Barry Hazle, Jr. v. Mitch Crofoot, et al

Filing

FILED OPINION (DOROTHY W. NELSON, STEPHEN R. REINHARDT and MILAN D. SMITH, JR.) REVERSED AND REMANDED. Judge: DWN , Judge: SR Authoring, Judge: MDS . FILED AND ENTERED JUDGMENT. [8753738]

Case: 11-15354

08/23/2013

ID: 8753738

DktEntry: 40-1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BARRY A. HAZLE, JR.,
Plaintiff-Appellant,

No. 11-15354

v.

D.C. No.
2:08-cv-02295GEB-EFB

MITCH CROFOOT, Individually and
as Parole Officer of the CDCR;
BRENDA WILDING, Individually and
as Unit Supervisor of the CA Dept.
of Corrections; MATTHEW CATE,
Individually and as Unit Supervisor
of the CA Dept of Corrections;
SCOTT KERNAN, Individually and as
Chief Deputy Secretary of Adult
Operations of the CA Dept. of
Corrections and Rehabilitation; TIM
HOFFMAN, Individually and as
Director of the Division of Adult
Parole Operations in California;
DEPUTY JALLINGS, Individually and
as Deputy Commissioner;
WESTCARE, A Nevada Non-Profit
Corporation,
Defendants-Appellees.

OPINION

Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., Senior District Judge, Presiding

Page: 1 of 33

Case: 11-15354

08/23/2013

2

ID: 8753738

DktEntry: 40-1

HAZLE V. CROFOOT
Argued and Submitted
February 12, 2013—San Francisco, California
Filed August 23, 2013
Before: Dorothy W. Nelson, Stephen Reinhardt,
and Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Reinhardt

SUMMARY*

Civil Rights
The panel reversed the district court’s denial of plaintiff’s
motion for a new trial in plaintiff’s action, brought under
42 U.S.C. § 1983, alleging that his constitutional rights were
violated when his parole was revoked after he refused to
participate in a residential drug treatment program that
required him to acknowledge a higher power.
The district judge, on summary judgment, had determined
that the state defendants were liable for the deprivation of
plaintiff’s First Amendment rights, but the jury, which
addressed only the issue of damages, awarded plaintiff zero
damages. The panel first held that the district judge erred in
concluding that plaintiff waived his challenge to the jury’s
verdict awarding him zero damages by failing to object at the
time the jury was discharged.
*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

Page: 2 of 33

Case: 11-15354

08/23/2013

ID: 8753738

HAZLE V. CROFOOT

DktEntry: 40-1

Page: 3 of 33

3

The panel held that the district judge erred in refusing to
hold that plaintiff was, as a matter of law, entitled to
compensatory damages given the judge’s undisputed finding
that plaintiff’s constitutional rights were violated. The panel
applied the rule that the award of compensatory damages is
mandatory when the existence of actual injury is beyond
dispute. The panel therefore reversed the district court’s
denial of plaintiff’s motion for a new trial.
The panel also held that the district judge erred in
instructing the jury to determine whether liability should have
been apportioned among the multiple defendants in this case
and in dismissing certain other of plaintiff’s claims, including
the claims against defendant Westcare, a private entity that
contracted with the California Department of Corrections and
Rehabilitations as a regional Substance Abuse Services
Coordination Agency. The panel remanded to the district
court for, inter alia, a new trial against the state defendants on
the issue of damages.

COUNSEL
John G. Heller (argued) and Suhani Kamdar, Rogers Joseph
O’Donnell, San Francisco, California; Carol D. Quackenbos,
Brisbane, California; Philip A. Leider, Chapman Popik &
White, LLP, San Francisco, California, for PlaintiffAppellant.
Kamala D. Harris, Attorney General; Jonathan L. Wolff,
Senior Assistant Attorney General; Thomas S. Patterson,
Supervising Deputy Attorney General; Vickie P. Whitney
(argued), Supervising Deputy Attorney General, Sacramento,
California, for Defendants-Appellees Mitch Crofoot, Brenda

Case: 11-15354

4

08/23/2013

ID: 8753738

DktEntry: 40-1

HAZLE V. CROFOOT

Wilding, Matthew Cate, Scott Kernan, Tim Hoffman, and
Richard Jallins.
Mark G. Bonino (argued) and Miya R. Peard, Hayes, Scott,
Bonino, Ellingson & McLay LLP, Redwood City, California;
Wayne H. Maire, Maire & Burgess, Redding, California, for
Defendant-Appellee Westcare California, Inc.

OPINION
REINHARDT, Circuit Judge:
In 2007, citing “uncommonly well-settled case law,” we
held that the First Amendment is violated when the state
coerces an individual to attend a religion-based drug or
alcohol treatment program. Inouye v. Kemna, 504 F.3d 705,
712, 716 (9th Cir. 2007). Plaintiff Barry Hazle is an atheist
who, over his numerous objections, was forced as a condition
of parole to participate in a residential drug treatment
program that required him to acknowledge a higher power.
When Hazle refused, he was removed from the treatment
program and arrested; his parole was revoked, and he was
imprisoned for an additional 100 days.
Hazle subsequently filed this suit, seeking damages and
injunctive relief for the deprivation of his First Amendment
rights. The district judge held, consistent with the
“uncommonly well-settled case law,” that the state defendants
in this case were liable for the violation that Hazle alleged—a
finding that the state defendants do not appeal. Nevertheless,
the jury, which addressed only the issue of damages, awarded
Hazle zero damages for the violation of his constitutional
rights.

Page: 4 of 33

Case: 11-15354

08/23/2013

ID: 8753738

HAZLE V. CROFOOT

DktEntry: 40-1

Page: 5 of 33

5

We hold that the district judge erred in denying Hazle’s
motion for a new trial based on the jury’s failure to award
damages, and therefore reverse. We also hold that the district
judge erred in instructing the jury to determine whether
liability should have been apportioned among the multiple
defendants in this case and in dismissing certain other of
Hazle’s claims. Accordingly, we remand to the district court
for, inter alia, a new trial against the state defendants on the
issue of damages.
I. Background
A. The Parties
Plaintiff Barry A. Hazle, Jr. is an atheist. As he put it at
trial, “[T]hat simply means that you’re not religious . . . .
[T]hat means I don’t believe in God . . . .” He testified that
he is a member of several secular humanist organizations,
including American Atheists. When asked about the role of
atheism in his life, he testified, “I never really had any great
reason to get religious or to believe in God. . . . I don’t think
it’s my position or duty to look at what anybody else believes
and try and . . . judge them because of it. . . . [M]y beliefs
have nothing to do with [others’], and theirs have nothing to
do with me. I just don’t want them forced upon me.”
Hazle’s lawsuit names as defendants a number of state
employees, sued both individually and in their official
capacities. (We refer to them collectively as the “state
defendants”.) Defendant Mitch Crofoot was the parole agent
assigned to Hazle during the events that form the basis of this
suit. Hazle alleged that Crofoot threatened to revoke his
parole and return him to prison when Hazle refused to
participate in a religion-based drug treatment program, and

