Case 2:05-cv-00440-DAD Document 58 Filed 09/28/2006 Page 1 of 33

1

2

3

4

5

6

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

11 JESUS CHRIST PRISON MINISTRY, et al.,
12 Plaintiffs,
13 v.
14 CALIFORNIA DEPARTMENT OF
15 CORRECTIONS, et al.,

No. CIV.S-05-0440 DAD ORDER

16

Defendants.

__________________________/

17

18

Upon consent of the parties, this action has been assigned

19 to the undersigned for all proceedings. See 28 U.S.C. § 636(c). It

20 is before the court on the parties’ cross-motions for summary

21 judgment. For the reasons explained below, those motions will be

22 granted in part and denied in part.

23

BACKGROUND

24

Plaintiffs initiated this civil rights action by filing

25 their verified complaint on March 3, 2005. The named plaintiffs are

26 Jesus Christ Prison Ministry (“JCPM”) and state prisoners Daniel

1

Case 2:05-cv-00440-DAD Document 58 Filed 09/28/2006 Page 2 of 33

1 Leffel, Marvin Salinas, and Daniel Marchy. The named defendants are

2 the California Department of Corrections (now the California

3 Department of Corrections and Rehabilitation (“CDCR”)); Jeane S.

4 Woodford (Director of CDCR); and Derral G. Adams (Warden of

5 California State Substance Abuse Treatment Facility (“SATF”) in

6 Corcoran, California).

7

The verified complaint contains three causes of action.

8 The first cause of action is brought only by the prisoner plaintiffs

9 against all defendants. It alleges that SATF’s policy prohibiting

10 the sending of free softbound, Christian literature, compact discs

11 and tapes to prisoners who have requested those materials violates

12 the Religious Land Use and Institutionalized Persons Act of 2000

13 (“RLUIPA”).

14

The second cause of action is brought by plaintiff JCPM and

15 the plaintiff prisoners against all defendants. It alleges that

16 defendants’ actions deprive both JCPM and the prisoners of the free

17 exercise of religion in violation of the First and Fourteenth

18 Amendments.

19

The third cause of action is brought by JCPM and the

20 prisoners against all defendants. It alleges that defendants’

21 actions deprive JCPM and the prisoners of their right to free speech

22 in violation of the First and Fourteenth Amendments.

23

The complaint prays for injunctive relief, declaratory

24 relief, nominal damages and reasonable attorney fees and costs.

25 However, plaintiffs withdrew their request for nominal damages at the

26 hearing on the cross-motions for summary judgment.

2

Case 2:05-cv-00440-DAD Document 58 Filed 09/28/2006 Page 3 of 33

1

After settlement negotiations proved unsuccessful, the

2 parties were directed to file cross-motions for summary judgment.

3 Those motions came on for hearing on April 21, 2006. Kevin T. Snider

4 of the Pacific Justice Institute appeared on behalf of plaintiffs.

5 John W. Riches, II, Deputy Attorney General, appeared on behalf of

6 defendants.

7

LEGAL STANDARDS

8

Summary judgment is appropriate when it is demonstrated

9 that there exists no genuine issue as to any material fact, and that

10 the moving party is entitled to judgment as a matter of law. Fed. R.

11 Civ. P. 56(c); see also Adickes v. S.H. Kress & Co., 398 U.S. 144,

12 157 (1970); Owen v. Local No. 169, 971 F.2d 347, 355 (9th Cir. 1992).

13

The party moving for summary judgment

always bears the initial responsibility of

14

informing the district court of the basis for its

motion, and identifying those portions of "the

15

pleadings, depositions, answers to

interrogatories, and admissions on file, together

16

with the affidavits, if any," which it believes

demonstrate the absence of a genuine issue of

17

material fact.

18 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

19

“[W]here the nonmoving party will bear the burden of proof

20 at trial on a dispositive issue, a summary judgment motion may

21 properly be made in reliance solely on the ‘pleadings, depositions,

22 answers to interrogatories, and admissions on file.’” Celotex Corp.,

23 477 U.S. at 323. Indeed, summary judgment should be entered, after

24 adequate time for discovery and upon motion, against a party who

25 fails to make a showing sufficient to establish the existence of an

26 element essential to that party’s case, and on which that party will

3

Case 2:05-cv-00440-DAD Document 58 Filed 09/28/2006 Page 4 of 33

1 bear the burden of proof at trial. See id. at 322. “[A] complete

2 failure of proof concerning an essential element of the nonmoving

3 party’s case necessarily renders all other facts immaterial.” Id.

4 In such a circumstance, summary judgment should be granted, “so long

5 as whatever is before the district court demonstrates that the

6 standard for entry of summary judgment, as set forth in Rule 56(c),

7 is satisfied.” Id. at 323.

8

If the moving party meets its initial responsibility, the

9 burden then shifts to the opposing party to establish that a genuine

10 issue as to any material fact actually does exist. Matsushita Elec.

11 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); see also

12 First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89

13 (1968); Ruffin v. County of Los Angeles, 607 F.2d 1276, 1280 (9th

14 Cir. 1979). The opposing party must demonstrate that the fact in

15 contention is material, i.e., a fact that might affect the outcome of

16 the suit under the governing law, and that the dispute is genuine,

17 i.e., the evidence is such that a reasonable jury could return a

18 verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc.,

19 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec.

20 Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). Thus, the

21 “purpose of summary judgment is to ‘pierce the pleadings and to

22 assess the proof in order to see whether there is a genuine need for

23 trial.’” Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e)

24 advisory committee’s note on 1963 amendments).

25

In resolving the summary judgment motion, the court

26 examines the pleadings, depositions, answers to interrogatories, and

4

Case 2:05-cv-00440-DAD Document 58 Filed 09/28/2006 Page 5 of 33

1 admissions on file, together with the affidavits, if any. Rule

2 56(c); see also SEC v. Seaboard Corp., 677 F.2d 1301, 1305-06 (9th

3 Cir. 1982). The evidence of the opposing party is to be believed,

4 Anderson, 477 U.S. at 255, and all reasonable inferences that may be

5 drawn from the facts placed before the court must be drawn in favor

6 of the opposing party. Matsushita, 475 U.S. at 587 (citing United

7 States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also United

8 States v. First Nat’l Bank of Circle, 652 F.2d 882, 887 (9th Cir.

9 1981). Nevertheless, inferences are not drawn out of the air, and it

10 is the opposing party's obligation to produce a factual predicate

11 from which the inference may be drawn. See Richards v. Nielsen

12 Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd,

13 810 F.2d 898, 902 (9th Cir. 1987).

14

Finally, “[a] scintilla of evidence or evidence that is

15 merely colorable or not significantly probative does not present a

16 genuine issue of material fact” precluding summary judgment. Addisu

17 v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). See also

18 Summers v. Teichert & Son, Inc., 127 F.3d 1150, 1152 (9th Cir. 1997).

19 On summary judgment the court is not to weigh the evidence or

20 determine the truth of the matters asserted but must only determine

21 whether there is a genuine issue of material fact that must be

22 resolved by trial. See Summers, 127 F.3d at 1152. Nonetheless, in

23 order for any factual dispute to be genuine, there must be enough

24 doubt for a reasonable trier of fact to find for the plaintiff in

25 order to defeat a defendant’s summary judgment motion. See Addisu,

26 198 F.3d at 1134.

5

Case 2:05-cv-00440-DAD Document 58 Filed 09/28/2006 Page 6 of 33

1

FACTS1

2

Plaintiff JCPM is a religious organization that provides

3 predominately softbound Christian literature, free of charge, to

4 incarcerated individuals in several states. These religious

5 materials are provided only to prisoners who specifically request

6 them. JCPM sends written materials to incarcerated persons based on

7 its sincerely held religious beliefs. Plaintiffs Daniel Leffel,

8 Marvin Salinas and Daniel Marchy are sincere adherents of the

9 Christian faith and are confined at SATF.

10

In accordance with their religious beliefs, plaintiffs

11 Leffel, Salinas and Marchy seek to reform their behavior and

12 attitudes through religious exercise. At the core of that religious

13 exercise is studying the Bible. Another important aspect of

14 plaintiffs’ exercise of their religion is worshiping and meditating

15 on God through music. To study the Bible, the plaintiff prisoners

16 need Christian literature that explains biblical theology, doctrine

17 and Christian concepts. To worship and meditate on God through

18 music, plaintiffs require compact discs and/or tape recordings of

19 Christian music.

20

To engage in this exercise of religion, the prisoners

21 correspond with charitable religious organizations offering spiritual

22 assistance through free study materials. The plaintiff prisoners are

23 indigent and thus unable to purchase Christian literature, tapes and

24 1 Unless otherwise noted, the facts set forth in this section
25 are the undisputed facts material to the disposition of the motions.
Many of these facts have been adopted from the parties’ statements of 26 undisputed facts.

6

Case 2:05-cv-00440-DAD Document 58 Filed 09/28/2006 Page 7 of 33

1 compact discs. The prisoners rely on charitable religious

2 organizations to send them free religious materials when requested in

3 writing. Those materials include softbound books, unbound study

4 guides and pamphlets as well as sermons and Christian music on audio

5 tapes and compact discs. The plaintiff prisoners sincerely believe

6 their religious exercise, through the regular use of such religious

7 materials, has encouraged their conformity with prison guidelines

8 regarding appropriate behavior.

9

While incarcerated at SATF, plaintiff Salinas was sent

10 softbound printed religious materials from JCPM free of charge.

11 Plaintiffs Leffel and Marchy were sent materials from other

12 ministries. Although plaintiffs had received these materials

13 previously, pursuant to a new policy instituted in March or April of

14 2004 at SATF, prison officials began denying plaintiffs these

15 religious materials because the literature was not sent from an

16 “approved vendor” and was thus considered contraband. (Defs.’

17 Statement of Undisp. Facts, Ex. E at 8.) In response to the decision

18 in Prison Legal News v. Lehman, 397 F.3d 692 (9th Cir. 2005), CDCR

19 Deputy Director Suzan L. Hubbard issued a memorandum on April 5, 2005

20 directing all institutions to process and permit incoming “non-

21 subscription bulk mail and catalogs” addressed to individual

22 prisoners. (Defs.’ Statement of Undisp. Facts, Ex. A, Attach. 3.)

23 Effective March 1, 2006, this policy implementation was changed yet

24 again. (Id. at Ex. A, Attach. 2 and Ex. B.) Thus, during the period

25 of time relevant to this action the policies at SATF with respect to

26 /////

7

Case 2:05-cv-00440-DAD Document 58 Filed 09/28/2006 Page 8 of 33

1 the processing of religious materials sent to the plaintiff prisoners

2 via the mail have changed three times.

3

Currently, and pursuant to the various policy changes noted

4 above, the manner of processing mail depends on which of three

5 categories the mail falls into. The first category is properly

6 addressed unbound study guides, pamphlets, and other religious

7 literature. This category of mail is no longer to be subject to the

8 approved vendor policy and is to be delivered directly to the

9 prisoner from the SATF mailroom.

10

The second category is softbound books (such as a Bible)

11 from a publisher, bookstore, or other organization which does mail

12 order business. The SATF mailroom considers plaintiff JCPM to be an

13 organization conducting a mail order business, although the term

14 “mail order business” has not been defined in connection with the

15 motions pending before the court. Upon receipt by the SATF mailroom,

16 properly addressed softbound books are to be forwarded to receiving

17 and release (“R&R”) for processing. The R&R softbound book

18 processing consists of opening and inspecting the package; entering

19 the contents of the package on the prisoner’s property inventory

20 card; and sending the package to the prisoner. This second category

21 of materials is also no longer intended to be subject to the approved

22 vendor policy.

23

The third category of mail consists of audio tapes and

24 compact discs. These materials remain subject to the approved vendor

25 policy. The details of the current approved vendor policy are set

26 /////

8

Case 2:05-cv-00440-DAD Document 58 Filed 09/28/2006 Page 9 of 33

1 forth in Operational Procedure 129 (“OP-129"), governing prisoner

2 mail at SATF. According to OP-129:

3

Inmates are allowed to receive religious

books/materials directly from authorized

4

religious vendors through Special Purchases or

through the quarterly packages by approved

5

vendors as listed in OP 201. All materials must

be sealed in the manufacturer’s wrapping and

6

accompanied with a purchasing order/invoice.

7 (Defs.’ Statement of Undisp. Facts, Ex. A, Attach. 2 at 5.) There

8 are only six approved vendors at SATF: Walkenhorst’s; Union Supply

9 Company, Inc.; Music by Mail; Access Company; Pack Central; and

10 Amazon.com. (Defs.’ Statement of Undisp. Facts, Ex. E at 8.) In

11 short, the approved vendor policy allows prisoners to receive tape

12 recordings and compact discs from only a handful of specifically

13 identified approved vendors and only so long as the materials are in

14 their original wrapping and are accompanied by a purchase receipt.

15 Once tape recordings and compact discs are received in the mailroom

16 from an approved vendor, they are forwarded to R&R and processed

17 accordingly. Plaintiff JCPM is not an approved vendor. It is a non-

18 profit religious organization that donates, rather than sells, its

19 materials which are not always unused. Therefore, its religious

20 materials do not come with a purchase order and they are not wrapped

21 in packaging.

22

Finally, tape recordings and compact discs with religious

23 content may also be donated to the institution, but not to prisoners

24 directly, pursuant to a gifts and donations operations procedure.

25 Under that procedure, a chaplain prepares an authorization form based

26 on information provided by the donor of the religious materials.

9

Case 2:05-cv-00440-DAD Document 58 Filed 09/28/2006 Page 10 of 33

1 Once the donation is approved, the donation will be accepted on

2 behalf of SATF. Upon delivery of the donation, it is subject to

3 review and inspection for safety and security purposes. Once the

4 donation has been reviewed and inspected, it is held and made

5 available to prisoners through the chaplain on a check out basis. A

6 prisoner may check out a donated item and keep it in his housing unit

7 for a specified period, usually two weeks. Donated materials are not

8 subject to the restrictions on the amount of property allowed in a

9 prisoner's cell because they are technically held by the chaplain.

10 If the donated item is an audio tape or compact disc that has been

11 removed from the manufacturer’s original packaging, the item will be

12 reviewed for content prior to being made available to prisoners. The

13 institution’s R&R officers are not involved in this donation process.

