Petition for Writ of Certiorari — Texas Digital Systems, Inc. v. Telegenix, Inc.
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Supreme Court, U.S. fy)
FILED cae
021486 17° 1 2003
SUPREME COURT OF THE UNITED STATES
EDWARD ALAMEIDA, et al., Petitioners,
vV.
EARL WYATT, Respondent.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
BILL LOCKYER
Attorney General of the
State of California
ROBERT R. ANDERSON
Chief Assistant Attorney General
ALLEN R. CROWN
Acting Senior Assistant Attorney General
PAUL A. BERNARDINO
Deputy Attorney General
MICHAEL J. WILLIAMS
Deputy Attorney General
Counsel of Record
1300 I Street 4. of
P.O. Box 944255 ia
Sacramento, CA 94244-2550
Telephone: (916) 323-7163
Facsimile: (916) 324-5205
Counsel for Petitioners
se Ri OEE i MaRS tt te eas NW Da a
QUESTIONS PRESENTED
1. Whether the Prison Litigation Reform Act's
administrative remedies exhaustion requirement is a condition
precedent to a prisoner's conditions of confinement lawsuit or
an affirmative defense that must be pleaded and proven by the
defense.
2. Whether the Ninth Circuit's heightened notice
requirement for defense motions based on a prisoner's failure
to satisfy the Prison Litigation Reform Act's administrative
remedies exhaustion mandate and in summary judgment
generally is an impermissible amendment of the Federal Rules
by judicial interpretation.
PARTIES TO THE PROCEEDING
Petitioners
Petitioners in this official capacity action are Director
Edward Alameida of the California Department of Corrections
and Warden Michael Knowles of Mule Creek State Prison.
Petitioners are the official capacity successors in office to the
defendants before the district court and appellees in the Ninth
Circuit Court of Appeals.
Respondent
The respondent is Earl Wyatt (California Department of
Corrections No. C-90121). Respondent was the plaintiff in
the district court and appellant in the Ninth Circuit Court of
Appeals.
ili
TABLE OF CONTENTS
RU I nk ewe eee envccee i
Parties to the Proceeding .................... li
re iii
Table of Cited Authorities ...-............... Vv
I os ee a bd gel a kw 6k bb aw 1
puneemmaeat OF Jariadiction .... we es 1
Constitutional and Statutory Provisions Involved .... 2
Statement of the Case ...... Les Pie oe
Reasons for Granting the Writ ................ 6
I. THE PETITION SHOULD BE GRANTED TO
RESOLVE A SIGNIFICANT SPLIT IN
CIRCUIT APPROACHES TO ENFORCING
THE PRISON LITIGATION REFORM ACT'S
EXHAUSTION MANDATE .......... 6
Il. THE PETITION SHOULD BE GRANTED
BECAUSE THE WYATT II] HEIGHTENED
NOTICE REQUIREMENTS CONFLICT
WITH THE RULES EMPLOYED BY ALL
OTHER CIRCUITS AND THE FEDERAL
RULES OF CIVIL PROCEDURE ....... 9
ie ses ba 8 oe a eae at 14
iv
TABLE OF CONTENTS-Continued
Appendix
Appendix A
Second Amended Court of Appeals Opinion,
eS ¢ & ere ee eee eS ee App. 1
Appendix B
District Court Findings and Recommendations
Granting Petitioner's Motion to Dismiss, Order and
ee re ee ee ee App. 23
Appendix C
District Court Findings and Recommendations
Granting Petitioner's Motion for Summary Judgment,
Onder amd FaGgmeemt ww ewes App. 55
Appendix D
Court of Appeals Order Denying First Petition
el SE in oS CR hee eee eee App. 69
Appendix E
Court of Appeals Order Denying Second Petition for
rrr eer re a App. 71
TABLE OF AUTHORITIES
Page
CASES:
Amzura Enterprises, Inc. v. Ratcher, 18 Fed.Appx. 95,
ne ee ey ) ae 12
Baxter v. Rose, 305 F.3d 486 (6th Cir. re 7
Bennett v. King, 205 F.3d 1188 (9th Cir. 2000) ...... 8
Booth v, Churner, 206 F.3d 289 (3rd Cir. 2000) .... 8,9
Booth v. Churner, 532 U.S. 731 (2001) .......... 4,6
Brown v. Shinbaum, 828 F.2d 707, 708 (11th Cir. 1987) 11
Foulk v. Charrier, 262 F.3d 687 (8th Cir. 2001) ..... 7
Freeman v. Francis, 196 F.3d 641 (6th Cir. 1999) . ee
Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988) 11
Griffith v. Wainwright, 772 F.2d 822 (11th Cir. 1985) 12
Higginbottom v. Carter, 223 F.3d 1259 (11th Cir. 2000) 9
Hummer v. Dalton, 657 F.2d 621 (4th Cir. 1981) .... 12
Jackson v. District of Columbia, 254 F.3d 262
Se Se 8s + os or ew een 8
Jenkins v. Haubert, 179 F.3d 19 (2d Cir. 1999) .... 7,8
Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir. 1982) 11
vi
TABLE OF AUTHORITIES-Continued
Page
Martin v. Harrison County Jail, 975 F.2d 192
Cae SOE. ha Vk eee Cha aera 11
Massey v. Helman, 196 F.3d 727 (7th Cir. 1999) .... 7,8
Massey v. Wheeler, 221 F.3d 1030 (7th Cir. 2000) .. 8,9
McAlphin v. Morgan, 216 F.3d 680 (8th Cir. 2000) ... 8
McNeil v. United States, 508 U.S. 106 (1993) ....... 9
Mitchell v. Inman, 682 F.2d 886 (11th Cir. 1982) ... 12
INOGE V. R@Uy, FOS FAO ISD nw cece eesens 11
Perez v. Wisconsin Department of Corr. , 182 F.3d 532
eo Lo Ae | er ree ry A ae . 8
Porter v. Nussle, 534 U.S. 516 (2002) ........... 6,9
Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) .... 4,5
Ray v. Kertes, 285 F.3d 287 (3d Cir. 2002) ........ 8
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) .. 11,12
Ruotolo v. IRS, 28 F.3d 6 (2d Cir. 1994) ........2.05. 12
_ Smith v. Zachary, 255 F.3d 446 (7th Cir. 2001) ........ 8,9
Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002) . 6,7,8
Timms v. Frank, 953 F.2d 281 (7th Cir. 1992) ......... 11
vii
TABLE OF AUTHORITIES-Continued
Page
Underwood v. Wilson, 151 F.3d 292 (Sth Cir. 1998) ..... 9
Williams v. Bowman, 981 F.2d 901 (6th Cir. 1992) ..... 10
Wyatt v. Terhune, 280 F.3d 1238 (9th Cir. 2002) ........ 1
Wyatt v. Terhune, 305 F.3d 1033 fk es 1
Wyatt v. Terhune, 315 F.3d 1108
oo Bee eee eee 1,5,8,10,12,13
STATUTES:
SE EE Sin y les eee keira eceu cane eeeat 3,9
28 U.S.C. § 2071(a) see e cece tee e ec ee cee eeese tens 2g
ae aus haa wk kas oe ee Meo ens 10
ED, ctw hobo esa enind vs ceaccen en kh 3,9
ee Ee een vai eax ache rh eu xs cueaees 2
Be as PD 6 nov es an vb cc cceecectacvinss 7
Be PRED ioc diewesuceede sucedseeenes 7
I 6 a5 Sp 6c bide adiek saver awe ces es 2
PU Ee MPEEED 6 bs 6s Kucnscdncconsusvsae’ 7,10
Pe We og vac va bv cccanveconscncces 11
Fed. R. Civ. P. 83(a)(1) ......0. cece eee. Skee 10
PETITION FOR WRIT OF CERTIORARI
Petitioners Director Edward Alameida of the California
Department of Corrections and Warden Michael Knowles of
Mule Creek State Prison respectfully petition for a Writ of
Certiorari to review the judgment of the United States Court of
Appeals for the Ninth Circuit in this case.
OPINIONS BELOW
The Ninth Circuit's second amended opinion (App. A) is
reported at Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003)
(Wyatt ITI). Superceded published opinion in this action are
reported at Wyatt v. Terhune, 280 F.3d 1238 (9th Cir. 2002)
(Wyatt I) and Wyatt v. Terhune, 305 F.3d 1033 (9th Cir. 2002)
(Wyatt IJ). The Ninth Circuit's published denials of petitioners'
petitions for rehearing are published at Wyatt v. Terhune, 305
F.3d 1033 (9th Cir. 2002) (App. D) and Wyatt v. Terhune, 315
F.3d 1108 (9th Cir. 2002) (App. E). The unpublished District
Court opinion granting petitioners' motion to dismiss is Wyatt
v. Terhune, CIV S 99-0503 LKK JFM P (E.D. Cal. 1999).
(App. B). The unpublished District Court opinion granting
petitioners' motion for summary judgment is Wyatt v. Terhune,
CIV S 99-0503 LKK JFM P (E.D. Cal. 1999). (App. C).
STATEMENT OF JURISDICTION
The judgment of the United States Court of Appeals for
the Ninth Circuit, as reported in the second amended opinion,
was entered on January 2, 2003. (App. A). The court denied
petitioners’ petition for rehearing en banc from the first
a ee een
PARE LA ALLL LEO AR SES
amended opinion on December 31, 2002. (App. D). Petitioners
invoke this Court's jurisdiction pursuant to 28 U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
A. The Prison Litigation Reform Act of 1996 states in
relevant portion:
Tee ae ee eee ee
No action shall be brought with respect to
prison conditions under section 1983 of
this title, or any other Federal law, by a :
prisoner confined in any jail, prison, or
other correctional facility until such
administrative remedies as are available are
exhausted.
42 U.S.C. § 1997e(a).
B. The Rules Enabling Act provides in pertinent part:
The Supreme Court and all courts
established by Act of Congress may from
time to time prescribe rules for the conduct
of their business. Such rules shall be
consistent with Acts of Congress and rules
of practice and procedure prescribed under
section 2072 of this title.
ee eT ee ee ee ee
28 U.S.C. § 2071(a).
The Supreme Court shall have the power to
prescribe general rules of practice and
procedure and rules of evidence for cases
in the United States district courts
(including proceedings before magistrate
judges thereof) and courts of appeals.
28 U.S.C. § 2072(a).
C. The Federal Courts Study Act provides in pertinent
part:
The Conference shall also carry on a
continuous study of the operation and
effect of the general rules of practice and
procedure now or hereafter in use as,
prescribed by the Supreme Court for the
other courts of the United States pursuant
to law.
28 U.S.C. § 331.
STATEMENT OF THE CASE
Respondent's civil complaint alleges that the California
Department of Corrections' grooming regulations violate his
constitutional and statutory rights to the free exercise of religion
and equal protection of the laws. Petitioners moved to dismiss
based upon respondent's failure to exhaust available
administrative remedies prior to bringing suit as required under
the Prison Litigation Reform Act of 1996 (PLRA). The district
court dismissed respondent's equal protection claim, but
eo
4
preserved the free exercise claim on the basis that exhaustion of
that claim would be futile.’
Petitioners subsequently followed the district court's
direction to move for summary judgment on the remaining free
exercise claim. The magistrate judge's order referenced the
factual findings of an analogous prior action and referred
respondent to a prior order stating certain "heightened notice"
requirements for opposing Rule 56 summary judgment motions
as required by the Ninth Circuit. See Rand v. Rowland, 154
F.3d 952 (9" Cir. 1998). Petitioners then filed a properly
noticed summary judgment motion, reiterated the Rand
heightened notice, and relied extensively upon the Magistrate
Judge's prior analysis. The district court then granted summary
judgment.
Respondent appealed both the court's dismissal of his
equal protection claim and the summary judgment terminating
his free exercise claim. Respondent challenged the dismissal by
arguing that a futility exception existed for the PLRA
exhaustion mandate. The Ninth Circuit did not address this
issue, and instead held, sua sponte and without briefing by the
parties, that petitioners' motion to dismiss should have been
denied because it relied on evidence extrinsic to the complaint,
and that the district court failed to convert the motion to one for
summary judgment. The court further sua sponte reversed the
district court by holding that PLRA exhaustion constituted an
affirmative defense for which petitioners bore the burden of
proof, and that petitioners had failed to meet that burden.
1. Petitioners note that the district court ruled without the benefit of this
Court's subsequent PLRA decision in Booth v. Churner, 532 U.S. 731 (2001), which
instructed that courts should “not read futility or other exceptions into statutory
exhaustion requirements where Congress has provided otherwise.” Jd. at 741 n. 6.
5
Respondent's appeal from summary judgment argued that
the magistrate judge took judicial notice of a prior action's
factual determinations in violation of Rule 201 of the Federal
Rules of Evidence. The Ninth Circuit explicitly declined to rule
on this issue and instead reversed, again sua sponte and without
party briefing, on the basis that respondent failed to receive fair
notice of the requirements for opposing summary judgment
under the Rand heightened notice doctrine.
Petitioners then petitioned for rehearing with a suggestion
for rehearing en banc on the basis that PLRA exhaustion was a
condition precedent to suit for which respondent bore the
pleading burden, and that a motion to dismiss provided a proper
procedural mechanism for this threshold challenge. The Wyatt
Panel then ordered supplemental briefing. Without granting
rehearing, the Wyatt Panel ruled that PLRA exhaustion must be
challenged under the "unenumerated" section of Rule 12(b) of
the Federal Rules of Civil Procedure, that it remained an
affirmative defense for which petitioners bore the burden of
proof, and that the proof tendered was insufficient to affirm the
district court below. The Wyatt Panel also sua sponte extended
Rand heightened notice requirements from Rule 56 summary
judgment motions to Rule 12 motions to dismiss. The Ninth
Circuit also rejected the suggestion for a rehearing en banc.
Petitioners then petitioned for an en banc rehearing from
the first amended opinion. This petition challenged the Wyatt
Panel's ruling that Federal Rules notice and the two heightened
notices stating the requirements for opposing summary
judgment failed to provide respondent with sufficient notice.
The petition further challenged the Wyatt Panel's decision to
extend Rand heightened notice requirements to motions to
dismiss. Without further briefing or rehearing, the Wyatt Panel
filed a second amended opinion limiting the Rand extension to
motions to dismiss challenging administrative exhaustion, and
maintaining its prior Rand extension in the summary judgment
—
6
context. The Ninth Circuit also rejected petitioner's petition for
rehearing en banc. Petitioners then petitioned this Court for a
writ of certiorari.
REASONS FOR GRANTING THE WRIT
I.
THE PETITION SHOULD BE
GRANTED TO RESOLVE A
SIGNIFICANT SPLIT IN CIRCUIT
APPROACHES TO ENFORCING THE
PRISON LITIGATION REFORM
ACT'S EXHAUSTION MANDATE
This Court has recognized the importance of PLRA exhaustion
arguments in the federal courts by recently publishing two
unanimous opinions reversing appellate court attempts to limit
the exhaustion mandate. Porter v. Nussle, 534 U.S. 516 (2002);
Booth v. Churner, 532 U.S. 731 (2001). Federal caseload
profiles report that prisoner actions comprise approximately
one-fifth of all federal cases, numbering more than the federal -
courts' entire criminal docket.” However, this Court has not yet
addressed the pleading requirements for Congress' PLRA-
enacted defenses, nor that statute's heightened pleading
requirement through the rule announced in Swierkiewicz v.
Sorema, N.A., 534 U.S. 506 (2002). Accordingly, this
important and timely issue remains unresolved.
Two circuits have attempted to reconcile the PLRA
exhaustion mandate with the Swierkiewicz opinion's model for
2. The federal judiciary’s most recent and historical caseload profiles can
be electronically accessed at http:/Awww.uscourts.gov.
enacting pleading requirements, and reached diametrically
opposed results. In Baxter v. Rose, 305 F.3d 486 (6 Cir.
