Opposition Brief — Terhune v. Shuaibe
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No. 99-1896
In The
Supreme Court of the United States
C.A. TERHUNE, et al., Petitioners
Vv.
SHOMARI NAEEM SHUAIBE, aka FELTON LEE GUILLORY, Respondent.
On Petition for a Writ of Certiorari to the United States Supreme
Court of Appeals for the Ninth Circuit
MOTION TO FILE IN FORMA PAUPERIS AND DECLARATION THEREOF
Catherine J. Swysen
SANGER & SWYSEN
233 E. Carrillo Street, Ste C
Santa Barbara, California 93101
Telephone: (805) 962-4887
Fax: (805) 963-7311
Counsel for Respondent
51 PY
Ap
No. 99-1896
In The
Supreme Court of the United States
C.A. TERHUNE, et al., Petitioners
Vv.
SHOMARI NAEEM SHUAIBE, aka FELTON LEE GUILLORY, Respondent.
The Petitioner, Shomari Naaem Shuaibe, respectfully requests
leave to proceed in forma pauperis. Petitioner is an inmate
incarcerated at California State Prison-Los Angeles County (CSP-
LAC) and serving a sentence of life without possibility of
parole. On May 22, 1995, Petitioner was granted leave to
proceed in forma pauperis by the United States District Court for
the Central District of California.
Dated: July 23, 2000 Respectfully submitted,
Catherine J. Swysen
SANGER & SWYSEN
233 E. Carrillo Street,Ste C
Santa Barbara, California 93101
(805) 962-4887
Counsel for Respondent
Fe ee Te Te TR Te none SE
x
DECLARATION OF COUNSEL
I, Catherine J. Swysen, declare:
1. I am the attorney of record for Respondent herein.
2. I am informed and believe that Respondent qualifies to
proceed in forma pauperis.
3. I am aware of the Rule 39.1 requirement that the party’s
notarized affidavit or declaration in the form prescribed by the
Federal Rules of Appellate Procedure, Form 4 including a statement
certified by the appropriate institutional officer showing all
receipts, expenditures and balances during the last six months in
the inmate's institutional sceount be filed in cotitancien with a
motion to proceed in forma pauperis.
4. I have sent the required declaration to Respondent on June
22, 2000 but have not received it back yet. I am informed and
believe that Respondent has not been able to obtain yet the
statement showing the activity in his trust account for the past
sixth months. The declaration will be filed as soon as it is
received. In the meantime, Respondent respectfully requests that
the Court allow him to proceed in forma pauperis for the purpose of
filing this opposition.
I declare under penalty of perjury that the foregoing is true
and correct. Executed on July 23, 2000.
Catherine J. Swysen
No. 99-1896
In The
Supreme Court of the United States
C.A. TERHUNE, et al., Petitioners
Vv.
SHOMARI NAEEM SHUAIBE, aka FELTON LEE GUILLORY, Respondent.
On Petition for a Writ of Certiorari to the United States Supreme
Court of Appeals for the Ninth Circuit
BRIEF IN OPPOSITION
Catherine J. Swysen
SANGER & SWYSEN
233 E. Carrillo Street, Ste C
Santa Barbara, California 93101
Telephone: (805) 962-4887
Fax: (805) 963-7311
Counsel for Respondent
r
jane. ee
INTRODUCTION ..... a ae ae eee eee re ee eas oe 1
STATEMENT OF JURISDICTION ......... 8 aaa es a ae eee 2
STATEMENT OF THE CASE .cikcccnsccccscs oot ae vw ae ae 4
COMPELLING REASONS DO NOT EXIST
TO GRANT A WRIT OF CERTIORARI .......cceccees ec cccccce 7
The District Court Followed the
Appropriate Analysis Set Forth by
this Court in Harlow V. Fitzgerald
in Determining Petitioner’s Claim
of Qualified Immunity and Properly
Denied Qualified Immunity on the
Basis That Material Facts Are in
DAOPUCO. sen rvicivcdesvetcesess ten eenwveun we 7
y Contrary to Petitioners’ Contention,
There Is No Conflict among the Circuits
on the Issue of Qualified Immunity,
Therefore, the Petition must Be Denied. .... 9
A. No Circuit Has Ever Held That
Public Employees Required
as a Condition of 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
CO BO if ESTOS. ss aveccvccsess éveteveues 9
B. There Is No Conflict Between the
CASORSGE, “si uecaars idniéveeeveanese ee >
ae The Question of Whether Prisons must
Change or Reorganize Their Record
Keeping Practices to Accommodate
Inmates’ Legal Name Changes (Question 2)
Is Not Properly Before this Court. ......... 12
4. The Question of Whether the Ninth
Circuit’s Alleged Misapplication
-iii-
of Turner Affects the Precedential
Value of its Opinions on Inmates’
Legal Religious Name Changes
and Calls into Question
Their Continued Validity (Question 3) .... 14
Is Not Properly Before this Court.
CONCLUSION ....ccccccces COO eee H HER REESE D EROS ERS 14
-iv-
TABLE OF AUTHORITIES
Cases
Anderson v. Creighton, 483 U.S. 635 (1987) ......... 10
Behrens v. Pelletier, 516 U.S. 299 (1996) ....... can 2
Gorra v. Hanson, 880 F.2d 95 (8% Cir. 1989) ......... 36, 41
Harlow v. Fitagerald, 457 U.S. 396 (190Z) seccaccases 4,5, 7,8, 40
12
Johnson v. Jones, 515 U.S. 304 (1995) ....ssceccecevece 2
L3G, itd. wv. Sttob; 260 Fi 28 2686 cc dwibnd noe ane ane 12
(9° Cir. 2000)
Malik v. Brown, 16 F.3d 330
(9%° Cir. 1994) (Malik I), mandate
recalled and opinion supplemented,
6S £.34 148 (9° Cie. 2508) CAER 22) occ is kdsan<s 5,6,8,14
Malik v. Brown, 71 F.3d 724
(O™ Gis. 1905) Ueiae BFE) ccd 60846 0ko eae 5,8
Moorman v. Thalacker, 83 F.3d 970
[SO Cis; LOGE 1eaddwksn ches 646483004 eee $, ii
rurner V. Safiey, 462 U.8. TE (CA9GT) scccctcsecsasecis 2
Woifai ¥. Morris, Sta Fuk TES si we cpenrsdctevaceswse 10
(67 Cir. 1992)
Rules .
Rule 10 of the Rules of the
Supreme Court of the United States ..........6... 4
United States Constitution
First Amendment .........eseeee. Peer rer err rr TT err Tee <a
-V-
TABLE OF APPENDICES
Defendants-Appellants’ Brief to the United
States Court of Appeals for the Ninth
CECCULC cccccc WeTTTTTirirr itt rr Trrrer ,
Excerpts of Defendants’ Notice of Motion
And Motion for Summary Judgment; Memorandum
of Points and Authorities in Support Thereof
15-36
i.