14

In sum, the undisputed facts establish that unbound study

15 guides, pamphlets, softbound books such as Bibles and other

16 literature sent by JCPM to SATF prisoners requesting those materials

17 are currently to be delivered to the prisoners following some sort of

18 inspection for safety purposes. Tape recordings and compact discs

19 sent to SATF prisoners are delivered following inspection only if

20 they are from one of the six approved vendors. Because JCPM is not

21 an approved vendor, and does not qualify as such under the policy, it

22 cannot send religious tape recordings and compact discs to the

23 plaintiff prisoners or to other prisoners at SATF.

24 /////

25 /////

26 /////

10

Case 2:05-cv-00440-DAD Document 58 Filed 09/28/2006 Page 11 of 33

1

ANALYSIS

2

I. Threshold Issues

3

Before turning to the merits of plaintiffs’ claims the

4 court must address a myriad of issues presented by the parties in the

5 pending motions. First, the scope of this action must be addressed.

6 It is clear that JCPM would prefer to determine its free exercise and

7 free speech rights in relation to SATF as well as every other CDCR

8 institution through this lawsuit. However, plaintiffs’ verified

9 complaint makes no mention of any other institution other than SATF.

10 The “Nature of Action” alleged at the outset of the complaint

11 mentions only SATF and its warden, Warden Adams. (Compl. at 2.) No

12 other warden from any other institution is named or mentioned in the

13 complaint. The only individual plaintiffs are SATF prisoners and no

14 prisoners from other institutions are mentioned in the complaint.

15 The mail policies alleged in the complaint are those of SATF, not any

16 other institution. (Compl. at 3-4.) Finally, the only suggestion

17 that this action encompasses CDCR institutions statewide is the fact

18 that CDCR and Director Woodford are named defendants. The fact that

19 those named defendants have statewide responsibilities as a general

20 matter does not transform this action into one encompassing all CDCR

21 institutions. The court finds that the scope of this lawsuit is

22 limited to the civil rights of plaintiff JCPM and the individual

23 plaintiffs in relation to the policies and practices at SATF only.

24

Plaintiffs’ complaint does clearly encompass claims by the

25 individual plaintiffs that defendants have unlawfully prohibited

26 religious organizations other than JCPM from sending them religious

11

Case 2:05-cv-00440-DAD Document 58 Filed 09/28/2006 Page 12 of 33

1 materials. However, the record in this regard has not been

2 sufficiently developed. The only evidence addressing the issue of

3 the treatment of mail from religious organizations other than JCPM is

4 a declaration from plaintiff Leffel indicating he was declined a

5 “package” from “Bible Pathway Ministries” because it was not an

6 approved vendor and the declaration from plaintiff Marchy stating he

7 was denied “materials” from “Gospel Echoes Team” and “Fairhaven Bible

8 Church” because they did not appear on the approved vendors list.

9 (Decl. of Daniel Marchy in Supp. of Mot. for Summ. J. at 2-3; Decl.

10 of Daniel Leffel in Supp. of Mot. for Summ. J. at 2-3.) While this

11 record raises an issue regarding the individual plaintiffs’ ability

12 to receive religious materials from other organizations, the evidence

13 with respect to the nature of these other organizations and the

14 religious materials they desire to send to the plaintiffs at SATF is

15 scant. Absent additional evidence, these issues are not ripe for

16 resolution on summary judgment. Therefore, plaintiffs’ motion for

17 summary judgment will be denied in this regard. See Chao v.

18 Bremerton Metal Trades Council, AFL-CIO, 294 F.3d 1114, 1124 (9th

19 Cir. 2002) (“The district court erred in granting summary judgment in

20 favor of the Bremerton Council on this limited record. A deeper

21 record on relevant issues is necessary to determine whether the

22 qualification was reasonable in all the circumstances.”); Pepper &

23 Tanner, Inc. v. Shamrock Broadcasting, Inc., 563 F.2d 391, 396 (9th

24 Cir. 1977).

25

Next, defendants argue that this action is moot with

26 respect to the written materials because prisoners at SATF may now

12

Case 2:05-cv-00440-DAD Document 58 Filed 09/28/2006 Page 13 of 33

1 receive all softbound books, unbound study guides, pamphlets and

2 other literature from JCPM since those materials are no longer

3 subject to the approved vendor policy. Defendants assert the issues

4 with respect to these written materials are no longer “live” and the

5 parties therefore “lack a legally cognizable interest” in the outcome

6 of this action. See County of Los Angeles v. Davis, 440 U.S. 625,

7 631 (1979); Sample v. Johnson, 771 F.2d 1335, 1338 (9th Cir. 1985).

8 Defendants’ argument is unpersuasive.

9

“Mere voluntary cessation of allegedly illegal conduct does

10 not moot a case[.]” United States v. Concentrated Phosphate Export

11 Ass'n, 393 U.S. 199, 203 (1968). The party asserting mootness has a

12 heavy burden of demonstrating that “subsequent events have made it

13 absolutely clear that the allegedly wrongful behavior cannot

14 reasonably be expected to recur and (2) interim relief or events have

15 completely and irrevocably eradicated the effects of the alleged

16 violation.” Norman-Bloodsaw v. Lawrence Berkeley Laboratory, 135

17 F.3d 1260, 1274 (9th Cir. 1998)(internal quotations, alterations and

18 citations omitted). See also Demery v. Arpaio, 378 F.3d 1020, 1026

19 (9th Cir. 2004); Fed. Trade Comm'n v. Affordable Media, LLC, 179 F.3d

20 1228, 1238 (9th Cir. 1999). Here, defendants have failed to meet

21 this heavy burden.

22

As set forth above, the mail policies implicated by this

23 action have been changed by officials at SATF three times in the last

24 two years. In so doing, defendants have created somewhat of a

25 “moving target” accompanied by no concrete assurances that the

26 policies in question will not be subject to further modification and

13

Case 2:05-cv-00440-DAD Document 58 Filed 09/28/2006 Page 14 of 33

1 change. Indeed, with respect to the 2005 Hubbard memorandum, the

2 most defendants can muster is the noncommittal statement by Warden

3 Adams that “I am unaware of any intent to rescind this directive.”

4 (Defs.’ Statement of Undisp. Facts, Ex. A at 2.) Such vague

5 representations do not make it absolutely clear that the allegedly

6 wrongful behavior cannot reasonably be expected to recur and

7 therefore those representations do not establish mootness. See Halet

8 v. Wend Inv. Co., 672 F.2d 1305, 1308 (9th Cir. 1982)(“This court

9 cannot rely on Wend's statement alone. Wend could revert to an

10 adults-only policy in the future, and Wend has not demonstrated that

11 there is no reasonable expectation of such an occurrence.”) Finally,

12 plaintiffs have presented evidence that despite the changes in

13 policy, written materials from plaintiff JCPM and similar non-profit

14 religious organizations continue to be rejected pursuant to the

15 approved vendor policy. (Declaration of Kevin Snider, Exs. 6-8.)

16 For these reasons, defendants’ mootness argument will be rejected.

17

Another preliminary matter is CDCR Director Woodford’s

18 contention that she is entitled to summary judgment in her favor

19 because there has been no showing that she was personally involved in

20 formulating the mail policies at SATF. The court agrees.

21 Supervisory personnel such as defendant Woodford are not liable under

22 § 1983 for the actions of their employees under a theory of

23 respondeat superior. Therefore, when a named defendant holds a

24 supervisory position, a causal link between the defendant and the

25 claimed constitutional violation must be shown. See Fayle v.

26 Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589

14

Case 2:05-cv-00440-DAD Document 58 Filed 09/28/2006 Page 15 of 33

1 F.2d 438, 441 (9th Cir. 1978). “A supervisor is only liable for

2 constitutional violations of his subordinates if the supervisor

3 participated in or directed the violations, or knew of the violations

4 and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040,

5 1045 (9th Cir. 1989)(citing Ybarra v. Reno Thunderbird Mobile Home

6 Village, 723 F.2d 675, 680-81 (9th Cir. 1984)). A supervisor may be

7 liable upon a showing that he or she “implement[ed] a policy so

8 deficient that the policy ‘itself is a repudiation of constitutional

9 rights’ and was ‘the moving force of the constitutional violation.’”

10 Redman v. County of San Diego, 942 F.2d 1435, 1446-47 (9th Cir.

11 1991)(citations omitted).

12

Here, plaintiffs’ verified complaint contains no

13 allegations specific to defendant Woodford. It is not seriously

14 disputed that prison regulations provide that wardens are responsible

15 for the operational procedure governing prisoners’ mail at their

16 respective institutions. (See Defs.’ Cross-mot. at 6.) OP-129, the

17 internal procedure governing the handling of prisoner mail at SATF,

18 specifically provides that “[t]he Warden is responsible for the

19 overall operation of this procedure.” (Defs.’ Statement of Undisp.

20 Facts, Attach. 2 at 1.) While the 2005 memorandum from Deputy

21 Director Hubbard, which directed CDCR institutions to process and

22 permit incoming non-subscription bulk mail and catalogs, was not

23 authored by a warden, it also was not written by defendant Woodford.

24 No evidence before the court suggests Director Woodford’s personal

25 involvement in the issuing of that memorandum or in any other changes

26 in mail policies at SATF. Based on this evidence, the court finds

15

Case 2:05-cv-00440-DAD Document 58 Filed 09/28/2006 Page 16 of 33

1 that there is no genuine issue as to whether defendant Woodford was

2 personally involved in imposing the mail policies at issue or was a

3 moving force behind those policies. Accordingly, defendant Woodford

4 is entitled to summary judgment in her favor.

5

Next, defendant CDCR asserts that as an arm of the state it

6 is not a “person” under 42 U.S.C. § 1983 and therefore not a proper

7 party to this action. It is true that state agencies and state

8 officials acting in their official capacities are not “persons” for

9 purposes of a § 1983 suit seeking monetary damages. See Arizonans

10 for Official English v. Arizona, 520 U.S. 43, 69 n.24 (1997); Will v.

11 Michigan Dep't. Of State Police, 491 U.S. 58, 71 (1989). However,

12 state agencies and officials sued in their official capacities for

13 injunctive relief are persons for purposes of § 1983. See Will, 491

14 U.S. at 71, n.10; Bank of Lake Tahoe v. Bank of America, 318 F.3d

15 914, 918 (9th Cir. 2003). As noted above, plaintiffs have withdrawn

16 their request for nominal damages and currently seek declaratory and

17 injunctive relief only. Therefore, defendant CDCR’s argument that it

18 is not a proper party to this action must be rejected.

19

Because plaintiffs have withdrawn their request for

20 monetary damages, the court also rejects defendants’ claim of

21 entitlement to qualified immunity. Qualified immunity shields an

22 official from liability for civil damages only; it does not apply to

23 injunctive or declaratory relief. Hydrick v. Hunter, 449 F.3d 978,

24 992 (9th Cir. 2006); American Fire, Theft & Collision Managers, Inc.

25 v. Gillespie, 932 F.2d 816, 818 (9th Cir. 1991); Backlund v.

26 Barnhart, 778 F.2d 1386, 1389 n.3 (9th Cir. 1985).

16

Case 2:05-cv-00440-DAD Document 58 Filed 09/28/2006 Page 17 of 33

1

Finally, defendants argue that plaintiffs Leffel and

2 Salinas failed to exhaust their administrative remedies prior to

3 initiating this action.2 Therefore, in addition to moving for

4 summary judgment, defendants have moved to dismiss the claims of

5 plaintiffs Leffel and Salinas’s without prejudice. For the reasons

6 explained below, defendants’ motion to dismiss will be denied.

7

By the Prison Litigation Reform Act of 1995 (“PLRA”),

8 Congress amended 42 U.S.C. § 1997e to provide that “[n]o action shall

9 be brought with respect to prison conditions under section 1983 of

10 this title, or any other Federal law, by a prisoner confined in any

11 jail, prison, or other correctional facility until such

12 administrative remedies as are available are exhausted.” 42 U.S.C. §

13 1997e(a). The exhaustion requirement “applies to all inmate suits

14 about prison life, whether they involve general circumstances or

15 particular episodes, and whether they allege excessive force or some

16 other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002).

17

The Supreme Court has ruled that exhaustion of prison

18 administrative procedures is mandated regardless of the relief

19 offered through such procedures. Booth v. Churner, 532 U.S. 731, 741

20 (2001). The Court has also cautioned against reading futility or

21 other exceptions into the statutory exhaustion requirement. Id. at

22 741 n.6. Because proper exhaustion is necessary, a prisoner cannot

23 satisfy the PLRA exhaustion requirement by filing an untimely or

24 otherwise procedurally defective administrative grievance or appeal.

25 2 It is undisputed that plaintiff Marchy exhausted his
26 administrative remedies.

17

Case 2:05-cv-00440-DAD Document 58 Filed 09/28/2006 Page 18 of 33

1 Woodford v. Ngo,

U.S. , 126 S. Ct. 2378, 2387 (2006).

2 Prisoners must exhaust administrative remedies before submitting any

3 papers to the federal courts. Vaden v. Summerhill, 449 F.3d 1047,

4 1048, 1051 (9th Cir. 2006); McKinney v. Carey, 311 F.3d 1198, 1200-01

5 (9th Cir. 2002).

6

In California, state regulations permit prisoners to appeal

7 “any departmental decision, action, condition, or policy which they

8 can demonstrate as having an adverse effect upon their welfare.”

9 Cal. Code Regs. tit. 15, § 3084.1(a). Most appeals progress from an

10 informal review through three formal levels of review. See Cal. Code

11 Regs. tit. 15, § 3084.5. A decision at the third formal level, also

12 referred to as the director’s level, is not appealable and will

13 conclude a prisoner’s administrative remedy. Cal. Code Regs. tit.

14 15, §§ 3084.1(a) and 3084.5(e)(2). A California prisoner is required

15 to submit an inmate appeal at the appropriate level and proceed to

16 the highest level of review available before filing suit. Butler v.

17 Adams, 397 F.3d 1181, 1183 (9th Cir. 2005); Bennett v. King, 293 F.3d

18 1096, 1098 (9th Cir. 2002).

19

The PLRA exhaustion requirement creates an affirmative

20 defense that a defendant may raise in an unenumerated Rule 12(b)

21 motion. Wyatt v. Terhune, 315 F.3d 1108, 1117-19 & nn.9 & 13 (9th

22 Cir. 2003), cert. denied sub nom. Alameida v. Wyatt, 540 U.S. 810

23 (2003). The defendant bears the burden of raising and proving the

24 absence of exhaustion. Wyatt, 315 F.3d at 1119; Zarco v. Burt, 355

25 F. Supp. 2d 1168, 1172 (S.D. Cal. 2004). “In deciding a motion to

26 dismiss for a failure to exhaust nonjudicial remedies, the court may

18

Case 2:05-cv-00440-DAD Document 58 Filed 09/28/2006 Page 19 of 33

1 look beyond the pleadings and decide disputed issues of fact.” Id.

