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Rouser v. White

April 15, 2010



Plaintiff is a prisoner proceeding with counsel bringing claims arising out of the alleged failure of prison officials to accommodate the practice of his religion. At issue here is plaintiff's most recent motion for a preliminary injunction enjoining various officials. The motion seeks an order allowing plaintiff to obtain and maintain certain articles, which he characterizes as religious, and to satisfy certain requirements with respect to his religious services. For the reasons stated below, plaintiff's motion is granted as to most of the relief he seeks.


On May 7, 1993, plaintiff filed his original complaint seeking damages and injunctive relief from, inter alia, defendant Theo White ("White"), warden of California State Prison -Sacramento ("CSP-Sac"), and defendant James H. Gomez ("Gomez"), former director of the California Department of Corrections and Rehabilitation ("CDCR"), under several theories of liability alleging their infringement of his religious practice. On December 5, 1997, the court dismissed the case pursuant to the parties' private settlement. On March 23, 2004, the court reopened the case pursuant to the Prison Litigation Reform Act, which provides that the only way for courts to enforce private settlement agreements is to reinstate civil proceedings. 18 U.S.C. § 3626(c)(2).

On January 30, 2006, plaintiff filed an amended complaint adding defendants and claims relating to his treatment at Mule Creek State Prison ("MCSP"). In June 2007, plaintiff was transferred to Pleasant Valley State Prison ("PVSP"). On September 23, 2008, plaintiff filed his third amended complaint, bringing claims against four defendants, White, Gomez, Matthew Cate ("Cate"), Secretary of CDCR, and James A. Yates ("Yates"), warden at PVSP. This complaint sued all defendants in their individual and official capacities, and plaintiff sought both damages and injunctive relief.

On May 14, 2009, this court granted in part and denied in part defendants' motion for summary judgment. The motion was denied insofar as plaintiff sought injunctive relief. Specifically, the court concluded that "were the factfinder to credit even some of plaintiff's evidence of the violations he has suffered since 1992 in attempting to exercise his religious rights, a factfinder could infer a pattern of Constitutional violations sufficient to call into question the permanence of any changes defendants have voluntarily made now." May 14, 2009 Order, Doc. 420, at 74. The court discusses the specific holdings of this decision and the relevance of the holding below.

On December 10, 2009, this court granted plaintiff's motion to supplement his complaint to include claims for conduct occurring after he filed his Third Amended Complaint. Plaintiff sought to add three defendants to his complaint. Plaintiff alleges that defendant correctional counselors P. Ortiz ("Ortiz") and B. Flores ("Flores") retaliated against his filing of grievances and litigation of this case by placing plaintiff in administrative segregation and then causing plaintiff to be transferred from PVSP to California State Prison Los Angeles County ("LAC"). Plaintiff also added defendant Brian Haws ("Haws"), warden of LAC.


A preliminary injunction is an "extraordinary remedy." Winter v. Natural Resources Defense Council, Inc., ___ U.S. ___, 129 S.Ct. 365, 376 (2008) (internal citation omitted). When a court considers whether to grant a motion for a preliminary injunction, it balances "the competing claims of injury,... the effect on each party of the granting or withholding of the requested relief,... the public consequences in employing the extraordinary remedy of injunction," and plaintiff's likelihood of success. Id. at 374, 376-77 (quoting Amoco Prod. Co. v. Gambell, 480 U.S. 531, 542 (1987); Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982). In order to succeed on a motion for a preliminary injunction, the plaintiff must establish that "he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter, 129 S.Ct. at 374.

An even more stringent standard is applied where mandatory, as opposed to prohibitory, preliminary relief is sought. The Ninth Circuit has noted that although the same general principles inform the court's analysis, "where a party seeks mandatory preliminary relief that goes well beyond maintaining the status quo pendente lite, courts should be extremely cautious about issuing a preliminary injunction." Martin v. International Olympic Committee, 740 F.2d 670, 675 (9th Cir. 1984). Thus, an award of mandatory preliminary relief is not to be granted unless both the facts and the law clearly favor the moving party and extreme or very serious damage will result. See Anderson v. United States, 612 F.2d 1112, 1115 (9th Cir. 1979). "[I]n doubtful cases" a mandatory injunction will not issue. Id.