Case: 11-15354

6

08/23/2013

ID: 8753738

DktEntry: 40-1

HAZLE V. CROFOOT

that he eventually fulfilled that threat by recommending that
Hazle’s parole be revoked and deciding (in conjunction with
other defendants) that Hazle should be returned to prison.
Defendant Brenda Wilding was, during the relevant
events, Crofoot’s Unit Supervisor. Hazle alleges that Wilding
approved and ratified Crofoot’s decision to revoke his parole.
Defendant Richard Jallins was the Associate Chief Deputy
Commissioner with the California Department of Corrections
and Rehabilitations (CDCR) Board of Parole Hearings.
Hazle alleges that Jallins gave the final approval for the order
revoking Hazle’s parole and returning him to state prison.1
Defendant Westcare is a private entity that contracted
with the CDCR as a regional Substance Abuse Services
Coordination Agency (SASCA) in Hazle’s region of
California. As a SASCA, Westcare creates a network of
treatment facilities for parolees with drug-related convictions
and coordinates with the State to place parolees in these
programs. Empire Recovery Center (not a defendant) is a
not-for-profit recovery center in Redding, California, that
contracts with Westcare to provide substance abuse treatment
to parolees upon their release. Empire uses a 12-step
recovery program, developed by Alcoholics Anonymous and
Narcotics Anonymous, that includes references to “God” and
to a “higher power.” (Hereinafter, a 12-step program will
always refer to a religion-based treatment program.) Hazle

1

Hazle’s lawsuit names two additional state defendants, Matthew Cate
and Scott Kernan, the Secretary and Chief Deputy Secretary (respectively)
of the CDCR’s Division of Adult Parole Operations, whom he alleges are
responsible for setting and enforcing policies relating to parole. Cate and
Kernan are named as defendants only in Hazle’s state law claim for
injunctive relief.

Page: 6 of 33

Case: 11-15354

08/23/2013

ID: 8753738

DktEntry: 40-1

HAZLE V. CROFOOT

Page: 7 of 33

7

alleges, inter alia, that Westcare referred him to Empire
despite his request that he not be placed in a religion-based
treatment program, and that Westcare has a policy of
contracting only with religion-based treatment programs, thus
rendering it unable to provide non-religious parolees with a
secular treatment alternative.2
B. Factual Background
In 2006 Hazle entered a no-contest plea on state law
charges pertaining to possession of methamphetamine, and
was placed on probation. When his probation was revoked,
he was incarcerated as a civil addict from February 27, 2006,
until February 26, 2007, at the California Rehabilitation
Center (CRC), a state prison in Norco, California.3 Hazle was
released on parole on February 26, 2007, with the condition
that he attend and complete a 90-day residential drug
treatment program.
Prior to his release on parole, Hazle told correctional
authorities and Westcare representatives that he was an
atheist, and requested placement in a non-religious treatment
program. A Westcare representative advised him that he
should ask to be assigned to Empire, and Hazle was assigned
to serve his residential treatment there. Upon arriving at

2

Hazle alleges that Westcare was a state actor for the purposes of this
lawsuit. As we discuss below, we do not resolve this contention.
3

A California Court of Appeal later ruled that this first period of
incarceration was improper. See People v. Hazle, 69 Cal. Rptr. 3d 16
(Cal. Ct. App. 2007). No party contends that this ruling affects Hazle’s
claims here.

Case: 11-15354

8

08/23/2013

ID: 8753738

DktEntry: 40-1

HAZLE V. CROFOOT

Empire, Hazle quickly discovered that Empire uses a
religion-based 12-step recovery program.
While at Empire, Hazle contacted Westcare
representatives several times. He told them that he objected
to the religious nature of the 12-step program and that he
wished to be transferred to a secular program. When Hazle
inquired whether a secular program existed, Westcare’s
representative informed him that the only alternative to
Empire was a treatment facility whose program had an even
greater focus on religion than Empire’s. Hazle also contacted
Crofoot, asking him whether he could fulfill his requirement
through a secular program. Crofoot told Hazle that he needed
to continue at Empire and participate in the 12-step program
while Crofoot looked into the issue. Crofoot called Westcare,
which informed him that it had no secular programs in
Northern California. Crofoot subsequently informed Hazle
that there were no available alternatives to the 12-step
program he was in, but that, if he wanted to, he could file an
Inmate/Parolee Appeal to petition for a change in the
conditions of his parole. Crofoot again told Hazle that he
should continue to participate in the treatment program, or
else his parole would be revoked and he would be returned to
prison.
On April 3, 2007, Hazle presented Crofoot with his
appeal challenging the conditions of his parole, in which he
stated his objection to participating in the faith-based
program:
As an Atheist, I object to forced participation
in any spiritual/religious activities. . . . I have
been told by my parole officer that I must
complete the 90 days of spiritual treatment

Page: 8 of 33

Case: 11-15354

08/23/2013

ID: 8753738

DktEntry: 40-1

HAZLE V. CROFOOT

Page: 9 of 33

9

because there are no available secular
recovery alternatives.
Since the CDC[R] cannot provide me with a
secular alternative to 12-step based treatment,
I would like the in-patient treatment
stipulation removed from my parole
conditions so that I may return home ASAP.
He attached a document explaining his beliefs, which
included a summary of numerous court opinions holding that
the Establishment Clause prohibits forcing nonreligious
individuals to participate in a 12-step program. Hazle’s
attachment stated,
Let me begin by assuring you that my aim in
this endeavor is not to get out of having to
complete my Parole requirements. I have
committed myself to a full and lasting secular
recovery and complete abstinence from illegal
drugs.
According to Crofoot, on April 6, 2007, representatives of
Empire informed him that Hazle was being “disruptive,
though in a congenial way, to the staff as well as other
students.” His demeanor was described as “sort of passive
aggressive.” That same day, Crofoot spoke with his
supervisor, Brenda Wilding, and they concluded that the
proper course of action was to refer Hazle to the Board of
Parole Hearings for a parole violation, because he was
refusing to participate in the drug-treatment program that was
a condition of his parole. Both Crofoot and Wilding knew
that Hazle objected to participation in the Empire program