2 at 1119-20. “I[f] the district court looks beyond the pleadings to a

3 factual record in deciding the motion to dismiss for failure to

4 exhaust – a procedure closely analogous to summary judgment – then

5 the court must assure that [the prisoner] has fair notice of his

6 opportunity to develop a record.” Id. at 1120 n.14. If the district

7 court concludes that the prisoner has not exhausted administrative

8 remedies on a claim, “the proper remedy is dismissal of the claim

9 without prejudice.” Id. at 1120. See also McKinney, 311 F.3d at

10 1200-01 (concluding that it would undermine attainment of

11 congressional objectives to permit a prisoner to exhaust

12 administrative remedies while proceeding with a federal suit).

13

Here, it is undisputed that plaintiff Leffel’s inmate

14 appeal was denied at the second level of review in July of 2004 and

15 plaintiff Salinas’s second level denial was issued in September of

16 2004. Defendants merely assert in conclusory fashion that plaintiffs

17 then abandoned their administrative appeals and did not present their

18 grievance to the third formal level of review. Other than citing,

19 without explanation, records documenting the second level denial

20 provided by SATF’s custodian of records (see Defs.’ Statement of

21 Undisp. Facts, Ex. E at 1, 15-20 and 36-37), defendants offer no

22 evidence demonstrating that plaintiffs Leffel and Salinas failed to

23 exhaust the third level of review.3

24 /////

25 3 No declaration has been submitted by the Appeals Coordinator
26 at the institution.

19

Case 2:05-cv-00440-DAD Document 58 Filed 09/28/2006 Page 20 of 33

1

On the other hand, plaintiff Leffel has submitted a

2 declaration signed under penalty of perjury stating that he received

3 a second level denial on July 9, 2004, and promptly filed a third

4 level appeal on July 21, 2004. The declaration sets forth the

5 address to which that final appeal was mailed and states that he

6 received no response thereto. (Decl. of Daniel Leffel in Opp’n to

7 Defs.’ Mot. at 1.) Plaintiff Salinas also has submitted a

8 declaration signed under penalty of perjury stating that while his

9 second level denial occurred in September of 2004, he did not receive

10 notice of it until January 3, 2005. (Decl. of Marvin Salinas in

11 Opp’n to Defs.’ Mot. at 2-3.) He then immediately filed a third

12 level appeal on January 9, 2005, only to have it returned accompanied

13 by a letter dated March 21, 2005, explaining that the appeal was

14 untimely because it was not filed within fifteen days of the decision

15 being challenged (i.e., the second level denial in September of

16 2004).

17

Defendants have filed no response to plaintiffs’

18 declarations and the version of events set forth therein. Defendants

19 have simply failed to carry their burden of establishing plaintiffs’

20 failure to exhaust the available administrative remedies.4 The

21 defendants’ motion to dismiss will therefore be denied.

22

23

4 On this record it would appear that defendants’ failure to

timely respond to the grievances filed by plaintiffs Leffel and

24 Salinas rendered any further administrative remedy unavailable. See

Hemphill v. New York, 380 F.3d 680, 687 n.6 (2d Cir. 2004)(collecting

25 cases from various circuits recognizing proposition that

institution’s failure timely to respond renders administrative

26 remedies unavailable).

20

Case 2:05-cv-00440-DAD Document 58 Filed 09/28/2006 Page 21 of 33

1

II. The Merits of Plaintiffs’ Claims

2

The court now turns to the merits of plaintiffs’ claims.

3 Defendants have mounted a minimal defense in this regard, opting

4 instead to litigate these motions on the many technical grounds

5 addressed above. Nevertheless, the court will now address

6 plaintiffs’ free exercise and free speech claims to the extent they

7 concern the prisoners’ right to receive materials from JCPM at SATF

8 and JCPM’s right to send religious materials to prisoners

9 incarcerated at SATF. The court will then address the prisoner

10 plaintiffs’ claims that the defendants’ approved vendor policy also

11 violates the provisions of RLUIPA.

12

A. Plaintiffs’ First Amendment Claims

13

“Prisoners do not forfeit all constitutional protections by

14 reason of their conviction and confinement in prison.” Bell v.

15 Wolfish, 441 U.S. 520, 545 (1979). A prisoner “retains those First

16 Amendment rights that are not inconsistent with his status as a

17 prisoner.” Pell v. Procunier, 417 U.S. 817, 822 (1974). Among the

18 rights retained are the “protections afforded by the First Amendment

19 [citation omitted], including its directive that no law shall

20 prohibit the free exercise of religion.” O’Lone v. Estate of

21 Shabazz, 482 U.S. 342, 348 (1987). See also Cruz v Beto, 405 U.S.

22 319, 322 n.2 (1972). However, the right to exercise one’s religion

23 “is necessarily limited by the fact of incarceration, and may be

24 curtailed in order to achieve legitimate correctional goals or to

25 /////

26 /////

21

Case 2:05-cv-00440-DAD Document 58 Filed 09/28/2006 Page 22 of 33

1 maintain prison security.”5 O’Lone, 482 U.S. at 348. See also

2 Turner v. Safley, 482 U.S. 78, 89-91 (1987); McElyea v. Babbitt, 833

3 F.2d 196, 197 (9th Cir. 1987). In particular, a prisoner’s

4 constitutional right to free exercise of religion must be balanced

5 against the state’s right to limit First Amendment freedoms in order

6 to attain valid penological objectives such as rehabilitation of

7 prisoners, deterrence of crime, and preservation of institutional

8 security. Pell, 417 U.S. at 822-23.

9

The Supreme Court has established the following standard

10 for balancing a prisoner’s constitutional rights with legitimate

11 correctional goals: “[W]hen a prison regulation impinges on

12 prisoners’ constitutional rights, the regulation is valid if it is

13 reasonably related to legitimate penological interests.” Turner, 482

14 U.S. at 89. See also Prison Legal News, 397 F.3d at 699. When a

15 prisoner challenges a regulation and correctional officials seek to

16 justify the regulation on the basis of a legitimate penological

17 interest, the court must determine whether the regulation is

18 reasonably related to the penological interest asserted. Id. In

19 making such a determination, courts consider four factors:

20

First, there must be a valid, rational connection

between the prison regulation and the legitimate

21

governmental interest put forward to justify it,

and the governmental objective itself must be a

22

legitimate and neutral one. A second

consideration is whether alternative means of

23

exercising the right on which the regulation

24 5 The First Amendment, made applicable to the states by the
25 Fourteenth Amendment, prohibits the making of laws “respecting an
establishment of religion, or prohibiting the free exercise thereof.” 26 U.S. Const. amend. I.

22

Case 2:05-cv-00440-DAD Document 58 Filed 09/28/2006 Page 23 of 33

1

impinges remains open to prison inmates. A third

consideration is the impact accommodation of the

2

asserted right will have on guards, other

inmates, and the allocation of prison resources.

3

Finally, the absence of ready alternatives is

evidence of the reasonableness of a prison

4

regulation.

5 Allen v. Toombs, 827 F.2d 563, 567 (9th Cir. 1987) (citing Turner,

6 482 U.S. at 89-91). See also Thornburgh v. Abbott, 490 U.S. 401, 413

7 (1989) (holding that the Turner test applies to a prison's regulation

8 of incoming mail); O’Lone, 482 U.S. at 349-50; Prison Legal News, 397

9 F.3d at 699.

10

The plaintiff prisoners’ First Amendment right to receive

11 mail, and JCPM’s right to send that mail to prisoners at SATF, “is

12 subject to ‘substantial limitations and restrictions in order to

13 allow prison officials to achieve legitimate correctional goals and

14 maintain institutional security.’” Prison Legal News, 397 F.3d at

15 699 (quoting Walker v. Sumner, 917 F.2d 382, 385 (9th Cir. 1990)

16 (citations omitted). In order for defendants’ approved vendor policy

17 to survive plaintiffs’ free speech claims, it thus must be

18 “reasonably related to legitimate penological interests” as

19 determined by applying the Turner four-factor test. Prison Legal

20 News, 397 F.3d at 699.

21

Here, there is no serious dispute that the approved vendor

22 policy impinges on plaintiffs’ free exercise and free speech rights.

23 With respect to materials from plaintiff JCPM, there is no common-

24 sense connection between a legitimate objective and the approved

25 vendor policy. Thus, by establishing that the plaintiff prisoners

26 have not been allowed to receive free religious materials from

23

Case 2:05-cv-00440-DAD Document 58 Filed 09/28/2006 Page 24 of 33

1 plaintiff JCPM under the policy, plaintiffs have satisfied any

2 initial burden they may bare. See Prison Legal News v. Cook, 238 F.

3 3d 1145, 1150 (9th Cir. 2001); Frost v. Symington, 197 F. 3d 348, 357

4 (9th Cir. 1999). In response, defendants have offered no evidence of

5 a legitimate governmental interest justifying the policy. While the

6 court can imagine hypothetical scenarios in which incoming mail

7 purporting to be religious materials might pose safety or security

8 concerns, defendants have submitted no such evidence.6 Moreover,

9 defendants do not contend that the religious literature, audio tapes

10 and compact discs in and of themselves raise any security concern.

11 For example, defendants do not contend that tape recordings and

12 compact discs can be fashioned into weapons.7 Rather, as long as the

13 source of the materials is approved, under this policy prisoners can

14 possess them. Nor do defendants argue that the penological goals of

15 preventing receipt of contraband, reducing fire hazards, increasing

16 efficiency of random cell inspections or enhancing prison security

17 justify the policy. Presumably defendants do not advance these

18 justifications because the Ninth Circuit has rejected such assertions

19 in similar cases involving non-subscription bulk mail and catalogs;

20 subscription non-profit mail; and subscription for-profit mail. See

21 Prison Legal News, 397 F.2d at 699-700.

22 6 This is most likely due to the fact that plaintiff JCPM is
23 undisputedly a legitimate religious organization and that no such safety or security concerns exist with respect to the materials it is
24 attempting to send to the prisoner plaintiffs.

25

7 In any event, any such claim would be belied by the fact that

there is not an outright ban on such materials under the approved

26 vendor policy.

24

Case 2:05-cv-00440-DAD Document 58 Filed 09/28/2006 Page 25 of 33

1

Rather, defendants appear to contend that religious

2 literature, audio tapes and compact discs from unapproved vendors

3 create some unspecified concern simply because they are from

4 unapproved vendors. No evidence before the court even suggests that

5 the distinction between an approved vendor and an unapproved vendor

6 such as JCPM, is a meaningful one. Defendants have not presented

7 evidence addressing any criteria an organization must meet to become

8 an approved vendor under their policy. One thing is clear, plaintiff

9 JCPM cannot be an approved vendor under the policy because it

10 provides its religious materials to those who request them free of

11 charge. Under these circumstances, defendants have failed to

12 establish that their distinguishing between approved vendors and

13 unapproved vendors is anything but arbitrary.

14

A regulation cannot be sustained where the logical

15 connection between the regulation and the asserted goal has not been

16 demonstrated, and the legitimacy and neutrality of the governmental

17 objective has not been shown. Turner, 482 U.S. at 89-90. Here, the

18 court finds that defendants’ approved vendor policy is not reasonably

19 related to legitimate penological interests. Because this first

20 Turner factor “‘constitutes sine qua non,’” the court need not reach

21 the remaining three factors since the regulation at issue is not

22 rationally related to a legitimate and neutral governmental

23 objective. Prison Legal News, 397 F.3d at 699 (quoting Walker v.

24 Sumner, 917 F.2d 382, 385 (9th Cir. 1990)). See also Ashker v.

25 California Dept. of Corrections, 350 F.3d 917, 922 (9th Cir. 2003).

26 /////

25

Case 2:05-cv-00440-DAD Document 58 Filed 09/28/2006 Page 26 of 33

1 While it is unnecessary to address the other Turner factors in light

2 of the conclusion reached above, the undersigned will do so briefly.

3

Defendants claim that the gifts and donations procedure

4 offers prisoners an alternative means of accessing religious

5 materials subject to the approved vendor policy. As noted above,

6 because the defendants have failed to establish that the policy is

7 reasonably related to legitimate penological interests, the

8 availability of alternative avenues by which prisoners may exercise

9 their First Amendment rights is irrelevant. Moreover, the proffered

10 alternative avenue is inadequate. The possibility that a prisoner

11 may be able to borrow a copy of an audio cassette or compact disc

12 from a chaplain for a short period of time subject to the demands of

13 others who may desire the same recording, is not an adequate

14 replacement for possessing it indefinitely and having access to it

15 when desired. The nature of religious worship, which is often

16 engaged in at specific times such as upon waking in the morning,

17 prior to meals and before retiring to bed, highlights the arguable

18 inadequacy of the offered alternative. Moreover, the undisputed

19 evidence shows that JCPM teaches Christians about the Christian faith

20 through written and audio media. JCPM only sends materials

21 specifically requested and as an exercise of its religious obligation

22 to reach out and directly connect with other Christians to propagate

23 the Christian faith and encourage Christians to conform to the

24 principles of Christianity. Accordingly, the gifts and donations

25 procedure also does not appear to provide an adequate alternative

26 means of exercising the First Amendment rights of all the plaintiffs

26

Case 2:05-cv-00440-DAD Document 58 Filed 09/28/2006 Page 27 of 33

1 and upon which the approved vendor policy impinges. See Morrison v.

2 Hall, 261 F. 3d 896, 904 (9th Cir. 2001) (availability of radio and

3 television found not to be an adequate alternative to receiving

4 newspapers and magazines).

5

The third Turner factor focuses on the impact that

6 accommodating the asserted right will have on guards, prisoners and

7 on the allocation of prison resources. Because defendants have made

8 no showing in this regard, consideration of this factor favors

9 plaintiffs. Finally, the fourth Turner factors requires the court to

10 consider whether the existence of easy and obvious alternatives

11 indicates that the challenged regulation is an exaggerated response

12 by prison officials. Here, this factor strongly favors plaintiffs.

13 Defendants have changed their policy three times in two years. They

14 claim to be currently accommodating plaintiffs with respect to

15 unbound study guides, pamphlets and softbound books sent to prisoners

16 by plaintiff JCPM. As noted above, defendants allow cassette

17 recordings and compact discs to enter the prison as long as they are

18 from one of six approved vendors. No reason has been given as to why

19 defendants could not maintain a list of non-profit organizations from

20 which prisoners could receive such religious materials free of

21 charge. However, even though there is no meaningful distinction

22 between plaintiff JCPM and those on the approved vendor list, JCPM is

23 prohibited from sending its religious materials to the prisoner

24 plaintiffs.