2002), the Sixth Circuit held that the PLRA created a formal
and statutory requirement that prisoner-plaintiffs plead and
establish exhaustion as a condition precedent to suit. Id. 489-
90. Baxter based this holding on its own precedent and the
integrated nature of the PLRA statutory mechanism. Under the
PLRA, the courts, rather than defendants, bear the primary
burden of screening complaints where no relief may be granted.
Id. at 4901; see 28 U.S.C. § 1915A(b)(1); 42 U.S.C. §
1997e(c\(1); 28 U.S.C. § 1915(e)(2)(B) (sections mandating
initial case screening and supplemental sua sponte dismissal
authority).
In Wyatt III, the Ninth Circuit reached a contrary result.
The Wyatt IIT Panel found that Congress did not use sufficiently
explicit language to create a pleading requirement under
Swierkiewicz. (App. A at 11-13) Wyatt III explicitly disagreed
with the Sixth Circuit's approach to PLRA exhaustion. (App.
A at 13 n. 12.) Accordingly, Wyatt II] creates an inter-circuit
conflict applying this Court's Swierkiewicz decision to PLRA
exhaustion.
The remaining circuit authority is badly fractured with
regard to the procedures governing PLRA exhaustion
challenges, and silent on the application of Swierkiewicz.
Courts holding that PLRA exhaustion is an affirmative defense,
including those referenced by Wyatt IIT, derive their view from
dicta in Jenkins v. Haubert, 179 F.3d 19, 28-29 (2d Cir. 1999),
noted as the court was dismissing on other grounds. See App.
A at 1la; Massey v. Helman, 196 F.3d 727, 734-35 (7th Cir.
1999) (relying on Jenkins); Foulk v. Charrier, 262 F.3d 687,
697 (8th Cir. 2001) (relying on Massey). The Second Circuit
statenient, in its entirety, reads as follows: "Because, under the
PLRA, aprisoner must exhaust administrative remedies before
filing a § 1983 suit and, in the case of suits seeking damages for
__LOO OEE
mental or emotional injuries, make a prior showing of physical
injury, a defendant in a prisoner § 1983 suit may also assert as
an affirmative defense the plaintiff's failure to comply with the
PLRA's requirements." Jenkins, 179 F.3d 19, 28-29.’
The circuits addressing this issue are also internally
divided. The Seventh Circuit's Massey v. Helman decision is
contradicted by Massey v. Wheeler, 221 F.3d 1030, 1034 (7th
Cir. 2000), which stated that "dismissal on the pleadings is
proper for failure to plead the exhaustion of all administrative
~ remedies." Other Seventh Circuit cases also state that
exhaustion is a "precondition" to suit. See Smith v. Zachary,
255 F.3d 446, 451-52 (7th Cir. 2001); Perez v. Wisconsin
Dep't of Corr., 182 F.3d 532, 534-36 (7th Cir. 1999). The
Eighth Circuit is similarly self-contradicting as it has held that
prisoner-plaintiffs must allege exhaustion in their complaints
and attach proof if it is available. McAlphin v. Morgan, 216
F.3d 680, 682 (8th Cir. 2000).
Similarly, the Third Circuit's Ray v. Kertes, 285 F.3d 287,
295 (3d Cir. 2002), adopted Wyatt, but is inconsistent with the
facts underlying its prior decision in Booth v. Churner, 206 F.3d
289, 292-93 (3™ Cir. 2000) (sua sponte dismissal based on
prisoner's failure to plead exhaustion), aff'd, 532 U.S. 731
(2001). This division within the Third Circuit mirrors that of
the Ninth. Prior to Wyatt III, the Ninth Circuit had itself
recognized without comment a district court's sua sponte
dismissal of a prisoner's action based on his failing to plead
exhaustion. Bennett v. King, 205 F.3d 1188, 1189 (9th Cir.
2000).
3. Wyatt Il also relies on Jackson v. District of Columbia, 254 F.3d 262
(D.C. Cir. 2001), to argue PLRA exhaustion is an affirmative defense. Jackson did
not decide this issue, however, and instead simply ruled that the defendants’ attempt
to assert exhaustion as an affirmative defense was untimely. Jd. at 267.
The Fifth Circuit follows a condition-precedent approach
similar to that of the Sixth Circuit requiring that the prisoner
plead exhaustion with "sufficient specificity" to prevent sua
sponte dismissal. Underwood v. Wilson, 151 F.3d 292, 294 (Sth
Cir. 1998). Additionally, in resolving Porter v. Nussle, 534
U.S. 516 (2002), this Court favorably referenced four circuit
court opinions each of which follows a "condition precedent" or
"precondition" approach. Smith v. Zachary, 255 F.3d 446, 451-
52 (7th Cir. 2001) ("precondition"), Higginbottom v. Carter,
223 F.3d 1259, 1261 (11th Cir. 2000) (same); Booth v.
Churner, 206 F.3d 289, 292-93 (3™ Cir. 2000) (sua sponte
dismissal based on prisoner's failure to plead exhaustion), aff'd,
532 U.S. 731 (2001); Freeman v. Francis, 196 F.3d 641, 643-
44 (6th Cir. 1999).
II.
THE PETITION SHOULD BE
GRANTED BECAUSE THE WYATT IIT
HEIGHTENED NOTICE
REQUIREMENTS CONFLICT WITH
THE RULES EMPLOYED BY ALL
OTHER CIRCUITS AND THE
FEDERAL RULES OF CIVIL
PROCEDURE
This Court has recognized that "experience teaches that
strict adherence to the procedural requirements specified by the
legislature is the best guarantee of evenhanded administration
of the law." McNeil v. United States, 508 U.S. 106, 112-13
(1993). Congress has also delegated rules-making authority
through legislation such as the Rules Enabling Act and Federal
Courts Study Act. 28 U.S.C. §§ 331, 2071(a), 2072(a). This
Court is accordingly authorized to prescribe such rules "for the
other courts of the United States pursuant to law." 28 U.S.C. §
331. Lower federal courts also possess authority, so long as
10
they comport with 28 U.S.C. § 2072, to give public notice and
then promulgate rules governing their own operations. Fed. R.
App. P. 47(a)(1); Fed. R. Civ. P. 83(a)(1). This Court's
Swierkiewicz opinion reiterated that rules modification "must be
obtained by the process of amending the Federal Rules, and not
by judicial interpretation." Swierkiewicz, 534 U.S. at 515.
In Wyatt II, the Ninth Circuit declined to follow this
approach, and instead extended a judicially-crafted, heightened
notice doctrine that requires district courts or defendants to
affirmatively advise a prisoner-plaintiff how to defeat the
defendants' summary judgment motion. Prior to Wyatt II, the
Ninth Circuit limited this doctrine to the summary judgment
context, reasoning that the complexity and terminal result of
summary judgment rendered Federal Rules notice requirements
inadequate. The Ninth Circuit then published Wyatt JI,
extending the heightened notice doctrine both to Rule 12
motions to dismiss and to other situations where summary
judgment might be unusually complex in the reviewing court's
opinion. (App. A at 5 n. 6.) The Wyatt IIT Panel sua sponte
reversed the district court on this ground and expressly declined
to rule on the issue respondent raised on appeal. (App. A at
11.) The Wyatt IIT Panel then found the district court's initial
heightened notice and subsequent reminder of that notice
inadequate, as well as petitioner's own heightened notice
warning. The Ninth Circuit further rejected petitioners request
for an en banc rehearing to address this sua sponte ruling.
Diametrically opposed to the Ninth Circuit's Wyatt
approach, the Sixth Circuit requires only the notice specified by
the Federal Rules for motions practice. Williams v. Browman,
981 F.2d 901, 903-04 (6th Cir. 1992). The First, Third, Eighth,
and Tenth Circuits have filed no opinions creating a heightened
notice requirement, indicating that the notice requirements
formally promulgated in the Federal Rules appear to govern in
these jurisdictions as well.
11
The Fifth Circuit concurs, and has held that "particularized
additional notice of the potential consequences of a summary
judgment motion and the right to submit opposing affidavits
need not be afforded a pro se litigant." Martin v. Harrison
County Jail, 975 F.2d 192, 193 (Sth Cir. 1992). Martin
recognized that "the notice afforded by the Rules of Civil
Procedure and the local rules" sufficiently notices a pro se party
of the need to oppose a summary judgment motion. Martin,
975 F.2d at 193. In rejecting a heightened notice rule, the
Martin court distinguished itself from other jurisdictions that
have adopted the rule in various forms. Jd. at 193 n.2 (citing
Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992); Graham v.
Lewinski, 848 F.2d 342, 344 (2d Cir. 1988); Brown v.
Shinbaum, 828 F.2d 707, 708 (ilth Cir. 1987);
Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir. 1982); and
Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975)).*
Of the heightened notice rules rejected by Martin, the D.C.
Circuit and Seventh Circuit version arose from the Federal
Rules' requirement that converting a Rule 12(b)(6) motion to
dismiss for failing to state a claim carries with it the
requirement that a plaintiff receive a "reasonable opportunity to
present all material made pertinent to such a motion by Rule
56" summary judgment proceedings. Fed. R. Civ. P. 12(b).
This conversion occurs exclusively in the Rule 12(b)(6) context,
and only where a district court relies on materials extrinsic to
the pleading. Jd. Both the D.C. Circuit and Seventh Circuit
have held that such conversioris require that the district court
notify a prisoner-plaintiff of the need to respond and the time in
which a response will be accepted. Neal v. Kelly, 963 F.2d at
456. The Seventh Circuit subsequently extended this rule to a
notice requirement for all pro se litigants. Timms v. Frank, 953
4. Petitioners note that these courts largely lacked the rules-promulgating
guidance of the Rules Enabling Act and Federal Courts Study Act as both were
enacted in 1998.
12
F.2d 281, 285 (7th Cir. 1992). However, both circuits' rules rest
squarely on interpreting the Rule 12(b) conversion requirement.
The Fourth Circuit requires that a pro se "plaintiff be
advised of his right to file counter-affidavits or other responsive
material and alerted to the fact that his failure to so respond
might result in the entry of summary judgment against him."
Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975) (per
curiam). The court's opinion uses terms broadly encompassing
all pro se litigants, but was factually arising from a prisoner-
plaintiff action. The Fourth Circuit, in application, applies this
rule exclusively to prisoner-plaintiffs. Amzura Enterprises, Inc.
v. Ratcher, 18 Fed.Appx. 95, 105 n. 11 (4th Cir. 2001). The
Fourth Circuit also applies what amounts to a unique "harmless
error" rule where a prisoner-litigant is knowledgeable of the
rules governing summary judgment independent of receiving
heightened notice. Hummer v. Dalton, 657 F.2d 621, 624-25
- (4th Cir. 1981).
The Second Circuit follows a more expansive rule that
"(t]he failure of a district court to apprise pro se litigants of the
consequences of failing to respond to a motion for summary
judgment is ordinarily grounds for reversal." Ruotolo v. IRS,
28 F.3d 6, 8 (2d Cir. 1994). The Eleventh Circuit applies its
similar rule to all litigants, requiring "that an adverse party must
be given express, ten-day notice of the summary judgment
rules, of his right to file affidavits or other material in
opposition to the motion, and of the consequences of default."
Griffith v. Wainwright, 772 F.2d 822, 825 (11th Cir. 1985).
The Eleventh Circuit also once applied this rule to motions to
dismiss, though no published opinion has applied this rule
subsequently. Mitchell v. Inman, 682 F.2d 886, 887 (11th Cir.
1982) (per curiam). Accordingly, these courts most closely
approximate the Wyatt I/T rule, though even they do not require
multiple heightened notices within a single action or to address
a single summary judgment motion.
13
Accordingly, the Fifth and Sixth Circuits explicitly require
only the notice required by the Federal Rules. The First, Third,
Eighth, and Tenth Circuits have also never created a judicial
extension to these notice provisions. In contrast, the Fourth and
D.C. Circuits have judicially mandated a prisoners-only
heightened notice requirement in the summary judgment
context, while the Second and Seventh Circuits apply an
analogous heightened notice rule to all pro se litigants. Only
the Ninth and Eleventh Circuits have applied it to a Rule 12
motion not converted to summary judgment, though the
Eleventh has not repeated this application in nearly 20 years.
Only the Ninth Circuit has required heightened notice multiple
times during the course of a single summary judgment motion,
and only Wyatt IIT has recently applied this doctrine to motions
to dismiss.
14
CONCLUSION
Petitioners respectfully request that this Court grant their
petition for a writ of certiorari in order to resolve these
important and divisive issues.
Respectfully submitted,
BILL LOCKYER, Attorney General
’ of the State of California
ROBERT R. ANDERSON
—— Chief Assistant Attorney General
ALLEN R. CROWN
Acting Senior Assistant
Attorney General
PAUL A. BERNARDINO
Deputy Attorney General
MICHAEL J. WILLIAMS
Deputy Attorney General
Counsel of Record :
P.O. Box 944255
Sacramento, CA 94244-2550
(916) 323-7163 _
App. 1
APPENDIX A
Opinion, 305 F.3d 1033, withdrawn and superseded
United States Court of Appeals,
Ninth Circuit.
Earl Wayne WYATT, Plaintiff-Appellant,
V.
Cal A. TERHUNE; Suzan Hubbard, Warden, Defendants-
Appellees.
No. 00-16568.
Argued and Submitted Dec. 4, 2001.
Filed Jan. 2, 2003.
Inmate brought § 1983 action against California
Department of Corrections, alleging that prison hair-length
regulations violated his constitutional and statutory rights to
free exercise of religion and equal protection of the laws. The
United States District Court for the Eastern District of
California, Lawrence K. Karlton, J., granted summary judgment
for Department on First Amendment claim and dismissed
religious discrimination and equal protection claims. Inmate
appealed. After denying rehearing en banc, the Court of
Appeals, Fisher, Circuit Judge, held that: (1) trial court did not
comply with fair notice doctrine in granting summary judgment
on First Amendment claim; (2) Prison Litigation Reform Act's
(PLRA) administrative exhaustion requirement creates defense
to be raised and proved by defendants; and (3) alleged failure to
exhaust administrative remedies under PLRA did not support
dismissal of equal protection claim.
Reversed and remanded.
App. 2
Opinion, 305 F.3d 1033, withdrawn and superseded.
Grace K. Won, Farella Braun & Martel LLP, San
Francisco, California, for the plaintiff-appellant.
Bill Lockyer, Attorney General, Robert R. Anderson,
Chief Assistant Attorney General, Paul D. Gifford, Senior
Assistant Attorney General, Michael J. Williams, Paul A.
Bernardino, Deputy Attorneys General, Sacramento, California,
for the defendants-appellees.
Appeal from the United States District Court for the
Eastern District of California; Lawrence K. Karlton, Chief
Judge, Presiding. D.C. No. CV-99- 00503-LKK.
Before BRIGHT, [FN*] B. FLETCHER and FISHER,
Circuit Judges.
FN* The Honorable Myron H. Bright, Senior Circuit
Judge, United States Court of Appeals for the Eighth
Circuit, sitting by designation.
FISHER, Circuit Judge.
Appellant Earl Wayne Wyatt, a Rastafarian inmate, filed
this
§ 1983 action challenging the California Department of
Corrections’ hair length regulations as a violation of his
constitutional and statutory rights to free exercise of religion
and equal protection of the laws. This appeal concerns three
procedural issues rather than the merits of Wyatt's claims.
