Case 2:08-cv-02295-GEB-EFB Document 2 Filed 09/29/08 Page 1 of 9

1 CHAPMAN, POPIK & WHITE LLP John G. Heller (State Bar No. 129901)
2 650 California Street, 19th Floor San Francisco, CA 94108
3 Telephone: (415) 352-3000 Facsimile: (415) 352-3030
4 Michael A. Scheibli (S.B. No. 196748)
5 Attorney at Law 1416 West Street
6 Redding, CA 96001 Telephone: (530) 243-0317
7 Facsimile: (530) 243-2003

8 Attorneys for Plaintiff BARRY A. HAZLE, JR.
9

10

UNITED STATES DISTRICT COURT

11

EASTERN DISTRICT OF CALIFORNIA

12 BARRY A. HAZLE, JR.

) No. )

13

Plaintiff,

) COMPLAINT FOR DAMAGES AND ) INJUNCTIVE RELIEF

14 v.

)

)

15 MITCH CROFOOT, Individually and as Parole)

Officer of the California Department of

)

16 Corrections; BRENDA WILDING, Individually) JURY TRIAL DEMANDED

and as Unit Supervisor of the California

)

17 Department of Corrections; MATTHEW

)

CATE, Individually and as Secretary of the )

18 California Department of Corrections and

)

Rehabilitation; SCOTT KERNAN, Individually)

19 and as Chief Deputy Secretary of Adult

)

Operations of the California Department of )

20 Corrections and Rehabilitation; TIM

)

HOFFMAN, Individually and as Director of the )

21 Division of Adult Parole Operations in

)

California; MARION SMITH, Individually and)

22 in his official capacity; Deputy Commissioner )

JALLINGS, Individually and as Deputy

)

23 Commissioner ofthe Board of Prison Hearings; )

WESTCARE, a Nevada Non-Profit

)

24 Corporation; MENTAL HEALTH SYSTEMS, )

INC., a California Corporation,

)

25

)

Defendants.

)

26

)

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1

INTRODUCTION

2

1. As a condition of parole following incarceration on drug possession charges,

3 Barry Hazle was required to participate in a "12-step" religious drug treatment program. Hazle

4 protested that the teachings and activities of this program offended his beliefs, and he sought to

5 be transferred to a secular treatment program. He was informed that no such alternative existed.

6 Hazle's parole officer concluded that Hazle's resistence to the religious treatment program

7 constituted a violation of the terms ofparole. Hazle's parole was revoked, and Hazle was

8 returned to jail for roughly 125 days, spending the bulk of that time in an overcrowded and

9 dangerous state prison in Norco, California.

10

2.

Hazle's rights under the Establishment Clause of the First Amendment of the

11 United States Constitution were violated by this conduct. The choice to which Hazle was put-

12 "to be imprisoned or renounce his own religious beliefs" - is one that, according to the Ninth

13 Circuit Court of Appeals, "offends the core of Establishment Clause jurisprudence." Inouye v.

14 Kemna, 504 F.3d 705, 714 (9th Cir. 2007).

15

3. In this lawsuit, Hazle seeks relief for this violation under the federal civil rights

16 laws. He also seeks an order from this Court prohibiting the illegal expenditure of public money

17 to fund the unconstitutional policies and procedures to which he was subjected.

18

mRISDICTION AND VENUE

19

4.

This is a civil action seeking damages against defendants for the commission of

20 acts, under color of state law, that deprived Barry Hazle of rights secured under the Constitution

21 and laws of the United States. The Court has jurisdiction of the federal claims as to all

22 defendants pursuant to 28 U.S.C. sections 1343 (a)(3) and 1343(a)(4), 28 U.S.C. section 1331(a),

23 and 42 U.S.C. section 1983. Jurisdiction for plaintiffs state law claims is based upon the

24 Court's supplemental jurisdiction under 28 U.S.C. section 1367.

25

26

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1

5. Venue is proper in this court under and pursuant to 28 U.S.c. section 1391(b) for

2 the reason that the acts and omissions complained of occurred in the City of Redding, Shasta

3 County, California.

4

THE PARTIES

5

6. Plaintiff Barry A. Hazle, Jr., is a resident of the County of Shasta, California.

6 Within one year ofthe commencement of this action, Hazle has paid state income taxes.

7

7. Defendant Mitch Crofoot was employed as a parole officer by the Department of

8 Corrections and Rehabilitation, and was Hazle's assigned parole officer in 2007. On information

9 and belief, Crofoot recommended that Hazle's parole be revoked, and participated in that

10 decision. He is sued in his individual and official capacities.

11

8. Defendant Brenda Wilding was at all relevant times Crofoot's Unit Supervisor,

12 and participated in, approved and ratified Crofoot's decisions to revoke Hazle's parole status.

13 She is sued in her individual and official capacities.

14

9. Defendant Commissioner Jallings is, on information and belief, a Deputy

15 Commissioner of the Board of Prison Hearings, located at the California Rehabilitation Center in

16 Norco, California. On information and belief, Jallings approved and ratified the order revoking

17 Hazle's parole and directing that he be returned to state prison. He is sued in his individual and

18 official capacities. His full name is not presently known.

19

10. Defendant Matthew Cate is the Secretary of the California Department of

20 Corrections and Rehabilitation, and has ultimate authority for all policies, directives and

21 decisions pertaining to parole, conditions of parole, and revocation of parole that apply to

22 persons released from California State prisons. He is sued in his official and individual

23 capacities.

24

II. Defendant Scott Kernan is Chief Deputy Secretary of Adult Operations of the

25 California Department of Corrections and Rehabilitation. He has direct oversight and

26 supervisory responsibility for the Division of Adult Parole Operations (DAPO), and thus has

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1 authority for developing and implementing policies pertaining to parole, conditions of parole,

2 and revocation of parole for parolees from California state prisons. He is sued in his official and

3 individual capacities.

4

12. Defendant Tom Hoffman is the Director of the Division of Adult Parole

5 Operations (DAPO), and has authority for developing, implementing, supervising and ratifYing

6 policies pertaining to parole, conditions of parole, and revocation of parole for parolees from

7 California State prisons. He is sued in his official and individual capacities.

8

13. Defendant Westcare is a non-profit corporation headquartered in Las Vegas,

9 Nevada, that contracts with the State of California and/or Department of Corrections and

10 Rehabilitation to provide public and governmental services, and serves as the Substance Abuse

11 Services Coordination Agency (SASCA) in Parole Region I of California, which includes and

12 encompasses Shasta County and adjacent counties. Among other responsibilities as the SASCA

13 for Region I, Westcare creates a network oftreatment facilities for parolees with drug-related

14 convictions, and contracts and coordinates with the State of California to place parolees in these

15 treatment programs.

16

14. Defendant Marion Smith is an employee of Mental Health Systems, Inc., and

17 made the decision and/or recommendation to assign Hazle to the Empire Recovery Center, a

18 residential drug treatment facility. He is sued in his individual and official capacities.

19

15. Defendant Mental Health Systems, Inc. is, on information and belief, a California

20 corporation headquartered in San Diego which contracts with the State of California and/or

21 Department of Corrections and Rehabilitation to, among other things, provide public and

22 governmental services relating to the placement of parolees in residential drug treatment

23 facilities.

24

25

26

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1

16. At all times material to this complaint, the defendants, and each ofthem, were

2 engaged in an employer-employee, master-servant and/or principal-agent relationship with one

3 another, and each was acting within the course and scope of such relationship(s).

4

17. At all times material to this complaint, defendants acted under color of the

5 statutes, customs, ordinances, and usages of the State of California.

6

GENERAL ALLEGATIONS

7

18. From February 27, 2006 to February 26,2007, Hazle was incarcerated in state

8 prison at the California Rehabilitation Center in Norco, California. He was imprisoned after the

9 Shasta County Superior Court sustained a petition for revocation of probation following Hazle's

10 conviction for possession of illicit. drugs. (This ruling, the sole basis for Hazle's initial

II incarceration, was later overturned in a published opinion by the California Court of Appeal,

12 Third Appellate District.)

13

19. Hazle was released on parole from prison on February 26, 2007. One condition

14 of his parole was that he attend and complete a 90-day residential drug treatment program. He

15 was assigned to a program in Shasta County called Empire Recovery Center (Empire). Hazle

16 was required to reside at the Empire facility, participate in daily classes and meetings, and abide

17 by the rules and regulations established by Empire representatives.

18

20. Shortly after arriving at Empire, Hazle discovered that Empire used a "12-step"

19 recovery program originally developed by Alcoholics Anonymous and Narcotics Anonymous.

20 This program is rooted in religious faith, and contains integral religious components. Among

21 other features, the "12-step" method involves and requires an acknowledgment of the existence

22 of a supernatural God, the deference to a monotheistic "higher power," and participation in

23 prayer.

24

21. Hazle is an Atheist. The substantial religious components to the "12-step"

25 program administered at Empire were and are antithetical to his beliefs. At the time he was

26 released on parole, Hazle had requested that he not be placed in a treatment facility that

5
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I contained religious components. This request was made to Marion Smith, an employee of

2 Mental Health Systems and the official responsible for placing Hazle in a residential treatment

3 facility.

4

22.

Hazle objected on several occasions to the compelled participation in a religious

5 program, both to representatives of Empire, and to his parole officer Crofoot. Hazle also

6 requested that he be allowed to satisfy the residential treatment requirement of his parole by

7 participating in a secular recovery program.

8

23. This request was denied. Crofoot told Hazle that, as confirmed by SASCA, "all

9 of the programs in Northern California are 12-step programs."

10

24. Hazle set forth his opposition to this coerced participation in a religious program

11 in a formal InmatelParolee Appeal known as a 602 form (the "602 Appeal"). In his 602 Appeal,

12 which was presented to Crofoot on April 3, 2007, Hazle cited to legal authorities confirming the

13 unconstitutionality ofthe parole conditions that were being imposed upon him.

14

25. On April 6, 2007, Hazle was called out of a class at Empire and placed under

15 arrest by Crofoot. Crofoot told Hazle that he had violated the terms of his parole by refusing to

16 participate in residential treatment.

17

26. The decision to arrest Hazle for this supposed violation of the terms of his parole

18 was conducted at the recommendation of Crofoot, and with the concurrence and approval of

19 Crofoot's Unit Supervisor, Brenda Wilding. An oral order ofretum to prison on this basis was

20 authorized by Commissioner Jallings.

21

27. Hazle was incarcerated at the Shasta County Jail, then transported to the High

22 Desert State Prison, and ultimately sent to the CRC state prison in Norco, California, a facility

23 recognized by California's governor to be "overcrowded" and "very dangerous for ... the

24 inmates." Hazle was incarcerated a total of roughly 125 days as a result of the revocation of his

25 parole.

26

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1

FIRST CLAIM FOR RELIEF

2

(For Violation of Civil Rights under 42 U.S.C. section 1983; Against All Defendants)

3

28. Plaintiff realleges and incorporates by this reference each and every allegation of

4 paragraphs 1 through 27 as if fully set forth in this claim for relief.

5

29. Defendants violated Hazle's rights under the Establishment Clause of the First

6 Amendment of the United States Constitution by, among other things:

7

(a) requiring him, as a condition of parole, to participate in a "12-step" program that

8

contains substantial religious components;

9

(b) rejecting his requests to fulfill the treatment condition of his parole through a

10

secular and non-religious program; and

11

(c) revoking his parole, and incarcerating him, because he resisted this coerced

12

participation in a program that contains substantial religious components.

13

30. At the time that defendants took this action, the law was clearly established. Any

14 reasonable official or person would have known that the conditions imposed on Hazle, and the

15 actions taken against him, constituted an impermissible violation of Hazle's First Amendment

16 rights.

17

, 31.

As a result of this constitutional violation, Hazle was wrongly incarcerated for

18 approximately 125 days in.an overcrowded and dangerous state prison.

19

32. Hazle thus suffered an extended period of deprivation of liberty, the indignity of

20 incarceration, and financial loss, stress, humiliation and emotional distress.

21

33. In committing these acts, defendants carried out, implemented and conformed to

22 official or de facto policies, customs, practices and/or directives which had been issued,

23 approved or condoned by other defendants. These policies, customs, practices and/or directives

24 include, but are not limited to, the following: (1) requiring that persons released from state prison

25 on drug-related charges participate in religious treatment programs, notwithstanding that such

26 compulsory participation violates the Establishment Clause of the United States Constitution; (2)

7
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1 failing to provide such persons with secular or non-religious alternatives for post-release

2 treatment; (3) failing to implement procedures or protocols to accommodate parolees who object

3 to the substantial religious components of the treatment facilities to which they are assigned; (4)

4 revoking parole and incarcerating parolees who protest, object to, or refuse to participate in

5 religious treatment programs.

6

34. These official policies, customs, practices and/or directives are causally and

7 affirmatively linked to the deprivation of Hazle's constitutional rights.

8

35. Defendants have the final decision-making authority in selecting and

9 implementing the policies, customs, practices and/or directives that caused the deprivation of

10 Hazle's constitutional rights.

11

36. As a direct and proximate result of the actions and omissions of defendants, Hazle

12 suffered loss ofliberty, financial loss, and emotional distress, in an amount to be proved at trial.

13

37. In carrying out these unconstitutional acts, and in implementing these policies,

14 customs, practices and/or directives, defendants acted intentionally, recklessly, oppressively,

15 unjustifiably, and with gross and deliberate indifference to Hazle's constitutional right, justifying

16 an award of punitive damages.

17

SECOND CLAIM FOR RELIEF

18

(Taxpayer's Injunction Pursuant to CCP § 526a; Against All Defendants)

19

38. Plaintiff realleges and incorporates by this reference each and every allegation of

20 paragraphs 1 through 37, as if fully set forth in this claim for relief.

21

39. Defendants, individually and collectively, have established, instituted and ratified

22 policies and procedures that permit and encourage the Constitutional violations to which Hazle

23 was subjected, whereby (a) persons convicted of drug-related offenses are required to participate

24 in religious treatment programs in order to be eligible for parole, (b) such persons are not

25 provided secular and non-religious post-release treatment alternatives, and/or (c) those persons

26

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1 who protest or resist coerced participation in religious activities are subject to parole revocation

2 and imprisonment.

3

40. These policies and procedures violate the Establishment Clause of the United

4 States Constitution, and constitute an illegal expenditure of state resources and funds. Under

5 California Code of Civil Procedure section 526a, Hazle seeks an order restraining and preventing

6 this illegal expenditure.

7

WHEREFORE, plaintiff respectfully prays for judgment against each and all of the

8 defendants as follows:

9

a. For special, general and other compensatory damages according to proof;

10

b. For an injunction prohibiting the illegal expenditure of state money to fund

11

unconstitutional parole practices;

12

c. For punitive damages according to proof;

13

d. For attorneys' fees;

14

e. For costs of suit; and

15

f.

For such other and further relief as the Court may deem appropriate.

16 Dated: September 29, 2008

CHAPMAN, POPIK & WHITE LLP

17

18

By:

H. Heller

19

Plaintiffs Barry A Hazle. Jr.

20

21

JURY TRIAL DEMAND

22

Plaintiff demands a trial by jury of all claims and issues so triable in this action.

23 Dated: September 29,2008

CHAPMAN, POPIK & WHITE LLP

24

25

By:

G. Heller

26

Plaintiff Barry A Hazle, If.

9
No. _ _ _ _ _ _ _ - Complaint for Damages and Injunctive Relief; Jury Trial Demand

 
 1 IN THE UNITED STATES DISTRICT COURT
2 FOR THE EASTERN DISTRICT OF CALIFORNIA
3

4

BARRY A. HAZLE, JR.,

)

5

)

Plaintiff,

)

6

)

v.

)

7

)

MITCH CROFOOT, individually and as )

8 Parole Officer of the CDCR; BRENDA )

WILDING, individually and as Unit )

9 Supervisor of the CDCR; MATTHEW )

CATE, individually and as Secretary)

10 of the CDCR; SCOTT KERNAN,

)

individually and as Chief Deputy )

11 Secretary of Adult Operations of )

the CDCR; TIM HOFFMAN, individually)

12 and as Director of the Division of )

Adult Parole Operations in

)

13 California; DEPUTY COMMISSIONER )

JALLINS, individually and as

)

14 deputy commissioner; and WESTCARE, )

)

15

Defendants.

)

)

16

2:08-cv-02295-GEB-KJM
ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT, GRANTING DEFENDANT WESTCARE’S MOTION FOR SUMMARY JUDGMENT, and DENYING PLAINTIFF’S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT*

17

Pending are three motions for summary judgment or summary

18 adjudication concerning Plaintiff’s claims that Defendants violated

19 his rights under the Establishment Clause of the First Amendment.

20 Specifically, Plaintiff argues these rights were violated when he was

21 required to participate in a “12-step” drug rehabilitation program

22 containing religious components as a condition of his parole.

23

Plaintiff filed a motion for partial summary judgment

24 (“Partial Mot.”) on December 23, 2009. Plaintiff seeks a ruling in

25 this motion that Defendants Mitchell Crofoot (“Crofoot”), Brenda

26 Wilding (“Wilding”), and Richard Jallins (“Jallins”) are liable for

27

28

*

This matter is deemed suitable for decision without oral

argument. E.D. Cal. R. 230(g).

1

1 violating his rights under the Establishment Clause by not relieving

2 Plaintiff from a condition of his parole requiring him to attend a

3 12-step program with religious components after Plaintiff objected to

4 the religious components. Defendant Westcare California, Inc.

5 (“Westcare”) also filed a motion for summary judgment (“Westcare

6 Mot.”) on December 23, 2009, in which it argues Plaintiff is unable to

7 establish a causal connection between Westcare’s activities and his

8 Establishment Clause claim. Westcare also argues in its motion that

9 Plaintiff’s request for a taxpayer’s injunction enjoining Defendants

10 from using state resources and funds to require parolees to

11 participate in 12-step programs with religious components is moot.

12 Lastly, Plaintiff filed a cross-motion for partial summary judgment

13 (“Cross Mot.”) on January 26, 2010, in which he seeks a ruling that

14 Westcare liable for violating his Establishment Clause rights. For

15 the following reasons, Plaintiff’s partial motion seeking to establish

16 the liability of Crofoot, Wilding, and Jallins is GRANTED; Westcare’s

17 motion is GRANTED; and, Plaintiff’s cross-motion against Westcare is

18 DENIED.

19

I. Background

20

Plaintiff “was incarcerated at California Rehabilitation

21 Center, Norco, from February 27, 2006 to February 27, 2007, on charges

22 pertaining to possession of illegal substances.” (Westcare’s

23 Statement of Undisputed Facts in Support of Motion for Summary

24 Judgment (“Westcare SUF”) ¶ 1.) “[Plaintiff] was released . . . on

25 February 26, 2007, [and placed] on parole with the single condition

26 that he attend and complete a 90-day [‘12-step’] residential drug

27 treatment program.” (Id. ¶ 2; Statement of Undisputed Facts In

28 Support of Plaintiff’s Motion for Partial Summary Judgment (“Partial

2

1 Mot. SUF”) ¶ 1; Statement of Undisputed Facts in Support of

2 Plaintiff’s Cross Motion for Partial Summary Judgment (“Cross Mot.

3 SUF”) ¶ 12.) Defendant “Mitch Crofoot was [Plaintiff’s] parole agent

4 at the time Plaintiff [participated in the drug treatment program].”

5 (Partial Mot. SUF ¶ 4.)

6

Westcare “contracts with the [California Department of

7 Corrections and Rehabilitation (“CDCR”)] as a regional Substance Abuse

8 Services Coordination Agency (“SASCA”) for Parole Region I in

9 California.” (Westcare SUF ¶ 11; Cross Mot. SUF ¶ 1.) As a SASCA,

10 “Westcare creates a network of treatment facilities for parolees with

11 drug-related convictions, and coordinates with the State to place

12 parolees in these programs.” (Cross Mot. SUF ¶ 3.) “Westcare’s

13 standard form contract with residential providers prohibits the

14 providers from requiring the ‘SASCA participants to attend religious

15 events or participate in religious activities. Any such participation

16 is entirely optional for the SASCA participants and contractors may

17 not impose a penalty for lack of participation.’” (Cross Mot. SUF ¶

18 6.) A residential treatment facility is required to abide by the

19 above provision in order to contract with Westcare. (Cross Mot. SUF ¶

20 7; Smith Dep. 24:23-26:6.) “Empire Recovery Center (“Empire”) is a

21 non-profit corporation which contracts with Westcare to provide

22 substance abuse treatment and re-entry services to parolees upon

23 release from prison.” (Westcare SUF ¶ 6.) “Empire is an independent

24 contractor under the terms of the contract with Westcare.” (Westcare

25 SUF ¶ 7.)

26

“Prior to his release on parole in February 2007,

27 [Plaintiff] told correctional authorities and Westcare representatives

28 that he was an Atheist, and requested placement in a treatment

3

1 facility that did not contain religious components to fulfill the

2 condition of his parole.” (Cross Mot. SUF ¶ 13.) “A Westcare

3 representative advised him that he should ask to be assigned to

4 [Empire].” (Cross Mot. SUF ¶ 13.) Plaintiff was assigned to Empire

5 in Redding, California. (Partial SUF ¶ 2; Westcare SUF ¶ 4.) Empire

6 utilizes a 12-step recovery program, developed by Alcoholics Anonymous

7 and Narcotics Anonymous, which includes references to God and a higher

8 power. (Cross Mot. SUF ¶ 14; Partial Mot. SUF ¶ 3.)