No. 99-1896
In The
Supreme Court of the United States
C.A. TERHUNE, et al., Petitioners
Vv.
SHOMARI NAEEM SHUAIBE, aka FELTON LEE GUILLORY, Respondent.
INTRODUCTION
Respondent, a state prisoner, was convicted of murder and
sentenced to state prison under the name of Felton Lee Guillory
(the “committed name”.) In March 1992, Respondent legally changed
his name to Shomari Naeem Shuaibe (the “religious name.)
Respondent has been a prisoner at the California State Prison
at Lancaster since September 27, 1993. Since then he has been
prevented from conducting his daily affairs in both his religious
name and committed name. Respondent filed an Inmate Appeal on
March 10, 1994 requesting that he be issued a privilege card and an
identification card reflecting his religious name. He also
requested that his religious name be reflected in the central file
and in the prison computer. His administrative appeals were denied
at all levels. The last administrative appeal was denied on
ES
November 18, 1994. On March 21, 1995, Respondent filed a complaint
in the United States District Court for the Central District of
California alleging a violation of his civil rights under the First
Amendment and the California Constitution.
Both Petitioners and Respondent filed motions for summary
judgment in the district court which were granted in part and
denied in part.
Petitioners took an interlocutory appeal to the Ninth Circuit
Court of Appeals from the denial of qualified immunity on the
narrow ground that they were entitled to qualified immunity because
they relied ona ueikten Oxia policy. The Ninth Circuit aftixesd
the district court decision and denied the Petitioners’ petition
for rehearing en banc.
The case is currently pending in the district court. A pre-
trial conference is scheduled on October 2, 2000.
STATEMENT OF JURISDICTION
First, this Court lacks jurisdiction to hear’ this
interlocutory appeal from the denial of qualified immunity because
the district court denied immunity on the basis that material facts
are in dispute. Behrens v. Pelletier, 516 U.S. 299 (1996); Johnson
v. Jones, 515 U.S. 304 (1995).
Secondly, Petitioners raise in their Petition questions which
were not raised below and, therefore, have been waived.
In their interlocutory appeal to the Ninth Circuit,
aie
Petitioners raised only a narrow issue related to their claim of
qualified immunity asking the Ninth Circuit to “hold that state
employees relying on published regulations, policies and procedures
which they are unable to ignore, change, modify or rescind are
entitled to qualified immunity in section 1983 action charging them
with violation of federal rights because of their reliance of these
regulations, policies and procedures” (Resp. Appendix, 33):
“This case presents a question of first
impression in this circuit regarding the
defense of qualified immunity ffor state -
employees who are required to follow and do
follow published regulations, policies and
- procedures. In the case at bench, the state
employee defendants followed published
regulations in reviewing and deciding whether
to grant or deny an inmate grievance. The
issue presented is whether the state employee
defendants are entitled to summary judgment on
the grounds of qualified immunity in an inmate
Civil rights action pursuant to 42 U.S.C. §
1983 when the inmate grievance was denied on
the basis of published regulations, policies
and procedures which they are unable to
ignore, amend, change, modify, or rescind
and/or upon which they reasonably relied.”
Resp. Appendix, 19-20. [emphasis added. ]
Petitioners failed to raise before the Ninth Circuit Court of
Appeal the issue of whether Turner V. Safley, 482 U.S. 78 (1987)
requires prison officials to change or replace record-keeping
practices (question 2) and the issue of whether the Ninth Circuit’s
alleged misapplication of Turner affects the precedential value of
its opinions on inmates’ legal religious name changes and calls
into question their continued validity (question 3).
‘ ak
Accordingly, these issues have been waived by petitioners.
Thirdly, Rule 10 of the Rules of the Supreme Court of the
United States provides that this Court may grant a petition for
writ of certiorari only for compelling reasons. Petitioners
attempt to satisfy Rule 10 by contending that there is an inter-
circuit conflict on the issue of qualified immunity. There is no
such conflict. The district court in this case, as well as the
courts in the cases cited by Petitioners in support of their
contention, followed this Court’s precedents in analyzing
Petitioners’ claim of qualified immunity.
fourthiy, Rule 10 also oronides that “[a] getitias for writ of
certiorari is rarely granted when the asserted error consists of
erroneous factual findings or a misapplication of a properly stated
rule of law.” The district court in this case properly analyzed
Petitioners’ claim of qualified immunity pursuant to the standard
set forth by this Court and found that there was a material issue
of fact preventing the entry of summary judgment on that issue. The
Ninth Circuit Court of Appeals affirmed.
There is no compelling reasons for this Court to grant the
petition for writ of certiorari.
STATEMENT OF THE CASE
In their motion for summary judgment, Petitioners argued that
they should be entitled to qualified immunity under the rule set
forth in Harlow v. Fitzgerald, 457 U.S. 396 (1982). They argued
-5-
that Respondent wanted to use his religious name exclusively on all
prison documents and records as well as correspondence and that
there was no clearly established right to do so under Malik I,
Malik II, and Malik III.?
They argued also that assuming that Respondent was requesting
that he be allowed to use both names, they would still be entitled
to qualified immunity because the right to do so was not clearly
established enough to alert a reasonable official to its parameters
and a reasonable officer, following the prison regulation, would
have believed that the particular conduct at issue to be lawful.
‘ess. Appendix 37-43. . |
The district court following the rule set forth in Harlow v.
Fitzgerald found that the law was “‘clearly established, 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.” Pet. Appendix,
38a. It also found that it would have been unreasonable for
Petitioners to deny him the right to obtain services and privileges
in both names. Pet. Appendix, 37a. Finally, the district court
held that the existence of a genuine issue of fact as to the nature
"Malik v. Brown, 16 F.3d 330 (9 Cir. 1994) (Malik I),
mandate recalled and opinion supplemented, 65 F.3d 148 (9* Cir.
1995) (Malik II), and Malik v. Brown, 71 F.3d 724 (9™ Cir. 1995)
(Malik III)
«fe
of Respondent’s claim precluded the application of the doctrine of
qualified immunity. Pet. Appendix, 36a.
In their interlocutory appeal to the Ninth Circuit,
Petitioners did not challenge the holding by the district court
that the law was clearly established in 1994 that an inmate had a
constitutional right to use both his religious name and his
committed name in conducting his daily affairs. They did not
challenge the holding in Malik. They argued only that they were
entitled to qualified immunity as a matter of law solely because
they relied on a written prison policy.
‘Petitioners had cqnoeed Respondent’ s owen for injunctive
relief on the ground, among others, that Respondent had not
demonstrated that his constitutional rights had been violated.
