Case 2:11-cv-01676-SVW-FMO Document 1 Filed 02/25/11 Page 1 of 16 Page ID #:2

1 JONATHAN M. GORDON (SBN 082202) j_onathan.gordon(al,alston.com
2 LEIB M. LERNER (SBN 227323) leib.lerner(al,alston.com
3 CASSANDRA HOOKS (SBN 244471) cassandra.hooks(al,alston.com
4 ALSTON & BlliD LLP 333 South Ho]Je Street, Sixteenth Floor
5 Los Angeles, California 90071 Telephone: (213) 576-1000
6 Facsimile: (213) 576-1100

7 PETER ELIASBERG (SBN 18911 0)
_8 peliasberg@ACLU-SC.ORG ACLU FO'ONDATION
9 OF SOUTHERN CALIFORNIA 1313 West Eighth Street
10 Los Angeles, California 90017 Telephone: (213) 977-9500
11 Facsimile: (213) 977-5299 12

DANIEL MACH ( C Bar No. 461652) dmach(al,dcaclu.org ACLU'FOUNDATION PROGRAM ON FREEDOM OF RELI~ION AND BELIEF 915 15 Street NW Washington, DC 20005 Telephone: (202) 675-2330 Facsunile: (202) 546-0738 Pro hac vice application pending

13 HARSIMRAN KAUR DANG, ESQ. (SBN: 264240)

harsimran(al,sik.hcoalition.org

14

THE SIKH COALITION 39465 Paseo Padre Pkvyy~ Ste. 3550

15 Fremont, California 945311

Telephone: (510) 659-0900 x92

16 Facsimile: (510) 952-3900

17 Attorneys for PlaintiffSukhjinder S. Basra

18

UNITED STATES DISTRICT COURT

19

CENTRAL DISTRICT OF CALIFORNIA

20

WESTERN DIVISION

21 SUKHJINDER S. BASRA,

22

Plaintiff,

23

v.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND

24 MATTHEW CATE, Secretary ofthe

NOMINAL DAMAGES

California Department of Corrections and

25 Rehabilitatiou. in his official capacity, and

TERRI GONL.ALEZ, Warden ofthe

26 California Men's Colony, in her official and

individual capacities,

27

Defendants. 28

1
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND NOMINAL DAMAGES

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1 JURISDICTION AND VENUE
2

1. This action for injunctive and declaratory relief and nominal damages

3

challenges the unlawful interference by state officers and their agents with Sukhjinder

4

S. Basra's practice of his religion. This Court has subject matter jurisdiction pursuant

5

to 28 U.S.C. §§ 1331 and 1343, because the cause of action asserted arises under

6

federal law, namely 42 U.S.C. § 2000cc-1.

7 2. Venue is proper in this Court pursuant to 28 U.S.C. § 1391, because a

8

substantial part of the events or omissions giving rise to the claims at issue occurred in

9

this District.

10 ffiTRODUCTORYSTATEMENT

11 3. Plaintiff Sukhjinder S. Basra, an inmate at the California Men's Colony

12 Correctional Facility ("CMC") in San Luis Obispo, California, brings this action to

13 compel Matthew Cate, Secretary of the California Department of Corrections and

14 Rehabilitation (the "CDCR"), and Terri Gonzalez, Warden of the CMC, and their

15 · agents to cease their unlawful interference with his practice of religion. Mr. Basra

16 practices Sikhism and maintains his hair and beard uncut and unshaved pursuant to

17 sincerely held religious beliefs. A fundamental requirement of the Sikh religion is that

18 practitioners maintain unshorn hair (Kesh) on their bodies, a requirement that includes

19 facial hair. This mandatory article of faith signifies respect for the will of God.

20 4. Mr. Basra believes that cutting his hair or beard is a violation of his Sikh

21 religious beliefs. Historically, some followers of Sikhism have been willing to be

22 punished by death rather than cut their hair or shave.

23 5. Mr. Basra's maintenance of his uncut beard violates a CDCR grooming

24 policy, codified at 15 California Code of Regulations § 3062(h) (the "Grooming

25 Policy"), which prohibits facial hair longer than. one-half inch, and contains no

26 religious exemption. As a consequence of Mr. Basra's adherence to his religious

27 beliefs, he has faced disciplinary sanctions and exclusion from prison programs and

28

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND NOMINAL DAMAGES

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1 activities, including 40 hours of extra work duty, 10 days confinement to quarters with

2 no bedside visitors, and the loss of 30 days of good time credits, in violation of his

3 rights under the Religious Land Use and Institutionalized Persons Act ("RLUIPA"),

4 42 U.S.C. §§ 2000cc-2000cc-5. So central is the maintenance of unshorn hair to Mr.

5 Basra's religious beliefs that he has endured the deprivation of privileges and become

6 subject to longer confinement in prison rather than comply with the Grooming Policy.

7

6. Mr. Basra seeks preliminary and permanent injunctive relief barring

8 Defendants from enforcing the Grooming Policy against him, and compelling them to

9 lift all disciplinary sanctions that have been imposed upon him as a direct

10 consequence of his non-compliance with the policy, and requiring Defendants to

11 expunge his record of any reference to his having engaged in violations of the

12 Grooming Policy. He further seeks a declaration from this Court that Defendants'

l3 enforcement of the Grooming Policy against him violates his rights under RLUIPA,

14 and nominal damages against defendant Gonzalez.

15

THEPARTIES

16

7. Plaintiff Basra is an inmate at CMC in San Luis Obispo, California. He is

17 a Canadian citizen who has practiced the Sikh faith his entire life. Mr. Basra has

18 numerous male family members who similarly practice Sikhism, including adhering to

19 the requirement of keeping Kesh by not shaving their beards or cutting their hair.

20

8. Defendant Matthew Cate is the Secretary of the CDCR and is sued in his

21 official capacity. Secretary Cate is charged by statute with the supervision and

22 management of CDC and its facilities and the enforcement of its policies, including

23 the Grooming Policy. Upon information and belief, CDCR receives federal financial

24 assistance.

25

9. Defendant Terri Gonzalez is the warden of the CMC and is sued in her

26 official and individual capacities. Warden Gonzalez is responsible for the enforcement

27 ofCDCR policies, including the Grooming Policy, at CMC.

28

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND NOMINAL DAMAGES

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1

FACTUALBACKGROUND

2

A. Plaintiff's Incarceration

3

10. Mr. Basra was originally held at the Pleasant Valley State Prison (the

4 "PVSP"). After one year of discipline-free incarceration at PVSP, the CDCR

5 transferred Mr. Basra to the CMC on or about February 26, 2010. At the CMC, Mr.

6 Basra is kept in an unlocked, 90-person dormitory room, and has more extensive

7 privileges than when he was held in PVSP, including having additional yard time and

8 no longer living in a 2-man jail cell.

9

11. The ability to retain his privileges at the CMC, and to not be transferred

10 to a more restrictive confinement either at the CMC or another prison in the CDCR

11 system, depends largely upon Mr. Basra's continued good behavior and lack ofCDCR

12 discipline. Each time that Mr. Basra is disciplined, for any reason, he receives a

13 number of ''points." Once the total points reach a certain number, Mr. Basra's status

14 will change, and he will be transferred out of his current CMC assignment, where he

15 is held under minimum security.

16

B. Plaintiff Basra Practices Sikhism and Maintains His Hair and Beard

17

Uncut

18

12. Plaintiff Basra practices Sikhism and maintains his hair and beard uncut

19 and unshaved pursuant to sincerely held religious beliefs. A fundamental requirement

20 of the Sikh religion is that practitioners maintain unshorn hair (Kesh) on their bodies,

21 a requirement that includes facial hair.

22

13. According to the Sikh faith, cutting one's hair or beard is a grave violation

23 of the Sikh code of conduct. Historically, some followers of Sikhism have been willing

24 to be punished by death rather than cut their hair or shave. The practice of maintaining

25 unshorn hair signifies respect for the will of God and is a fundamental requirement of

26 the Sikh religion. It is therefore forbidden for Sikhs to cut their hair without violating

27 the requirements oftheir religion.

28 4
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND NOMINAL DAMAGES

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1

C. CDCR's Grooming Policy

2

14. The Grooming Policy, in pertinent part, provides as follows:

3

Facial hair, including short beards, mustaches, and sideburns are

permitted for male inmates and shall not extend more than one-half inch

4

m length outward from the face.

5 15 CCR § 3062(h).

.6

15. Pursuant to Section 3062, an inmate who fails to comply with the

7 Grooming Policy may be deemed a "program failure" and may be subject to

8 "progressive discipline and classification committee review for appropriate housing

9 and program placement." 15 CCR§ 3062(m).

10

16. A "program failure" is defined as:

11

fA]ny inmate who generates a significant disciplinary history within the
ast 180 days from the current aate. A guilty findmg for two serious

12

Rules Violation Reports or one serious and two administrative Rules

Violation Reports w1thin that 180 day time period is reasonable evidence

13

o~ a significant disciplinary history and may be considered a program

fallure.

14

·15 CCR § 3000.

15 D. Defendants' Unlawful Actions

16 17. While Mr. Basra was incarcerated in a more restrictive setting at PVSP,

17 and in the initial states of his confinement at CMC, the CDCR never warned Mr. Basra

18 that he could not keep his beard or that he was violating any law or policy by

19
maintaining his uncut beard. The only time CDCR employees ever made any effort to

20 inspect Mr. Basra's beard was when he was processed at CDCR's inmate reception

21 center, where he was asked to part his beards with his hands. Since then, and to the date

22 of this Complaint, no CMC employee has ever searched Mr. Basra's beard, run a metal

23 detector wand over his beard, asked him to part or run his fingers through his beard, or

24 accused Mr. Basra of hiding any contraband in his beard. Even when the prison guards .

25 performed periodic dormitory-wide searches on all inmates, including body searches and

26 inspections, no guard has ever felt it necessary to physically manipulate Mr. Basra's

27 beard, run a metal detector wand over his beard, or ask him to part or run his fmgers

28

5

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Case 2:11-cv-01676-SVW-FMO Document 1 Filed 02/25/11 Page 6 of 16 Page ID #:7

1 through his beard, for any reason.

2

18. Nevertheless, beginning in March 2010, the CDCR began to persecute Mr.

3 Basra for retaining his beard. Since that time, Defendants have subjected Plaintiff Basra

4 to punishment, including a loss of privileges and several disciplinary proceedings, as a

5 direct consequence oftheir enforcement ofthe Grooming Policy.

6

19. On April 3, 2010, Mr. Basra was issued a Rules Violation Report (RVR),

7 log# CMC-W-U4-1 0- 03-0030, for violating the California Code of Regulations, CCR

8 §3062 (h), "Grooming Standards," for the specific act of "Facial Hair Longer Than 112

9 inch," an Administrative Offense. In the charge, the Reporting Employee (RE),

10 Correctional Officer R. Stenhouse, documented that on March 29, 2010, he observed

11 Mr. Basra to be out of compliance with CDCR Grooming Standards, specifically having

12 facial hair longer than 1/2 inch. The RVR was heard by Unit 4 Program Sergeant C. D.

13 Burkhammer on April 5, 2010. At the administrative hearing, Mr. Basra defended

14 himself based on the fact that he grows his beard long due to his religious beliefs and

15 that CDCR grooming standards violate Mr. Basra's religious beliefs. Mr. Basra was

16 found "Guilty" of the charge, assessed 40 hours of extra duty, counseled and

17 reprimanded. Mr. Basra appealed the charge (CMC Appeal Log# CMC-W-10-00743),

18 and then pursued his appeal through all three levels of administrative review. All of his

19 appeals were denied and, on July 19, 2010, the Inmate Appeals Branch informed Mr.

20 Basra that he had exhausted his administrative remedies.

21

20. On April 30, 2010, Mr. Basra was issued a second RVR, log# CMC-W-

22 U4-10-04-0022, for violating, the California Code of Regulations CCR§ 3062 (h),

23 "Grooming Standards," for the specific act of"Facial Hair Longer Than 1/2 inch," an

24 Administrative Offense. In the charge, the RE, Correctional Sergeant R. W. Haislip,

25 documented that on April 24, 2010, he observed Mr. Basra to be out of compliance

26 with CDCR Grooming Standards, specifically having facial hair longer than 1/2 inch.

27 The RVR was heard by Unit 4 Program Sergeant C. D. Burkhammer (HO), on May 3,

28

6

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Case 2:11-cv-01676-SVW-FMO Document 1 Filed 02/25/11 Page 7 of 16 Page ID #:8

1 2010. Mr. Basra's defense was based on the fact that he grows his beard long due to

2 his religious beliefs and that CDCR grooming standards violate his religious beliefs.

3 Mr. Basra was found "Guilt)'" of the charge, assessed 10 hours of Extra Duty,

4 suspended pending 30 days disciplinary free conduct, counseled and reprimanded. Mr.

5 Basra appealed the charge, CMC Appeal Log# CMC-E-1 0-00962. Mr. Basra pursued

6 his appeal through all three levels of administrative review. All of his appeals were

7 denied and, on July 19, 2010, the Inmate Appeals Branch informed Mr. Basra that he

8 had exhausted his administrative remedies.

9

21. On June 28, 2010, Mr. Basra was issued a third RVR, log# CMC-W-U4-

10 10-04-0002, for violating the California Code of Regulations CCR§ 3062 (h),

11 "Grooming Standards," for the specific act of "Facial Hair Longer Than 1/2 inch," an

12 Administrative Offense. In the charge, theRE, Correctional Officer D. Van Nostran,

13 documented that on June 28, 2010, he had observed Mr. Basra to be out of compliance

14 with CDCR Grooming Standards, specifically having facial hair longer than 1/2 inch.

15 On July 10, 2010, the RVR was heard by Senior Hearing Officer Lieutenant J.C.

16 Steck (SHO). Mr. Basra's defense was based on the fact that he grows his beard long

I7 due to his religious beliefs and that CDCR grooming standards violate his religious

18 beliefs. Mr. Basra was found "Guilty" of the charge, assessed 40 hours of extra duty,
19 received a 30 day Work Time Credit Loss, 10 days confinement to quarters,1 and

20 referral to program review for possible determination of a program failure. Mr. Basra

21 appealed the charge, CMC Appeal Log# CMC-W-10-01500. Mr. Basra pursued his

22 appeal through all three levels of administrative review. More than 60 working days

23 have passed since the CDCR Appeals Chief received Mr. Basra's third level appeal,

24 and Mr. Basra has therefore exhausted his administrative remedies.

25

22. Mr. Basra served. and completed all of the prescribed punishment for the

26

27

1 Confinement to quarters means Mr. Basra must stay in his bunkand can only leave to eat, use the rest room, and for medical attention. He also loses his rights to visitation, phone calls,

28

yard access, day room, canteen, quarterly packages and accrual of excused time off. 7

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND NOMINAL DAMAGES

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1 three alleged "offenses," and his good time work credits have been restored.

2

23. The offense and punishment records continue to blot Mr. Basra's

3 otherwise exemplary prison record. If not for being disciplined for his religious

4 beliefs, Mr. Basra would have a model record in prison and would be entitled to all

5 benefits granted to prisoners at his security level.

6

24. On July 19, 2010, Mr. Basra submitted to Defendant Gonzalez a request

7 for exemption (the "Exemption Request"), asking for permission to leave his beard

8 uncut in accordance with his religious beliefs, and to avoid further discipline. In a

9 letter dated July 28, 2010, the CDCR denied Mr. Basra's request, stating in pertinent

10 part:

11

For clarification, you are not being discriminated against, as you allude to in your letter....You are being treated the same as the other inmates at

12

CMC.

13

You may have a beard, but you must keep it trimmed to no more than one-half inch in length. There is no provision in the CCR, Title 15 for

14

the Warden to exempt the grooming standards.

15

25. As a result of the Grooming Policy, Mr. Basra has suffered and likely

16 will continue to suffer disciplinary sanctions, including but not limited to the

17 following: (1) loss of visitation rights; (2) extra duties; (3) loss of assignment to

18 particular duties; (4); extra restrictions or confinement; and (5) loss of Work Time

19 Credit or risk of loss of credits in the future.

20

E. Warsoldier Decision

21

26. Mr. Basra's plight is perplexing in light of the 9th Circuit decision in

22 Warsoldier v. Woodford, 418 F.3d 989 (9th Cir. 2005), in which the Court concluded

23 that the plaintiff had demonstrated a likelihood of success on the merits of his claim

24 that California's grooming policy prohibiting long hair violated RLUIPA, 42 U.S.C. §

25 2000cc-l. Former 15 CCR § 3062(e) limited hair length to 3 inches. Mr. Warsoldier,

26 a Native American who kept his hair long on account of his religious beliefs, was

27 disciplined by the CDCR for violations of the grooming policy. As a direct result of

28
8
COMPLAINT FOR DECLARATORY AND INJuNCTIVE RELIEF AND NOMINAL DAMAGES

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Case 2:11-cv-01676-SVW-FMO Document 1 Filed 02/25/11 Page 9 of 16 Page ID #:10

1 the Warsoldier case, California revised the regulation to permit "any length" of hair.

2 CCR § 3062(e).

3

27. California did not change CCR § 3062(h) following the decision in the

4 Warsoldier case. Yet there is no explanation as to why Mr. Basra should be entitled

5 to less protection under RLUIPA for his beard than Mr. Warsoldier was entitled to for

6 his hair.