9

“While at Empire, [Plaintiff] notified Westcare

10 representatives and told them that he objected to the religious 12-

11 step program used by Empire, and asked to be transferred to a secular

12 alternative.” (Cross Mot. SUF ¶ 15.) “[Plaintiff] also asked

13 [Crofoot] whether he could fulfill his parole requirement through a

14 secular recovery program.” (Partial Mot. ¶ 7; Cross Mot. SUF ¶ 16.)

15 “[Plaintiff] told Crofoot that he objected to participating in the

16 Empire program because he was an atheist.” (Partial Mot. SUF ¶ 6.)

17 “Crofoot told [Plaintiff] that he needed to continue at Empire while

18 Crofoot looked into the issue of whether secular programs were

19 available, and told [Plaintiff] not to leave the Empire class in the

20 meantime.” (Cross Mot. SUF ¶ 17.) “Crofoot called Westcare to ask

21 whether a non 12-step program was available for [Plaintiff].” (Cross

22 Mot. SUF ¶ 18.) “Westcare informed Crofoot that there were no secular

23 treatment programs in the Northern California area.” (Westcare SUF ¶

24 24.) “While waiting to hear back from Crofoot, [Plaintiff] contacted

25 Westcare and again explained that he was an atheist and asked whether

26 he could attend a secular program in lieu of Empire’s religious 12-

27 step program.” (Cross Mot. SUF ¶ 19.) “Westcare representative Dawn

28 Hall told [Plaintiff] that the only other available program was a

4

1 faith-based program called Cornerstone, and that if he ‘didn’t like

2 Empire, he really wasn’t going to like it at Cornerstone.’” (Cross

3 Mot. SUF ¶ 20.) “After making inquiries, Crofoot told [Plaintiff]

4 that there were no programs that were ‘non 12-step.’” (Partial Mot.

5 SUF ¶ 9.) “Crofoot told [Plaintiff] that he could file an

6 Inmate/Parolee Appeal [known as a “602 Appeal”], but that in the

7 meantime [Plaintiff] should continue to participate in the Empire

8 Program or he would be returned to prison.” (Partial Mot. SUF ¶ 10.)

9 “[Plaintiff] presented Crofoot on April 3, 2007 with a 602 Appeal that

10 set forth the basis for his objection to participation in the Empire

11 program.” (Partial Mot. SUF ¶ 11) Plaintiff’s 602 Appeal states:

12

As an Atheist I object to forced participation in

any spiritual/religious activities. I am currently

13

required to attend 90 days on in-patient treatment

at the Empire Recovery Center in Shasta County. I

14

have been told by my parole officer that I must

complete the 90 days of spiritual treatment because

15

there are no available secular recovery

alternatives. [¶] Since the CDC cannot provide me

16

with a secular alternative to 12-step based

treatment I would like the in-patient treatment

17

stipulation removed from my parole conditions so

that I may return home ASAP.

18

19 (Heller Decl. Partial Mot. Ex. B; Heller Decl. Cross Mot. Ex. L.)

20 Plaintiff also attached to his 602 Appeal a document further

21 explaining his beliefs as an Atheist and a summary of judicial

22 opinions in support of his request. (Id.)

23

“According to Crofoot, representatives of Empire told

24 Crofoot on April 6, 2007, that [Plaintiff] ‘has been disruptive,

25 though in a congenial way, to the staff as well as other students.’”

26 (Partial Mot. SUF ¶ 12; Cross Mot. SUF ¶ 30.) “Crofoot’s

27 understanding from the Empire representatives was that [Plaintiff]

28 ‘was not being loud; he wasn’t throwing things around; he wasn’t

5

1 stomping around; he wasn’t being boisterous and that sort of thing.’” 2 (Partial Mot. SUF ¶ 13; Cross Mot. SUF ¶ 31.) “He was ‘sort of 3 passive aggressive.’” (Partial Mot. SUF ¶ 13; Cross Mot. SUF ¶ 31.) 4 “Crofoot spoke with his Unit Supervisor, Defendant Brenda Wilding, and 5 concluded that the right thing to do was to refer Plaintiff to [the 6 Board of Parole Hearings (the “BPH”)] on a parole violation for 7 failing to participate in the BPH-ordered program.” (Partial Mot. SUF 8 ¶ 15.) “Wilding understood that [Plaintiff] objected to participating 9 in the Empire [] program because he was an atheist.” (Partial Mot. 10 SUF ¶ 20.) “Wilding understood that Crofoot told [Plaintiff] that 11 [Plaintiff] had to either participate in the [program] or be returned 12 to prison.” (Partial Mot. SUF ¶ 21.) “Crofoot and Wilding decided 13 together that [Plaintiff] needed to be returned to prison so that he 14 could argue his case before the BPH.” (Partial Mot. SUF ¶ 16.) 15 “Crofoot arrested [Plaintiff] on April 6, 2007 and booked him into the 16 Shasta County Jail.” (Partial Mot. SUF ¶ 17.) “After arresting 17 [Plaintiff], Crofoot called the [California Rehabilitation Center (the 18 “CRC”)], explained the circumstances pertaining to [Plaintiff], 19 explained that he was requesting that [Plaintiff] be returned to 20 custody, and obtained an oral order of return authorized by Deputy 21 Commissioner Richard Jallins.” (Partial Mot. SUF ¶ 18.) “After the 22 oral order of return was authorized from Deputy Commissioner Jallins, 23 [Plaintiff] was sent back to prison.” (Partial Mot. SUF ¶ 19.) The 24 “oral order questionnaire/authorization” signed by Crofoot and 25 approved by Jallins, states in the Comments section: “Refusing to 26 participate in residential program. Causing problems with staff that 27 is effecting [sic] the other residents.” (Heller Decl. Partial Mot. 28 Ex. C; Cross Mot. SUF ¶ 34.)
6

1

“[Plaintiff] was incarcerated for more than 100 days, the

2 bulk of which he spent in state prison in Norco, California.” (Cross

3 Mot. SUF ¶ 35.) “On June 27, 2007, while Plaintiff was still in

4 prison, he received a response from CDCR to his 602 appeal, denying

5 the appeal.” (Cross Mot. SUF ¶ 36.) The response to Plaintiff’s 602

6 Appeal states:

7

It would behoove you to take advantage of the tools

that are offered to you to help you with your

8

addiction, behavior, and adjustment to society.

Per your Agent of Record, Mr. Crofoot, he has made

9

attempts to locate treatment facilities to

accommodate your preference, per Mr. Crofoot,

10

Empire Recovery was the best suited for you. Your

negative behavior toward staff caused you to be

11

discharged from that program leaving your Agent of

Record no other choice but to return you to CRC for

12

further treatment. Therefore, your request is

denied.

13

14 (Heller Decl. Partial Mot. Ex. I.) The response is signed by William

15 Crisologo, Associate Chief Deputy Commissioner, Board of Parole

16 Hearings. (Id.)

17

Plaintiff filed his Complaint in this case on September 29,

18 2008. After Plaintiff filed his Complaint, on November 18, 2008,

19 the CDCR issued Directive No. 08-06, which states:

20

Case law filed on September 7, 2007 in the United

States Court of Appeals For The Ninth Circuit

21

established that placement of a parolee into a

religious based substance abuse program at the

22

objection of the parolee was unconstitutional. As

such, the Division of Adult Parole Operations

23

(DAPO) cannot compel a parolee to participate in

Alcoholics Anonymous (AA), Narcotics Anonymous (NA)

24

or any other religious-based substance abuse

treatment program as a condition of parole. [¶]

25

Effective immediately, Parole Agents assigned to

DAPO, shall not require that a parolee attend AA,

26

NA, or any other religious based program if the

parolee refuses to participate in such a program

27

for religious reasons. Under these circumstances,

the parolee shall be referred to an alternative

28

nonreligious program.

7

1 (Cross Mot. SUF ¶ 37; Heller Decl. Cross Mot. Ex. O.) “Westcare did
2 not receive a copy of this directive until it was produced in
3 discovery in this action.” (Cross Mot. SUF ¶ 38.) “Westcare does not
4 know what the term ‘alternative nonreligious program’ as used in the
5 Directive means.” (Cross Mot. SUF ¶ 39.) “The Directive has not
6 altered the way in which Westcare conducts business.” (Cross Mot. SUF
7 ¶ 40.) “To date, Westcare continues to contract solely with
8 residential providers that use the 12-step program ‘in some form or
9 fashion.’” (Cross Mot. SUF ¶ 41.)
10 II. Legal Standard
11 A party seeking summary judgment bears the initial burden of
12 demonstrating the absence of a genuine issue of material fact for
13 trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). If
14 this burden is satisfied, “the non-moving party must set forth . . .
15 specific facts showing that there is a genuine issue for trial.” T.W.
16 Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626,
17 630 (9th Cir. 1987) (quotations and citation omitted) (emphasis
18 omitted). “All reasonable inferences must be drawn in favor of the
19 non-moving party.” Bryan v. McPherson, 590 F.3d 767, 772 (9th Cir.
20 2009). “Here, cross-motions for summary judgment are at issue. [The
21 Court] evaluate[s] each motion separately, giving the nonmoving party
22 in each instance the benefit of all reasonable inferences.” A.C.L.U.
23 of Nevada v. City of Las Vegas, 466 F.3d 784, 790-91 (9th Cir. 2006).
24 //
25 //
26 //
27 //
28
8

1 //

2

III. Analysis

3 A. 4

Hazle’s motion for summary judgment on whether Defendants Crofoot, Wilding, and Jallins are liable for violating Hazle’s Establishment Clause rights

5

Plaintiff seeks a partial summary judgment finding that

6 Defendants Crofoot, Wilding, and Jallins (the “Parole Defendants”) are

7 liable for violating his Establishment Clause rights by requiring him

8 to participate in a 12-step drug rehabilitation program that contained

9 religious components. Specifically, Plaintiff argues the Parole

10 Defendants violated his First Amendment right under the Establishment

11 Clause as follows: (1) “requiring him, upon threat of arrest or

12 incarceration, to continue participating in a ‘12-step’ program that

13 contained religious components”; (2) “rejecting his requests to

14 fulfill the treatment condition of his parole through a secular and

15 non-religious program”; and (3) “arresting and incarcerating him based

16 on his resistance.” (Partial Mot. 7:15-20.) The Parole Defendants

17 respond, arguing it was Plaintiff’s “disruptive behavior” and “not

18 [Plaintiff’s] self-professed status as an Atheist [that] caused his

19 dismissal from his substance abuse program, . . . arrest[,] and

20 subsequent reincarceration . . . .” (Parole Defs.’ Opp’n to Partial

21 Mot. 4:1-10.)

22

“For the government to coerce someone to participate in

23 religious activities strikes at the core of the Establishment Clause

24 of the First Amendment, whatever else the Clause may bar.” Inouye v.

25 Kemna, 504 F.3d 705, 712 (9th Cir. 2007). The Ninth Circuit

26 articulated the following test in Inouye v. Kemna “with regard to

27 determining whether [Plaintiff] was [subject to] governmental coercion

28 of religious activity . . . : ‘first, has the state acted; second,

9

1 does the action amount to coercion; and third, is the object of the

2 coercion religious rather than secular?’” Id. at 713. “First,

3 [Crofoot] acted in his official state capacity as a parole officer to

4 order [Plaintiff into a 12-step program that contained religious

5 components]. That the state did not run the program itself is ‘of no

6 moment.’” Id. (quoting Kerr v. Farrey, 95 F.3d 472, 479 (7th Cir.

7 1996)). It is undisputed that Crofoot, Wilding, and Jallins were

8 acting in their official state capacities when they required Plaintiff

9 to participate in the 12-step drug treatment program as a condition of

10 his parole, and subsequently removed and incarcerated him for not

11 participating in the program.

12

Further, the Parole Defendants’ “action was clearly

13 coercive: [Plaintiff] could be imprisoned if he did not attend and he

14 was, in fact, ultimately returned to prison in part because of his

15 refusal to participate in the program.” Inouye, 504 F.3d at 713

16 (emphasis added). The Parole Defendants argue Plaintiff was returned

17 to prison because he was “disruptive” in the program. This argument

18 rings hollow in light of the undisputed facts showing Plaintiff was

19 only “disruptive” in the program “‘in a congenial way’” and “was ‘sort

20 of passive aggressive.’” (Partial Mot. SUF ¶¶ 12, 13.) It is also

21 undisputed that Plaintiff communicated his objection to participation

22 in the Empire program and that Crofoot told Plaintiff he “should

23 continue to participate in the Empire Program or he would be returned

24 to prison.” (Id. ¶ 10.) It is further undisputed that Crofoot and

25 Wilding concluded that “the right thing to do” was to refer Plaintiff

26 to the Board of Parole Hearings “on a parole violation for failing to

27 participate in the BPH-ordered program.” (Id. ¶ 15.) It is also

28 undisputed that Deputy Commissioner Jallins authorized Plaintiff to be

10

1 returned to prison because of Plaintiff’s failure to participate in

2 the program. (Id. ¶¶ 18-19, 24.)

3

“The final element requires somewhat more discussion.”

4 Kerr, 95 F.3d at 479. It is undisputed that “Empire used a 12-step

5 program that included references to God and a ‘higher power.’”

6 (Partial Mot. SUF ¶ 3.) Further, Plaintiff’s following averments in

7 his declaration have not been controverted:

8

Shortly after arriving at Empire, I discovered that

Empire used a “12-step” recovery program based [on]

9

the principles of Alcoholics Anonymous (“AA”) and

Narcotics Anonymous (“NA”), which contains

10

religious components. Among other features, the

“12-step” method used by Empire made references to

11

God, involved acknowledgment of a “higher power,”

and included prayer. [¶] I am an atheist, and was

12

one in 2007. The substantial religious components

to the “12-step” program administered by Empire

13

conflicted with my beliefs. Prior to my release on

parole, I had notified correctional authorities of

14

my Atheism, and requested placement in a treatment

facility that did not contain religious components.

15

16 (Hazle Decl. ¶¶ 2, 3.) The Parole Defendants do not dispute that the

17 Empire’s 12-step program contained religious components. “As such, on

18 this summary judgment record and given the lack of dispute between the

19 parties in question, . . . the third prong of [Plaintiff’s]

20 Establishment Clause test has been met as well.” Inouye, 504 F.3d at

21 713-14. Therefore, “the program runs afoul of the prohibition against

22 the state’s favoring religion in general over non-religion,” because

23 of the program’s use of a religious concept of a Higher Power through

24 references to God and prayer. Kerr, 95 F.3d at 480. Accordingly,

25 Plaintiff’s partial motion for summary judgment against the Parole

26 Defendants is granted.

27 ///

28 ///

11

1 B. Plaintiff and Westcare’s cross motions for summary judgment on Plaintiff’s Establishment Clause claim
2 Westcare and Plaintiff each seek summary judgment on
3 Plaintiff’s Establishment Clause claim. Westcare argues Plaintiff
4 “cannot establish a causual connection between Westcare’s alleged acts
5 and the violation of [Plaintiff’s] rights.” (Westcare Mot. 6:3-4.)
6 Westcare further argues “Plaintiff has no evidence to support coercion
7 on the part of Westcare.” (Westcare Mot. 9:10-11.) Plaintiff argues
8 Westcare “set in motion” the series of events leading up to the
9 violation of his rights by “contract[ing] exclusively with 12-step
10 facilities.” (Plt.’s Opp’n to Westcare Mot. 19:5-23.) Plaintiff also
11 argues Westcare is liable for “ignor[ing]” Plaintiff’s “objections to
12 the religious components of the program” once it became aware of them.
13 (Plt.’s Opp’n to Westcare Mot. 22:20-23:2.)
14 It is undisputed that Westcare contracts with the State of
15 California to “create a network of treatment facilities for parolees
16 with drug-related convictions, and coordinates with the State to place
17 parolees in these programs.” (Cross Mot. SUF ¶ 3.) It is also
18 undisputed that Westcare does not have the authority to require a
19 parolee to attend or remain within a specific residential treatment
20 facility once there. (Westcare SUF ¶ 15.) It is further undisputed
21 that parolees can be transferred to treatment facilities in other
22 counties to fulfill their parole conditions upon the approval of the
23 parolee’s parole agent. (Cross Mot. SUF ¶ 22.) Since Plaintiff has
24 not controverted Westcare facts with specific facts showing that
25 Westcare had authority to require Plaintiff to attend or remain within
26 a specific residential treatment facility, Westcare’s motion is
27 granted, and Plaintiff’s motion is denied.
28
12

1 C. Westcare’s Motion for Summary Judgment on Plaintiff’s Injunction

2

Westcare also seeks summary judgment of Plaintiff’s request

3 for an injunction, arguing that CDCR Directive No. 08-06, issued

4 November 18, 2008, moots Plaintiff’s request. (Westcare Mot. 11:4-5.)

5 The Directive states:

6

Case law filed on September 7, 2007 in the United

States Court of Appeals For The Ninth Circuit

7

established that placement of a parolee into a

religious based substance abuse program at the

8

objection of the parolee was unconstitutional. As

such, the Division of Adult Parole Operations

9

(DAPO) cannot compel a parolee to participate in

Alcoholics Anonymous (AA), Narcotics Anonymous (NA)

10

or any other religious-based substance abuse

treatment program as a condition of parole. [¶]

11

Effective immediately, Parole Agents assigned to

DAPO, shall not require that a parolee attend AA,

12

NA, or any other religious based program if the

parolee refuses to participate in such a program

13

for religious reasons. Under these circumstances,

the parolee shall be referred to an alternative

14

nonreligious program.

15 (Heller Decl. Cross Mot. Ex. O.) Plaintiff responds, arguing Westcare

16 has not met its burden of showing that his claim for an injunction is

17 moot. (Opp’n to Westcare Mot. 23:22-23.)

18

“A case m[ay] become moot if subsequent events ma[ke] it

19 absolutely clear that the allegedly wrongful behavior c[annot]

20 reasonably be expected to recur.” United States v. Concentrated

21 Phosphate Ass’n, 393 U.S. 199, 203 (1968). Here, the uncontroverted

22 Directive adopts a new policy that complies with the Ninth Circuit’s

23 holding in Inouye. Such a conclusive change in policy, absent any

24 indication that it was promulgated only in response to ongoing

25 litigation, is sufficient to render the request for an injunction

26 moot. See White v. Lee, 227 F.3d 1214, 1243-44 (9th Cir. 2000)

27 (finding that a “memorandum represent[ing] a permanent change” in

28 policy, that was “unequivocal in tone,” and “fully supportive of First

13

1 Amendment rights,” mooted plaintiff’s claims for prospective relief).

2 Therefore, this portion of Westcare’s motion is granted.

3

IV. Conclusion

4

For the stated reasons, Plaintiff’s partial motion for

5 summary judgment on Defendants Crofoot, Wilding, and Jallins’

6 liability is granted, Westcare’s motion for summary judgment is

7 granted, and Plaintiff’s cross-motion for partial summary judgment on

8 Westcare’s liability is denied. Further, Westcare’s prevails on its

9 argument that Plaintiff’s request for an injunction is moot.

10 Dated: April 6, 2010 11

12

GARLAND E. BURRELL, JR.

13

United States District Judge

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

14

 
 1 IN THE UNITED STATES DISTRICT COURT
2 FOR THE EASTERN DISTRICT OF CALIFORNIA
3

4

BARRY A. HAZLE, JR.,

)

5

)

Plaintiff,

)

6

)

v.

)

7

)

MITCH CROFOOT, individually and as )

8 Parole Officer of the CDCR; BRENDA )

WILDING, individually and as Unit )

9 Supervisor of the CDCR; MATTHEW )

CATE, individually and as Secretary)

10 of the CDCR; SCOTT KERNAN,

)

individually and as Chief Deputy )

11 Secretary of Adult Operations of )

the CDCR; TIM HOFFMAN, individually)

12 and as Director of the Division of )

Adult Parole Operations in

)

13 California; DEPUTY COMMISSIONER )

JALLINS, individually and as

)

14 deputy commissioner; and WESTCARE, )

)

15

Defendants.

)

)

16

2:08-cv-02295-GEB-KJM
ORDER GRANTING DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT*

17

Defendants Matthew Cate, Mitch Crofoot, Richard Jallins,

18 Scott Kernan, and Brenda Wilding (“Defendants”) filed a motion for

19 partial summary judgment on Plaintiff’s claim for injunctive relief

20 under California Code of Civil Procedure section 526a. Defendants

21 argue, inter alia, California Department of Corrections and

22 Rehabilitation (“CDCR”) Directive No. 08-06 renders this claim moot.

23 Plaintiff responds indicating that the motion could be resolved based

24 on an evidentiary record developed in an earlier decided motion by

25 stating: “Plaintiff treats the issues in defendants’ motion as having

26 already been resolved” by the Court’s prior order granting Defendant

27

28

*

This matter is deemed suitable for decision without oral

argument. E.D. Cal. R. 230(g).

1

1 Westcare’s motion for partial summary judgment on Plaintiff’s section

2 526a claim, in which the Court held the claim was mooted by CDCR

3 Directive No. 08-06. (Opp’n 2:2-3.) Since Plaintiff does not oppose

4 Defendants’ arguments, including the argument that the claim is moot

5 and for the reasons stated in the Court’s April 7, 2010 order granting

6 partial summary judgment in favor of Westcare, Defendants’ motion for

7 summary judgment is granted.