The district court held that Respondent was entitled to the
prospective relief of using his legal, religious name in addition
to his committed name. The district court did not decide the
appropriate scope of a permanent injunction since this issue had
not been raised or briefed. The appropriate scope of a permanent
injunction was left for a subsequent motion.* Pet. Appendix, 38a
and 43a.
Petitioners did not challenge this holding.
In its ruling, the district court found that Petitioners had
not offered “evidence of any legitimate penological reason why the
*This motion has not been filed yet.
m,
plaintiff should not be allowed to use his religious name as well
as his committed name”, nor any evidence that “changing their
records to reflect the plaintiff’s legal, religious name would
‘wreak havoc’. . .” since that contention was “based upon a one-
page ‘fact sheet’ ... which is inadmissible ...”. Pet. Appendix
39a-40a.
Petitioners sought to introduce new facts on that issue in
their objections to the Report and Recommendation through, inter
alia, the declaration of Larry Wagner which is attached to their
Petition. Pet. Appendix 8a-16a. These facts are restated on pages
12-14 of their Petition.
COMPELLING REASONS DO NOT EXIST
TO GRANT A WRIT OF CERTIORARI
1. The District Court Followed the Appropriate Analysis Set Forth
by this Court in Harlow V. Fitzgerald® in Determining
Petitioner’s Claim of Qualified Immunity and Properly Denied
Qualified Immunity on the Basis That Material Facts Are in
Dispute.
This Court has set the standard to analyze and determine
claims of qualified immunity in civil rights case in Harlow v.
3457 U.S. 396 (1982)
Fitzgerald’:
“We ... hold that government officials
performing discretionary functions are
generally shielded from liability for civil
damages insofar as their conduct does not
violate clearly established statutory or
constitutional rights of which a reasonable
person would have know. .. . On summary
judgment, the judge appropriately may
determine, not only the currently applicable
law, but whether that law was clearly
established at the time an action occurred.
If the law at that time was not clearly
established, an official could not reasonably
be expected to anticipate subsequent legal
developments, nor could he fairly be said to
‘know’ that the law forbade conduct not
previously identified as unlawful. Until this
threshold immunity question is_ resolved,
discovery should not be allowed. If the law
was clearly established, the immunity defense
ordinarily should fail, since a reasonably
competent public official should know the law
governing his conduct. Nevertheless, if the
official pleading the defense claims
extraordinary circumstances and can prove that
he neither knew or should have known the
relevant legal standard, the defense should be
sustained. But again, the defense would turn
primarily on objective factors.” Harlow v.
Fitzgerald, 457 U.S. 800, 818-819 (1982).
This is the standard that the district court followed in
analyzing Petitioners’ claim of qualified immunity. The district
court held that an inmate constitutional right to use both his
religious name and committed name in his daily affairs was clearly
established in 1994 in light of Malik v. Brown, 16 F.3d 330 (9
Cir. 1994) (Malik I) which held that an inmate has a right to use
f ‘457 U.S. 800 (1982)
js -9-
both his committed name and religious name “in his daily affairs”
and Malik v. Brown, 71 F.3d 724 (9% Cir. 1995) (Malik III) which
held that an inmate First Amendment right to use his religious name
in conjunction with his committed name was clearly established in
1990. The district court also held that it would have been
unreasonable for the Petitioners to deny Respondent the right to
obtain services in both names. Finally, the District court denied
qualified immunity because there was a genuine issue of fact as to
the nature of Respondent’s claim precluded the application of the™
doctrine of qualified immunity.
2. Contrary to Petitioners’ Contention, There Is No Conflict
among the Circuits on the Issue of Qualified Immunity,
Therefore, the Petition must Be Denied.
A. No Circuit Has Ever Held That Public Employees Required
as a Condition of 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.
No authorities cited by Petitioners stand for the proposition
that public employees required as a condition of 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.
-10-
_Wolfel v. Morris does not stand for the proposition that
prison officials relying on published regulations are entitled to
qualified immunity as a matter of law but rather stand for the
proposition that a prison official relying on a facially valid
regulation will be entitled to qualified immunity unless he knows
or should have known that the regulation violates a clearly
established constitutional right. The plaintiffs inmates in Wolfel
“were punished by prison officials for circulating a petition aimed
at redressing their grievances against the conditions at the
Southern Ohio Correctional Facility.” The court ruled that the
peinon regulation used to pendsh the inmates — enduaattintdonsziy
vague. Following the standard set forth in Harlow v. Fitzgerald,
457 U.S. 800 (1982) and Anderson v. Creighton, 483 U.S. 635 (1987),
the court held that the defendant were entitled to qualified
immunity because a reasonable officer, relying on the regulation,
could have believed that the conduct was lawful since they relied
on a regulation which had not been found unconstitutional yet and
the court could not “. . . say that no reasonable official, even
knowing the general requirements of notice and specificity, could
have thought that the regulation provided sufficient notice that
the prisoners’ actions were punishable.” Wolfel v. Morris, 972
F.2d at 719-720.
Gorra v. Hanson, 880 F.2d 95 (8 Cir. 1989) also follows the
standard set forth in Harlow to determine the claim of qualified
Se Osa rae el obs LIS oot OO Aor
fis
immunity. The plaintiff in Gorra sued troopers alleging that they
had arrested him without probable cause for a violation of a
statute prohibiting intentionally preventing the apprehension of
another. Analyzing the reasonableness of the troopers’ conduct in
light of the law that was clearly established at the time of the
arrest, the court granted qualified immunity bien at the time of
the arrest the courts had not yet construed the law and because the
troopers’ interpretation of the statute was not unreasonable. Gorra
v. Hanson, 880 F.2d at 98.
Following a similar analysis, the court in Moorman v.
*helecker, 83 F.3d 970 (6 Cir. 1996), held that the defendants
were entitled to qualified immunity stating that “[w]Jhere there is
no clearly established interpretation to the contrary, we defer to
prison officials’ interpretation of their rules to the facts so
long as that interpretation and application is not objectively
unreasonable.” Moorman v. Thalacker, 83 F.3d at 974.
In the present case, the district court followed also the
Harlow standard. The court found that it would have been
unreasonable for Petitioners to believe that their conduct -
preventing Petitioner from conducting his daily affairs in both his
committed name and religious name - was lawful in light of the
fact that the law was clearly established in the Ninth Circuit that
he had the right to do so.
of2-
B. There Is No Conflict Between the Circuits.
Petitioners have not shown any sand ick between the circuits
on the issue of qualified immunity. The Ninth Circuit as well as
the Sixth and Eighth Circuits all analyze claims of qualified
immunity pursuant to the standard set forth by this Court in Harlow
v. Fitzgerald, 457 U.S. 800 (1982). :
The decision of LSO, Ltd. v. Stroh, 205 F.3d 1146 (7 Cis.