25

For the reasons set forth above, the court finds that the

26 approved vendor policy cannot survive plaintiffs Leffel, Salinas,

27

Case 2:05-cv-00440-DAD Document 58 Filed 09/28/2006 Page 28 of 33

1 Marchy and JCPM’s free exercise and free speech challenges. Summary

2 judgment will be entered in favor of plaintiffs on these claims.

3

B. Prisoners’ RLUIPA Claims

4

The plaintiff prisoners also claim that the approved vendor

5 policy violates the terms of RLUIPA. That statute provides in

6 relevant part:

7

No government shall impose a substantial burden

on the religious exercise of a person residing in

8

or confined to an institution . . ., even if the

burden results from a rule of general

9

applicability, unless the government demonstrates

that imposition of the burden on the person - -

10

(1) is in furtherance of a compelling government

11

interest; and

12

(2) is the least restrictive means of furthering

that compelling government interest.

13

14 42 U.S.C. § 2000cc-1.

15

RLUIPA is “the latest of long-running congressional efforts

16 to accord religious exercise heightened protection from government-

17 imposed burdens.” Cutter v. Wilkinson, 544 U.S. 709, 714 (2005)

18 (holding that RLUIPA “does not, on its face, exceed the limits of

19 permissible government accommodation of religious practices”). See

20 also Guru Nanak Sikh Society of Yuba City v. County of Sutter, 456

21 F.3d 978, 985 (9th Cir. 2006). In Cutter, the Supreme Court noted

22 that Congress enacted RLUIPA after documenting, “in hearings spanning

23 three years, that ‘frivolous or arbitrary’ barriers impeded

24 institutionalized persons’ religious exercise.” 544 U.S. at 716.

25 The Court found that the Act “alleviates exceptional government-

26 created burdens on private religious exercise” and “protects

28

Case 2:05-cv-00440-DAD Document 58 Filed 09/28/2006 Page 29 of 33

1 institutionalized persons who are unable freely to attend to their

2 religious needs and are therefore dependent on the government’s

3 permission and accommodation for exercise of their religion.” Id. at

4 720-21. The Court noted congressional anticipation “that courts

5 entertaining complaints under § 3 would accord ‘due deference to the

6 experience and expertise of prison and jail administrators.’” Id. at

7 717.

8

RLUIPA replaces the “legitimate penological interest”

9 standard articulated in Turner v. Safley, with a “compelling

10 governmental interest” and “least restrictive means” tests.

11 Warsoldier v. Woodford, 418 F.3d 989, 994 (9th Cir. 2005). For

12 purposes of RLUIPA, “religious exercise” includes “any exercise of

13 religion, whether or not compelled by, or central to, a system of

14 religious belief.” 42 U.S.C. § 2000cc-5(7)(A). The statute must be

15 “construed in favor of a broad protection of religious exercise, to

16 the maximum extent permitted” by the Act and the Constitution. 42

17 U.S.C. § 2000cc-3(g). Individuals may assert a violation of RLUIPA

18 as a claim or defense in judicial proceedings and obtain appropriate

19 relief. 42 U.S.C. § 2000cc-2(a).

20

Under RLUIPA, plaintiffs bear the burden of demonstrating

21 that the institution’s policy places a substantial burden on the

22 exercise of their religious beliefs. Warsoldier, 418 F.3d at 994.

23 The focus of this initial inquiry is on how plaintiffs’ religious

24 exercise is impacted, rather than on the reasonableness of the

25 facility’s policy or regulation. If the plaintiffs establish a prima

26 facie case of a substantial burden on the exercise of their religion,

29

Case 2:05-cv-00440-DAD Document 58 Filed 09/28/2006 Page 30 of 33

1 the burden shifts to the defendants to prove that any substantial

2 burden is both in furtherance of a compelling governmental interest

3 and is the least restrictive means for furthering that interest. Id.

4 at 995.

5

While RLUIPA does not define the term “substantial burden,”

6 the following analysis provides guidance:

7

Because RLUIPA is a statute of relatively recent

vintage, there is little precedent interpreting

8

its key terms. However, because the Religious

Freedom Restoration Act (RFRA) and early free

9

exercise jurisprudence imposed the requirement

that plaintiffs demonstrate a “substantial

10

burden” on their exercise of religion, those

cases decided under RFRA and under the pre-Smith

11

regime provide some guidance as to the meaning of

this pivotal, but open-ended, statutory term.

12

See Marria v. Broaddus, 200 F. Supp. 2d 280, 298

(S.D. N.Y. 2002) (adopting precedent interpreting

13

“substantial burden” under RFRA in applying

RLUIPA); Charles v. Verhagen, 220 F. Supp. 2d 937

14

(W.D. Wis. 2002) (same). Under the case law, it

is established that a substantial burden “must be

15

more than an inconvenience.” Bryant v. Gomez, 46

F.3d 948, 949 (9th Cir. 1995) (quoting Graham v.

16

C.I.R., 822 F.2d 844, 850-51 (9th Cir. 1987),

aff’d sum nom. Hernandez v. Commissioner, 490

17

U.S. 680, 699, 109 S. Ct. 2136, 104 L. Ed. 2d 766

(1989). The Supreme Court, however, has

18

articulated the substantial burden test

differently over the years. See Lyng v.

19

Northwest Indian Cemetery Protective Ass’n, 485

U.S. 439, 450-51, 108 S. Ct. 1319, 99 L. Ed. 2d

20

534 (1988); Thomas v. Review Bd. of Ind.

Employment Sec. Div., 450 U.S. 707, 718, 101 S.

21

Ct. 1425, 67 L. Ed. 2d 624 (1981); Sherbert v.

Verner, 374 U.S. 398, 404, 83 S. Ct. 1790, 10 L.

22

Ed. 2d 965 (1963).

23

In Lyng, the Court declared that for a

governmental regulation to substantially burden

24

religious activity, it must have a tendency to

coerce individuals into acting contrary to their

25

religious beliefs. 485 U.S. at 450-51, 108 S.

Ct. 1319; see also, Thomas, 450 U.S. at 717-18,

26

101 S. Ct. 1425 (holding that a substantial

30

Case 2:05-cv-00440-DAD Document 58 Filed 09/28/2006 Page 31 of 33

1

burden exists where the government “puts pressure

on an adherent to modify his behavior and to

2

violate his beliefs.”). Conversely, a government

regulation does not substantially burden

3

religious activity when it has only an incidental

effect that makes it more difficult to practice

4

the religion. Id.; Thiry v. Carlson, 78 F.3d

1491, 1495 (10th Cir. 1996). Thus, for a burden

5

on religion to be substantial, the government

regulation must compel action or inaction with

6

respect to the sincerely held belief; mere

inconvenience to the religious institution or

7

adherent is insufficient. Jolly v. Coughlin, 76

F.3d 468, 477 (2d Cir. 1996).

8

9 Guru Nanak Sikh Society of Yuba City v. County of Sutter, 326 F.

10 Supp. 2d 1140, 1151-52 (E.D. Cal. 2003), aff’d 456 F.3d 978, 985 (9th

11 Cir. 2006). Thus, “a ‘substantial burden’ on ‘religious exercise’

12 must impose a significantly great restriction or onus upon such

13 exercise.” Guru Nanak Sikh Society, 456 F.3d at 988 (quoting San

14 Jose Christian College v. City of Morgan Hill, 360 F.3d 1024, 1034

15 (9th Cir. 2004)).

16

With respect to plaintiffs’ RLUIPA claims, the defendants’

17 position is essentially that plaintiffs cannot meet their initial

18 burden of establishing that the approved vendor policy places a

19 “substantial burden” on the exercise of their religious beliefs. The

20 plaintiff prisoners, however, have submitted declarations

21 demonstrating that they are sincere adherents of the Christian faith

22 who are confined and indigent and therefore dependent on the free

23 materials provided by JCPM to exercise their religion in the hope of

24 self-improvement as a general matter and conforming to prison

25 guidelines governing behavior in particular. (Decl. of Daniel Marchy

26 in Supp. of Mot. for Summ. J. at 2-3; Decl. of Daniel Leffel in Supp.

31

Case 2:05-cv-00440-DAD Document 58 Filed 09/28/2006 Page 32 of 33

1 of Mot. for Summ. J. at 2-3; Decl. of Marvin Salinas in Supp. of Mot.

2 for Summ. J. at 2-3.) Without access to the materials provided by

3 JCPM at no cost, the plaintiff prisoners are unable to engage in

4 conduct that is motivated by their sincere religious beliefs and is

5 important to them. (Id.) These declarations have not been

6 controverted by defendants in any way. Moreover, it is undisputed

7 that the unique study and worship materials provided by JCPM are

8 unavailable through any of the approved vendors.

9

The limitations of the gifts and donations procedure, as

10 discussed above, do not reduce this burden to a mere inconvenience.

11 Being denied access to these religious materials compels inaction

12 with respect to studying the Bible, listening to sermons and

13 Christian music and propagating and teaching others about the

14 Christian faith, all of which the undisputed evidence establishes as

15 core elements of plaintiffs’ Christian faith. Thus, the undisputed

16 evidence demonstrates that the restrictions imposed by the authorized

17 vendor policy place a substantial burden on the exercise of

18 plaintiffs’ religious beliefs. Finally, defendants have offered no

19 evidence in support of any assertion that the approved vendor policy

20 is in furtherance of any compelling governmental interest, much less

21 that it is the least restrictive means for furthering any such

22 interest. Therefore, the approved vendor policy also cannot survive

23 the prisoner plaintiffs’ RLUIPA challenges. Summary judgment will be

24 entered in favor of plaintiffs on these claims as well.

25 /////

26 /////

32

Case 2:05-cv-00440-DAD Document 58 Filed 09/28/2006 Page 33 of 33

1

CONCLUSION

2

Accordingly, IT IS HEREBY ORDERED that:

3

1. Defendants’ motion to dismiss pursuant to Federal Rule

4 of Civil Procedure 12(b) is denied;

5

2. Defendants’ motion for summary judgment is granted with

6 respect to defendant Woodford and denied in all other respects;

7

3. Plaintiffs’ motion for summary judgment is granted in

8 part and denied in part to the extent set forth above;

9

4. A status conference is SET for November 3, 2006, at

10 11:00 a.m. At that time the parties shall be prepared to discuss how

11 to proceed so as to aid in resolution of this case including, but not

12 limited to, the scheduling of the case.

13 DATED: September 27, 2006.

14

15

16

17 DAD:th
ddad1\orders.consent\jesus0440.msj.order.v3
18

19

20

21

22

23

24

25

26

33

 
 1 Brad W. Dacus, State Bar No. 159690

Kevin T. Snider, State Bar No. 170988 – Counsel for Service

2 PACIFIC JUSTICE INSTITUTE P.O. Box 276600

3

Sacramento, CA 95827 Tel. (916) 857-6900

4 Fax. (916) 857-6902

5 Attorneys for Plaintiffs Jesus Christ Prison Ministry, et al. 6

7

8
UNITED STATES DISTRICT COURT 9

10

EASTERN DISTRICT OF CALIFORNIA

11

) Case No.:

12 JESUS CHRIST PRISON MINISTRY, )

DANIEL LEFFEL, MARVIN SALINAS, 13 and DANIEL MARCHY,

) ) VERIFIED COMPLAINT FOR ) VIOLATIONS OF RELIGIOUS LAND

14

) USE AND INSTITUTIONALIZED

) PERSONS ACT, FIRST, AND

15 Plaintiffs,

) FOURTEENTH AMENDMENT TO U.S.

) CONSTITUTION; INJUNCTIVE AND

16

) DECLARATORY RELIEF

17

v.

) ) (42 U.S.C. 1983 and 2000cc et seq.)

)

18

)

19

CALIFORNIA DEPARTMENT OF CORRECTIONS; JEANE S. WOODFORD

) ) )

20 in her official capacity as Director of the )

California Department of Corrections;

) DEMAND FOR JURY TRIAL

21 DERRAL G. ADAMS, in his official capacity)

as Warden of California State Substance )

22 23

Abuse Treatment Facility and State Prison in Corcoran; and DOES 1 through 50,

) ) )

inclusive,

)

24

)

)

25

Defendants.

)

)

26

______________________________________

) )

27

)

_________________________________________________________________________________________________________
28

COMPLAINT

-1-

1

NATURE OF ACTION

2

3

1. Pursuant to regulations promulgated by the CALIFORNIA DEPARTMENT OF

CORRECTIONS (“CDC”) and enforced by the Warden, DERRAL G. ADAMS (“WARDEN”), of 4
the California State Substance Abuse Treatment Facility and State Prison in Corcoran
5 (“PRISON”), Christian prison ministries are not permitted to send free softbound Christian

6 literature, CDs or tapes to inmates who have requested these written materials.

7

JURISDICTION AND VENUE

8

2. This Court has jurisdiction over all federal claims in the Complaint as arising under

9 the United States Constitution pursuant to 28 U.S.C. §§ 1331 and 1343 (a)(3) and (a)(4), and
10 under 42 U.S.C. § 2000cc et seq., which confers original jurisdiction on United States District Courts in suits to redress the deprivation of rights, privileges and immunities as stated herein.
11 This Court has jurisdiction over the request for declaratory relief pursuant to 28 U.S.C. §§ 2201
12 and 2202. This court has pendant and supplemental jurisdiction over all state law claims under 28
13 U.S.C. § 1367(a).

14

3.

Venue lies in this District pursuant to 28 U.S.C. § 1391(b).

15

PARTIES

16

4. Plaintiff, JESUS CHRIST PRISON MINISTRIES (“PRISON MINISTRY”), is a

17 religious, not for profit organization which sends softbound Christian study and reading materials

18 to inmates without charge.

19

5. At all times mentioned herein, Plaintiff, DANIEL LEFFEL (“LEFFEL”), was and

is an inmate at PRISON. He is an adherent of the Protestant Christian faith. 20
6. At all times mentioned herein, Plaintiff, MARVIN SALINAS (“SALINAS”), was

21 and is an inmate at PRISON. He is a Christian but does not identify himself as either a Protestant

22 or Catholic or with any particular denomination.

23

7. At all times mentioned herein, Plaintiff, DANIEL MARCHY (“MARCHY”), was

24 and is an inmate at PRISON. He is a part of the Roman Catholic Church.