8 Dated: August 10, 2010 9

10

GARLAND E. BURRELL, JR.

11

United States District Judge

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2

 
 1

2

3

4

5

6

7

8

9 IN THE UNITED STATES DISTRICT COURT
10 FOR THE EASTERN DISTRICT OF CALIFORNIA
11

12 BARRY A. HAZLE, JR.,

)

13

)

Plaintiff,

)

14

v.

) )

15 MITCH CROFOOT, et al.,

) )

16

)

Defendants.

)

17 ________________________________ )

2:08-cv-2295-GEB-EFB
ORDER DENYING MOTION FOR NEW TRIAL

18

Plaintiff Barry A. Hazle moves for a new trial under Federal

19 Rule of Civil Procedure (“Rule”) 59(a) arguing: the jury’s verdict was

20 contrary to the clear weight of the evidence; the jury failed to award

21 damages which was contrary to law and evinces the jury did not follow

22 the Court’s instructions; and, newly discovered evidence shows the

23 Defendants presented false information to the jury.

24 Mitchell Crofoot (“Crofoot”), Brenda Wilding (“Wilding”), and Richard

25 Jallins (“Jallins”) (collectively, “Defendants”) oppose Hazle’s motion.

26 For the reasons stated below, the motion is DENIED.

27 ///

28 ///

1

1

I. LEGAL STANDARD

2

Rule 59(a) states, “A new trial may be granted . . . in an

3 action in which there has been a trial by jury, for any of the reasons

4 for which new trials have heretofore been granted in actions at law in

5 the courts of the United States.” Fed.R.Civ.P. 59(a)(1). The Ninth

6 Circuit

7

has noted, Rule 59 does not specify the grounds on which

a motion for a new trial may be granted. Rather, the

8

court is bound by those grounds that have been

historically recognized. Historically recognized grounds

9

include, but are not limited to, claims that the verdict

is against the weight of the evidence, that the damages

10

are excessive, or that, for other reasons, the trial was

not fair to the party moving. [The Ninth Circuit has]

11

held that the trial court may grant a new trial only if

the verdict is contrary to the clear weight of the

12

evidence, is based upon false or perjurious evidence, or

to prevent a miscarriage of justice.

13

Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007) (citations

14

and internal quotation marks omitted).

15

II. FACTUAL BACKGROUND

16

Prior to trial, an order issued granting Hazle’s motion for

17

partial summary judgment against Defendants, in which each Defendant was

18

found liable for violating Hazle’s Establishment Clause rights by

19

requiring him to participate in a 12-step drug rehabilitation program

20

that contained religious components. (Order, April 7, 2010, ECF No. 87.)

21

The final pretrial order prescribes: “The damage issues will be tried to

22

a jury[.]” (Final Pretrial Order, May 5, 2010, ECF No. 93 1:22-23.)

23

A jury trial commenced on the damages issues on June 22, 2010.

24

(Reporters Transcript (“RT”) 4:1-4.) Following preliminary jury

25

instructions, the judge told the jury about the pretrial ruling on

26

liability as follows: “Ladies and gentlemen of the jury, I decided in a

27

pretrial ruling that each defendant violated plaintiff’s First Amendment

28

Establishment Clause right by requiring that plaintiff attend a 12-step

2

1 drug rehabilitation program after plaintiff objected to the religious

2 components of the program, and by arresting and incarcerating plaintiff

3 because of that failure to participate in the program.” Id. 73:14-19.

4

A. Undisputed Facts

5

The following undisputed facts were read to the jury:

6

As a condition of parole following his incarceration

on drug possession charges, Barry Hazle was required to

7

participate in a 12-step religious drug treatment

program.

8

The residential drug treatment program to which

Hazle was assigned to fulfill his parole condition was

9

called Empire Recovery Center.

Empire used a 12-step program that included

10

references to God and a higher power.

Mitch Crofoot was Barry Hazle’s parole agent at the

11

time that Hazle was at Empire.

One of Mr. Crofoot’s responsibilities was to make

12

sure that Hazle complied with the conditions of his

parole.

13

Hazle told Crofoot that he objected to participating

in the Empire program because he was an atheist.

14

Hazle asked Crofoot whether he could fulfill his

parole requirements through a secular program.

15

Crofoot told Hazle that he needed to continue at

Empire while Crofoot researched the situation, and told

16

Hazle not to leave class again.

After making inquiries, Crofoot told Hazle there

17

were no programs that were non-12-step.

Crofoot told Hazle that he could file an

18

inmate/parolee appeal, a 602 appeal, but that in the

meantime he should continue to participate in the Empire

19

program or he would be returned to prison.

Hazle presented Crofoot on April 3, 2007 with a 602

20

appeal that set forth the basis for his objection to

participation in the Empire program.

21

According to Crofoot, representatives of the Empire

told Crofoot on April 6, 2007, that Hazle has been

22

disruptive, though in a congenial way, to the staff as

well as other students.

23

As to Hazle’s disruptive behavior, Crofoot’s

understanding from the Empire representatives was that

24

Hazle was not being loud; he wasn’t throwing things

around; he wasn’t stomping around; he wasn’t being

25

boisterous and that sort of thing. He was sort of passive

aggressive.

26

Crofoot spoke with his unit supervisor Brenda

Wilding and concluded that the right thing to do was to

27

refer Hazle to the BPH, the Board of Prison Hearings, on

a parole violation for failing to participate in the

28

board-ordered program.

3

1

Crofoot and Wilding decided together that Hazle

needed to be returned to prison so he could argue his

2

case before the BPH.

Crofoot arrested Hazle on April 6, 2007, and booked

3

him into Shasta County Jail.

After arresting Hazle, Crofoot called the CRC,

4

explained the circumstances pertaining to Hazle,

explained that he was requesting that Hazle be returned

5

to custody, and obtained an oral order of return, and an

oral order of return was authorized by Deputy

6

Commissioner Richard Jallins.

After the oral order of return was authorized by

7

Deputy Commissioner Jallins, Hazle was sent back to

prison.

8

Wilding understood that Hazle objected to

participating in the Empire Recovery Center program

9

because he was an atheist.

Wilding understood that Crofoot told Hazle that

10

Hazle either had to participate in the Empire Recovery

Center program or be returned to prison.

11

Richard Jallins made the oral order of return with

respect to Barry Hazle in April 2007.

12

Id. 73:25-76:12.

13

The following undisputed facts were also read to the jury:

14

Number 1, . . . concerning the conditions that

15

existed from May 2006 to July 2007 at the California

State Prison located in Norco, California, known as the

16

California Rehabilitation Center, may also be referred to

as CRC.

17

Number 2, from May 2006 to February 2007, plaintiff

Barry Hazle was incarcerated at CRC as a civil addict

18

after entering a no contest plea for a drug possession

related offense. His incarceration during this period of

19

time, which was later ruled to be improper by a

California appeals court, was not caused by any of the

20

defendants in this action.

Following his arrest by defendant Crofoot in April

21

2007, plaintiff was re-incarcerated in CRC until July

2007.

22

Number 3, between May 2006 and July 2007, CRC’s

inmate population was comprised of civil addicts like Mr.

23

Hazle, as well as inmates convicted of other felonious

offenses.

24

Between April 2007 and July 2007 there were roughly

3200 inmates housed at CRC, of which civil addicts

25

accounted for approximately 18 percent.

Number 4, during this period, CRC was overcrowded.

26

The number of inmates housed in the facility was

approximately twice the prison’s design capacity.

27

According to a study presented by the California

Department of Corrections and Rehabilitation to the

28

California State Senate in 2006, overcrowded prison

conditions can have negative psychological and behavioral

4

1

effects on inmates due to an increased likelihood of

tension and violence between inmates. The study also

2

found that prison overcrowding makes it more difficult

for prison guards to control or limit inmate violence and

3

provide rehabilitative or treatment programs.

In March 2007, Governor Schwarzenegger toured CRC

4

and expressed his opinion that overcrowding resulted in

increased danger to prison staff and inmates.

5

[I]n these proceedings, the parties have not agreed

to or stipulated to either the existence of or the extent

6

of any alleged emotional distress related injuries

suffered by Mr. Hazle during his incarceration at CRC, or

7

at any other prison or substance abuse treatment

facility.

8

The existence or extent of such emotional distress

related injuries and damages is a question of fact to be

9

determined by the jury based upon all of the admissible

evidence presented during the trial, as well as any

10

instructions that the judge may give to you, the jury.

11 Id. 77:16-79:10.

12

III. DISCUSSION

13

A. Clear Weight of the Evidence

14

Hazle protests the jury’s failure to award him damages, and

15 argues that the jury’s award “of zero damages is simply irreconcilable

16 with [the pretrial] adjudicated liability, undisputed facts, and

17 principles of law.” (Mot. 12:13-14.) Hazle contends “[b]ecause that

18 verdict is contrary to the clear weight of the evidence, a new trial

19 must be ordered.” Id. 12:14-15.

20

The trial record evinces that the Board of Prison Hearings

21 ordered Hazle to be placed in the inpatient Empire program as a civil

22 addict, and that eventually Empire ceased allowing Hazle to participate

23 in that program because Hazle became disruptive. Each defendant

24 testified concerning a lack of authority to do anything other than re-

25 incarcerate Hazle in prison after Hazle was no longer allowed to

26 participate in the Empire in-patient program. (RT 128:11-18, 135:6-8;

27 141:1-7, 144:12-15, 145:13-19, 154:9-14.)

28 ///

5

1

Hazle argues that the jury apparently determined that “some

2 other party or parties . . . bore primary responsibility for the

3 violation of Hazle’s rights”, and that this determination does not

4 salvage the verdict, since each defendant “bear[s] full responsibility

5 for the consequences of” Hazle’s incarceration “[u]nder principles of

6 joint and several liability[.]” (Mot. 9:22-23, 10:1-2.) However, the

7 jury’s verdict on the damages and causation questions is clearly

8 supported by the trial record. In fact, the judge alerted the parties

9 about the authority and causation trial issues, out of the presence of

10 the jury, in pertinent part as follows:

11

THE COURT: The trial record is different than the

record before me at the time I ruled on summary judgment.

12

There is an issue of authority that has been developed

during your case. That issue was not an issue that was in

13

the summary judgment record, at least I don’t recall

seeing it.

14

Plaintiff said something during his testimony

concerning the development of conditions for release

15

which basically states that “I don’t think either of the

defendants developed those conditions for release.” And

16

two of the defendants have stated that they had no

authority to change the conditions of release.

17

Am I mistaken in my statement that this authority

issue was not an issue that was in the summary judgment

18

record?

MR. HELLER [attorney for Plaintiff]: Your Honor, my

19

best understanding, and I remember the summary judgment

papers fairly well, was that in the opposition raised by

20

the defendants to our motion for partial summary

judgment, they did not assert as a defense or a basis for

21

not ruling in summary judgment anything having to do with

authority. And that’s not been an issue that was raised

22

in those papers, nor is it one that, given the ruling, we

were intending or have addressed in this trial. It’s come

23

up -- you’re right, I’ve heard that in their testimony,

but our focus in this trial has been not to prove or

24

disprove any of that.

THE COURT: I’m not sure you’re completely right

25

about . . . the focus in the trial was not to prove any

of that, because when Crofoot was giving testimony, you

26

asked him about, I believe it was, the 602 appeal and the

form that was used.

27

MR. HELLER: Yes, I remember that.

THE COURT: And whether there was a place on the form

28

where he could have stated an opinion concerning whether

6

1

plaintiff should be allowed to attend a secular drug

rehabilitation program.

2

And I thought that his testimony was that place on

the form that you had referenced at some point during

3

your examination was not designed for that kind of input.

And I thought that you followed up with a question that

4

basically tried to elicit from him testimony [showing] he

could have used that space for . . . a purpose that would

5

have benefitted your client . . . .

MR. HELLER: Yes. You’re correct.

6

(RT 335:9-337:2.)

7

THE COURT: So, plaintiff’s position is that each

8

defendant should be held liable, whether or not he or she

had the authority to change the unconstitutional

9

condition to which plaintiff was subjected?

MR. HELLER: No. Our position -- no. If I may correct

10

Your Honor, my position is that liability has already

been established in this trial by your order, and that we

11

were not in a position to -- or did not attempt to refute

that issue, that the authority question was never raised

12

in the summary judgment motion, so therefore we did not

address it at that time.

13

And although there are issues that could be raised

with respect to authority, we are not in a position to do

14

that because we didn’t prepare, or bring in evidence in

the course of the trial, to prove that issue. That would

15

be an issue that would be, obviously, our burden. And

it’s a burden that would be unfairly imposed upon us.

16

THE COURT: It’s a burden that’s what?

MR. HELLER: It would be a burden that would not be

17

fairly imposed on us at this stage because we didn’t --

we didn’t anticipate it during the course of the trial.

18

So that’s my -- I respectfully explain that is our

position, Your Honor.

19

THE COURT: But you must have anticipated it, because

if you are seeking punitive damages, and you are, against

20

each defendant, aren’t elements of punitive damages

focused on what a defendant should have done, could have

21

done and failed to do, and if a defendant lacked the

authority to do what plaintiff opines the defendant

22

should have done, then that appears to have a clear

bearing on punitive damages.

23

MR. HELLER: You are right in the sense that we --

that punitive damages turns on what options were

24

available, what they did, what they didn’t do. But we did

not put on a case because we did not anticipate that

25

authority would be a liability issue here that we would

have to prove.

26

There is case authority, regretfully I can’t cite it

right now, but that punitive damages -- the fact that you

27

violated somebody’s rights, as has been found in the

order that was the basis of the initial ruling, is itself

28

a basis, if that was done recklessly, or in a callously

or indifferent way, for the punitive damages.

7

1

So, our approach had to do with relying on that

ruling, on that prior ruling, and bringing out, as you

2

heard during the testimony, some of the things that the

-- that the defendants did, didn’t do, or could have

3

done. So, it was not -- it is not -- it’s not the same as

in the sense of a causation element or a -- for liability

4

purposes, Your Honor. And we didn’t plan or put on that

type of a case.

5

Id. 365:12-367:9.

6

However, Hazle proposed a compensatory damages jury

7

instruction that included a causation element on which the court relied

8

when finalizing the compensatory damages instructions. “[D]amages

9

awarded in a § 1983 action must always be designed to compensate

10

injuries caused by the constitutional deprivation.” Guy v. City of San

11

Diego, 608 F.3d 582, 587 (9th Cir. 2010). Although Hazle states in his

12

reply that his “motion does not argue that there were errors in the

13

instructions and verdict form” (Reply in Supp. of Mot. for New Trial

14

(“Reply”) 2:4-5.), the causation and jointly and severally liable jury

15

instructions are considered when determining what “[t]he jury likely

16

concluded” and whether “substantial evidence supported the jury’s

17

verdict[.]” Guy, 608 F.3d at 588. Specifically, Hazle’s proposed jury

18

instruction number two stated: “Damages mean the amount of money that

19

will reasonably and fairly compensate the plaintiff for any injury you

20

find was caused by defendants.” (ECF No. 118 9:10-11 (emphasis added).)

21

Ultimately, the Court defined compensatory damages in the jury

22

instruction as follows: “Compensatory damages means the amount of money

23

that will reasonably and fairly compensate plaintiff for any injury you

24

find was caused by a defendant.” (RT 421:7-9 (emphasis added).)

25

The jury instructions and verdict form also allowed the jury

26

to determine whether Defendants were jointly and severally liable based

27

on whether Hazle had “an indivisible injury that cannot be apportioned

28

8

1 to each defendant.” (RT 422:2-3.) The jury was instructed on joint and

2 several liability as follows:

3

Whether defendants are jointly and severally liable

depends on whether you find that plaintiff has an

4

indivisible injury that cannot be apportioned to each

defendant. Where several independent actors concurrently

5

or consecutively produced a single indivisible injury,

each actor will be held jointly and severally liable for

6

the entire injury. Where plaintiff’s injuries are

divisible and attributable to the action of a specific

7

actor or actors, you shall specify damages caused by each

actor.

8

Id. 422:1-9 (emphasis added). The Court also instructed the jury to

9

award nominal damages for emotional distress: “The law which applies to

10

emotional distress damages authorizes an award of nominal damages. If

11

you find that plaintiff has failed to prove emotional distress damages,

12

you must award nominal damages.” Id. 421:14-17.

13

The verdict form allowed the jury to determine joint and

14

several liability for “Plaintiff’s emotional distress damages” and, if

15

the jury determined Defendants were not jointly and severally liable

16

asked: “What is the amount of emotional distress damages caused by [each

17

Defendant], if any?” (ECF No. 158 2:4-15 (emphasis added).) The verdict

18

form repeated these questions for Hazle’s “loss of time and freedom of

19

movement damages” and, required the jury to answer the following

20

question if the jury determined the Defendants were not jointly and

21

severally liable: “What is the amount of loss of time and freedom of

22

movement damages caused by [each Defendant], if any?” Id. 3:11-22.

23

The damages causation issue appeared to be a focus of the jury

24

during deliberations since the jury sent a note to the Court seeking:

25

Verification of the court’s determination of a guilty

26

verdict having been rendered against the Defendants for

violation of the Plaintiff’s constitutional rights. We

27

are confused as to whether the Defendants are the only

parties to have been found in violation of the

28

Plaintiff’s rights.

9

1 (ECF 156.) The parties ultimately agreed that the Court would respond to

2 the jury as follows: “I found each defendant liable but did not decide

3 whether any defendant caused damages to plaintiff.” (RT 458:8-459:4.)

4 While discussing the jury’s question with the parties, the Court

5 explained that the word “cause” was not defined in the jury instruction

6 and there is both a lay and legal meaning for that word. Id. 449:22-

7 459:4, 469:20-471:17. The Court offered to instruct the jury on the

8 meaning of the word; however, Hazle refused the Court’s offer stating:

9 “I believe they’ve been adequately instructed on that point[.]” Id.

10 470:14-15.

11

The jury returned a verdict finding: Defendants are not

12 jointly and severally liable for Hazle’s emotional distress damages;

13 “the amount of emotional distress damages caused by [each] Defendant” is

14 zero; Defendants are not jointly and severally liable for Hazle’s loss

15 of time and freedom of movement damages; “the amount of loss of time and

16 freedom of movement damages caused by [each] Defendant” is zero; and,

17 Hazle is not entitled to punitive damages. (ECF No. 158.) After the

18 verdict was read in open court in the presence of the parties and the

19 jury, the judge asked counsel: “Any further action to take with respect

20 to the jury?” (RT 488:2.) To which both parties responded “[n]o”. Id.

21 488:3-4.

22

Hazle now argues that the jury’s zero damages award was

23 contrary to law and disregarded the Court’s instructions. Specifically,

24 Hazle argues it is well-established law that when there is an

25 adjudication of a constitutional violation that resulted in a loss of

26 liberty, plaintiff is entitled to compensatory damages that exceed mere

27 nominal damages. (Mot. 6:21-23.) Hazle also argues the jury disregarded

28 the Court’s instructions in failing to award at least nominal emotional

10

1 distress damages. Id. 8:17-18. Defendants counter Hazle waived his

2 arguments regarding the zero damages award when he failed to challenge

3 the zero damages verdict after the jury’s verdict was read and before

4 the jury was discharged. (Defs.’ Opp’n to Mot. for New Trial (“Opp’n”)

5 9:11-14.)

[M]otions for a new trial challenging a zero damages

6

award as inconsistent with liability are waived when

either: (1) a jury verdict finds liability but no damages

7

and the moving party does not object before jury

discharge; or, more generally, (2) the moving party

8

argues that the jury has rendered a verdict that contains

two legal conclusions that are inconsistent with one

9

another, and the moving party does not object before jury

discharge. 10

Kode v. Carlson, 596 F.3d 608, 611 (9th Cir. 2010). “This rule 11

recognizes that district court judges are in a unique position to 12

instruct the jury regarding the meaning of the law, including whether 13

two legal conclusions by the jury are inconsistent.” Id. Here, Hazle’s 14

“motion[] for a new trial challenging [the] zero damages award as 15

inconsistent with [the Court’s finding of] liability [is] waived . . . 16

[since Hazle did] not object before jury discharge[.]” Id. 17

Further, the jury’s award of zero damages is consistent with 18

its causation findings in the jury verdict, and is not contrary to the 19

clear weight of the evidence. The jury “likely concluded” that no 20

defendant was a cause of any injury Hazle received or suffered as a 21

result of his Establishment Clause claim. Guy, 608 F.3d at 588. “[I]t 22

has long been held that a jury may properly refuse to credit even 23

uncontradicted testimony.” Id. Here, it is evident that the jury did not 24

find any defendant was a cause of any of Hazle’s injuries. Further, it 25

is undisputed that the Board of Prison Hearings ordered Hazle to 26

participate in the Empire program. Hazle himself testified he was “still 27

in custody” when he was sent to the Empire program. (RT 322:3.) Since 28

11

1 Hazle “has not shown that the jury’s verdict was clearly not supported

2 by the evidence or only based on speculation or guesswork[,]” his motion

3 for a new trial based on his arguments that the jury’s verdict was

4 contrary to the clear weight of the evidence and that the jury failed to

5 award damages which was contrary to law and evinces that the jury did

6 not follow the Court’s instructions is denied. Id.