In addressing Wyatt's First Amendment claim, the
magistrate judge assigned to the case served on the parties a
copy of his findings of fact from a different case challenging the
grooming regulations and directed defendants to file a summary
App. 3
judgment motion. He did not explain to Wyatt, a pro se
prisoner, the significance of the findings, that he intended to
take judicial notice of the findings in Wyatt's case or whether or
how Wyatt could dispute the findings in the summary judgment
process. Once defendants filed their summary judgment
motion, the magistrate judge indeed took extensive judicial
notice of his prior findings and recommended thai the district
court grant defendants summary judgment; the district court
adopted the findings and recommendation of the magistrate
judge in full. On appeal, Wyatt challenges the magistrate
judge's novel procedure as an improper use of judicial notice.
We do not decide whether use of the prior findings--at least in
some fashion--was improper use of judicial notice. Rather, we
conclude the procedure adopted here was flawed because it did
not meet the requirements of our fair notice doctrine, under
which the district court bears the responsibility of assuring that
a pro se prisoner litigant receives meaningful notice of summary
judgment procedures and requirements. We therefore reverse
the summary judgment on that ground.
The district court also dismissed Wyatt's religious
discrimination claim under a provision of the Religious
Freedom Restoration Act (RFRA) that had been declared
unconstitutional. While appeal of that dismissal *1112 was
pending, Congress enacted the Religious Land Use and
Institutionalized Persons Act (RLUIPA), which replaces the
void provisions of RFRA. We have discretion to remand a case
to the district court for further consideration when new laws
likely to influence a decision have become effective during the
pendency of an appeal. On remand, the district court should
grant Wyatt leave to amend his complaint to include a claim
under RLUIPA.
The district court also granted defendants’ motion to
dismiss Wyatt's equal protection claim under Rule 12(b) of the
Federal Rules of Civil Procedure, ruling that Wyatt had failed
App. 4
to demonstrate exhaustion of the inmate appeals process before
filing suit, as required by the Prison Litigation Reform Act
(PLRA). Whether the PLRA exhaustion requirement is a
defense or a pleading requirement is an issue of first impression
in this Circuit. We adopt the rule of the majority of circuits and
hold that it is a defense that must be raised and proved by the
defendant. The burden of establishing nonexhaustion therefore
falls on defendants. Because defendants did not meet this
burden, we also reverse the dismissal of Wyatt's equal
protection claim.
Facts and Procedural Background
Wyatt is an inmate incarcerated at Mule Creek State
Prison in Ione, California, serving a 17-year sentence for
voluntary manslaughter. As a tenet of his Rastafarian
religion, Wyatt wears his hair in dreadlocks. Defendants do
not dispute that Wyatt's religious beliefs are sincerely held or
that dreadlocks are a means of practicing the Rastafarian
religion. Seeking temporary and permanent injunctive relief,
Wyatt filed this § 1983 action in pro per against Cal Terhune
and Susan Hubbard ("defendants"), wardens of the prison,
challenging state prison grooming regulations, Cal.Code
Regs. tit. 15. § 3062(e), that require him to cut his hair.
[FN1] Female inmates are not subject to the same
regulations. [FN2] Wyatt has beer disciplined by prison
officials for refusing to comply with the regulations. Wyatt x
alleged that the regulations violate his First Amendment right :
to free exercise of religion, his Fourteenth Amendment right
to equal protection of the laws and his statutory free exercise
right under the Religious Freedom Restoration Act (RFRA),
42 U.S.C. § 2000bb et seg. The district court adopted the
findings and recommendations of the magistrate judge and
dismissed Wyatt's RFRA claim because RFRA has been
declared unconstitutional as applied to states, and dismissed
Wyatt's equal protection claim for failure to exhaust
App. 5
administrative remedies as required by the PLRA, 42 U.S.C.
§ 1997e(a). Adopting the findings and recommendation of
the magistrate judge, who in turn had taken judicial notice of
findings of fact from a similar case, the court then granted
summary judgment on Wyatt's remaining First Amendment
claim, ruling that the grooming regulations were rationally
related to legitimate penological interests.
FNL. The regulations provide in part: "A male
inmate's hair shall not be longer than three inches and
shall not extend over the eyebrows or below the top of
the shirt collar while standing upright. Hair shall be
cut around the ears, and sideburns shall be neatly
trimmed, and shall not extend below the mid-point of
the ear. The width of the sideburns shall not exceed
one and one-half inches and shall not include flared
ends." Cal.Code Regs. tit. 15. § 3062(e). The
grooming regulations were promulgated by the
California Department of Corrections as an
emergency regulation on October 16, 1997.
FN2. A "female inmate's hair may be any length"; if
"hair is long, it shall be worn up in a neat, plain style,
which does not draw undue attention to the inmate."
Id. § 3062(f).
#1113 We have jurisdiction under 28 U.S.C. § 1291 and we
reverse.
I. First Amendment Claim
[1] By way of an order dated February 4, 2000, the
magistrate judge served a copy of his findings and
recommendations in Toyebo v. Terhune, No. S-98- 0292
(E.D.Cal. Aug. 28, 1990), on the parties and directed defendants
to file a motion for summary judgment with respect to Wyatt's
First Amendment claim. [FN3] Toyebo, which the magistrate
App. 6
judge previously had decided, involved an unsuccessful
challenge to the grooming regulations by a group of Native
American inmates. The magistrate judge's order did not say
anything about taking judicial notice of the Toyebo findings or
how they might otherwise be relevant to a summary judgment
motion. The February 4 order did, however, refer the parties to
a June 14, 1999, order of the magistrate judge that included an
explanation of how Wyatt, a pro se prisoner, could oppose
summary judgment and stated that facts that were not disputed
would be accepted as true.
FN3. The February 4, 2000 order states in relevant part:
In another action filed in this court, Toyebo v. Terhune,
No. CIV S-98- 0292 GEB JFM P, this court found that
the plaintiffs in that action were unlikely to succeed on
the merits of their First Amendment challenge to the
[California Corrections Department] grooming
regulations. A copy of the findings and
recommendations filed in the Toyebo case, and a copy
of the order of the district court adopting those findings
and recommendations is appended to this order. A
In light of the findings in Toyebo, defendants will be
directed to file a motion for summary judgment. Said
motion shall be briefed in accordance with the
provisions of Local Rule 78-230(m) and this court's
_ order filed June 14, 1999.
Defendants filed the invited motion for summary
judgment. They attached a copy of the Toyebo findings as an
exhibit, but did not explain in their motion whether or how the
findings were being proffered as evidence. At that time, Wyatt
did not object to defendants' attachment of the Toyebo findings
as an exhibit, nor did he submit evidence refuting them.
In a written report to the district court judge
recommending summary judgment, the magistrate judge took
App. 7
extensive judicial notice of the Toyebo findings. Relying on the
Toyebo findings, the magistrate judge adopted as undisputed
facts: (1) the list of defendants' justifications for the grooming
regulations; (2) defendants' testimony regarding the adverse
impact of accommodating religion by providing an exception to
the regulations; and (3) the finding that the increase in size of
the prison population had escalated the number of searches that
must be conducted._[FN4] Based almost entirely on these
judicially noticed findings, the magistrate judge applied the
four- factor analysis for alleged violations of prisoners’
constitutional rights under Turner v. Safley, 482 U.S. 78, 89-91,
107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), deemed Wyatt's case
controlled
by Friedman _y. Arizona, 912 F.2d 328 (9th Cir.1990)
(upholding prison grooming regulations prohibiting facial hair),
and recommended that the district court enter summary
judgment in favor of defendants. The district court adopted the
magistrate judge's recommendation.
FN4. The magistrate judge took judicial notice of
several other facts from Toyebo as well, including the
penalties imposed on an inmate who fails to comply
with the grooming regulations and that no religious
exception exists for the grooming regulations. These
facts, however, were independently supported by other
evidence in the record of this. case, including the
regulations themselves.
Although Wyatt néver formally objected to judicial
notice of the Toyebo findings; he *1114 did state in his
objections to the magistrate judge's report:
App. 8
The Magistrate furthermore relies upon the ruling in
[Toyebo]. Plaintiff's objections are based upon the fact
the court has failed to take into consideration plaintiff's
action on a case by case basis for which differs from
that of Friedman and Toyebo, surrounding essential
issues and arguments that differ in this action before the |
court.
[2] Represented by counsel in this appeal, Wyatt
contends that the magistrate judge's use of the Toyebo findings
constituted an improper procedural shortcut and that judicial
notice was improper under Rule 201 of the Federal Rules of
Evidence. Although we appreciate that the magistrate judge
was attempting to utilize an expeditious procedure, we have
held that taking judicial notice of findings of fact from another
case exceeds the limits of Rule 201. See M/V Am. Queen v. San
Diego Marine Constr. Corp., 708 F.2d 1483, 1491 (9th
Cir.1983) (stating general rule that "a court may not take
judicial notice of proceedings or records in another cause so as
to supply, without formal introduction of evidence, facts
essential to support a contention in a cause then before it").
[FNS] We need not resolve this appeal on that basis, however,
because we conclude that the novel summary judgment
procedure the magistrate judge adopted, without clear
instructions to Wyatt on how to navigate the procedure, runs
afoul of our decision in Rand v. Rowland, 154 F.3d 952 (9th
Cir.1998) (en banc), and requires reversal.
FNS. Factual findings in one case ordinarily are not
admissible for their truth in another case through
judicial notice. See 21 Charles Alan Wright & Kenneth
A. Graham, Jr., Federal Practice & Procedure § 5106
(Supp.2001) (stating "courts should distinguish between |
taking judicial notice of the truth of some extrajudicial
fact recited in a court record and the use of those facts
for some purpose that does not depend on the truth of
App. 9
the facts recited"). In agreement with M/V Am. Queen
other circuits have held that a court may not take
judicial notice of findings of fact from a different case
for their truth. Taylor v. Charter Med. Corp., 162 F.3d
827, 830 (Sth Cir.1998); Int'l Star Class Yacht Racing
Ass'n v. Tommy Hilfiger U.S.A., Inc., 146 F.3d 66, 70
(2d Cir.1998); Gen. Elec. Capital Corp. v. Lease
Resolution Corp., 128 F.3d 1074, 1082- 83 & n. 6 (7th
Cir.1997); Orix Credit Alliance, Inc. y. Delta Res., Inc.
(In_re Delta Res., Inc.), 54 F.3d 722, 726 (11th
Cir.1995); United States v. Jones, 29 F.3d 1549, 1553
(11th Cir.1994); Holloway v. Lockhart, 813 F.2d 874,
878-79 (8th Cir.1987).
[3][4] Under our precedents, the district court bears the
responsibility of assuring that a pro se prisoner litigant receives
fair notice of summary judgment requirements. Rand, 154 F.3d
at 960. Because of "the complexity of the summary judgment
rule combined with the lack of legal sophistication of the pro se
prisoner," the prisoner must obtain notice "phrased in ordinary,
understandable language calculated to apprise an
unsophisticated prisoner of his or her rights and obligations
under Rule 56." Jd.; see Klingele v. Eikenberry, 849 F.2d 409,
411-12 (9th Cir.1988) (holding that district courts are obligated
to advise prisoner pro per litigants of Federal Rule of Civil
Procedure 56 requirements). [FN6]
FN6. Rand requires that the prisoner be "informed of his
or her right to file counter-affidavits or other responsive
evidentiary materials and be alerted to the fact that
failure to do so might result in the entry of summary
judgment against the prisoner." 154 F.3d at 960. The
pro se prisoner must be "informed of the effect of losing
on summary judgment." Jd. The notice also should state
that if the pro se prisoner fails to controvert the moving
App. 10
party with opposing counter-affidavits or other
evidence, the moving party's evidence might be takenas -
the truth, and final judgment may be entered against the
prisoner without a trial. Jd. at 960-61.
*1115 Assuming that the magistrate judge's June 14, 1999 order
provided Wyatt with fair notice pursuant to Rand, the
magistrate judge's February 4, 2000 order undermined that
earlier notice. The latter order does not explain what purpose
the Toyebo findings would serve, whether or how Wyatt could
refute them or how they were to be reconciled with the June 14
Rand notice. Nor could Wyatt turn to the June 14 order for
answers to these questions. That order makes no reference to
any procedure to be followed when the court serves on the pro
se prisoner judicial findings of fact from another case.
Although the order explains the procedure Wyatt could follow
to "contradict defendant's evidence with counteraffidavits or
other admissible evidence" (emphasis added), it offers no clear
guidance on whether Wyatt could refute the Toyebo findings
and, if so, how.
[5] A Rand notice is ineffective when a subsequent
order injects renewed uncertainty and complexity into the
summary judgment procedure, creating the potential for those
harms that our fair notice rule strives to avoid. When the
magistrate judge issued his order of February 4, he was
obligated by the principles we affirmed in Rand to provide
Wyatt with fair notice of the significance of his act of serving
, the Toyebo findings on the parties, Wyatt's right to refute them,
how to refute them and the consequences of his failure to do so.
Under the right circumstances and with a proper regard
for the fairness of the proceedings, a district court is not barred
from utilizing fair and proper procedures that may economize
judicial resources. Pro se prison litigants, however, should not
be saddled with findings from prior cases where they had no say
App. 11
in the development of the record or in the strategic decisions
from which that record sprang. Because the magistrate judge
did not take the steps required by Rand, we hold that the
summary judgment procedure was in error and reversal is
required. [FN7]
FN7. For similar reasons, we express concern with the
magistrate judge's refusal to grant Wyatt's informal
request, contained
in his opposition to defendants’ motion for summary
judgment, for a stay pending discovery. The magistrate
judge dismissed Wyatt's request for a stay on the ground
that Wyatt had not complied with Rule 56(f). The
court's June 14, 1999 order suggests that a request for a
stay, whether or not in conformity with Rule 56/(f),
would be considered by the court, stating, "[i]f there is
some good reason why such facts are not available to
plaintiff when required to oppose such a motion, the
court will consider a request to postpone considering
defendant's motion." Wyatt's request "to stay
defendants['] motion until plaintiff has been [served]
with the requested discovery [responses by] defendants"
appears to have complied with the June 14 order.
II. RLUIPA Claim
In his complaint, Wyatt alleged a violation of the
Religious Freedom Restoration Act (RFRA), 42 U.S.C. §
2000bb-1. The district court dismissed the claim because City
of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d
624 (1997), had declared RFRA unconstitutional as applied to
the states. Subsequently, Congress enacted the Religious Land
Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. §
2000cc-1, which provides rights similar to those delineated in
RFRA. Wyatt contends that his RFRA claim should be
construed as a RLUIPA claim and reinstated. Defendants argue
App. 12
that RLUIPA was not pled or argued below and, therefore, is
not before this court.
[6] Although we construe a pro se prisoner's pleadings
liberally, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.2000),
we decline to construe Wyatt's RFRA claim as a RLUIPA claim
or to consider the merits of Wyatt's RLUIPA claim for *1116
the first time on appeal. Nonetheless, the district court on
remand should grant Wyatt leave to amend his complaint to
plead a claim under RLUIPA. "This court may remand a case
to the district court for further consideration when new cases or
laws that are likely to influence the decision have become
effective after the initial consideration." White Mountain
Apache Tribe v. Arizona, 649 F.2d 1274, 1285-86 (9th
Cir.1981).
III. Equal Protection Claim
In his § 1983 complaint, Wyatt alleged that the prison
grooming regulations violate the Equal Protection Clause of
the Fourteenth Amendment because they apply to men but
not to women. The district court dismissed this claim for
failure to satisfy the exhaustion requirement of the Prison
Litigation Reform Act (PLRA), which states:
No action shall be brought with respect to prison
conditions under section 1983 of this title, or any
other Federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such
administrative remedies as are available are
exhausted.