Case: 11-15354

10

08/23/2013

ID: 8753738

DktEntry: 40-1

HAZLE V. CROFOOT

because he was an atheist. They decided to have Hazle
returned to prison.
Later that day, Crofoot arrested Hazle, and placed him in
Shasta County Jail. After Hazle’s arrest, Crofoot called CRC
(the state prison in Norco) and requested that Hazle be
returned to their custody. Crofoot obtained an oral order of
return authorized by Deputy Commissioner Richard Jallins.
Hazle was subsequently incarcerated for over 100 additional
days, most of which he spent at the state prison in Norco.
While in prison, Hazle received a response regarding his
parolee appeal, stating that the Civil Addict Program required
that he complete an inpatient program. It also stated:
It would behoove you to take advantage of the
tools that are offered to you to help you with
your addiction, behavior, and adjustment to
society.
Per your Agent of Record, Mr. Crofoot, he
has made attempts to locate treatment
facilities to accommodate your preference, per
Mr. Crofoot, Empire Recovery was the best
suited for you. Your negative behavior
toward staff caused you to be discharged from
that program leaving your Agent of Record no
other choice but to return you to CRC for
further treatment.
Therefore, your request is denied.
Subsequent to Hazle’s filing his complaint, the CDCR
issued a directive in response to our decision in Inouye v.

Page: 10 of 33

Case: 11-15354

08/23/2013

ID: 8753738

DktEntry: 40-1

HAZLE V. CROFOOT

Page: 11 of 33

11

Kemna, 504 F.3d 705 (9th Cir. 2007), stating that parolees
could not be compelled to attend a religion-based program if
they refuse to participate in such a program for religious
reasons. The directive requires that such parolees instead “be
referred to an alternative nonreligious program.”
C. Procedural History
Hazle filed a complaint seeking damages and injunctive
relief and alleging two causes of action: a claim under
42 U.S.C. § 1983 for violation of his First Amendment rights,
and a taxpayer injunction claim under California state law.
Specifically, the complaint alleged that Hazle’s rights under
the First Amendment’s Establishment Clause were violated
when (1) he was required to participate in a 12-step program
as a condition of his parole, (2) his requests to fulfill parole
through a secular program were rejected, and (3) his parole
was revoked, and he was incarcerated, when he refused to
participate in the 12-step program.
Hazle sought
compensatory damages—both for emotional distress and for
his loss of liberty in having been reincarcerated—as well as
punitive damages.
Hazle subsequently moved for partial summary judgment
against the state defendants (Crofoot, Wilding, and Jallins),
seeking to establish their liability on his section 1983 claim
for “violat[ing] [his] rights under the Establishment Clause
. . . by requiring him . . . to continue participating in a ‘12step’ drug rehabilitation program that contained religious
components.” The district judge granted Hazle’s motion.
Notably, the district judge rejected the state’s argument that
it was Hazle’s own behavior that had resulted in his being
removed from the Empire program, concluding that “[t]his
argument rings hollow in light of the undisputed facts

Case: 11-15354

12

08/23/2013

ID: 8753738

DktEntry: 40-1

HAZLE V. CROFOOT

showing that Plaintiff was only ‘disruptive’ in the program
‘in a congenial way.’”
In the same order, the district judge granted summary
judgment in favor of Westcare on Hazle’s section 1983 claim
against it. The district judge held that Hazle had not
established the necessary causal connection between
Westcare’s actions and the violation of his rights, and
therefore could not prevail on this claim. The district judge
did not address the issue of whether Westcare was a state
actor for purposes of section 1983 liability.
The district judge also granted both Westcare and the
state defendants summary judgment on Hazle’s state law
claim for injunctive relief, holding that this claim was moot
in light of the state’s directive requiring that individuals who
object to religion-based treatment programs be placed in nonreligious programs.
The court held a two-day jury trial on the issue of
damages. Prior to the opening statements, the jury was read
a number of stipulated facts, including facts regarding the
condition of California prisons. The district judge also gave
the jury notice of his prior finding regarding the liability of
the state defendants. At trial, the state defendants in Hazle’s
section 1983 claim—Crofoot, Wilding, and Jallins—all
testified, as did Hazle himself. On the second day of trial,
after closing arguments, the jury was charged.
The parties had submitted proposed jury instructions and
verdict forms following a pre-trial conference. Before the
jury was charged, the parties and the district judge
extensively discussed the jury instructions and verdict form.
Because the state defendants had testified at trial that they did

Page: 12 of 33

Case: 11-15354

08/23/2013

ID: 8753738

HAZLE V. CROFOOT

DktEntry: 40-1

Page: 13 of 33

13

not have the authority to change Hazle’s conditions of parole,
the district judge began to inquire about the liability of state
employees other than the state defendants named in this case.
He eventually gave jury instructions and approved a jury
verdict form that adopted defendants’ proposal that the jury
decide whether defendants were jointly and severally liable,
or whether damages should be apportioned among the
defendants (and, if the latter, instructing the jury to apportion
damages).
The day after it was charged, the jury delivered a note to
the district judge requesting “[v]erification of the Court’s
determination of a guilty verdict having been rendered against
the Defendants for violation of the Plaintiff’s constitutional
rights.” The jury further expressed its confusion regarding
“whether the Defendants are the only parties who have been
found in violation of the Plaintiff’s rights.” After extended
argument, the district judge gave a supplemental instruction
to the jury noting that defendants “are the only state
employees who have been sued for damages and have been
found liable.”
Later that day, the jury returned a verdict finding that the
defendants were not jointly and severally liable for either the
emotional distress damages or the loss of liberty damages,
and awarding Hazle zero damages from every defendant as to
both sets of damages (both emotional distress and loss of
liberty). Judgment was entered “in accordance with the jury
verdict.”
Hazle filed a timely motion for a new trial under Federal
Rule of Civil Procedure 59(a). The motion contended, inter
alia, that the jury erred in awarding zero damages, in that the
jury’s failure to award compensatory—or at least

Case: 11-15354

08/23/2013

14

ID: 8753738

DktEntry: 40-1

HAZLE V. CROFOOT

nominal—damages on his loss of liberty claim was contrary
to law and the weight of the evidence.4 The district judge
denied Hazle’s motion for a new trial on two independent
grounds. First, he ruled that Hazle had waived any objection
to the verdict by failing to object before the jury was
discharged. Second, he concluded, citing the jury’s finding
that damages could be apportioned among the defendants,
that the jury’s verdict was consistent with “the jury . . . not
find[ing] any defendant was a cause of any of Hazle’s
injuries.” We have jurisdiction over Hazle’s timely filed
appeal pursuant to 28 U.S.C. § 1291.
D. Standard of Review
We review de novo the district judge’s decision to grant
summary judgment to determine whether there are any
genuine issues of material fact and whether the district judge
correctly applied the substantive law. Burlington Ins. Co. v.
Oceanic Design & Constr., Inc., 383 F.3d 940, 944 (9th Cir.
2004). We also review de novo whether a jury instruction
misstates the law. See Wall Data Inc. v. Los Angeles Cnty.
Sheriff’s Dep’t, 447 F.3d 769, 784 (9th Cir. 2006). We
review for abuse of discretion the district judge’s decision to
deny a motion for a new trial. United States v. Hinkson,
585 F.3d 1247, 1263 (9th Cir. 2009). In such review, “we
first look to whether the trial court identified and applied the
correct legal rule to the relief requested. Second, we look to
whether the trial court’s resolution of the motion resulted
from a factual finding that was illogical, implausible, or

4

Hazle also contended that defendants’ testimony at trial regarding their
alleged lack of authority to change the terms and conditions of Hazle’s
parole was false. As we describe below, we do not reach this issue.