7

B. False Testimony/Newly Discovered Evidence

8

Hazle also argues a new trial is warranted because the

9 Defendants presented false testimony that their only option under the

10 circumstances was to return him to prison, and this testimony tainted

11 the trial proceedings. (Mot. 11:1-2.) Defendants rejoin that Hazle’s

12 “argument that such testimony was false is wholly specious and is

13 contradicted by what Plaintiff learned in depositions of the Defendants

14 . . . months before trial.” (Opp’n 12:17-18.)

15

A new trial may be granted if the verdict “is based upon false

16 or perjurious evidence[.]” Molski, 481 F.3d at 729. Hazel has not

17 presented evidence suggesting that any Defendant’s testimony was false

18 or perjurious.

19

Hazle also argues that “[e]ven a cursory review of the

20 governing regulations [in the CDCR Operations Manual] demonstrates that

21 Crofoot and Wilding . . . could have made recommendations to the board

22 to remove or adjust the conditions of Hazel’s parole[;] [and,] [h]ad the

23 truth been revealed at trial, it would likely have led to a different

24 verdict.” (Mot. 11:15-18.) Defendants counter that this Hazle’s his

25 argument is tantamount to an objection to their lack-of-authority

26 defense, which Hazel waived since his questions during his cross

27 examination invited this testimony and he did not object to this

28 evidence. (Opp’n 8:26, 9:1-9, 11:24-12:8.) Hazle responds that he is not

12

1 arguing that the Court improperly admitted the lack-of-authority

2 evidence. (Reply 2:6-8.) Hazle argues:

3

Notwithstanding defendants’ testimony to the contrary,

CDCR’s Operations Manual provides that a parole agent and

4

his supervisor have a variety of options when a civil

addict parolee such as Hazle is deemed to be in violation

5

of the terms of his parole. Specifically, a parole agent

is required under these circumstances to prepare a report

6

to the [Narcotic Addict Evaluation Authority (“NAEA”)] in

which he must make one of several recommendations, at

7

least three of which do not involve returning the parolee

to prison. He may, for example, recommend that the NAEA

8

“add, delete or modify any special condition of civil

addict parole,” that the parolee “continue on parole” (a

9

recommendation which may be made when the “civil addict

parolee has violated conditions of parole or when a

10

violation is minor”), or that parole be suspended and

reinstated (a recommendation which “may be made when a

11

violation has occurred, but civil addict parolee’s best

interests would be better served by retention in

12

community”). See Article 14 – Civil Addict Violations, §§

82050.1, and 82050.7. Even in the absence of a violation

13

of a condition of parole, a parole agent may recommend

that NAEA “add or remove special conditions of release or

14

civil addict parole.” Article 11 – Conditions of Release,

Parole and NAEA Appeals, §82020.2.1.

15

(Mot. 4:2-15.)

16

Although Hazle indicates the CDCR’s Operations Manual, which

17

he contends reveals Defendants had options other than returning him to

18

prison after he was removed from the Empire program, is newly discovered

19

evidence that warrants a new trial, he has not addressed the standard

20

applicable to determining whether this evidence is newly discovered

21

evidence that justifies granting his motion for a new trial. To prevail

22

on his motion for a new trial under Rule 59 based on newly discovered

23

evidence Hazle has the burden of establishing: “(1) the evidence was

24

discovered after trial, (2) the exercise of due diligence would not have

25

resulted in the evidence being discovered at an earlier stage and (3)

26

the newly discovered evidence is of such magnitude that production of it

27

earlier would likely have changed the outcome of the case.” Far Out

28

Productions, Inc. v. Oskar, 247 F.3d 986, 992-93 (9th Cir. 2001).

13

1

Hazle “fails to [address or] meet any of these three

2 criteria.” Coastal Transfer Co. v. Toyota Motor Sales, U.S.A., 833 F.2d

3 208, 212 (9th Cir. 1987). On the first point, Hazle indicates he had

4 possession of this evidence prior to trial as follows: “Since defendants

5 had never raised this ‘lack of authority’ defense as an affirmative

6 defense or in the pretrial statement, trial brief, or other submissions

7 that called for disclosures of such defense, plaintiff had neither

8 anticipated the need for such evidence nor included these Operations

9 Manual provisions in his pretrial exhibit list.” (Mot. 4:23-26.)

10 “Evidence is not ‘newly discovered’ under the Federal Rules if it was in

11 the moving party’s possession at the time of trial or could have been

12 discovered with reasonable diligence.” Coastal Transfer Co., 833 F.2d at

13 212.

14

Hazle’s argument indicates he did not realize before trial

15 that the Operations Manual could be probative of each Defendant’s state

16 of mind at the time each Defendant made a decision relevant to Hazel’s

17 punitive damages claims. The punitive damages jury instruction indicated

18 this evidence could have probative value since it stated in part: “An

19 act or omission is oppressive if the defendant injures or damages or

20 otherwise violates the rights of Plaintiff with unnecessary harshness or

21 severity, such as by the misuse or abuse of authority or power or by the

22 taking advantage of some weakness or disability or misfortune of

23 Plaintiff.” (RT 423:1-6.) This provision of the punitive damages jury

24 instruction is almost identical to a provision in Hazle’s proposed jury

25 instruction number eight, which also used the language “misuse or abuse

26 of authority or power”. (ECF No. 118 16:16-19.) Since “misuse or abuse

27 of authority or power” was a trial issue, it should have been apparent

28 to Hazle that the trial could include evidence on what each Defendant

14

1 understood to be his or her authority. The pretrial order states that

2 “[t]rial on the damage issues shall be to a jury[,]” and the parties

3 understood that damage issues included punitive damages. See U.S. v.

4 First Nat. Bank of Circle, 652 F.2d 882, 886 (9th Cir. 1981) (indicating

5 that “a pretrial order should . . . be liberally construed to permit

6 evidence and theories at trial that can fairly be said to be embraced

7 within its language”).

8

Hazle does not adequately explain why he could not have

9 obtained the referenced Operations Manual provisions before the trial

10 was over. Even if each Defendant’s lack-of-authority testimony at trial

11 surprised Hazle, it is unclear why Hazle did not obtain the referenced

12 Operations Manual provisions before the trial ended. Hazle has not shown

13 that his decision, resulting in his failure to use this evidence during

14 the trial, constitutes the measure of diligence required under the newly

15 discovered evidence criteria. Therefore, the Court need not reach the

16 question of whether this evidence would have changed the outcome of the

17 case.

18

Accordingly, Hazle has not shown that a Defendant perjured him

19 or herself, or that he is entitled to a new trial based on newly

20 discovered evidence.

21

IV. CONCLUSION

22

For the stated reasons, Hazle’s motion for a new trial is

23 DENIED.

24 Dated: January 12, 2011 25

26

GARLAND E. BURRELL, JR.

27

United States District Judge

28

15

 
 Case: 2:08-cv-2295 As of: 01/26/2015 06:14 PM PST 1 of 14
CIVIL,CLOSED
U.S. District Court Eastern District of California − Live System (Sacramento) CIVIL DOCKET FOR CASE #: 2:08−cv−02295−GEB−EFB

Hazle vs Crofoot, et al Assigned to: Judge Garland E. Burrell, Jr Referred to: Magistrate Judge Edmund F. Brennan Case in other court: USCA, 10−16067
USCA, 11−15354 Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 09/29/2008 Date Terminated: 10/15/2014 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Barry A. Hazle, Jr.

represented by John G. Heller Rogers Joseph O'Donnell 311 California Street, 10th Fl. San Francisco, CA 94104 415−956−2828 Fax: 415−956−6457 Email: Jheller@rjo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Alan Scheibli Michael A. Scheibli, Attorney At Law 1416 West Street Redding, CA 96001 530−243−0317 Fax: 530−243−2003 Email: mscheibli@snowcrest.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Mitch Crofoot Individually and as Parole Officer of the CA Dept of Corrections

represented by Vickie Pochelle Whitney Attorney General's Office for the State of California 1300 I Street Suite 125 P.O. Box 944255 Sacramento, CA 95814 (916) 445−8194 Fax: (916) 324−5205 Email: vickie.whitney@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd Darrow Irby Attorney General's Office for the State of California Department of Justice 1300 I Street Suite 125 P.O. Box 944255 Sacramento, CA 94244−2550 916−445−3035 Fax: 916−324−5205 Email: todd.irby@doj.ca.gov TERMINATED: 12/10/2012

Case: 2:08-cv-2295 As of: 01/26/2015 06:14 PM PST 2 of 14

Defendant Brenda Wilding Individually and as Unit Supervisor of the CA Dept. of Corrections
Defendant Matthew Cate Individually and as Secretary of the CA Dept of Corrections
Defendant Scott Kernan Individually and as Chief Deputy Secretary of Adult Operations of the CA Dept of Corrections and Rehabilitation
Defendant Tim Hoffman Individually and as Director of the Division of Adult Parole Operations in California Defendant Marion Smith Individually and in his Office Capacity TERMINATED: 12/04/2008
Defendant Deputy Jallings Individually and as Deputy Commissioner
Defendant Westcare A Nevada Non−Profit Corporation

represented by Vickie Pochelle Whitney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd Darrow Irby (See above for address) ATTORNEY TO BE NOTICED
represented by Vickie Pochelle Whitney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd Darrow Irby (See above for address) ATTORNEY TO BE NOTICED
represented by Vickie Pochelle Whitney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd Darrow Irby (See above for address) ATTORNEY TO BE NOTICED
represented by Todd Darrow Irby (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey M. Hamerling Archer Norris 2033 North Main Street Suite 800 Walnut Creek, CA 94596 (925) 930−6600 Fax: (925) 930−6620 Email: jhamerling@archernorris.com LEAD ATTORNEY
represented by Vickie Pochelle Whitney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd Darrow Irby (See above for address) ATTORNEY TO BE NOTICED
represented by Wayne H. Maire Maire & Burgess

Case: 2:08-cv-2295 As of: 01/26/2015 06:14 PM PST 3 of 14

2851 Park Marina Drive Suite 300 P.O. Drawer 994607 Redding, CA 96099−4607 530−246−6050 Fax: 530−246−6060 Email: wmaire@maire−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marilyn L. Bonetati Bonetati, Sasaki, Kincaid & Nitschke, Inc. 500 N. State College Boulevard Suite 1260 Orange, CA 92868 714939−9600 Fax: 714939−0656 Email: mbonetati@bonetatilaw.com TERMINATED: 10/29/2009

Michelle Catherine Edborg Bonetati, Kincaid and Kincaid, Inc. 2020 N. Tustin Avenue Santa Ana, Ca 92705 714−466−6600 Fax: 714−466−6601 Email: medborg@bonetatilaw.com TERMINATED: 10/29/2009

Defendant
Mental Health Systems Inc. a California Corpoation TERMINATED: 12/04/2008

represented by Jeffrey M. Hamerling (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/29/2008 09/29/2008 09/29/2008
09/29/2008
10/02/2008 10/13/2008 10/13/2008 10/13/2008

# Docket Text
1 CIVIL COVER SHEET by Barry A. Hazle, Jr. (Heller, John) (Entered: 09/29/2008)
2 COMPLAINT against all defendants by Barry A. Hazle, Jr..(Heller, John) (Entered: 09/29/2008)
4 SUMMONS ISSUED as to *Brenda Wilding, Matthew Cate, Scott Kernan, Tim Hoffman, Marion Smith, Deputy Jallings, Westcare, Mental Health Systems Inc., Mitch Crofoot* with answer to complaint due within *20* days. Attorney *John G. Heller* *650 California Street* *19th Floor* *San Francisco, CA 96001*. (Carlos, K) (Entered: 09/29/2008)
5 CIVIL NEW CASE DOCUMENTS ISSUED; Initial Scheduling Conference set for 1/20/2009 at 09:00 AM in Courtroom 10 (GEB) before Judge Garland E. Burrell Jr.. (Attachments: # 1 VDRP Forms, # 2 Consent Forms) (Carlos, K) (Entered: 09/29/2008)
RECEIPT number #CAE200010653 $350.00 by John G. Heller on 9/29/2008 for civil filing fee. (Carlos, K) (Entered: 10/02/2008)
6 SUMMONS RETURNED EXECUTED by Barry A. Hazle, Jr.. Matthew Cate served on 10/9/2008, answer due 10/29/2008. (Heller, John) (Entered: 10/13/2008)
7 SUMMONS RETURNED EXECUTED by Barry A. Hazle, Jr.. Scott Kernan served on 10/9/2008, answer due 10/29/2008. (Heller, John) (Entered: 10/13/2008)
8 SUMMONS RETURNED EXECUTED by Barry A. Hazle, Jr.. Deputy Jallings served on 10/9/2008, answer due 10/29/2008. (Heller, John) (Entered: 10/13/2008)

Case: 2:08-cv-2295 As of: 01/26/2015 06:14 PM PST 4 of 14

10/17/2008 10/20/2008 10/20/2008 10/22/2008 10/31/2008 11/14/2008 11/18/2008 11/24/2008 11/24/2008 11/24/2008 12/02/2008 12/03/2008 12/04/2008 12/04/2008 12/04/2008 12/12/2008 01/13/2009
01/13/2009 01/22/2009

9 SUMMONS RETURNED EXECUTED by Barry A. Hazle, Jr.. Mental Health Systems Inc. served on 10/13/2008, answer due 11/3/2008. (Heller, John) (Entered: 10/17/2008)
10 SUMMONS RETURNED EXECUTED by Barry A. Hazle, Jr.. Mitch Crofoot served on 10/15/2008, answer due 11/4/2008. (Heller, John) (Entered: 10/20/2008)
11 SUMMONS RETURNED EXECUTED by Barry A. Hazle, Jr.. Brenda Wilding served on 10/15/2008, answer due 11/4/2008. (Heller, John) (Entered: 10/20/2008)
12 STIPULATION and PROPOSED ORDER by Matthew Cate, Scott Kernan, Deputy Jallings. Attorney Irby, Todd Darrow added. (Attachments: # 1 Proposed Order)(Irby, Todd) (Entered: 10/22/2008)
13 STIPULATION for an extension of time to file a responsive pleading by Marion Smith, Mental Health Systems Inc. Attorney Hamerling, Jeffrey M. added. (Hamerling, Jeffrey) Modified on 11/3/2008 (Manzer, C). (Entered: 10/31/2008)
14 SUMMONS RETURNED EXECUTED by Barry A. Hazle, Jr.. Marion Smith served on 10/24/2008, answer due 11/13/2008. (Heller, John) (Entered: 11/14/2008)
15 NOTICE of Errata by Barry A. Hazle, Jr. re 2 Complaint. (Heller, John) (Entered: 11/18/2008)
16 APPLICATION for Order to Correct Typographical Error in Caption and Directing Clerk to Re−Issue Summons by Barry A. Hazle, Jr.. (Heller, John) (Entered: 11/24/2008)
17 DECLARATION of Tamora Horen re 16 Application − ATY. (Heller, John) (Entered: 11/24/2008)
18 PROPOSED ORDER directing clerk to re−issue summons by Barry A. Hazle, Jr.. (Heller, John) (Entered: 11/24/2008)
19 NOTICE of VOLUNTARY DISMISSAL by Barry A. Hazle, Jr.. (Heller, John) (Entered: 12/02/2008)
20 ORDER signed by Judge Garland E. Burrell, Jr on 12/02/2008 DENYING 16 Application for Order to Correct Typographical Error in Caption and Directing Clerk to Re−Issue Summons. (Streeter, J) (Entered: 12/03/2008)
PARTY UPDATE: Mental Health Systems Inc. and Marion Smith TERMINATED per 19 pltf's Notice of Voluntary Dismissal without prejudice pursuant to FRCP 41(a)(1). (Kastilahn, A) (Entered: 12/04/2008)
21 ANSWER to COMPLAINT by Westcare. Attorney Bonetati, Marilyn L. added.(Bonetati, Marilyn) (Entered: 12/04/2008)
22 STATEMENT of Corporate Disclosure Statement of Defendant Westcare California, Inc. by Defendant Westcare. (Bonetati, Marilyn) (Entered: 12/04/2008)
23 SUMMONS RETURNED EXECUTED by Barry A. Hazle, Jr.. Tim Hoffman served on 12/10/2008, answer due 12/30/2008. (Heller, John) (Entered: 12/12/2008)
24 ORDER to SHOW CAUSE signed by Judge Garland E. Burrell, Jr on 1/12/09. Plaintiff is ORDERED to Show Cause in writing no later than 4:00 PM on 2/4/2009, why sanctions should not be imposed against him and/or his counsel for failure to file a timely status report. The Status Conference is RESET for 2/17/2009 at 09:00 AM. (Mena−Sanchez, L) (Entered: 01/13/2009)
25 RESPONSE to 24 ORDER to SHOW CAUSE by Barry A. Hazle, Jr. (Heller, John) Modified on 1/14/2009 (Duong, D). (Entered: 01/13/2009)
26 CLERK'S NOTICE OF DOCKET CORRECTION and CIVIL NEW CASE DOCUMENTS ISSUED; after Clerk reviewed the docket it was discovered that the initial scheduling order was never issued on 9/29/2008. Initial Scheduling Conference SET for 2/17/2009 at 09:00 AM in Courtroom 10 (GEB) before Judge Garland E. Burrell Jr. (Waggoner, D) (Entered: 01/22/2009)

Case: 2:08-cv-2295 As of: 01/26/2015 06:14 PM PST 5 of 14

01/23/2009 01/23/2009
01/23/2009 01/30/2009 01/30/2009 02/12/2009
03/13/2009 03/16/2009
07/22/2009 08/12/2009
08/12/2009
08/12/2009 08/28/2009 08/31/2009 09/09/2009 09/11/2009
09/30/2009

27 ANSWER to COMPLAINT with Jury Demand by Brenda Wilding, Deputy Jallings, Mitch Crofoot. Attorney Irby, Todd Darrow added.(Irby, Todd) Modified on 1/23/2009 (Becknal, R). (Entered: 01/23/2009)
28 MOTION to DISMISS by Matthew Cate, Scott Kernan, Tim Hoffman. Motion Hearing set for 4/20/2009 at 09:00 AM in Courtroom 10 (GEB) before Judge Garland E. Burrell Jr.. (Attachments: # 1 Points and Authorities, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C)(Irby, Todd) (Entered: 01/23/2009)
29 CERTIFICATE of SERVICE by Barry A. Hazle, Jr.. of Order Setting Status (Pretrial Scheduling) Conference (Heller, John) (Entered: 01/23/2009)
30 CONSENT to VDRP by Barry A. Hazle, Jr..(Heller, John) (Entered: 01/30/2009)
31 JOINT STATUS REPORT by Barry A. Hazle, Jr.. (Heller, John) (Entered: 01/30/2009)
32 STATUS (PRETRIAL SCHEDULING) ORDER signed by Judge Garland E. Burrell, Jr on 2/12/09 ORDERING: Discovery due by 11/25/2009. The last hearing date for motions shall be 1/25/2010 at 9:00 AM. Final Pretrial Conference set for 3/29/2010 at 11:00 AM in Courtroom 10 (GEB) before Judge Garland E. Burrell Jr. Jury Trial set for 6/22/2010 at 09:00 AM in Courtroom 10 (GEB) before Judge Garland E. Burrell Jr. (Donati, J) (Entered: 02/12/2009)
33 STIPULATION and PROPOSED ORDER for mediation before Judge Vadas and Continuing Hearing on Motion to Dismiss by Barry A. Hazle, Jr.. (Heller, John) (Entered: 03/13/2009)
34 ORDER signed by Judge Garland E. Burrell, Jr on 3/16/09 ORDERING that Defendants' MOTION to DISMISS filed 1/23/09 28 is DEEMED WITHDRAWN since Defendants do not elect to proceed with the Motion at this time. (Mena−Sanchez, L) (Entered: 03/16/2009)
35 STIPULATION and PROPOSED ORDER for Extension of Discovery Deadlines to 1/8/2010 by Barry A. Hazle, Jr. (Heller, John) (Entered: 07/22/2009)
36 NOTICE OF MOTION To Bring in a Third Party Defendant by Westcare. Attorney Edborg, Michelle Catherine added. Motion Hearing set for 9/14/2009 at 09:00 AM in Courtroom 10 (GEB) before Judge Garland E. Burrell Jr.. (Edborg, Michelle) Modified on 8/17/2009 (Becknal, R). (Entered: 08/12/2009)
37 MOTION To BRING IN A THIRD PARTY DEFENDANT by Westcare. Motion Hearing set for 9/14/2009 at 09:00 AM in Courtroom 10 (GEB) before Judge Garland E. Burrell Jr. (Edborg, Michelle) Modified on 8/17/2009 (Becknal, R). (Entered: 08/12/2009)
38 NOTICE of Lodgment of Third Party Complaint by Westcare re 36 MOTION To Bring in a Third Party Defendant. (Edborg, Michelle) (Entered: 08/12/2009)
39 STATEMENT of Non−Opposition to Westcare's Motion to Bring in Third Party Defendant by Plaintiff Barry A. Hazle, Jr.. (Heller, John) (Entered: 08/28/2009)
40 STATEMENT of NON−OPPOSITION by Brenda Wilding, Matthew Cate, Scott Kernan, Tim Hoffman, Deputy Jallings, Mitch Crofoot to 37 MOTION To bring in a third party defendant. (Irby, Todd) (Entered: 08/31/2009)
41 MINUTE ORDER: The stipulation filed on 7/22/09, is approved. re 35 Stipulation and Proposed Order Ordered by Judge Garland E. Burrell, Jr on 9/9/09. (Furstenau, S) (Entered: 09/09/2009)
42 MINUTE ORDER: The Motion to Add Third Party Defendant, scheduled for hearing on 9/14/09, is submitted without oral argument. There will not be a hearing on 9/14/09, and no appearance is necessary. re 37 Motion for Miscellaneous Relief Ordered by Judge Garland E. Burrell, Jr on 9/11/09. (Furstenau, S) (Entered: 09/11/2009)
43 ORDER signed by Judge Garland E. Burrell, Jr. on 09/29/09 DENYING Westcare's 37 Motion to Bring in Third party dft. (Benson, A.) (Entered: 09/30/2009)