42 U.S.C. § 1997e(a).
App. 13
A. Procedural History
Defendants raised nonexhaustion in a Rule 12 motion to
dismiss, as well as pleading it as an affirmative defense. The
motion argued for dismissal for lack of subject matter
jurisdiction under Rule 12(b)(1) and also argued that
"regardless" of whether nonexhaustion deprived the court of
jurisdiction, Wyatt's compizint should be dismissed for failure
to exhaust available prison remedies. Defendants now urge us
to construe this motion not only as a 12(b)(1) motion to dismiss
for want of subject matter jurisdiction but also as a
nonenumerated Rule 12 motion to dismiss for failure to exhaust
administrative remedies.
Defendants' arguments to the district court in support of
dismissal reflected uncertainty over how PLRA exhaustion
should be characterized. First, defendants argued as if PLRA
exhaustion imposes a heightened pleading requirement on
prisoners, asserting that Wyatt's equal protection claim should
be dismissed because his complaint "has only provided
evidence of appeal througli the second level. No Director's
Level appeal decision has been attached to the complaint."
Alternatively, defendants appear to have perceived exhaustion
as a defense that must be raised and proved by defendants. To
that end, they produced two documents for the purpose of
establishing that Wyatt did not exhaust administrative remedies.
One is an affidavit from a prison official explaining the inmate
appeals process in California. [FN8] It describes a three-level
procedure, the third and final step in which is the Director's
Level appeal. The affidavit, however, does not contain any
information about whether Wyatt took advantage of any or all
of these steps. Notably, it does not deny that Wyatt filed a
Director's Level appeal. Defendants produced a second
document, which they refer to as Wyatt's "Appeal Record."
According to defendants, the Appeal Record shows that Wyait
has filed only one Director's Level appeal since January 1, 1994,
App. 14
and that the one appeal "was for an issue other than the
grooming standard and [was] submitted in January 1998." The
document, however, is ambiguous on its face. It does not state
that it is a complete accounting of inmate appeals filed by
Wyatt, or indicate *1117 the subject of the one appeal listed.
Because the affidavit also fails to explain the significance of the
Appeal Record (or even to authenticate it), nothing in the record
establishes that the document is what defendants say it is or that
it shows what defendants contend it shows.
FN8. For a description of California's three-tiered
inmate appeal process, see Alexandroai v. Cal. Dep't o
Corr., 985 F.Supp. 968, 969- 70 (S.D.Cal.1997), and
Cal.Code Regs. tit. 15, § § 3084.1(a) and 3084.5.
On this record, the district court--adopting the
magistrate judge's findings and recommendations--dismissed
Wyatt's-equal protection claim for nonexhaustion. The court
did not make clear, however, under what provision of the
federal rules it was ordering dis.nissal, or explain its reason for
finding nonexhaustion.
[7] To determine whether the district court's dismissal
of Wyatt's equal protection claim was in error, we must address
two issues: first, whether exhaustion under the PLRA imposes
a pleading requirement on the plaintiff or creates a defense that
must be raised and proved by the defendant; and, second, the
appropriate procedural mechanism. for adjudicating the
existence or absence of exhaustion. Our review is, for the most
part, de novo. See Big Bear Lodging Ass'n v. Snow Summit,
Inc., 182 F.3d 1096, 1101 ir.1999) (motion to dismiss);
Alexander _v. Glickman, 139 F.3d 733, 735 (9th Cir.1998)
(questions of statutory interpretation). As explained below, we
review the district court's factual determinations fcr clear error.
App. 15
B. Pleading Requirement or Defense?
[8] The first question is whether the PLRA's exhaustion
requirement imposes a pleading requirement on the prisoner or
creates a defense that must be raised and proved by the
' defendant. [FN9] Those circuits to have considered this
question have reached different answers. The Sixth Circuit
imposes the burden on the prisoner. Brown v. Toombs, 139
F.3d_ 1102, 1104 (6th Cir.1998) (p r curiam). To satisfy §
1997e(a) in the Sixth Circuit, the prisoner must allege that he
exhausted all available administrative remedies and should
attach to his complaint the administrative decision, if it is
available, showing the disposition of the administrative claim.
Id. Five other circuits--the Second, Third, Seventh, Eighth and
D.C.--have described exhaustion as an affirmative defense that
must be raised and proved by the defendant. See Ray v. Kertes,
285 F.3d 287, 295 (3d Cir.2002); Foulk v. Charrier, 262 F.3d
687, 697 (8th Cir.2001); Jackson v. District of Columbia, 254
F.3d 262, 267 (D.C.Cir.2001); Massey v. Helman, 196 F.3d
727,735 (7th Cir.1999); Jenkins v. Haubert, 179 F.3d 19, 28-
29 (2d Cir.1999).
FN9. We recognize a third possibility. A statutory
exhaustion requirement may be jurisdictional. See, e.g.,
B.K.B. v. Maui Police Dep't, 276 F.3d 1091, 1099-1100
(9th Cir.2002) (treating the exhaustion requirement
under Title VII as jurisdictional). As we have held
previously, however, the PLRA exhaustion requirement
does not affect our subject matter jurisdiction. See
Rumbles v. Hill, 182 F.3d 1064, 1068 (9th Cir.1999).
Accordingly, our Title VII jurisprudence does not affect
the analysis here.
[9] Like these five circuits, we do not believe the PLRA
imposes a pleading requirement. In reaching a contrary
conclusion, the Sixth Circuit emphasized the strong language of
App. 16
§ 1997e(a), which begins "[n]o action shall be brought."
Toombs, 139 F.3d at 1104. Such language, however, is
inconclusive. As one court has observed, "[t]he language of
statutes of limitations tend[s] to be equally imperative," Jackson
v. District of Columbia, 89 F.Supp.2d 48, 56 (D.D.C.2000),
vacated and remanded on other grounds by 254 F.3d 262
(D.C.Cir.2001), yet it is well-settled that statutes of limitations
are affirmative defenses, not pleading requirements. E.g.,
Fed.R.Civ.P. 8(c); see also Perez v. Wisconsin Dep't of Corr.,
182 F.3d 532, 536 (7th Cir.1999) (likening exhaustion *1118
under the PLRA to a statute of limitations).
Indeed, as the Supreme Court recently affirmed, we will
not impose heightened pleading requirements where Congress
has not expressly instructed us to do so. See Swierkiewicz v.
Sorema, 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002
(holding that a complaint in an employment discrimination
lawsuit need not contain specific facts establishing a prima facie
case of discrimination under the McDonnell Douglas standard).
Writing for a unanimous Court, Justice Thomas explained that
"Rule 8(a)'s simplified pleading standard applies to all civil
actions, with limited exceptions." Jd at 998. [FN10] In
rejecting the lower court's imposition of a heightened pleading
requirement, the Court observed that Rule 8(a)'s simplified
pleading standard must be read in conjunction with Rule
8(e)(1), which states that "[n]o technical forms of pleading or
motions are required." Jd. The "limited exceptions" are those
that are explicit, such as Rule 9(b), which expressly "provides
for greater particularity in all averments of fraud or mistake."
Id. [FN11] Thus, "[a] requirement of greater specificity for
particular claims is a result that 'must be obtained by the process
of amending the Federal Rules, and not by judicial
interpretation.'" Jd. at 999 (quoting Leatherman vy. Tarrant
County Narcotics Intelligence and Coordination Unit, 507 U.S.
163, 168, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993)).
App. 17
FN10. Rule 8(a) provides that a complaint must include
only "a short and plain statement of the claim showing
that the pleader is entitled to relief."
FN11. Rule 9(b) states: "In all averments of fraud or
mistake, the circumstances constituting fraud or mistake
shall be stated with particularity."
We do not discern in § 1997e(a) the kind of express
congressional command referred to in Swierkiewicz and
exemplified by Rule 9(b). [FN12] Legislatures know how to
indicate that exhaustion is a pleading requirement when they
want to. See, e.g., Walton v. Nalco Chem. Co., 272 F.3d 13, 20-
21 (1st Cir.2001) ("Section 4622 [of the Maine Human Rights
Act], by its plain language, precludes any characterization of the
[administrative] exhaustion issue as a mere affirmative defense,
since it explicitly states that the plaintiff, rather than the
defendant, must 'plead[ ]' the requisite [administrative] filing.")
(footnotes omitted). The PLRA, of course, contains no such
command. See Ray, 285 F.3d at 297 *1119 (holding that the
PLRA does not impose a heightened pleading requirement and
stating that "courts should narrowly interpret statutory language
to avoid heightened
pleading standards").
FN12. In Toombs, 139 F.3d at 1104, the Sixth Circuit
characterized PLRA exhaustion as a "condition
precedent" to suit within the meaning of the special
pleading requirement of Rule 9(c). See Fed.R.Civ.P.
9(c) ( "In pleading the performance or occurrence of
conditions precedent, it is sufficient to aver generally
that all conditions precedent have been performed or
have occurred. A denial of performance or occurrence
shall be made specifically and with particularity."). We
do not think that Rule 9(c) has any application here,
however. See, e.g., EEOC v. Guar. Sav. & Loan Ass'n
App. 18
369 F.Supp. 36, 37 (D.Ala.1973) (holding that Rule 9(c)
applies to conditions precedent to liability but not to
matters that affect jurisdiction); Snyder v. Le Roy Dyal
Co., 1 F.R.D. 362, 362 (S.D.N.Y.1940) (holding that
Rule 9(c) applies to conditions going to create liability
or those which construct a legal capacity to sue but does
not require any allegation that procedural requirements
have been fulfilled); 5 Charles Alan Wright & Arthur
R. Miller, Federal Practice & Procedure § 1303 (stating
that Rule 9(c) "applies only to conditions ‘precedent,'
not to performance of procedural requirements for filing
the claim"). Even if PLRA exhaustion were a condition
precedent within the meaning of Rule 9(c), we would
not be compelled to agree with the Sixth Circuit. As we
have said previously, "Rule 9(c) does not expressly
require that performance of conditions be pled, it merely
sets forth the manner in which such pleadings should be
made." Kiernan y. Zurich Cos., 150 F.3d 1120, 1124
(9th Cir.1998).
Moreover, imposing a technical pleading requirement
without express congressional authorization would be contrary
to the liberal approach we take to pleadings by pro se prisoners.
See, e.g., United States v. Ten Thousand Dollars ($10,000.00)
in U.S. Currency, 860 F.2d 1511, 1513 (9th Cir.1988) ("We
have consistently held in this circuit that courts should liberally
construe the pleadings and efforts of pro se litigants,
particularly ‘where highly technical requirements are involved.’
") (quoting Garaux _v. Pulley, 739 F.2d 437, 439 (9th
Cir.1984)). In addition, prison officials are likely to have
greater legal expertise and, as important, superior access to
prison administrative records in comparison to prisoners, :
especially, as is often the case, when prisoners have moved
from one facility to another. We agree with the Third Circuit,
which has observed that "it is considerably easier for a prison
MRO NRT Ae PRT ae OR
App. 19
administrator to show a failure to exhaust than it is for a
prisoner to demonstrate exhaustion." Ray, 285 F.3d at 295.
[10] We therefore agree with five other circuits that
nonexhaustion under § 1997e(a) of the PLRA does not impose
a pleading requirement. We hold that § -1997e(a) creates a
defense--defendants have the burden of raising and proving the
absence of exhaustion. [FN13]
FN13. Defendants contend that characterizing PLRA
exhaustion as a defense is irreconcilable with Booth v.
Churner, 532 U.S. 731, 121 S.Ct. 1819, 149 L.Ed.2d
958 (2001), and McNeil v. United States, 508 U.S. 106,
113 S.Ct. 1980, 124 L.Ed.2d 21 (1993). We disagree.
Booth held that administrative remedies must be
exhausted even where the plaintiff seeks only monetary
relief and the inmate grievance procedure offers no such
relief. 532 U.S. at 733-34, 121 S.Ct. 1819. The opinion
did not address the procedural posture of the case or
comment on whether PLRA exhaustion is a pleading
requirement or defense. McNeil held that the district
court properly dismissed a claim under the Federal Tort
Claims Act (FTCA) where the suit was filed before
} completion of the administrative review process but
where the process was completed before the motion to
dismiss was filed. 508 U.S. at 110, 113 S.Ct. 1980.
Again, the Court did not address whether the FTCA's
exhaustion requirement was a defense or a pleading
requirement. Moreover, the case involved an
exhaustion requirement that the lower court determined
was jurisdictional in nature, whereas PLRA exhaustion
is not a jurisdictional requirement.
App. 20
_
C. The Proper Pretrial Motion for Establishing
Nonexhaustion
[11][12}[13][14][15] We next address the form of
pretrial motion to be used to resolve the State's contention that
the prisoner has failed to exhaust his administrative remedies.
In this Circuit, we have held that the failure to exhaust
nonjudicial remedies that are not jurisdictional should be treated
as a matter in abatement, which is subject to an unenumerated
Rule 12(b) motion rather than a motion for summary judgment.
See Ritza v. Int'l Longshoremen's & Warehousemen's Union,
837 F.2d 365. 368 (9th Cir.1988) (per curiam); see also
Inlandboatmens Union of the Pac. v. Dutra Group, 279 F.3d
1075, 1078 n. 1, 1083-84 (9th Cir.2002); Stauffer Chem. Co. v.
FDA, 670 F.2d 106, 108 (9th Cir.1982); Studio Elec.
Technicians Local 728 v. Int'l Photographers of the Motion
Picture Indus. Local 659, 598 F.2d 551,552 n. 2 (9th Cir. 1979).
These decisions are based on the general principle that
"[s]ummary judgment is on the merits," Stauffer Chem., 670
F.2d at 108, whereas "dismissal of an action on the ground of
failure to exhaust administrative remedies is not on the merits."
Heath v. Cleary, 708 F.2d 1376, 1380 n. 4 (9th Cir.1983). In
deciding a motion to dismiss for a failure to exhaust *1120
nonjudicial remedies, the court may look beyond the pleadings
and decide disputed issues of fact. See Ritza, 837 F.2d at 369.
[FN14] Ifthe district court concludes that the prisoner has not
exhausted nonjudicial remedies, the proper remedy is dismissal
of the claim without prejudice. See id. at 368 & n. 3.
FN14. For the reasons discussed in Section I of this
opinion, if the district court looks beyond the pleadings
‘ to a factual record in deciding the motion to dismiss for
failure to exhaust--a procedure closely analogous to
summary judgment--then the court must assure that
Wyatt has fair notice of his opportunity to develop a
record.
ee Mid ie 0 dn eee Rage ERT EROS eR oa)
App. 21
D. Application to the Facts Here
[16] It is not clear that the district court dismissed
Wyatt's equal protection claim employing the proper legal
standard or reached a factual finding that was not clearly
erroneous. Defendants argued in the district court, consistent
with the Sixth Circuit's position, that the burden of establishing
exhaustion fell on Wyatt and that Wyatt failed to attach
documents establishing exhaustion to his complaint. We have
rejected treating PLRA exhaustion as a pleading requirement or
requiring exhaustion to be established by the complaint.
Accordingly, if the district court dismissed Wyatt's claim on this
ground, we must reverse.
[17] Assuming in the alternative that the district court
relied on the documentary evidence produced by defendants, the
court's factual finding that Wyatt failed to exhaust nonjudicial
remedies was clearly erroneous. See Ritza, 837 F.2d at 369
(holding that we will review the district court's factual
determinations for clear error and its application of substantive
law de novo). The documents produced by defendants are
inadequate to establish that Wyatt failed to exhaust California's
administrative review process. The affidavit, although
describing the inmate appeals process, does not state whether or
not Wyatt has exhausted his appeals. There is no evidence in
the record establishing that the "Appeal Record" is what
defendants say it is. We cannot tell from the record whether
that document is a complete record of Wyatt's Director's Level
appeals. Nor does the record establish that the one appeal
shown on the document relates to a subject other than the prison
grooming regulations challenged here. Defendants have failed
to meet their burden of establishing that Wyatt did not exhaust
administrative remedies. [FN15]
FN15. The documents produced by defendants are
inadequate. Further factual development of the record
App. 22
is required. We note that both parties will be able to
offer additional evidence on remand. Wyatt's
~ supplemental brief to this Court states that he has a
letter from the Director of Prisons that confirms he has
exhausted his remedies to the third and final level. This
and any other evidence should be evaluated by the
district court.