2000) is not in conflict with cases cited by Petitioners. In
Stroh, the court analyzed the claim of qualified immunity pursuant
to Harlow. The court held that the law was clearly established in
light of a Parry from this eee that liquor Cdeeitakions could
not be used to impose restrictions on speech that would otherwise
be prohibited under the First Amendment. The court also held that
no reasonable official could have believed the conduct was lawful
based on that precedent. LSO, Ltd. v. Stroh, 205 F.3d at 1157-
1160.
a The Question of Whether Prisons must Change or Reorganize
Their Record Keeping Practices to Accommodate Inmates’ Legal
Name Changes (Question 2) Is Not Properly Before this Court.
First, this issue was not raised by Petitioners in their
interlocutory appeal. Accordingly this question is waived.
Secondly, it is premature for this Court to consider this
question based on the record.
The district court held that Respondent is entitled to the
af}.
prospective injunctive relief of using his legal, religious name in
addition to his committed name. However, the district declined to
determine the appropriate scope of injunctive relief since it has
neither been briefed or raised. Pet. Appendix, 43a. The scope of
injunctive relief still need to be determined by the trial court
after both parties have had an opportunity to submit evidence.
Petitioners did not appeal this ruling.
Respondent had requested that the court issue an order
directing Petitioners to allow him to use identification and
privilege cards bearing both his committed and religious names, to
fdeweeey him in aiinen computer sanane and central tive we his
committed name and also his religious name whether by “ACA”
designation or otherwise and to receive prison services and
benefits in his religious and committed names. The district
court noted that Petitioner did not claim that the CDC files should
be altered so as to reflect his religious name as his principal
name rather than an “ACA” and did not meena that his committed
name be eliminated. Pet. Appendix, 39a-40a. In fact, in this
case, the prison regulations themselves requires that a prisoner’s
legal name change be reflected as an “ACA.” Pet. Appendix, 40a.
Since no order has been issued yet requiring Petitioners to
change or re-organize their record keeping practices and the record
sien Cait support that contention, it is premature for this Court to
consider this question.
-14-
4. The Question of Whether the Ninth Circuit’s Alleged
Misapplication of Turner Affects the Precedential Value of its
Opinions on Inmates’ Legal Religious Name Changes and Calls
into Question Their Continued Validity (Question 3) Is Not
Properly Before this Court.
Petitioners are asking this Court to review the Ninth Circuit
decision in Malik v. Brown, 16 F.3d 330 (9° Cir. 1994) (Malik I),
mandate recalled and opinion supplemented, 65 F.3d 148 (9% Cir.
1995) (Malik II). This is beyond the scope of this interlocutory
appeal. Furthermore, Petitioners waived that issue by failing to
raise it below in the Ninth Circuit Court of Appeals.
CONCLUSION
Petitioner’s petition for writ of certiorari should be denied.
Respectfully submitted,
Catherine J. Swysen
SANGER & SWYSEN
233 E. Carrillo Street, Ste C
Santa Barbara, California 93101
(805) 962-4887
-15-
No. 99-1896
In The
Supreme Court of the United States
C.A. TERHUNE, et al., Petitioners
Vv.
SHOMARI NAEEM SHUAIBE, aka FELTON LEE GUILLORY, Respondent.
APPENDIX A
-16-
UNITED STATES COURT. OF APPEALS
FOR THE NINTH CIRCUIT
‘
SHOMARI NAEEM SHUAIBE, aka‘ Felton
Lee Guillory, Mya
Sy he
NO. 99-55049
3 No. CV 96-3395 RAP
Plaintiff/Appellee, |
)
)
)
) (Mc) -
’ ) CENTRAL DISTRICT OF
v. ) CALIFORNIA
: )
_. JAMES GOMEZ, et al., )
= ‘ )
Defendants/Appellants. )
)
)
\ DEFENDANTS-APPELLANTS' BRIEF —— 7
BILL LOCKYER, Attorney General
of the State of California ..
DAVID DRULINER, Chief Assistant
Attorney General .
MORRIS LENK, Acting Senior Assistant
Attorney General
DARRELL LEPKOWSKY, Supervising
Deputy Attorney General
JANE CATHERINE MALICH
Deputy Attorney General
me 3 State Bar No. 101012
300 South Spring Street
Los Angeles, CA 90013
Telephone: (213) 897-2256
Attorneys for Defendants-Appellants
-17-
TABLE OF CONTENTS
Page
ISSUES PRESENTED 1
STATEMENT OF THE CASE 2
A. JURISDICTION 2
B. PROCEEDINGS BELOW a
C. CUSTODY AND BAIL STATUS 6
D. STANDARD OF REVIEW 6
STATEMENT OF FACTS 6
ARGUMENT . : : : 10
I QUALIFIED IMMUNITY 10
CONCLUSION - : 14
STATEMENT OF RELATED CASES 15
STATEMENT OF COMPLIANCE WITH CIRCUIT RULE 16
——OIAEeeooOoworeoreeeeeeeeeee
-18-
TABLE OF AUTHORITIES
Cases Pages
Bagdadio v. Nazar
84 F.3d 1194 (9th Cir. 1996) 6
Baker v. Racansky
887 F.2d 183 (9th Cir. 1989) 3, 6
Bartlett v. Fisher
972 F.2d 911 (8th Cir. 1992) 12
Butz v. Economou
438 U.S. 478
968 S&S. Ct. 2894
57 L. Ed. 2d 895 (1978) 13
City of Boerne v. Flores
521 U.S.
Li? .@,.- Cl. dg227
138 L. Ed. 2d 624 (1997) 9
Depugh v. Penning
888 F. Supp. 959 (N.D. Iowa 1995) 11
Gona v. Hanson
880 F.2d 95 (8th Cir. 1989) p li
Harlow v. Fitzgerald
457 U.S. 800
i024 G&G. Ct.. 27a?
73 L. Ed. 2d 396 (1982) | - ta, i2
Jaeger v. Dubuque Couty
880 F. Supp. 640 (N.D. Iowa 1995) 11
Kurtz and Rose v. Denniston and Doe
872 F. Supp. 631 (N.D. Iowa 1994) se 4
ii
-19-
Mallory v. Briggs
475 U.S. 335
106 S. Ct. 1092
89 L. Ed. 2d 271 (1986)
Moorman v. Thalacker
83 F.3d-970 (8th Cir. 1990)
Premier Communications Network v. Fuentes
880 F.2d 1096 (9th Cir. 1989)
United States v. Wallace & Tiernan Co.