Case: 2:08-cv-2295 As of: 01/26/2015 06:14 PM PST 6 of 14

10/21/2009 10/28/2009 10/29/2009 12/23/2009
12/23/2009 12/23/2009 12/23/2009 12/23/2009 12/23/2009 01/06/2010 01/07/2010
01/15/2010
01/15/2010 01/15/2010

44 ORDER Report of Pro Se Prisoner Early Settlement Proceeding; case did not settle signed by Magistrate Judge Nandor J Vadas on 10/21/09. (Masterson, G) (Entered: 10/21/2009)
45 SUBSTITUTION of ATTORNEY − PROPOSED, submitted by Westcare. (Maire, Wayne) (Entered: 10/28/2009)
46 ORDER signed by Judge Garland E. Burrell, Jr on 10/29/2009 SUBSTITUTING ATTORNEY Wayne H. Maire for Westcare in place of Marilyn L. Bonetati and Michele C. Edborg. (Matson, R) (Entered: 10/29/2009)
47 MOTION for SUMMARY JUDGMENT by Westcare. Motion Hearing set for 1/25/2010 at 09:00 AM in Courtroom 10 (GEB) before Judge Garland E. Burrell Jr.. (Attachments: # 1 Points and Authorities in Support of Motion for Summary Judgment or, In the Alternative, Summary Adjudication of Issues, # 2 Statement of Undisputed Facts in Support of Motion for Summary Judgment, or, In the Alternative, Summary Adjudication of Issues, # 3 Declaration of Wayne H. Maire In Support of Motion for Summary Judgment Or, In the Alternative, Summary Adjudication of Issues, # 4 Declaration of Patty Nealy in Support of Motion for Summary Judgment, or In the Alternative, Summary Adjudication of Issues, # 5 Declaration of Maurice Lee in Support of Motion for Summary Judgment or, In the Alternative, Summary Adjudication of Issues)(Maire, Wayne) (Entered: 12/23/2009)
48 MOTION for SUMMARY JUDGMENT by Barry A. Hazle, Jr.. Motion Hearing set for 1/25/2010 at 09:00 AM in Courtroom 10 (GEB) before Judge Garland E. Burrell Jr.. (Heller, John) (Entered: 12/23/2009)
49 MEMORANDUM by Barry A. Hazle, Jr. in SUPPORT of 48 MOTION for SUMMARY JUDGMENT. (Heller, John) (Entered: 12/23/2009)
50 STATEMENT of Undisputed Material Facts in Support of Motion for Partial Summary Judgment by Plaintiff Barry A. Hazle, Jr. re 48 MOTION for SUMMARY JUDGMENT. (Heller, John) (Entered: 12/23/2009)
51 DECLARATION of Barry Hazle in Support Of 48 MOTION for SUMMARY JUDGMENT. (Heller, John) (Entered: 12/23/2009)
52 DECLARATION of John Heller in Support of 48 MOTION for SUMMARY JUDGMENT. (Attachments: # 1 Exhibit A through F to Heller Declaration, # 2 Exhibit G through I to Heller Decl.)(Heller, John) (Entered: 12/23/2009)
53 STIPULATION and PROPOSED ORDER for Extension of Time for Plaintiff's Opposition to Westcare's Motion for Summary Judgment by Barry A. Hazle, Jr.. (Heller, John) (Entered: 01/06/2010)
54 MINUTE ORDER: The Motions for Summary Judgment, currently scheduled for 1/25/10, are rescheduled for 2/22/10 at 9:00 a.m. The opposition to the motions shall be filed by 1/15/10. Any reply shall be filed by 1/22/10. The pretrial conference, currently set for 3/29/10, is rescheduled for 4/26/10 at 11:00 a.m. A joint pretrial statement shall be filed seven days prior to the hearing. re 48 Motion for Summary Judgment, 47 Motion for Summary Judgment, Ordered by Judge Garland E. Burrell, Jr on 1/7/10. (Furstenau, S) (Entered: 01/07/2010)
55 OPPOSITION by Brenda Wilding, Matthew Cate, Scott Kernan, Tim Hoffman, Deputy Jallings, Mitch Crofoot to 48 MOTION for SUMMARY JUDGMENT. (Attachments: # 1 Statement of Undisputed Facts, # 2 Declaration of Todd Darrow Irby, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D)(Irby, Todd) (Entered: 01/15/2010)
56 MOTION for SUMMARY JUDGMENT by Barry A. Hazle, Jr.. Motion Hearing set for 2/22/2010 at 09:00 AM in Courtroom 10 (GEB) before Judge Garland E. Burrell Jr.. (Heller, John) (Entered: 01/15/2010)
57 STATEMENT of Undisputed Material Facts in Support of Cross−Motion for Partial Summary Judgment Against Westcare by Plaintiff Barry A. Hazle, Jr. re 56 MOTION for SUMMARY JUDGMENT. (Heller, John) (Entered: 01/15/2010)

Case: 2:08-cv-2295 As of: 01/26/2015 06:14 PM PST 7 of 14

01/15/2010 01/15/2010 01/16/2010 01/16/2010 01/16/2010 01/16/2010 01/16/2010 01/16/2010 01/16/2010
01/16/2010 01/16/2010 01/16/2010 01/16/2010 01/16/2010 01/20/2010
01/21/2010 01/21/2010 01/21/2010 01/22/2010 01/22/2010
01/22/2010 01/22/2010

58 OPPOSITION by Barry A. Hazle, Jr. to 47 MOTION for SUMMARY JUDGMENT. (Heller, John) (Entered: 01/15/2010)
59 MEMORANDUM by Barry A. Hazle, Jr. in SUPPORT of 56 MOTION for SUMMARY JUDGMENT. (Heller, John) (Entered: 01/15/2010)
60 RESPONSE by Barry A. Hazle, Jr. to 47 MOTION for SUMMARY JUDGMENT. (Heller, John) (Entered: 01/16/2010)
61 DECLARATION of John G. Heller re 47 MOTION for SUMMARY JUDGMENT, 56 MOTION for SUMMARY JUDGMENT. (Heller, John) (Entered: 01/16/2010)
62 EXHIBIT A through C to Declaration of John Heller by Barry A. Hazle, Jr. re 61 Declaration. (Heller, John) (Entered: 01/16/2010)
63 EXHIBIT D through F to Declaration of John Heller by Barry A. Hazle, Jr. re 61 Declaration. (Heller, John) (Entered: 01/16/2010)
64 EXHIBIT G through H to Declaration of John Heller by Barry A. Hazle, Jr. re 61 Declaration. (Heller, John) (Entered: 01/16/2010)
65 EXHIBIT I through O to Declaration of John Heller by Barry A. Hazle, Jr. re 61 Declaration. (Heller, John) (Entered: 01/16/2010)
66 DECLARATION of Michael A. Scheibli re 47 MOTION for SUMMARY JUDGMENT, 56 MOTION for SUMMARY JUDGMENT. (Heller, John) (Entered: 01/16/2010)
67 DECLARATION of Barry Hazle re 47 MOTION for SUMMARY JUDGMENT, 56 MOTION for SUMMARY JUDGMENT. (Heller, John) (Entered: 01/16/2010)
68 DECLARATION of Jill Ales re 47 MOTION for SUMMARY JUDGMENT, 56 MOTION for SUMMARY JUDGMENT. (Heller, John) (Entered: 01/16/2010)
69 DECLARATION of Martin Nicolaus re 47 MOTION for SUMMARY JUDGMENT, 56 MOTION for SUMMARY JUDGMENT. (Heller, John) (Entered: 01/16/2010)
70 DECLARATION of Tracy Becker re 47 MOTION for SUMMARY JUDGMENT, 56 MOTION for SUMMARY JUDGMENT. (Heller, John) (Entered: 01/16/2010)
71 DECLARATION of Melanie Solomon re 47 MOTION for SUMMARY JUDGMENT, 56 MOTION for SUMMARY JUDGMENT. (Heller, John) (Entered: 01/16/2010)
72 MINUTE ORDER: Defendant's Opposition to Plaintiff's Cross Motion for Summary Judgment shall be filed by 1/29/10; Any reply shall be filed by 2/5/10. Ordered by Judge Garland E. Burrell, Jr on 1/20/10. (Furstenau, S) (Entered: 01/20/2010)
73 OBJECTIONS by Defendant Westcare to 56 MOTION for SUMMARY JUDGMENT. (Maire, Wayne) (Entered: 01/21/2010)
74 NOTICE of Errata by Barry A. Hazle, Jr. re 58 Opposition to Motion, 59 Memorandum in Support of Motion. (Heller, John) (Entered: 01/21/2010)
75 OPPOSITION by Plaintiff Barry A. Hazle, Jr. to 73 Objections. (Heller, John) (Entered: 01/21/2010)
76 REPLY by Westcare re 58 Opposition to Motion. (Attachments: # 1 Declaration of Summer D. Ryan in Support of Reply)(Maire, Wayne) (Entered: 01/22/2010)
77 RDER signed by Judge Garland E. Burrell, Jr., on 1/21/10, ORDERING that dfts' opposition to pltf's cross motion shall be filed by February 5, 2010. Any reply shall be filed by February 12, 2010. The cross motion will be heard on February 22, 2010 at 9:00 a.m. (Kastilahn, A) (Entered: 01/22/2010)
78 REPLY by Barry A. Hazle, Jr. re 48 MOTION for SUMMARY JUDGMENT. (Heller, John) (Entered: 01/22/2010)
79 OBJECTIONS by Plaintiff Barry A. Hazle, Jr. to 55 Opposition to Motion,. (Heller, John) (Entered: 01/22/2010)

Case: 2:08-cv-2295 As of: 01/26/2015 06:14 PM PST 8 of 14

02/03/2010 02/05/2010 02/05/2010 02/05/2010 02/08/2010 02/12/2010 02/19/2010
04/07/2010
04/08/2010 04/16/2010 04/16/2010 04/19/2010 05/03/2010
05/05/2010 05/05/2010 05/05/2010 05/06/2010 05/07/2010

80 STIPULATION and PROPOSED ORDER for Rescheduling Pretrial Conference by Barry A. Hazle, Jr.. (Heller, John) (Entered: 02/03/2010)
81 OPPOSITION by Westcare to 56 MOTION for SUMMARY JUDGMENT. (Maire, Wayne) (Entered: 02/05/2010)
82 RESPONSE by Westcare to 56 MOTION for SUMMARY JUDGMENT. (Maire, Wayne) (Entered: 02/05/2010)
83 DECLARATION of Wayne H. Maire in SUPPORT OF OPPOSITION 56 MOTION for SUMMARY JUDGMENT. (Maire, Wayne) (Entered: 02/05/2010)
84 MINUTE ORDER: The pretrial conference is rescheduled for 5/3/10 at 1:30 p.m. A joint pretrial statement is to be filed seven days prior to the hearing. Ordered by Judge Garland E. Burrell, Jr on 2/8/10. (Furstenau, S) (Entered: 02/08/2010)
85 REPLY by Barry A. Hazle, Jr. re 56 MOTION for SUMMARY JUDGMENT. (Heller, John) (Entered: 02/12/2010)
86 MINUTE ORDER: The Cross Motions for Summary Judgment, scheduled for hearing on 2/22/10, are submitted without oral argument. There will not be a hearing on 2/22/10, and no appearance is necessary. re 48 Motion for Summary Judgment, 47 Motion for Summary Judgment,,, 56 Motion for Summary Judgment Ordered by Judge Garland E. Burrell, Jr on 2/19/10. (Furstenau, S) (Entered: 02/19/2010)
87 ORDER signed by Judge Garland E. Burrell, Jr. on 4/6/2010 ORDERING Pltf's 48 partial motion for summary judgment is GRANTED, Westcare's 47 motion for summary judgment is GRANTED and Pltf's 56 cross−motion for summary judgment is DENIED. Westcare prevails on its argument that Plt's request for injunction is DENIED. (Engbretson, K.) (Entered: 04/07/2010)
88 NOTICE of CHANGE of ADDRESS by Wayne H. Maire. (Maire, Wayne) (Entered: 04/08/2010)
89 JOINT PRETRIAL STATEMENT by plaintiff Barry A. Hazle, Jr.. (Heller, John) Modified on 4/19/2010 (Marciel, M). (Entered: 04/16/2010)
90 STIPULATION by Barry A. Hazle, Jr.. (Heller, John) (Entered: 04/16/2010)
91 BILL of COSTS SUBMITTED by Westcare. (Attachments: # 1 Declaration of Wayne H. Maire in Support of Defendant Westcare's Cost Bill)(Maire, Wayne) (Entered: 04/19/2010)
92 MINUTES (Text Only) for proceedings held before Judge Garland E. Burrell, Jr: IN COURT HEARING Pretrial conference held on 5/3/2010. Confirm trial for 6/22/10 at 9:00 a.m. Plaintiffs Counsel John Heller present. Defendants Counsel Todd Irby present. Court Reporter/CD Number: Vickie Whitney. (Furstenau, S) (Entered: 05/04/2010)
93 FINAL PRETRIAL ORDER signed by Judge Garland E. Burrell, Jr. on 5/5/2010 ORDERING Jury Trial set for 6/22/2010 at 09:00 AM in Courtroom 10 (GEB) before Judge Garland E. Burrell Jr. (Reader, L) (Entered: 05/05/2010)
94 NOTICE of APPEAL by Barry A. Hazle, Jr. as to 87 Order on Motion for Summary Judgment. (Attachments: # 1 Ninth Circuit Docketing Statement)(Heller, John) Modified on 5/6/2010 (Engbretson, K.). (Entered: 05/05/2010)
95 SUPPLEMENTAL EXHIBIT LIST by Barry A. Hazle, Jr..(Heller, John) Modified on 5/6/2010 (Engbretson, K.). (Entered: 05/05/2010)
RECEIPT number #CAE200026012 $455.00 fbo Barry A Hazle Jr by John G Heller on 5/6/2010. (Kastilahn, A) (Entered: 05/06/2010)
98 APPEAL PROCESSED to Ninth Circuit re 94 Notice of Appeal filed by Barry A. Hazle, Jr.. Filed dates for Notice of Appeal *5/5/2010*, Complaint *9/29/2008* and Appealed Order / Judgment *4/7/2010*. Court Reporter: *V. Whitney*. *Fee Status: Paid on 5/6/2010 in the amount of $455.00* ** (Attachments: # 1 Appeal Information) (Engbretson, K.) (Entered: 05/07/2010)

Case: 2:08-cv-2295 As of: 01/26/2015 06:14 PM PST 9 of 14

05/25/2010 05/25/2010 05/28/2010
05/28/2010
05/28/2010 05/28/2010
05/28/2010 05/28/2010
05/28/2010 05/28/2010 05/28/2010 05/28/2010 05/28/2010 06/01/2010 06/01/2010 06/01/2010 06/01/2010 06/01/2010 06/01/2010

99 USCA CASE NUMBER 10−16067 for 94 Notice of Appeal filed by Barry A. Hazle, Jr.. (Engbretson, K.) (Entered: 05/25/2010)
100 ORDER Setting Settlement Conference in prisoner settlement program for June 10, 2010 at 1:30 in Courtroom F, San Francisco, CA signed by Magistrate Judge Nandor J Vadas on 5/25/10. (Masterson, G) (Entered: 05/25/2010)
101 MOTION IN LIMINE to exclude non−party witnesses from courtroom prior to testifying by defendants. Motion Hearing set for 6/22/2010 at 09:00 AM in Courtroom 10 (GEB) before Judge Garland E. Burrell Jr. (Irby, Todd) Modified on 6/2/2010 (Mena−Sanchez, L). (Entered: 05/28/2010)
102 MOTION IN LIMINE to exclude testimony of plaintiff witnesses. Motion Hearing set for 6/22/2010 at 09:00 AM in Courtroom 10 (GEB) before Judge Garland E. Burrell Jr.. (Attachments: # 1 Declaration of Todd Irby with Attachment A) (Irby, Todd) Modified on 6/2/2010 (Mena−Sanchez, L). (Entered: 05/28/2010)
103 LIST of MOTIONS IN LIMINE by plaintiff. (Heller, John) Modified on 6/2/2010 (Mena−Sanchez, L). (Entered: 05/28/2010)
104 MOTION IN LIMINE No. 1: to exclude evidence that plaintiff agreed to participate in NA or AA−based program as term or condition of parole by plaintiff. (Heller, John) Modified on 6/2/2010 (Mena−Sanchez, L). Modified on 6/17/2010 (Marciel, M). (Entered: 05/28/2010)
105 MOTION IN LIMINE No. 2: to Preclude evidence of plaintiff's alleged participation in prison NA/AA meetings in 2006 − 2007. (Heller, John) Modified on 6/2/2010 (Mena−Sanchez, L). (Entered: 05/28/2010)
106 MOTION IN LIMINE No. 3: to preclude defendants from calling witnesses on issues pertaining to Hazle's supposed participation in NA/AA meetings, including those not disclosed in Discovery by plaintiff. (Heller, John) Modified on 6/2/2010 (Mena−Sanchez, L). (Entered: 05/28/2010)
107 MOTION IN LIMINE No. 4: to preclude defendants from calling witnesses on issues pertaining to Hazle's supposed participation in NA/AA meetings. (Heller, John) Modified on 6/2/2010 (Mena−Sanchez, L). (Entered: 05/28/2010)
108 MOTION IN LIMINE No. 5: to preclude evidence of Hazle's prior arrests and incarcerations by plaintiff. (Heller, John) Modified on 6/2/2010 (Mena−Sanchez, L). (Entered: 05/28/2010)
109 MOTION IN LIMINE No. 6: to preclude evidence of recent arrest by plaintiff. (Heller, John) Modified on 6/2/2010 (Mena−Sanchez, L). (Entered: 05/28/2010)
110 MOTION IN LIMINE No. 7: to preclude evidence and testimony regarding CDCR directive issued after events in this case by plaintiff. (Heller, John) Modified on 6/2/2010 (Mena−Sanchez, L). (Entered: 05/28/2010)
111 Compendium of Exhibits; Declaration of Counsel by Barry A. Hazle, Jr. (Attachments: # 1 Exhibits A through C, # 2 Exhibits D through K)(Heller, John) Modified on 6/2/2010 (Mena−Sanchez, L). (Entered: 05/28/2010)
112 PROPOSED VERDICT submitted by Defendants Brenda Wilding, Deputy Jallings, Mitch Crofoot.(Irby, Todd) (Entered: 06/01/2010)
113 JOINT PROPOSED JURY INSTRUCTIONS by Barry A. Hazle, Jr..(Heller, John) Modified on 6/2/2010 (Kaminski, H). (Entered: 06/01/2010)
114 JOINT PROPOSED VOIR DIRE by Barry A. Hazle, Jr..(Heller, John) Modified on 6/2/2010 (Kaminski, H). (Entered: 06/01/2010)
115 PROPOSED JURY INSTRUCTIONS by Brenda Wilding, Deputy Jallings, Mitch Crofoot.(Irby, Todd) (Entered: 06/01/2010)
116 TRIAL BRIEF by Brenda Wilding, Deputy Jallings, Mitch Crofoot.(Irby, Todd) (Entered: 06/01/2010)
117 PROPOSED VERDICT submitted by Plaintiff Barry A. Hazle, Jr..(Heller, John) (Entered: 06/01/2010)

Case: 2:08-cv-2295 As of: 01/26/2015 06:14 PM PST 10 of 14

06/01/2010 06/01/2010 06/04/2010 06/04/2010 06/04/2010 06/04/2010 06/04/2010 06/04/2010 06/04/2010 06/04/2010 06/04/2010 06/04/2010 06/07/2010 06/07/2010 06/08/2010 06/08/2010
06/08/2010 06/08/2010 06/08/2010 06/08/2010 06/08/2010 06/08/2010 06/08/2010 06/08/2010