[18] A third possibility is that the district court inferred
from Wyatt's making a futility argument that he conceded
nonexhaustion. A prisoner's concession to nonexhaustion is a
valid ground for dismissal, so long as no exception to
exhaustion applies. The record is not clear, however, that
Wyatt has conceded that he did not exhaust administrative
remedies.
We therefore vacate the order dismissing Wyatt's equal
protection claim and remand for further proceedings.
Conclusion
We reverse the summary judgment on Wyatt's First
Amendment claim and the Rule 12 dismissal of Wyatt's equal
protection claim as unexhausted and remand for further
proceedings. On remand, the district court also should grant
Wyatt leave to *1121 amend his complaint to include a claim
~ under RLUIPA.
REVERSED and REMANDED.
315 F.3d 1108, 54 Fed.R.Serv.3d 694, 3 Cal. Daily Op. Serv.
42, 2003 Daily Journal D.A.R. 106
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App. 23
APPENDIX B
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
EARL WAYNE WYATT, No. CIV S-99-0503 LKK JFM P
Plaintiff, ORDER ‘
vs.
(Filed December 1, 1999)
CAL TERHUNE, et al.,
Defendants.
/
Plaintiff, a state prisoner proceeding pro se, has filed
this civil rights action seeking relief under 42 U.S.C. § 1983.
The matter was referred to a United States Magistrate Judge
pursuant to 28 U.S.C. § 636(b)(1)(B) and Local General Order
No. 262.
On October 18, 1999, the magistrate judge filed findings
and recommendations herein which were served on all parties
and which contained notice to all parties that any objections to
the findings and recommendations were to be filed within
twenty days. Plaintiff has filed objections to the findings and
recommendations.
In accordance with the provisions of 28 U.S.C. §
636(b)(1)(C) and Local Rule 72-304, this court has conducted
a de novo review of this case. Having carefully reviewed the
entire file, the court finds the findings and recommendations to
be supported by the record and by proper analysis.
App. 24
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed
October 18, 1999, are adopted in full;
2. Defendants' August 11, 1999 motion to
dismiss is denied as to plaintiff's First Amendment claim and
granted as to all other claims;
3. Defendants shall file an answer to plaintiff's
First Amendment claim within ten days from the date of this
order; and
4. Plaintiffs March 15, 1999 motion for
preliminary injunction is denied.
DATED: Nov 30, 1999.
/s/ Lawrence K. Karlton
UNITED STATES
MAGISTRATEJUDGE _
United States District Court
for the
Eastern District of California
December 1, 1999
Ric
App. 25
* * CERTIFICATE OF SERVICE * *
2:99-cv-00503
Wyatt
V.
Terhune
I, the undersigned, hereby certify that I am an employee in the
Office of the Clerk, U.S. District Court, Eastern District of
California.
That on December 1, 1999, I SERVED a true and correct
copy(ies) of the attached, by placing said copy(ies) in a
postage paid envelope addressed to the person(s) hereinafter
listed, by depositing said envelope in the U.S. Mail, or by
placing said copy(ies) into an inter-office delivery receptacle
located in the Clerk's office.
Earl Wayne Wyatt SJ/LKK
C-80121
Mule Creek State Prison CF/JFM
PO Box 409000
Ione, CA 95640
Kathleen Elizabeth Gnekow
Attorney General's Office of the State of California
PO Box 944255
1300 I Street, Suite 125
Sacramento, CA 94244-2550
Jack L. Wagner, Clerk
/s/ [Illegible]
By: Deputy Clerk
App. 26
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
EARL WAYNE WYATT, No. CIV S-99-0503
LKK JFM P
Plaintiff,
FINDINGS &
VS. RECOMMENDATIONS
CAL TERHUNE, et al., (Filed Oct. 18, 1999)
Defendants.
/
Plaintiff is a state prisoner proceeding pro se with a civil
rights action pursuant to 42 U.S.C. § 1983. Plaintiff claims that
his First Amendment right to religious freedom and his
Fourteenth Amendment right to equal protection of the laws are
being violated by grooming regulations promulgated and
implemented by defendants, the Director of the California
Department of Corrections (CDC) and the Warden of Mule
Creek State Prison (Mule Creek). Specifically, plaintiff claims
that the regulations unconstitutionally burden the requirements
of his Rastafarian faith, which include the wearing of long hair,
_and that the regulations impcse greater restrictions on males
than females and therefore are discriminatory in violation of the
equal protection clause. Plaintiff also claims that defendants
have also violated his right to the protection of the Fifth
Amendment's Double Jeopardy clause by reimposing on
plaintiff a previously withdrawn punishment for failing to
comply with the grooming regulations. Finally, plaintiff
contends that the punishment imposed for failing to comply
with the
App. 27
ee
grooming regulations will extend his release date by two years.°
Plaintiff has moved for injunctive relief, and defendants have
moved to dismiss the action for failure to exhaust
administrative remedies.
I. Defendants' Motion to Dismiss
Defendants have moved to dismiss pursuant to Fed. R.
Civ. P. 12(b)(1), contending that the court lacks subject matter
jurisdiction because plaintiff has failed to exhaust
administrative remedies as required by 42 U.S.C. § 1997e(a).
Plaintiff contends that administrative exhaustion would be
futile.
Section 1997e(a) of Title 42 of the United States Code
provides:
No action shall be brought with respect to prison
conditions under section 1983 of this title, or
any other Federal law, by a prisoner confined in
any jail, prison, or other correctional facility
until such administrative remedies as are
available are exhausted.
42 US.C. § 1997e(a). The exhaustion requirement of §
1997e(a) is not jurisdictional. Rumbles v. Hill, 182 F.3d 1064,
1067 (9" Cir. 1999). It is, however, mandatory. Id. at 1066.
Plaintiff has not exhausted administrative remedies. He
argues, however, that findings by this court in another action,
5. Plaintiff also includes a claim under the Religious Freedom and
Restoration Act (RFRA). However, the United States Supreme Court has held that
RFRA is unconstitutional as applied to the states. See City of Boerne v. Flores, 521
U.S. 507 (1997) (discussed in Sutton v. Providence St. Joseph Medical Center, 1999
WL 7184666 (9 Cir., Sent. 16, 1999)).
App. 28
Toyebo_ v. Terhune, No. CIV S-98-0292 GEB JFM P,
demonstrate that administrative exhaustion would be futile. In
Toyebo, this court found after an evidentiary hearing that no
CDC official is empowered to grant a religious exemption from
the grooming regulations at issue and, therefore that
administrative exhaustion of a First Amendment claim would
be futile. (Toyebo v. Terhune, Findings and Recommendations
filed August 20, 1998, at 3-4 & n.3.) A copy of the Toyebo
findings and recommendations is appended to these findings
and recommendations.® For the reasons set forth therein,
plaintiff should not be required to administratively exhaust his
First Amendment claim before proceeding with that claim in
this action.
Neither the record in Toyebo nor the record in this
action, however, permit a similar finding with respect to
plaintiff's other claims. Plaintiff has not demonstrated that
administrative remedies are unavailable for either his equal
protection clause claim or his claims arising out of the
punishment imposed for his non-compliance with the
regulations.’
For the foregoing reasons, defendants' motion to dismiss
should be granted as to all claims except plaintiff's First
Amendment claim and denied with respect to that claim.
6. A copy of the district court's-September 28, 1998 order adopting the
findings and recommendations in Toyebo is also appended.
7. The allegations of plaintiff's complaint suggest that defendants once
corrected punishment imposed on plaintiff for non-compliance with the grooming
regulations. See Complaint, at 4. |
SD AM etna Ila OED Nile oes ERATE RET NG ~ Ce a
App. 29
II. Plaintiff's Motion for Injunctive Relief
Plaintiff seeks injunctive relief in the form of an order
requiring defendants to cease all adverse action against him and
to restore to plaintiff all privileges and programs he was
afforded prior to his non-compliance with the grooming
regulations.
The legal principles applicable to a request for
injunctive relief are well established. To prevail, the moving
. party must show either a likelihood of success on the merits and
the possibility of irreparable injury, or that serious questions are
raised and the balance of hardships tips sharply in the movant's
favor. See Coalition for Economic Equity v. Wilson, 122 F.3d
692, 700 (9" Cir. 1997); Oakland Tribune, Inc. v. Chronicle
Publ'g Co., 762 F.2d 1374, 1376 (9 Cir. 1985). The two
formulations represent two points on a sliding scale with the
focal point being the degree of irreparable injury shown.
Oakland Tribune, 762 F.2d at 1376. "Under any formulation of
the test, plaintiff must demonstrate that there exists a significant
threat of irreparable injury." Id. In the absence of a significant
showing of possible irreparable harm, the court need not reach
the issue of likelihood of success on the merits. Id.
For the reasons set forth in this court's findings and
recommendations in Toyebo, the law of this circuit requires the
court to find that it is highly unlikely that plaintiff will succeed
on his First Amendment claim. See Toyebo, Findings and
Recommendations at 11-15, citing Friedman v. State of
Arizona, 912 F.2d 328, 331 (9" Cir. 1990), cert. denied sub
nom., Naftel v. Arizona, 498 U.S. 1100 (1991). For this reason,
a preliminary injunction cannot be issued on plaintiff's First
Amendment claim.®
8. Injunctive relief is not proper on plaintiff's other claims because they
must be dismissed for the reasons set forth in Section I.
App. 30
In accordance with the above, IT IS HEREBY
RECOMMENDED that:
1. Defendants’ August 11, 1999 motion to dismiss be
denied as to plaintiff's First Amendment claim and granted as
to all other clainis;
2. Defendants be directed to file an answer to plaintiff's
First Amendment claim within ten days from the date of any
order by the district court adopting these findings and
recommendations;
3. Plaintiff's March 15, 1999 motion for preliminary
injunction be denied.
These findings and recommendations are submitted to
the United States District Judge assigned to the case, pursuant
to the provisions of 28 U.S.C. § 636(b)(1). Within twenty days
after being served with these findings and recommendations,
any party may file written objections with the court and serve a
copy on all parties. Such a document should be captioned
"Objections to Magistrate Judge's Findings and
Recommendations." Any reply to the objections shall be served
and filed within ten days after service of the objections. The
parties are advised that failure to file objections with the
specified time may waive the right to appeal the District Court's
order. Martinez v. Ylst, 951 F.2d 1153 (9" Cir. 1991).
DATED: October 13, 1999.
/s/_ John F. Moulds
UNITED STATES
MAGISTRATE JUDGE
App. 31
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
DAMIAN TOYEBO, et al., No. CIV S-98-0292 GEB JFM P
Plaintiffs, FINDINGS &
RECOMMENDATIONS
VS.
(Filed August 20, 1998)
C. A.TERHUNE, etal.,
Defendants.
/
Plaintiffs are three Native American state prisoners
proceeding through counsel with a civil rights action pursuant
to 42 U.S.C. § 1983. The complaint was filed on February 13,
1998. Plaintiffs are challenging the California Department of
Corrections' (CDC or Department) new grooming policy
claiming it violates their religious beliefs by requiring them to
cut their hair. Defendants are the Director of the CDC and the
wardens of the prisons in which plaintiffs are incarcerated. By
orders filed March 24, 1998, and May 7, 1998, the district court
issued temporary restraining orders prohibiting defendants from
enforcing the grooming policy against the plaintiffs in this
action. This matter is before the court on defendants' motion to
dismiss and plaintiffs' motion for preliminary injunction.
BACKGROUND
On October 16, 1997, the CDC promulgated what it
styled an emergency regulation setting forth new grooming
standards for inmates housed at all CDC institutions. The
regulation, codified at California Code of Regulations, title 15,
section 3062(e), provides, inter alia, that hair be cut to no longer
App. 32
than three inches in length. Under the new emergency
grooming regulation, if a prisoner fails to comply, he faces
punitive sanctions, including progressively harsher disciplinary
actions, such as housing and program _ reassignments,
suspension of privileges, limitation of family visitation,
disciplinary detention or confinement, loss of good time earning
status, and forfeiture of earned good time credit.’ There are no
religious exemptions to the regulation.
Ke
DEFENDANTS' MOTION TO DISMISS
On April 15, 1998, defendants filed a motion to dismiss
this action on two separate grounds. First, they contend that the
court lacks subject matter jurisdiction because plaintiffs have
not exhausted their administrative remedies as required by
section 1997e of Title 42 of the United States. Second, they
contend that the court should abstain from exercising
jurisdiction and either dismiss the state law claims or exercise
its discretion to dismiss the entire case. The motion came on
regularly for hearing on May 22, 1998. Jay Peterson and Donya
Fernandez appeared as counsel for plaintiffs. Jane Lamborn,
Deputy Attorney General, appeared as counsel on behalf of
defendants.
5S AEP LY DR AMLE SABIAN AE ANGE EIEN TONE BR AALS ARE OPIIE SEEDS DALAL HOO EAK LIM 1 OE
I. Motion to Dismiss for Failure to Exhaust Administrative
Remedies
Section 1997e(a) of Title 42 of the United States Code
provides:
[n]o action shall be brought with respect to
prison conditions under section 1983 of this
title, or any other federal law, by a prisoner
1. Cal. Code Regs., tit. 15 § 3062(e) (amended\"Grooming Standards");
§ 3062(m) (amended), § 3014(e) (amended) (f(D) (amended).
App. 33
confined in any jail, prison, or other corrections
facility until such administrative remedies as are
available are exhausted.
- 42 U.S.C. § 1997e(a). Defendants contend that plaintiffs have
not exhausted available administrative remedies and that this
court therefore lacks jurisdiction over this action.
The jurisdictional aspect of the exhaustion argument is
readily dealt with. While there is no binding authority on point
from this circuit, a number of courts have already held that the
language of § 1997e is not of the sort to deprive a district court
of jurisdiction. See e.g., Wright v. Morris, 111 F.3d 414 (6
Cir. 1997), cert. denied, _ U.S.__, 118 S.Ct. 263 (1997);
Palomino v. Stanton, No. C 96-2984, 1997 WL 350099 (N.D.
Cal. 1997); Lacey v. C.S.P. Solano Medical Staff. et al., 990
F.Supp. 1199 (E.D. Cal. 1997).
Defendants contend that the action should be dismissed
because plaintiffs have not exhausted the internal grievance
procedure of the CDC, title 15 California Code of Regulations
§§ 3084 et seq., before bringing this action. Before bringing
this action, in accordance with California Government Code
section 11340.6 which provides, inter alia, that any interested
person may petition a state agency to request the amendment or
repeal of a regulation, plaintiff Toyebo petitioned the CDC and
requested a religious exemption to the grooming regulation on
behalf of all American Indian prisoners. The CDC rejected
plaintiff Toyebo's petition on December 15, 1997 and its
decision was published in the California Regulatory Law
Bulletin ("CRLB"). See 97-52 CRLB 763 (Barclays 1997).
Plaintiff Toyebo then requested the CDC to reconsider its
decision under section 1 1340.7(e) of the California Government
Code. On January 21, 1998 the CDC denied his request and its
decision was published in the CRLB. See 989-6 CRLB 90
(Barclays 1998). The regulations were adopted without
ai App. 34
providing for any religious exemption. It is undisputed that no
CDC official has an authority to grant a religious exemption
from the grooming regulation for any inmate.’
Upon consideration of the record herein, the court finds
that by requesting creation of a religious exemption and
reconsideration of the denial of that request; plaintiffs have
exhausted all administrative remedies available to them. There
is no offi8cial in the prison grievance system with authority to
grant an individual prisoner a religious exemption and no
further administrative remedy available for the claims at bar.’