336 U.S. 793
69 S. Ct. 824
93 L. Ed. 1042 (1949)
Wolfel v. Morris
972 F.24°712 (6th Cir. 1992)° *
Statutes
28 U.S.C. § 1291
42 U.S.C. § 1983
Cal. Penal Code §279.5(b)
Court Rules
USDC Local Rule 7.16(a) and (c)
iii
12
12
- 44
-20-
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHOMARI NAEEM SHUAIBE, aka Felton
Lee Guillory, No. 99-55049 ©
Plaintiff/Appellee, No. CV 96-3395 RAP
(Mc)
Wi CENTRAL DISTRICT OF
CALIFORNIA
JAMES GOMEZ, et al.,
Defendants/Appellants
DEFENDANTS-APPELLANTS' BRIEF
ISSUES PRESENTED
(1) This case presents a question of first impression in
this Circuit regarding the affirmative defense of qualified
immunity for state employees who are required to follow and do
follow published regulations, policies and procedures. In the
case at bench, the state employee defendants followed published
regulations in reviewing and deciding whether to grant or deny an
inmate grievance. The issue presented is whether the state
‘ |
Si.
employee defendants ane sahatied co summary judgment on the
grounds of qualified temuntty in an inmate civil rights action
pursuant to 42 U.S.C. 1983 when the inmate grievance was dented
on the basis of published regulations, policies and procedures
which they were unable to ignore, amend, change, modify, or
rescind and/or upon which they reasonably relied.
STATEMENT OF THE CASE
A. JURISDICTION
This interlocutory appeal is from the October 16, 1998 order
ne United States asian Court Judge Richard .. Paez of the
‘ United States District Court for the Central District of
California denying defendants-appellants' motion for
reconsideration of the September 4, 1998 order by then United
States District Court Judge Kim McLane Wardlaw partially granting
and partially denying summary adjudication and denying the
parties’ cross-motions for summary judgment.
Jurisdiction of the district court arose under 42 U.S.C.
1983 and 28 U.S.C. 1291.
This court has jurisdiction over interlocutory appeals
regarding qualified immunity pursuant to 28 U.S.C. 1291. United
22
States v. Wallace & Tiernan Co., 336 U.S. 793, 794-5, 69 S. Ct.
824, 825-26, fn. 1, 93 L. Ed. 1042 (1949); Baker v. Racansky, 887
F. 2d 183, 185 (9th Cir. 1989).
B. PROCEEDINGS BELOW
The initial complaint was filed on March 21, 1995. (D.C.
oe ee On March 31, 1995, the United States Marshal was
ordered to serve all eight defendants in their individual and
official capacity. (D.C. Dk. 4.) On December 10, 1996,
defendants filed a motion for summary judgment. (D.C. Dk. 50.)
Plaintite also nied « wei for summary judgment which was
filed January 16, 1997. (D.C. Dk. 51). The. district court
initially took plaintiff's motion off-calendar as untimely filed
(D.C. Dk. 57) and denied nis eaktun 6 have it placed back on the
court's calendar. (D.C. Dk. 59.) However, defendants filed a
statement of non-opposition to plaintiff's second ex parte motion
to have his motion for summary judgment placed back on the
court's calendar. (D.C. Dks. 63, 60.) The court's docket does
not contain a docket entry numbered 66; presumably ies: hei
entry is the court's order placing plaintiff's motion for summary
\
judgment back on calendar.
G..
On July 24, 1998, the Magistrate Judge issued a report and
recommendation partially granting and partially denying summary
adjudication for plaintiff and for defendants and otherwise
denying their motions for summary judgment. (D.C. Dk. 67.) On
August 8, 1998, ee ae filed objections to the report and
recommendation. (D.C. Dk. 69.) On September 4, 1998, following
a de novo review, the court issued an order granting and denying
partial summary adjudication and denying the parties' motions for
summary judgment. (D.C. Dk. 73 and 74.)
In its order entered September 8, 1998, the court’ granted
partial summary adjudication in favor of plaintiff on the grounds
that it was without substantial controversy that, inter alia,
defendants have violated and are violating plaintiff's right to
free exercise of his religion to the extent that they have denied
him the right to be identified by his legal religious name and
his committed name in prison computer records and his central
prison file, to use identification and privilege cards
identifying him by both names and denying him the right to
receive mail, visitation, medical care, canteen services,
otherwise appropriate deliveries of money or other items from
-24-
non-prisohers, and all other services and benefits to which he
would otherwise be entitled in his legal, religious name and his
committed name. (D.C. Dk. 73, pp. 1-2.)
The court granted partial summary adjudication in favor of
defendants on the grounds that it was without substantial
controversy that, inter alia, plaintiff cannot sue defendants for
damages in their official capacities and former linac Gomez is
not liable for damages in his individual capacity. (D.C. Dk. 73,
eS. 2.3
| On September 11, 1998 the case was transferred from the
calendar of then United States District Judge Wardlaw to the
calendar of United States District Judge Paez. (D.C. Dk. 16.)
On September 17, 1998, defendants filed a motion for
reconsideration. (D.C. Dk. 74.) Defendants' motion was based on
two grounds. One ground was that the court's manifest failure to
consider the material fact of their good faith reliance on
facially valid departmental regulations. The second ground was
that, due to the lengthy delay of more than a year from the
briefing to the issuance of the order, recent developments in
applicable case law presented a material difference in law. Cf.,
-25-
Local Rule 7.16 (a) and (c) of the United States District Court
for the Central District of California. (D.C. Dk. 75.)
On October 16, 1998, the motion for reconsideration was
denied. (D.C. Dk. 82.)
Proceedings in the District Court have been stayed pending
this interlocutory appeal. (D.C. Dk. 93.)
C. CUSTODY AND BAIL STATUS
Plaintiff-appellee is presently confined by the California
Department of Corrections at California State Prison - Los
‘Angeles County in Lancaster, California. He is serving a
sentence of life imprisonment without the possibility of parole.
D. STANDARD OF REVIEW
/
Cases presenting purely or predominately legal issues are
reviewed de novo. Premier Communications Network v. Fuentes,
880 F.2d 1096, 1102 (9th Cir. 1989). Grants of summary judgment
are reviewed de novo. Baqdadio v. Nazar, 84 F. 3d 1194, 1197
(9th Cir. 1996). Denials of qualified immunity are reviewed de
novo. Baker v. Racansky, 887 F. 2d 183, 185 (9th Cir. 1989).
STATEMENT OF FACTS
Plaintiff was convicted, sentenced, and committed to the
-26-
California Department of Corrections (CDC) under the name Felton
Lee Guillory on November 21, 1984. (D.C. Dk. 1, Exh. A, p. 1.)
In April, 1992, plaintiff legally changed his name to
Shomari Naeem Shuaibe. (D.C. Dk. 1, Exh. B.) Plaintiff's legal
name change occurred prior to the enactment of California Penal
Code section 1279.5(b), which provides that, effective January i,
1995, inmates incarcerated in CDC must secure the prior approval
of the Director of Corrections before petitioning the state
superior court for a name change.
viaiacite filed an inmate sscibiabai regarding his name
change on March 10, 1994; it was denied at the third and final
(Director's) level on November 18, 1994. ('2.c. te. 3, Bex 8.3
In his complaint, plaintiff alleged that James Gomez, then
Director, California Department of Corrections, violated his
rights under the Religious Freedom Restoration Act, the First
Amendment of the United States Constitution and California law.