118 PROPOSED JURY INSTRUCTIONS by Barry A. Hazle, Jr..(Heller, John) (Entered: 06/01/2010)
119 TRIAL BRIEF by Barry A. Hazle, Jr..(Heller, John) (Entered: 06/01/2010)
120 OPPOSITION by Brenda Wilding, Deputy Jallings, Mitch Crofoot to 104 MOTION IN LIMINE. (Irby, Todd) (Entered: 06/04/2010)
121 OPPOSITION by Brenda Wilding, Deputy Jallings, Mitch Crofoot to 105 MOTION IN LIMINE. (Irby, Todd) (Entered: 06/04/2010)
122 OPPOSITION by Brenda Wilding, Deputy Jallings, Mitch Crofoot to 106 MOTION IN LIMINE. (Irby, Todd) (Entered: 06/04/2010)
123 OPPOSITION by Brenda Wilding, Deputy Jallings, Mitch Crofoot to 109 MOTION IN LIMINE. (Irby, Todd) (Entered: 06/04/2010)
124 OPPOSITION by Brenda Wilding, Deputy Jallings, Mitch Crofoot to 107 MOTION IN LIMINE. (Irby, Todd) (Entered: 06/04/2010)
125 OPPOSITION by Brenda Wilding, Deputy Jallings, Mitch Crofoot to 108 MOTION IN LIMINE. (Irby, Todd) (Entered: 06/04/2010)
126 OPPOSITION by Brenda Wilding, Deputy Jallings, Mitch Crofoot to 110 MOTION IN LIMINE. (Irby, Todd) (Entered: 06/04/2010)
127 OPPOSITION by Barry A. Hazle, Jr. to 102 MOTION IN LIMINE. (Heller, John) (Entered: 06/04/2010)
128 DECLARATION of John G. Heller in Opposition to 102 MOTION IN LIMINE. (Heller, John) (Entered: 06/04/2010)
129 STATEMENT of NON−OPPOSITION by Barry A. Hazle, Jr. to 101 MOTION IN LIMINE. (Heller, John) (Entered: 06/04/2010)
130 REPLY by Brenda Wilding, Deputy Jallings, Mitch Crofoot to RESPONSE to 102 MOTION IN LIMINE. (Irby, Todd) (Entered: 06/07/2010)
131 REPLY by Brenda Wilding, Deputy Jallings, Mitch Crofoot to RESPONSE to 101 MOTION IN LIMINE. (Irby, Todd) (Entered: 06/07/2010)
132 OBJECTIONS by Defendant Brenda Wilding to 89 Pretrial Statement, 95 Exhibit List. (Irby, Todd) (Entered: 06/08/2010)
133 JOINT PROPOSED SHORT STATEMENT of the Parties , to be Read to the Jury by Plaintiff Barry A. Hazle, Jr.. (Heller, John) Modified on 6/9/2010 (Williams, D). (Entered: 06/08/2010)
134 REPLY by Barry A. Hazle, Jr. re 104 MOTION IN LIMINE. (Heller, John) (Entered: 06/08/2010)
135 REPLY by Barry A. Hazle, Jr. re 105 MOTION IN LIMINE. (Heller, John) (Entered: 06/08/2010)
136 REPLY by Barry A. Hazle, Jr. re 106 MOTION IN LIMINE. (Heller, John) (Entered: 06/08/2010)
137 REPLY by Barry A. Hazle, Jr. re 107 MOTION IN LIMINE. (Heller, John) (Entered: 06/08/2010)
138 REPLY by Barry A. Hazle, Jr. re 108 MOTION IN LIMINE. (Heller, John) (Entered: 06/08/2010)
139 REPLY by Barry A. Hazle, Jr. re 110 MOTION IN LIMINE. (Heller, John) (Entered: 06/08/2010)
140 OBJECTIONS by Plaintiff Barry A. Hazle, Jr.. (Heller, John) (Entered: 06/08/2010)
141 DECLARATION of John G. Heller in Support of Plaintiff's Reply Motions in Limine. (Heller, John) (Entered: 06/08/2010)

Case: 2:08-cv-2295 As of: 01/26/2015 06:14 PM PST 11 of 14

06/09/2010 06/10/2010 06/11/2010 06/15/2010 06/16/2010 06/17/2010 06/17/2010
06/18/2010 06/18/2010 06/18/2010
06/21/2010 06/22/2010 06/22/2010
06/23/2010
06/24/2010 06/24/2010 06/24/2010 06/24/2010

142 ORDER vacating June 10, 2010 further settlement conference signed by Magistrate Judge Nandor J Vadas on June 9, 2010. (Masterson, G) (Entered: 06/09/2010)
143 SUPPLEMENT by Barry A. Hazle, Jr. re 118 Proposed Jury Instructions. (Heller, John) (Entered: 06/10/2010)
144 RESPONSE by Barry A. Hazle, Jr. to 132 Objections. (Heller, John) (Entered: 06/11/2010)
145 RESPONSE by Brenda Wilding, Deputy Jallings, Mitch Crofoot to 143 Supplement. (Irby, Todd) (Entered: 06/15/2010)
146 REPLY by Barry A. Hazle, Jr. re 143 Supplement. (Heller, John) (Entered: 06/16/2010)
147 OPPOSITION by Barry A. Hazle, Jr. to new arguments raised in Defendants' Reply in SUPPORT of the MOTION In Limine 130 . (Heller, John) Modified on 6/18/2010 (Mena−Sanchez, L). (Entered: 06/17/2010)
148 ORDER signed by Judge Garland E. Burrell, Jr. on 6/17/2010. Plaintiff's 104 105 107 108 109 110 Motions in Limine are DENIED. But plaintiff's 106 Motion In Limine No. 3 is GRANTED in part and DENIED in part. Defendants' 101 Motion in Limine to restrict all non−party witnesses from entering Courtroom until called to testify is GRANTED. Defendants' 102 Motion in Limine to exclude testimony of plaintiff witnesses is DENIED. (Marciel, M) (Entered: 06/17/2010)
149 TRIAL EXHIBITS by Barry A. Hazle, Jr..(Heller, John) Modified on 6/21/2010 (Kaminski, H). (Entered: 06/18/2010)
150 TRIAL EXHIBIT by Brenda Wilding, Deputy Jallings, Mitch Crofoot.(Irby, Todd) (Entered: 06/18/2010)
151 NOTICE OF FILING / LODGING DOCUMENT IN PAPER by Brenda Wilding, Deputy Jallings, Mitch Crofoot: Deposition Transcripts Lodged. (Irby, Todd) [Lodged documents received and routed to file room]. Modified on 6/21/2010 (Duong, D). (Entered: 06/18/2010)
152 DECLARATION of Todd D. Irby. (Irby, Todd) (Entered: 06/21/2010)
153 NOTICE OF LODGING DEPOSITION TRANSCRIPT of Richard Jallins, Mitch Crofoot and Brenda Wilding taken on December 4, 2009. (Heller, John) Modified on 6/23/2010 (Kaminski, H). (Entered: 06/22/2010)
154 MINUTES (Text Only) for proceedings held before Judge Garland E. Burrell, Jr: IN COURT HEARING held on 6/22/2010. Jury selection; jury panel selected and sworn; jury given preliminary instructions; opening statements; Plaintiff's witnesses Mitchel Crofoot, Brenda Wilding, Richard Jallins; Maline Hazle, Brian Hazle, Judy Pfahnl, Barry Hazle testififed. Recess to 6/23/10 at 9:00 a.m. Plaintiffs Counsel John Heller present. Defendants Counsel Todd Irby, Vicki Whitney present. Court Reporter/CD Number: Kimberly Bennett. (Furstenau, S) (Entered: 06/23/2010)
155 MINUTES (Text Only) for proceedings held before Judge Garland E. Burrell, Jr: IN COURT HEARING held on 6/23/2010. 2nd day Jury trial. Barry Hazle, Mitch Crofoot testified. Defense rests. Closing arguments; jury instructed; deliberation. Recess to 6/24/10 at 9:00 a.m. Plaintiffs Counsel John Heller present. Defendants Counsel Todd Irby, Vicki Whitney present. Court Reporter/CD Number: Kimberly Bennett. (Furstenau, S) (Entered: 06/24/2010)
156 JURY NOTES. (Kaminski, H) (Entered: 06/25/2010)
157 JURY NOTES re verdict.(Kaminski, H) (Entered: 06/25/2010)
158 VERDICT FORM(Reader, L) (Entered: 06/28/2010)
160 MINUTES (Text Only) for proceedings held before Judge Garland E. Burrell, Jr: IN COURT HEARING held on 6/24/2010. Jury Deliberation. Jury returned verdict. No damages were awarded. Exhibits returned to counsel. Plaintiffs Counsel John Heller present. Defendants Counsel Todd Irby, Vicki Whitney present. Court Reporter/CD Number: Kimberly Bennett. (Furstenau, S) (Entered: 06/30/2010)

Case: 2:08-cv-2295 As of: 01/26/2015 06:14 PM PST 12 of 14

06/28/2010 06/30/2010 07/12/2010
07/20/2010 07/28/2010 07/28/2010 07/28/2010 07/28/2010 08/05/2010 08/06/2010 08/11/2010 09/07/2010
09/07/2010
09/07/2010

159 STATEMENT of Plaintiff in Response to Issues Pertaining to Defendants' Asserted Defenses Regarding Policy and Lack of Authority by Plaintiff Barry A. Hazle, Jr.. (Heller, John) (Entered: 06/28/2010)
161 JUDGMENT dated *6/24/2010* pursuant to jury verdict, before Judge Garland E. Burrell, Jr. on 6/24/2010. CASE CLOSED (Reader, L) (Entered: 06/30/2010)
162 MOTION for SUMMARY JUDGMENT by Matthew Cate, Mitch Crofoot, Deputy Jallings, Scott Kernan, Brenda Wilding. Motion Hearing set for 8/16/2010 at 08:30 AM in Courtroom 10 (GEB) before Judge Garland E. Burrell Jr.. (Attachments: # 1 Points and Authorities, # 2 Statement of Undisputed Facts, # 3 Declaration of Todd Darrow Irby, # 4 Exhibit A, # 5 Exhibit 1, # 6 Exhibit 4, # 7 Exhibit B, # 8 Exhibit C, # 9 Exhibit D, # 10 Exhibit 56, # 11 Exhibit E, # 12 Exhibit F, # 13 Exhibit G)(Irby, Todd) (Entered: 07/12/2010)
163 RESPONSE by Barry A. Hazle, Jr. to 162 MOTION for SUMMARY JUDGMENT. (Heller, John) (Entered: 07/20/2010)
164 MOTION for NEW TRIAL by Barry A. Hazle, Jr. Motion Hearing set for 09/27/10 at 09:00 AM in Courtroom 10 (GEB) before Judge Garland E. Burrell, Jr. (Heller, John) (Entered: 07/28/2010)
165 DECLARATION of John G. Heller in Support of 164 MOTION for NEW TRIAL. (Heller, John) (Entered: 07/28/2010)
166 MEMORANDUM of Points and Authorities by Barry A. Hazle, Jr. in SUPPORT of 164 MOTION for NEW TRIAL. (Heller, John) Modified on 7/29/2010 (Mena−Sanchez, L). (Entered: 07/28/2010)
167 REQUEST for JUDICIAL NOTICE by Barry A. Hazle, Jr. in re 164 Motion for New Trial. (Heller, John) (Entered: 07/28/2010)
168 ORDER of USCA for 94 Notice of Appeal filed by plaintiff Barry A. Hazle, Jr.: appellant's Motion to Dismiss this Appeal is GRANTED and parties shall bear their own costs. (Marciel, M) (Entered: 08/06/2010)
169 COSTS TAXED in amount of $ $3,689.90 against Plaintiff Hazle. (Mena−Sanchez, L) (Entered: 08/10/2010)
170 ORDER signed by Judge Garland E. Burrell, Jr. on 08/10/10 GRANTING dfts' 162 Motion for Summary Judgment. (Benson, A.) (Entered: 08/11/2010)
171 TRANSCRIPT of Proceedings held on 6/22/10, before Judge Garland E. Burrell, Jr, filed by Court Reporter Kimberly Bennett, Phone number 916−442−8420 E−mail reporter.bennett@yahoo.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 9/30/2010. Redacted Transcript Deadline set for 10/8/2010. Release of Transcript Restriction set for 12/6/2010. (Bennett, Kimberly) (Entered: 09/07/2010)
172 TRANSCRIPT of Proceedings held on 6/23/10, before Judge Garland E. Burrell, Jr, filed by Court Reporter Kimberly Bennett, Phone number 916−442−8420 E−mail reporter.bennett@yahoo.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 9/30/2010. Redacted Transcript Deadline set for 10/8/2010. Release of Transcript Restriction set for 12/6/2010. (Bennett, Kimberly) (Entered: 09/07/2010)
173 TRANSCRIPT of Proceedings held on 6/24/10, before Judge Garland E. Burrell, Jr, filed by Court Reporter Kimberly Bennett, Phone number 916−442−8420 E−mail reporter.bennett@yahoo.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 9/30/2010. Redacted Transcript Deadline set for 10/8/2010. Release of Transcript Restriction set for 12/6/2010. (Bennett, Kimberly) (Entered: 09/07/2010)

Case: 2:08-cv-2295 As of: 01/26/2015 06:14 PM PST 13 of 14

09/13/2010 09/20/2010 09/20/2010 09/27/2010
01/13/2011 02/10/2011 02/11/2011 02/11/2011
03/01/2011 03/09/2011
03/11/2011 03/18/2011 04/04/2011 04/05/2011
12/10/2012 08/23/2013

174 OPPOSITION by Mitch Crofoot, Deputy Jallings, Brenda Wilding to 164 Motion for New Trial. (Attachments: # 1 Declaration)(Irby, Todd) (Entered: 09/13/2010)
175 REPLY by Barry A. Hazle, Jr. re 164 Motion for a New Trial. (Heller, John) (Entered: 09/20/2010)
176 DECLARATION of John Heller re 175 Reply. (Heller, John) (Entered: 09/20/2010)
177 MINUTES (Text Only) for proceedings held before Judge Garland E. Burrell, Jr: MOTION HEARING held on 9/27/2010 re 164 Motion for a New Trial filed by Barry A. Hazle, Jr. Motion submitted. Plaintiffs Counsel John Heller present. Defendants Counsel Vickie Whitney present. Court Reporter/CD Number: Kimberly Bennett. (Furstenau, S) (Entered: 09/27/2010)
178 ORDER signed by Judge Garland E. Burrell, Jr on 1/12/2011 DENYING 164 Hazle's Motion for New Trial. (Reader, L) (Entered: 01/13/2011)
179 NOTICE of APPEAL by Barry A. Hazle, Jr. as to 178 Order denying Motion for New Trial. (Attachments: # 1 Docketing Statement) (Heller, John) Modified on 2/11/2011 (Marciel, M). (Entered: 02/10/2011)
RECEIPT number #CAE200033210 $455.00 fbo Plaintiff Barry A. Hazle, Jr. by Chapman P. White on 2/11/2011. (Reader, L) (Entered: 02/11/2011)
181 APPEAL PROCESSED to Ninth Circuit for 179 Notice of Appeal filed by Barry A. Hazle, Jr.. Filed dates for Notice of Appeal *2/10/2011*, Complaint *9/28/2008* and Appealed Order / Judgment *1/13/2011*. Court Reporter: *Kimberly Bennett*. *Fee Status: Paid on 2/11/2011 in the amount of $455.00* ** (Attachments: # 1 Appeal Information) (Marciel, M) (Entered: 02/11/2011)
182 USCA CASE NUMBER 11−15354 for 179 Notice of Appeal filed by Barry A. Hazle, Jr.. (Zignago, K.) (Entered: 03/01/2011)
183 TRANSCRIPT of Proceedings held on 9/27/10, before Judge Garland E. Burrell, Jr, filed by Court Reporter Kimberly Bennett, Phone number 916−442−8420 E−mail reporter.bennett@yahoo.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 3/31/2011. Redacted Transcript Deadline set for 4/11/2011. Release of Transcript Restriction set for 6/9/2011. (Bennett, Kimberly) (Entered: 03/09/2011)
184 TRANSCRIPT REQUEST by Barry A. Hazle, Jr. (Heller, John) (Entered: 03/11/2011)
185 CERTIFICATE of RECORD transmitted to Ninth Circuit re 179 Notice of Appeal filed by Barry A. Hazle, Jr. for USCA Case Number *11−15354* Hearing Dates of *6/22/10**6/23/10**6/24/10**9/27/10* (Zignago, K.) (Entered: 03/18/2011)
186 TRANSCRIPT REQUEST by Barry A. Hazle, Jr. (Heller, John) (Entered: 04/04/2011)
187 TRANSCRIPT of Proceedings held on 5/3/10, before Judge Garland E. Burrell, Jr, filed by Court Reporter Kimberly Bennett, Phone number 916−442−8420 E−mail reporter.bennett@yahoo.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 4/28/2011. Redacted Transcript Deadline set for 5/6/2011. Release of Transcript Restriction set for 7/5/2011. (Bennett, Kimberly) (Entered: 04/05/2011)
188 TRANSMITTED RECORD on APPEAL to USCA # *11−15354* re 179 Notice of Appeal. * Volumes of Expandable Folders: 1.* *Electronic Documents: 1 to 187.* (Waggoner, D) (Entered: 12/10/2012)
189 USCA OPINION as to Notice of Appeal filed by Barry A. Hazle, Jr. For the reasons stated above, we hold that the jury verdict awarding Hazle no compensatory damages is contrary to law, reverse the district judge's denial of Hazle's motion for a new trial, and remand for a new trial as to his loss of liberty damages. The jury shall be instructed that liability is joint and several and that Hazle is entitled to compensatory

Case: 2:08-cv-2295 As of: 01/26/2015 06:14 PM PST 14 of 14

08/23/2013 09/16/2013 09/20/2013 06/06/2014 07/07/2014 07/11/2014 07/15/2014
07/21/2014 07/23/2014
09/04/2014 09/05/2014 10/08/2014 10/14/2014 10/15/2014

damages. We also hold that Hazle is entitled to a new trial as to his emotional distress damages as a result of the district judge's erroneous jury instruction and verdict form. In addition, we reverse the district judge's grant of summary judgment to Westcare on Hazle's section 1983 claim, as well as its holding that Hazle's state law claim for injunctive relief was moot. We remand both of these issues for further consideration. REVERSED AND REMANDED. (Becknal, R) (Entered: 08/23/2013)
APPEAL RECORD REQUESTED: Final Judgment has been entered by the Ninth Circuit in case USCA, 10−16067, USCA, 11−15354. Please return the Clerk's Record to our office. (TEXT ONLY ENTRY) (Becknal, R) (Entered: 08/23/2013)
190 MANDATE of USCA as to 179 Notice of Appeal filed by Barry A. Hazle, Jr. The judgment of this Court, entered 8/23/13, takes effect this date. Costs are taxed against the appellee in the amount of $696.60. (Meuleman, A) (Entered: 09/17/2013)
APPEAL RECORD RETURNED: 94 179 Notice of Appeal (Becknal, R) (Entered: 09/20/2013)
191 MINUTE ORDER: A status conference is scheduled for 7/21/14 at 9:00 a.m. A joint status report shall be filed fourteen days prior to the hearing. Ordered by Judge Garland E. Burrell, Jr on 6/6/14. (Furstenau, S) (Entered: 06/06/2014)
192 JOINT STATUS REPORT by Barry A. Hazle, Jr.. (Heller, John) (Entered: 07/07/2014)
193 TRANSCRIPT REQUEST by Westcare for proceedings held on June 22, 2010; June 23, 2010; June 24, 2010 before Judge Garland E. Burrell, Jr., (Maire, Wayne) (Entered: 07/11/2014)
194 ORDER signed by Judge Garland E. Burrell, Jr. on 7/14/2014 CONTINUING the Status (Pretrial Scheduling) Conference to 8/4/2014 at 09:00 AM in Courtroom 10 (GEB) before Judge Garland E. Burrell, Jr. ORDERING that a further joint status report be filed fourteen (14) days prior to the Status Conference. (Michel, G) Modified on 7/16/2014 (Michel, G). (Entered: 07/15/2014)
195 JOINT STATUS REPORT by Barry A. Hazle, Jr.. (Huie, Dennis) (Entered: 07/21/2014)
196 STATUS (PRETRIAL SCHEDULING) ORDER signed by Judge Garland E. Burrell, Jr. on 7/23/2014 ORDERING that the status conference scheduled for 8/4/2014 is VACATED. The deadline to file motions for leave to amend complaint to add and substitute parties to the action is 9/22/2014. The deadline to file motions to reopen or for leave to conduct additional discovery is 9/22/2014. The deadline to file motions for summary judgment or partial summary judgment is 11/17/2014. Final Pretrial Conference set for 3/16/2015 at 02:30 PM in Courtroom 10 (GEB) before Judge Garland E. Burrell Jr.. Trial set for 6/16/2015 at 09:00 AM in Courtroom 10 (GEB) before Judge Garland E. Burrell Jr.. (Zignago, K.) (Entered: 07/23/2014)
197 STIPULATION and PROPOSED ORDER for EXTENSION OF DEADLINE TO FILE MOTION TO AMEND COMPLAINT AND MOTION TO REOPEN DISCOVERY by Barry A. Hazle, Jr.. (Heller, John) (Entered: 09/04/2014)
198 STIPULATION and ORDER signed by Judge Garland E. Burrell, Jr on 9/4/14 197 . IT IS HEREBY ORDERED that the deadline to file motions to amend the complaint and reopen discovery is CONTINUED to 10/13/14. (Meuleman, A) (Entered: 09/05/2014)
199 STIPULATION and PROPOSED ORDER for Continuation of Motion Deadlines by Barry A. Hazle, Jr.. (Heller, John) (Entered: 10/08/2014)
200 STIPULATION for VOLUNTARY DISMISSAL with prejudice by defendants. Attorney Whitney, Vickie Pochelle added. (Whitney, Vickie) Modified on 10/15/2014 (Marciel, M) (Entered: 10/14/2014)
201 NOTICE of VOLUNTARY DISMISSAL: pursuant to 200 Stipulation, this action is DISMISSED with prejudice. Each party shall bear its own litigation costs and attorney's fees, except to extent that any fees & costs are encompassed within parties' Settlement of matter. (Marciel, M) (Entered: 10/15/2014)

 
 727 F.3d 983 (2013)
Barry A. HAZLE, Jr., Plaintiff-Appellant, v.
Mitch CROFOOT, Individually and as Parole Officer of the CDCR; Brenda Wilding, Individually and as Unit Supervisor of the CA Dept. of
Corrections; Matthew Cate, Individually and as Unit Supervisor of the CA Dept. of Corrections; Scott Kernan, Individually and as Chief Deputy Secretary of Adult Operations of the CA Dept. of Corrections and
Rehabilitation; Tim Hoffman, Individually and as Director of the Division of Adult Parole Operations in California; Deputy Jallins, Individually and as Deputy Commissioner; Westcare, A Nevada Non-Profit Corporation,
Defendants-Appellees.
No. 11-15354.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted February 12, 2013. Filed August 23, 2013.
*985 John G. Heller (argued) and Suhani Kamdar, Rogers Joseph O'Donnell, San Francisco, CA; Carol D. Quackenbos, Brisbane, CA; Philip A. Leider, Chapman Popik & White, LLP, San Francisco, CA, for Plaintiff-Appellant.
Kamala D. Harris, Attorney General; Jonathan L. Wolff, Senior Assistant Attorney General; Thomas S. Patterson, Supervising Deputy Attorney General; Vickie P. Whitney (argued), Supervising Deputy Attorney General, Sacramento, CA, for Defendants-Appellees Mitch Crofoot, Brenda Wilding, Matthew Cate, Scott Kernan, Tim Hoffman, and Richard Jallins.
Mark G. Bonino (argued) and Miya R. Peard, Hayes, Scott, Bonino, Ellingson & McLay LLP, Redwood City, CA; Wayne H. Maire, Maire & Burgess, Redding, CA, for DefendantAppellee Westcare California, Inc.
*986 Before: DOROTHY W. NELSON, STEPHEN REINHARDT, and MILAN D. SMITH, JR., Circuit Judges.