For these reasons, defendants' motion to dismiss for failure to
exhaust administrative remedies should be denied.
II. The Motion to Dismiss on Abstention Grounds
Defendants contend that this court should abstain from
deciding this case pursuant to abstention doctrines set forth in
Younger v. Harris, 401 U.S. 37 (1971), Railroad Comm'd v.
Pullman Co., 312 U.S. 496 (1941) and Colorado River Water
Conservation Dist. v. U.S., 424 U.S. 800 (1976). Defendants'
contentions are without merit.
2. David Tristan, Deputy Director for Institutions Division and all three
wardens of the institutions where plaintiffs are incarcerated testified that they are not
empowered to grant religious exemptions under the regulation as promulgated.
(Warden Ratelle Deposition at 156, lines 21-25; Tristan Deposition Vol. II at 93,
lines 16-19, Tristan Deposition Vol. II at 94, lines 1-4; Warden Clarke Deposition
at 52, lines 22-24; Warden Hubbard Deposition at 76, lines 1-7; Tristan Testimony
on Direct, April 9, 1998 Evidentiary Hearing at 85; lines 20-23; at 86, lines 21-24).
3. For the same reason, exhaustion of individual grievances through the
prison grievance system would be futile; it is plaine that all such grievances would
be rejected.
PSO PN AR Ne MRIS ME FR ANU PGI TBE RR Nay a RON A RUAN CEN HR NRO AR NI IC
App. 35
"[F]ederal courts have a ‘virtually unflagging obligation’
: exercise jurisdiction where it exists." Martinez v. Newport
each City, 125 F.3d 777, 780 (9" Cir. 1997) (quoting Miofsky
aE sor Court of the State of California, 703 F.3d 332, 338
(9" Cir. 1983)). That obligation is "particularly weighty"
where, as here, the plaintiffs present claims under the Civil
Rights Act, 42 U.S.C. § 1983. Miofsky, 703 F.2d at 338
(quoted in Martinez, 125 F.3d at 781-82. "Abstention from the
exercise of federal jurisdiction is the exception, no the rule." -
Colorado River, 424 U.S.C. at 813. The question raised by
defendants’ motion is whether this case nonetheless presents
one of the exceptional circumstances that require abstention
from the exercise of that jurisdiction.
"Younger abstention is proper where: (1) there are
ongoing state judicial proceedings; (2) that implicate important
state interests; and (3) there is an adequate opportunity in the
state proceedings to raise federal questions." Martinez, 125
F.3d at 781. "Younger's scope is closely circumscribed to
parties actually involved in state litigation; even the presence of
co-plaintiffs representing identical interests in state proceedings
does not extend Younger to parties not actually involved in the
proceedings." Benavidez v. Eu, 34 F.3d 825, 832 (9" Cir.
1994). Plaintiffs in this action are not parties to any state
action.* Younger abstention is therefore not proper in this case.
"Pullman abstention is an equitable doctrine that allows
federal courts to refrain from deciding sensitive federal
constitutional questions. Abstention is appropriate when: (1)
the federal plaintiffs complaint requires resolution of a
Sensitive question of federal constitutional law; (2) the
constitutional question could be mooted or narrowed by a
4. Defendants argue that plaintiffs can intervene in any of a number of
pending state actions, but they offer no authority for the proposition that the doctrine
of Younger abstention requires that they do so.
App. 36
definitive ruling on the state law issues; and (3) the possibly
determinative issue of state law is unclear." The San Remo
Hotel v. City and County of San Francisco, 145 F.3d 1095,
1104 (9" Cir. 1998). Pullman abstention is generally limited to
cases in which the questions of state law are intertwined with
the question of federal law. See San Remo Hotel, 145 F.3d at
1100. The state law claims raised herein are separate from the
federal constitutional claims. Pullman abstention is not
required.
Colorado River abstention "is to be applied on an even
more limited basis than the traditional abstention doctrines" and
only in "exceptional circumstances." Martinez 125 F.3d at 784
(quoting Colorado River, 424 U.S. at 813). Factors which
support abstention under this doctrine include "the desirability
of avoiding piecemeal litigation, the inconvenience of the
federal forum, . . . the order in which jurisdiction was obtained
by the concurrent forums, . . . whether the source of the
governing law is state or federal, and . .. whether the state court
proceedings could adequately protect the federal plaintiff's
rights." Martinez, 125 F.3d at 784. Although the plaintiff's
claims could be raised in state court proceedings, none of the
other factors weigh in favor of abstention, and this case does
not present the type of exceptional circumstances that would
warrant abstention under Colorado River.
For all of the foregoing reasons, defendants’ motion to
dismiss should be denied.
PLAINTIFFS MOTION FOR PRELIMINARY
INJUNCTION
An evidentiary hearing on plaintiffs' motion for a
preliminary injunction was held on April 1, and April 2, 1998.
Donya Fernandez, John Arai Mitchel, and Jay Peterson
appeared as counsel on behalf of plaintiffs. Jane Lamborn,
PR eC Reo DB er
rape RI pene NIN
RP Wr ce RD .
App. 37
Deputy Attorney General, appeared on behalf of defendants.
All three plaintiffs testified as did two expert witnesses called
by plaintiff and two expert witnesses called by defendants. On
April 20, 1998, plaintiffs filed their post hearing brief. On May
8, 1998, defendants filed their responsive post hearing brief.
On May 19, 1998, plaintiffs filed their reply.
Plaintiffs seek a preliminary injunction prohibiting
defendants from enforcing the hair length provisions of the new
grooming regulation against them. Plaintiffs raise four federal
constitutional claims in their first amended complaint: first,
that the regulation deprives them of the right to free exercise of
their religion in violation of the First and Fourteenth
Amendments; second, that the regulation deprives them of their
due process rights in violation of the Fourteenth Amendment by
revoking any good time credit earned by plaintiffs and
reassignment plaintiffs to non-credit earning status because of
their religious beliefs and practices; third, that the regulation
deprives them of their substantive due process rights in
violation of the Fourteenth Amendment by subjecting them to
the coerced cutting of their hair and thereby infringing upon
their fundamental rights to privacy and bodily integrity; and
fourth, that the regulation deprives them of their equal
protection rights in violation of the Fourteenth Amendment
because the grooming standards prohibit male prisoners from
wearing their hair long, while female prisoners retain the option
of doing so. Plaintiffs also raise several state law claims.
Plaintiffs seek injunctive relief on the basis of their first and
third claims for relief, both of which are predicated on the
federal constitution, and on their sixth and eighth claims for
relief, which are based on provisions of the California
constitution.’
5. Plaintiffs do nct rely on either their federal procedural due process
claim or their federal equal protection claim to support their motion for injunctive
relief. The court will not, therefore, address those claims at this time.
App. 38
I. Preliminary Injunction Standards
The legal principles applicable to a request for
‘injunctive relief are well established. To prevail, the moving
party must show either "(1) a likelihood of success on the merits
and the possibility of irreparable injury, or (2) the existence of
serious questions going to the merits and the balance of
hardships tipping in [the moving party's] favor." Oakland
Tribune, Inc. v. Chronicle Publishing Co., 762 F.2d 521, 523
(9" Cir. 1985) (quoting Apple Computer Inc. v. Formula Int'l,
725 F.2d 521, 523 (9" Cir. 1984)); see also Hartikka v. United
States, 754 F.2d 1516, 1518 (9" Cir. 1985). The two
formulations represent two points on a sliding scale with the
focal point being the degree of irreparable injury shown.
Oakland Tribune, 762 F.2d at 1376. "Under either formulation
of the test, plaintiff must demonstrate that there exists a
significant threat of irreparable harm, the court need not reach
the issue of likelihood of success on the merits. Id.
II. Plaintiffs' Legal Claims
A. Plaintiffs' First Amendment Claim
1. Legal Standards
"Among the rights prisoners possess is the right to the
free exercise of religion, subject to limitations justified by the
considerations underlying or penal system." Malik v. Brown,
16 F.3d 330, 332 (citing O'Lone v. Estate of Shabazz, 482 U.S.
342, 348 (1987)). First Amendment protection is afforded to
_claims based on sincerely held religious beliefs. Malik, 16 F.3d
_———__ at 333. To warrant protection, the belief or practice at issue
must be central to religious faith. See Graham v. C.LR., 822
F.2d 844, 850-51 (9 Cir. 1987), aff'd 490 U.S. 680 (1989).
However, constitutional protection is limited by the deference
afforded to prison administrators; "when a prison regulation
App. 39
impinges on inmates’ constitutional rights, the regulation is
valid if it is reasonably related to legitimate penological
interests." Turner v. Safley, 482 U.S. 78 (1987).
Four factors are assessed to determine whether a prison
regulation is reasonably related to legitimate penological
interests:
(1) whether the regulation has a logical
connection to the legitimate government
interests invoked to justify it;
(2) whether alternative means of exercising the
_ right on which the regulation impinges remain
open to prison inmates;
(3) the impact that accommodation of the
asserted right will have on guards, other
inmates, and prison resources; and
(4) the absence of ready alternatives that fully
accommodate the prisoner's rights at de
minimus cost to valid penological interests.
Friedman v. State of Arizon, 912 F.2d 328, 331 (9" Cir. 1990)
(quoting Harper v. Wallingford, 877 F.2d 728, 732 (9% Cir.
1989)), cert. denied sub nom., Naftel v. Arizona, 498 U.S. 1100
(1991).
2. Application
a. Sincerity of Plaintiffs' Belief
At the evidentiary hearing, plaintiffs, who have hair
longer than allowed by the new regulations, testified that they
are Native Americans who have a sincere religious belief that
App. 40
their hair is sacred and that they are unable to comply with the
hair cutting provisions of the regulations because of their
religious belief. (See April 1, 1998 Transcript of Evidentiary
Hearing (hereafter "R.T."), at 9-102)
Defendants presented no evidence to rebut plaintiffs’
showing that they are sincere in their religious beliefs. This
court finds that plaintiffs' religious beliefs are sincereiy held.
b. Centrality of Long Hair to Native
American Religion
Plaintiffs have also shown that wearing long hair is a
central tenet of their religion. In addition to their own
testimony, plaintiffs submitted the sworn affidavit of Deward
Walker, a professor of ethnic studies and anthropology at the
University of Colorado, in which Dr. Walker explained:
For most traditional American Indians, hair is
closely connected to one's innermost being and
has important social and religious significance.
Hair is a central aspect of one's person,
constitutes part of one's identity as an Indian
person, and can be a major requirement for
participation in religious life. It is widely
believed among American Indians that hair has
a sacred religious significance. Hair is an
external manifestation of inner spirituality. A
threat to a practitioner's hair is a threat to his
spiritual and social identity and general well
being.
Among traditional American Indians, hair is
often worn in a religiously prescribed manner.
App. 41
One's hair is usually cut only as a sign of
mourning for deceased relatives or as a personal
sacrifice made as part of a sacred vow. Hair is
rarely, if ever, cut for other reasons and should
be allowed to grow according to tribal traditions
and sacred prescriptions.
(Declaration of Deward E. Walker, Jr., Ph.D., at 90-91; see also
April i, 1998, R.T. at 155.)° Ronald J. Wermuth, an expert on
Native American culture presented by defendants, confirmed
that, though not required, long hair is central to the spiritual
practice of Native American religion. (Transcript of
Proceedings, April 2, 1998, at 160-61, 169-70.) There is no
serious dispute that having long hair is a central tenet of
plaintiffs’ religious faith.
Based on careful consideration of the evidence in the
record, this court finds that the CDC grooming policy interferes
with a practice central to plaintiffs’ sincere religious faith, and
hence with plaintiffs' First Amendment rights. The court must
now, therefore, examine whether the regulation is nonetheless
valid under the standards set forth in Turner v. Safley, supra.
c. Reasonableness of the Grooming
Policy
i. Logical Connection to
Legitimate Penological
Interests
The Depa.iment advances the following penological
interests as justification for the grooming policy:
6. The fact that long hair aiso has a social significance does not diminish
its sacred nature of Native American Religion.
App. 42
Legitimate penological interests support
uniform grooming standards which assist in the
identification of particular inmates who are
outside of their approved area; by aiding in the
identification of prisoners who are responsible’
for creating disturbances; and to assist in the
apprehension and identification of escapees.
Prison restrictions on hair length assist
correctional officers in searches of inmates for
concealment of contraband including dangerous
materials, reduce ihe difficulty and time needed
to conduct searches, and aid in the promotion of
hygienic and healthy living conditions inside the
prisons.
Reasons supporting grooming standards are: (1)
discipline and respect for authority requires that ~
individual members of the institutional sub-
society accede to the needs for quick
identification of persons and gender; (2) health
and safety require hygienic conditions and the
ability to make effective use of safety devices
e.g. eye shields, headgear, and face masks; (3)
instead of animosity among members displaying
their individual loyalties or preferences requires
a more uniform appearance [sic]; and (4)
security requires the ability to efficiently
search/detect weapons and other contraband. Z
if
(Exhibit A to Plaintiffs' Memorandum of Points and Authorities
in Support of Motion for Preliminary Injunction, filed February
25, 1998.) - David Tristan, the Deputy Director for the
Institutions Division of the CDC, testified at the evidentiary
App. 43
hearing concerning these justifications and the support for them.
(April 2, 1998, RT, passim.)
Plaintiffs offered the testimony of a correctional expert,
George Earl Sullivan, who has forty-three years of experience
in the corrections field. Mr. Sullivan testified that neither the
Federal Bureau of Prisons nor forty of the fifty states have
restrictive grooming policies. (April 1, 1998, R.T. at 182-185.)
He testified, based on his experience, that the grooming policy
was not necessary to advance penological interests asserted as
justification therefor. (Id., passim. He specifically testified that
"there is no prison security or penological justification for
requiring short hair on the basis of prisoner identification, or to
preclude or assist in the apprehension of an escape. These are
not, again, cause/effect relationships. There, are, are illusionary
justifications for a new policy that simply have [sic] no basis in
operational fact as far as
prison management is concerned, in my opinion." Id. at 201.)
He offered similar testimony about other proffered
justifications. (Id. at 192-93 (cleanliness and hygiene); 195-200
(contraband).)
Courts are required to give deference to security
concerns expressed by prison officials. Harper v. Wallingford,
877 F.2d at 733 (citing cases). Moreover, in Friedman, the
court of appeals held that prison officials are not required to
justify regulations by reference to "concrete evidence;"
reference to "anticipated security problems" is sufficient.
Friedman, 912 F.2d at 332. Specifically, the Friedman court
noted that Turner v. Safley "requires that courts allow prison
officials 'to anticipate security problems and to adopt innovative
solutions to the intractable problems of prison administration."
Id. at 332-33 (quoting Turner, 482 U.S. at 89.
App. 44
In Friedman, the United States Court of Appeals for the
Ninth Circuit held that a grooming policy regulating the length
of beards served legitimate penological interests where the state
of Arizona offered testimony that the policy aided in the rapid
and accurate identification of inmates, thereby fostering "(1)
orderly conduct of day-to-day activities; (2) identification of
prisoners responsible for disturbances; (3) apprehension of
escapees." Friedman, 912 F.2d at 331-32. Defendants have
offered substantially identical justifications here. In light of
Friedman, this court is compelled to find that defendants have
established a logical connection between their grooming policy
and legitimate penological justifications.
ii. Alternatives for Free Exercise
of Native American Religion
The second prong of Tumer requires the court to
examine whether plaintiffs retain alternative means of
practicing their religious faith. Under Friedman, this test "is not
the weighing of what religious practices take the place of
[wearing long hair.]" Id. at 332. Rather the inquiry is whether
plaintiffs retain their ability to participate in other Native
American religious practices, or, instead, whether they have
been "denied ‘all means of expression’ of their religion." Id.