Rouser is a practicing Wiccan, who argues that defendants have infringed upon his ability to practice his religion. Plaintiff moves for a preliminary injunction against defendants Cate and Haws. Specifically, plaintiff argues that these defendants are violating his rights under the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), the Free Exercise and Establishment Clauses of the First Amendment, as incorporated through the Fourteenth Amendment, and the Equal Protection Clause of the Fourteenth Amendment. Plaintiff seeks the following injunctive relief:

(1) that defendants allow Mr. Rouser to keep and maintain religious texts (including but not limited to A Witches' Bible Compleat (the "Wiccan Bible")), to the maximum extent allowed under CDCR policies and as applied to all inmates; this includes allowing Mr. Rouser to have his Wiccan Bible while he is in Administrative Segregation;

(2) that defendants allow Mr. Rouser to obtain group Wiccan items prior to Wiccan group services;

(3) that defendants cannot take and/or destroy Mr. Rouser's approved religious articles;

(4) that defendants provide a means for Mr. Rouser to order and receive religious items;

(5) that when Wiccan services are scheduled, defendants must allow Mr. Rouser to access the nature-based religious area for group services for the entire scheduled time, unless the Yard is on modified program and no religious group is allowed to meet that day;

(6) that defendants grant Mr. Rouser access to a fire pit during religious services;

(7) that defendants provide Mr. Rouser an outdoor nature-based religious area, similar to the outdoor nature-based religious area at Pleasant Valley State Prison, in which Mr. Rouser may participate in Wiccan group services;

(8) that defendants cannot take unreasonable steps to interrupt Mr. Rouser's group services, including but not limited to blaring Christian music in the direction of Mr. Rouser's group services or turning on the sprinkler system during Mr. Rouser's group services; and

(9) that defendants announce Wiccan services to the same extent they announce services for the main stream faiths (i.e., Catholic, Protestant, Jewish, Muslim, and Native American).

Defendants oppose this motion on several grounds. First, defendants argue that the motion should be denied for several jurisdictional reasons. Second, defendants argue that the motion should be denied under the requirements to issue a preliminary injunction. The court will first dispose of defendants' jurisdictional concerns, and then turn to the preliminary injunction factors.

A. Whether the Court Has Jurisdiction to Issue a Preliminary Injunction

1. Whether Defendants Gomez's and Ortiz's

Interlocutory Appeal of this Court's Decision Denying Qualified Immunity Bars this Court's Ability to Issue a Preliminary Injunction.

On May 14, 2009, this court denied defendants Gomez's and Ortiz's motion for summary judgment on the grounds that they are entitled to qualified immunity for violation of the Free Exercise Clause and the Equal Protection Clause. The court also denied defendants' motion on the grounds that they were entitled to qualified immunity for violation of the Establishment Clause, but only insofar as plaintiff was denied access to a Witches Bible while in administrative segregation. The court held that defendants were entitled to qualified immunity as to plaintiff's other claims for violation of the Establishment Clause. The court granted defendants' motion insofar as plaintiff's claim for violation of the Establishment Clause concerned his denial of Tarot cards, candles, incense, and access to a chapel. On June 12, 2009, defendants filed a notice of appeal as to the "denial of their motion for summary judgment asserting the defense of qualified immunity from all damages asserted in plaintiff's Third Amended Complaint...." Defendants' Notice of Appeal, Doc. No. 421, at 2. Plaintiff seeks to enjoin defendants Cate and Haws, successors in office to defendants Gomez and White, the defendants who are appealing this court's decision on qualified immunity. Defendants argue that this court does not have jurisdiction to enter a preliminary injunction against Cate and Haws because their liability for injunctive relief is "necessarily intertwined with the question on appeal" and, therefore, the court cannot grant a preliminary injunction.

As this court held in its December 10, 2009 order, "[i]nterlocutory appeal of denial of qualified immunity may deprive the district court of jurisdiction." December 10, 2009 Order at 8. Specifically, the court "is automatically divested of jurisdiction to proceed with trial pending appeal." Id. (quoting Shuman v. Wright, 960 F.2d 104, 105 (9th Cir. 1992)). Because qualified immunity is only immunity from damages, this court held that it "presently [only] lacks jurisdiction over the claims for damages against Gomez and White." The court continued to state that "[a]ppeal does not deprive the court of jurisdiction over other aspects of this case, including plaintiff's claims for injunctive relief and as to other defendants." December 10, 2009 Order at 9 (citing Plotkin v. Pacific Tel. & Tel. Co., 688 F.2d 1291 (9th Cir. 1982)).