25

8. At all times mentioned herein, Defendant, CDC, is a legal subdivision of the State

26 of California, and is empowered by the State to act through its governing body, its officials,

27
_________________________________________________________________________________________________________
28
COMPLAINT

-2-

1 employees and official bodies. CDC is thus empowered by the State of California to regulate and

2 maintain California’s correctional system.

3

9. At all times mentioned herein, Defendant, JEANE S. WOODFORD, is the Director

of CDC. She is sued in her official capacity. 4
10. At all times mentioned herein, Defendant, DARREL G. ADAMS, is the Warden of
5 of the California State Substance Abuse Treatment Facility and State Prison in Corcoran, an

6 institution under the control of CDC. He is sued in his official capacity.

7

STATEMENT OF FACTS

8

11. All INMATES are currently within the custody of PRISON.

9

12. INMATES are sincere adherents of the Christian faith. In accordance with their

10 sincerely held religious beliefs, INMATES seek to reform their behavior and attitudes through spiritual transformation. A core part of that reform is through study of the Bible. To study the
11 Bible, INMATES are in need of Bible courses and other Christian materials which explain biblical
12 theology, doctrine and Christian concepts. In order to engage in this study, INMATES correspond

13 with religious organizations which provide spiritual help through study materials. Additionally,

14 another core part of their sincerely held Christian beliefs is to worship and meditate on God by

15 means of music. As such, INMATES wish to receive CDs and tapes of Christian music.

16 Furthermore, INMATES wish to receive tapes and CDs which have sermons and other Christian

17 teaching. 13. INMATES sincerely believe the regular use of such religious materials has
18 encouraged their conformity with CDC’s and PRISON’s penological interests, i.e., following
19 prison guidelines regarding appropriate behavior of inmates.

20

14. INMATES are indigent and thus unable to purchase written Christian materials

21 including literature, tapes and CDs. As a result, INMATES rely on charitable religious

22 organizations to send free Christian materials when the INMATES write and request same.

23

15. On or around April 1, 2004, pursuant to PRISON policy 04/005, Revision #3,

(“The Regulation”) INMATES were not permitted to be directly mailed religious materials unless 24
sent by four approved vendors. (A true and correct copy of Regulation is attached and marked as 25
“Exhibit 1” and incorporated by reference as if fully set forth herein.) All books, tapes and CDs
26 received from an authorized vendor are accepted by PRISON with a purchase receipt only. In like

27 manner, Plaintiffs are informed and believe and thereon allege that there are approximately four
_________________________________________________________________________________________________________
28

COMPLAINT

-3-

1 vendors for the Catholic faith and four vendors for the Protestant faith which are authorized by

2 PRISON to provide items to prisoners.

3

16. The Christian literature, including Bibles (softbound), study materials (softbound),

CDs and cassette tapes sent by a religious ministry that is not an authorized vendor is deemed 4
“contraband” as per section 3000 of Title 15 of the California Code of Regulations (“CCR”). (A
5 true and correct copy of 15 CCR 3000 and related regulations are attached and marked as “Exhibit

6 2” and incorporated by reference as if fully set forth herein.) The Regulation forces INMATES to

7 purchase the Christian “contraband,” rather than receive them free-of-charge.

8

17. PRISON MINISTRY is not an authorized vendor but rather a not for profit

9 religious organization which does not sell its Christian materials. In that PRISON MINISTRY is
10 not an authorized vendor, the materials that it sends inmates without charge are “contraband” as per 15 CCR 3000. For years, PRISON MINISTRY has sent softbound Christian materials to
11 incarcerated individuals in numerous states who specifically request these items. (A true and
12 correct copy of typical samples that PRISON MINISTRY dispatches is attached and marked as
13 “Exhibit 3” and incorporated by reference as if fully set forth herein.)

14

18. PRISON MINISTRY sends written materials to incarcerated persons based on its

15 sincerely held religious beliefs. These beliefs include providing spiritual help to inmates by

16 “preaching the Gospel.” “Preaching the Gospel” includes “evangelizing” (propagating the

17 Christian faith) and “discipling” (teaching Christians about the Christian faith). Like many religious organizations which seek to meet the spiritual needs of those incarcerated, prisoners
18 correspond with PRISON MINISTRY by writing answers to questions after reviewing the
19 materials.

20

19. Since the implementation of the Regulation, PRISON MINISTRY’s Christian

21 materials have been deemed contraband and kept from prisoners requesting said materials.

22

20. Since the implementation of the Regulation, INMATES, and each of them, have

23 received notification of disapproval from prison officials stating that the PRISON mailroom had a
package from a religious organization but was remitting the package to the sender because said 24
organization was not an approved vendor under the Regulation. 25
21. INMATES, and each of them, have filed a timely administrative appeal under 15 26 CCR 3137. All appeals have been either denied or not responded to by Defendants within the
27 time set by 15 CCR 3137. As such, INMATES have exhausted their administrative remedies.
_________________________________________________________________________________________________________
28
COMPLAINT

-4-

1

22. On or about February 15, 2005, a letter was sent by attorneys for Plaintiffs seeking

2 resolution of the issues described herein. Defendants have not responded. (A true and correct

3 copy of said letter is attached and marked as “Exhibit 4” and incorporated by reference as if fully
set forth herein.) 4
COUNT I 5
Violation of the Religious Land Use and Institutionalized Persons Act of 2000
6 “Substantial Burden on Religious Exercise”
7 INMATES as against all Defendants (42 U.S.C. § 2000cc, et seq.)

8 23. Paragraphs 1 through 22 are incorporated by reference as if set forth fully herein.

9

24. INMATES are confined to an institution (PRISON) as defined by 42 U.S.C. 1997.

10

25. Defendants, and each of them, operate programs and activities for which they

11 receive federal financial assistance.

12

26. The Defendants’ prohibition on the free religious materials requested by

13 INMATES, as described above, involve the use of the United States Mail and thus affect interstate commerce.
14 27. The Defendants’ above-described prohibition imposes a substantial burden on the
15 INMATES’ free exercise of religion.

16

28. There is no narrowly tailored compelling state interest for Defendants’ above-

17 described prohibition.

18

29. Even if there is a narrowly tailored compelling state interest for Defendants’ above-

19 described prohibition, Defendants do not use the least restrictive means to further said interest.

20

30. INMATES thus seek relief under 42 U.S.C. § 2000cc, et seq., popularly referred to

as Religious Land Use and Institutionalized Persons Act of 2000. 21
31. Absent relief from this Court, INMATES will continue to be deprived of their

22 rights to the free exercise of religion. Therefore, INMATES seek a preliminary and permanent

23 injunction restraining Defendants, their officers, employees, and agents from preventing

24 INMATES from receiving free religious materials from religious organizations.

25

32. There is a dispute between the parties as to whether the practices, policies and

26 regulations of Defendants impose a substantial burden on INMATES exercise of religion.
Additionally, there is a dispute between the parties as to whether the practices, policies and 27
_________________________________________________________________________________________________________
28
COMPLAINT

-5-

1 regulations of Defendants are the least restrictive means to achieve a narrowly tailored compelling

2 state interest. Absent relief from this Court, Defendants will continue to restrict INMATES’

3 access to Christian materials in violation of INMATES’ rights to the free exercise of religion
under the First Amendment. INMATES therefore request declaratory relief. 4
COUNT II 5
Violation of the United States Constitution
6 Free Exercise of Religion: First and Fourteenth Amendments
7 (42 U.S.C. § 1983)

8 PRISON MINISTRY and INMATES as against all Defendants (42 U.S.C. § 2000cc et seq.)

9

33. Paragraphs 1 through 32 are incorporated by reference as if set forth fully herein.

10

34. By deeming free Christian materials as “contraband” and thus prohibiting their

11 receipt by Plaintiffs who have requested them, Defendants, and each of them, have deprived and

12 continue to deprive INMATES of their free exercise of religion, as secured by the First
13 Amendment to the United States Constitution and made applicable to the States by the Fourteenth Amendment.
14 35. By deeming free Christian materials as “contraband” and thus prohibiting their
15 receipt by prisoners requesting them, Defendants, and each of them, have deprived and continue to
16 deprive PRISON MINISTRY of its free exercise of religion, as secured by the First Amendment

17 to the United States Constitution and made applicable to the States by the Fourteenth Amendment.

18

36. There is a dispute between the parties as to whether the practices, policies and

19 regulations of Defendants impose a substantial burden on INMATES’ exercise of religion.
20 Additionally, there is a dispute between the parties as to whether the practices, policies and regulations of Defendants are the least restrictive means to achieve a narrowly tailored compelling,
21 state interest. Absent relief from this Court, Defendants will continue to restrict INMATES’
22 access to Christian materials in violation of INMATES’ rights to the free exercise of religion
23 under the First Amendment. INMATES therefore request declaratory relief.

24

37. There is a dispute between the parties as to whether the practices, policies and

25 regulations of Defendants impose a substantial burden on PRISON MINISTRY’s exercise of

26 religion. Additionally, there is a dispute between the parties as to whether the practices, policies
and regulations of Defendants are the least restrictive means to achieve a narrowly tailored, 27
_________________________________________________________________________________________________________
28
COMPLAINT

-6-

1 compelling state interest. Absent relief from this Court, Defendants will continue to restrict access

2 by incarcerated persons to Christian materials sent by PRISON MINISTRY in violation of
3 PRISON MINISTRY’s rights to the free exercise of religion under the First Amendment. PRISON MINISTRY therefore requests declaratory relief.
4 38. INMATES have been deprived, and will continue to be deprived of their free
5 exercise of religion rights under the First Amendment. Therefore, INMATES seek injunctive
6 relief to prevent further deprivation of their constitutional rights.

7

39. PRISON MINISTRY has been deprived, and will continue to be deprived of its

8 free exercise of religion rights under the First Amendment. Therefore, PRISON MINISTRY seeks

9 injunctive relief to prevent further deprivation of its constitutional rights.

10

40. PRISON MINISTRY has been deprived, and will continue to be deprived of its

free exercise of religion rights under the First Amendment. Therefore, PRISON MINISTRY seeks 11
nominal damages.

12

COUNT III

13

Violation of the United States Constitution

14

Free Speech: First and Fourteenth Amendments

15

(42 U.S.C. § 1983)

16 PRISON MINISTRY and INMATES as against all Defendants (42 U.S.C. § 2000cc et seq.)

17

41. Paragraphs 1 through 40 are incorporated by reference as if set forth fully herein.

18

42. Defendants, and each of them, have deprived and continue to deprive INMATES of

19 their speech rights and right to hear, as secured by the First Amendment to the United States

20 Constitution and made applicable to the States by the Fourteenth Amendment. 43. Defendants, and each of them, have deprived and continue to deprive PRISON
21 MINISTRY of its speech rights and right to hear, as secured by the First Amendment to the United
22 States Constitution and made applicable to the States by the Fourteenth Amendment.

23

44. There is a dispute between the parties as to whether the practices, policies and

24 regulations of Defendants impose a substantial burden on INMATES’ speech rights including

25 their right to hear. Absent relief from this Court, Defendants will continue to restrict INMATES’

26 access to Christian materials in violation of INMATES’ speech rights under the First Amendment.
INMATES therefore request declaratory relief. 27
_________________________________________________________________________________________________________
28
COMPLAINT

-7-

1

45. There is a dispute between the parties as to whether the practices, policies and

2 regulations of Defendants impose a substantial burden on PRISON MINISTRY’s speech rights

3 including its right to hear. Absent relief from this Court, Defendants will continue to restrict

access by incarcerated persons to Christian materials sent by PRISON MINISTRY in violation of 4
PRISON MINISTRY’s speech rights under the First Amendment. PRISON MINISTRY therefore
5 requests declaratory relief.

6

46. There is a dispute between the parties as to whether it is lawful under the First and

7 Fourteenth Amendments to classify as “contraband” free Christian materials, whether softbound

8 literature or CDs and tapes, that are sent at the request of incarcerated persons. PRISON

9 MINISTRY and INMATES therefore requests declaratory relief.

10

47. INMATES have been deprived, and will continue to be deprived of their free

speech rights under the First Amendment. Therefore, INMATES seek injunctive relief to prevent 11
further deprivation of their constitutional rights.

12

48. PRISON MINISTRY has been deprived, and will continue to be deprived of its

13 free speech rights under the First Amendment. Therefore, PRISON MINISTRY seeks injunctive

14 relief to prevent further deprivation of its constitutional rights.

15

49. PRISON MINISTRY has been deprived, and will continue to be deprived of its

16 free speech rights under the First Amendment. Therefore, PRISON MINISTRY seeks nominal

17 damages.

REQUEST FOR RELIEF 18
WHEREFORE, Plaintiffs respectfully request that this Court grant the following relief:

19

1. A preliminary injunction restraining Defendants, their officers, employees, and agents

20

from preventing INMATES from receiving free religious materials from religious

21

organizations;

22

2. A permanent injunction restraining Defendants, their officers, employees, and agents from

23

preventing INMATES from receiving free religious materials from religious organizations;

3. A preliminary injunction restraining Defendants, their officers, employees, and agents 24
from preventing incarcerated persons from receiving free religious materials from PRISON 25
MINISTRY;

26

27
_________________________________________________________________________________________________________
28
COMPLAINT

-8-

1

4. A permanent injunction restraining Defendants, their officers, employees, and agents from

2

preventing incarcerated persons from receiving free religious materials from PRISON

3

MINISTRY;

5. A declaration as to whether it is lawful, under the First and Fourteenth Amendments, to 4
classify as “contraband” free Christian materials, whether softbound literature or CDs and
5 tapes, that are sent at the request of incarcerated persons;

6

6. A declaration as to whether the practices, policies and regulations of Defendants which

7

prohibit free Christian materials impose a substantial burden on INMATES’ exercise of

8

religion;

9

7. A declaration as to whether the practices, policies and regulations of Defendants which

10

prohibit free Christian materials are the least restrictive means to achieve a narrowly

tailored compelling state interest; 11
8. For nominal damages to be awarded to PRISON MINISTRY in the amount of one hundred

12

dollars or such amount as the Court deems appropriate;

13

9. For an award of costs;

14

10. For an award of reasonable attorneys’ fees pursuant to 42 U.S.C. § 1988(b) and other

15

applicable statutes;

16

11. For such other and further relief as this Court may deem just and proper.

17

DEMAND FOR JURY

Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiff hereby demands a 18
trial by jury in this action of all issues so triable.

19

Date: February 25, 2005.

20

21

22

By:________/s/_________________

Kevin T. Snider

23

Brad Dacus

Attorneys for Plaintiffs,

24

JESUS CHRIST PRISON MINISTRY, et al.