7 ·

REQUISITES FOR RELIEF

8

28. By reason of the factual allegations set forth above, an actual controversy

9 has arisen and now exists between Plaintiff and Defendants. Mr. Basra contends that

10 the Grooming Policy, as applied to him, violates RLUIPA, 42 U.S.C. § 2000cc-1.

11 Defendants are charged with enforcing the Grooming Policy, and have done so

12 repeatedly even though it infringes upon Mr. Basra's right to practice his religious

13 beliefs freely. A declaration from this Court that the challenged provision violates Mr.

14 Basra's rights is therefore necessary and appropriate.

15

29. Defendants' enforcement of the Grooming Policy against Mr. Basra has

16 caused and will continue to cause him irreparable harm, including but not limited to

17 the violation of his rights under RLUIPA. Plaintiff Basra has no plain, adequate, or

18 complete remedy at law to address the wrongs described herein. Mr. Basra therefore

19 seeks injunctive relief restraining Defendants from unlawfully enforcing the

20 Grooming Policy against him.

21

CLAIM FOR RELIEF

22

(Violation of the Religious Land Use and Institutionalized Persons Act)

23

42 U.S.C. § 2000cc-I

24

30. Plaintiff Basra incorporates paragraphs I through 29 of this Complaint as

25 if fully set forth herein.

26

31. RLUIPA applies to any program or activity that receives federal fmancial

27 assistance. Upon information and belief, the CDCR receives federal fmancial

28

9

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND NOMINAL DAMAGES

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Case 2:11-cv-01676-SVW-FMO Document 1 Filed 02/25/11 Page 10 of 16 Page ID #:11

1 assistance.

2

32. The Grooming Policy substantially burdens Mr. Basra's exercise of

3 religion by compelling him to choose between incurring serious disciplinary sanctions

4 and violating a fundamental tenet ofhis faith.

· 5

33. The Grooming Policy is not the least restrictive means of furthering any

6 compelling govermnent interest.

7

34. The Grooming Policy's requirement that facial hair shall extend no

8 longer than one-half inch, as applied to Plaintiff Basra, violates RLUIPA, 42 U.S.C. §

9 2000cc-l.

10

PRAYER FOR RELIEF

11

WHEREFORE, Plaintiff respectfully requests that this Court enter judgment in

12 his favor:

13

a. Declaring that the Grooming Policy's requirement that facial hair shall

14 extend no longer than one-half inch, set forth in 15 California Code of Regulations §

15 3062(h), as applied to Plaintiff, unlawfully burdens Plaintiff's right to practice his

16 religion in violation ofRLUIPA, 42 U.S.C. § 2000cc-l;

17

b. Enjoining Defendants from enforcing the Grooming Policy's facial hair-

18 length restrictions against Plaintiff;

19

c. Compelling Defendants to remove and expunge from his record all

20 disciplinary sanctions that Defendants and their agents have imposed upon Plaintiff as

21 a consequence of his non-compliance with the Grooming Policy;

22

d. Awarding Plaintiff nominal damages;

23

e. Awarding Plaintiff his expenses, costs, fees, and other disbursements

24 associated with the filing and maintenance of this' action, including reasonable

25 attorneys' fees pursuant to 42 U.S.C. § 1988; and

26

f. Awarding such other equitable and further relief as the Court deems just

27 and proper.

28

10

COMPLAINT POR DECLARATORY AND INJUNCTIVE RELIEF AND NOMINAL DAMAGES

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Case 2:11-cv-01676-SVW-FMO Document 1 Filed 02/25/11 Page 11 of 16 Page ID #:12

DATED: February 25,2011 1 2 3 4 5

Respectfully submitted,

JONATHAN M. GORDON

LEIB M. LERNER

CASSANDRA E. HOOKS

By:~wnQ, ALSTO~

LLP ~

e!M:emer

6

and

7

PETER ELIASBERG

ACLU FOUNDATION

8

OF SOUTHERN CALIFORNIA

9

and

10

DANIEL MACH

ACLU FOUNDATION

11

PROGRAM ON FREEDOM OF RELIGION AND

BELIEF

12

and 13

HARSIMRAN KAUR DANG, ESQ.

14

THE SIKH COALITION

15

Attorneys for Plaintiff Sukhjinder S. Basra

16

17

18

19

20

21 22

23

24
25 26

27

28

11

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND NOMINAL DAMAGES

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Case 2:11-cv-01676-SVW-FMO Document 1 Filed 02/25/11 Page 12 of 16 Page ID #:13
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
NOTICE OF ASSIGNMENT TO UNITED STATES MAGISTRATE JUDGE FOR DISCOVERY
This case has been assigned to District Judge Stephen V. Wilson and the assigned discovery Magistrate Judge is Fernando M. Olguin. The case number on all documents filed with the Court should read as follows:
CVll- 1676 SVW (FMOx)
Pursuant to General Order 05-07 of the United States District Court for the Central District of California, the Magistrate Judge has been designated to hear discovery related motions.
All discovery related motions should be noticed on the calendar of the Magistrate Judge

======================================================·
NOTICE TO COUNSEL

A copy of this notice must be served with the summons and complaint on all defendants (if a removal action is filed, a copy of this notice must be served on all plaintiffs).

Subsequent documents must be filed at the following location:

[X] Western Division
312 N. Spring St., Rm. G-8
Los Angeles, CA 90012

U Southern Division

U Eastern Division

411 West Fourth St., Rm.1-053

3470 Twelfth St., Rm. 134

Santa Ana, CA 92701-4516

Riverside, CA 92501

Failure to file at the proper location will result in your documents being returned to you.

CV-18 (03/06)

NOTICE OF ASSIGNMENT TO UNITED STATES MAGISTRATE JUDGE FOR DISCOVERY

Leib MC.aLseern2e:1r 1(S-cBvN-0212677362-3S) VW-FMO Document 1 leib.lerner@alston.com ALSTON & BIRD LLP 333 South Hope Street, Sixteenth Floor Los Angeles, California 90071 Telephone: (213) 576-1000 Facsimile (213) 576-1100 Attorneys for Plaintiff Sukhjinder S. Basra

Filed 02/25/11

Page 13 of 16

Page ID #:14

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

SUKHJINDER S. BASRA

PLAINTIFF(S)

v. MATTHEW CATE, Secretary ofthe California Department of Corrections and Rehabilitation, in his official capacity, and TERRI GONZALEZ, Warden of the California Men's Colony, in her official and

individual capacities

DEFENDANT(S).

CASE NUMBER
CV11- 016 7{i;vWl~\J~
SUMMONS

TO:DEFENDANT(S): MATTHEW CATE, Secretary ofthe California Department of Corrections and Rehabilitation, in his official capacitv. and TERRI GONZALEZ, Warden ofthe California Men's Colony, in her official and individual capacities
A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it), you
must serve on the plaintiff an answer to the attached ~ complaint D amended complaint
D D counterclaim cross-claim or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer
or motion must be served on the plaintiffs attorney, Leib M. Lerner, ALSTON & BIRD LLP, whose address is 333 S. Hope Street, Sixteenth Floor, Los Angeles, CA 90071. If you fail to do so, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.

fEB 2 5 2011
Dated: _ _ _ _ _ _ _ _ _ _ __

Clerk, U.S. District Court

(Seal ofthe Court)

[Use 60 days ifthe defendant is the United States or a United States agency, or is an officer or employee ofthe United States. Allowed
60 days by Rule !2(a)(3)}.

CV·OIA (12/07)

SUMMONS

American LegaiNat, Inc. www.USCourtForms.com

Case 2:11-cv-01676-SVW-FMO Document 1 Filed 02/25/11 Page 14 of 16 Page ID #:15

STATES DISTRICT

DISTRICT OF CALIFORNIA

I (a} PLAINTIFFS (Check box if you are representing yourself D)
SUKHJJNDER S. BASRA
(b)

DEFENDANTS
MATTHEW CATE, Secretary ofthe California Department of Corrections and Rehabilitation, in his official capacity, and TERRI GONZALEZ, Warden of the California Men's Colony, in her official and·
Attomeys (If Known)

II. BASIS OF JURISDICTION (Place an X in one bo< only.)

III.

1 U.S. Government Plaintiff 2 U.S. Government Defendant

3 Federal Question (U.S. Government Not a Party
4 Diversity (Indicate Citizenship of Parties in Item III)

400 State Reatppo·rtiOJ>ment

410 Antitrust

430 Banks and Banking

450 Commerce/ICC

140 Negotiable Instrument

Rates/etc.
0 460 Deportation 0 470 Racketeer Influenced

150 Recovery of Overpayment &
Enforcement of

and Corrupt

Judgment

Organizations
0 480 Consumer Credit

151 Medicare Act 152 Recovery of Defaulted

0 490 Cable/Sat TV

Student Loan (Excl.

0 810 Selective Service

Veterans)

0 850 ~ecuritiesi'CoJnmodillie•' ~ 153 Recovery of

Exchange

Overpayment of

0 875 CUstomer Challenge 12

Veteran's Benefits

USC 3410

160 Stockholders' Suits

0 890 Other Statutory Actions 190 Other COntract

0 891 Agricultural Act

l9S COntract Product

0 892 Economic Stabiliz11tion

Liability

Act
0 893 Environmental Matters 0 894 Energy Allocation Act 0 895 Freedom of Info. Act 0 900 Appeal of fee Detenni-

220 Foreclosure 230 Rent Lease & Ejectment

nation Under Equal

240 Torts to Land

Access to Justice

245 Tort Product Liability

D 950 Constitutionality nf '""'"IF4290 All Other Real Property

Statutes

31 S Airplane Product Liability
320 Assaul~ Libel & Slander
330 Fed. Employers1 Liability
340 Marine 345 Marine Product
Liability
350 Motor Vehicle 355 Motor Vehicle
Product Liability 360 Other Personal
Injury 362 Personal lnjury-
Med Malpractice 365 Personal Injury-
Product Liability 368 Asbestos Personal

445 American with DisabilitiesEmployment
446 American with DisabilitiesOther
440 Other Civil Rights

710 Fair Labor Standards Act
720 Labor/Mgmt. Relations
730 Labor/Mgmt. Reporting& Disclosure Act
740 Railway Labor Act
790 Other Labor Litigation
791 . Ret. Inc.

620 Other Food &
Drug 625 Drug Related
Seizure of
Propeny 21 usc
881 630 Liquor Laws
640 R.R.& Truck 650 Airline Regs
660 Occupational Safety ffiealth
6900ther

870 Taxes (U.S. Plaintiff or Defendant)
8711RS-Third Party 26 USC7609

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Page 1 of2

Case 2:11-cv-01676-SVW-FMO Document 1 Filed 02/25/11 Page 15 of 16 Page ID #:16
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
CIVIL COVER SHEET

0 VIII(a). IDENTICAL CASES: Has this action been previously filed in this court and dismissed, remanded or closed? 18!No Yes f yes, list case number(s): I
0 lvlll(b). RELATED CASES: Have any cases been previously filed in this court that are related to the present case? 12] No Yes
f yes, list case number(s): I

!civil cases are deemed related if a previously filed case apd the present case:

Cheok all bo<es that apply)

0 A. Arise from the same or closely related transactions, -happenings, or events: or 0 B. Call for detennination ofthe same or substantially related or similar questions of law and fact; or D C. For other reasons would entail substantial duplication of labor ifheard by different judges; or 0 D. Involve the same patent, trademark or copyright, m!Jl one of the factors identified above in a, b or c also is present.

X. VENUE: (When completing the following information, use an additional sheet ifnecessary.)

a) List the County in this District; California County outside of this District; State if other than California; or Foreign Country. in which EACH named plaintiff resides.
D Check here if the government, its agencies or employees is a named plaintiff. lfthis box is checked, go to item (b).

County in this Disttict;"'

California County outside ofthis District; State, ifother than California; or foreign Country

San Luis Obispo

.

~ List the County in this District; California County outside of this District; State if other than California; or Foreign Country, in which EACH named defendant resides.
~~ Check here if the government, its agencies or employees is a named defendant. lfthis box is checked, go to item (c).

County in this District:*

California Ccunty outside ofthis District; State, ifother than California; or Foreign Country

.
'·c) List the County in this District; California County outside of this District; State if other than California; or Foreign Country, in which EACH claim arose.
Note: In land condemnation cases, use the location of the tract of land Involved.

cOunty in this District:•

california Countv outside of this District· State if other than California; or Foreie:n CountrY

San Luis Obispo

*-Los Angele~, Orange, San Bernardino, Riverside, Ve~"~ ~~Barbara, or~Is Obispo Cou~-

Note: In land condemnation cases, use the location of the t[ of I in~d

I?--.)! t I . X,SIGNATUREOFAITORNEY(ORPROPER):

I,..---

~ate Webruary 25,2011

Attorneys for Plaintiff Sukhjinder S. Basra

Notice to Counsel/Parties: The CV-71 (JS-44) Civil Cover Slleet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law. This form, approved by the Judicial Conference of the United States in September 1974, is required pursuant to Local Rule 3 -1 is not tiled but is used by the Clerk of the Court for the purpose of statistics, venue and initiating the civil docket sheet. (For more detailed instructions, see separate instructions sheet.)

CV-71 (05108)

CIVIL COYER SHEET

Page 2 of2
American Le9<1INet. Inc. www.FormsWorlcflow.com

fKey

to

Case 2:11-cv-01676-SVW-FMO
Statistical codes relating to Social Security Cases:

Document 1

Filed 02/25/11

Page 16 of 16

Page ID #:17

Nature of Suit Code Abbreviation Substantive Statement of Cause of Action

861

HIA

All claims for health insurance benefits (Medicare) under Title 18. Part A, of the Social Security Act, as amended.

Also, include claims by hospitals, skilled nursing facilities, etc.• for certification as providers ofservices ut~der the

program. (42 U.S.C. 193SFF(b))

862

BL

All claims for "Black Lung" benefits under Title 4, Part B. ofthe Federal Coal Mine Health and Safety Act of 1969.

(30 u.s.c. 923)

863

DIWC

All claims tiled by insured workers for disability insurance benefits under Title 2 of the Social Security Act, as

amended; plus all claims filed for child1s insurance benefits based on disability. (42 U.S.C. 405(g))

863

D1WW

All claims filed for widows or widowers insurance benefits based on disability under Title 2 of the Social Security

Act, as amended. (42 U.S.C. 40S(g))

864

SSID

All claims for supplemental security income payments based upon disability filed under Title 16 of the Social Security

Act, as amended.

865

RS1

All claims for retirement (old age) and survivors benefits under Title 2 ofthe Social Security Act, as amended. (42

u.s.c. (g))

CV-71 (05/08)

CML COVER SHEET

 
 Case 2:11-cv-01676-SVW-FMO Document 27 Filed 04/18/11 Page 1 of 12 Page ID #:253

Attorneys for the United States ofAmerica

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FILED CLERK U.S. DISTRICT COURT
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APR I 8 2011 I

' CENTRAL DISTRICT OF CALIFGRNIA

BY

DEPUTY

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

SUKHJINDER S. BASRA,

)

)

Plaintiff,

)

)

UNITED STATES OF AMERICA, )

)

Applicant for Intervention, )

)

v.

)

)

MATTHEW CATE, Secretary of the )

California Department of Corrections )

and Rehabilitation, in his official )

capacity, TERRI GONZALEZ

)

Warden ofthe California Men's

)

Colony, in her official and individual )

capacities, the STATE of

)

IFORNIA, GOVERNOR

)

2 JERRY BROWN, in his official

)

No. CVll-01676 SVW (FMOx)
COMPLAINT IN INTERVENTION PURSUANT TO THE RELIGIOUS LAND USE AND INSTITUTIONALIZED PERSONS ACT, 42 U.S.C. § 2000cc (CIVIL RIGHTS)
Judge Stephen V. Wilson

I

Case 2:11-cv-01676-SVW-FMO Document 27 Filed 04/18/11 Page 2 of 12 Page ID #:254

1 capacity, the CALIFORNIA

)

DEPARTMENTOF

)

CORRECTIONS AND

)

3 REHABILITATION, and the

)

CALIFORNIA MEN'S COLONY; )

)

Defendants.

)

THE UNITED STATES OF AMERICA, by its undersigned attorneys,

hereby files this Complaint in Intervention and alleges upon information and

belief:

1

INTRODUCTION

1. The Attorney General files this Complaint on behalf of the United

1 States, pursuant to the provisions protecting the religious exercise of

13 institutionalized persons of the Religious Land Use and Institutionalized Persons

1 Act of 2000 ("RLUIPA"), 42 U.S.C. § 2000cc, to enjoin the named Defendants

15 from imposing a substantial burden on the religious exercise ofPlaintiffSukhjinder

1 S. Basra, an inmate confined to institutions administered by Defendants.

1

2. Plaintiff Basra is a lifelong practicioner of Sikhism. A fundamental

1 requirement ofthe Sikh faith is that its practitioners maintain their hair, including

facial hair, unshorn. The practice of maintaining one's hair unshorn, or Kesh,

signifies respect for the will of God, and is required for a Sikh to be considered

21 pure. Cutting one's hair or beard is therefore a grave violation of Sikh religious

2 beliefs. Pursuant to his sincerely held religious beliefs, Mr. Basra has always

'23 maintained his hair and beard uncut and unshaved.

3. CDCR policy prohibits facial hair longer than one-half inch, without

25 providing any exception for those whose religious practices forbid cutting facial or

other bodily hair.