(D.C. Dk. 1, p. 6(c), last sentence.)
Plaintiff alleged that the other seven defendants violated
~his rights under the First Amendment and California law. (D.C.
Dk. 1.) Plaintiff names three correctional counselors (Whyte,
RT
Lorenzen and Felix), an associate warden (Yarborough), an acting
warden (Ratelle), an appeals examiner (Bluestein), and the Chief
of the Inmate Appeals (Garibay) in addition to the director.
(Id.)
Plaintiff seeks declaratory and injunctive relief. (Id., p.
8.). He also seeks "prospective damage" ranging from $2 million
from Director Gomez to $500,000 each from the three correctional
counselors, "compensatory damage" of $50,000 from each defendant,
"special damages" of $50,000 from each defendant, and $1 million
for een harm" — both peters and Ratelle. (Id.) |
The California Department of Corrections Departmental
Operations Manual (DOM) contains a provision directing
Departmental staff to use an inmate's commitment name to identify
that inmate throughout his term. (D.C. Dk. 50, pp. 3, 4, 74.)
The manual contains provisions indicating that an inmate's other
names, including legal name changes, are to be recorded as ACA's
("also committed as") or AKA's ("also known as"). On March 16,
1995, the applicable DOM section was modified to specifically
provide that an inmate's legal name change would be recorded as
an ACA for visiting and mail purposes. (D.C. Dk. 50, p. 42.)
-28-
Neither the earlier version nor the revision permitted
substitution of an inmate's new legal name for his commitment
name. (D.C. Dk. 50, p. 41.) This rule was uniform irrespective
of whether the name change was religious or other personal
reasons.
The Regulation and Policy Management Branch and the Legal
Affairs Division of the Department are responsible for monitoring
developments in the law and for incorporating them when
appropriate into revisions of the Departmental Operations Manual
(DOM) . Bendvtaentat staff are to follow the DOM. (D.C. Dk. 50,
pp. 4, 32, 37, 45 and 46.)
The discovery cut-off date was October 31, 1996. (D.C. Dk.
42.) The motion cut-off date was December 10, 1996. (D.C. Dk.
42.) The Religious Freedom Restoration Act was held
unconstitutional on June 25, 1997. City of Boerne v. Flores,
521 U.S. , 117 S. Ct. 2157, 2172, 138 L. Ed. 2nd 624 (1997).
On September 4, 1998, the District Court issued an order
partially granting and partially denying summary adjudication.
(D.C. Dk. 67.)
Defendants filed objections, pointing out, inter alia, that
-29-
information regarding plaintiff's religious name is, and was at
all times relevant herein, contained in his inmate central file
and visiting file. His religious name is listed in the Also
Committed As alias tracking information in the California
Department of Corrections' Offender Based Information System
(OBIS). (D.C. Dk. 69, Declaration of Cruz.) There are other
Department of Corrections' information management systems, most
of which do not have the capacity to accept aliases. Defendants
wish to advise this court that the Correctional Management
Information System referenced in paragraph 3 of Wagner's
declaration was not implemented and the contract was not renewed.
ARGUMENT
I
QUALIFIED IMMUNITY
Defendants are entitled to qualified immunity because they
acted in good faith and relied upon existing published
departmental regulations which were objectively reasonable on
their face in their review of plaintiff's inmate grievance.
While they had the discretion necessary to review, hear,
grant or deny plaintiff's inmate appeal, defendants Whyte,
10
-30-
Lorenzen, Felix, Yarhoxoudh, Ratelle, Bluestein, and Garibay did
not have discretion to change the Departmental policy which was
being grieved. All defendants, including former Director Cui,
reasonably assumed, and were entitled to assume, that the
Departmental Operations Manual and other published regulations,
policies and procedures were being revised, amended or updated as
necessary to comply with applicsble changes in the law.
While this Circuit appears not to have explicitly addressed
the issue, the Sixth Circuit has held that officials relying on
published regulations were entitled to qualified immunity.
Wolfel v. Morris, 972 F. 2d 712, 719-20 (6th Cir. 1992). The
Sixth Cirenit held that even though courts reviewing the
official's action subsequently found that their interpretation of
the regulation was in error, these officials were entitled to
qualified immunity. Id. This rule has found acceptance in
district courts who have recognized that qualified immunity
extends to prison officials who rely on a facially valid
regulation. See, e.g., Depugh v. Penning, 888 F. Supp. 959, 998
(N.D. Iowa 1995); Jaeger v. Dubuque County, 880 F. Supp. 640
(N.D. Iowa 1995); and Kurtz and Ross v. Denniston and Doe, 872 F.
11
it.
Supp. 631 (N.D. Iowa 1994).
The view that reliance on published regulations entitles
state employees and officials to qualified immunity finds support
in the United States Supreme Court's opinions in Harlow v.
Fitzgerald, 457 U. S. 800, 102 S. Ct. 2727, 73 L. Ed. 2d 396
(1982) and Mallory v. Briggs, 475 U.S. 335, 106 S. Ct. 1092, 89
L. Ed. 2d 271 (1986). The "objective reasonableness" standard
set forth in Harlow was specifically designed to "avoid excessive
disruption of government and permit the resolution of many
insubstantial claims on summary judgment." Harlow, 457 U.S. at
815 - 16, 102 S. Ct. at 2736 - 37. In Mallory, the Supreme Court
recognized if officers of reasonable competence could disagree on
an issue, immunity should be recognized. Thus, the doctrine of
qualified immunity also protects officials from liability for
their reasonable efforts even if their conclusions and actions
are arguably wrong. See, e.g., Moorman v. Thalacker, 83 F. 3d
970, 974 (8th Cir. 1990); Bartlett v. Fisher, 972 F. 2d 911, 914
(8th Cir. 1992); Gona v. Hanson, 880 F. 2d 95, 97-98 (8th Cir.
1989).
Here, plaintiff is a California prisoner who represented
-32-
\
himself in pro per during the initial years of this litigation.
In the case at bench, seven defendants*/ have been required to.
enter appearances, respond to discovery and file siiaidihieiiy If
they are not granted qualified immunity, these state employees
will be forced to stand trial in an action alleging that a policy
they did not institute and could not change is, in plaintiff's
eyes, unconstitutional. Plaintiff's naming of every person who
was involved in the review of his inmate appeal has caused
unnecessary disruption to governmental operations and created an
unnecessary expense to eke and federal taxpayers as well as an
undue burden on the court. The Harlow reasonableness standard
was designed and adopted so that insubstantial claims could be
resolved on summary judgment and that these disruptions, expenses
and burdens could be avoided. See, generally, Butz v. Economou,
438 U.S. 478, 98 S. Ct. 2894, 57 L. Ed. 2d 895 (1978), cited with
approval in Harlow, 475 U.S. at 815-16, 102 S. Ct. at 2736-37.