Page: 14 of 33

Case: 11-15354

08/23/2013

ID: 8753738

DktEntry: 40-1

HAZLE V. CROFOOT

Page: 15 of 33

15

without support in inferences that may be drawn from the
facts in the record.” Id.
II. Hazle’s Motion for a New Trial
We first address Hazle’s motion for a new trial based on
the jury’s failure to award him damages for his loss of liberty.
We hold, as a matter of law, that Hazle was entitled to
compensatory damages from the state defendants for his
unlawful term of imprisonment. We therefore reverse the
denial of a new trial, and remand on the issue of damages.
A.
As an initial matter, we hold that the district judge erred
in concluding that Hazle waived his challenge to the jury’s
verdict awarding him zero damages by failing to object at the
time the jury was discharged. The state defendants argue,
citing our decision in Philippine Nat’l Oil Co. v. Garrett
Corp., that a party must object to a jury’s zero-damages
verdict “when the verdict [is] read,” or else waive any
objection to the verdict. 724 F.2d 803, 806 (9th Cir. 1984).
Our decision in Kode v. Carlson, however, clarified that the
rule in Philippine National applies only in those
circumstances in which the verdict is “internally
inconsistent”—as when, for example, the jury decides both
the issues of liability and damages, and does so
inconsistently. 596 F.3d 608, 611 (9th Cir. 2010). As we
held in Kode, when a jury addresses solely the issue of
damages, there is no duty to object that the verdict is
inconsistent with a finding of liability before the jury is
discharged. The jury’s verdict in such a case is not
inconsistent with another of its conclusions. Id. It is, at most,
inconsistent with an extrinsic legal conclusion made by

Case: 11-15354

08/23/2013

16

ID: 8753738

DktEntry: 40-1

HAZLE V. CROFOOT

another (here, the district judge). Id. The state defendants
offer no reason why Kode should not govern this case, and we
accordingly reverse the district judge’s determination that
Hazle waived his objection to the jury’s zero-damages
verdict.5
B.
We now turn to the question raised by Hazle’s new-trial
motion: whether Hazle is entitled to compensatory damages
from the state defendants.6 We hold that he is. The district

5

The state defendants also urge that Hazle waived his challenge to the
jury’s zero-damages verdict when he stipulated that “the parties have not
agreed to or stipulated to either the existence or the extent of any
emotional distress related injuries suffered by Mr. Hazle” and that the
issue was a question of fact for the jury. This contention is frivolous. The
stipulation says nothing about Hazle’s entitlement to damages arising from
his loss of liberty, which are distinct from emotional distress damages, and
which are the only type of compensatory damages that he contends the
jury was required to award as a matter of law.
6

Contrary to the state defendants’ contentions, it should have been
obvious that Hazle was entitled to at least an award of nominal damages
as a result of the district judge’s finding that the state defendants violated
his constitutional rights. The Supreme Court has explicitly held that when
a defendant is found to have violated an individual’s right to procedural
due process, the plaintiff is “entitled to recover nominal damages,” even
“without proof of actual injury.” Carey v. Piphus, 435 U.S. 247, 266–67
(1978). Our circuit’s case law makes clear that “neither the judge nor the
jury has any discretion in this matter,” and that the rule entitling a plaintiff
to nominal damages applies with equal force to violations of substantive
constitutional rights. Floyd v. Laws, 929 F.2d 1390, 1402 (9th Cir. 1991);
see also Schneider v. Cnty. of San Diego, 285 F.3d 784, 794–95 (9th Cir.
2002). Nominal damages must be awarded in cases in which the plaintiff
is not entitled to compensatory damages, such as cases in which no actual
injury is incurred or can be proven. Here, however, there was actual

Page: 16 of 33

Case: 11-15354

08/23/2013

ID: 8753738

DktEntry: 40-1

HAZLE V. CROFOOT

Page: 17 of 33

17

judge’s finding of liability establishes that Hazle suffered
actual injury when he was unconstitutionally incarcerated.
Given this undisputed finding that Hazle’s constitutional
rights were violated, and applying the rule that the award of
compensatory damages is mandatory when the existence of
actual injury is beyond dispute, we hold that the district judge
erred in refusing to hold that Hazle was, as a matter of law,
entitled to compensatory damages. We therefore reverse the
district judge’s denial of Hazle’s motion for a new trial.
The Supreme Court has held that entitlement to
compensatory damages in a civil rights action is not a matter
of discretion: “Compensatory damages . . . are mandatory;
once liability is found, the jury is required to award
compensatory damages in an amount appropriate to
compensate the plaintiff for his loss.” Smith v. Wade,
461 U.S. 30, 52 (1983) (emphasis added). Consistent with
Smith, when a plaintiff has indisputably suffered an actual
injury in a case such as this, an award of compensatory
damages is mandatory. The state defendants suggest that we
are bound to affirm the district judge’s decision under cases
such as Philippine National, in which we addressed the
conflict between a jury’s simultaneous finding of liability and
its decision to award no damages, and held that the “failure to
award damages does not by itself render a verdict invalid.”
See 724 F.2d at 806; see also, e.g., Guy v. City of San Diego,
608 F.3d 582, 588 (9th Cir. 2010) (affirming an award of only
nominal damages). In the cases in which we have upheld
zero-damages verdicts, however, we have explicitly noted
that the facts of those cases lent themselves to the conclusion
that no actual injury had been suffered by the plaintiff. See
injury and thus Hazle was entitled to compensatory damages.
discussion section II.B, infra.