4. Defendants have enforced this grooming policy against Mr. Basra,

repeatedly subjecting him to progressively more severe disciplinary sanctions,

2

Case 2:11-cv-01676-SVW-FMO Document 27 Filed 04/18/11 Page 3 of 12 Page ID #:255

1 without any compelling government reason. By enforcing their grooming policy,

Defendants compel Mr. Basra to either cut his beard and violate a central tenet of

3 his religion or suffer increasingly severe penalties, including the deprivation of

privileges and the risk of longer confinement in prison, in violation of Mr. Basra's

5 RLUIPA rights.

JURISDICTION, STANDING, AND VENUE

5. This Court has jurisdiction over this action pursuant to 28 U.S.C.

§§ 1331 and 1345.

6. The United States is authorized to initiate this action pursuant to

1 42 U.S.C. § 2000cc-2(f).

7. Declaratory and injunctive relief is sought as authorized by 42 U.S.C.

1 § 2000cc-2(f).

8. Venue in the United States District Court for the Central District of

1 California is proper pursuant to 28 U.S.C. § 1391.

DEFENDANTS

1

9. Defendant the State of California ("State") operates, or contracts for

1 the operation of, all State jails, prisons, and other correctional facilities.

1

10. Defendant Jerry Brown is the Governor of the State of California and,

1 in this capacity, heads the executive branch of the State's government. The

Governor of California, as chief ofthe executive branch, has the duty to ensure that

21 the departments that compose the executive branch of the State's government

2 protect the federal statutory rights of all of the citizens of the State, including

23 inmates confmed in State jails, prisons, and other correctional facilities.

11. Defendant the California Department of Corrections and

25 Rehabilitation ("CDCR") operates all State adult prisons on behalf of the State;

establishes policy to be followed by its institutions and contractors; and is

responsible for the promulgation of all rules and regulations necessary and

appropriate to the administration and operation of its institutions.

3

Case 2:11-cv-01676-SVW-FMO Document 27 Filed 04/18/11 Page 4 of 12 Page ID #:256

I

12. Defendant Matthew Cate is the Secretary of the CDCR and, in this

capacity, exercises administrative control of, and responsibility for, the CDCR and

3 the institutions it operates.

13. Defendant California Men's Colony ("CMC") is a prison operated by

5 the CDCR and currently houses Mr. Basra.

14. Defendant Terri Gonzalez is the warden ofthe CMC and, in this

capacity, is responsible for the administration and day-to-day operations ofthe

15. Defendants are legally responsible, in whole or in part, for the

I operation of all institutions within which Plaintiff has been confined that are

II relevant to this action, and for the promulgation and implementation of all policies

I and procedures relating to the religious exercise of persons confined to those

I3 institutions.

I

16. Defendants receive federal financial assistance and are therefore

I5 subject to the provisions protecting the religious exercise of institutionalized

I persons ofthe Religious Land Use and Institutionalized Persons Act of2000,

I 42 U.S.C. § 2000cc-l.

1

FACTUAL ALLEGATIONS

California Men's Colony

17. The CMC is a state prison located in San Luis Obispo, California, that

21 currently incarcerates approximately 6,420 inmates.

2

18. The CMC consists of two physically separate facilities, the East

23 Facility, housing medium security inmates and the West Facility, housing

2 minimum security inmates in dormitory settings.

25

19. The CMC is an "institution" within the meaning of 42 U.S.C.

§ 2000cc-1(a).

4

Case 2:11-cv-01676-SVW-FMO Document 27 Filed 04/18/11 Page 5 of 12 Page ID #:257

1
Plaintiff Basra

20. Plaintiff Sukhjinder S. Basra is a person residing in or confined to an

institution within the meaning of 42 U.S.C. § 2000cc.
5
21. The CDCR initially incarcerated Mr. Basra at the Pleasant Valley

State Prison ("PVSP"), where he lived in a locked, two-man cell. After one year o

discipline-free incarceration at PVSP, the CDCR transferred Mr. Basra to the

minimum security facility within the CMC on or about February 26, 2010.

Mr. Basra currently remains incarcerated at the CMC, where he lives in an

1 unlocked, 90-person dormitory room.

11

22. Mr. Basra has practiced the Sikh faith his entire life. The most

1 important outward symbol demonstrating one's adherence to Sikhism is Kesh, the

13 practice of allowing one's hair, including facial hair, to grow naturally out of

1 respect for God's creation.

15

23. Pursuant to Mr. Basra's faith, he believes that cutting his hair or beard

1 would be a grievous sin. Historically, some followers of Sikhism have been

1 willing to be punished by death rather than cut their hair or beards.

1

24. In accordance with this fundamental requirement of Sikhism,

25. Defendants have promulgated a comprehensive grooming policy 23 regulating inmates' hair length and styles. This policy is set out in title 15, section 2 3062 of the California Code of Regulations, entitled "Inmate Grooming 25 Standards," which provides that "[t]acial hair, including short beards, mustaches, 2 and sideburns are permitted for male inmates and shall not extend more than one2 half inch in length outward from the face." Cal. Code Regs. tit. 15 § 3062(h).
2
5

: Case 2:11-cv-01676-SVW-FMO Document 27 Filed 04/18/11 Page 6 of 12 Page ID #:258

1

26. Pursuant to section 3062, an inmate who fails to comply with the

Inmate Grooming Standards may be deemed a ''program failure" and may be

3 "subject to progressive discipline and classification committee review for

appropriate housing and program placement." Cal. Code Regs. tit. 15 § 3062(m).

27. Section 3000 defines a "program failure" as:

[A]ny inmate who generates a significant disciplinary history

within the last 180 days from the current date. A guilty finding

for two serious Rules Violation Reports or one serious and two

1

administrative Rules Violation Reports within that 180 day time

period is reasonable evidence of a significant disciplinary

1

history and may be considered a program failure.

1

Cal. Code Regs. tit. 15 § 3000.

28. The Federal Bureau of Prisons does not place any limitations on

1 inmates' beard length throughout its facilities. See Program Statement 5230.05,

1 Nov. 4, 1996 (Grooming).

1 Defendant's Unlawful Actions

1

29. Defendants have unlawfully imposed, and continue to impose, a

substantial burden on Plaintiff Basra's religious exercise by disciplining him for

failing to cut his beard to a length of one-half inch or less.

30. Defendants incarcerated Mr. Basra in a more restrictive setting at 23 PVSP. Despite the increased restrictions, Mr. Basra maintained his unshorn beard 2 in accordance with his Sikh faith during his incarceration at PVSP. During this 25 time, Defendants never instructed Mr. Basra to cut his beard nor warned Mr. Basra 2 that he was violating any law or policy by maintaining his beard at longer than

one-half of an inch. Defendants never disciplined Mr. Basra for any infraction

during his time at PVSP.

6

Case 2:11-cv-01676-SVW-FMO Document 27 Filed 04/18/11 Page 7 of 12 Page ID #:259

1

31. When Mr. Basra first entered the CDCR through the inmate reception

center, correctional officers instructed him to run his fingers through his beard.

3 Since then, however, no CMC employee has ever searched his beard or asked

Mr. Basra to search it by running his fingers through his beard in front ofthem.

5 No CMC employee has ever accused Mr. Basra of hiding any contraband in his

beard. No correctional officer has ever physically manipulated Mr. Basra's beard,

run a metal detection wand over it, or asked Mr. Basra to part his beard or run his

fingers through it in front of them, for any reason.

32. During the initial portion ofhis confinement at the CMC, Defendants

1 never instructed Mr. Basra to cut his beard nor warned Mr. Basra that he was

11 violating any law or policy by maintaining his beard at longer than one-half of an

1 inch.

33. Beginning in March 2010, however, Defendants began disciplining

1 Mr. Basra for maintaining his beard at longer than one-half inch in length. Since

15 that time, Defendants have subjected Mr. Basra to progressively more severe

1 disciplinary actions for failing to comply with the grooming policy, despite the fact

1 that according to Mr. Basra's religion, doing would be a grievous sin.

1

34. On April3, 2010, a CMC correctional officer issued Mr. Basra an

1 administrative Rules Violation Report ("RVR") for violating section 3062(h), the

"Inmate Grooming Standards," for having a beard longer than one-half inch on

21 March 29, 2010. At the administrative hearing on AprilS, 2010, Mr. Basra pled

2 not guilty and informed the hearing official that he is unable comply with the

23 grooming standard because it conflicts with his religious beliefs. The hearing

2 official found Mr. Basra guilty of the violation, assessed him 40 hours of extra

25 duty, counseled and reprimanded him. Mr. Basra appealed the charge through all

three levels of administrative review, arguing that the disciplinary action

substantially burdened his religious exercise. All of his appeals were denied and,

7

Case 2:11-cv-01676-SVW-FMO Document 27 Filed 04/18/11 Page 8 of 12 Page ID #:260

1 on July 19,2010, the Inmate Appeals Branch informed Mr. Basra that he had

exhausted his administrative remedies.

35. On April30, 2010, a CMC correctional officer issued Mr. Basra a

second administrative RVR for violating section 3062(h) by having a beard longer

5 than one-half inch on April24, 2010. At the hearing on May 3, 2010, Mr. Basra

pled not guilty and informed the hearing official that cutting his beard would

violate a fundamental tenet of his religion. The hearing official found Mr. Basra

guilty ofthe charge, assessed him 10 hours of extra duty (suspended pending 30

days of disciplinary free conduct), counseled and reprimanded him. Mr. Basra

1 appealed the charge through all three levels of administrative review, arguing in

11 part that the grooming policy as applied to him violates RLUIPA. All ofhis

1 appeals were denied and, on July 19,2010, the Inmate Appeals Branch informed

13 Mr. Basra that he had exhausted his administrative remedies.

1

36. On June 28, 2010, a CMC correctional officer issued Mr. Basra a third

15 RVR for violating section 3062(h) by having a beard longer than one-half inch on

1 June 28, 2010. This time, the RVR was classified as "serious." At the hearing on

1 July 10, 2010, Mr. Basra pled not guilty, and informed the Senior Hearing Official

1 that his unshorn beard is a central part of his religious beliefs. The Senior Hearing

1 Official found Mr. Basra guilty, assessed him 40 hours of extra duty, 30 days of

disciplinary credit forfeiture, and 10 days confinement to quarters. The Senior

21 Hearing Official also referred Mr. Basra to the Unit Classification Committee with

2 a recommendation of review for program failure and temporarily modified Mr.

23 Basra's privileges for a period of90 days. During this 90 day period,

Mr.

2 Basra was denied family visits; limited to one-fourth of the maximum canteen

25 draw; allowed telephone calls only on an emergency basis; denied access to the

yard and other recreational activities; denied accrual of excused time off; denied

special and quarterly packages; and denied special canteen purchases. Mr. Basra

appealed the charge through all three levels of administrative review. More than

8

Case 2:11-cv-01676-SVW-FMO Document 27 Filed 04/18/11 Page 9 of 12 Page ID #:261

1 60 working days have passed since the CDCR Appeals Chief received Mr. Basra's third level appeal, and Mr. Basra has therefore exhausted his administrative

37. On July 19,2010, Mr. Basra submitted to Defendant Gonzalez a

5 request that the CDCR exempt him from the grooming policy and allow him to

maintain his beard untrimmed. In this exemption request, he informed the warden

that maintaining unshorn facial hair is part of his religious belief and practice. In a

letter dated July 28,2010, the CDCR denied Mr. Basra's request, stating in

pertinent part:

1

[Y]ou are not being discriminated against, as you allude to in your

letter .... You are being treated the same as the other inmates at

1

CMC .... You may have a beard, but you must keep it trimmed to no

more than one-half inch in length. There is no provision in the CCR,

1

Title 15 for the Warden to exempt the grooming standards.

38. Other than the disciplinary action that Mr. Basra has suffered as a

1 result of his desire to practice his religion by maintaining an unshorn beard,

1 Mr. Basra has an exemplary prison disciplinary record.

1

39. Mr. Basra's ability to maintain his privileges at the CMC and to avoid

1 transfer to a more restrictive and/or higher security setting depends largely upon

Mr. Basra's continued good behavior and lack ofCDCR discipline. Each time that

21 Mr. Basra is disciplined, he receives a number of"points." As these points accrue,

2 they affect his classification and may cause the CDCR to transfer him to a higher

23 level security unit.

VIOLATIONS ALLEGED

25

40. The United States incorporates by reference the allegations set forth in

Paragraphs 17 through 39 as if fully set forth herein.

9

Case 2:11-cv-01676-SVW-FMO Document 27 Filed 04/18/11 Page 10 of 12 Page ID #:262

1

41. The acts and omissions alleged in Paragraphs 17 through 39 constitute

a violation ofthe Religious Land Use and Institutionalized Persons Act of 2000,

3 42 U.S.C. § 2000cc.

42. Unless restrained by this Court, Defendants will continue to engage in

5 the acts and omissions set forth in Paragraphs 17 through 39 that violate the

Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc,

and will cause irreparable harm to Plaintiff Sukhjinder S. Basra

PRAYER FOR RELIEF

43. The United States is authorized, pursuant to 42 U.S.C.§ 2000cc-2(f),

1 to seek injunctive and declaratory relief.

WHEREFORE, the United States prays that this Court enter an order:

1

a. Declaring that the acts and omissions set forth in Paragraphs 17

through 39 above constitute a violation of the Religious Land Use and

1

Institutionalized Persons Act of2000, 42 U.S.C. § 2000cc;

b. Permanently enjoining Defendants, their officers, agents, employees,

1

subordinates, successors in office, and all those acting in concert or

1

participation with them from continuing the acts and omissions set

1

forth in Paragraphs 17 through 39 above, and requiring Defendants to

1

permit Plaintiff Basra to wear his facial hair unshorn, without penalty,

2

while in the custody of the CDCR; and

c. Granting such other and further equitable relief as the Court may

2

deem just and proper.

2

2 2 2
10

'. Case 2:11-cv-01676-SVW-FMO Document 27 Filed 04/18/11 Page 11 of 12 Page ID #:263
1
Respectfully submitted,
~<l:.Oy
THOMAS E. PEREZ Assistant Attorney General Civil Rights Division
~~(t&
SAMUEL R. AGENSTOS Principal Deputy Assistant Attorney General Civil Rights Division
Jo~s!:
Chief Special Litigation Section
~GATT
Trial Attorneys U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 (202) 514-6255
11

Case 2:11-cv-01676-SVW-FMO Document 27 Filed 04/18/11 Page 12 of 12 Page ID #:264

ANDRE BIROITE JR.

1

United States Attorney_

LEON W. WEIDMAN

2

Assistant United States Attorney

3

Chiet~Jvil Division ROB 1 N-MARIE LYON MONTELEONE

Assistant United States Attorney·

4

Chief, Civil Rights Unit

5 6

E~Im~~R&fk

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 
 Case 2:11-cv-01676-SVW -FMO Document 11 Filed 03/15/11 Page 1 of 5 Page ID #:165

1 THOMAS E. PEREZ Assistant Attorney General
2 SAMUEL R. BAGENSTOS Princim!_l_Deputy Assistant Attorney General
3 JONA!HAN SMITH (DC Bar# 396578)

.r-.,
1"1

Chieft Sj>_ecial Litjgation Section 4 TIMuTHY D. MYGATT (PA Bar# 90403)

0

fu>~cial Counsel

5 EMILY A. GUNSTON (SBN 218035)

SAMANTHA K. TREPEL (DC Bar #992377)

6 Trial Attorneys

United States Department of Justice

7

Civil Rights Division

Special Litigation Section

8

950 Pennsyfvania Avenue, N.W.

Washington, D.C. 20530

9

Telephone: (202) 514-6225

Facsimile: (202) 514-4883

10

Email: timothy.mygatt@usdoj .gov

emily.gunston@.usdoj .gov

11

samantha.trepeT@usdOJ .gov

20 21 Attorneys for the United States of America

22

UNITED STATES DISTRICT COURT

23

CENTRAL DISTRICT OF CALIFORNIA, WESTE~ DIVISION

24

SUKHJINDER S. BASRA,

)

25

)

26

Plaintiff,

)

) 27 UNITED STATES OF AMERICA, )

28

)

No. 2:11-cv-01676 SVW (FMOx)
UNITED STATES' MOTION TO INTERVENE PURSUANT TO THE RELIGIOUS LAND USE AND

1

Case 2:11-cv-01676-SVW -FMO Document 11 Filed 03/15/11 Page 2 of 5 Page ID #:166

1

Applicant for Intervention, )

)

2

v.

)

3 CATE, et al.,

)

) ·

4

)

5

Defendants.

)

6----------------J

INSTITUTIONALIZED PERSONS 42 U.S.C. § 2000cc (CIVIL RIGHTS)
Date: April25. 2011 Time: 1:30 p.m. Courtroom: 6 The Judge Stephen V. Wilson

7

8

9
UNITED STATES' MOTION TO INTERVENE
10

11
The United States of America, by and through its undersigned counsel,
12
pursuant to Rule 24, Federal Rules of Civil Procedure, moves this Honorable Court
13
to intervene in the above styled case, to wit, Basra v. Cate, No. CV11-01676 SVW
14
(FMOx) (C.D. Cal., filed Feb. 25, 2011). In support, the United States submits
15
that:
16

2. RLUIPA grants the United States the authority to intervene in or bring an
19 action for injunctive or declaratory reliefto enforce RLUIPA. 42 U.S.C. § 2000cc20
2(f).