Defendants submit they are entitled to qualified immunity and
that the court erred in denying their motion for summary
judgment.
A suggestion of death on the record has been filed
for Victor Bluestein.
13
-33-
CONCLUSION
For the foregoing reasons, this Circuit should expressly
hold that state employees relying on published coguistdens,’
policies and procedures which they are unable to ignore, change,
modify or rescind are entitled to qualified immunity in section
1983 actions charging them with violations ss federal rights
because of their reliance on these regulation, policies and
procedures. The district court's order denying defendants-
appellants' motion for reconsideration should be reversed and the
matter remanded to the district court for further proceedings in
accordance with this court's order granting defendants qualified
immunity.
DATED:
BILL LOCKYER, Attorney General
of the State of California
DAVID DRULINER, Acting Chief
Assistant Attorney General
MORRIS LENK, Acting Senior Assistant
Attorney General
DARRELL LEPKOWSKY, Supervising
Deputy Attoryey Genera
Tg ane
By
JANE CATHERINE MALICH
Deputy Attorney General
Attorneys for Defendants/Appellants
14
This is to certify that the undersigned deputy does not know
of any related cases pending before this court within the meaning
-34-
STATEMENT OF RELATED CASES
of Rule 28-26, Rules of the Ninth Circuit Court of Appeals.
DATED:
BILL LOCKYER, Attorney General
of the State of California
DAVID DRULINER, Acting Chief
Assistant Attorney General
MORRIS LENK, Acting Senior Assistant
Attorney General
DARRELL LEPKOWSKY, Supervising
Deputy Attorhey General
me Ay oop
JANE CATHERINE MALICH/
Deputy Attorney General
Attorneys for Defendants/Appellants
15
-35-
STATEMENT OF COMPLIANCE WITH CIRCUIT RULE 32-1
Pursuant to Ninth Circuit Rule 32-1, I certify that the
opening brief is monospaced, has 10.5 or less characters our inch
and contains 2,536 words or 342 lines or 342 lines of text.
DATED:
BILL LOCKYER, Attorney General
of the State of California
DAVID DRULINER, Acting Chief
Assistant Attorney General
MORRIS LENK, Acting Senior Assistant
Attorney General
DARRELL LEPKOWSKY, Supervising
‘Deputy Attorney General
: Vw ‘ 4
By 4e
JANE CATHERINE MALICH
Deputy Attorney General
Attorneys for Defendants/Appellants
16
-36- -
DECLARATION OF SERVICE
Case Name: SHUAIBE, aka GUILLORY v. GOMEZ, et al.
Case No.: CV 95-1764 RAP (Mc)
I declare:
I am employed in the Office of the Attorney General, which is the office of a member of the Bar
of this Court at which member's direction this service is made. I am 18 years of age or older and
not a party to the within entitled cause; I am familiar with the business practice at the Office of
the Attorney General for collection and processing of correspondence for mailing with the United
States Postal Service. In accordance with that practice, correspondence placed in the internal
mail collection system at the Office of the Attorney General is deposited with the United States
Postal Service that same day in the ordinary course of business.
On March 3, 1999, I placed the attached
DEFENDANTS-APPELLANTS’ BRIEF -
in the internal mail collection system at the Office of the Attorney General, 300 S. Spring Street,
Los Angeles, California, 90013, for deposit in the United States Postal Service that same day in
the ordinary course of business, in a sealed envelope, postage thereon fully prepaid, addressed as
follows: |
Catherine Swysen
Sanger & Swysen
233 East Carrillo Street, Suite C
Santa Barbara, CA 93101
I declare under penalty of perjury the foregoing is true and correct and that this declaration was
executed on March 3, 1999 at Los Angeles, California.
Declarant GIL CARREON
-37~
No. 99-1896
In The
Supreme Court of the United States
C.A. TERHUNE, et al., Petitioners
? Vv.
SHOMARI NAEEM SHUAIBE, aka FELTON LEE GUILLORY, Respondent.
APPENDIX B
‘SHOMARI NAEEM SHUAIBE, aka
-38-
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, Vv.
Bluestein, John M. Ratelle, Mike Yarborough, D. Felix, D.
Lorenzen, and D. Whyte
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION
Case No.: CV 95-1764 AWT
FELTON LEE GUILLORY, (Mc)
NOTICE OF MOTION AND
MOTION FOR SUMMARY
JUDGMENT; MEMORANDUM OF
POINTS AND AUTHORITIES IN
SUPPORT THEREOF;
DECLARATIONS AND EXHIBITS
Plaintiff,
Vv.
JAMES GOMEZ, Director of
Corrections; et al.,
Defendants.
DATE: JANUARY 21, 1997
TIME: 9:30 AM
PLACE: COURTROOM OF
MAGISTRATE JUDGE McMAHON
me me eee ee ee ee ee ee ee ee ee ee ee
(Defendants’‘ receipt of the signed original declarations of
Yarborough and Garibay has been delayed due to illness and a delay
in overnight mail. Defendants will file the signed originals upon
receipt. They are submitting the facsimile signature of Yarborough
and, as an exhibit to the Malich Declaration, the approved
declaration of Garibay.)
-39-
assets. See, Complaint, Exhibit D.
: Vit
DEFENDANTS CANNOT BE LIABLE UNDER RESPONDEAT SUPERIOR
Supervisory personnel are not generally liable under the
Civil Rights Act for the actions of their subordinates under a
theory of respondeat superior and, therefore, when a named
defendant holds a supervisorial position, the causal link between
them and the claimed constitutional violation must be specifically
alleged. See, Fayle v. Strapley, 607 F.2d 858 at 862 (9th Cir.
1979); Padway v. Palches, 665 F.2d 965, 968 (9th Cir. 1982).
Director Gomez and the other defendants cannot be held
liable for the acts of their subordinates under a theory of
respondeat superior. Milton v. Nelson, 527 F.2d 1158, 1159 (9th
Cir. 1975). The failure to establish a nexus with any alleged
impropriety set forth in Plaintiff's complaint compels a summary
judgment for defendants.
VIII
DEFENDANTS ARE ENTITLED TO QUALIFIED IMMUNITY
Defendants submit that assuming arguendo any violation of
plaintiff's rights occurred whatsoever, they are entitled to
qualified immunity.
Under the rule set forth in Harlow v. Fitzgerald, 457
7.8. @60, 638, i102 6. Ct. 2727, 73 bb. BG. 24 396 (1902), «&
governmental official performing discretionary functions is
shielded from liability for civil damages insofar as his or her
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known. Ibid. The purpose of the rule is to permit such officials
ii
23.