25

26

27
_________________________________________________________________________________________________________
28
COMPLAINT

-9-

1

VERIFICATION

2

I, RONALD ISSLER, am the Director for Jesus Christ Prison Ministry, a Plaintiff in the

3 above-captioned matter. I have read the VERIFIED COMPLAINT FOR VIOLATIONS OF
4 RELIGIOUS LAND USE AND INSTITUTIONALIZED PERSONS ACT, FIRST, AND 5
FOURTEENTH AMENDMENT; INJUNCTIVE AND DECLARATORY RELIEF 6
and am familiar with same. The contents are true and accurate and known to me by personal 7
8 knowledge except for those matters asserted on information and belief. As to those matters, I
9 believe them to be true.

10

I declare under penalty of perjury, under the laws of the State of California, that the

11 foregoing is true and correct. Executed this 25th day of February, 2005, in the County of San
12 Bernardino, Lucerne Valley, State of California.
13

14

/s/ Ronald Issler

15

RONALD ISSLER

16

(original signature retained by

attorney Kevin Snider)

17

18

19

20

21

22

23

24

25

26

27
_________________________________________________________________________________________________________
28
COMPLAINT

-10-

 
 1 BILL LOCKYER, Attorney General of the State of California
2 ROBERT R. ANDERSON Chief Assistant Attorney General
3 FRANCES T. GRUNDER Senior Assistant Attorney General
4 JAMES E. FLYNN Supervising Deputy Attorney General
5 JOHN W. RICHES II, State Bar No. 206223 Deputy Attorney General
6 1300 I Street, Suite 125 P.O. Box 944255
7 Sacramento, CA 94244-2550 Telephone: (916) 323-5915
8 Fax: (916) 324-5205 Attorneys for Defendants California Department of Corrections,
9 Woodford and Adams SA2005101560
10
UNITED STATES DISTRICT COURT
11
EASTERN DISTRICT OF CALIFORNIA
12

13 JESUS CHRIST PRISON MINISTRY, No. 2:05-CV-00440-FCD-DAD

et al. ,
14

ANSWER OF DEFENDANTS AND

Plaintiff, DEMAND FOR JURY TRIAL
15

v.

16

CALIFORNIA DEPARTMENT OF

17 CORRECTIONS, et al.,

18

.

19

20

DEFENDANTS, for their answer to the first amended complaint filed

21 March 3, 2005, deny, admit, and allege as follows:

22

I.

23

Except for those allegations that are expressly admitted herein, defendants

24 deny each and every allegation of the complaint and any attachments thereto.

25

II.

26

Defendants Woodford and Adams expressly admit that they were

27 employees of the California Department of Corrections at all relevant times.

28 ///

1 Answer of Defendants and Demand for Jury Trial

1

III.

2

Defendants expressly deny that they have denied the inmate plaintiffs their

3 rights under the Religious Land Use and Institutionalized Persons Act of 2000.

4

IV.

5

Defendants expressly deny that they have violated plaintiffs’ right of free

6 exercise of religion under the First and Fourteenth Amendments.

7

V.

8

Defendants expressly deny that they have violated plaintiffs’ right of free

9 speech under the First and Fourteenth Amendments.

10

VI.

11

Defendants are presently without sufficient information to admit or deny

12 the remaining allegations of plaintiff's complaint, and on that basis, deny each and every

13 other allegation therein.

14

VII.

15

AFFIRMATIVE DEFENSES

16

1. The inmate plaintiffs have failed to exhaust available administrative

17 remedies relating to this complaint before bringing this action, as required under 42

18 U.S.C. § 1997e(a), as amended by the Prison Litigation Reform Act of 1996.

19

2. Plaintiffs’ claims are barred to the extent that they were not timely

20 filed as required by applicable statutes of limitations.

21

3. Defendants are immune from suit for damages.

22

4. Plaintiffs’ own conduct has contributed to their damages.

23

5. Plaintiffs have failed to mitigate their damages.

24

6. Plaintiffs are not entitled to punitive damages because defendants

25 did not act with malicious intent to deprive them of any constitutional right or to cause

26 any other injury.

27 ///

28 ///

2 Answer of Defendants and Demand for Jury Trial

1

7. Because the complaint is couched in conclusory terms, defendants

2 cannot fully anticipate all affirmative defenses that may be applicable to this matter.

3 Accordingly, the right to assert additional affirmative defenses, if and to the extent such

4 affirmative defenses are applicable, is hereby reserved.

5

DEMAND FOR JURY TRIAL

6

Pursuant to Rule 38 of the Federal Rules of Civil Procedure, defendants

7 demand that this action be tried by and before a jury to the extent provided by law.

8

PRAYER FOR RELIEF

9

Defendants pray that the court provide the following relief:

10

1. Dismissal of the complaint;

11

2. Entry of judgment for defendants;

12

3. An award of costs of suit and attorneys' fees; and

13

4. Such other relief as the court deems proper.

14 DATED: April 29, 2005

15

Respectfully submitted,

16

BILL LOCKYER, Attorney General

of the State of California

17

ROBERT R. ANDERSON

Chief Assistant Attorney General

18

FRANCES T. GRUNDER

Senior Assistant Attorney General

19

JAMES E. FLYNN

Supervising Deputy Attorney General

20

21

22

/s/ John W. Riches II

JOHN W. RICHES II

23

Deputy Attorney General

24

Attorneys for Defendants California Department

of Corrections, Woodford and Adams

25

26 10162796.wpd

27

28

3 Answer of Defendants and Demand for Jury Trial

 
 Case 2:05-cv-00440-DAD Document 26 Filed 12/21/05 Page 1 of 2

1

2

3

4

5

6

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

11 JESUS CHRIST PRISON MINISTRY, et al.,
12 Plaintiffs,
13 v.
14 CALIFORNIA DEPARTMENT OF
15 CORRECTIONS, et al.,

No. CIV.S-05-0440 DAD ORDER

16

Defendants.

/

17

18

A further settlement conference was held in chambers on

19 December 19, 2005. Kevin Snider appeared on behalf of plaintiffs

20 and John Riches appeared on behalf of defendants. After further

21 settlement negotiations, the case did not settle. As a result,

22 the court hereby sets the following briefing schedule:

23

1. Plaintiffs shall file a motion for summary judgment

24 on or before February 24, 2006;

25

2. Any opposition by defendants shall be filed on or

26 before March 17, 2006;

1

Case 2:05-cv-00440-DAD Document 26 Filed 12/21/05 Page 2 of 2

1

3. Any reply by plaintiffs is due on or before March

2 31, 2006; and

3

4. The hearing on plaintiffs’ motion for summary

4 judgment is hereby SET for April 7, 2006, at 10:00 a.m. in

5 Courtroom 27 before the undersigned.

6

IT IS SO ORDERED.

7 DATED: December 20, 2005.

8

9

10

11 DAD:lg
consent/jesusministry0440.schedord
12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

2

 
 1 BILL LOCKYER, Attorney General of the State of California
2 JAMES M. HUMES Chief Assistant Attorney General
3 FRANCES T. GRUNDER Senior Assistant Attorney General
4 DAVID A. CARRASCO Supervising Deputy Attorney General
5 JOHN W. RICHES II, State Bar No. 206223 Deputy Attorney General
6 1300 I Street, Suite 125 P.O. Box 944255
7 Sacramento, CA 94244-2550 Telephone: (916) 323-5915
8 Fax: (916) 324-5205 Attorneys for Defendants California Department of Corrections and Rehabilitation,
9 Woodford, and Adams SA2005101560
10

11 Kevin T. Snider, State Bar No. 170988 – Counsel for Service Matthew B. McReynolds, State Bar No. 234797
12 PACIFIC JUSTICE INSTITUTE P.O. Box 276600
13 Sacramento, CA 95827 Tel. (916) 857-6900
14 Fax. (916) 857-6902 Attorneys for Plaintiffs Jesus Christ Prison Ministry, et al.
15

16

UNITED STATES DISTRICT COURT

17

EASTERN DISTRICT OF CALIFORNIA

18

JESUS CHRIST PRISON 19 MINISTRY, et al. ,

No. 2:05-CV-00440 DAD

STIPULATION AND ORDER TO

20

Plaintiff, CONTINUE HEARING ON MOTION

21

v.

FOR RECONSIDERATION OF ORDER ON CROSS-MOTIONS FOR SUMMARY

22 CALIFORNIA DEPARTMENT OF

JUDGMENT

CORRECTIONS, et al., 23

Date:

March 16, 2007

. Time:

10:00 a.m.

24

Courtroom: 27

Before:

Hon. Dale A. Drozd

25

26

27

Attorneys for the parties, have jointly prepared, and respectfully submit this

28 stipulation and proposed order to continue the hearing on Defendants’ motion for

1 Stipulation and Proposed Order to Continue Hearing Set for January 5, 2007

1 reconsideration of the court’s order on cross-motions for summary judgment which is

2 currently set for January 5, 2007, at 10:00 a.m.

3

STIPULATION

4

On November 3, 2006, the court granted Defendants’ request for leave to

5 seek reconsideration of the order filed September 28, 2006, and pursuant to the briefing

6 schedule the parties have filed and served their respective motion and opposition.

7 Defendants’ reply is due December 29, 2006, and the hearing on Defendants’ motion for

8 reconsideration is set for January 5, 2007, at 10:00 a.m.

9

The parties have reached a tentative settlement of this matter and desire a

10 continuance to formalize their agreement. Subject to approval of the accompanying

11 Proposed Order by the court, the parties hereby stipulate, through their respective counsel

12 of record, to a sixty-day continuance of the hearing on Defendants’ motion for

13 reconsideration of the court’s order on cross-motions for summary judgment.

14

The parties stipulate that the court shall set a new hearing date on

15 Defendants’ motion for reconsideration, no sooner than sixty days from January 5, 2007,

16 and that Defendants’ reply, now due December 29, 2006, shall be filed and served no

17 later that seven days prior to the new hearing date.

18

It is so stipulated.

19 Dated: December 28, 2006

20

21

By: /s/ Kevin T. Snider

__________________________

22

Kevin T. Snider

Attorney for Plaintiffs

23

24

25

By: /s/ John W. Riches II

__________________________

26

John W. Riches II

Attorney for Defendants

27

28

2 Stipulation and Proposed Order to Continue Hearing Set for January 5, 2007

1

ORDER

2

Good cause appearing, and based upon the stipulation of the parties, the

3 requested sixty day continuance of the hearing on Defendants’ motion for reconsideration

4 of the court’s order on cross-motions for summary judgment is granted.

5

Good cause further appearing, and based upon the stipulation of the parties,

6 the hearing date on Defendants’ motion for reconsideration is hereby set for March 16,

7 2007 at 10:00 a.m. Defendants’ reply shall be filed and served no later than March 9,

8 2007.

9 Dated: December 28, 2006

10

11

12

13

14 D dad1/orders.consent/jesus0440.stipord

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3 Stipulation and Proposed Order to Continue Hearing Set for January 5, 2007

 
 1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10

11 JESUS CHRIST PRISON MINISTRY, No. 2:05-CV-00440 DAD

et al. , 12

ORDER REGARDING STIPULATION

Plaintiffs, FOR VOLUNTARY DISMISSAL 13

v. 14

CALIFORNIA DEPARTMENT OF 15 CORRECTIONS, et al.,

16

Defendants.

17

18

Upon the Parties’ stipulation for voluntary dismissal with prejudice under

19 Federal Rule of Civil Procedure 41(a)(1)(ii), which is contained in Clerk’s Record (CR)

20 68, as supplemented by CR 69, IT IS ORDERED that:

21

1. This court’s summary judgment order (CR 58) is withdrawn;

22

2. All pending motions and hearing dates are vacated;

23

3. The Clerk of the Court is directed to close this case; and

24

4. Upon the Parties’ agreement, that, to the extent set forth in section 7

25 of the Settlement Agreement, the United States District Court for the Eastern District of

26 California shall retain continuing jurisdiction of the matter entitled Jesus Christ Prison

27 Ministry, et al., Plaintiffs, v. California Department of Corrections, et al., Defendants,

28 Case No. 2:05-CV-00440 DAD, with the Honorable Magistrate Judge Dale A. Drozd

1

1 presiding. The purposes of retaining continuing jurisdiction shall be solely to resolve any

2 disputes that may arise between the named Plaintiffs and Defendants in connection with

3 sections one and two of the Settlement Agreement pertaining to SATF and to enforce the

4 terms contained in sections one and two of this Settlement Agreement. Plaintiffs have no

5 right to enforce any terms which apply to institutions other than SATF, and the Court's

6 continuing jurisdiction does not apply to institutions other than SATF.

7

Before seeking court intervention, the Plaintiffs must first meet and confer

8 with CDCR in good faith, and give CDCR a reasonable opportunity to investigate and

9 remedy (if appropriate) any alleged violation of the terms contained in sections one and

10 two of this agreement. Further, such enforcement rights shall not extend to any third

11 party beneficiary of this agreement. The Court’s continuing jurisdiction shall cease six

12 months after the initial implementation of the religious audio media pilot program at

13 SATF, or six months after the filing date of this Settlement Agreement and the Proposed

14 Order, whichever is later.

15

IT IS SO ORDERED.

16 DATED: April 16, 2007.

17

18

19

20

21 Ddad1/orders.consent/jesuschrist0440.dism

22

23

24

25

26

27

28

2

 
 Case 2:05-cv-00440-DAD Document 69 Filed 04/16/2007 Page 1 of 4

1 EDMUND G. BROWN JR., Attorney General of the State of California
2 DAVID S. CHANEY Chief Assistant Attorney General
3 FRANCES T. GRUNDER Senior Assistant Attorney General
4 TRACY S. HENDRICKSON Supervising Deputy Attorney General
5 JOHN W. RICHES II, State Bar No. 206223 Deputy Attorney General
6 1300 I Street, Suite 125 P.O. Box 944255
7 Sacramento, CA 94244-2550 Telephone: (916) 323-5915
8 Fax: (916) 324-5205 Attorneys for Defendants California Department of Corrections and Rehabilitation,
9 Woodford, and Adams SA2005101560
10
Kevin T. Snider, State Bar No. 170988 – Counsel for Service 11 Matthew B. McReynolds, State Bar No. 234797
PACIFIC JUSTICE INSTITUTE 12 P.O. Box 276600
Sacramento, CA 95827 13 Tel. (916) 857-6900
Fax. (916) 857-6902 14 Attorneys for Plaintiffs Jesus Christ Prison Ministry, et al.