4. Pursuant to Local Civil Rule 7-5(b), the United States submits a

25
Memorandum of Points and Authorities in Support of United States' Motion to

26 Intervene.

27

5. The United States has attached a Complaint in Intervention, pursuant to

28 Rule 24(c).

2

Case 2:11-cv-01676-SVW -FMO Document 11 Filed 03/15/11 Page 3 of 5 Page ID #:167

1

WHEREFORE, the United States respectfully requests that this Court grant

2 this Motion to Intervene and enter an order:

3

a. Granting the United States' Motion to Intervene;

4

b. Adding the United States to Case No. 2:11-cv-01676 SVW (FMOx)

5

as a full party plaintiff-intervenor;

6

c. Ordering the Clerk of the Court to enter the United States' Complaint

7

in Intervention, and allowing it to proceed on its claim stated therein;

8

and

9

d. Permitting the United States to participate in any preliminary

10

injunction hearing.

11

12

Respectfully submitted,

13

14

s/ Thomas E. Perez

15

THOMAS E. PEREZ

Assistant Attorney General

16

Civil Rights Division

17

18

s/ Samuel R. Bagenstos

SAMUEL R. BAGENSTOS

19

Principal Deputy Assistant

20

Attorney General

Civil Rights Division
21

22

ANDRE BIROTTE JR.

United States Attorney_

23

LEON W. WEIDMAN

Assistant United States Attorney

24

Chief Civil Division

ROBYN-MARIE LYON MONTELEONE

25

Assistant United States Attorney

Chief, Civil Rights Unit

26

27

s/ Erika Johnson-Brooks

ERIKA JOHNSON-BROOKS

28

3

Case 2:11-cv-01676-SVW -FMO Document 11 Filed 03/15/11 Page 4 of 5 Page ID #:168
T
j

1

s/ Jonathan M. Smith

2

Chief

Special Litigation Section 3

4

s/ Timothy D. Mygatt

5

Special Counsel

Special Litigation Section

6

7

s/ Emily A. Gunston

EMILY A. GUNSTON

8

SAMANTHA K. TREPEL

9

Trial Attorneys

10

U.S. Department of Justice

Civil Rights Division

11

Special Litigation Section

12

950 Pennsylvania Avenue, N.W.

Washington, D.C. 20530

13

14

15

16

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4

Case 2:11-cv-01676-SVW -FMO Document 11 Filed 03/15/11 Page 5 of 5 Page ID #:169

1
CERTIFICATE OF SERVICE
2

3

I certify that the foregoing Motion to Intervene was served on March 15,

2011, to the following individuals:
4

5 Through the electronic filing service:

6

Cassandra E. Hooks

7

Jonathan M. Gordon

Leib Mitchell Lerner

8

Alston & Bird LLP

9

10

Peter J. Eliasberg

ACLU Foundation of Southern California

11

12

Daniel Mach

An;terican Civil Liberties Union,

13

Program on Freedom of Religion and Belief

14

15

Harsimram Kaur Dang

The Sikh Coalition

16

Attorneys for Plaintiff

17 By U.S. Mail:
18

19

Matthew Cate

20

c/o Legal Office 1515 "S" Street

21

Room 314-S

22

Sacramento, CA 95811

23

Warden Terri Gonzalez

24

c/o Andrew Pitoniak

Litigation Coordinator

25

Men's Colony

26

Highway 1

27

San Luis Obispo, CA 93409

28

Defendants

5

 
 Case 2:11-cv-01676-SVW-FMO Document 43 Filed 05/15/12 Page 1 of 6 Page ID #:463

1 KAMALA D . HARRIS

JONATHAN M. GORDON

Attorney General ofCalifornia

State Bar No. 082202

2 RENE L. LUCARIC

LEm M. LERNER

Supervising Deputy Attorney General

State Bar No. 227323

3 MiCHELLE DES JARDINS

CASSANDRA HOOKS

Supervising Deputy Attorney General

State Bar No. 244471

4 State Bar No. 1o8G79

ALSTON & BIRD LLP

110 West A Street, Suite 1100

333 South HoQe Street, 16th Floor

5 San Diego~ CA 921 01

Los Angeles, CA 90071

P .O. Box ~5266

Telephone: (213) 576-1000

6 San Diego, CA 92186-5266

Fax: (213) 576-1100

Telephone: (619) 645-2295

Attorneyfor Plaintiff

7 Fax: (619) 645-2581

E-mail: Michelle.DesJardins@doj .ca.gov HARSIMRAN KAUR DANG

8 Attorneys for Defendants

State Bar No. 264240

THE SIKH COALITION

9 EMILY GUNSTON

Western Region Office

Trial Attorney

2201 Walnut Ave., Suite 275

10 State Bar No. 218035

Fremont, CA 94538

U.S. DEPARTMENT OF JUSTICE

Telephone: (51 0) 659-0900 x92

11 Civil Rights Division

Fax: (510) 952-3'900

Special Litigation Section

E-mail: harsimran@sikhcoalition.org

12 950 Pennsylvania Avenue, N .W.

Washington, DC 20530

DANIEL MACH

13 Telephone: (202) 514-6225

DC State Bar No. 461652

Fax: (202) 514-4883

ACLU FOUNDATION

14 E-mail: emily_._gunston@usdoj .gov

915 15th Street NW

Attorneys for USA

Washington, DC 20005

15

Telephone: (202) 675-2330

PETER ELIASBERG

Fax: (202) 546-0738

16 State Bar No. 189110

E-mail: dinach@dcaclu.org

ACLU FOUNDATION

Admittedpro hac vice

17 OF SOUTHERN CALIFORNIA

1313 West Eighth Street

18 Los Angeles, CA 90017

Telephone: (213) 977-9500

19 Fax: (213) 977-5299

E-Mai1: yeliasberg~ACLU-SC.ORG

20 Attorneyjor PlaintiffSukhjinder S. Basra

21

IN THE UNITED STATES DISTRICT COURT

22

FOR THE CENTRAL DISTRICT OF CALIFORNIA

23

24 SUKHJINDER S. BASRA,

11 -CV-01676 SVW (FMO)

UNITED STATES OF AMERICA,

25

STIPULATION OF DISMISSAL

Plaintiffs,

26

v.

[FRCP 41(a)(l)(A)(ii)]

27 M. CATE, et al.,

28

Defendants.

1

Case 2:11-cv-01676-SVW-FMO Document 43 Filed 05/15/12 Page 2 of 6 Page ID #:464

1

The parties have entered into a settlement agreement that resolves this matter,

2 a true and correct copy of which is attached hereto;

3

The parties therefore now STIPULATE to dismiss this action with prejudice

4 under Federal Rule ofCivil Procedure 4l(a)(l)(A)(ii).

5 FOR DEFENDANTS:

6 Dated: May 1, 2012 7 8

KAMALA D. HARRIS Attorney General of California RENE L. LUCARIC Supervising Deputy Attorney General

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25
26

27
28

2

Case 2:11-cv-01676-SVW-FMO Document 43 Filed 05/15/12 Page 3 of 6 Page ID #:465

I FOR PLAINTIFF; SUKHJINDER S. BASRA:

2 Dated; May~ 2012

Alston& Bird, LLP

3 4

{Jf)id~

5 6
7 Dated: May{Q_, 2012
8
9

CASSANDRA E. HOOK
- m ; I.JiiB MrrcHBLL LERNER ofSouthem Califumia
R • LIASBBRO """"'-

10 Dated: May ..1£ 2012
11
12

American Civil Liberties Union
~=~oo&Bclief

13
14 Dated: May1.52012
15

D~

·

The Sikh Coalition

16

17

18

19

20

21

22

23

24

25

26

27

28

Case 2:11-cv-01676-SVW-FMO Document 43 Filed 05/15/12 Page 4 of 6 Page ID #:466

1 2
FOR THE UNITED STATES: 3
4 Dated: May jQ, 2012
5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
24
25
26 27 28

ANDRE BIROTTE JR United States Attorney LEON W. WEIDMAN Assistant United States Attorney Chief, Civil Division ROBYN-MARIE LYON MONTELEONE Assistant United States Attorney Assistant Division Chief Civil Rights Unit Chief, Civil Division
KAfuHN'N-BROOKS Assistant United States Attorney
4

Case 2:11-cv-01676-SVW-FMO Document 43 Filed 05/15/12 Page 5 of 6 Page ID #:467

1 FOR THE UNITED STATES: ·
2 Dated: May l.Q., 2012
3 4 5 6 7 8 9 10 11 12
13
14 15 16 17 18 19 20 21 22

THOMAS E. PEREZ
Assistant Attorney General ROY L. AUSTIN, JR. Deputy Assistant Attorney General JONATHAN M . SMITH Chief
TIMOTHY D.MYGATT
Special Counsel
~
EMILY A. GUNSTON SAMANTHA K. 'fREPEL Special Litigation Section Civil Rights Division U .S. Department of Justice

24 25 26 27 28
5

Case 2:11-cv-01676-SVW-FMO Document 43 Filed 05/15/12 Page 6 of 6 Page ID #:468

CERTIFICATE OF SERVICE

Case Name: Sukhjinder S. Basra v. M. Cate, et al.

No. 11-CV-01676 SVW (FMO)

I hereby certify that on May 15, 2012, I electronically filed the following documents with the Clerk of the Court by using the CM/ECF system:

STIPULATION OF DISMISSAL
Participants in the case who are registered CM/ECF users will be served by the CM!ECF system. I am employed in the Office of the Attorney General, which is the office of a member of the California State Bar at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal . mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business.
I further certify that some of the participants in the case are not registered CMIECF users. On May 15, 2012, I have caused to be mailed in the Office ofthe Attorney General's internal mail system, the foregoing document(s) by First-Class Mail, postage prepaid, or have dispatched it to a third party commercial carrier for delivery within three (3) calendar days to the following nonCM/ECF participants:

Harsimran Kaur Dang The Sikh Coalition 2201 Walnut Ave., Ste. 275 Fremont, CA 94538

OPPOSING COUNSEL SERVED BY ECF

I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on May 15, 2012, at San Diego, California.

P. Renteria Declarant
80642933.doc

Signature

 
 Case 2:11-cv-01676-SVW-FMO Document 40-1 Filed 06/05/11 Page 2 of 10 Page ID #:449

1

IN THE UNITED STATES DISTRICT COURT

2

CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

3

4 SUKHJINDER S. BASRA,

)

5 UNITED STATES OF AMERICA, )

)

6

Plaintiffs,

)

7

)

8

v.

) )

9 MATTHEW CATE, et al.

)

10

)

Defendants.

)

11

No. CV11-01676 SVW (FMOx) SETTLEMENT AGREEMENT Judge Steven J. Wilson

12

I. Introduction

13

1. This Settlement Agreement is entered into between Plaintiff

14 Sukhinder S. Basra (“Plaintiff”) and Defendants Matthew Cate, Secretary of the

15 California Department of Corrections and Rehabilitation (“CDCR”); Terry

16 Gonzalez, Warden of the California Men’s Colony (“CMC”); the State of

17 California; Jerry Brown, Governor of the State of California; CDCR; and CMC

18 (“Defendants”).

19

2. This Settlement Agreement addresses Mr. Basra’s Complaint, U.S.

20
District Court for the Central District of California, No. CV11-01676 SVW

21
(FMOx) (“lawsuit”), brought under the Religious Land Use and Institutionalized
23
Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc, and resolves all claims brought by
24

Mr. Basra against Defendants in this lawsuit.
25

26

3. Plaintiff contends that Defendants violated Mr. Basra’s right under

27 RLUIPA to exercise his religion because Mr. Basra practices the Sikh faith, which

28 requires its adherents to maintain unshorn hair (Kesh) on their bodies, a

requirement that includes facial hair.

Exhibit 1 - page 3

Case 2:11-cv-01676-SVW-FMO Document 40-1 Filed 06/05/11 Page 3 of 10 Page ID #:450

1

4. California Code of Regulations Title 15, Section 3062(h) (“Section

2 3062(h)”) prohibits inmates from wearing facial hair that extends more than one3 half inch in length from the face. Plaintiff contends that Section 3062(h) imposes a
substantial burden on Mr. Basra’s religious exercise. Plaintiff further contends 4 Defendants have disciplined Mr. Basra and he continues to face possible discipline 5 in accordance with prison regulations for violating Section 3062(h). All of the

6 allegations of wrongdoing made by Plaintiff in this lawsuit are denied by any and
7 all Defendants who are or ever were parties to this lawsuit. 5. Plaintiff and Defendants (“the Parties”) now desire and intend by this
8 Settlement Agreement to compromise and settle all disputes between them arising 9 out of or relating to the claims in this lawsuit, including any rights to appeal.

10

6. Therefore, in consideration of the covenants set forth in this

11 Settlement Agreement, the Parties agree to effect a compromise of their disputes

12 on the terms and conditions set forth below: II. Terms and Conditions

13

7. The “Effective Date” of this Settlement Agreement shall mean the

14 date that the Court grants the stipulated stay of all proceedings in this matter (see
15 paragraph 15). Each term and condition is material to this Settlement Agreement,
16
and the absence of approval of the entirety of this Settlement Agreement, including
17
without limitation the provision contained in paragraph 15, below, or the failure of
18
the Court to enter the stipulated order of dismissal with every term agreed to by the
19
20 parties included, shall render this Settlement Agreement null and void, and the
21 Parties agree that any order approving anything other than the entirety of this
23 Settlement Agreement shall be unenforceable.

24

8. Beginning with the Effective Date of this Settlement Agreement,

25 Defendants agree that they will not discipline Mr. Basra for violations of Section

26 3062(h).

27

9. Within 30 days of the Effective Date of this Settlement Agreement,

28 CDCR shall issue a memorandum to all its prisons instructing prison staff that the

facial hair length restrictions set forth in Section 3062(h) will no longer be

Exhibit 1 - page 4

Case 2:11-cv-01676-SVW-FMO Document 40-1 Filed 06/05/11 Page 4 of 10 Page ID #:451

1 enforced. This memorandum shall remain in effect until Section 3062(h) is

2 amended or repealed to remove the facial hair length restrictions.

3

10. Within 90 days of the Effective Date of this Settlement Agreement,

4 Defendants shall begin the process of initiating a change to Section 3062(h) in

5 accordance with the Administrative Procedures Act to eliminate the facial hair

6 length restrictions. The Parties acknowledge that compliance with the

7 Administrative Procedures Act can be a lengthy process, which typically takes

8 more than a year. Defendants will act in good faith in accordance with the

9 Administrative Procedures Act to change Section 3062(h) to eliminate the facial

10 hair length restrictions. Nothing in this Agreement shall prevent Defendants from

11 requiring that inmates maintain their facial hair in a neat and clean manner. Until

12 Defendants amend Section 3062(h), Defendants shall not discipline any inmate for

13 the length of his facial hair.

14

11. The provisions of this Settlement Agreement shall apply to Mr. Basra

15 while he is incarcerated under the jurisdiction of CDCR, whether in a prison in the

16 State of California or an out-of-state prison that contracts with CDCR.

17

12. CDCR shall expunge Mr. Basra’s record of any reference to

18 violations of Section 3062(h).

19

13. CDCR shall permit Mr. Basra to wear a grey or white patka, not to

20 exceed 24” by 24,” which he may acquire from an approved vendor, subject to the

21 same limitations CDCR or the specific institution where Mr. Basra is housed

23 places on other inmates permitted to wear religious headwear or coverings.

24

14. The State shall pay $42,000 as complete resolution of all claims of

25 Mr. Basra to his counsel, the ACLU Foundation, Alston & Bird LLP and/or the

26 Sikh Coalition for attorneys’ fees and costs arising from this litigation. No interest

27 shall accrue on this amount and no other monetary sum shall be paid to Plaintifs.

28 Any amounts other than attorneys’ fees or costs paid to Mr. Basra shall be subject

to his restitution obligations under California Penal Code Section 2085.5.

Exhibit 1 - page 5

Case 2:11-cv-01676-SVW-FMO Document 40-1 Filed 06/05/11 Page 5 of 10 Page ID #:452

1

15. The Parties agree to a stay of all proceedings in this action until the

2 enactment of changes to Section 3062(h) to eliminate the facial hair length

3 restrictions and will file a stipulation to stay the matter subject to the Court’s

4 approval. This agreement shall be contingent upon the Court’s agreement to stay

5 proceedings as requested by the Parties. Following the enactment of changes to

6 Section 3062(h) to eliminate the facial hair length restrictions, the Parties shall file

7 a stipulation of dismissal with prejudice of all claims against Defendants in the

8 case of Basra v. Cate, Case No. CV11-01676 SVW(FMOx) (C.D. Cal.).

9

16. By signing this Settlement Agreement, the Plaintiff agrees that it will

10 releases Defendants, and each of them, and Defendants will release Plaintiff from

11 all claims, past, present and future, known or unknown, arising from or potentially

12 arising from the facts alleged in the Complaint or Complaint in Intervention as

13 soon as Defendants have notified Plaintiff’s counsel that the enactment of changes

14 to Section 3062(h) to eliminate the facial hair length restrictions have been

15 completed, but not before. It is the Parties’ intention, in executing this Settlement

16 Agreement and in receiving and accepting the consideration referred to, that this

17 Settlement Agreement shall be effective as a full and final accord and satisfaction

18 and release of all claims Plaintiff may have against Defendants or Defendants may

19 have against Plaintiff in this lawsuit. In furtherance of this intention, Plaintiff and

20 Defendants acknowledge that they are familiar with, and expressly waive, the

21 provisions of California Civil Code section 1542, which provides as follows:

23

A general release does not extend to claims which the creditor does

24

not know or suspect to exist in his or her favor at the time of executing the release which if known by him or her must have

25

materially affected his or her settlement with the debtor.

