Hazle vs Crofoot, et al

Filing 87

ORDER signed by Judge Garland E. Burrell, Jr. on 4/6/2010 ORDERING Pltf's 48 partial motion for summary judgment is GRANTED, Westcare's 47 motion for summary judgment is GRANTED and Pltf's 56 cross-motion for summary judgment is DENIED. Westcare prevails on its argument that Plt's request for injunction is DENIED. (Engbretson, K.)

1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE EASTERN DISTRICT OF CALIFORNIA 3 4 BARRY A. HAZLE, JR., 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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) ) Plaintiff, ) ) v. ) ) MITCH CROFOOT, individually and as ) Parole Officer of the CDCR; BRENDA ) WILDING, individually and as Unit ) Supervisor of the CDCR; MATTHEW ) CATE, individually and as Secretary) of the CDCR; SCOTT KERNAN, ) individually and as Chief Deputy ) Secretary of Adult Operations of ) the CDCR; TIM HOFFMAN, individually) and as Director of the Division of ) Adult Parole Operations in ) California; DEPUTY COMMISSIONER ) JALLINS, individually and as ) deputy commissioner; and WESTCARE, ) ) Defendants. ) )

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

Pending are three motions for summary judgment or summary adjudication concerning Plaintiff's claims that Defendants violated his rights under the Establishment Clause of the First Amendment. Specifically, Plaintiff argues these rights were violated when he was required to participate in a "12-step" drug rehabilitation program containing religious components as a condition of his parole. Plaintiff filed a motion for partial summary judgment ("Partial Mot.") on December 23, 2009. Plaintiff seeks a ruling in

this motion that Defendants Mitchell Crofoot ("Crofoot"), Brenda Wilding ("Wilding"), and Richard Jallins ("Jallins") are liable for

argument.

This matter is deemed suitable for decision without oral E.D. Cal. R. 230(g). 1

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violating his rights under the Establishment Clause by not relieving Plaintiff from a condition of his parole requiring him to attend a 12-step program with religious components after Plaintiff objected to the religious components. Defendant Westcare California, Inc.

("Westcare") also filed a motion for summary judgment ("Westcare Mot.") on December 23, 2009, in which it argues Plaintiff is unable to establish a causal connection between Westcare's activities and his Establishment Clause claim. Westcare also argues in its motion that

Plaintiff's request for a taxpayer's injunction enjoining Defendants from using state resources and funds to require parolees to participate in 12-step programs with religious components is moot. Lastly, Plaintiff filed a cross-motion for partial summary judgment ("Cross Mot.") on January 26, 2010, in which he seeks a ruling that Westcare liable for violating his Establishment Clause rights. For

the following reasons, Plaintiff's partial motion seeking to establish the liability of Crofoot, Wilding, and Jallins is GRANTED; Westcare's

motion is GRANTED; and, Plaintiff's cross-motion against Westcare is DENIED. I. Background

Plaintiff "was incarcerated at California Rehabilitation Center, Norco, from February 27, 2006 to February 27, 2007, on charges pertaining to possession of illegal substances." (Westcare's

Statement of Undisputed Facts in Support of Motion for Summary Judgment ("Westcare SUF") ¶ 1.) "[Plaintiff] was released . . . on

February 26, 2007, [and placed] on parole with the single condition that he attend and complete a 90-day [`12-step'] residential drug treatment program." (Id. ¶ 2; Statement of Undisputed Facts In