All three plaintiffs testified that there is no substitute for
long hair in their religious practice and no evidence was
presented to the contrary. That, however, is not the inquiry as
set forth in Friedman. Rather, the inquiry is whether cutting
their hair denies them all means of expressing their religious
faith. Plaintiffs each testified that they participate in
purification and pipe ceremonies. (April 1, 1998, R.T. at 17-18
(Alto), 44 (Toyebo), 84 (Stoneroad).) Plaintiff Alto testified
that long hair is not required for participation in those
ceremonies. (Id. at 31.) Given the test described in Friedman,
in the absence of evidence that cutting the plaintiffs' hair denied
App. 45
them all means of expressing their Native American religious
faith, the court must find that the second Turner factor does not
weight against the regulation at issue.
iii. act of Accommodation
The third Turner factor requires assessment of the
impact that accommodation of plaintiffs' First Amendment right
will have on guards, other inmates, and prison resources. David
Tristan testified that CDC officials considered religious
exemption but came to the conclusion that it would be
extremely difficult to administer such an exemption; in
particular, he testified that they determined it would be very
difficult to establish whether long hair was a fundamental tenet
of specific religions, and whether a particular inmate had a
sincerely held religious belief that required an exemption.
(April 2, 1998, R.T. at 86.) He also testified, however, that the
CDC has mechanisms for identifying inmate membership in
particular religious faiths, particularly when they are received
into the CDC, and that they try to accommodate religious
practices consistent with institutional security. (Id. at 87-88.)
Defendants also argue that accommodating these
plaintiffs will have a "ripple effect" and cause other inmates to
seek accommodation. This effect is not weighted heavily,
however, because it "is always present when special
accommodation are made for religious beliefs." Ashelman v.
Wawzzaszek, 111 F.3d 674, 677 (9" Cir. 1997). Defendants
have not presented persuasive evidence that accommodation of
plaintiffs' First Amendment rights would have a harmful effect
on prison security or resources. Cf. Friedman, 912 F.2d at 332
(testimony that accommodation will "flood prison officials"
with claims to the religious faith and/or practice being
accommodated and that guards will have more difficulty
identifying prisoners is sufficient to favor the reasonableness of
a grooming regulation.)
App. 46
iv. Availability of Ready
Alternatives
The final Turner factor requires the court to assess
whether there are "ready alternatives that fully accommodate the
prisoner's rights at de minimus cost to valid penological
interests." "'The absence of ready alternative is evidence of the
reasonableness of a prison regulation,' [citation omitted], while
the existence of alternatives may be ‘evidence that the [policy]
is not reasonable but is an ‘exaggerated response’ to prison
concerns." Ward v. Walsh, 1 F.3d 873, 879 (9 Cir. 1993)
(quoting Turner, 482 U.S. at 90-91), cert. denied, 510 U.S. 1192
(1994).
Plaintiffs contend that the following alternatives exist:
maintaining current identification photographs, taking
photographs of long-haired inmates with their hair pulled back,
conducting routine hair searches, and restricting facial hair only.
(Plaintiffs' Post-Hearing Brief, filed April 20, 1998, at 20.)
Defendants argue that none of these alternatives can be
accomplished at de minimus cost to the security, health and
safety issues proffered to justify the grooming policy.
This court is persuaded that some of the alternatives
suggested by plaintiffs would be easy and obvious. The law,
however, is otherwise. In Friedman, the court of appeals
rejected a contention that photographing inmates with and
without a beard could be accomplished at de minimus cost to
security interests, because an inmate could always change his
appearance after the photograph was taken. That reasoning
preclud3es this court from finding that photograph alternatives
are easy, obvious alternatives to the grooming policy.
Moreover, defendants presented testimony that the increase in
size of the inmate population has increased dramatically the
number of searches that must be conducted; this evidence
App. 47
precludes the court from finding that additional searches could
be accomplished at de minimus.
3. Conclusion
The court finds that plaintiffs are sincere in their
religious beliefs, that long hair is central to their spiritual
practice, and that defendants' grooming policy impinges on the
free exercise of their religion. In this court's view, however, the
decision in Friedman, which is authority that binds this court,
precludes this court from finding that defendants’ grooming
policy is unreasonable. Absent the decision in Friedman, this
court would readily find from this record that the majority of
reasons tendered to support the regulation are post hoc
rationalizations and that defendants' grooming policy is
exaggerated response to the proffered concerns. Nonetheless,
the law of this circuit as set forth in Friedman requires this court
to conclude that defendants' grooming policy is reasonably
related to legitimate penological interests and, therefore, that
plaintiffs are unlikely to succeed on the merits of their claim
that the grooming policy impermissibly infringes on their
federal constitutional right to free exercise of religion.
B. Substantive Due Process
Plaintiffs also claim that the grooming regulation
violates their right to bodily integrity protected by the due
process clause of the federal constitution. Assuming arguendo
that substantive due process rights are implicated by involuntary
hair cutting, the plaintiffs have not demonstrated a likelihood
that they will prevail on this claim.
"The Ninth Circuit has set forth factors to consider in
determining whether substantive due process has been violated:
App. 48
‘In determining whether substantive due process
rights have been violated, we will look to such
factors as the need for the governmental action
in question, the relationship between the need
and the action, the extent of harm inflicted, and
whether the action was taken in good faith or for
the purpose of causing harm."
Sinaloa Lake Owners Ass'n v. City of Simi Valley, 882 F.2d
1398, 1409 (9" Cir. 1989) (citations omitted), cert. denied, 494
U.S. 1016 (1990). In view of the findings in section I, infra,
and the fact that there is no evidence that the grooming
regulation was enacted for the purpose of causing harm, there
is little chance that plaintiffs will succeed on their substantive
due process claim.
C. Threat of Irreparable Harm/Balance of Hardships
It is plain to this court that enforcement of the grooming
regulations will substantially injure the plaintiffs' right to free
exercise of their religious beliefs, and that the balance of
hardships tips in favor of the plaintiffs. However, for the
reasons set forth above, it is highly unlikely that plaintiffs will
succeed on the merits of either their First Amendment or their
substantive due process claim. Under the circumstances, a
preliminary injunction cannot be issued.
D. State Law Claims
Plaintiffs also support their motion for injunctive relief
with two claims predicated on the California Constitution.
However, this court cannot issue an injunction against state
officials solely on the basis of alleged violations of state law.
See Pennhurst State School & Hospital v. Halderman, 45 U.S.
89 (1984). 7
~ App. 49
Accordingly, IT IS HEREBY RECOMMENDED
THAT:
1. Defendants' April 13, 1998 motion to dismiss
be denied; and
2. Plaintiffs' February 25, 1998 motion for
preliminary injunction be denied.
These findings and recommendations are submitted to
the United States District Judge assigned to the case, pursuant
to the provisions of 28 U.S.C. § 636(b)(1). Within ten days
after being served with these findings and recommendations,
any party may file written objections with the court and serve a
copy on all parties. Such document should be captioned
"Objections to Magistrate Judge's Findings and
Recommendations." Any reply to the objections shall be served .
within ten days after service of the objections. The parties are
advised that failure to file objections within the specified time
may waive the right to appeal the District Court's order.
Martinez v. Ylst, 951 F.2d 1153 (9" Cir. 1991). The parties are
cautioned that no extensions of time to file objections to these
findings and recommendations will be granted.
DATED: August 19, 1998.
/s/ John F. Moulds
UNITED STATES
MAGISTRATE JUDGE
App. 50
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
DAMIAN TOYEBO, et al., No. CIV S-98-0292
GEB JFM P
Plaintiffs, RDER
VS.
(Filed September 28, 1998)
C. A.TERHUNE, et al.,
Defendants.
/
Plaintiffs are three state prisoners proceeding through
counsel with this civil rights action seeking relief under 42
U.S.C. § 1983. The matter was referred to a United States
Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and
Local General Order No. 262.
On August 20, 1998, the magistrate judge filed findings
and recommendations herein which were served on all parties
and which contained notice to all parties that any objections to
the findings and recommendations were to be filed within ten
days. Plaintiffs and defendants have filed objections to the
findings and recommendations, and the parties have each filed
a reply to the other's objections.’
In accordance with the provisions of 28 U.S.C. §
636(b)(1)(C) and Local Rule 72-304, this court has conducted
1. On September 22, 1998, defendants filed a request for an extension of
time until September 25, 1998 to file their reply. The request was granted.
Defendants submitted a reply on September 25, 1998.
App. 51
a de novo review of this case. Having carefully reviewed the
entire file, the court finds the findings and recommendations to
be supported by the record and by proper analysis.
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed
August 20, 1998 are adopted in full;
2. Defendants' April 13, 1998 motion to dismiss
is denied; and
3. Plaintiffs' February 25, 1998 motion for
preliminary injunction is denied.
DATED: September 28, 1998.
/s/ John F. Moulds
UNITED STATES
MAGISTRATE JUDGE
United States District Court
for the
Eastern District of California
September 28, 1998
App. 52
* * CERTIFICATE OF SERVICE * *
2:98-cv-00292
I, the undersigned, hereby certify that I am an employee in the
Office of the Clerk, U.S. District Court, Eastern District of
California.
That on September 28, 1998, I SERVED a true and correct
copy(ies) of the attached, by placing said copy(ies) in a
postage paid envelope addressed to the person(s) hereinafter
listed, by depositing said envelope in the U.S. Mail, or by
placing said copy(ies) into an inter-office delivery receptacle
located in the Clerk's office.
Jay Bixby Petersen SF/GEB
California Indian Legal Services -
510 16" Street CF/JFM
Suite 301
Oakland, CA 94612-1500
App. 53
Jane L. Lamborn
Attorney General's Office of the State of California
PO Box 944255
1300 I Street
Suite 125
Sacramento, CA 94244-2550
Jack L. Wagner, Clerk
/s/ [Illegible]
By: Deputy Clerk
App. 54
United States District Court
for the
Eastern District of California
October 14, 1999
* * CERTIFICATE OF SERVICE * *
2:99-cv-00503
Wyatt
V.
Terhune
I, the undersigned, hereby certify that I am an employee in the
Office of the Clerk, U.S. District Court, Eastern District of
California.
That on October 14, 1999, ISERVED a true and correct
copy(ies) of the attached, by placing said copy(ies) in a
postage paid envelope addressed to the person(s) hereinafter
listed, by depositing said envelope in the U.S. Mail, or by
placing said copy(ies) into an inter-office delivery receptacle
located in the Clerk's office.
Earl Wayne Wyatt CF/JFM
C-80121
Mule Creek State Prison SJ/LKK
PO Box 409000
Ione, CA 95640
App. 55
Kathleen Elizabeth Gnekow
Attorney General's Office of the State of California
PO Box 944255
1300 I Street
Suite 125
Sacramento, CA 94244-2550
Jack L. Wagner, Clerk
/s/_ K. Carlos
By: Deputy Clerk
App. 56
APPENDIX C
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
EARL WAYNE WYATT, No. CIV S-99-0503
LKK JFM P
Plaintiff, FINDIN
RECOMMENDATIONS
VS.
(Filed May 11, 2000)
CAL TERHUNE, et al.,
Defendants.
/
Plaintiff is a state prisoner proceeding pro se with a civil
rights action pursuant to 42 U.S.C. § 1983. Plaintiffclaims that
his First Amendment right to religious freedom is being
violated by grooming regulations promulgated and implemented
by defendants, the Director of the Caiifornia Department of
Corrections (CDC) and the former Warden of Mule Creek State
Prison (Mule Creek).' Specifically, plaintiff claims that the
regulations unconstitutionally burden the requirements of his
Rastafarian faith, which include the wearing of dreadlocks.
1. Plaintiff's other challenges to the grooming regulations were dismissed
for failure to exhaust administrative remedies. (See Order filed December 1, 1999,
at 2.)
App. 57
This matter is before the court on defendants' motion for
summary judgment.’
SUMMARY JUDGMENT STANDARDS UNDER
RULE 56
Summary judgment is appropriate when “it is
demonstrated that there éxists "no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law." Fed. R. Civ. P. 56(c).
Under summary judgment practice, the moving
party always bears the initial responsibility of
informing the district court of the basis for its
motion, and identifying those portions of "the
pleadings, depositions, answers to
interrogatories, and admissions on file, together
with the affidavits, if any," which it believes
demonstrate the absence of a genuine issue of
material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting
Fed. R. Civ. P. 56(c)). "[W]here the nonmoving party will bear
the burden of proof at trial on a dispositive issue, a summary
judgment motion may properly be made in reliance solely on
the ‘pleadings, depositions, answers tc interrogatories, and
admissions on file."" Id. Indeed, summary judgment should be
entered, after adequate time for discovery and upon motion,
2. Plaintiff has included in his opposition to defendants’ motion an
assertion that defendants have failed to provide him with "additional discovery" that
are "key elements" to his claim. Plaintiff asks that the court deny defendants’
summary judgment motion or stay disposition thereof until plaintiff has been served
with the requested discovery. Plaintiff has failed to comply with the requirements
of Rule 56(f) of the Federal Rules of Civil Procedure. His request for a stay of this
motion will therefore be denied.
App. 58
against a party who fails to make a showing sufficient to
establish the existence of an element essential to the party's
case, and on which that party will bear the burden of proof at
trial. See id. at 322. "[A] complete failure of proof concerning
an essential element of the nonmoving party's case necessarily
renders all other facts immaterial." Id. In such a circumstance,
summary judgment should be granted, "so long as whatever is
before the district court demonstrates that the standard for entry
of summary judgment, as forth in Rule 56(c), is satisfied." Id.
at 323.
If the moving party meets its initial responsibility, the
burden then shifts to the opposing party to establish that a
genuine issue as to any material fact actually does exist. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986). In attempting to establish the existence of this
factual dispute, the opposing party may not rely upon the
allegations or denials of its pleadings but is required to tender
evidence of specific facts in the form of affidavits, and/or
admissible discovery material, in support of its contention that
the dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475
U.S. at 586 n.11. The opposing party must demonstrate that the
fact in contention is material, i.e., a fact that might affect the
outcome of the suit under the governing law, see Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec.
Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630
(9" Cir. 1987); and that the dispute is genuine, i.e., the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party, see Wool v. Tandem Computers, Inc., 818
F.2d 1433, 1436 (9" Cir. 1987).
In the endeavor to establish the existence of a factual
dispute, the opposing party need not establish a material issue
of fact conclusively in its favor. It is sufficient that "the
claimed factual dispute be shown to require a jury or judge to
resolve the parties’ differing versions of the truth at trial." T.W.
App. 59
Elec. Serv., 809 F.2d at 631. Thus, the "purpose of summary
judgment is to ‘pierce the pleadings and to assess the proof in
order to see whether there is a genuine need for trial."
Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e)
advisory committee's note on 1963 amendments).
In resolving the summary judgment motion, the court
examines the pleadings, depositions, answers to interrogatories,
and admissions on file, together with affidavits, if any. Fed. R.
Civ. P. 56(c). The evidence of the opposing party is to be
believed. See Anderson, 477 U.S. at 255. All reasonable
infer4ences that may be drawn from the facts placed before the
court must be drawn in favor of the opposing party. See
Matsushita, 475 U.S. at 587. Nevertheless, inferences are not
drawn out of the air, and it is the opposing party's obligation to
produce a factual predicate from which the inference may be
drawn. See Richards v. Nielsen Freight Lines, 602 F.Supp.
1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9"
Cir. 1987). Finally, to demonstrate a genuine issue, the
opposing party "must do more than simply show that there is
some metaphysical doubt as to the material facts .... Where
the record taken as a whole could not lead a reational trier of
fact to find the for the nonmoving party, there is no ‘genuine
issue for trial." Matsushita, 475 U.S. at 587 (citation omitted).