Defendants argue that this court's reliance on Plotkin is misguided.*fn1 Specifically, defendants argue that "Plotkin holds that an appeal from an interlocutory order does not divest the court of jurisdiction to proceed with all 'other aspects' of the case, but divests the court of jurisdiction only as to those issues that do implicate issues on appeal." Opposition at 35. However, as this court explained in its previous order, Plotkin held that "an appeal from an interlocutory order does not stay the proceedings, as it is firmly established that an appeal from an interlocutory order does not divest the trial court of jurisdiction to continue with other phases of the case." Plotkin, 688 F.2d at 1293. Defendants contend that any matter that seems somewhat related to the matter on appeal constitutes the same "phase[] of the case." That is not so. For example, in Plotkin, the Ninth Circuit held that the district court could entertain defendant's motion for summary judgment while denial of plaintiff's motion for a preliminary injunction was on appeal. December 10, 2009 Order (citing Plotkin, 688 F.2d at 1293). The subject matter of the two motions in Plotkin was virtually identical. Specifically, the preliminary injunction was denied because plaintiff failed to exhaust the available administrative remedies, and the motion for summary judgment was granted for the same reason. Plotkin, 688 F.2d at 1292. Nonetheless, the Ninth Circuit held that the district court had jurisdiction over the summary judgment motion while its order denying the preliminary injunction order was on appeal. Clearly, the Ninth Circuit did not hold that district courts lack jurisdiction only as to those issues that do not implicate the issues raised in the appeal.

Here, the only similarity between the issues on appeal and the issue at bar is the possibility that the Ninth Circuit would adopt reasoning that could conflict with this court's understanding of the constitutional and statutory requirements concerning plaintiff's religious practice. As an initial matter, defendants are mistaken to argue that if the Ninth Circuit reverses this court's decision on qualified immunity that then Cate and Haws would necessarily be dismissed from the case. The appeal only concerns the extent to which White and Gomez are liable in their individual capacity for damages, and not in the official capacity for injunctive relief. Despite this difference, the ruling of the Ninth Circuit may only possibly effect this court's reasoning under the First and Fourteenth Amendments, and not under RLUIPA. For example, if the Ninth Circuit were to reverse this court's decision as to whether Gomez and White are entitled to qualified immunity on the grounds that the law was not clearly established, this decision would not effect Cate's and Haws' liability. First, Gomez and White would only be dismissed from the action because they are retired, and thereby no longer liable for injunctive relief. Cate and Haws, as active officials, remain liable for injunctive relief even if Gomez and White were entitled to qualified immunity. Second, it is not clear that Cate and Haws would even be entitled to such immunity where Gomez and White acted before this court issued orders concerning the constitutional and statutory requirements, and Cate and Haws allegedly infringed plaintiff's rights after the court described these requirements. The only possibility for the Ninth Circuit's decision on defendant's qualified immunity appeal to implicate the instant motion would be for the court of appeals to decide that this court was wrong as to whether a reasonable jury could conclude that Gomez and White violated the constitution. If the Ninth Circuit were to so decide, the proper avenue for defendants would be to file a motion to reconsider an order granting a preliminary injunction based on those theories, and not to preemptively oppose a motion for a preliminary injunction on the grounds that there is a chance that the Ninth Circuit could resolve their appeal in a way that could implicate this order. As such, defendants' argument does not prevent the court from issuing a preliminary injunction.

2. Whether this Court's Decision on Defendants' Motion to Dismiss Plaintiff's Claims of Retaliation Against Flores and Ortiz Bars the Court's Ability to Issue a Preliminary Injunction

Defendants also argue that the court lacks jurisdiction to issue injunctive relief as to the alleged retaliation claim against defendants Flores and Ortiz because they anticipated that this court will grant its motion to dismiss this claim for failure to exhaust administrative remedies. On March 10, 2010, this court denied defendant's motion to dismiss on this ground. Moreover, even if the court had granted the motion to dismiss, this argument is irrelevant in that Rouser is seeking to enjoin Cate and Haws, the officials responsible for his treatment at LAC, and not Ortiz and Flores, the officials at PVSP, plaintiff's previous place of ...

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