Support of Plaintiff's Motion for Partial Summary Judgment ("Partial 2

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Mot. SUF") ¶ 1; Statement of Undisputed Facts in Support of Plaintiff's Cross Motion for Partial Summary Judgment ("Cross Mot. SUF") ¶ 12.) Defendant "Mitch Crofoot was [Plaintiff's] parole agent

at the time Plaintiff [participated in the drug treatment program]." (Partial Mot. SUF ¶ 4.) Westcare "contracts with the [California Department of Corrections and Rehabilitation ("CDCR")] as a regional Substance Abuse Services Coordination Agency ("SASCA") for Parole Region I in California." (Westcare SUF ¶ 11; Cross Mot. SUF ¶ 1.) 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." (Cross Mot. SUF ¶ 3.) "Westcare's

standard form contract with residential providers prohibits the providers from requiring the `SASCA participants to attend religious events or participate in religious activities. Any such participation

is entirely optional for the SASCA participants and contractors may not impose a penalty for lack of participation.'" 6.) (Cross Mot. SUF ¶

A residential treatment facility is required to abide by the (Cross Mot. SUF ¶

above provision in order to contract with Westcare. 7; Smith Dep. 24:23-26:6.)

"Empire Recovery Center ("Empire") is a

non-profit corporation which contracts with Westcare to provide substance abuse treatment and re-entry services to parolees upon release from prison." (Westcare SUF ¶ 6.) "Empire is an independent (Westcare

contractor under the terms of the contract with Westcare." SUF ¶ 7.) "Prior to his release on parole in February 2007,

[Plaintiff] told correctional authorities and Westcare representatives that he was an Atheist, and requested placement in a treatment 3

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facility that did not contain religious components to fulfill the condition of his parole." (Cross Mot. SUF ¶ 13.) "A Westcare

representative advised him that he should ask to be assigned to [Empire]." (Cross Mot. SUF ¶ 13.) Plaintiff was assigned to Empire Empire

in Redding, California.

(Partial SUF ¶ 2; Westcare SUF ¶ 4.)

utilizes a 12-step recovery program, developed by Alcoholics Anonymous and Narcotics Anonymous, which includes references to God and a higher power. (Cross Mot. SUF ¶ 14; Partial Mot. SUF ¶ 3.) "While at Empire, [Plaintiff] notified Westcare representatives and told them that he objected to the religious 12step program used by Empire, and asked to be transferred to a secular alternative." (Cross Mot. SUF ¶ 15.) "[Plaintiff] also asked

[Crofoot] whether he could fulfill his parole requirement through a secular recovery program." (Partial Mot. ¶ 7; Cross Mot. SUF ¶ 16.)

"[Plaintiff] told Crofoot that he objected to participating in the Empire program because he was an atheist." (Partial Mot. SUF ¶ 6.)

"Crofoot told [Plaintiff] that he needed to continue at Empire while Crofoot looked into the issue of whether secular programs were available, and told [Plaintiff] not to leave the Empire class in the meantime." (Cross Mot. SUF ¶ 17.) "Crofoot called Westcare to ask (Cross

whether a non 12-step program was available for [Plaintiff]." Mot. SUF ¶ 18.)

"Westcare informed Crofoot that there were no secular (Westcare SUF ¶

treatment programs in the Northern California area." 24.)

"While waiting to hear back from Crofoot, [Plaintiff] contacted

Westcare and again explained that he was an atheist and asked whether he could attend a secular program in lieu of Empire's religious 12step program." (Cross Mot. SUF ¶ 19.) "Westcare representative Dawn

Hall told [Plaintiff] that the only other available program was a 4

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faith-based program called Cornerstone, and that if he `didn't like Empire, he really wasn't going to like it at Cornerstone.'" Mot. SUF ¶ 20.) (Cross

"After making inquiries, Crofoot told [Plaintiff] (Partial Mot.

that there were no programs that were `non 12-step.'" SUF ¶ 9.)

"Crofoot told [Plaintiff] that he could file an

Inmate/Parolee Appeal [known as a "602 Appeal"], but that in the meantime [Plaintiff] should continue to participate in the Empire Program or he would be returned to prison." (Partial Mot. SUF ¶ 10.)