On June 14, 1999, the court advised plaintiff of the
requirements for opposing a motion pursuant to Rule 56 of the
Federal Rules of Civil Procedure. See Rand v. Rowland, 154
F.3d 952, 957 (9™ Cir. 1998) (en banc), cert. denied, _ US.
__,119-S. Ct. 2392 (1999); Klingele v. Eikenberry, 849 F.2d
40%, 411-12 (9" Cir. 1988).
App. 60
ANALYSIS
I. Undisputed Facts
The grooming regulation at issue was promulgated by
the CDC on October 16, 1997, as an emergency regulation. It
provides, inter alia, that the hair of male prisoners be cut to no
longer than three inches in length. Cal. Code Regs., tit. 15 §
3062(e). Under the new emergency grooming regulation, if a
prisoner fails to comply, he faces punitive sanctions, including
progressively harsher disciplinary actions, such as housing and
program reassignments, suspension of privileges, limitation of
family visitation, disciplinary detention for confinement, loss of
good time earning status, and forfeiture of earned good time
credit. Id. at § 3062(m), (n); Toyebo v. Terhune, No. CIV S-98-
0292 GEB JFM P, Findings and recommendations, filed August
20, 1998, at 2. There is no religious exemption to the
regulation. Cal. Code Regs., tit. 15 § 3062(h)(2); Toyebo
Findings and Recommendations, at 2, 4.
Plaintiff asserts that he is a sincere member of the
Rastafarian faith, and that a tenet of that faith forbids the cutting
of his hair. Plaintiff has been found guilty of two
administrative violations and one serious rules violation for
refusing to cut his hair. On January 26, 1999, he was assigned
to "C" status based on the latter serious rules violation. "C"
status inmates are generally confined to their cells with the
exception of time for yard release, dayroom activities, and
meals. Their access to institutional programs is limited to
weekdays from 10:00: a.m. to 12:00 p.m., and they are
3. A court may take judicial notice of court records. See MGIC Indem.
Co. v. Weisman, 803 F.2d 500, 505 (9* Cir. 1986); United States vy. Wilson, 631
F.2d 118, 119 (9* Cir. 1980). On February 4, 2000, the parties to this action were
served with a copy of this court's findings and recommendations filed in the Toyebo _
case.
App. 61
limited to their cells on weekends and holidays except for
breakfast and dinner.
II. Legal Standards
"Among the rights prisoners possess is the right to the
free exercise of religion, subject to limitations justified by the
considerations underlying our penal system." Malik v. Brown,
16 F.3d 330, 332 (citing O'Lone v. Estate of Shabazz, 482 U.S.
342, 348 (1987)). First Amendment protection is afforded to
claims based on sincerely held religious beliefs. Malik, 16 F.3d
at 333. To warrant protection, the belief or practice at issue
must bé central to religious faith. See Graham v. C.LR., 822
F.2d 844, 850-51 (9" Cir. 1987), aff'd 490 U.S. 78 (1987).
Four factors are assessed to determine whether a prison
regulation is reasonably related to legitimate penological
interests:
(1) whether the regulation has a logical
connection to the legitimate government
interests invoked to justify it;
(2) whether alternative means of exercising the
right on which the regulation impinges remain
open to prison inmates;
(3) the impact that accommodation of the
asserted right will have on guards, other
inmates, and prison resources; and
(4) the absence of ready alternatives that fully
accommodate the prisoner's rights at de minimis
cost to valid penological interests.
Friedman v. State of Arizona, 912 F.2d 328, 331 (9" Cir. 1990)
App. 62
(quoting Harper v. Wallingford, 877 F.2d 728, 732 (9" Cir.
1989)), cert. denied sub nom., Naftel v. Arizona, 498 U.S. 1100
(1991).
For purposes of this summary judgment motion, it
appears undisputed that plaintiff is sincere in his Rastafarian
religious faith and that among the central tenets of the
Rastafarian faith is a prohibition on cutting hair. The question
before the court is whether the grooming policy, which plainly
impinges on that tenet, is nonetheless valid.
1. Logical Connection to Valid Penological
Interests
The CDC has advanced several justifications for the
grooming regulations:
Legitimate penological interests support
uniform grooming standards which assist in the
identification of particular inmates who are
outside of their approved area, by aiding in the
identification of prisoners who are responsible
for creating disturbances; and to assist in the
apprehension and identification of escapees.
Prison restrictions on hair length assist
correction officers in searches of inmates for
concealment of contraband including dangerous
materials, reduce the difficulty and time needed
to conduct searches, and aid in the promotion of
hygienic and healthy living conditions inside the
prisons.
App. 63
Reasons supporting grooming standards are: (1)
discipline and respect for authority require that
individual members of the institutional sub-
society accede tot he needs for quick
identification of persons and gender; (2) health
and safety require hygienic conditions and the
ability to make effective use of safety devices
e.g. eye shields, headgear, and face masks; (3)
instead of animosity among members displaying
their individual loyalties or preferences requires
a more uniform appearance [sic]; and (4)
security requires the ability to efficiently
search/detect weapons and other contraband.
Toyebo Findings and Recommendations, at 10 (citation
omitted).*
Courts are required to give deference to security
concerns expressed by prison officials. Harper v. Wallingford,
877 F.2d at 733 (citing cases). Moreover, in Friedman, the
court of appeals held that prison officials are not required to
justify regulations by reference to "concrete evidence;"
reference to "anticipated security problems" is sufficient.
Friedman, 912 F.2d at 332. Specifically, the Friedman court
noted that Turner v. Safley "requires that courts allow prison
officials 'to anticipate security problems and to adopt innovative
solutions to the intractable problems of prison administration."
Id. at 332-33 (quoting Turner, 482 U.S. at 89).
4. This court conducted an evidentiary hearing in the Toyebo case on a
motion for preliminary injunction. At the hearing, David Tristan, the Deputy
Director for the Institutions Division of the CDC, testified concerning these
justifications and the support for them. (Toyebo v. Terhune, Reporter's Transcript
(RT), April 2, 1998, passim.)
App. 64
In Friedman, the United States Court of Appeals for the
Ninth Circuit held that a grooming policy regulating the length
of beards served legitimate penological interests where the state
of Arizona offered testimony that the policy aided 1 the rapid
and accurate identification of inmates, thereby fostering "(1)
orderly conduct of day-to-day activities; (2) identification of
prisoners responsible for disturbances; (3) apprehension of
escapees." Friedman, 912 F.2d at 331-32. The CDC has
offered substantially identical justifications here. In light of
Friedman, this court is compelled to find that defendant has
established a logical connection between their grooming policy
and legitimate penological justifications.
2. Alternatives for Free Exercise of Rastaiarian
Religions
The second prong of Tumer requires the court to
examine whether plaintiff retains alternative means of
practicing his religious faith. Under Friedman, this test "is not
the weighing of what religious practices take the place of
[wearing long hair.]" Id. at 332. Rather, the inquiry is whether
plaintiff retains his ability to participate in other Rastafarian
religious practices, or, instead, whether he has beer "denied ‘all
means of expression’ of their religion." Id. |
Plaintiff has presented no evidence that he has been
denied all means of expressing his religious faith Given the
test described in Friedman, in the absence of evidence that
requiring plaintiff his hair denied him all means of expressing
his Rastafarian religious faith, the court must fnd that the
second Turner factor does not weigh against the regulation at
issue.
App. 65
3. Impact of Accommodation
The third Turner factor requires assessment of the
impact that accommodation of plaintiffs’ First Amendment right
will have on guards, other inmates, and prison resources. At the
evidentiary hearing in Toyebo,
David Tristan testified that CDC officials
considered a religious exemption but came tot
he conclusion that it would be extremely
difficult to administer such an exemption; in
particular, he testified that they determined it
would be very difficult to establish whether long
hair was a fundamental tenet of specific
religions, and whether a particular inmate had a
sincerely held religious belief that required an
exemption. (April 2, 1998, RT at 86.) He also
testified, however, that the CDC has
mechanisms for identifying inmate membership
in particular religious faiths, particularly when
they are received into the CDC, and that they try
to accommodate religious practices consistent
with institutional security. (Id. at 87-88.)
Toyebo, Findings and Recommendations at 12. Defendant has
presented no new evidence from that presented in the Toyebo
case. This court was not persuaded then and is not persuaded
now that accommodation of plaintiff's First Amendment rights
would have a harmful effect on prison security or resources. Cf.
Friedman, 912 F.2d at 332 (testimony that accommodation will
"flood prison officials" with claims to the religious faith and/or
practice being accommodated and that guards will have more
difficulty identifying prisoners is sufficient to favor the
reasonableness of a grooming regulation.)
App. 66
4. Availability of Ready Alternatives
The final Turner factor requires the court to assess
whether there are "ready alternatives that fully accommodate the
prisoner's rights at de minimis cost to valid penological
interests." "The absence of ready alternatives is evidence of the
reasonableness of a prison regulation,' [citation omitted], while
the existence of alternatives may be ‘evidence that the [policy]
is not reasonable but is an ‘exaggerated response’ to prison
concerns.” Ward v. Walsh 1 F.3d 873, 879 (9" Cir. 1993)
(quoting Turner, 482 U.S. at 90-91), cert. denied, 510 U.S. 1192
(1994).
Plaintiff contends that he can and will wear his long hair
tied back, and that he has agreed to shave his face even though
his faith also requires that he wear a beard. (Plaintiff's
Opposition to Defendents [sic] Motion for Summary Judgment,
filed March 16, 2000, at 11.) Defendants, however, contend
that if male inmates are allowed to wear long hair tied back the
"would still be able to quickly and easily manipulate their
appearance and contraband could still be maintained within the
long hair." (Defendants' Motion for ii Judgment, filed
February 18, 2000, at 11.)
As it was in Toyebo, this court is persuaded that the
alternative suggested by plaintiff, as well as others, would be
easy and obvious. The law, however, is otherwise. In
Friedman, the court of appeals rejected a contention that
photographing inmates with and without a beard could be
accomplished at de minimis cost to security interests, because
an inmate could always change his -appearance after the
photograph was taken. That reasoning precludes this court from
finding that tying hair back is an easy, obvious alternative to the
grooming policy. Moreover, in Toyebo, this court is an easy,
obvious alternative to the grooming policy. Moreover, in
Toyebo defendants presented testimony that the increase in size
App. 67
of the inmate population has increased dramatically the number
of searches that must be conducted; this evidence precludes the
court from finding that additional searches could be
accomplished at de minimus cost.
5. Conclusion
For purposed of this summary judgment motion, there
is no dispute that plaintiff is sincere in his religious beliefs, that
wearing dreadlocks is central to his spiritual practice, and that
defendants’ grooming policy impinges on the free exercise of
his religion. In this court's view, however, the decision in
Friedman, which is authority that binds this court, precludes this
court from finding that defendants' grooming policy is
unreasonable. As the court noted in Toyebo,
Absent the decision in Friedman, this court
would readily find from this record tha the
majority of reasons tendered to support the
regulation are post hoc rationalizations and that
defendants' grooming policy is an exaggerated
response to the proffered concerns.
Nonetheless, the law of this circuit as set forth
in Friedman requires this court to conclude that
defendants' grooming policy is reasonably
related to legitimate penological interests and,
therefore, that plaintiffs are unlikely to succeed
on the merits of their claim that grooming policy
impermissibly infringes on their federal
constitutional right to free exercise of religion.
-
App. 68
(Toyebo, Findings and Recommendations, at 14.) For this
reason, the court must recommend that defendants' motion for
summary judgment be granted.°
In accordance with the above IT IS HEREBY
RECOMMENDED THAT: Z
1. Plaintiff's March 16, 2000 request for denial or a stay
of defendants' motion for summary judgment be denied;
2. Defendants' February 18, 2000 motion for summary
judgment be granted; and
3. This action be dismissed.
These findings and recommendations are submitted to
the United States District Judge assigned to the case, pursuant
to the provisions of 28 U.S.C. § 636(b)(1). Within twenty days
after being served with these findings and recommendations,
any party may file written objections with the court and serve a
copy on all parties. Such a document should be captioned
"Objections to Magistrate Judge's Findings and
Recommendations." Any reply to the objections shall be served
and filed within ten days after service of the objections. The
5. Defendants also contend that they are entitled to qualified immunity
from liability for damages on plaintiff's First Amendment claim. Because they are
entitled to judgment on the merits of this claim, the court has not reached the
question of qualified immunity.
In addition, in his opposition to defendants' summary judgment motion,
plaintiff contends that the regulations have also unlawfully extended the length of his
incarceration because when he was placed on "C" Status he lost the opportunity to
earn time credits. Claims relating to the length of duration of an inmate's confinement
must be raised by petition for writ of habeas corpus. See Preiser v. Rodriguez,
411U.S. 475 (1973).
App. 69
parties are advised thai faiiure to file objections within the
specified time may waive the right to appeal the District Court's
order. Martinez v. Yist, 951 F.2d 1153 (9 Cir. 1991).
DATED: May 10, 2000.
/s/
UNITED STATES
MAGISTRATE JUDGE
305 F.3d 1033
United States Court of Appeals,
Ninth Circuit.
Earl Wayne WYATT, Plaintiff-Appellant,
Vv
Cal A. TERHUNE; Suzan Hubbard, Warden, Defendants-
Appellees.
No. 00-16568.
Sept. 23, 2002.
Earl Wayne Wyatt, Ione, CA, pro se.
Grace Won, Farella, Braun and Martel, San Francisco, CA, for
Plaintiff- Appellant.
Kathleen E. Gnekow, Paul A. Bernardino, Sacramento, CA, for
Defendants- Appellees.
Before: BRIGHT, [FN*] B. FLETCHER and FISHER, Circuit
Judges.
FN* The Honorable Myron H. Bright, Senior Circuit
Judge, United States Court of Appeals for the Eighth
Circuit, sitting by designation.
ORDER
The panel has voted to deny appellee's petition for rehearing
and reject the suggestion for rehearing en banc, filed February
26, 2002.
App. 71
The full court has been advised of the suggestion for rehearing
en banc and no judge of the court has requested a vote on
whether to rehear the matter en banc. Fed. R.App. P.35.
The petition for rehearing and suggestion for rehearing en banc,
filed February 26, 2002, is DENIED.
The opinion filed on February 12, 2002, and published at 280
F.3d 1238 (9th Cir.2002), is WITHDRAWN.
App. 72
APPENDIX E
315 F.3d 1108
United States Court of Appeals,
Ninth Circuit.
Earl Wayne WYATT, Plaintiff-Appellant,
v.
Cal A. TERHUNE; Suzan Hubbard, Warden, Defendants-
Appellees.
No. 00-16568.
Dec. 31, 2002.
Earl Wayne Wyatt, Ione, CA, Grace Won, Esq., Farella,
Braun and Martel, San Francisco, CA, for Plaintiff-Appellant.
Kathleen E. Gnekow, Esq., Paul A. Bernardino, Esq.,
Sacramento, CA, for Defendant-Appellee.
Before BRIGHT, [FN*] B. FLETCHER and FISHER,
Circuit Judges.
FN* The Honorable Myron H. Bright, Senior Circuit
Judge, United States Court of Appeals for the Eighth
Circuit, sitting by designation.
ORDER
The panel has voted to deny appellee's petition for
rehearing en banc, received October 8, 2002 and filed
November 27, 2002.
App. 73
The full court has been advised of the suggestion for
rehearing en banc and no judge of the court has requested a vote
on whether to rehear the matter en banc. Fed. R.App. P. 35.
The petition for rehearing en banc, received October 8, 2002
and filed November 27, 2002, is DENIED.
The opinion filed September 23, 2002, and published at
305 F.3d 1033 (9th Cir.2002), is WITHDRAWN.
315 F.3d 1108, 3 Cal. Daily Op. Serv. 24.
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.