See

Case: 11-15354

18

08/23/2013

ID: 8753738

DktEntry: 40-1

HAZLE V. CROFOOT

Guy, 608 F.3d at 588 (noting that the jury could have
discredited the plaintiff’s testimony of injury, given that it
had discredited some of his other testimony); Wilks v. Reyes,
5 F.3d 412, 415 (9th Cir. 1993) (reasoning that the jury
reasonably “did not believe Wilks suffered injury”);
Philippine Nat’l, 724 F.2d at 806 (“[T]he evidence about the
damages that PNOC sustained from [defendant’s]
misrepresentations was in conflict. The jury could have
found that PNOC sustained no damage from any
misrepresentations.”). We are aware of no cases in which we
have affirmed a zero-damages verdict when, as here, the
existence of actual injury was indisputable.
In this case, the fact that state defendants’
unconstitutional conduct caused Hazle to suffer actual
injury—namely, being imprisoned in violation of his First
Amendment rights—was established as a matter of law. The
district judge found that the state defendants were liable for
the constitutional violations in his grant of partial summary
judgment. As the district judge explained to the jury, “I
decided in a pretrial ruling that each defendant violated
plaintiff’s First Amendment Establishment Clause right by
. . . arresting and incarcerating plaintiff because of [his]
failure to participate in the program” (emphasis added).
Further, the parties stipulated, in facts read to the jury, that
Hazle’s period of reincarceration lasted from April 2007 until
July 2007. Thus, it is not the failure to award damages, “by
itself,” that renders the jury’s verdict invalid. Philippine
Nat’l, 724 F.2d at 806. What renders the jury’s decision
invalid is its decision to award zero damages in light of proof
of actual injury: Hazle’s unlawful imprisonment because of
his exercise of his First Amendment rights.

Page: 18 of 33

Case: 11-15354

08/23/2013

ID: 8753738

HAZLE V. CROFOOT

DktEntry: 40-1

Page: 19 of 33

19

We are not alone in so concluding. As the Second Circuit
has held, “where the jury has found a constitutional violation
and there is no genuine dispute that the violation resulted in
some [actual] injury to plaintiff, the plaintiff is entitled to an
award of compensatory damages as a matter of law.”
Kerman v. City of New York, 374 F.3d 93, 124 (2d Cir. 2004).
Kerman involved a plaintiff whose Fourth Amendment rights
were violated when he was handcuffed and detained for
psychiatric evaluation. The Second Circuit held that its rule
regarding compensatory damages applied with particular
force to claims for loss of liberty, noting that “where the
plaintiff was indisputably deprived of his liberty” and the
underlying conduct is unlawful, the plaintiff is entitled to
“compensatory, not merely nominal, damages.” Id. The
court stated that such treatment was consistent with the
traditional common-law principles governing entitlement to
damages for the tort of false imprisonment. Id. at 125.
The Second Circuit’s holding is consistent with decisions
by other circuits rejecting awards of merely nominal damages
for unlawful conduct resulting in the loss of liberty. The
Eleventh Circuit, for example, rejected an award of merely
nominal damages to a juvenile who was unlawfully placed in
solitary confinement, and held that the plaintiff was entitled
to compensatory damages. H.C. ex rel. Hewett v. Jarrard,
786 F.2d 1080, 1087–88 (11th Cir. 1986). The Eighth Circuit
held that a $1 award was “patently insufficient to compensate
[a plaintiff] for the injury he suffered by being placed in
segregation in retaliation for exercising a constitutional
right.” Trobaugh v. Hall, 176 F.3d 1087, 1088–89 (8th Cir.
1999). The court instead remanded for an award of damages
for each day that the plaintiff spent in administrative
segregation. Id. at 1089. Here, Hazle is entitled to an award
of compensatory damages for each day that he spent in prison

Case: 11-15354

20

08/23/2013

ID: 8753738

DktEntry: 40-1

HAZLE V. CROFOOT

as a result of the violation of his constitutional rights by the
state defendants.
The jury’s verdict, which awarded Hazle no
compensatory damages at all for his loss of liberty, cannot be
upheld. Given the indisputable fact of actual injury resulting
from Hazle’s unconstitutional imprisonment, and the district
judge’s finding that the state defendants were liable for that
injury, an award of compensatory damages was mandatory.
The jury simply was not entitled to refuse to award any
damages for Hazle’s undisputable—and undisputed—loss of
liberty, and its verdict to the contrary must be rejected.
C.
The jury’s verdict is no less invalid simply because there
were additional persons who were potentially liable for
Hazle’s injuries, but who were not before the court. The state
defendants suggest that the jury’s verdict may be explained
as reflecting its allocation of liability to potential defendants
not named in the complaint. In denying Hazle’s motion for
a new trial, the district judge rationalized the jury’s zerodamages verdict in this manner, noting that the jury “likely
concluded that no defendant was a cause of any injury Hazle
received or suffered as a result of his Establishment Clause
claim.” The district judge went on to identify at least one
absent party that he presumably concluded had caused
Hazle’s injuries, noting, “it is undisputed that the Board of
Prison Hearings ordered Hazle to participate in the Empire
program.”
We reject this contention by the state defendants, as well
as the judge’s speculation. To the extent that the jury’s
verdict attempted to apportion all liability for Hazle’s injuries

Page: 20 of 33

Case: 11-15354

08/23/2013

ID: 8753738

HAZLE V. CROFOOT

DktEntry: 40-1

Page: 21 of 33

21

to absent parties, it acted contrary to the district judge’s order
finding the state defendants liable. A finding of liability in a
civil rights action—such as the one the district judge entered
against the state defendants—requires, as a matter of law, that
the defendant be the “proximate cause of the section 1983
injury.” Van Ort v. Estate of Stanewich, 92 F.3d 831, 837
(9th Cir. 1996). Thus, the district judge’s finding of
liability—which he left undisturbed and is not challenged on
appeal—establishes as a matter of law that the state
defendants in the trial caused Hazle’s constitutional injury
when they incarcerated him for exercising his First
Amendment rights. Indeed, the district judge stated as
much—that the actions of the state defendants had caused
Hazle’s imprisonment—when, in his order granting Hazle’s
motion for partial summary judgment, he concluded that they
were “liable for violating [Hazle’s] Establishment Clause
rights by . . . ‘arresting and incarcerating him based on his
resistance’” to participation “in a ‘12-step’ program that
contained religious components.” This finding of liability is
based on ample support in the record.7 To the extent that any
of the state defendants wished to contest whether they were
the “proximate cause” of Hazle’s alleged injuries, they had
ample opportunity to raise that contention in response to his
motion for summary judgment. They did not do so then and
do not do so now. As a result, the district judge’s finding is
now the law of the case. See United States v. Alexander,

7

Crofoot, Hazle’s parole officer, along with his supervisor, Wilding,
made the decision to report Hazle for a parole violation when he refused
to participate in the religion-based treatment program, and decided to have
him returned to prison. Jallins ratified their recommendation to return
Hazle to prison for the violation of his parole by actually issuing the order
to do so.