26

III. Representations and Warranties

27

17. This Settlement Agreement is the compromise of various disputed

28 claims and shall not be treated as an admission of liability by any of the Parties for

any purpose. The signature of or on behalf of the respective Parties does not

Exhibit 1 - page 6

Case 2:11-cv-01676-SVW-FMO Document 40-1 Filed 06/05/11 Page 6 of 10 Page ID #:453

1 indicate or acknowledge the validity or merits of any claim or demand of the other

2 Party.

3

18. This Settlement Agreement is binding on the Parties and their

4 agencies, departments, successors, or independent contractors including agents

5 and/or assigns that have responsibility for implementation of the requirements of

6 this Settlement Agreement either currently or in the future.

7

19. This Settlement Agreement is not intended to impair or expand the

8 right of any person or organization to seek relief against the State, CDCR or its

9 officials, employees, or agents for their conduct or the conduct of CDCR

10 employees for issues not specifically enumerated in this settlement agreement.

11

20. If any Party believes that another Party has failed to fulfill any

12 obligation under this Settlement Agreement, the Party shall, prior to initiating any

13 court proceeding to remedy such failure, give written notice of the failure to the

14 lead counsel of record for the other Party and attempt in good faith to resolve any

15 such failure. If the Parties are unable to resolve their differences within sixty days

16 of the written notice, then any Party may request the Court to enforce compliance

17 with this Settlement Agreement. Each Party shall be responsible for his own

18 attorneys fees incurred under this paragraph except that should a motion to enforce

19 the Settlement Agreement be necessary, the prevailing party in that proceeding

20 shall be entitled to reasonable attorneys’ fees associated with drafting and filing

21 any such motion or opposition to such motion.

23

21. The undersigned signatories represent that they have full authority

24 from their respective clients to execute this settlement agreement.

25

22. This Settlement Agreement may be executed by the Parties in

26 counterparts, each of which shall be deemed to be an original executed document

27 and all of which, together, shall constitute one and the same agreement.

28

Exhibit 1 - page 7

Case 2:11-cv-01676-SVW-FMO Document 40-1 Filed 06/05/11 Page 7 of 10 Page ID #:454

1

23. This Settlement Agreement expresses the entire agreement of the

2 Parties. No recitals, covenants, agreements, representations, or warranties of any

3 kind have been made or have been relied upon by any Party, except as specifically

4 set forth in the Settlement Agreement. Nothing other than this Settlement

5 Agreement shall be relevant or admissible to supplement or vary any of its terms

6 and provisions. All prior discussions, agreements, and negotiations are superseded

7 by and merged and incorporated into this Settlement Agreement. This is an

8 integrated document.

9

10 FOR SUKHJINDER S. BASRA

11
June ____, 2011
12

13
_____________________________ 14 CASSANDRA E. HOOKS

15 JONATHAN M. GORDON

16

LEIB MITCHELL LERNER Alston & Bird LLP

17

18 June ____, 2011

19

20 __________________________________

21

PETER J. ELIASBERG ACLU Foundation of Southern California

23

24 June ____, 2011

25
26 ___________________________________ DANIEL MACH
27 American Civil Liberties Union 28 Program on Freedom of Religion and Belief

Exhibit 1 - page 8

Case 2:11-cv-01676-SVW-FMO Document 40-1 Filed 06/05/11 Page 8 of 10 Page ID #:455
Exhibit 1 - page 9

Case 2:11-cv-01676-SVW-FMO Document 40-1 Filed 06/05/11 Page 9 of 10 Page ID #:456
Exhibit 1 - page 10

Case 2:11-cv-01676-SVW-FMO Document 40-1 Filed 06/05/11 Page 10 of 10 Page ID #:457
Exhibit 1 - page 11

 
 Case 2:11-cv-01676-SVW -FMO Document 36 Filed 05/23/11 Page 1 of 23 Page ID #:378

1 THOMAS E. PEREZ Assistant Attorney General
2 SAMUEL R. BAGENSTOS Principal Deputy Assistant Attorney General
3 JONATHAN M. SMITH (DC Bar # 396578) Chief, Special Litigation Section
4 TIMOTHY D. MYGATT (PA Bar # 90403) timothy.mygatt@usdoj.gov
5 Special Counsel, Special Litigation Section EMILY A. GUNSTON (SBN # 218035)
6 emily.gunston@usdoj.gov Samantha K. Trepel (DC Bar # 992377)
7 samantha.trepel@usdoj.gov Trial Attorneys
8 United States Department of Justice Civil Rights Division
9 Special Litigation Section 950 Pennsylvania Avenue, N.W.
10 Washington, D.C. 20530 Telephone: (202) 514-6225
11 Facsimile: (202) 514-4883

12 ANDRÉ BIROTTE JR. United States Attorney
13 LEON W. WEIDMAN Assistant United States Attorney
14 Chief, Civil Division ROBYN-MARIE LYON MONTELEONE
15 Chief, Civil Rights Unit ERIKA JOHNSON-BROOKS (SBN 210908)
16 erika.johnson@usdoj.gov Assistant United States Attorney
17 Federal Building, Suite 7516 300 North Los Angeles Street
18 Los Angeles, CA 90012 Telephone: (213) 894-0474
19 Facsimile: (213) 894-7819

20 Attorneys for the United States of America

21

UNITED STATES DISTRICT COURT

22

CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

23

24 SUKHJINDER S. BASRA AND

)

UNITED STATES OF AMERICA )

25

)

26

Plaintiffs,

)

)

27

v.

)

28

)

No. CV11-01676 SVW (FMOx)
UNITED STATES’ BRIEF IN SUPPORT OF PLAINTIFF SUKHJINDER S. BASRA’S MOTION FOR A

Case 2:11-cv-01676-SVW -FMO Document 36 Filed 05/23/11 Page 2 of 23 Page ID #:379

1 MATTHEW CATE, et al.,

2

Defendants.

) PRELIMINARY INJUNCTION 
 )
 ) Honorable Stephen V. Wilson

3

)

) Hearing Date: June 6, 2011

4

) Time: 1:30 p.m.

5

) Courtroom: 6

6 _______________________________)

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2

Case 2:11-cv-01676-SVW -FMO Document 36 Filed 05/23/11 Page 3 of 23 Page ID #:380

1

Table of Contents

2
I. INTRODUCTION ...............................................................................................5 


3
II. FACTUAL BACKGROUND AND STATEMENT OF THE CASE.................5 


4 III. APPLICABLE LEGAL STANDARDS ..............................................................7 


5 A. Standard for Issuing a Preliminary Injunction ..............................................7 


6 B. RLUIPA Prohibits the Government From Imposing a Substantial 


7

Burden on a Prisoner’s Religious Exercise Unless the Government’s 


8

Justification for Imposing the Burden Can Withstand Strict Scrutiny..........8 


9 IV. ANALYSIS..........................................................................................................8


10

A. Mr. Basra Is Likely To Succeed on the Merits Because the 
 Substantial Burden Placed on His Exercise of Religion Is Not the 


11

Least Restrictive Means of Achieving a Compelling Governmental 


12

Interest. ..........................................................................................................8 


13

1. Defendants Have Placed a Substantial Burden on Mr. Basra’s 


Exercise of Religion. ...............................................................................9 


14
2. Defendants Cannot Establish a Compelling Governmental 


15

Interest or Least Restrictive Means .........................................................9 


16 B. The Public Interests Animating RLUIPA Favor Issuance of a 


17

Preliminary Injunction .................................................................................15 


18 C. Failure To Grant an Injunction Will Result in Irreparable Harm to 


Mr. Basra .....................................................................................................15 


19

D. The Balance of Equities Sharply Favor Granting Issuance of a 


20

Preliminary Injunction. ................................................................................16 


21 V. CONCLUSION..................................................................................................17 


22

23

24

25

26

27

28

3

Case 2:11-cv-01676-SVW -FMO Document 36 Filed 05/23/11 Page 4 of 23 Page ID #:381

1

Table of Authorities

2 Cases Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir.
3 2011) .....................................................................................................................10 


4 Benning v. Georgia, 391 F.3d 1299, 1310 (11th Cir. 2004)....................................21 
 Ch. of Scientology v. United States, 920 F.2d 1481, 1488 (9th Cir. 1990) .............22 

5 Charles v. Verhagen, 348 F.3d 601, 607 (7th Cir. 2003) ........................................21 


6 Cutter v. Wilkinson, 544 U.S. 709, 713 (2005)........................................................20


7 Edmisten v. Werholtz, 287 F. App’x 728, 735 (10th Cir. 2008)..............................20 
 Guru Nanak Sikh Soc’y v. Cnty of Sutter, 326 F. Supp. 2d 1140, 1161 (E.D. 


8 Cal. 2003) .............................................................................................................22


9 Jova v. Smith, 582 F.3d 410, 415 (2d Cir. 2009) .....................................................16 
 May v. Baldwin, 109 F.3d 557, 563 (9th Cir. 1997) ................................................12 

10 Mayweathers v. Newland, 314 F.3d 1062, 1067 (9th Cir. 2002)...............................7 


11 Mayweathers v. Terhune, 328 F. Supp. 2d 1086, 1095-96 (E.D.Ca. 2004) ..... 19, 22 


Murphy v. Mo. Dep’t of Corr., 372 F.3d 979, 988-89 (8th Cir. 2004) ....................17 
 12 Murphy v. Zoning Comm’n of the Town of New Milford, 148 F. Supp. 2d. 


13 173, 181 (D. Conn. 2001) .............................................................................. 21, 22 


14 River of Life Kingdom Ministries v. Vill. of Hazel Crest, 611 F.3d 367, 380 
 (7th Cir. 2010) ......................................................................................................20 

15 Sefeldeen v. Alameida, 238 F. App’x 204, 205-06 (9th Cir. 2007) .........................12 


16

Shakur v. Schriro, 514 F.3d 878, 881 (9th Cir. 2008) .............................................12 
 Warsoldier v. Woodford, 418 F.3d 989, 993-94 (9th Cir. 2005) ..................... passim 


17 Washington v. Klem, 497 F.3d 272, 283 (3d Cir. 2007) ..........................................16 


18 Winter v. Natural Res. Def. Council, 555 U.S. 7, ___, 129 S. Ct. 365, 374 
 (2008)....................................................................................................................10

19
Statutes 20 Cal. Code Regs., tit. 15, §3062 (h) ..................................................................... 8, 21 


21 Religious Land Use and Institutionalized Person Act (“RLUIPA”), 42 
 U.S.C. § 2000cc et seq. (2000) ..................................................................... passim

22

23

24

25

26

27

28

4

Case 2:11-cv-01676-SVW -FMO Document 36 Filed 05/23/11 Page 5 of 23 Page ID #:382

1

THE UNITED STATES OF AMERICA, by its undersigned attorneys,

2 hereby files this brief in support of Plaintiff Sukhjinder S. Basra’s Motion for a

3 Preliminary Injunction.

4

I. INTRODUCTION

5

Plaintiff Sukhjinder S. Basra, an inmate at the California Men’s Colony

6 Correctional Facility (“CMC”) in San Luis Obispo, California, is a lifelong

7 practitioner of the Sikh faith. As an observant Sikh, he is religiously mandated to

8 maintain unshorn hair, including facial hair. This fundamental requirement of his

9 religion signifies his respect for the will of God. Adherents to the Sikh faith

10 believe that cutting one’s hair is a grievous sin. Pursuant to these beliefs, Mr.

11 Basra always has maintained his hair and beard uncut and unshaved, including

12 during his incarceration.

13

California Department of Corrections and Rehabilitation (“CDCR”) policy

14 prohibits facial hair longer than one-half inch, without providing any exception for

15 those whose religious practices forbid cutting facial or other bodily hair

16 (“Grooming Policy”). This rule was not enforced against Mr. Basra until after his

17 transfer from Pleasant Valley State Prison (“PVSR”), a more restrictive, higher

18 security CDCR facility, to the minimum security facility in CMC. Once at CMC,

19 Defendants began enforcing this Grooming Policy against Mr. Basra, subjecting

20 him to progressively more severe disciplinary sanctions for practicing his religion.

21

Mr. Basra is now compelled either to cut his beard and violate a central tenet

22 of his religion, or suffer increasingly severe penalties, including the deprivation of

23 privileges and the risk of longer confinement in prison, in violation of his rights

24 under the Religious Land Use and Institutionalized Person Act (“RLUIPA”), 42

25 U.S.C. § 2000cc et seq. (2000). Defendants contend that the Grooming Policy is

26 justified by their interest in the security of California’s prison facilities, but the

27 security interests they assert do not justify perpetuating the substantial burden

28 imposed on Mr. Basra’s religious liberty, one of our society’s most fundamental

5

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1 rights. See Mayweathers v. Newland, 314 F.3d 1062, 1067 (9th Cir. 2002)

2 (RLUIPA is designed to “guard against unfair bias and infringement on

3 fundamental freedoms”). As President Clinton said in signing RLUIPA,

4 “[r]eligious liberty is a constitutional value of the highest order, and the Framers of

5 the Constitution included protection for the free exercise of religion in the very

6 first Amendment. This Act recognizes the importance the free exercise of religion

7 plays in our democratic society.” See Statement by President William J. Clinton

8 Upon Signing S. 2869, 2000 U.S.C.C.A.N. 662 (September 22, 2000). Indeed,

9 Congress enacted RLUIPA to combat “egregious and unnecessary” restrictions on

10 religious exercise, “[w]hether from indifference, ignorance, bigotry, or lack of

11 resources.” 146 Cong. Rec. 16698-99 (2000).

12

Defendants’ Grooming Policy is precisely the type of unnecessary restriction

13 targeted by RLUIPA. The United States urges this Court to grant Mr. Basra’s

14 Motion for a Preliminary Injunction.

15 II. FACTUAL BACKGROUND AND STATEMENT OF THE CASE

16

Mr. Basra is an observant Sikh who is religiously mandated to maintain

17 unshorn hair, including facial hair. Decl. of Professor Gurinder Sigh Mann in

18 Supp. of Pl. Sukhjinder S. Basra’s Mot. for Prelim. Inj., ¶ 7, ECF No. 7-4

19 (hereinafter “Mann Decl.”). His unshorn beard is approximately six inches in

20 length. Members of the Sikh religion have five articles of faith which are worn at

21 all times. One of these five articles is the kesh, or unshorn hair. Adherents to the

22 Sikh faith believe that cutting one’s hair is a grievous sin and that uncut hair is

23 required for a Sikh to be classified as pure. Basra Decl. in Supp. of Mot. for

24 Prelim. Inj. ¶ 5, Jan. 26, 2011, ECF No. 7-2 (hereinafter “Basra Decl.”).

25

Mr. Basra currently is incarcerated in a minimum security facility within

26 CMC. He is kept in an unlocked, 90-person dormitory room. Id. ¶ 7. He initially

27 was incarcerated at PVSP, where he lived in a locked, two-man cell. Id. After one

28

6

Case 2:11-cv-01676-SVW -FMO Document 36 Filed 05/23/11 Page 7 of 23 Page ID #:384

1 year of discipline-free incarceration at PVSP, CDCR transferred Mr. Basra to 


2 CMC on or about February 26, 2010. Id.


3

According to CDCR regulations, “facial hair, including short beards,

4 mustaches, and sideburns are permitted for male inmates and shall not extend more

5 than one-half inch in length outward from the face.” Cal. Code Regs. tit. 15,

6 § 3062(h) (2010). The regulations contain no provision for religious exemption.

7 Moreover, they apply system-wide, regardless of the level of security at an

8 individual facility.

9

When Mr. Basra was incarcerated in a more restrictive setting at PVSP, he

10 kept his beard unshorn but suffered no disciplinary action during his incarceration

11 there. Basra Decl. ¶ 9. While at PVSP, and during the initial portion of his

12 confinement at CMC, CDCR never warned Mr. Basra his beard violated any law or

13 policy, and never disciplined Mr. Basra for having his beard longer than one-half

14 inch. Id. When Mr. Basra first entered the state system through the inmate

15 reception center, he was asked to run his fingers through his beard in front of the

16 guards. Since then, however, no CMC employee has ever searched Mr. Basra’s

17 beard or asked him to run his fingers through his beard in front of them. Mr. Basra

18 has never been accused of hiding any contraband in his beard. No correctional

19 officer has ever physically manipulated Mr. Basra’s beard, run a metal detection

20 wand over it, or asked Mr. Basra to part his beard or run his fingers through it in

21 front of them, for any reason. Id. ¶ 10.

22

Beginning in March 2010, however, CDCR began disciplining Mr. Basra for

23 maintaining his beard at longer than one-half inch in length. Id. ¶ 11. Since then,

24 CDCR has subjected Mr. Basra to progressively more severe disciplinary action

25 for failing to comply with the Grooming Policy. On April 3, April 30, and June

26 28, 2010, Mr. Basra was issued administrative Rules Violation Reports (“RVR”)

27 for violating Cal. Code Regs., tit. 15, §3062 (h), “Grooming Standards,” for having

28 a beard longer than one-half inch. Basra Decl. ¶¶ 12-14. At the administrative

7

Case 2:11-cv-01676-SVW -FMO Document 36 Filed 05/23/11 Page 8 of 23 Page ID #:385

1 hearings on each of these violations, Mr. Basra pled not guilty and informed the

2 hearing official that he is unable comply with the grooming standard due to his

3 religious beliefs. Nevertheless, after each hearing, Mr. Basra was found guilty of

4 violating the Grooming Policy. Id. For these violations, Mr. Basra received

5 various punishments, including over 40 hours of extra duty, loss of good time

6 credits, and 10 days confinement to quarters. Id. During the confinement to

7 quarters period, Mr. Basra was required to stay in his cell and was permitted to

8 leave only to eat, use the rest room, and receive medical attention. He also lost his

9 rights to visitation, phone calls, yard access, day room, canteen, quarterly

10 packages, and accrual of excused time off. Id. ¶ 14, fn 1. Mr. Basra appealed each

11 of these charge through all three levels of administrative review, arguing that the

12 disciplinary action substantially burdened his religious exercise. Id. ¶¶ 12-14.