OPINION
REINHARDT, Circuit Judge:
In 2007, citing "uncommonly well-settled case law," we held that the First Amendment is violated when the state coerces an individual to attend a religion-based drug or alcohol treatment program. Inouye v. Kemna, 504 F.3d 705, 712, 716 (9th Cir. 2007). Plaintiff Barry Hazle is an atheist who, over his numerous objections, was forced as a condition of parole to participate in a residential drug treatment program that required him to acknowledge a higher power. When Hazle refused, he was removed from the treatment program and arrested; his parole was revoked, and he was imprisoned for an additional 100 days.
Hazle subsequently filed this suit, seeking damages and injunctive relief for the deprivation of his First Amendment rights. The district judge held, consistent with the "uncommonly well-settled case law," that the state defendants in this case were liable for the violation that Hazle alleged — a finding that the state defendants do not appeal. Nevertheless, the jury, which addressed only the issue of damages, awarded Hazle zero damages for the violation of his constitutional rights.
We hold that the district judge erred in denying Hazle's motion for a new trial based on the jury's failure to award damages, and therefore reverse. We also hold that the district judge erred in instructing the jury to determine whether liability should have been apportioned among the multiple defendants in this case and in dismissing certain other of Hazle's claims. Accordingly, we remand to the district court for, inter alia, a new trial against the state defendants on the issue of damages.
I. Background
A. The Parties
Plaintiff Barry A. Hazle, Jr. is an atheist. As he put it at trial, "[T]hat simply means that you're not religious.... [T]hat means I don't believe in God...." He testified that he is a member of several secular humanist organizations, including American Atheists. When asked about the role of atheism in his life, he testified, "I never really had any great reason to get religious or to believe in God.... I don't think it's my position or duty to look at what anybody else believes and try and... judge them because of it.... [M]y beliefs have nothing to do with [others'], and theirs have nothing to do with me. I just don't want them forced upon me."

Hazle's lawsuit names as defendants a number of state employees, sued both individually and in their official capacities. (We refer to them collectively as the "state defendants".) Defendant Mitch Crofoot was the parole agent assigned to Hazle during the events that form the basis of this suit. Hazle alleged that Crofoot threatened to revoke his parole and return him to prison when Hazle refused to participate in a religion-based drug treatment program, and that he eventually fulfilled that threat by recommending that Hazle's parole be revoked and deciding (in conjunction with other defendants) that Hazle should be returned to prison.
Defendant Brenda Wilding was, during the relevant events, Crofoot's Unit Supervisor. Hazle alleges that Wilding approved and ratified Crofoot's decision to revoke his parole. Defendant Richard Jallins was the Associate Chief Deputy Commissioner with the California Department of Corrections and Rehabilitations (CDCR) Board of Parole Hearings. Hazle alleges that Jallins gave the final approval for the order revoking Hazle's parole and returning *987 him to state prison.[1]
Defendant Westcare is a private entity that contracted with the CDCR as a regional Substance Abuse Services Coordination Agency (SASCA) in Hazle's region of California. As a SASCA, Westcare creates a network of treatment facilities for parolees with drugrelated convictions and coordinates with the State to place parolees in these programs. Empire Recovery Center (not a defendant) is a not-for-profit recovery center in Redding, California, that contracts with Westcare to provide substance abuse treatment to parolees upon their release. Empire uses a 12-step recovery program, developed by Alcoholics Anonymous and Narcotics Anonymous, that includes references to "God" and to a "higher power." (Hereinafter, a 12-step program will always refer to a religion-based treatment program.) Hazle alleges, inter alia, that Westcare referred him to Empire despite his request that he not be placed in a religion-based treatment program, and that Westcare has a policy of contracting only with religion-based treatment programs, thus rendering it unable to provide non-religious parolees with a secular treatment alternative.[2]
B. Factual Background
In 2006 Hazle entered a no-contest plea on state law charges pertaining to possession of methamphetamine, and was placed on probation. When his probation was revoked, he was incarcerated as a civil addict from February 27, 2006, until February 26, 2007, at the California Rehabilitation Center (CRC), a state prison in Norco, California.[3] Hazle was released on parole on February 26, 2007, with the condition that he attend and complete a 90-day residential drug treatment program.

Prior to his release on parole, Hazle told correctional authorities and Westcare representatives that he was an atheist, and requested placement in a non-religious treatment program. A Westcare representative advised him that he should ask to be assigned to Empire, and Hazle was assigned to serve his residential treatment there. Upon arriving at Empire, Hazle quickly discovered that Empire uses a religion-based 12-step recovery program.
While at Empire, Hazle contacted Westcare representatives several times. He told them that he objected to the religious nature of the 12-step program and that he wished to be transferred to a secular program. When Hazle inquired whether a secular program existed, Westcare's representative informed him that the only alternative to Empire was a treatment facility whose program had an even greater focus on religion than Empire's. Hazle also contacted Crofoot, asking him whether he could fulfill his requirement through a secular program. Crofoot told Hazle that he needed to continue at Empire and participate in the 12step program while Crofoot looked into the issue. Crofoot called Westcare, which informed him that it had no secular programs in Northern California. Crofoot subsequently informed Hazle *988 that there were no available alternatives to the 12-step program he was in, but that, if he wanted to, he could file an Inmate/Parolee Appeal to petition for a change in the conditions of his parole. Crofoot again told Hazle that he should continue to participate in the treatment program, or else his parole would be revoked and he would be returned to prison.
On April 3, 2007, Hazle presented Crofoot with his appeal challenging the conditions of his parole, in which he stated his objection to participating in the faith-based program:
As an Atheist, I object to forced participation in any spiritual/religious activities.... I have been told by my parole officer that I must complete the 90 days of spiritual treatment because there are no available secular recovery alternatives. Since the CDC[R] cannot provide me with a secular alternative to 12-step based treatment, I would like the in-patient treatment stipulation removed from my parole conditions so that I may return home ASAP.
He attached a document explaining his beliefs, which included a summary of numerous court opinions holding that the Establishment Clause prohibits forcing nonreligious individuals to participate in a 12-step program. Hazle's attachment stated,
Let me begin by assuring you that my aim in this endeavor is not to get out of having to complete my Parole requirements. I have committed myself to a full and lasting secular recovery and complete abstinence from illegal drugs.

According to Crofoot, on April 6, 2007, representatives of Empire informed him that Hazle was being "disruptive, though in a congenial way, to the staff as well as other students." His demeanor was described as "sort of passive aggressive." That same day, Crofoot spoke with his supervisor, Brenda Wilding, and they concluded that the proper course of action was to refer Hazle to the Board of Parole Hearings for a parole violation, because he was refusing to participate in the drug-treatment program that was a condition of his parole. Both Crofoot and Wilding knew that Hazle objected to participation in the Empire program because he was an atheist. They decided to have Hazle returned to prison.
Later that day, Crofoot arrested Hazle, and placed him in Shasta County Jail. After Hazle's arrest, Crofoot called CRC (the state prison in Norco) and requested that Hazle be returned to their custody. Crofoot obtained an oral order of return authorized by Deputy Commissioner Richard Jallins. Hazle was subsequently incarcerated for over 100 additional days, most of which he spent at the state prison in Norco.
While in prison, Hazle received a response regarding his parolee appeal, stating that the Civil Addict Program required that he complete an inpatient program. It also stated:
It would behoove you to take advantage of the tools that are offered to you to help you with your addiction, behavior, and adjustment to society. Per your Agent of Record, Mr. Crofoot, he has made attempts to locate treatment facilities to accommodate your preference, per Mr. Crofoot, Empire Recovery was the best suited for you. Your negative behavior toward staff caused you to be discharged from that program leaving your Agent of Record no other choice but to return you to CRC for further treatment. Therefore, your request is denied.
Subsequent to Hazle's filing his complaint, the CDCR issued a directive in *989 response to our decision in Inouye v. Kemna, 504 F.3d 705 (9th Cir.2007), stating that parolees could not be compelled to attend a religion-based program if they refuse to participate in such a program for religious reasons. The directive requires that such parolees instead "be referred to an alternative nonreligious program."
C. Procedural History
Hazle filed a complaint seeking damages and injunctive relief and alleging two causes of action: a claim under 42 U.S.C. § 1983 for violation of his First Amendment rights, and a taxpayer injunction claim under California state law. Specifically, the complaint alleged that Hazle's rights under the First Amendment's Establishment Clause were violated when (1) he was required to participate in a 12-step program as a condition of his parole, (2) his

requests to fulfill parole through a secular program were rejected, and (3) his parole was revoked, and he was incarcerated, when he refused to participate in the 12-step program. Hazle sought compensatory damages — both for emotional distress and for his loss of liberty in having been reincarcerated — as well as punitive damages.
Hazle subsequently moved for partial summary judgment against the state defendants (Crofoot, Wilding, and Jallins), seeking to establish their liability on his section 1983 claim for "violat[ing] [his] rights under the Establishment Clause ... by requiring him ... to continue participating in a `12-step' drug rehabilitation program that contained religious components." The district judge granted Hazle's motion. Notably, the district judge rejected the state's argument that it was Hazle's own behavior that had resulted in his being removed from the Empire program, concluding that "[t]his argument rings hollow in light of the undisputed facts showing that Plaintiff was only `disruptive' in the program `in a congenial way.'"
In the same order, the district judge granted summary judgment in favor of Westcare on Hazle's section 1983 claim against it. The district judge held that Hazle had not established the necessary causal connection between Westcare's actions and the violation of his rights, and therefore could not prevail on this claim. The district judge did not address the issue of whether Westcare was a state actor for purposes of section 1983 liability.
The district judge also granted both Westcare and the state defendants summary judgment on Hazle's state law claim for injunctive relief, holding that this claim was moot in light of the state's directive requiring that individuals who object to religion-based treatment programs be placed in non-religious programs.
The court held a two-day jury trial on the issue of damages. Prior to the opening statements, the jury was read a number of stipulated facts, including facts regarding the condition of California prisons. The district judge also gave the jury notice of his prior finding regarding the liability of the state defendants. At trial, the state defendants in Hazle's section 1983 claim — Crofoot, Wilding, and Jallins — all testified, as did Hazle himself. On the second day of trial, after closing arguments, the jury was charged.
The parties had submitted proposed jury instructions and verdict forms following a pre-trial conference. Before the jury was charged, the parties and the district judge extensively discussed the jury instructions and verdict form. Because the state defendants had testified at trial that they did not have the authority to change Hazle's conditions of parole, the district judge began to inquire about the liability of state employees other than the state defendants named in this case. He eventually *990 gave jury instructions and approved a jury verdict form that adopted defendants' proposal that the jury decide whether defendants were jointly

and severally liable, or whether damages should be apportioned among the defendants (and, if the latter, instructing the jury to apportion damages).
The day after it was charged, the jury delivered a note to the district judge requesting "[v]erification of the Court's determination of a guilty verdict having been rendered against the Defendants for violation of the Plaintiff's constitutional rights." The jury further expressed its confusion regarding "whether the Defendants are the only parties who have been found in violation of the Plaintiff's rights." After extended argument, the district judge gave a supplemental instruction to the jury noting that defendants "are the only state employees who have been sued for damages and have been found liable."
Later that day, the jury returned a verdict finding that the defendants were not jointly and severally liable for either the emotional distress damages or the loss of liberty damages, and awarding Hazle zero damages from every defendant as to both sets of damages (both emotional distress and loss of liberty). Judgment was entered "in accordance with the jury verdict."
Hazle filed a timely motion for a new trial under Federal Rule of Civil Procedure 59(a). The motion contended, inter alia, that the jury erred in awarding zero damages, in that the jury's failure to award compensatory — or at least nominal — damages on his loss of liberty claim was contrary to law and the weight of the evidence.[4] The district judge denied Hazle's motion for a new trial on two independent grounds. First, he ruled that Hazle had waived any objection to the verdict by failing to object before the jury was discharged. Second, he concluded, citing the jury's finding that damages could be apportioned among the defendants, that the jury's verdict was consistent with "the jury... not find[ing] any defendant was a cause of any of Hazle's injuries." We have jurisdiction over Hazle's timely filed appeal pursuant to 28 U.S.C. § 1291.
D. Standard of Review
We review de novo the district judge's decision to grant summary judgment to determine whether there are any genuine issues of material fact and whether the district judge correctly applied the substantive law. Burlington Ins. Co. v. Oceanic Design & Constr., Inc., 383 F.3d 940, 944 (9th Cir.2004). We also review de novo whether a jury instruction misstates the law. See Wall Data Inc. v. Los Angeles Cnty. Sheriff's Dep't, 447 F.3d 769, 784 (9th Cir.2006). We review for abuse of discretion the district judge's decision to deny a motion for a new trial. United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir.2009). In such review, "we first look to whether the trial court identified and applied the correct legal

rule to the relief requested. Second, we look to whether the trial court's resolution of the motion resulted from a factual finding that was illogical, implausible, or without support in inferences that may be drawn from the facts in the record." Id.
II. Hazle's Motion for a New Trial
We first address Hazle's motion for a new trial based on the jury's failure to award him damages for his loss of liberty. *991 We hold, as a matter of law, that Hazle was entitled to compensatory damages from the state defendants for his unlawful term of imprisonment. We therefore reverse the denial of a new trial, and remand on the issue of damages.
A.
As an initial matter, we hold that the district judge erred in concluding that Hazle waived his challenge to the jury's verdict awarding him zero damages by failing to object at the time the jury was discharged. The state defendants argue, citing our decision in Philippine Nat'l Oil Co. v. Garrett Corp., that a party must object to a jury's zero-damages verdict "when the verdict [is] read," or else waive any objection to the verdict. 724 F.2d 803, 806 (9th Cir.1984). Our decision in Kode v. Carlson, however, clarified that the rule in Philippine National applies only in those circumstances in which the verdict is "internally inconsistent" — as when, for example, the jury decides both the issues of liability and damages, and does so inconsistently. 596 F.3d 608, 611 (9th Cir.2010). As we held in Kode, when a jury addresses solely the issue of damages, there is no duty to object that the verdict is inconsistent with a finding of liability before the jury is discharged. The jury's verdict in such a case is not inconsistent with another of its conclusions. Id. It is, at most, inconsistent with an extrinsic legal conclusion made by another (here, the district judge). Id. The state defendants offer no reason why Kode should not govern this case, and we accordingly reverse the district judge's determination that Hazle waived his objection to the jury's zerodamages verdict.[5]
B.
We now turn to the question raised by Hazle's new-trial motion: whether Hazle is entitled to compensatory damages from the state defendants.[6] We hold that he is. The district judge's finding of liability establishes that Hazle suffered actual injury when he was unconstitutionally incarcerated. Given this undisputed finding that Hazle's constitutional rights were violated, and applying the rule that the award of compensatory damages is mandatory *992 when the existence of actual injury is beyond dispute, we hold that the

district judge erred in refusing to hold that Hazle was, as a matter of law, entitled to compensatory damages. We therefore reverse the district judge's denial of Hazle's motion for a new trial.
The Supreme Court has held that entitlement to compensatory damages in a civil rights action is not a matter of discretion: "Compensatory damages ... are mandatory; once liability is found, the jury is required to award compensatory damages in an amount appropriate to compensate the plaintiff for his loss." Smith v. Wade, 461 U.S. 30, 52, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983) (emphasis added). Consistent with Smith, when a plaintiff has indisputably suffered an actual injury in a case such as this, an award of compensatory damages is mandatory. The state defendants suggest that we are bound to affirm the district judge's decision under cases such as Philippine National, in which we addressed the conflict between a jury's simultaneous finding of liability and its decision to award no damages, and held that the "failure to award damages does not by itself render a verdict invalid." See 724 F.2d at 806; see also, e.g., Guy v. City of San Diego,608 F.3d 582, 588 (9th Cir. 2010) (affirming an award of only nominal damages). In the cases in which we have upheld zero-damages verdicts, however, we have explicitly noted that the facts of those cases lent themselves to the conclusion that no actual injury had been suffered by the plaintiff. See Guy, 608 F.3d at 588(noting that the jury could have discredited the plaintiff's testimony of injury, given that it had discredited some of his other testimony); Wilks v. Reyes, 5 F.3d 412, 415 (9th Cir.1993) (reasoning that the jury reasonably "did not believe Wilks suffered injury"); Philippine Nat'l, 724 F.2d at 806 ("[T]he evidence about the damages that PNOC sustained from [defendant's] misrepresentations was in conflict. The jury could have found that PNOC sustained no damage from any misrepresentations."). We are aware of no cases in which we have affirmed a zero-damages verdict when, as here, the existence of actual injury was indisputable.
In this case, the fact that state defendants' unconstitutional conduct caused Hazle to suffer actual injury — namely, being imprisoned in violation of his First Amendment rights — was established as a matter of law. The district judge found that the state defendants were liable for the constitutional violations in his grant of partial summary judgment. As the district judge explained to the jury, "I decided in a pretrial ruling that each defendant violated plaintiff's First Amendment Establishment Clause right by ... arresting and incarcerating plaintiff because of [his] failure to participate in the program" (emphasis added). Further, the parties stipulated, in facts read to the jury, that Hazle's period of reincarceration lasted from April 2007 until July 2007. Thus, it is not the failure to award damages, "by itself," that renders the jury's verdict invalid. Philippine Nat'l, 724 F.2d at 806. What renders the jury's

decision invalid is its decision to award zero damages in light of proof of actual injury: Hazle's unlawful imprisonment because of his exercise of his First Amendment rights.
We are not alone in so concluding. As the Second Circuit has held, "where the jury has found a constitutional violation and there is no genuine dispute that the violation resulted in some [actual] injury to plaintiff, the plaintiff is entitled to an award of compensatory damages as a matter of law." Kerman v. City of New York,374 F.3d 93, 124 (2d Cir.2004). Kerman involved a plaintiff whose Fourth Amendment rights were violated when he was *993 handcuffed and detained for psychiatric evaluation. The Second Circuit held that its rule regarding compensatory damages applied with particular force to claims for loss of liberty, noting that "where the plaintiff was indisputably deprived of his liberty" and the underlying conduct is unlawful, the plaintiff is entitled to "compensatory, not merely nominal, damages." Id. The court stated that such treatment was consistent with the traditional common-law principles governing entitlement to damages for the tort of false imprisonment. Id. at 125.
The Second Circuit's holding is consistent with decisions by other circuits rejecting awards of merely nominal damages for unlawful conduct resulting in the loss of liberty. The Eleventh Circuit, for example, rejected an award of merely nominal damages to a juvenile who was unlawfully placed in solitary confinement, and held that the plaintiff was entitled to compensatory damages. H.C. ex rel. Hewett v. Jarrard, 786 F.2d 1080, 1087-88 (11th Cir. 1986). The Eighth Circuit held that a $1 award was "patently insufficient to compensate [a plaintiff] for the injury he suffered by being placed in segregation in retaliation for exercising a constitutional right."Trobaugh v. Hall, 176 F.3d 1087, 1088-89 (8th Cir.1999). The court instead remanded for an award of damages for each day that the plaintiff spent in administrative segregation. Id. at 1089. Here, Hazle is entitled to an award of compensatory damages for each day that he spent in prison as a result of the violation of his constitutional rights by the state defendants.
The jury's verdict, which awarded Hazle no compensatory damages at all for his loss of liberty, cannot be upheld. Given the indisputable fact of actual injury resulting from Hazle's unconstitutional imprisonment, and the district judge's finding that the state defendants were liable for that injury, an award of compensatory damages was mandatory. The jury simply was not entitled to refuse to award any damages for Hazle's undisputable — and undisputed — loss of liberty, and its verdict to the contrary must be rejected.