"[Plaintiff] presented Crofoot on April 3, 2007 with a 602 Appeal that set forth the basis for his objection to participation in the Empire program." (Partial Mot. SUF ¶ 11) Plaintiff's 602 Appeal states:

As an Atheist I object to forced participation in any spiritual/religious activities. I am currently required to attend 90 days on in-patient treatment at the Empire Recovery Center in Shasta County. I have been told by my parole officer that I must complete the 90 days of spiritual treatment because there are no available secular recovery alternatives. [¶] Since the CDC 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. (Heller Decl. Partial Mot. Ex. B; Heller Decl. Cross Mot. Ex. L.) Plaintiff also attached to his 602 Appeal a document further explaining his beliefs as an Atheist and a summary of judicial opinions in support of his request. (Id.)

"According to Crofoot, representatives of Empire told Crofoot on April 6, 2007, that [Plaintiff] `has been disruptive, though in a congenial way, to the staff as well as other students.'" (Partial Mot. SUF ¶ 12; Cross Mot. SUF ¶ 30.) "Crofoot's

understanding from the Empire representatives was that [Plaintiff] `was not being loud; he wasn't throwing things around; he wasn't 5

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stomping around; he wasn't being boisterous and that sort of thing.'" (Partial Mot. SUF ¶ 13; Cross Mot. SUF ¶ 31.) passive aggressive.'" "He was `sort of

(Partial Mot. SUF ¶ 13; Cross Mot. SUF ¶ 31.)

"Crofoot spoke with his Unit Supervisor, Defendant Brenda Wilding, and concluded that the right thing to do was to refer Plaintiff to [the Board of Parole Hearings (the "BPH")] on a parole violation for failing to participate in the BPH-ordered program." ¶ 15.) (Partial Mot. SUF

"Wilding understood that [Plaintiff] objected to participating (Partial Mot.

in the Empire [] program because he was an atheist." SUF ¶ 20.)

"Wilding understood that Crofoot told [Plaintiff] that

[Plaintiff] had to either participate in the [program] or be returned to prison." (Partial Mot. SUF ¶ 21.) "Crofoot and Wilding decided

together that [Plaintiff] needed to be returned to prison so that he could argue his case before the BPH." (Partial Mot. SUF ¶ 16.)

"Crofoot arrested [Plaintiff] on April 6, 2007 and booked him into the Shasta County Jail." (Partial Mot. SUF ¶ 17.) "After arresting

[Plaintiff], Crofoot called the [California Rehabilitation Center (the "CRC")], explained the circumstances pertaining to [Plaintiff], explained that he was requesting that [Plaintiff] be returned to custody, and obtained an oral order of return authorized by Deputy Commissioner Richard Jallins." (Partial Mot. SUF ¶ 18.) "After the

oral order of return was authorized from Deputy Commissioner Jallins, [Plaintiff] was sent back to prison." (Partial Mot. SUF ¶ 19.) The

"oral order questionnaire/authorization" signed by Crofoot and approved by Jallins, states in the Comments section: "Refusing to participate in residential program. Causing problems with staff that (Heller Decl. Partial Mot.

is effecting [sic] the other residents." Ex. C; Cross Mot. SUF ¶ 34.) 6

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"[Plaintiff] was incarcerated for more than 100 days, the bulk of which he spent in state prison in Norco, California." Mot. SUF ¶ 35.) (Cross

"On June 27, 2007, while Plaintiff was still in

prison, he received a response from CDCR to his 602 appeal, denying the appeal." Appeal states: 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. (Heller Decl. Partial Mot. Ex. I.) The response is signed by William (Cross Mot. SUF ¶ 36.) The response to Plaintiff's 602