15

UNITED STATES DISTRICT COURT

16

EASTERN DISTRICT OF CALIFORNIA

17

18 JESUS CHRIST PRISON MINISTRY, No. 2:05-CV-00440 DAD

et al. ,
19

SUPPLEMENT TO SETTLEMENT

Plaintiff, AGREEMENT
20

v.

21

CALIFORNIA DEPARTMENT OF

22 CORRECTIONS, et al.,

23

Defendants.

24

25

Plaintiffs, Jesus Christ Prison Ministry, Daniel Leffel, Marvin Salinas, and

26 Daniel Marchy (“Plaintiffs”), by and through counsel of record, Kevin T. Snider, Pacific

27 Justice Institute, and Defendants, California Department of Corrections and

28 Rehabilitation (“CDCR”), by James E. Tilton, its Secretary, and Defendants Woodford

1 Supplement to Settlement Agreement

Case 2:05-cv-00440-DAD Document 69 Filed 04/16/2007 Page 2 of 4

1 and Adams, in their official capacities, have entered into a settlement agreement

2 (“Settlement Agreement”), release, and voluntary dismissal with prejudice pursuant to

3 Federal Rule of Civil Procedure 41(a)(1)(ii). (Clerk’s Record (CR) 68.)

4

The Settlement Agreement provides that CDCR will implement a Pilot

5 Program at the California Substance Abuse Treatment Facility at Corcoran (“SATF”)

6 which establishes policy and procedure for the inspection and issuance of religious audio

7 media from religious organizations that are not departmentally approved inmate Package

8 Vendors. (CR 68 at 3:18-24.) Appendix One, a copy of the approved Pilot Program, was

9 inadvertently omitted from the filing of the Settlement Agreement.

10

Accordingly, the parties supplement the record with Attachment 1, a copy

11 of the approved Pilot Program, which is incorporated by reference as if fully set forth in

12 the Settlement Agreement.

13

14
15 DATED: April 16, 2007
16

/s/ Kevin T. Snider (original signature retained by Defendants’ By: Attorney John W. Riches II) _____________________________________ Kevin T. Snider, Attorney at Law

17

Attorney for Plaintiffs, Jesus Christ Prison

Ministry, Daniel Leffel, Marvin Salinas, and

18

Daniel Marchy

19

20
21 DATED: April 16, 2007
22 23 24

/s/ John W. Riches II By: _____________________________________
John W. Riches II, Deputy Attorney General
Attorney for Defendants California Department of Corrections and Rehabilitation, Woodford, and Adams

25 30252194.wpd

26

27

28

2 Supplement to Settlement Agreement

Case 2:05-cv-00440-DAD Document 69 Filed 04/16/2007 Page 3 of 4

Case 2:05-cv-00440-DAD Document 69 Filed 04/16/2007 Page 4 of 4

 
 CIVIL, CLOSED, CONSENT
U.S. District Court Eastern District of California − Live System (Sacramento)
CIVIL DOCKET FOR CASE #: 2:05−cv−00440−DAD

Jesus Christ Prison Ministry et al v. California Department of Corrections et al Assigned to: Magistrate Judge Dale A. Drozd Demand: $100,000 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 03/03/2005 Date Terminated: 04/16/2007 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Jesus Christ Prison Ministry

represented by Kevin Trent Snider Pacific Justice Institute PO Box 276600 Sacramento, CA 95827 (916) 857−6900 Fax: (916) 857−6902 Email: kevinsnider@pacificjustice.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew Brown McReynolds Pacific Justice Institute PO Box 276600 Sacramento, CA 95827 916−857−6900 Fax: 916−857−6902 Email: mattmcreynolds@pacificjustice.org ATTORNEY TO BE NOTICED

Plaintiff Daniel Leffel

represented by Kevin Trent Snider (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew Brown McReynolds (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Marvin Salinas

represented by Kevin Trent Snider (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew Brown McReynolds (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Daniel Marchy

represented by Kevin Trent Snider (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew Brown McReynolds (See above for address) ATTORNEY TO BE NOTICED

V. Defendant California Department of Corrections
Defendant Jeanne S. Woodford
Defendant Derral G. Adams
Defendant R − Hickman

represented by John William Riches, II California Department of Justice 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244−2550 (916) 323−5915 Fax: (916) 324−5205 Email: John.Riches@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin Trent Snider (See above for address) ATTORNEY TO BE NOTICED
represented by John William Riches, II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin Trent Snider (See above for address) ATTORNEY TO BE NOTICED
represented by John William Riches, II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin Trent Snider (See above for address) ATTORNEY TO BE NOTICED
represented by John William Riches, II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin Trent Snider (See above for address) ATTORNEY TO BE NOTICED

Date Filed 03/03/2005
03/04/2005 03/04/2005

#

Docket Text

1 COMPLAINT against all defendants, filed by Jesus Christ Prison Ministry, Daniel Leffel, Marvin Salinas, Daniel Marchy. (Attachments: # 1 Exhibit # 2 # 3 Exhibit # 4 # 5 # 6 # 7)(Snider, Kevin) Additional attachment(s) added on 3/4/2005 (Waggoner, D). Modified on 3/4/2005 (Waggoner, D). (Entered: 03/03/2005)

2 NOTICE by all plaintiffs Civil Cover Sheet (Snider, Kevin) (Entered: 03/04/2005)

RECEIPT number 201 9541 for $250.00 for civil filing fee from Brad Dacus. (Waggoner, D) (Entered: 03/04/2005)

03/04/2005 03/04/2005 03/29/2005 03/29/2005 03/29/2005 04/29/2005 05/17/2005 06/01/2005
06/07/2005
06/10/2005 07/19/2005 07/29/2005

4 SUMMONS ISSUED as to *California Department of Corrections, Jeanne S. Woodford, Derral G. Adams* with answer to complaint due within *20* days. Attorney *Kevin Trent Snider* *Pacific Justice Institute* *PO Box 276600* *Sacramento, CA 95827*. (Waggoner, D) (Entered: 03/04/2005)
5 CIVIL NEW CASE DOCUMENTS ISSUED; (Attachments: # 1 Consent Forms # 2 VDRP Forms) (Waggoner, D) (Entered: 03/04/2005)
6 SUMMONS RETURNED EXECUTED on 3/16/2005 as to Derral G. Adams. (Snider, Kevin) Modified on 3/30/2005 (Forester, C). (Entered: 03/29/2005)
7 SUMMONS RETURNED EXECUTED on 3/15/2005 as to California Department of Corrections. (Snider, Kevin) Modified on 3/30/2005 (Forester, C). (Entered: 03/29/2005)
8 SUMMONS RETURNED EXECUTED on 3/15/2005 as to Jeanne S. Woodford. (Snider, Kevin) Modified on 3/30/2005 (Forester, C). (Entered: 03/29/2005)
9 ANSWER to COMPLAINT with Jury Demand by California Department of Corrections, Jeanne S. Woodford, Derral G. Adams. (Attachments: # 1 Declaration of Service)(Riches, John) (Entered: 04/29/2005)
10 JOINT STATUS REPORT by plaintiff and defendants. (Snider, Kevin) (Entered: 05/17/2005)
11 ORDER REASSIGNING CASE that the clerk of the court reassign this case to the Honorable Dale A. Drozd. The parties shall please take note that all documents hereafter filed with the clerk of the court shall bear case number CIV−S 05−440 DAD. All currently scheduled dates presently set before Judge Damrell are hereby vacated. Signed by Judge Dale A. Drozd on 05/31/05. (Plummer, M) (Entered: 06/01/2005)
12 ORDER signed by Judge Dale A. Drozd on 6/6/05 ORDERING a Status Conference set for 7/29/2005 at 11:00 AM in Courtroom 27 (DAD) before Magistrate Judge Dale A. Drozd. Parties shall submit, no later than 7 days before the Conference a status report. Pltf to complete service of process on all dfts according to this order. (Sherman, T) Modified on 6/7/2005 (Sherman, T). (Entered: 06/07/2005)
13 CERTIFICATE of SERVICE by Jesus Christ Prison Ministry, Daniel Leffel, Marvin Salinas, Daniel Marchy re 12 Order,, Set/Reset Deadlines and Hearings (O), Set/Reset Deadlines and Hearings (O) (McReynolds, Matthew) (Entered: 06/10/2005)
14 STATUS REPORT Joint by Jesus Christ Prison Ministry, Daniel Leffel, Marvin Salinas, Daniel Marchy, California Department of Corrections, Jeanne S. Woodford, Derral G. Adams. (McReynolds, Matthew) (Entered: 07/19/2005)
15 MINUTES for proceedings held before Judge Dale A. Drozd : STATUS CONFERENCE held on 7/29/2005. Court inquired as to setting matter for an early settlement conference. Parties stated they are agreeable to an early settlement conference. Parties stipulate on the record for Magistrate to act as settlement judge in this matter. Parties agreed to an Early Settlement Conference date of 9/7/2005 at 10:00 AM in Courtroom 27 (DAD) before Magistrate Judge Dale A. Drozd. Court discussed with counsel of authority for accepting settlement. Parties to file waivers of disqualification. Parties to submit confidential settlement conference statements no later than 9/6/05. Court will set schedule for case following settlement conference if necessary.

07/29/2005
08/30/2005 08/31/2005 09/07/2005
11/07/2005 11/07/2005
11/16/2005 12/12/2005 12/12/2005 12/19/2005 12/21/2005

Court to issue written order. Plaintiffs Counsel Kevin Snider present. Defendants Counsel John Riches present. Court Reporter/CD Number: 1. (Buzo, P) (Entered: 07/29/2005)
16 MINUTE ORDER: by Crd Settlement Conference set for 9/7/2005 at 10:00 AM in Courtroom 27 (DAD) before Magistrate Judge Dale A. Drozd. Parties are to submit confidential settlement conference statements no later than 9/6/05. Parties are to file waivers of disqualification.(Buzo, P) (Entered: 07/29/2005)
17 NOTICE by R − Hickman, California Department of Corrections, Jeanne S. Woodford, Derral G. Adams of Waiver Allowing Assigned Judge to Act as Settlement Judge (Riches, John) (Entered: 08/30/2005)
18 CONSENT to JURISDICTION by US MAGISTRATE JUDGE by Jesus Christ Prison Ministry. (Snider, Kevin) (Entered: 08/31/2005)
19 MINUTES for proceedings held before Judge Dale A. Drozd : SETTLEMENT CONFERENCE held on 9/7/2005. After settlement negotiations, case did not settle. Further settlement conferenc or status Conference set for 11/9/2005 at 10:00 AM in Courtroom 27 (DAD) before Magistrate Judge Dale A. Drozd. Parties to notify Court one week before conference.Plaintiffs Counsel Kevin Snider present. Defendants Counsel John Riches present. (Buzo, P) (Entered: 09/07/2005)
20 STIPULATION and PROPOSED ORDER Stip and Proposed Order by Jesus Christ Prison Ministry. (Snider, Kevin) (Entered: 11/07/2005)
21 STIPULATION and ORDER to Continue Settlement Conference signed by Judge Dale A. Drozd on 11/7/05. It is ORDERED that the 11/9/05 Settlement Conference be continued. Settlement Conference RESCHEDULED for 12/19/2005 at 10:00 AM in Courtroom 27 (DAD) before Magistrate Judge Dale A. Drozd. (Brown, T) (Entered: 11/07/2005)
22 MINUTE ORDER by Crd: Further Early Settlement Conference set for 12/19/2005 at 10:00 AM in Courtroom 27 (DAD) before Magistrate Judge Dale A. Drozd. Supplemental settlement conference statements due on or before 12/12/05.(Buzo, P) (Entered: 11/16/2005)
23 CONSENT to JURISDICTION by US MAGISTRATE JUDGE by Jesus Christ Prison Ministry. (Snider, Kevin) (Entered: 12/12/2005)
24 NOTICE by R − Hickman, California Department of Corrections, Jeanne S. Woodford, Derral G. Adams Waiver Allowing Assigned Judge to Act as Settlement Judge (Riches, John) (Entered: 12/12/2005)
25 MINUTES for proceedings held before Judge Dale A. Drozd : SETTLEMENT CONFERENCE held on 12/19/2005. After further settlement negotiations, case did not settle. Plaintiffs Counsel Kevin Snider present. Defendants Counsel John Riches present. (Buzo, P) (Entered: 12/19/2005)
26 ORDER signed by Judge Dale A. Drozd on 12/20/06 ORDERING Pltfs shall file a motion for summary judgment on or before 2/24/06. Any opposition by dfts shall be filed on or before 3/17/06. Any reply by pltfs is due on or before 3/31/06. Motion Hearing is SET for 4/7/2006 at 10:00 AM in Courtroom 27 (DAD) before Magistrate Judge Dale A. Drozd.(Girgis, C)

02/24/2006
02/24/2006 02/24/2006 02/24/2006 02/24/2006 02/24/2006
02/24/2006 02/24/2006 02/24/2006 02/24/2006 02/24/2006 02/24/2006 02/24/2006 02/24/2006 02/24/2006 02/24/2006 03/08/2006