13

On July 19, 2010, Mr. Basra submitted to Defendant Gonzalez a request that

14 he be exempted from the Grooming Policy and allowed to maintain his beard

15 untrimmed. Id. ¶17. In this request, he informed the warden that maintaining

16 unshorn facial hair is part of his religious belief and practice. In a letter dated July

17 28, 2010, CDCR denied Mr. Basra’s request, stating in pertinent part:

18

[Y]ou are not being discriminated against, as you allude to in your

19

letter . . . . You are being treated the same as the other inmates at

20

CMC . . . . You may have a beard, but you must keep it trimmed to no

21

more than one-half inch in length. There is no provision in the CCR,

22

Title 15 for the Warden to exempt the grooming standards.

23 Id. ¶ 14.

24

Other than disciplinary procedures for violations of the grooming code,

25 Mr. Basra has a positive disciplinary record. Id. ¶ 16. The penalties for the

26 practice of his religion are becoming more severe, and he is in danger of having his

27 security classification changed. Id. ¶8. As a result of the Grooming Policy, Mr.

28 Basra has suffered and likely will continue to suffer disciplinary sanctions,

8

Case 2:11-cv-01676-SVW -FMO Document 36 Filed 05/23/11 Page 9 of 23 Page ID #:386

1 including but not limited to the following: (1) loss of visitation rights; (2) extra 


2 duties; (3) loss of assignment to particular duties; (4) extra restrictions or 


3 confinement; and (5) loss of Work Time Credit or risk of loss of credits in the 


4 future.


5

III. APPLICABLE LEGAL STANDARDS

6

A. Standard for Issuing a Preliminary Injunction

7

The Supreme Court has held that a “plaintiff seeking a preliminary

8 injunction must establish that he is likely to succeed on the merits, that he is likely

9 to suffer irreparable harm in the absence of preliminary relief, that the balance of

10 equities tips in his favor, and that an injunction is in the public interest.” Winter v.

11 Natural Res. Def. Council, 555 U.S. 7, ___, 129 S. Ct. 365, 374 (2008). Prior to

12 the Supreme Court’s decision in Winter, a number of circuits had employed a

13 sliding scale approach in determining whether to issue a preliminary injunction.

14 Under this approach, the elements of the preliminary injunction test are balanced,

15 so that a stronger showing of one element may offset a weaker showing of

16 another. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir.

17 2011). The Ninth Circuit had adopted a version of this sliding scale approach

18 under which a preliminary injunction could issue where the likelihood of success

19 is such that “serious questions going to the merits were raised and the balance of

20 hardships tips sharply in [plaintiff's] favor.” Id. (quoting Clear Channel Outdoor,

21 Inc. v. City of Los Angeles, 340 F.3d 810, 813 (9th Cir. 2003)). In Cottrell, the

22 court held that this approach survived the Supreme Court’s decision in Winter.

23 Under the Ninth Circuit test, then, “‘serious questions going to the merits’ and a

24 hardship balance that tips sharply toward the plaintiff can support issuance of an

25 injunction, assuming the other two elements of the Winter test are also met.” Id.

26 at 1132.

27

Accordingly, to obtain a preliminary injunction, Mr. Basra “must show 


28 either (1) a likelihood of success on the merits and the possibility of irreparable 


9

Case 2:11-cv-01676-SVW -FMO Document 36 Filed 05/23/11 Page 10 of 23 Page ID #:387


1 injury or (2) the existence of serious questions going to the merits and the balance

2 of hardships tipping in [his] favor.” Warsoldier v. Woodford, 418 F.3d 989, 993­

3 94 (9th Cir. 2005) (quoting Nike, Inc. v. McCarthy, 379 F.3d. 576, 580 (9th Cir.

4 2004)). Mr. Basra has met the standards of both of these tests. Accordingly, his

5 motion should be granted.

6

B. RLUIPA Prohibits the Government From Imposing a Substantial

7

Burden on a Prisoner’s Religious Exercise Unless the Government’s

Justification for Imposing the Burden Can Withstand Strict

8

Scrutiny.

9

RLUIPA provides that no state or locally-owned institution, including

10 correctional facilities, “shall impose a substantial burden on the religious exercise

11 of a [prisoner].” 42 U.S.C. § 2000cc-1(a). “Religious exercise” includes “any

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

13 religious belief.” 42 U.S.C. § 2000cc-5(7)(A).

14

In order to overcome this prohibition on burdening religious exercise, a

15 government must demonstrate that imposition of the burden is: (1) “in furtherance

16 of a compelling governmental interest;” and (2) “the least restrictive means of

17 furthering that compelling governmental interest.” 42 U.S.C. § 2000cc-1(a).

18 Under RLUIPA, Mr. Basra bears the initial “burden of going forward with

19 evidence to demonstrate a prima facie claim thats [the Grooming Policy] and its

20 punitive sanctions designed to coerce him to comply with that policy constitute a

21 substantial burden on the exercise of his religious beliefs.” Warsoldier, 418 F.3d.

22 at 994. Once he has done so, Defendants must show that the substantial burden

23 placed on Mr. Basra is the least restrictive means of furthering a compelling

24 governmental interest. Id. at 995.

25

IV. ANALYSIS

26

The Grooming Policy substantially burdens Mr. Basra’s religious exercise,

27 and Defendants do not contest this point in the Opposition. Defendants attempt to

28 justify the substantial burden by claiming that it serves a compelling governmental

10 


Case 2:11-cv-01676-SVW -FMO Document 36 Filed 05/23/11 Page 11 of 23 Page ID #:388


1 interest—the need to quickly identify inmates and to prevent the introduction, use

2 and distribution of weapons, drugs, and other contraband – and that the Grooming

3 Policy is the least restrictive means of achieving those ends. Defendants’ argument

4 fails in light of the Ninth Circuit’s decision in Warsoldier, 418 F.3d 989, in which

5 the plaintiff challenged CDCR’s Grooming Policy prohibiting long hair. Under

6 almost identical facts, the Ninth Circuit rejected these arguments and held that the

7 plaintiff had demonstrated a likelihood of success on the merits of his claim that

8 California’s grooming policy prohibiting long hair violated RLUIPA, 42 U.S.C. §

9 2000cc-1. Id.

10 A. Mr. Basra Is Likely To Succeed on the Merits Because the Substantial

11

Burden Placed on His Exercise of Religion Is Not the Least Restrictive

Means of Achieving a Compelling Governmental Interest.

12

1. Defendants Have Placed a Substantial Burden on Mr. Basra’s

13

Exercise of Religion.

14

15

A State places a substantial burden on religious exercise when it places

16 “substantial pressure on an adherent to modify his behavior and to violate his

17 beliefs.” Warsoldier, 418 F.3d at 995 (quoting Thomas v. Review Bd. of the Ind.

18 Emp’t Sec. Div., 450 U.S. 707, 717-18 (1981)) (internal quotation marks omitted)

19 (holding that grooming policies requiring inmates to cut their hair intentionally

20 impose a substantial burden); see also Shakur v. Schriro, 514 F.3d 878, 881 (9th

21 Cir. 2008); May v. Baldwin, 109 F.3d 557, 563 (9th Cir. 1997) (finding substantial

22 burden where important benefits were conditioned on conduct proscribed by a

23 religious faith, a Rastafarian inmate undoing his dreadlocks). The Ninth Circuit

24 has found a substantial burden when the action is “oppressive to a significantly

25 great extent, such that it renders religious exercise effectively impracticable.”

26 Sefeldeen v. Alameida, 238 F. App’x 204, 205-06 (9th Cir. 2007) (quotation marks

27 omitted) (quoting San Jose Christian Coll. v. City of Morgan Hill, 360 F.3d 1024,

28 1034-35 (9th Cir. 2004)).

11

Case 2:11-cv-01676-SVW -FMO Document 36 Filed 05/23/11 Page 12 of 23 Page ID #:389

1

In Warsoldier, the Court held that imposing discipline such as that imposed

2 upon Mr. Basra for failing to comply with CDCR’s grooming regulations is a

3 substantial burden on religious exercise. Warsoldier, 418 F.3d at 996. Like the

4 plaintiff in Warsoldier, Mr. Basra is not being physically forced to comply with the

5 grooming standard, but he is being forced to choose between abandoning a core

6 tenant of his religion and being subjected to a variety of increasing punishments.

7 The court found such a Hobson’s choice to be a substantial burden on religious

8 exercise, noting that imposing such a dilemma “flies in the face of Supreme Court

9 and Ninth Circuit precedent that clearly hold that punishments to coerce a religious

10 adherent to forgo his . . . religious beliefs is an infringement on religious exercise.”

11 Id. The policy at issue here imposes a substantial burden on Mr. Basra’s religious

12 exercise, and Defendants do not contest that this prong of RLUIPA has been met.

13

2. Defendants Cannot Establish a Compelling Governmental

14

Interest or Least Restrictive Means

15

Because imposition of the Grooming Policy on Mr. Basra amounts to a

16 substantial burden on his religious exercise, CDCR must show that the imposition

17 of the substantial burden on Mr. Basra serves a compelling governmental interest,

18 and that the policy is the least restrictive means of advancing that interest. See 42

19 U.S.C. §§ 2000cc-1(a), 2000cc-2(b). Here, Defendants cite to prison safety and

20 security to justify depriving Mr. Basra of his fundamental right to exercise his

21 religion. In spite of evidence from other jurisdictions, and the holding in

22 Warsoldier, Defendants claim, as they did in Warsoldier, that the Grooming Policy

23 is the least restrictive means of achieving those goals. It is not, and the Ninth

24 Circuit has previously rejected these same arguments.

25

In Warsoldier, Defendants argued that their policy prohibiting long hair

26 allowed for the quick and accurate identification of inmates; prevented inmates

27 from hiding contraband or weapons in their hair or on their bodies; and prevented

28 prisoners from disguising their identity by cutting their hair upon escape.

12

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1 Warsoldier, 418 F.3d at 997. They make the same arguments here. Defendants’

2 Opp. to Mot. for Prelim. Inj., 3-9, ECF No. 32 (hereinafter “Opposition” or

3 “Opp.”). While prison safety and security are compelling interests, CDCR could

4 achieve those goals through less restrictive means.

5

a. The Grooming Policy Is Not Necessary for Prisoner Identification and

6

Prevention of Escape

7

The prohibition on long beards does not aid in the prevention of escapes or

8 the capture of escapees because CDCR already must employ mechanisms to

9 address the changing appearance of prisoners. In response to the Ninth Circuit’s

10 decision in Warsoldier, CDCR changed its grooming policy in 2006 to allow hair

11 of any length. Decl. of Randolph Grounds in Supp. of Opp. to Mot. for Prelim.

12 Inj., ¶ 2, ECF No. 32-1 (hereinafter “Grounds Decl.”). In Warsoldier, the

13 defendants had argued that removing the hair length prohibition would help

14 prisoners escape and elude capture. Warsoldier, 418 F.3d at 997. Yet, Defendants

15 have not cited to a single instance since the regulation changed where a prisoner

16 escaped, attempted to escape, or eluded capture by changing his hair length.

17 Indeed, the last instance of escape involving a change of hair length defendants cite

18 to occurred almost fourteen years ago. Opp. Ex. 2, at 2, ECF No. 32-3. These

19 fears either proved to be unfounded, or defendants have found other, less 20 restrictive means, of addressing these dangers.1

21
22 1 Defendants cite heavily to an incident in 1997 in which an inmate escaped by 23 shaving his beard, cutting his hair, fashioning an apparently realistic identification 24 card, donning civilian clothing, and leaving through the front gates of the prison. 25 One assumes that CDCR addressed this situation by resorting to the obvious less 26 restrictive alternatives of preventing inmates from accessing printers, cameras, 27 laminating machines, and civilian clothing, and restricting access to employee 28 identification cards.

13

Case 2:11-cv-01676-SVW -FMO Document 36 Filed 05/23/11 Page 14 of 23 Page ID #:391

1

Because CDCR already effectively manages prisoners’ changes in

2 appearance, the beard length restriction is unnecessary. Changing hair length is

3 just one of a number of ways in which prisoners may change their appearance.

4 During a period of incarceration, prisoners may age, gain and/or lose weight, incur

5 facial scars, get tattoos, lose teeth, and suffer receding hairlines. Decl. of John

6 Clark ¶ 22 (hereinafter “Clark Decl.”). Professional correctional management

7 requires any facility to maintain safety and security in spite of these changes. Id.

8 ¶ 24. One way to accomplish this task is to require a new photograph and inmate

9 identification whenever these changes occur, and retention of all past inmate

10 photos so the facility has a series of pictures of each inmate in every state of

11 appearance. The Federal Bureau of Prisons (“BOP”) manages to administer this

12 practice while incarcerating 215,000 prisoners and facing severe budgetary

13 limitations. Id. ¶¶ 10, 22, 27. CDCR likely already has policies and practices in

14 place to maintain security in spite of these inevitable appearance changes,

15 accounting for the lack of a single escape by an inmate who altered his appearance

16 in the last fourteen years. If it does not, than it cannot credibly cite to appearance

17 change as a compelling concern.

18

Moreover, Defendants’ general citations to cost concerns in administering

19 less restrictive alternatives are unpersuasive. Congress underlined the importance

20 of eradicating burdens on religious exercise by explicitly providing that

21 compliance with RLUIPA “may require a government to incur expenses in its own

22 operations to avoid imposing a substantial burden on religious exercise.”

23 42 U.S.C. § 2000cc-3(c).

24

b. The Grooming Policy Is Not the Least Restrictive Means of Preventing

25

Prisoners From the Concealing Contraband.

26

Defendants cite to the fear that prisoners will conceal contraband in a long

27 beard. They cite to “numerous occasions” in which prisoners have concealed

28 contraband “within beards and long hair,” without offering any temporal or

14

Case 2:11-cv-01676-SVW -FMO Document 36 Filed 05/23/11 Page 15 of 23 Page ID #:392


1 quantitative specifics. They do not cite a single specific example of an inmate

2 concealing contraband in a beard. Opp. at 4. Moreover, Defendants raised the

3 same concern in Warsoldier, 418 F.3d at 997, but, since changing the regulation,

4 CDCR has addressed this concern by searching prisoners’ hair. Grounds Decl.

5 ¶ 14. To the extent that concealment of contraband in beards also is a concern,

6 CDCR may employ the same remedy. Any additional administrative burden

7 would be minor, and that burden is outweighed by the interest in protecting a

8 fundamental right. The BOP addresses this concern by regularly searching

9 prisoners to prevent them from concealing contraband on their person. Clark Decl. 10 ¶ 26. The search consists of requiring the prisoner to run his hands vigorously 11 through his hair and through his beard, and then inserting his fingers in his mouth 12 and pulling his cheeks back. Prisoners also are subjected to a handheld metal 13 detection wand. The entire process takes only a few seconds. Id.

14

c. The Grooming Policy Is Overly Restrictive Because It Applies to All

15

Inmates, Regardless of Security Risk.

16

CDCR has enforced the Grooming Policy against Mr. Basra despite its

17 determination, evidenced by his transfer to a minimum security prison, that

18 he poses a lower security risk. Defendants have the burden of showing that

19 security, their asserted compelling interest, is actually furthered by banning

20 this specific Plaintiff from having an unshorn beard. 42 U.S.C. § 2000cc­

21 1(a) (prohibiting government imposition of a substantial burden on “religious

22 exercise of a person” unless “the government demonstrates that imposition of

23 the burden on that person” furthers a compelling government interest)

24 (emphasis added); see, e.g., Jova v. Smith, 582 F.3d 410, 415 (2d Cir. 2009)

25 (“[T]he state may not merely reference an interest in security or institutional

26 order in order to justify its actions.”); Washington v. Klem, 497 F.3d 272, 283

27 (3d Cir. 2007) (“Even in light of the substantial deference given to prison

28 authorities, the mere assertion of security or health reasons is not, by itself,

15

Case 2:11-cv-01676-SVW -FMO Document 36 Filed 05/23/11 Page 16 of 23 Page ID #:393


1 enough for the Government to satisfy the compelling governmental interest

2 requirement. Rather, the particular policy must further this interest.”);

3 Murphy v. Mo. Dep’t of Corr., 372 F.3d 979, 988-89 (8th Cir. 2004) (“[Officials]

4 must do more than offer conclusory statements and offer post hoc

5 rationalizations.”) (citations omitted).