Crisologo, Associate Chief Deputy Commissioner, Board of Parole Hearings. (Id.) Plaintiff filed his Complaint in this case on September 29, After Plaintiff filed his Complaint, on November 18, 2008,

the CDCR issued Directive No. 08-06, which states: Case law filed on September 7, 2007 in the United States Court of Appeals For The Ninth Circuit established that placement of a parolee into a religious based substance abuse program at the objection of the parolee was unconstitutional. As such, the Division of Adult Parole Operations (DAPO) cannot compel a parolee to participate in Alcoholics Anonymous (AA), Narcotics Anonymous (NA) or any other religious-based substance abuse treatment program as a condition of parole. [¶] Effective immediately, Parole Agents assigned to DAPO, 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. Under these circumstances, the parolee shall be referred to an alternative nonreligious program. 7

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

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// III. A. Analysis

Hazle's motion for summary judgment on whether Defendants Crofoot, Wilding, and Jallins are liable for violating Hazle's Establishment Clause rights Plaintiff seeks a partial summary judgment finding that

Defendants Crofoot, Wilding, and Jallins (the "Parole Defendants") are liable for violating his Establishment Clause rights by requiring him to participate in a 12-step drug rehabilitation program that contained religious components. Specifically, Plaintiff argues the Parole

Defendants violated his First Amendment right under the Establishment Clause as follows: (1) "requiring him, upon threat of arrest or incarceration, to continue participating in a `12-step' program that contained religious components"; (2) "rejecting his requests to fulfill the treatment condition of his parole through a secular and non-religious program"; and (3) "arresting and incarcerating him based on his resistance." (Partial Mot. 7:15-20.) The Parole Defendants

respond, arguing it was Plaintiff's "disruptive behavior" and "not [Plaintiff's] self-professed status as an Atheist [that] caused his dismissal from his substance abuse program, . . . arrest[,] and subsequent reincarceration . . . ." Mot. 4:1-10.) "For the government to coerce someone to participate in religious activities strikes at the core of the Establishment Clause of the First Amendment, whatever else the Clause may bar." Kemna, 504 F.3d 705, 712 (9th Cir. 2007). The Ninth Circuit Inouye v. (Parole Defs.' Opp'n to Partial

articulated the following test in Inouye v. Kemna "with regard to determining whether [Plaintiff] was [subject to] governmental coercion of religious activity . . . : `first, has the state acted; second, 9

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does the action amount to coercion; and third, is the object of the coercion religious rather than secular?'" Id. at 713. "First,

[Crofoot] acted in his official state capacity as a parole officer to order [Plaintiff into a 12-step program that contained religious components]. moment.'" 1996)). That the state did not run the program itself is `of no

Id. (quoting Kerr v. Farrey, 95 F.3d 472, 479 (7th Cir. It is undisputed that Crofoot, Wilding, and Jallins were

acting in their official state capacities when they required Plaintiff to participate in the 12-step drug treatment program as a condition of his parole, and subsequently removed and incarcerated him for not participating in the program. Further, the Parole Defendants' "action was clearly coercive: [Plaintiff] could be imprisoned if he did not attend and he was, in fact, ultimately returned to prison in part because of his refusal to participate in the program." (emphasis added). Inouye, 504 F.3d at 713

The Parole Defendants argue Plaintiff was returned This argument

to prison because he was "disruptive" in the program.

rings hollow in light of the undisputed facts showing Plaintiff was only "disruptive" in the program "`in a congenial way'" and "was `sort of passive aggressive.'" (Partial Mot. SUF ¶¶ 12, 13.) It is also

undisputed that Plaintiff communicated his objection to participation in the Empire program and that Crofoot told Plaintiff he "should continue to participate in the Empire Program or he would be returned to prison." (Id. ¶ 10.) It is further undisputed that Crofoot and

Wilding concluded that "the right thing to do" was to refer Plaintiff to the Board of Parole Hearings "on a parole violation for failing to participate in the BPH-ordered program." (Id. ¶ 15.) It is also

undisputed that Deputy Commissioner Jallins authorized Plaintiff to be 10

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returned to prison because of Plaintiff's failure to participate in the program. (Id. ¶¶ 18-19, 24.)