Case: 11-15354

08/23/2013

22

ID: 8753738

DktEntry: 40-1

HAZLE V. CROFOOT

106 F.3d 874, 876 (9th Cir. 1997).8 The district judge’s
liability finding, as well as the resultant instruction, simply
left no room for the jury to infer that all of Hazle’s damages
had been caused by persons other than the state defendants.
In any event, the state defendants’ explanation of the
jury’s zero-damages award as allocating all of Hazle’s injury
to absent persons reflects the erroneous view that not only
could zero damages be awarded to Hazle, but that Hazle’s
damages were capable of apportionment.
Hazle
independently challenges the jury instruction and verdict
form that allowed the jury to decide this question, contending
that the district judge should have concluded, as a matter of
law, that Hazle was entitled to compensatory damages and
that defendants were jointly and severally liable for his
injuries.9 He is correct. The district judge erred in putting the
8

When, at trial, the state defendants argued that they might move to
reconsider the order granting Hazle summary judgment, the district judge
expressed surprise that they would wait until after a jury had been
empaneled and read an instruction regarding liability. Ultimately,
however, the state defendants never moved for reconsideration of the
district judge’s ruling and they do not now appeal the district judge’s
summary judgment order.
The state defendants did raise in response to the motion for summary
judgment an entirely separate issue related to causation. Specifically,
they argued that Hazle had been removed from parole not because of his
refusal to participate in the program, but because he was disruptive. The
district judge rejected this contention, and the state defendants neither
moved to reconsider the district judge’s grant of summary judgment nor
filed an appeal challenging that holding.
9

We reject the state defendants’ numerous contentions of waiver as to
this issue. The state defendants err in contending that Hazle was required
to object to this instruction or verdict form when the district judge
presented a draft of the instructions and verdict form to the parties; Hazle

Page: 22 of 33

Case: 11-15354

08/23/2013

ID: 8753738

HAZLE V. CROFOOT

DktEntry: 40-1

Page: 23 of 33

23

question of apportionment to the jury in the first place,
because the question of whether an injury is capable of
apportionment is a legal one to be decided by the judge, not
the jury. See United States v. Burlington N. & Santa Fe Ry.
Co., 520 F.3d 918, 942 (9th Cir. 2007), rev’d on other
grounds, 556 U.S. 599 (2009). Further, Hazle’s injury from
his term of unlawful imprisonment—as well as any resultant
emotional distress—was clearly indivisible, in that the
concurrent actions of all defendants were necessary in order
to return Hazle to prison. See Rudelson v. United States,
602 F.2d 1326, 1332 (9th Cir. 1979) (an injury is indivisible
when, “[h]ad any one of the defendants exercised due care,
none of the injuries would have occurred”); see also The
Atlas, 93 U.S. (3 Otto) 302, 306 (1876) (“The common law
creates a joint and several liability . . . because by a single and
forcible act, which would not have happened except by the
concurring negligence of the two parties, an injury has been
done to an innocent party.”). Defendants Crofoot and
Wilding, two of the three defendants named in this claim,
together decided to report Hazle for a parole violation
because he failed to participate in the 12-step program, as
well as to return him to prison. Defendant Jallins, the third

had adequately informed the court of his position numerous times (both
in his proposed jury instructions and verdict form and in three pre-trial
briefs), and the district judge stated at trial that he was aware of Hazle’s
request that the jury be instructed that there was joint and several liability.
See Glover v. BIC Corp., 6 F.3d 1318, 1326–27 (9th Cir. 1993) (requiring
no “futile formal objection” when written submissions made the trial judge
“fully aware” of the party’s objection). Further, we reject the state
defendants’ argument that Hazle explicitly waived this issue during a
hearing as a misreading of the record. Finally, we reject the state
defendants’ argument that Hazle was required to assert the error arising
from the jury verdict and instructions in his motion for a new trial. See
United States v. Hayashi, 282 F.2d 599, 601 (9th Cir. 1960).

Case: 11-15354

08/23/2013

24

ID: 8753738

DktEntry: 40-1

HAZLE V. CROFOOT

defendant, ratified their decision by issuing the order to return
Hazle to prison. Had any one of them not acted, Hazle would
not have been incarcerated.10 Thus, the jury verdict cannot be
upheld as apportioning liability to individuals not before it
because the jury should not have been asked to apportion
liability at all.
Thus we must reject the jury verdict as simply
inconsistent with the district judge’s order holding defendants
liable for Hazle’s false imprisonment. We therefore reverse
the district judge’s determination that Hazle was not entitled
to a new trial for an award of compensatory damages for his
loss of liberty.11

10

We also reject the suggestion by the state defendants that the language
of the jury instructions permitted the jury to second-guess the district
judge’s finding that the state defendants had caused Hazle’s injuries
because they asked the jury to identify the amount of damages “caused”
by the defendants. The instructions simply limited the damages for which
the state defendants were responsible to those that could reasonably be
attributed to them individually—a seemingly necessary limitation in every
damages instruction, unless there is joint and several liability.
11

Because we reject the jury instruction and verdict form permitting the
jury to apportion liability—an error that also affected the jury’s decision
to award zero damages on Hazle’s emotional distress claim—we remand
for a new trial as to those damages as well. Further, because the jury
failed to award compensatory or even nominal damages, it was necessarily
unable to award punitive damages.
We therefore remand for
reconsideration of Hazle’s entitlement to punitive damages. We reiterate
that Hazle does not assert that the jury was required, as a matter of law, to
award either type of damages on the emotional distress claim, and, as a
result, we do not reach that question here.