(Entered: 12/21/2005)
27 MOTION for SUMMARY JUDGMENT by Jesus Christ Prison Ministry. Motion Hearing set for 4/7/2006 at 10:00 AM in Courtroom 27 (DAD) before Magistrate Judge Dale A. Drozd. (Snider, Kevin) (Entered: 02/24/2006)
28 DECLARATION of Daniel Leffel in support of 27 Motion. (Snider, Kevin) Modified on 2/27/2006 (Kirkpatrick, S). (Entered: 02/24/2006)
29 DECLARATION of Marchy re 27 MOTION for SUMMARY JUDGMENT. (Snider, Kevin) (Entered: 02/24/2006)
30 DECLARATION of Salinas re 27 MOTION for SUMMARY JUDGMENT. (Snider, Kevin) (Entered: 02/24/2006)
31 DECLARATION of Snider re 27 MOTION for SUMMARY JUDGMENT. (Snider, Kevin) (Entered: 02/24/2006)
32 STATEMENT of Undisputed Facts by Plaintiffs Jesus Christ Prison Ministry, Daniel Leffel, Marvin Salinas, Daniel Marchy re 27 MOTION for SUMMARY JUDGMENT. (Snider, Kevin) (Entered: 02/24/2006)
33 EXHIBIT 1 to Motion for Summary Judgment by Jesus Christ Prison Ministry, Daniel Leffel, Marvin Salinas, Daniel Marchy. (Snider, Kevin) (Entered: 02/24/2006)
34 EXHIBIT 2 to Motion for Summary Judgment by Jesus Christ Prison Ministry, Daniel Leffel, Marvin Salinas, Daniel Marchy. (Snider, Kevin) (Entered: 02/24/2006)
35 EXHIBIT 3 to Motion for Summary Judgment by Jesus Christ Prison Ministry, Daniel Leffel, Marvin Salinas, Daniel Marchy. (Snider, Kevin) (Entered: 02/24/2006)
36 EXHIBIT 4 to Motion for Summary Judgment by Jesus Christ Prison Ministry, Daniel Leffel, Marvin Salinas, Daniel Marchy. (Snider, Kevin) (Entered: 02/24/2006)
37 EXHIBIT 5 to Motion for SummaryJudgment by Jesus Christ Prison Ministry, Daniel Leffel, Marvin Salinas, Daniel Marchy. (Snider, Kevin) (Entered: 02/24/2006)
38 EXHIBIT 6 to Motion for Summary Judgment by Jesus Christ Prison Ministry, Daniel Leffel, Marvin Salinas, Daniel Marchy. (Snider, Kevin) (Entered: 02/24/2006)
39 EXHIBIT 7 to Motion for Summary Judgment by Jesus Christ Prison Ministry, Daniel Leffel, Marvin Salinas, Daniel Marchy. (Snider, Kevin) (Entered: 02/24/2006)
40 EXHIBIT 8 to Motion for Summary Judgment by Jesus Christ Prison Ministry, Daniel Leffel, Marvin Salinas, Daniel Marchy. (Snider, Kevin) (Entered: 02/24/2006)
41 DECLARATION of Issler re 27 MOTION for SUMMARY JUDGMENT. (Snider, Kevin) (Entered: 02/24/2006)
42 MEMORANDUM/RESPONSE in SUPPORT re 27 MOTION for SUMMARY JUDGMENT. (Snider, Kevin) (Entered: 02/24/2006)
43 DECLARATION of Daniel Leffel in SUPPORT OF re 27 MOTION for SUMMARY JUDGMENT Signed Declaration. (Snider, Kevin) (Entered: 03/08/2006)

03/17/2006 03/17/2006 03/27/2006
04/03/2006 04/07/2006 04/07/2006 04/07/2006

44 DEFENDANT(S) MOTION for SUMMARY JUDGMENT Pursuant to Rule 56 of the Federal Rules of Civil Procedure; and in the Alternative to Dismiss Pursuant to Unenumerated Rule 12(b) of the Federal Rules of Civil Procedure; Memorandum of Points and Authorities (Cross) by California Department of Corrections, Jeanne S. Woodford, Derral G. Adams. Motion Hearing set for 4/7/2006 at 10:00 AM in Courtroom 27 (DAD) before Magistrate Judge Dale A. Drozd. (Riches, John) (Entered: 03/17/2006)
45 STATEMENT of Undisputed Facts by Defendants California Department of Corrections, Jeanne S. Woodford, Derral G. Adams re 44 DEFENDANT(S) MOTION for SUMMARY JUDGMENT Pursuant to Rule 56 of the Federal Rules of Civil Procedure; and in the Alternative to Dismiss Pursuant to Unenumerated Rule 12(b) of the Federal Rules of Civil Procedure; Memorandum of Points and Authorities. (Attachments: # 1 Exhibit A# 2 Exhibit A−Attachment 1# 3 Exhibit A−Attachment 2# 4 Exhibit A−Attachment 3# 5 Exhibit A−Attachment 4# 6 Exhibit B# 7 Exhibit C# 8 Exhibit D# 9 Declaration E)(Riches, John) (Entered: 03/17/2006)
46 STIPULATION and PROPOSED ORDER Summary Judgment re 30 , 31 , 32 Statement, 33 Exhibit, 34 Exhibit, 35 Exhibit, 36 Exhibit, 37 Exhibit, 38 Exhibit, 39 Exhibit, 40 Exhibit, 41 , 27 MOTION for SUMMARY JUDGMENT, 42 Memorandum/Response in Support of Motion, 28 PLAINTIFF(S) MOTION for SUMMARY JUDGMENT Declaration Leffel, 29 , 43 , 44 DEFENDANT(S) MOTION for SUMMARY JUDGMENT Pursuant to Rule 56 of the Federal Rules of Civil Procedure; and in the Alternative to Dismiss Pursuant to Unenumerated Rule 12(b) of the Federal Rules of Civil Procedure; Memorandum of Points and Authorities, 45 Statement,, by Jesus Christ Prison Ministry, Daniel Leffel, Marvin Salinas, Daniel Marchy, R − Hickman, California Department of Corrections, Jeanne S. Woodford, Derral G. Adams. (Snider, Kevin) (Entered: 03/27/2006)
47 STIPULATION and ORDER 46 signed by Judge Dale A. Drozd on 03/31/06 ORDERING Hearing date for pltf's motion for summary judgment 27 and dfts' cross−motion for summary judgment 44 RESET for 4/21/2006 at 10:00 AM in Courtroom 27 (DAD) before Magistrate Judge Dale A. Drozd; Deadline for filing pltf's opposition to dfts' cross−motion for summary judgmnet is 04/07/06.(Warren, P) (Entered: 04/03/2006)
48 MEMORANDUM/RESPONSE in OPPOSITION re 44 DEFENDANT(S) MOTION for SUMMARY JUDGMENT Pursuant to Rule 56 of the Federal Rules of Civil Procedure; and in the Alternative to Dismiss Pursuant to Unenumerated Rule 12(b) of the Federal Rules of Civil Procedure; Memorandum of Points and Authorities. (Snider, Kevin) (Entered: 04/07/2006)
49 STATEMENT of Undisputed Facts by Plaintiffs Jesus Christ Prison Ministry, Daniel Leffel, Marvin Salinas, Daniel Marchy re 44 DEFENDANT(S) MOTION for SUMMARY JUDGMENT Pursuant to Rule 56 of the Federal Rules of Civil Procedure; and in the Alternative to Dismiss Pursuant to Unenumerated Rule 12(b) of the Federal Rules of Civil Procedure; Memorandum of Points and Authorities, 45 Statement,,. (Snider, Kevin) (Entered: 04/07/2006)
50 DECLARATION of Daniel Leffel in Opposition TO Defendants' SJM Cross−Motion. (Snider, Kevin) (Entered: 04/07/2006)

04/07/2006 04/07/2006 04/07/2006 04/07/2006 04/07/2006 04/13/2006 04/21/2006
09/28/2006
11/03/2006

51 DECLARATION of Marvin Salinas in OPPOSITION TO re 44 DEFENDANT(S) MOTION for SUMMARY JUDGMENT Pursuant to Rule 56 of the Federal Rules of Civil Procedure; and in the Alternative to Dismiss Pursuant to Unenumerated Rule 12(b) of the Federal Rules of Civil Procedure; Memorandum of Points and Authorities. (Snider, Kevin) (Entered: 04/07/2006)
52 DECLARATION of Ronald Issler in OPPOSITION TO re 44 DEFENDANT(S) MOTION for SUMMARY JUDGMENT Pursuant to Rule 56 of the Federal Rules of Civil Procedure; and in the Alternative to Dismiss Pursuant to Unenumerated Rule 12(b) of the Federal Rules of Civil Procedure; Memorandum of Points and Authorities. (Snider, Kevin) (Entered: 04/07/2006)
53 DECLARATION of Kevin Snider in OPPOSITION TO re 44 DEFENDANT(S) MOTION for SUMMARY JUDGMENT Pursuant to Rule 56 of the Federal Rules of Civil Procedure; and in the Alternative to Dismiss Pursuant to Unenumerated Rule 12(b) of the Federal Rules of Civil Procedure; Memorandum of Points and Authorities. (Snider, Kevin) (Entered: 04/07/2006)
54 EXHIBIT 9 by Jesus Christ Prison Ministry, Daniel Leffel, Marvin Salinas, Daniel Marchy. (Snider, Kevin) (Entered: 04/07/2006)
55 EXHIBIT 10 by Jesus Christ Prison Ministry, Daniel Leffel, Marvin Salinas, Daniel Marchy. (Snider, Kevin) (Entered: 04/07/2006)
56 DECLARATION of Ronald Issler in OPPOSITION TO re 44 DEFENDANT(S) MOTION for SUMMARY JUDGMENT Pursuant to Rule 56 of the Federal Rules of Civil Procedure; and in the Alternative to Dismiss Pursuant to Unenumerated Rule 12(b) of the Federal Rules of Civil Procedure; Memorandum of Points and Authorities. (Snider, Kevin) (Entered: 04/13/2006)
57 MINUTES for proceedings held before Judge Dale A. Drozd : MOTION HEARING held on 4/21/2006 re 27 MOTION for SUMMARY JUDGMENT filed by Jesus Christ Prison Ministry, 44 DEFENDANT(S) CROSS MOTION for SUMMARY JUDGMENT; and in the Alternative to Dismiss. Plaintiff abandoned nominal damages claim. After hearing of arguments, for reasons stated on the record, matters submitted. Court to issue written order.Plaintiffs Counsel Kevin Snider present. Defendants Counsel John Riches present. Court Reporter/CD Number: Casey Forester/1. (Buzo, P) (Entered: 04/21/2006)
58 ORDER signed by Judge Dale A. Drozd on 9/27/2006 ORDERING: Dfts' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b) is DENIED; 44 Defendant(s) Motion for Summary Judgment is GRANTED w/respect to dft Woodford and DENIED in all other respects; 27 Motion for Summary Judgment filed by Jesus Christ Prison Ministry is GRANTED in part and DENIED to the extent set forth above; and a Status Conference is set for 11/3/2006 at 11:00 AM in Courtroom 27 (DAD) before Magistrate Judge Dale A. Drozd. (Matson, R) (Entered: 09/28/2006)
59 MINUTES (Text Only) for proceedings held before Judge Dale A. Drozd : STATUS CONFERENCE held on 11/3/2006. Defendant informed Court they are seeking to file a motion for leave to file reconsideration and request 30 days to file motion. Request granted. Motion to be filed by 11/27/06; opposition due 12/18/06; reply due 12/29/06; Motion Hearing set for 1/5/2007 at 10:00 AM in Courtroom 27 (DAD) before Magistrate Judge Dale A. Drozd. Parties to inform Court if another settlement conference is necessary. Court to issue written brief

11/06/2006
11/21/2006 12/18/2006 12/18/2006 12/28/2006 12/29/2006
03/06/2007 03/07/2007 04/13/2007 04/16/2007

order.Plaintiffs Counsel Kevin Snider present. Defendants Counsel John Riches present. Court Reporter/CD Number: Casey Schultz/1. (Buzo, P) (Entered: 11/03/2006)
60 ORDER signed by Judge Dale A. Drozd on 11/03/06: Dfts' request for leave to seek reconsideration of the order filed 09/28/06 is GRANTED; dfts shall file and serve their motion on or before 11/27/006; pltfs' opposition due 12/18/06; dfts' reply due 12/29/06; the hearing on the motion for reconsideration is set for 01/05/07 at 10:00AM in Courtroom 27.(Kirkpatrick, S) (Entered: 11/06/2006)
61 MOTION for RECONSIDERATION re 58 Order; Memorandum of Points and Authorities in support of by California Department of Corrections, Jeanne S. Woodford, Derral G. Adams. (Attachments: # 1 Exhibit A: Declaration of Don Price)(Riches, John) Modified on 11/27/2006 (Duong, D). (Entered: 11/21/2006)
62 OBJECTIONS to the Declaration of Don Price 61 . (Snider, Kevin) Modified on 12/19/2006 (Duong, D). (Entered: 12/18/2006)
63 MEMORANDUM/RESPONSE in OPPOSITION to dfts' Motion for Reconsideration 61 . Attorney McReynolds, Matthew Brown added. (McReynolds, Matthew) Modified on 12/19/2006 (Duong, D). (Entered: 12/18/2006)
64 STIPULATION and PROPOSED ORDER to Continue Hearing on Motion for Reconsideration of Order on Cross−Motions for Summary Judgment by California Department of Corrections, Jeanne S. Woodford, Derral G. Adams. (Riches, John) (Entered: 12/28/2006)
65 STIPULATION and ORDER signed by Judge Dale A. Drozd on 12/28/06 ORDERING thatthe requested 60 day continuance of the hearing on Dfts' motion for reconsideration of the court's order on cross−motions for summary judgment is GRANTED. The hearing date on Dfts' motion for reconsideration is hereby set for 3/16/07 at 10:00 a.m. Dfts' reply shall be filed and served no later than 3/9/07. (Engbretson, K.) (Entered: 12/29/2006)
66 STIPULATION and PROPOSED ORDER to Continue Hearing on Motion for Reconsideration of Order on Cross−Motions for Summary Judgment re 65 Stipulation and Order, Set/Reset Deadlines and Hearings − O,, by California Department of Corrections, Jeanne S. Woodford, Derral G. Adams. (Riches, John) (Entered: 03/06/2007)
67 STIPULATION and ORDER signed by Judge Dale A. Drozd on 3/6/2007 GRANTING 66 Stipulation and Proposed Order to reset the motion for reconsideration hearing to 4/20/2007 at 10:00 AM in Courtroom 27 (DAD) before Magistrate Judge Dale A. Drozd. (Matson, R) (Entered: 03/07/2007)
68 STIPULATION and PROPOSED ORDER −− Settlement Agreement, Release of All Claims, and Stipulation for Voluntary Dismissal with Prejudice, by California Department of Corrections, Jeanne S. Woodford, Derral G. Adams. (Attachments: # 1 Proposed Order Regarding Stipulation for Voluntary Dismissal)(Riches, John) (Entered: 04/13/2007)
69 SUPPLEMENT by California Department of Corrections, Jeanne S. Woodford, Derral G. Adams re 68 Stipulation and Proposed Order,. {Supplement to CR 68 with Attachment 1} (Riches, John) (Entered: 04/16/2007)

04/16/2007 04/16/2007

70 PROPOSED ORDER − Amended Proposed Order Regarding Stipulation for Voluntary Dismissal re 69 Supplement, 68 Stipulation and Proposed Order, by California Department of Corrections, Jeanne S. Woodford, Derral G. Adams. (Riches, John) (Entered: 04/16/2007)
71 STIPULATION and ORDER signed by Judge Dale A. Drozd on 04/16/07: Upon the parties' stipulation for voluntary dismissal with prejudice under 41(a) this action is CLOSED. CASE CLOSED. (Kirkpatrick, S) (Entered: 04/16/2007)