6

Defendants have not demonstrated how security is actually furthered by

7 prohibiting Mr. Basra from keeping his beard unshorn. When Mr. Basra was

8 housed in a medium security facility, Defendants did not require him to shorten his

9 beard, nor did Defendants punish him for maintaining a long beard. Basra Decl. 10 ¶ 9. Mr. Basra has since been transferred to a minimum security facility, where he 11 has maintained a clean disciplinary record, other than discipline he has received for 12 maintaining an unshorn beard in accordance with his religious beliefs. Id. ¶¶ 7, 16. 13 Furthermore, Defendants have not pointed to any evidence in their Opposition that 14 Mr. Basra is an escape risk or that he has attempted to conceal contraband in his 15 beard. In Warsoldier, the Ninth Circuit found that CDCR’s grooming policy 16 prohibiting long hair likely was not the least restrictive means of furthering the 17 proffered security interest, in part because Mr. Warsoldier, like Mr. Basra, was 18 housed in a minimum security facility. The Warsoldier court found that the 19 lowered security pressures at minimum security facilities may require policies that 20 are correspondingly less restrictive, and criticized CDCR for failing to address this 21 difference in its polices. 418 F.3d at 999. That same principle applies here. 22 Defendants have made no showing that the burden imposed on Mr. Basra by the 23 Grooming Policy furthers the asserted compelling government interest in security, 24 and therefore have failed to meet their burden under RLUIPA.

25

26

27

28

16 


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1

d. Because the Federal Bureau of Prisons Is Able To Maintain Safety and

Security Without Restricting Beard Length, CDCR’s Policy Cannot Be

2

the Least Restrictive Means.

3

4

The Federal Bureau of Prisons has a population of approximately 215,000

5 prisoners, Clark Decl. ¶ 10, in contrast to California’s 160,000. Grounds Decl.

6 ¶ 18. It incarcerates organized crime figures, gang leaders, international terrorists,

7 and other violent offenders. Clark Decl. ¶ 10. It must deal with gang rivalries, as

8 well as regional rivalries. Id. The BOP also must deal with constant budgetary

9 limitations and shortfalls in the face of an ever-increasing prison population. Id.

10 ¶ 27. The BOP does not tolerate escapes or the possession of contraband by

11 prisoners. Id. ¶ 11.

12

The BOP does not place any restriction on the length of prisoners’ beards or

13 hair. Id. ¶ 9. To guard against the concealment of contraband, BOP staff search

14 prisoners by running a metal detection wand over the prisoners’ bodies, and/or by

15 requiring prisoners to vigorously manipulate their hair, beards, and their mouths in

16 the presence of staff. This procedure is not an undue administrative burden. It

17 takes a matter of seconds, and much of it would need to be done even if BOP

18 restricted beard length. Id. ¶ 26.

19

Despite incarcerating some of the most inventive and escape prone prisoners

20 in American history, BOP has not found it necessary to restrict beard length to 21 maintain security. Clark Decl. ¶¶ 18, 25. BOP must manage change of inmates’ 22 appearance regardless of any grooming policies, since a prisoner’s appearance may 23 change drastically and quickly over the course of an incarceration – they may age, 24 gain or lose weight, get tattoos, receive scars, grow their hair, or lose their hair. Id. 25 ¶ 22. The existence or length of one’s beard is just one factor in this inevitable 26 appearance change, and BOP must monitor this to ensure safety and security. 27 Instituting a beard length restriction would not alleviate this burden. Id. ¶ 17.

28

17 


Case 2:11-cv-01676-SVW -FMO Document 36 Filed 05/23/11 Page 18 of 23 Page ID #:395

1

In Warsoldier, the Ninth Circuit criticized CDCR for failing to consider less

2 restrictive grooming policies when other institutions with the same penological

3 goals were able to accommodate the same religious practices. See Warsoldier, 418

4 F.3d at 999-1000. It held that failure of an institution to distinguish itself from

5 these analogous institutions “may constitute a failure to establish that the defendant

6 was using the least restrictive means.” Id. at 1000. The court also noted that

7 prison systems such as those run by Oregon, Colorado, Nevada and the BOP have

8 all satisfied their penological interests with much broader policies or with religious

9 exemptions. Id. at 999-1000. Here, Defendants have failed to distinguish

10 themselves from the BOP.

11

Defendants’ reliance on Mayweathers v. Terhune, 328 F. Supp. 2d 1086

12 (E.D. Cal. 2004), is misplaced. There, a group of Muslim state prisoners filed suit

13 under RLUIPA challenging CDCR’s grooming policy which, at that time,

14 prohibited beards of any length. Mayweathers, 328 F. Supp. 2d at 1090-91. The

15 plaintiffs asked for an injunction to allow them to wear half-inch beards, alleging

16 that wearing this short beard was an exercise of their religion. Id. The court found

17 CDCR’s grooming standard violated RLUIPA, id. at 1096, because allowing

18 inmates to wear one-half inch beards was a less restrictive alternative. Id. at 1102.

19 The court did not find that allowing one-half inch beards was the least restrictive

20 alternative, because that question was not before it, and the court received no

21 evidence on that point. Defendants’ assertion that the court made such a finding is

22 incorrect.

23

The Ninth Circuit has made clear that grooming policies such as the one at

24 issue here violate RLUIPA because there are less restrictive and equally effective

25 alternatives to accomplish the goal of maintaining safety and security. Defendants

26 cite to no contrary Ninth Circuit authority on this point, nor could they. The

27 experience of the Federal Bureau of Prisons establishes that CDCR’s approach is

28

18 


Case 2:11-cv-01676-SVW -FMO Document 36 Filed 05/23/11 Page 19 of 23 Page ID #:396


1 overly restrictive and needlessly deprives California prisoners of a fundamental

2 right.

3

B. The Public Interests Animating RLUIPA Favor Issuance of a

4

Preliminary Injunction

5

As explained above, elimination of the Grooming Policy will not imperil

6 public safety, contrary to Defendants’ assertions. Moreover, it is well-settled that

7 “the public has an interest in protecting the civil rights of all persons.” Edmisten v.

8 Werholtz, 287 F. App’x 728, 735 (10th Cir. 2008) (reversing denial of preliminary

9 injunctive relief). The federal government’s interest in protecting individual rights

10 is particularly salient in the context of the religious protections afforded by

11 RLUIPA, “the latest of long-running congressional efforts to accord religious

12 exercise heightened protection from government-imposed burdens . . . .” Cutter v.

13 Wilkinson, 544 U.S. 709, 713 (2005). RLUIPA passed both houses of Congress

14 unanimously and was supported by more than seventy religious and civil rights

15 groups representing a diversity of religious and ideological viewpoints. See 146

16 Cong. Rec. S7777-78. Its enactment followed a three year congressional

17 investigation into free exercise violations involving the religious practices of

18 institutionalized persons. River of Life Kingdom Ministries v. Vill. of Hazel Crest,

19 611 F.3d 367, 380 (7th Cir. 2010). As set forth in a joint statement by RLUIPA

20 co-sponsors Orrin Hatch and Edward Kennedy, Congress found that “[w]hether

21 from indifference, ignorance, bigotry, or lack of resources, some institutions

22 restrict religious liberty in egregious and unnecessary ways.” See 146 Cong. Rec.

23 16698-99 (2000).

24

Moreover, facilitating the religious exercise of incarcerated persons serves

25 the important societal interest in rehabilitation of inmates. This interest in

26 rehabilitation was one of the motivations for Congress’s passage of RLUIPA.

27 When introducing the bill that would become RLUIPA, Senator Kennedy

28 specifically noted that restrictions on the practice of religion in the prison context

19 


Case 2:11-cv-01676-SVW -FMO Document 36 Filed 05/23/11 Page 20 of 23 Page ID #:397


1 could be counter-productive: “[s]incere faith and worship can be an indispensible

2 part of rehabilitation.” See 146 Cong. Rec. S6689. Further, this interest has been

3 repeatedly recognized by federal courts. In a decision affirming a district court’s

4 finding that a prison violated RLUIPA by denying prayer oils to a Muslim inmate,

5 the Seventh Circuit explained that “RLUIPA’s attempt to protect prisoners’

6 religious rights and to promote the rehabilitation of prisoners falls squarely within

7 Congress’ pursuit of the general welfare . . . .” Charles v. Verhagen, 348 F.3d 601,

8 607 (7th Cir. 2003); see also, e.g., Benning v. Georgia, 391 F.3d 1299, 1310 (11th

9 Cir. 2004) (“rehabilitation of prisoners is also a . . . purpose underlying RLUIPA”).

10

C. Failure To Grant an Injunction Will Result in Irreparable Harm to

11

Mr. Basra

12

Mr. Basra has been subjected to discipline for adhering to his religious

13 beliefs. Basra Decl. ¶ 18. Because Defendants have denied his religious

14 exemption, he continues to be in violation of the Grooming Policy. He is in

15 immediate danger of being deemed a program failure. 15 Cal. Code Regs. tit. 15,

16 § 3062(m). He already has received a referral to program review to determine if he

17 should be deemed a program failure. Basra Decl. ¶ 14. This kind of “chilling

18 effect” on the exercise of religion constitutes irreparable injury. See Murphy v.

19 Zoning Comm’n of the Town of New Milford, 148 F. Supp. 2d. 173, 181 (D. Conn.

20 2001) (holding that a chilling effect on religious practice was enough to satisfy the

21 irreparable harm requirement).

22

When evaluating irreparable injury in the context of RLUIPA, courts have

23 determined that the concerns are the same as those in the First Amendment

24 context. Indeed, Congress’ expressed intent to protect the free exercise of religion

25 led the court in Murphy to conclude the following:

26

Since the statute [“RLUIPA”] was enacted for the express purpose of

27

protecting the First Amendment rights of individuals, the allegation that

28

defendants have violated this statute also triggers the same concerns that led

20

Case 2:11-cv-01676-SVW -FMO Document 36 Filed 05/23/11 Page 21 of 23 Page ID #:398

1

the courts to hold that these violations result in a presumption of irreparable

2

harm.

3 Murphy, 148 F. Supp. 2d at 180-81.

4

The “‘loss of First Amendment freedoms, for even minimal periods of time,

5 unquestionably constitutes irreparable injury.’” Ch. of Scientology v. United

6 States, 920 F.2d 1481, 1488 (9th Cir. 1990) (quoting Elrod v. Burns, 427 U.S. 347

7 (1976)); see Guru Nanak Sikh Soc’y v. Cnty of Sutter, 326 F. Supp. 2d 1140, 1161

8 (E.D. Cal. 2003). Furthermore, Congress enacted RLUIPA to “protect the free

9 exercise of religion from unnecessary government interference.” Murphy, 148 F.

10 Supp. 2d at 180 (citation omitted).

11

Under similar facts, the Ninth Circuit found a burden like the one being

12 placed upon Mr. Basra constituted irreparable injury. Warsoldier, 418 F.3d at

13 1001-02 (“We have previously held that putting substantial pressure on an adherent

14 to modify his behavior and to violate his belief infringes on the free exercise of

15 religion . . . . Because Warsoldier has, at a minimum, raised a colorable claim that

16 the exercise of his religious beliefs has been infringed, he has sufficiently

17 established that he will suffer an irreparable injury absent an injunction barring 18 enforcement of the grooming policy against him.”) (internal quotation marks and 19 citations omitted). Therefore, a preliminary injunction is necessary to ensure that 20 Mr. Basra is not threatened with irreparable injury.

21

D. The Balance of Equities Sharply Favor Granting Issuance of a

22

Preliminary Injunction.

23

Mr. Basra is being punished for practicing his religion. He is being deprived

24 of a fundamental right. These facts alone merit the issuance of a preliminary

25 injunction.

26

The interests asserted by Defendants do not alter this balance. Defendants

27 assert that the deprivation of Mr. Basra’s fundamental right is necessary to prevent

28 inmate escape and the concealment of contraband, but enjoining Defendants from

21 


Case 2:11-cv-01676-SVW -FMO Document 36 Filed 05/23/11 Page 22 of 23 Page ID #:399


1 enforcing this policy against Mr. Basra would place no burden upon them. For the

2 initial period of Mr. Basra’s incarceration – when he was at a more secure facility

3 – Defendants did not feel compelled to enforce the Grooming Policy against him.

4 To date, Defendants have not felt it necessary to search Mr. Basra’s beard for

5 contraband and, in fact, have housed him in minimum security facility where he

6 sleeps in an unlocked dormitory. Defendants’ past actions confirm they would not

7 be burdened by an injunction against enforcing the Grooming Policy against Mr.

8 Basra.

9

Mr. Basra has demonstrated he is likely to prevail on his claims. He has also

10 demonstrated that irreparable injury would occur, and that the balance of hardships

11 is sharply in his favor. Public safety will not be imperiled. Rather, the public

12 interest will be served by such an injunction. Accordingly, the United States urges

13 this Court to grant his Motion for a Preliminary Injunction.

14

15

V. CONCLUSION

16

The United States respectfully urges that this Court to grant Mr. Basra’s

17 Motion for a Preliminary Injunction.

18

19

Respectfully submitted,

20
21 ANDRÉ BIROTTE, JR. United States Attorney
22 Central District of California
23

THOMAS E. PEREZ Assistant Attorney General Civil Rights Division

24
LEON W. WEIDMAN 25 Assistant United States Attorney 26 Chief, Civil Division
27

SAMUEL R. BAGENSTOS Principal Deputy Assistant Attorney General Civil Rights Division

28

22 


Case 2:11-cv-01676-SVW -FMO Document 36 Filed 05/23/11 Page 23 of 23 Page ID #:400

1
 /s/ Erika Johnson-Brooks

ROBYN-MARIE LYON MONTELEONE 
 JONATHAN M. SMITH

2
 Chief, Civil Rights Unit




Chief

3
 ERIKA JOHNSON-BROOKS

Assistant United States Attorney 4
 United States Attorney 


5
 Central District of California

6
 312 North Spring Street

Los Angeles, CA 90012




7


Special Litigation Section
TIMOTHY D. MYGATT Special Counsel Special Litigation Section

8


/s/ Samantha K. Trepel

EMILY A. GUNSTON

9


SAMANTHA K. TREPEL

10


Trial Attorneys

11


U.S. Department of Justice 
 Civil Rights Division 


12


Special Litigation Section 


13


950 Pennsylvania Avenue, N.W. 


Washington, D.C. 20530 


14


(202) 514-6255 


15


16


17


18


19


20


21


22


23


24


25


26


27


28


23 


 
 Case: 2:11-cv-01676-SVW-FMO As of: 09/17/2013 01:47 PM PDT 1 of 7 (FMOx),CLOSED,DISCOVERY,STAYED
UNITED STATES DISTRICT COURT for the CENTRAL DISTRICT OF CALIFORNIA (Western Division − Los Angeles)
CIVIL DOCKET FOR CASE #: 2:11−cv−01676−SVW−FMO

Sukhjinder S Basra v. Matthew Cate et al Assigned to: Judge Stephen V. Wilson Referred to: Magistrate Judge fernando m. olguin Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 02/25/2011 Date Terminated: 06/06/2011 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Sukhjinder S Basra

represented by Cassandra E Hooks Alston &Bird LLP 333 S Hope Street 16th Floor Los Angeles, CA 90071 213.576.1000 Fax: 213.576.1100 Email: cassandra.hooks@alston.com ATTORNEY TO BE NOTICED

Daniel Mach American Civil Liberties Union Program on Freedom of Religion and Belief 915 15th Street NW Washington, DC 20005 202−675−2330 Fax: 202−546−0738 Email: dmach@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED

Harsimran Kaur Dang The Sikh Coalition 39465 Paseo Padre Parkway Suite 3550 Fremont, CA 94538 510−659−0900 Fax: 510−952−3900 ATTORNEY TO BE NOTICED

Jonathan Mark Gordon Alston and Bird LLP 333 S Hope Street 16th FlOOR Los Angeles, CA 90071 213−576−1000 Fax: 213−576−1100 Email: jonathan.gordon@alston.com ATTORNEY TO BE NOTICED

Leib Mitchell Lerner Alston &Bird 333 South Hope Street 16th Floor Los Angeles, CA 90071−1406 213−576−1000 Fax: 213−576−1100 Email: leib.lerner@alston.com ATTORNEY TO BE NOTICED

Peter J Eliasberg ACLU Foundation of Southern California 1313 West Eighth Street

Case: 2:11-cv-01676-SVW-FMO As of: 09/17/2013 01:47 PM PDT 2 of 7
Los Angeles, CA 90017 213−977−9500 Fax: 213−977−5299 Email: peliasberg@aclu−sc.org ATTORNEY TO BE NOTICED

V. Intervenor Plaintiff United States of America

represented by Emily Gunston US Department of Justice Civil Rights Division 950 Pennsylvania Avenue NW Washington, DC 20530 202−514−6255 Fax: 202−514−4883 Email: emily.gunston@usdoj.gov ATTORNEY TO BE NOTICED
Erika Johnson−Brooks AUSA − Office of US Attorney Civil Division 300 North Los Angeles Street Suite 7516 Los Angeles, CA 90012 213−894−0474 Fax: 213−894−7819 Email: usacac.civil@usdoj.gov ATTORNEY TO BE NOTICED
Samantha K Trepel US Department of Justice 950 Pennsylvania Avenue NW PHB 5516 Washington, DC 20530 202−514−6255 Email: samantha.trepel@usdoj.gov ATTORNEY TO BE NOTICED

V. Defendant Matthew Cate Secretary of the California Department of Corrections and Rehabilition, in his official capacity
Defendant Terri Gonzalez individual capacity
Defendant Terri Gonzalez Warden of the California Mens Colony, in

represented by Michelle A Des Jardins CAAG − Office of Attorney General California Department of Justice 110 West A Street Suite 1100 P O Box 85266 San Diego, CA 92101 619−645−2295 Fax: 619−645−2581 Email: michelle.desjardins@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michelle A Des Jardins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michelle A Des Jardins (See above for address)