Page: 24 of 33

Case: 11-15354

08/23/2013

ID: 8753738

DktEntry: 40-1

HAZLE V. CROFOOT

Page: 25 of 33

25

III. Summary Judgment as to Westcare
We now turn to Hazle’s constitutional claim against
Westcare. The district judge granted summary judgment to
Westcare on the ground that Hazle had failed to introduce any
facts tending to support the conclusion that Westcare was a
proximate cause of his injuries, holding that Hazle “cannot
establish a causal connection between Westcare’s alleged acts
and the violation of [Plaintiff’s] rights.” We hold that, when
the facts are taken in the light most favorable to Hazle, a
genuine issue of material fact exists as to whether Westcare’s
actions causally contributed to the violation of Hazle’s
constitutional rights. We thus reverse the grant of summary
judgment in Westcare’s favor with regard to Hazle’s section
1983 claim.
One of Hazle’s allegations was that he suffered harm as
a result of Westcare’s unconstitutional conduct in “requiring
him . . . to participate in a ‘12-step’ program that contains
substantial religious components.” Further, Hazle alleged
that this constitutional violation occurred, at least in part,
because Westcare had a policy or custom of “failing to
provide [parolees] with secular or non-religious alternatives
for post-release treatment.” This is the manner in which,
according to the record, Westcare contributed to the violation
of Hazle’s constitutional rights. It is undisputed that
Westcare was the regional Substance Abuse Services
Coordination Agency in the relevant part of California, and
that, in that capacity, Westcare “contracts with the State of
California to create a network of treatment facilities for
parolees with drug-related convictions, and coordinates with
the State to place parolees in these programs.” Westcare
concedes that it does not have in its network any facilities that
provide non-religious treatment options; rather, Westcare

Case: 11-15354

26

08/23/2013

ID: 8753738

DktEntry: 40-1

HAZLE V. CROFOOT

admits that it “continues to contract solely with residential
providers that use the 12-step program ‘in some form or
fashion.’”
We think it obvious that a foreseeable result of
Westcare’s actions in providing only religion-based programs
for parolees is that some California prisoners will be required
to submit to religious treatment programs despite their
objections. Our case law requires no more to establish
proximate causation. In Crowe v. Cnty. of San Diego, for
example, we found police officers to be the proximate cause
of a Miranda violation, even though they did not commit the
ultimate act that completed the constitutional violation.
608 F.3d 406, 430–31 (9th Cir. 2010). We held that liability
for a constitutional violation requires only that the defendant
“‘set[] in motion a series of acts by others which the
[defendant] knows or reasonably should know would cause
others to inflict the constitutional injury.’” Id. at 430
(quoting Johnson v. Duffy, 588 F.2d 740, 743–44 (9th Cir.
1978)).
Our conclusion is buttressed by our 2007 holding in
Inouye, in which we concluded that a parolee’s right to be
free from coerced participation in a religious treatment
program was a matter of “uncommonly well-settled case law”
that was “enough for us to hold that the law was clearly
established, sufficient to give notice to a reasonable parole
officer, in 2001.” 504 F.3d at 716. Inouye leaves little room
for Westcare to argue that constitutional injuries of the sort
suffered by Hazle were not a foreseeable result of its actions.
Westcare suggests that, standing alone, its failure to
provide Hazle a non-religious alternative was not sufficient
to hold it liable for violating his constitutional rights. It

Page: 26 of 33

Case: 11-15354

08/23/2013

ID: 8753738

HAZLE V. CROFOOT

DktEntry: 40-1

Page: 27 of 33

27

argues that it had no part in the decision to assign Hazle to a
Westcare facility—the decision that, Westcare contends, was
the true cause of Hazle’s constitutional violation. To the
extent that Westcare suggests that the state should have
known and accommodated the fact that all of Westcare’s
treatment facilities would violate the First Amendment rights
of non-religious parolees, we are doubtful that such an
argument may serve as a defense to liability, particularly
given Westcare’s special role as the state-contracted
Substance Abuse Services Coordination Agency for the
region involved. It appears from the record that there were no
other entities that provided the service that Westcare did in
the region of California that it served under its contract with
the state. It also appears that state officials were not free,
either before or after Hazle arrived at one of the facilities in
Westcare’s network, to place him in a treatment facility
outside Westcare’s network. Westcare itself concedes that it
“coordinates with the State to place parolees in” the Westcare
network of treatment programs, all of which are religion
based. We thus find that Hazle has, at least, created a
genuine issue of material fact as to whether Westcare’s policy
of contracting solely with religious facilities was a proximate
cause of his constitutional injuries.12

12

Westcare in fact “acknowledges its obligation to ensure that the
residential facilities it contracts with do not require [parolee] participants
to attend religious events or participate in religious events.” Indeed, its
standard contract specifically forbids the treatment facilities it contracts
with from requiring parolees to “attend religious events or participate in
religious activities.”
The actual cause of Westcare’s potential
constitutional violation appears to be its too-narrow construction of the
word “religious,” in that it “interprets the word ‘religious’ in its
contractual provision to mean ‘attending church or prayer services’ and
does not consider the 12-step process to be ‘religious.’” We cannot
explain its continued adherence to this position in light of our decision in

Case: 11-15354

28

08/23/2013

ID: 8753738

DktEntry: 40-1

HAZLE V. CROFOOT

In any event, Hazle has grounds other than Westcare’s
policy of contracting exclusively with religious facilities that
create a triable issue of fact regarding whether Westcare
caused his constitutional injury. Viewed in the light most
favorable to Hazle, Westcare was intimately involved in the
process that led Hazle to be placed in a religion-based
facility. A declaration provided by Hazle describes
Westcare’s involvement in selecting a treatment facility for
him: “Prior to my release on parole, I had notified
correctional authorities and representatives of Westcare
California, Inc. (“Westcare”) of my Atheism, and requested
placement in a treatment facility that did not contain religious
components. In response, a Westcare representative told me
I should ask to be assigned to Empire.” This is consistent
with Westcare’s own admissions, which suggest that it has a
significant role in determining the treatment facility to which
parolees will be assigned. Westcare stated that it “finds
available programs that meet the parolee’s parole term
conditions and relays such information to the transitional
coordinator inside the prison.” It further stated that “if the
parolee does not already have a specific provider request,
Westcare will provide the name(s) of available providers to
the transitional coordinator to relay to the parolee. In the case
of CDCR Norco, [the prison in which Hazle was
incarcerated,] Westcare coordinators discuss available
treatment facilities with transitional coordinators who work
for Mental Health Systems, Inc., within the prison.”
Westcare’s own records regarding Hazle confirm that he met
with a Westcare representative numerous times before he was

Inouye that “reverence for ‘a higher power’ is a substantial component of
the AA/NA program” and that forced participation in such 12-step
programs “strikes at the core of the Establishment Clause of the First
Amendment.” 504 F.3d at 712.