C.
The jury's verdict is no less invalid simply because there were additional persons who were potentially liable for Hazle's injuries, but who were not before the court. The state defendants suggest that the jury's verdict may be explained as reflecting its allocation of liability to potential defendants not named in the complaint. In denying Hazle's motion for a new trial, the district judge rationalized the jury's zero-damages verdict in this manner, noting that the jury "likely concluded that no defendant was a cause of any injury Hazle received or suffered as a result of his Establishment Clause claim." The district judge went on to identify at least one absent party that he presumably concluded had caused Hazle's injuries, noting, "it is undisputed that the Board of Prison Hearings ordered Hazle to participate in the Empire program."
We reject this contention by the state defendants, as well as the judge's speculation. To the extent that the jury's verdict attempted to apportion all liability for Hazle's injuries to absent parties, it acted contrary to the district judge's order finding the state defendants liable. A finding of liability in a civil rights action — such as the one the district judge entered against the state defendants — requires, as a matter of law, that the defendant be the "proximate cause of the section 1983 injury." Van Ort v. Estate of Stanewich, 92 F.3d 831, 837 (9th Cir.1996). Thus, the district judge's finding of liability — which he left undisturbed and is not challenged *994 on appeal — establishes as a matter of law that the state defendants in the trial caused Hazle's constitutional injury when they incarcerated him for exercising his First Amendment rights. Indeed, the district judge stated as much — that the actions of the state defendants had caused Hazle's imprisonment — when, in his order granting Hazle's motion for partial summary judgment, he concluded that they were "liable for violating [Hazle's] Establishment Clause rights by ... `arresting and incarcerating him based on his resistance'" to participation "in a `12-step' program that contained religious components." This finding of liability is based on ample support in the record.[7] To the extent that any of the state defendants wished to contest whether they were the "proximate cause" of Hazle's alleged injuries, they had ample opportunity to raise that contention in response to his motion for summary judgment. They did not do so then and do not do so now. As a result, the district judge's finding is now the law of the case. See United States v. Alexander, 106 F.3d 874, 876 (9th Cir.1997).[8] The district judge's liability finding, as well as the resultant instruction, simply left no room for the jury to infer that all of Hazle's damages had been caused by persons other than the state defendants.
In any event, the state defendants' explanation of the jury's zero-damages award as allocating all of Hazle's injury to absent persons reflects the erroneous view that not only

could zero damages be awarded to Hazle, but that Hazle's damages were capable of apportionment. Hazle independently challenges the jury instruction and verdict form that allowed the jury to decide this question, contending that the district judge should have concluded, as a matter of law, that Hazle was entitled to compensatory damages and that defendants were jointly and severally liable for his injuries.[9] He is correct. The *995 district judge erred in putting the question of apportionment to the jury in the first place, because the question of whether an injury is capable of apportionment is a legal one to be decided by the judge, not the jury. See United States v. Burlington N. & Santa Fe Ry. Co., 520 F.3d 918, 942 (9th Cir.2008), rev'd on other grounds, 556 U.S. 599, 129 S.Ct. 1870, 173 L.Ed.2d 812 (2009). Further, Hazle's injury from his term of unlawful imprisonment — as well as any resultant emotional distress — was clearly indivisible, in that the concurrent actions of all defendants were necessary in order to return Hazle to prison. See Rudelson v. United States, 602 F.2d 1326, 1332 (9th Cir.1979) (an injury is indivisible when, "[h]ad any one of the defendants exercised due care, none of the injuries would have occurred"); see also The Atlas, 93 U.S. (3 Otto) 302, 306, 23 L.Ed. 863 (1876) ("The common law creates a joint and several liability ... because by a single and forcible act, which would not have happened except by the concurring negligence of the two parties, an injury has been done to an innocent party."). Defendants Crofoot and Wilding, two of the three defendants named in this claim, together decided to report Hazle for a parole violation because he failed to participate in the 12-step program, as well as to return him to prison. Defendant Jallins, the third defendant, ratified their decision by issuing the order to return Hazle to prison. Had any one of them not acted, Hazle would not have been incarcerated.[10] Thus, the jury verdict cannot be upheld as apportioning liability to individuals not before it because the jury should not have been asked to apportion liability at all.
Thus we must reject the jury verdict as simply inconsistent with the district judge's order holding defendants liable for Hazle's false imprisonment. We therefore reverse the district judge's determination that Hazle was not entitled to a new trial for an award of compensatory damages for his loss of liberty.[11]
III. Summary Judgment as to Westcare
We now turn to Hazle's constitutional claim against Westcare. The district judge granted summary judgment to Westcare on the ground that Hazle had failed to introduce any facts tending to support the conclusion that Westcare was a proximate cause of his injuries, holding that Hazle "cannot establish a causal connection between Westcare's alleged acts and the violation of [Plaintiff's] rights." We hold that, when the facts are taken in *996 the light most favorable to Hazle, a genuine issue of material fact exists as to whether

Westcare's actions causally contributed to the violation of Hazle's constitutional rights. We thus reverse the grant of summary judgment in Westcare's favor with regard to Hazle's section 1983 claim.
One of Hazle's allegations was that he suffered harm as a result of Westcare's unconstitutional conduct in "requiring him... to participate in a `12-step' program that contains substantial religious components." Further, Hazle alleged that this constitutional violation occurred, at least in part, because Westcare had a policy or custom of "failing to provide [parolees] with secular or non-religious alternatives for post-release treatment." This is the manner in which, according to the record, Westcare contributed to the violation of Hazle's constitutional rights. It is undisputed that Westcare was the regional Substance Abuse Services Coordination Agency in the relevant part of California, and that, in that capacity, Westcare "contracts with the State of California to create a network of treatment facilities for parolees with drug-related convictions, and coordinates with the State to place parolees in these programs." Westcare concedes that it does not have in its network any facilities that provide non-religious treatment options; rather, Westcare admits that it "continues to contract solely with residential providers that use the 12-step program `in some form or fashion.'"
We think it obvious that a foreseeable result of Westcare's actions in providing only religionbased programs for parolees is that some California prisoners will be required to submit to religious treatment programs despite their objections. Our case law requires no more to establish proximate causation. In Crowe v. Cnty. of San Diego, for example, we found police officers to be the proximate cause of aMiranda violation, even though they did not commit the ultimate act that completed the constitutional violation. 608 F.3d 406, 430-31 (9th Cir.2010). We held that liability for a constitutional violation requires only that the defendant "`set[] in motion a series of acts by others which the [defendant] knows or reasonably should know would cause others to inflict the constitutional injury.'" Id. at 430 (quoting Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978)).
Our conclusion is buttressed by our 2007 holding in Inouye, in which we concluded that a parolee's right to be free from coerced participation in a religious treatment program was a matter of "uncommonly well-settled case law" that was "enough for us to hold that the law was clearly established, sufficient to give notice to a reasonable parole officer, in 2001." 504 F.3d at 716. Inouye leaves little room for Westcare to argue that constitutional injuries of the sort suffered by Hazle were not a foreseeable result of its actions.
Westcare suggests that, standing alone, its failure to provide Hazle a non-religious alternative was not sufficient to hold it liable for violating his constitutional rights. It argues

that it had no part in the decision to assign Hazle to a Westcare facility — the decision that, Westcare contends, was the true cause of Hazle's constitutional violation. To the extent that Westcare suggests that the state should have known and accommodated the fact that all of Westcare's treatment facilities would violate the First Amendment rights of non-religious parolees, we are doubtful that such an argument may serve as a defense to liability, particularly given Westcare's special role as the state-contracted Substance Abuse Services Coordination Agency for the region involved. It appears from the record that there were no other entities that provided the service that Westcare *997 did in the region of California that it served under its contract with the state. It also appears that state officials were not free, either before or after Hazle arrived at one of the facilities in Westcare's network, to place him in a treatment facility outside Westcare's network. Westcare itself concedes that it "coordinates with the State to place parolees in" the Westcare network of treatment programs, all of which are religion based. We thus find that Hazle has, at least, created a genuine issue of material fact as to whether Westcare's policy of contracting solely with religious facilities was a proximate cause of his constitutional injuries.[12]
In any event, Hazle has grounds other than Westcare's policy of contracting exclusively with religious facilities that create a triable issue of fact regarding whether Westcare caused his constitutional injury. Viewed in the light most favorable to Hazle, Westcare was intimately involved in the process that led Hazle to be placed in a religion-based facility. A declaration provided by Hazle describes Westcare's involvement in selecting a treatment facility for him: "Prior to my release on parole, I had notified correctional authorities and representatives of Westcare California, Inc. ("Westcare") of my Atheism, and requested placement in a treatment facility that did not contain religious components. In response, a Westcare representative told me I should ask to be assigned to Empire." This is consistent with Westcare's own admissions, which suggest that it has a significant role in determining the treatment facility to which parolees will be assigned. Westcare stated that it "finds available programs that meet the parolee's parole term conditions and relays such information to the transitional coordinator inside the prison." It further stated that "if the parolee does not already have a specific provider request, Westcare will provide the name(s) of available providers to the transitional coordinator to relay to the parolee. In the case of CDCR Norco, [the prison in which Hazle was incarcerated,] Westcare coordinators discuss available treatment facilities with transitional coordinators who work for Mental Health Systems, Inc., within the prison." Westcare's own records regarding Hazle confirm that he met with a Westcare representative numerous times before he was released from prison and specifically "discussed aftercare and relapse prevention." Thus, Westcare's suggestion that it had no part in forming the conditions of Hazle's parole is contradicted by the record, which, viewed in the light most favorable to Hazle, supports an inference that Westcare was

responsible for Hazle's being referred to the religious treatment facility where his First Amendment rights were violated.
We thus find that, when the evidence is taken in the light most favorable to Hazle, a genuine issue of material fact exists as to whether Westcare's actions constituted a *998 proximate cause of the violation of Hazle's constitutional rights when it (1) contracted only with treatment facilities offering solely religious based programs or services, and (2) counseled and arranged for Hazle to attend a religion-based facility as a part of his state-imposed parole program, despite having been informed that he was an atheist and that he objected to such religious programming. We accordingly reverse the district judge's grant of summary judgment to Westcare, and remand for further proceedings.[13]
IV. Hazle's Claim for Injunctive Relief
Finally, we address Hazle's claim for injunctive relief under California Civil Procedure Code § 526a. That statute provides a cause of action to taxpayers to enjoin any state agency or a local government entity from carrying on any unlawful actions. See Cates v. Cal. Gambling Control Comm'n, 154 Cal.App.4th 1302, 65 Cal. Rptr.3d 513, 518 (2007). In his claim for injunctive relief, Hazle alleged, consistent with the allegations in his § 1983 claims, that the state defendants in their official capacities, including the Secretary of the CDCR, continue to violate the First Amendment by requiring parolees to participate in religious treatment programs in order to be eligible for parole, failing to provide parolees with secular or nonreligious treatment alternatives, and revoking the parole of those who protest or resist participation in religion-based treatment programs. Hazle sought an injunction under the statute preventing both Westcare and the aforementioned state defendants from expending state funds in this unconstitutional manner.
The district judge held that Hazle's state law claim for injunctive relief was moot in light of developments that followed our 2007 decision in Inouye. Specifically, in November 2008, and in a direct response to Inouye, the state CDCR issued a directive stating that parole agents "shall not require that a parolee attend AA, NA, or any other religious based program if the parolee refuses to participate in such a program for religious reasons." The directive required that an objecting parolee instead "be referred to an alternative nonreligious program." The district judge concluded that, "absent any indication that [this directive] was promulgated only in response to ongoing litigation," it was "sufficient to render the request for an injunction moot," and therefore granted summary judgment to all defendants on that claim.

The district judge erred in concluding that Hazle's state law claim for injunctive relief was moot. We do not mean to cast doubt on our prior holding that a defendant may overcome the "heavy burden of proving that the challenged conduct cannot reasonably be expected to recur" with an official "memorandum represent[ing] a permanent change" in policy that is "broad in scope and unequivocal in tone" and "fully supportive" of the relevant constitutional rights.White v. Lee, 227 F.3d 1214, 1243-44 (9th Cir.2000). Here, however, there is undisputed evidence that the CDCR directive has not been implemented in any meaningful fashion, at least with respect to Westcare.[14] The record *999 discloses that defendant Westcare conceded the following facts:
38. Westcare did not receive a copy of [the CDCR] directive until it was produced in discovery in this action. 39. Westcare does not know what the term "alternative nonreligious program" as used in the Directive means. 40. The Directive has not altered the way in which Westcare conducts business. 41. To date, Westcare continues to contract solely with residential providers that use the 12step program "in some form or fashion."
Further, Westcare's Senior Vice President provided a declaration, issued fully a year after the CDCR's directive, stating, "[t]here is no requirement by CDCR, that I am aware of, that requires Westcare to contract with a certain minimum number of non-religious or non-`12step' treatment programs." These facts establish that, notwithstanding the state's directive, the defendants do not appear to have taken any concrete steps to prevent other parolees from suffering the same constitutional violations Hazle suffered. Under these circumstances, it is far from "`absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur,'" as is required to demonstrate that a case has been mooted by a defendant's voluntary conduct. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (quoting United States v. Concentrated Phosphate Export Ass'n, 393 U.S. 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968)). Accordingly, we reverse the district judge's entry of summary judgment to defendants, and remand for further consideration of Hazle's claim for injunctive relief.[15]
V. Conclusion
For the reasons stated above, we hold that the jury verdict awarding Hazle no compensatory damages is contrary to law, reverse the district judge's denial of Hazle's motion for a new trial, and remand for a new trial as to his loss of liberty damages. The jury

shall be instructed that liability is joint and several and that Hazle is entitled to compensatory damages. We also hold that Hazle is entitled to a new trial as to his emotional distress damages as a result of the district judge's erroneous jury instruction and verdict form.
In addition, we reverse the district judge's grant of summary judgment to Westcare on Hazle's section 1983 claim, as well as its holding that Hazle's state law claim for injunctive relief was moot. We remand both of these issues for further consideration.[16]
REVERSED AND REMANDED.
[1] Hazle's lawsuit names two additional state defendants, Matthew Cate and Scott Kernan, the Secretary and Chief Deputy Secretary (respectively) of the CDCR's Division of Adult Parole Operations, whom he alleges are responsible for setting and enforcing policies relating to parole. Cate and Kernan are named as defendants only in Hazle's state law claim for injunctive relief.
[2] Hazle alleges that Westcare was a state actor for the purposes of this lawsuit. As we discuss below, we do not resolve this contention.
[3] A California Court of Appeal later ruled that this first period of incarceration was improper. SeePeople v. Hazle, 157 Cal.App.4th 567, 69 Cal.Rptr.3d 16 (2007). No party contends that this ruling affects Hazle's claims here.
[4] Hazle also contended that defendants' testimony at trial regarding their alleged lack of authority to change the terms and conditions of Hazle's parole was false. As we describe below, we do not reach this issue.
[5] The state defendants also urge that Hazle waived his challenge to the jury's zero-damages verdict when he stipulated that "the parties have not agreed to or stipulated to either the existence or the extent of any emotional distress related injuries suffered by Mr. Hazle" and that the issue was a question of fact for the jury. This contention is frivolous. The stipulation says nothing about Hazle's entitlement to damages arising from his loss of liberty, which are distinct from emotional distress damages, and which are the only type of compensatory damages that he contends the jury was required to award as a matter of law.
[6] Contrary to the state defendants' contentions, it should have been obvious that Hazle was entitled to at least an award of nominal damages as a result of the district judge's finding that the state defendants violated his constitutional rights. The Supreme Court has explicitly held that when a defendant is found to have violated an individual's right to procedural due process, the plaintiff is "entitled to recover nominal damages," even "without proof of actual injury." Carey v. Piphus, 435 U.S. 247, 266-67, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). Our circuit's case law makes clear that "neither the judge nor the jury has any discretion in this matter," and that the rule entitling a plaintiff to nominal damages applies with equal force to violations of substantive constitutional rights. Floyd v. Laws, 929 F.2d 1390, 1402 (9th Cir.1991); see also Schneider v. Cnty. of San Diego, 285 F.3d 784, 794-95 (9th Cir.2002). Nominal damages must be awarded in cases in which the plaintiff is not entitled to compensatory damages, such as cases in which no actual injury is incurred or can be proven. Here, however, there was actual injury and thus Hazle was entitled to compensatory damages. See discussion section II.B, infra.
[7] Crofoot, Hazle's parole officer, along with his supervisor, Wilding, made the decision to report Hazle for a parole violation when he refused to participate in the religion-based treatment program, and decided to have him returned to prison. Jallins ratified their recommendation to return Hazle to prison for the violation of his parole by actually issuing the order to do so.
[8] When, at trial, the state defendants argued that they might move to reconsider the order granting Hazle summary judgment, the district judge expressed surprise that they would wait until after a jury had been empaneled and read an instruction regarding liability. Ultimately, however, the state defendants never moved for reconsideration of the district judge's ruling and they do not now appeal the district judge's summary judgment order.

The state defendants did raise in response to the motion for summary judgment an entirely separateissue related to causation. Specifically, they argued that Hazle had been removed from parole not because of his refusal to participate in the program, but because he was disruptive. The district judge rejected this contention, and the state defendants neither moved to reconsider the district judge's grant of summary judgment nor filed an appeal challenging that holding.
[9] We reject the state defendants' numerous contentions of waiver as to this issue. The state defendants err in contending that Hazle was required to object to this instruction or verdict form when the district judge presented a draft of the instructions and verdict form to the parties; Hazle had adequately informed the court of his position numerous times (both in his proposed jury instructions and verdict form and in three pre-trial briefs), and the district judge stated at trial that he was aware of Hazle's request that the jury be instructed that there was joint and several liability. See Glover v. BIC Corp., 6 F.3d 1318, 1326-27 (9th Cir.1993) (requiring no "futile formal objection" when written submissions made the trial judge "fully aware" of the party's objection). Further, we reject the state defendants' argument that Hazle explicitly waived this issue during a hearing as a misreading of the record. Finally, we reject the state defendants' argument that Hazle was required to assert the error arising from the jury verdict and instructions in his motion for a new trial. See United States v. Hayashi,282 F.2d 599, 601 (9th Cir. 1960).
[10] We also reject the suggestion by the state defendants that the language of the jury instructions permitted the jury to second-guess the district judge's finding that the state defendants had caused Hazle's injuries because they asked the jury to identify the amount of damages "caused" by the defendants. The instructions simply limited the damages for which the state defendants were responsible to those that could reasonably be attributed to them individually — a seemingly necessary limitation in every damages instruction, unless there is joint and several liability.
[11] Because we reject the jury instruction and verdict form permitting the jury to apportion liability — an error that also affected the jury's decision to award zero damages on Hazle's emotional distress claim — we remand for a new trial as to those damages as well. Further, because the jury failed to award compensatory or even nominal damages, it was necessarily unable to award punitive damages. We therefore remand for reconsideration of Hazle's entitlement to punitive damages. We reiterate that Hazle does not assert that the jury was required, as a matter of law, to award either type of damages on the emotional distress claim, and, as a result, we do not reach that question here.
[12] Westcare in fact "acknowledges its obligation to ensure that the residential facilities it contracts with do not require [parolee] participants to attend religious events or participate in religious events." Indeed, its standard contract specifically forbids the treatment facilities it contracts with from requiring parolees to "attend religious events or participate in religious activities." The actual cause of Westcare's potential constitutional violation appears to be its too-narrow construction of the word "religious," in that it "interprets the word `religious' in its contractual provision to mean `attending church or prayer services' and does not consider the 12-step process to be `religious.'" We cannot explain its continued adherence to this position in light of our decision in Inouye that "reverence for `a higher power' is a substantial component of the AA/NA program" and that forced participation in such 12-step programs "strikes at the core of the Establishment Clause of the First Amendment." 504 F.3d at 712.
[13] Because the question whether Westcare, given its role as the Substance Abuse Services Coordination Agency, is a state actor for purposes of section 1983 liability is not before us, we decline to provide a definitive answer in the first instance on the basis of the limited record before us. We remand for a determination on a more complete record.
[14] Because the district judge granted summary judgment on this claim to the state defendants "for the reasons stated in the Court's [prior] order granting partial summary judgment in favor of Westcare," our decision as to Westcare's motion for summary judgment is equally applicable to both sets of defendants.
[15] We reject the state defendants' arguments that we should affirm the district judge's grant of summary judgment on an alternative basis — namely, that Hazle lacks statutory standing as a taxpayer. The district judge did not address this basis for the state defendants' summary judgment motion, and the parties — then operating under the district judge's already-dispositive ruling, in response to Westcare's motion, that this claim was moot — understandably did not develop a record upon which to decide it. We decline to do so in the first instance. See S & N Equip. Co. v. Casa Grande Cotton Fin. Co., 97 F.3d 337, 345 (9th Cir.1996).
[16] Given our disposition, we need not reach the other issues Hazle raises on appeal, including his alternative ground for a new trial motion, or his assertion that the district judge gave an improper supplemental jury instruction.