Case: 2:11-cv-01676-SVW-FMO As of: 09/17/2013 01:47 PM PDT 3 of 7

her official capacity

LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Intervenor Defendant State of California
Intervenor Defendant Governor Jerry Brown in his official capacity
Intervenor Defendant California Department of Corrections and Rehabilitation
Intervenor Defendant California Mens Colony

Date Filed 02/25/2011
02/25/2011 02/25/2011 02/25/2011
02/28/2011 03/01/2011 03/02/2011 03/03/2011

# Docket Text
1 COMPLAINT against Defendants Matthew Cate, Terri Gonzalez(individual capacity), Terri Gonzalez(Warden of the California Mens Colony, in her official capacity). Case assigned to Judge Stephen V. Wilson for all further proceedings. Discovery referred to Magistrate Judge Fernando M. Olguin.(Filing fee $ 350:PAID), filed by plaintiff Sukhjinder S Basra.(ghap) (ds). (Entered: 02/28/2011)
21 DAY Summons Issued re Complaint − (Discovery) 1 as to Defendants Matthew Cate, Terri Gonzalez(individual capacity), Terri Gonzalez(Warden of the California Mens Colony, in her official capacity). (ghap) (Entered: 02/28/2011)
2 CERTIFICATION AND NOTICE of Interested Parties filed by Plaintiff Sukhjinder S Basra. (ghap) (ds). (Entered: 02/28/2011)
3 NOTICE OF FILING FEE DUE on Pro Hac Vice Application mailed to Daniel Mach for Plaintiff Sukhjinder S Basra. Your Pro Hac Vice application has not been received by the court. Please return you completed Application of Non−Resident Attorney to Appear in a Specific Case, form G−64, or a copy of the Notice of Electronic Filing of your application and the $275.00 fee and this notice immediately. Out−of−state federal government attorneys who are not employed by the U.S. Department of Justice are required to file a Pro Hac Vice application; no filing fee is required. (ghap) (Entered: 02/28/2011)
4 First APPLICATION for attorney Daniel Mach to Appear Pro Hac Vice (PHV FEE NOT PAID.) filed by plaintiff Sukhjinder S Basra. (Attachments: # 1 Proposed Order)(Lerner, Leib) (Entered: 02/28/2011)
5 NEW CASE ORDER by Judge Stephen V. Wilson, (im) (Entered: 03/01/2011)
6 ORDER by Judge Stephen V. Wilson: granting 4 Application to Appear Pro Hac Vice by Attorney Daniel Mach on behalf of Plaintiff Sukhjinder S. Basra, designating Leib M. Lerner as local counsel. (lt) (Entered: 03/02/2011)
7 NOTICE OF MOTION AND MOTION for Preliminary Injunction re: Violation of the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq. filed by Plaintiff Sukhjinder S Basra. Motion set for hearing on 4/4/2011 at 01:30 PM before Judge Stephen V. Wilson. (Attachments: # 1 Memorandum Of Points And Authorities In Support Of Plaintiff Sukhjinder S. Basra's Motion For A Preliminary Injunction, # 2 Declaration Of Sukhjinder S. Basra In Support Of Motion For Preliminary Injunction, # 3 Declaration Of Toni V. Bair In Support Of Plaintiff Sukhjinder S. Basra's Motion For A Preliminary Injunction, # 4 Declaration Of Professor Gurinder Singh Mann In Support Of Plaintiff Sukhjinder S. Basra's Motion For A Preliminary Injunction, # 5 Proposed Order Granting

Case: 2:11-cv-01676-SVW-FMO As of: 09/17/2013 01:47 PM PDT 4 of 7

03/11/2011
03/14/2011 03/15/2011 03/15/2011 03/15/2011 03/16/2011 03/17/2011 03/21/2011
03/21/2011 03/21/2011
03/21/2011
03/22/2011

Plaintiff Sukhjinder S. Basra's Motion For A Preliminary Injunction)(Hooks, Cassandra) (Entered: 03/03/2011)
8 EX PARTE APPLICATION to Continue Preliminary Injunction Hearing from April 4, 2011 to April 18, 2011 filed by Defendants Matthew Cate, Terri Gonzalez(individual capacity), Terri Gonzalez(Warden of the California Mens Colony, in her official capacity). (Attachments: # 1 Declaration of Michelle Des Jardins in Support of Ex Parte Application for Continuance of Preliminary Injunction Hearing, # 2 Proposed Order Granting Continuance)(Des Jardins, Michelle) (Entered: 03/11/2011)
9 OPPOSITION EX PARTE APPLICATION TO CONTINUE PRELIMINARY INJUNCTION HEARING re: EX PARTE APPLICATION to Continue Preliminary Injunction Hearing from April 4, 2011 to April 18, 2011 8 filed by Plaintiff Sukhjinder S Basra. (Attachments: # 1 Declaration of Peter J. Eliasberg)(Hooks, Cassandra) (Entered: 03/14/2011)
11 MOTION to Intervene filed by movant United States of America. Motion set for hearing on 4/25/2011 at 01:30 PM before Judge Stephen V. Wilson. Lodged order, complaint in intervention. (Attachments: # 1 lodged complaint in intervention)(lc) (Entered: 03/16/2011)
12 NOTICE OF MOTION re MOTION to Intervene 11 set for 4/25/11 1:30 PM filed by Movant United States of America. (lc) (Entered: 03/16/2011)
13 MEMORANDUM in Support of MOTION to Intervene 11 filed by Movant United States of America. (lc) (Entered: 03/16/2011)
10 ORDER GRANTING CONTINUANCE by Judge Stephen V. Wilson 8 . The Motion for Preliminary Injunction hearing is continued to 4−11−11 at 1:30 p.m. (im) (Entered: 03/16/2011)
14 STATEMENT of Non−Opposition To United States' MOTION to Intervene 11 filed by Plaintiff Sukhjinder S Basra. (Hooks, Cassandra) (Entered: 03/17/2011)
15 Joint STIPULATION to Continue Motion for Preliminary Injunction Hearing from April 11, 2011 at 1:30 p.m. to April 25, 2011 at 1:30 p.m. Re: MOTION for Preliminary Injunction re: Violation of the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq. 7 filed by Defendants Matthew Cate, Terri Gonzalez(individual capacity), Terri Gonzalez(Warden of the California Mens Colony, in her official capacity). (Attachments: # 1 Proposed Order Granting Two−Week Continuance of Motion for Preliminary Injunction)(Des Jardins, Michelle) (Entered: 03/21/2011)
16 ANSWER to Complaint − (Discovery), Complaint − (Discovery) 1 with JURY DEMAND filed by Defendants Matthew Cate, Terri Gonzalez(individual capacity), Terri Gonzalez(Warden of the California Mens Colony, in her official capacity).(Des Jardins, Michelle) (Entered: 03/21/2011)
17 PROOF OF SERVICE Executed by Plaintiff Sukhjinder S Basra, upon Defendant Matthew Cate served on 2/28/2011, answer due 3/21/2011. Service of the Summons and Complaint were executed upon Matthew Cate, Secretary of the CA Dept. of Corrections and Rehabilitation, in his official Capacity in compliance with Federal Rules of Civil Procedure by substituted service at business address and by also mailing a copy. Original Summons returned. (Hooks, Cassandra) (Entered: 03/21/2011)
18 PROOF OF SERVICE Executed by Plaintiff Sukhjinder S Basra, upon Defendant Terri Gonzalez(Warden of the California Mens Colony, in her official capacity) served on 3/1/2011, answer due 3/22/2011. Service of the Summons and Complaint were executed upon Terri Gonzalez, Warden of the California Men's Colony, in her official and individual capacities in compliance with Federal Rules of Civil Procedure by personal service. Original Summons returned. (Hooks, Cassandra) (Entered: 03/21/2011)
19 ORDER RE: STATUS CONFERENCE by Judge Stephen V. Wilson. IT IS HEREBY ORDERED that a Status Conference be set for Monday, April 25, 2011 at 1:30 p.m. before the Honorable Stephen V. Wilson. The attorneys attending this

Case: 2:11-cv-01676-SVW-FMO As of: 09/17/2013 01:47 PM PDT 5 of 7

03/23/2011 03/23/2011 04/01/2011
04/04/2011 04/05/2011 04/06/2011 04/07/2011 04/18/2011
04/18/2011
05/02/2011
05/03/2011

conference MUST be those who are in charge of the conduct of the trial. Attendance is mandatory. (im) (Entered: 03/22/2011)
20 NOTICE filed by Plaintiff Sukhjinder S Basra. of Status Conference (Hooks, Cassandra) (Entered: 03/23/2011)
21 ORDER GRANTING TWO−WEEK CONTINUANCE OF MOTION FOR PRELIMINARY INJUNCTION by Judge Stephen V. Wilson 15 . The Court finds good cause to grant this continuance and order the hearing continued to April 25, 2011 at 1:30 pm. (im) (Entered: 03/24/2011)
22 Second STIPULATION to Continue Motion for Preliminary Injunction Hearing from April 25, 2011 at 1:30 p.m. to May 23, 2011 at 1:30 p.m. Re: MOTION for Preliminary Injunction re: Violation of the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq. 7 filed by Defendants Matthew Cate, Terri Gonzalez(individual capacity), Terri Gonzalez(Warden of the California Mens Colony, in her official capacity). (Attachments: # 1 Proposed Order Granting Continuance of Motion for Preliminary Injunction)(Des Jardins, Michelle) (Entered: 04/01/2011)
23 NOTICE OF NON−OPPOSITION to MOTION to Intervene 11 filed by Defendants Matthew Cate, Terri Gonzalez, Terri Gonzalez. (Des Jardins, Michelle) (Entered: 04/04/2011)
24 ORDER GRANTING CONTINUANCE OF MOTION FOR PRELIMINARY INJUNCTION by Judge Stephen V Wilson 22 . The Motion for Preliminary Injunction and Status Conference are continued to May 23, 2011 at 1:30 pm. (im) (Entered: 04/06/2011)
25 MINUTES (IN CHAMBERS) by Judge Stephen V. Wilson 11 . In light of Plaintiff's and Defendants' statements of non−opposition to the United States' motion to Intervene, the Motion is GRANTED. The hearing on the matter set for April 25, 2011 is VACATED. (im) (Entered: 04/06/2011)
26 NOTICE of Appearance filed by attorney Samantha K Trepel on behalf of Movant United States of America (Trepel, Samantha) (Entered: 04/07/2011)
27 COMPLAINT IN INTERVENTION against Defendants Matthew Cate, Secretary of the California Department of Corrections and Rehabilitation, in his official capacity, Terri Gonzalez, Warden of the California Men's Colony, in her official and individual capacities, the State of California, Governor Jerry Brown, in his official capacity, the California Department of Corrections and Rehabilitation, and the California Mens Colony; filed by Plaintiff in Intervention United States of America. (gk) (Additional attachment(s) added on 4/27/2011: # 1 21 day Summons Issued) (pj). (Entered: 04/20/2011)
21−Day Summons Issued re Complaint in Intervention 27 as to Defendants Matthew Cate, Secretary of the California Department of Corrections and Rehabilitation, in his official capacity, Terri Gonzalez, Warden of the California Men's Colony, in her official and individual capacities, the State of California, Governor Jerry Brown, in his official capacity, the California Department of Corrections and Rehabilitation, and the California Mens Colony. (gk) (Entered: 04/20/2011)
28 Third STIPULATION to Continue Motion for Preliminary Injunction Hearing from May 23, 1011 at 1:30 p.m. to June 6, 2011 at 1:30 p.m. Re: MOTION for Preliminary Injunction re: Violation of the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq. 7 filed by Defendants Matthew Cate, Terri Gonzalez(Warden of the California Mens Colony, in her official capacity), Terri Gonzalez(individual capacity). (Attachments: # 1 Proposed Order Granting Continuance of Motion for Preliminary Injunction)(Des Jardins, Michelle) (Entered: 05/02/2011)
29 WAIVER OF SERVICE Returned Executed filed by Intervenor United States of America. upon Terri Gonzalez(individual capacity) waiver sent by Plaintiff on 4/22/2011, answer due 6/21/2011. Waiver of Service signed by Michelle Des Jardins. (Johnson−Brooks, Erika) (Entered: 05/03/2011)

Case: 2:11-cv-01676-SVW-FMO As of: 09/17/2013 01:47 PM PDT 6 of 7

05/03/2011 05/03/2011
05/16/2011
05/18/2011 05/19/2011 05/20/2011 05/23/2011 05/23/2011 05/23/2011 05/26/2011 06/05/2011 06/06/2011

30 WAIVER OF SERVICE Returned Executed filed by Intervenor United States of America. upon Matthew Cate waiver sent by Plaintiff on 4/22/2011, answer due 6/21/2011. Waiver of Service signed by Michelle Des Jardins. (Johnson−Brooks, Erika) (Entered: 05/03/2011)
31 ORDER GRANTING CONTINUANCE OF MOTION FOR PRELIMINARY INJUNCTION by Judge Stephen V. Wilson, re Stipulation to Continue,, 28 . The parties have stipulated to a two−week continuance of Plaintiffs Motion for Preliminary Injunction currently set for hearing on May 23, 2011 at 1:30 p.m.before the Honorable Stephen V. Wilson. This Court finds good cause to grant this continuance and orders the hearing continued to June 6, at 1:30 p.m. (pj) (Entered: 05/05/2011)
32 OPPOSITION to MOTION for Preliminary Injunction re: Violation of the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq. 7 filed by Defendants Matthew Cate, Terri Gonzalez. (Attachments: # 1 Declaration of Randolph Grounds in Support of Opposition to Motion for Preliminary Injunction, # 2 Declaration Exhibit 1, # 3 Declaration Exhibit 2 &3)(Des Jardins, Michelle) (Entered: 05/16/2011)
33 Joint STIPULATION to Continue Status Conference from May 23, 2011 at 1:30 p.m. to June 6, 2011 at 1:30 p.m. filed by Defendants Matthew Cate, Terri Gonzalez(Warden of the California Mens Colony, in her official capacity), Terri Gonzalez(individual capacity). (Attachments: # 1 Proposed Order Granting Continuance of Status Conference)(Des Jardins, Michelle) (Entered: 05/18/2011)
34 NOTICE of Appearance filed by attorney Samantha K Trepel on behalf of Intervenor Plaintiff United States of America (Trepel, Samantha) (Entered: 05/19/2011)
35 ORDER by Judge Stephen V. Wilson, re Stipulation to Continue, 33 . The parties have stipulated to a continuance of the status conference currently set for May 23, 2011 at 1:30 p.m. before the Honorable Stephen V. Wilson. ThisCourt finds good cause to grant this continuance and orders the conferencecontinued to June 6, at 1:30 p.m. (pj) (Entered: 05/20/2011)
36 RESPONSE IN SUPPORT of MOTION for Preliminary Injunction re: Violation of the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq. 7 filed by Intervenor Plaintiff United States of America. (Johnson−Brooks, Erika) (Entered: 05/23/2011)
37 RESPONSE IN SUPPORT of MOTION for Preliminary Injunction re: Violation of the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq. 7 filed by Plaintiff Sukhjinder S Basra. (Attachments: # 1 Declaration of Toni V. Bair in Support of Plaintiff's Motion for a Preliminary Injunction)(Hooks, Cassandra) (Entered: 05/23/2011)
38 DECLARATION of JOHN CLARK re Response in Support of Motion 36 filed by Intervenor Plaintiff United States of America. (Johnson−Brooks, Erika) (Entered: 05/23/2011)
39 Objection re: MOTION for Preliminary Injunction re: Violation of the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq. 7 re United States' Brief in Support of Plaintiff Sukhjinder S. Basra's Motion for Preliminary Injunction filed by Defendants Matthew Cate, Terri Gonzalez. (Des Jardins, Michelle) (Entered: 05/26/2011)
40 STIPULATION to Stay Case pending Completion of Terms of Settlement Agreement filed by Plaintiff Sukhjinder S Basra. (Attachments: # 1 Exhibit Settlement Agreement, # 2 Proposed Order)(Eliasberg, Peter) (Entered: 06/05/2011)
41 MINUTES OF 7 MOTION for Preliminary Injunction re Violation of the Religious Land Use and Institutionalized Persons Act. filed by PlaintiffSukhjinder S. Basra NEW CASE STATUS CONFERENCE 7 Motion Hearing held before Judge Stephen V. Wilson:; Status Conference held before Judge Stephen V. Wilson: Hearing and conference held. The motion is submitted. Order to issue.Court Reporter: Deborah Gackle. (pj) (Entered: 06/07/2011)

Case: 2:11-cv-01676-SVW-FMO As of: 09/17/2013 01:47 PM PDT 7 of 7

06/06/2011 05/15/2012
05/18/2012

42 ORDER GRANTING STAY OF ALL PROCEEDINGS by Judge Stephen V. Wilson (MD JS−6. Case Terminated) (pj) (Entered: 06/07/2011)
43 STIPULATION to Dismiss Case pursuant to FRCP 41(a)(1)(A)(ii) filed by Plaintiff &Defendants Sukhjinder S Basra, Matthew Cate, Terri Gonzalez(Warden of the California Mens Colony, in her official capacity), United States of America. (Attachments: # 1 Proposed Order)(Des Jardins, Michelle) (Entered: 05/15/2012)
44 ORDER DISMISSING ACTION by Judge Stephen V. Wilson. The Parties have stipulated to a dismissal of this action with prejudice under Federal Rule of Civil Procedure 41(a)(1)(A)(ii) (bp) (Entered: 05/18/2012)