Page: 28 of 33

Case: 11-15354

08/23/2013

ID: 8753738

DktEntry: 40-1

HAZLE V. CROFOOT

Page: 29 of 33

29

released from prison and specifically “discussed aftercare and
relapse prevention.” Thus, Westcare’s suggestion that it had
no part in forming the conditions of Hazle’s parole is
contradicted by the record, which, viewed in the light most
favorable to Hazle, supports an inference that Westcare was
responsible for Hazle’s being referred to the religious
treatment facility where his First Amendment rights were
violated.
We thus find that, when the evidence is taken in the light
most favorable to Hazle, a genuine issue of material fact
exists as to whether Westcare’s actions constituted a
proximate cause of the violation of Hazle’s constitutional
rights when it (1) contracted only with treatment facilities
offering solely religious based programs or services, and (2)
counseled and arranged for Hazle to attend a religion-based
facility as a part of his state-imposed parole program, despite
having been informed that he was an atheist and that he
objected to such religious programming. We accordingly
reverse the district judge’s grant of summary judgment to
Westcare, and remand for further proceedings.13
IV. Hazle’s Claim for Injunctive Relief
Finally, we address Hazle’s claim for injunctive relief
under California Civil Procedure Code § 526a. That statute
provides a cause of action to taxpayers to enjoin any state
agency or a local government entity from carrying on any

13
Because the question whether Westcare, given its role as the
Substance Abuse Services Coordination Agency, is a state actor for
purposes of section 1983 liability is not before us, we decline to provide
a definitive answer in the first instance on the basis of the limited record
before us. We remand for a determination on a more complete record.

Case: 11-15354

30

08/23/2013

ID: 8753738

DktEntry: 40-1

HAZLE V. CROFOOT

unlawful actions. See Cates v. Cal. Gambling Control
Comm’n, 65 Cal. Rptr. 3d 513, 518 (Cal. Ct. App. 2007). In
his claim for injunctive relief, Hazle alleged, consistent with
the allegations in his § 1983 claims, that the state defendants
in their official capacities, including the Secretary of the
CDCR, continue to violate the First Amendment by requiring
parolees to participate in religious treatment programs in
order to be eligible for parole, failing to provide parolees with
secular or non-religious treatment alternatives, and revoking
the parole of those who protest or resist participation in
religion-based treatment programs.
Hazle sought an
injunction under the statute preventing both Westcare and the
aforementioned state defendants from expending state funds
in this unconstitutional manner.
The district judge held that Hazle’s state law claim for
injunctive relief was moot in light of developments that
followed our 2007 decision in Inouye. Specifically, in
November 2008, and in a direct response to Inouye, the state
CDCR issued a directive stating that parole agents “shall not
require that a parolee attend AA, NA, or any other religious
based program if the parolee refuses to participate in such a
program for religious reasons.” The directive required that an
objecting parolee instead “be referred to an alternative
nonreligious program.” The district judge concluded that,
“absent any indication that [this directive] was promulgated
only in response to ongoing litigation,” it was “sufficient to
render the request for an injunction moot,” and therefore
granted summary judgment to all defendants on that claim.
The district judge erred in concluding that Hazle’s state
law claim for injunctive relief was moot. We do not mean to
cast doubt on our prior holding that a defendant may
overcome the “heavy burden of proving that the challenged

Page: 30 of 33

Case: 11-15354

08/23/2013

ID: 8753738

DktEntry: 40-1

HAZLE V. CROFOOT

Page: 31 of 33

31

conduct cannot reasonably be expected to recur” with an
official “memorandum represent[ing] a permanent change” in
policy that is “broad in scope and unequivocal in tone” and
“fully supportive” of the relevant constitutional rights. White
v. Lee, 227 F.3d 1214, 1243–44 (9th Cir. 2000). Here,
however, there is undisputed evidence that the CDCR
directive has not been implemented in any meaningful
fashion, at least with respect to Westcare.14 The record
discloses that defendant Westcare conceded the following
facts:
38. Westcare did not receive a copy of [the
CDCR] directive until it was produced in
discovery in this action.
39. Westcare does not know what the term
“alternative nonreligious program” as used in
the Directive means.
40. The Directive has not altered the way in
which Westcare conducts business.
41. To date, Westcare continues to contract
solely with residential providers that use the
12-step program “in some form or fashion.”
Further, Westcare’s Senior Vice President provided a
declaration, issued fully a year after the CDCR’s directive,

14
Because the district judge granted summary judgment on this claim to
the state defendants “for the reasons stated in the Court’s [prior] order
granting partial summary judgment in favor of Westcare,” our decision as
to Westcare’s motion for summary judgment is equally applicable to both
sets of defendants.

Case: 11-15354

08/23/2013

32

ID: 8753738

DktEntry: 40-1

HAZLE V. CROFOOT

stating, “[t]here is no requirement by CDCR, that I am aware
of, that requires Westcare to contract with a certain minimum
number of non-religious or non-‘12-step’ treatment
programs.” These facts establish that, notwithstanding the
state’s directive, the defendants do not appear to have taken
any concrete steps to prevent other parolees from suffering
the same constitutional violations Hazle suffered. Under
these circumstances, it is far from “‘absolutely clear that the
allegedly wrongful behavior could not reasonably be
expected to recur,’” as is required to demonstrate that a case
has been mooted by a defendant’s voluntary conduct.
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc.,
528 U.S. 167, 189 (2000) (quoting United States v.
Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203
(1968)). Accordingly, we reverse the district judge’s entry of
summary judgment to defendants, and remand for further
consideration of Hazle’s claim for injunctive relief.15
V. Conclusion
For the reasons stated above, we hold that the jury verdict
awarding Hazle no compensatory damages is contrary to law,
reverse the district judge’s denial of Hazle’s motion for a new
trial, and remand for a new trial as to his loss of liberty

15

We reject the state defendants’ arguments that we should affirm the
district judge’s grant of summary judgment on an alternative
basis—namely, that Hazle lacks statutory standing as a taxpayer. The
district judge did not address this basis for the state defendants’ summary
judgment motion, and the parties—then operating under the district
judge’s already-dispositive ruling, in response to Westcare’s motion, that
this claim was moot—understandably did not develop a record upon
which to decide it. We decline to do so in the first instance. See S & N
Equip. Co. v. Casa Grande Cotton Fin. Co., 97 F.3d 337, 345 (9th Cir.
1996).

Page: 32 of 33

Case: 11-15354

08/23/2013

ID: 8753738

HAZLE V. CROFOOT

DktEntry: 40-1

Page: 33 of 33

33

damages. The jury shall be instructed that liability is joint
and several and that Hazle is entitled to compensatory
damages. We also hold that Hazle is entitled to a new trial as
to his emotional distress damages as a result of the district
judge’s erroneous jury instruction and verdict form.
In addition, we reverse the district judge’s grant of
summary judgment to Westcare on Hazle’s section 1983
claim, as well as its holding that Hazle’s state law claim for
injunctive relief was moot. We remand both of these issues
for further consideration.16
REVERSED AND REMANDED.

16

Given our disposition, we need not reach the other issues Hazle raises
on appeal, including his alternative ground for a new trial motion, or his
assertion that the district judge gave an improper supplemental jury
instruction.