light of Smith v. Fair Employment and Housing Comm’n,
supra, the court declines at this time to determine the propriety of exercising
supplemental jurisdiction over the plaintiff's state law claim."°
RECOMMENDATION
For the reasons discussed above, the magistrate judge recommends
that the court issue an order:
(1) approving and adopting this Partial Report and
Recommendation;
(2) granting summary adjudication in favor of the plaintiff
on the ground the following issues are without substantial controversy:
(a) the plaintiff has exhausted administrative remedies;
10 The defendants also have not raised the issue whether a direct private right of action
for damages exists for violation of Article I, section 4 of the California Constitution. See Hill
¥. National Collegiate Athletic Ass’n, 7 Cal.4th 1,18, 26 Cal. Rptr. 2d 834, 844, 865, P.2d
633 (1994) (right of action exists to vindicate right of privacy guaranteed by Cal. Const. Art.
I, § 1); Laguna Publishing Co. v. Golden Rain Foundation, 131 Cal.App.3d 816, 853, 182 Cal-
Rtpr. 813, 835 (1982), app. dism’d, 459 U.S. 1192, 103 S.Ct. 1170, 75 L.Ed.2d 422 (1983)
(allowing damage action for epere . Cal. Const., Art. 1, § 2, protecting freedom of
speech); but see Bonner v. Ci 45 Cal.App. 4th 1465, 1472-1476, 53 Cal.Rptr.
3d 671, 675-678 (1996) ee ronson od a violation vd due process and equal
protection clauses of Cal. Const. Art. 1, § 7); v.S ates v.
(Hirata) , 32 Cal.App. 4" 481, 525, 38 Cal. Rptr: 7 489, 517 (198K equal protection clauses
of California Constitution provides no private action for damages); y.
‘School District, 202 Cal.App.3d 1448, 1456-1457, 249 Cal.Rptr. 688, 692 (1988) (“Safe
schools” provision of California Constitution provides no private action for damages).
34
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(b) the plaintiff's use of his religious name is an expression
of his religious faith;
(c) the defendants have violated and are violating the
plaintiff's right to the free exercise of his religion to the
extent they have:
(i) denied the plaintiff the right to be identified by
his legal, religious name, along with the plaintiffs
committed name, in prison computer records and in the
plaintiff's central prison file;
(ii) denied the plaintiff the right to use identification
and privilege cards which identify the plaintiff by both his
comiiiited name and his legal, religious name; and
(iii) denied the plaintiff the right to receive mail
services, visitation, medical care, canteen services, /
otherwise appropriate deliveries of money or other items
from non-prisoners, and all other services and benefits to
which the plaintiff would be otherwise entitled, in the
plaintiff's legal, religious name and his committed name;
(3) cherwite denying the plaintiff's motion for summary
judgment;
35
52a
(4) granting summary adjudication in favor of the
defendants on the ground the following issues are without substantial
controversy:
(a) the plaintiff may not sue the defendants for damages in
their official capacities;
(b) defendant Gomez is not liable for damages in his
individual capacity;
(5) otherwise denying the defendants’ motion for summary
judgment.
Dated: July 24, 1997
/S/
JAMES W. McMAHON
United States Magistrate Judge
36
2 ACL TO ID OSGEIG:
APPENDIX F
53a
FILED
CLERK, U.S. DISTRICT COURT
DECEMBER 10, 1996
CENTRAL DISTRICT OF CALIFORNIA
BY DEPUTY
DANIEL E. LUNGREN, Attorney General
of the State of California
GEORGE WILLIAMSON, Chief Assistant
Attorney General
DARRELL L. LEPKOWSKY, Supervising
Deputy Attorney General
JANE CATHERINE MALICH, State Bar # 101012
Deputy Attorney General
300 South Spring Street, Fifth Floor
Los Angeles, California 90013
Telephone: (213) 897-2256
Attorneys for Defendants James Gomez, G. Bonnie Garibay, V. Bluestein,
John M. Ratelle, Mike Yarborough, D. Felix, D. Lorenzen, and D. Whyte
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA-WESTERN DIVISION
SHOMARI NAEEM SHUAIBE, aka ) NOTICE OF MOTION AND
FELTON LEE GUILLORY, ) MOTION FOR SUMMARY
) JUDGMENT; MEMORANDUM OF
Plaintiff, ) POINTS AND AUTHORITIES
v. ) SUPPORT THEREOF;
) DECLARATIONS AND EXHIBITS
JAMES GOMEZ, Director of )
Corrections; G. BONNIE GARIBAY, )
Chief Appeals; V. BLUESTEIN, ) DATE: JANUARY 21, 1997
Appeals Examiner; JOHN M. ) TIME: 9:30AM
RATELLE, Warden; MIKE ) PLACE: COURTROOM OF
YARBOROUGH, Associate Warden; ) MAGISTRATE JUDGE —
D. FELIX, Correctional Counselor II; McMAHON
D. LORENZEN, Correctional )
Counselor I; D. WHYTE, Correctional )
Counselor I, )
)
Defendants. )
Excerpts from pp. 3-4 of memorandum of points and authorities, =
- RRO LITE SRNR STN IE IS
54a
ee ee %
At the time plaintiff obtained his name change, the California
Department of Corrections Departmental Operations Manual (DOM)
provided that his new legal name would be recognized as an “also known
as” on Departmental Records. DOM section 73010.6.1.
Section 73010.6.1, Identifying Data, provided as follows:
“Name [t]he commitment name shall be recorded as reflected on the
original Abstract of Judgment/Minute Order by which the inmate was
delivered to the custody of the Department .... Names on subsequent
commitment documents which differ form the original commitment
name shall be recorded as also Committed As (ACA), e.g., Jones,
George; ACA: Jones, John .... Legal name change. Records of
inmates who subsequently receive a court-ordered legal name change
shall continue to use the commitment name as provided above. The
new legal name shall be recorded as Also Know As (AKA).”
(September 22, 1989 revision.) Exhibit 6.
The last provision was subsequently amended to read:
Records of inmates who subsequently receive a court-ordered legal
name change shall continue to use the commitment name as provided above.
The new legal name shall be recorded as an ACA, e.g., Jones, George; ACA:
Black, Clint.”
See, e.g., DOM section 73010.6.1 Revision VII - 9, December 12, 1992.
Malich Declaration, Exhixit C. 3
Subsequently the phrase - - “and may be used by the inmate for mail
and visiting purposes” was added so that the last sentence read “[t]he new
legal name shall be recorded as an ACA, e.g., Jones, George; ACA: Black,
Clint, and may be used by the inmate for mail and visiting purposes.” See,
e.g., DOM Revision VII - 15, March 16, 1995, Malich Declaration, Exhibit
Dd’
4 Defendants are still searching for copies of revisions VII - 10 - - VII - 14 to determine
the precise date the amendment was made.
Wt ho. 6. epee ete Dt se ee ee a eee ee iv
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.