"The final element requires somewhat more discussion." Kerr, 95 F.3d at 479. It is undisputed that "Empire used a 12-step

program that included references to God and a `higher power.'" (Partial Mot. SUF ¶ 3.) Further, Plaintiff's following averments in

his declaration have not been controverted: Shortly after arriving at Empire, I discovered that Empire used a "12-step" recovery program based [on] the principles of Alcoholics Anonymous ("AA") and Narcotics Anonymous ("NA"), which contains religious components. Among other features, the "12-step" method used by Empire made references to God, involved acknowledgment of a "higher power," and included prayer. [¶] I am an atheist, and was one in 2007. The substantial religious components to the "12-step" program administered by Empire conflicted with my beliefs. Prior to my release on parole, I had notified correctional authorities of my Atheism, and requested placement in a treatment facility that did not contain religious components. (Hazle Decl. ¶¶ 2, 3.) The Parole Defendants do not dispute that the "As such, on

Empire's 12-step program contained religious components.

this summary judgment record and given the lack of dispute between the parties in question, . . . the third prong of [Plaintiff's] Establishment Clause test has been met as well." 713-14. Inouye, 504 F.3d at

Therefore, "the program runs afoul of the prohibition against

the state's favoring religion in general over non-religion," because of the program's use of a religious concept of a Higher Power through references to God and prayer. Kerr, 95 F.3d at 480. Accordingly,

Plaintiff's partial motion for summary judgment against the Parole Defendants is granted. /// /// 11

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B. Plaintiff and Westcare's cross motions for summary judgment on Plaintiff's Establishment Clause claim Westcare and Plaintiff each seek summary judgment on

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

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C.

Westcare's Motion for Summary Judgment on Plaintiff's Injunction Westcare also seeks summary judgment of Plaintiff's request

for an injunction, arguing that CDCR Directive No. 08-06, issued November 18, 2008, moots Plaintiff's request. The Directive states: Case law filed on September 7, 2007 in the United States Court of Appeals For The Ninth Circuit established that placement of a parolee into a religious based substance abuse program at the objection of the parolee was unconstitutional. As such, the Division of Adult Parole Operations (DAPO) cannot compel a parolee to participate in Alcoholics Anonymous (AA), Narcotics Anonymous (NA) or any other religious-based substance abuse treatment program as a condition of parole. [¶] Effective immediately, Parole Agents assigned to DAPO, 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. Under these circumstances, the parolee shall be referred to an alternative nonreligious program. (Heller Decl. Cross Mot. Ex. O.) Plaintiff responds, arguing Westcare (Westcare Mot. 11:4-5.)

has not met its burden of showing that his claim for an injunction is moot. (Opp'n to Westcare Mot. 23:22-23.) "A case m[ay] become moot if subsequent events ma[ke] it absolutely clear that the allegedly wrongful behavior c[annot] reasonably be expected to recur." United States v. Concentrated Here, the uncontroverted

Phosphate Ass'n, 393 U.S. 199, 203 (1968).

Directive adopts a new policy that complies with the Ninth Circuit's holding in Inouye. Such a conclusive change in policy, absent any

indication that it was promulgated only in response to ongoing litigation, is sufficient to render the request for an injunction moot. See White v. Lee, 227 F.3d 1214, 1243-44 (9th Cir. 2000)

(finding that a "memorandum represent[ing] a permanent change" in policy, that was "unequivocal in tone," and "fully supportive of First 13

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Amendment rights," mooted plaintiff's claims for prospective relief). Therefore, this portion of Westcare's motion is granted. IV. Conclusion

For the stated reasons, Plaintiff's partial motion for summary judgment on Defendants Crofoot, Wilding, and Jallins' liability is granted, Westcare's motion for summary judgment is granted, and Plaintiff's cross-motion for partial summary judgment on Westcare's liability is denied. Further, Westcare's prevails on its

argument that Plaintiff's request for an injunction is moot. Dated: April 6, 2010

GARLAND E. BURRELL, JR. United States District Judge

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