Turner v. Hickman, CIVS-99-1869 FCDKJMP.

342 F.Supp.2d 887

Charles Edward TURNER, Plaintiff, v. R. HICKMAN, et al., Defendants.

No. CIVS-99-1869 FCDKJMP.

United States District Court, E.D. California.

September 30, 2004.

Harry Arthur Olivar, Quinn Emanuel Urquhart Oliver and Hedges, Los Angeles, CA, for Plaintiff.

Constance L. Picciano, Attorney General's Office for the State of California, Sacramento, CA, Michael G. Lee, Attorney General's Office for the State of California, Sacramento, CA, for Defendants.

ORDER

DAMRELL, District Judge.

Plaintiff, a state prisoner proceeding with counsel, has filed this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local General Order No. 262.

On August 4, 2004, the magistrate judge filed findings and recommendations herein, which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within twenty days. Defendants have filed objections to the findings and recommendations.¹

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(c) and Local Rule 72-304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds the findings and recommendations to be supported by the record and by proper analysis.

Accordingly, IT IS HEREBY ORDERED that:

1. The findings and recommendations filed August 4, 2004 are adopted in full;

2. Plaintiff's March 5, 2004 motion for summary judgment is granted;

3. Defendants Perez, Van Court, Baker, Guaderrama, their superiors, agents, co-employees and successors to state office are enjoined from considering plaintiff's refusal to participate in Narcotics Anonymous at any point in time as a basis for denying plaintiff parole;

4. Defendant Hickman, and his successors, are ordered to expunge all references to plaintiff's failure to attend Narcotics Anonymous from any file maintained by the California Department of Corrections; and

5. This case is closed.²

ORDER AND FINDINGS AND RECOMMENDATIONS

MUELLER, United States Magistrate Judge.

Plaintiff is a state prisoner proceeding with counsel in an action for violation of civil rights under 42 U.S.C. § 1983. Plaintiff's and defendants'¹ March 5, 2004 motions for summary judgment are now before the court. Oral argument was heard with respect to both motions on April 7, 2004.²

I. Plaintiff's Claim

Plaintiff asserts that defendants, acting in their official capacities as employees of the State of California, have established religion in violation of the First Amendment by demanding that he participate in Narcotics Anonymous (NA) in order to be eligible for consideration for parole. Plaintiff claims defendants have expressly conditioned plaintiff's being eligible for release on parole, in part, upon plaintiff's participation in NA. Plaintiff seeks declaratory relief and an injunction: (1) barring defendants from using plaintiff's non-attendance at NA meetings as a basis for denying plaintiff parole; and (2) ordering expungement from plaintiff's prison records of any references to plaintiff's refusal to attend NA.³ Plaintiff also seeks attorney's fees and costs under 42 U.S.C. § 1988.

II. Background⁴

Plaintiff currently is serving a sentence of fifteen-years-to-life imprisonment in the California Department of Corrections for second degree murder. (Def'ts' Mot Summ. J., Ex. Set 1 at 1.) Plaintiff was convicted in 1979. (Id.) Plaintiff was considered for, and denied parole in 1986 (id., Ex. Set 2 at 656, 759:7-12), 1988 (id. at 767, 873:8-10), 1989 (id., Ex. Set 3 at 880, 943:7-8), 1990 (id. at 951, 996:26-27), 1991 (id. at 1003, 1078:7-9), 1992 (id. at 1140:7-12), 1994 (id. at 1216:7-11), 1995 (id., Ex. Set 4 at 1267:5-9), 1997 (id. at 1329:8-15) and 2002 (id. at 1394:8-15).

At several hearings, members of the Board of Prison Terms either cited plaintiff's failure to participate in NA as a factor the Board considered in denying plaintiff parole, or the Board informed plaintiff that to be considered for parole at the next hearing, he should participate in NA:

1986

In readiness for prisoner's next parole consideration hearing one year from now — he is to ...continue to participate in self-help programming — such as A.A. / N.A.... Id., Ex. Set 2 at 761:13-762:3.

[J]ust continue involvement in the Narcotics Anonymous.... Id. at 763:23-24.

1990

We're asking that you remain disciplinary free. That you continue to upgrade vocationally and educationally and participate in NA... Id., Ex. Set 3 at 998:10-12.

1991

It's a one year denial. We're going to recommend that you remain disciplinary free, that you continue your present programming, however, include consistent participation in N.A.... Id. at 1079:17-19.

1992

However, he appears to have somewhat less understanding of his past involvement with drugs and could likely make further gains to this area by further participation in the twelve-step programs, with emphasis upon getting a sponsor to help him assist in this process. Id. at 1117:3-8.

1994

We also want you to continue to participate in self-help as a minimum, particularly focusing on the 12-step programming. And the self-help one-on-one family counseling seems to be good. So we would encourage you to do that, but we don't require it. Id. at 1218:6-10.

1995

We are recommending that you remain disciplinary free, that you upgrade vocationally, and you participate in AA and NA and any available therapy programs that come along. Id. at 1269:9-13.

1997

PRESIDING COMMISSIONER BARKER: Let me explain it to you so it's real simple. Do you want to get out of prison?

INMATE TURNER: Yes.

PRESIDING COMMISSIONER BAKER: Go to NA, learn those Twelve Steps, work those Twelve Steps. And this Board will not accept any excuses. Can I make it any simpler than that? Do you understand what I am telling you?

INMATE TURNER: NA. So my release is dependent upon me going to NA?

PRESIDING COMMISSIONER BAKER: That's —.

INMATE TURNER: Is that what you're saying?

PRESIDING COMMISSIONER BAKER: Just because you go to NA doesn't necessarily mean you get out of prison. But if you don't go to NA, like you have been told in the past, if you don't go to NA, I would never let you out of prison, ever ... Id., Ex. Set 4 at 1313:10-27.

NA. Mandatory... You've been told before to go to NA. I'm telling you again You've got to go to NA. That's got to be your number one priority. Now it's up to you... Id. at 1314:19-1315:3.

I know you're doing a lot of other things. I'm telling you that that's a number one priority. This Board is going to look at that every single time you come in here. You've accomplished the other things that we want you to do. I can't make it any plainer, I really can't. NA is just mandatory for you. Id. at 1316:4-10.

The record before the court, most notably the record of plaintiff's parole proceedings, shows that plaintiff has been involved with NA sporadically since his first parole denial. In at least as early as 1997, plaintiff started to indicate that he felt participation in NA conflicts with his religious beliefs and, therefore, plaintiff stopped participating in NA:

PRESIDING COMMISSIONER BAKER: How long have you been going to NA?

INMATE TURNER: In '95 was — in '96 is the last time I went.

PRESIDING COMMISSIONER BAKER: How come you're not going now?

INMATE TURNER: Because I picked up my spiritual beliefs and I — I take the Bible. That's what I read. I study the Bible. I believe that God is the one that's going to bring me back around and keep strong and keep me centered, because that's how I started. I started through God, so that's how I will finish getting back into the Bible and staying there.

Id. at 1312:7-19.

When plaintiff was deposed for this action he indicated that he does not believe it is appropriate to invoke religion and especially belief in God in a substance abuse program. Tr. of Pl.'s Dep. at 22:12-25, 28:3-30:18.

III. Legal Standards

A. Summary Judgment

Summary judgment is appropriate when it is demonstrated there exists "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).

Under summary judgment practice, the moving party

always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the `pleadings, depositions, answers to interrogatories, and admissions on file.'") Id. Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See id. at 322, 106 S.Ct. 2548. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323, 106 S.Ct. 2548.

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, ...