-40-
to undertake their responsibilities without fear that they will be
held liable in damages for actions that appear reasonable at the
time but are later held to violate statutory or constitutional
rights. Id., at 819; Kraus v. County of Pierce, 793 F.2d 1105,
1108 (9th Cir. 1986).
The Harlow test is an objective one. Harlow v.
Fitzgerald, 457 U.S. at 818; Lowe v. City of Monrovia, 775 F.2d
998, 1011 (9th Cir. 1985). The reasonableness of an official’s
conduct is measured by reference to clearly established law at the
time of the acts at issue. Harlow v. Fitzgerald, 457 U.S. at 818;
Lowe v. City of Monrovia, 775 F.2d at 1011. In determining whether
the applicable law was clearly established, the court looks to
decisions of the United States Supreme Court first and then to
decisions within the circuit where the case arose. See Capoeman v.
Reed, 754 F.2d 1512, 1514 (9th Cir. 1985). In the absence of
binding precedent, the court looks to whatever decisional law is
available. Ibid. If the official's action was reasonable, even if
mistaken, then Harlow immunity applies, and an action for damages
must be dismissed. Guerra v. Sutton, 783 F.2d 1371, 1374 (9th Cir.
1986). s
Further, the contours of the "clearly established" right
"must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right." Anderson v.
Creighton, 483 U.S. 635, 640, 97 L. Ed. 2d 523, 107 S. Ct. 3034
(1987). A reasonable person standard adheres at all times. Ward
v. County of San Diego, 791 F.2d 1329, 1332 (9th Cir. 1986).
The qualified immunity test requires the court engage in
the following steps. First, the specific right or rights allegedly
24.
-41-
violated must be identified. Second, a determination of whether
that right was so clearly established as to alert a reasonable
officer to its constitutional parameters. Third, the ultimate
determination of whether a reasonable officer could have believed
lawful the particular conduct at issue. Romero v. Kitsap County,
931 F. 2d 624, 627 (9th Cir. 1991).
In this case, plaintiff wants to use his new religious
name exclusively on all prison documents and records, as well as
correspondence. There is no clearly established right to do so
I, and III. Defendants submit that the Malik
under Malik I,
triology can be read to permitted the use of a religious name on
outgoing correspondence in addition to the inmate’s committed name
but that a more extensive reading of these cases ‘e sine supported.
Because plaintiff wanted relief which was not mandated by the
Constitution, defendants are entitled to qualified immunity.
Assuming arguendo that plaintiff's complaint can be
construed as asserting a right to use both names, defendants assert
that they are still entitled to qualified immunity under the second
and third prongs of the Romero test.
Respecting the second prong, defendants assert that the
right was not clearly established enough to alert a reasonable
officer or administrator to its parameters. While the Ninth
Circuit denied Nashington state officials qualified immunity in
Malik II on the grounds that the law was clearly established that
an inmate had the right to use his committed and new legal
religious name on outgoing mail, defendants submit that the law was
not clearly established and there was, in fact, a division between
the circuits, particularly in light of Malik I’s overbreadth and
2s. [
-42-
1 | dicta that inmate entitled to use his name on “correspondence and
2 | other documents." See, e.g., Akbar V. Canney, 634 F.2d 339 (6th
3 | Cir. 1980), cert. denied, 450 U.S. 1002 (1981) (holding that prison
jo ree 5 Sowell
4 |} officials do not have to change all their records to reflect the
5 }|newly adopted name of a prisoner who has converted to Islam;
NS RIN phates OBR nal
6 | prisoners do not have a constitutional right to dictate how prison
7 | officials keep their prison records); Azeez v. Fairman, 795 F.2d
8 #1296 (7th Cir. 1986) (law not clearly established); Muhammad v.
9 ||Wainwright, 839 F. 2d 1422 (11th Cir. 1987) (prisoner who legally
10 |} changed his name for religious reason could be disciplined for
11 | refusing to respond to his committed name during roll call);
12 | Salahuddin v. Coughlin, 591 F. Supp. 353 (S.D.N.Y. 1984) (prison
13 | officials not required to recognize informal adoption of religious
14 | mames), rev’d on other grounds, 782 F.2d 1127 (2d Cir. 1986);
15 || Rahman v. Stephenson, 626 F. Supp. 886 (W.D. Tenn. 1986) (same).
16 The third factor considered under Romero is whether a
17 || reasonable officer could have believed lawful the particular
18 |} conduct at issue. Defendants maintain that a reasonable person
19 |} would have believed that following DOM did not violate plaintiff's
20 | clearly established rights. Plaintiff did not cite United States
21 || Supreme Court or Ninth Circuit authority supporting his claim that
22 | he was entitled to have his religious name substituted for his
23 || commitment name everywhere it could possibly be used in prison.
24 || Defendants submit that a reasonable officer or administrator would
25 || have believed that following DOM was lawful. Qualified immunity
26 ||extends to a prison official who relies on a facially valid
27 ||} regulation. Kurtz and Ross v. Denniston and Doe, 872 F. Supp. 631
28 | (N.D. Iowa 1994), citing Wolfel v. Morris, 972 F. 2d 712, 719 - 20
26.
Se a ee re ae er ET ©
-43-
(6th Cir. 1992) (holding at 719 that officials relying on published
regulation were entitled to qualified immunity even though courts
reviewing their action subsequently found that their interpretation
of the regulation was in error). Qualified immunity also protects
officials from liability for their reasonable efforts even if their
conclusions and actions are arguably wrong. Mallory v. Briggs, 475
U.S. 335, 106 S. Ct. 1092, 89 L. Ed. 2d 27 (1986); Moorman v.
Thalacker, 83 F. 3d 970, 974 (8th Cir. 1990); Bartlett v. Fisher,
972 F. 2d 911, 914 (8th Cir. 1992); Gona_v. Hanson, 880 F. 2d-95,
97-98 (8th Cir. 1989).
Moreover, government officials are not required to
predict the future course of constitutional law. Lumv. Jensen, 76
F.2d 1385, 1388 (9th Cir. 1989) (citing cases).
For these reasons, defendants submit that they are
entitled to qualified immunity.
VI
SINCE NONE OF PLAINTIFF’S FEDERAL CLAIMS
SURVIVE THE INSTANT MOTION, THIS COURT SHOULD
DECLINE TO EXERCISE ITs SUPPLEMENTAL
JURISDICTION OVER PLAINTIFF’S STATE CLAIMS
Plaintiff alleges that defendants have violated his
rights under Article 1, section 1 and Article 1, section 4 of the
Constitution of the State of California.
Defendants are once again hampered by the conclusory
nature of plaintiff’s pleading from being certain which of the
various inalienable rights guaranteed under Article 1, Section 1 of
the California Constitution plaintiff~ believes was violated.®
8. Article 1, section 4 of the California Constitution
guarantees free exercise of religion, among other provisions.
27.
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.