Khatib v. County of Orange et al

REPLY in support of MOTION to Dismiss Plaintiff's Complaint [FRCP Rule 12

C.D. Cal.January 8, 2008

REPLY TO OPPOSITION RE MOTION TO DISMISS 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 David D. Lawrence, Esq. [State Bar No. 123039] Christina M. Sprenger, Esq. [State Bar No. 205105] Anh N. Nguyen, Esq. [State Bar No. 253475] FRANSCELL, STRICKLAND, ROBERTS & LAWRENCE A Professional Corporation 500 North State College Blvd., Suite 1350 Orange, California 92868 Telephone No. (714) 456-0180 Facsimile No. (714) 456-0181 E-Mail: csprenger@franscell.com Attorneys for Defendants, COUNTY OF ORANGE, SHERIFF MICHAEL CARONA and DEPUTY COSSAIRT Michelle L. Palmer Deputy County Counsel HALL OF ADMINISTRATION P.O. Box 1379 Santa Ana, California 92702-1379 Telephone: (714) 834-3318 Facsimile: (714) 834-2359 E-Mail: michelle.palmer@coco.ocgov.com Attorneys for Defendants, COUNTY OF ORANGE, SHERIFF MICHAEL S. CARONA and DEP UTY COSSAIRT as to Injunctive Relief Only UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Souhair Khatib, Plaintiff, v. COUNTY OF ORANGE, a political subdivision; MICHAEL S. CARONA, individual and official capacities; BRIAN COSSAIRT, individual and official capacities; and DOES 1 through 10, Defendants. ________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. SACV 07-1012 DOC (MLGx) REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS Date: January 14, 2008 Time: 8:30 a.m. Crtrm: 9D MATTER FOR DETERMINATION BY THE HONORABLE DAVID O. CARTER Case 8:07-cv-01012-DOC -MLG Document 15 Filed 01/08/08 Page 1 of 28 Page ID #:5 REPLY TO OPPOSITION RE MOTION TO DISMISS i 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS Page MEMORANDUM OF POINTS AND AUTHORITIES............... ............. 1 I. SUMMARY OF ARGUMENTS ............................ ......... 1 II. THE COURTHOUSE LOCKUP IS NOT A “PRETRIAL DETENT ION FACILITY” AS ENVISIONED BY RLUIPA .................. ........... 3 A. Plaintiff’s Argument That “Confinement Alone” Tr iggers The Protections Of RLUIPA Is Unsupported And Contra ry To The Purpose Of The Act ................................. ......... 3 B. Plaintiff Was Not A Pretrial Detainee And A “Pre trial Detention Facility” Connotes More Than A Temporary Detention In A Courthouse Lockup ............................. ......... 4 C. Plaintiff’s Reliance Upon Comments By An Orange County Grand Jury Demonstrates That Plaintiff’s Argument I s Unsupportable ...................................... ......... 5 III. THE DEPRIVATION OF PLAINTIFF’S HIJAB FOR LESS THAN EIGHT HOURS DID NOT CONSTITUTE A SUBSTANTIAL BURDEN ON HER RIGHT TO PRACTICE RELIGION .................................. ........... 6 IV. PLAINTIFF MAY NOT BRING A CLAIM FOR MONETARY DA MAGES UNDER RLUIPA AGAINST DEFENDANTS CARONA AND COSSAIRT IN THEIR INDIVIDUAL CAPACITIES .............................. ........... 9 V. AS TO THE QUALIFIED IMMUNITY DEFENSE, PLAINTIFF HAS FAILED TO CARRY HER BURDEN OF SHOWING THAT THE LAW WAS CLEARLY ESTABLISHED AT THE TIME DEFENDANTS CARONA AND COSSAIRT WERE REQUIRED TO ACT .................................... .......... 10 VI. PLAINTIFF HAS FAILED TO SHOW WHY THIS COURT SHO ULD CREATE A CAUSE OF ACTION UNDER ARTICLE I, SECTION 4 OF THE C ALIFORNIA CONSTITUTION ....................................... .......... 14 Case 8:07-cv-01012-DOC -MLG Document 15 Filed 01/08/08 Page 2 of 28 Page ID #:6 REPLY TO OPPOSITION RE MOTION TO DISMISS ii 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page VII. CALIFORNIA GOVERNMENT CODE SECTION 820.2 AND 8 20.8 PROVIDE IMMUNITY FOR DEFENDANTS CARONA AND COSSAIRT.......... 14 VIII. PLAINTIFF FAILS TO DEMONSTRATE THAT DEFENDANT S’ CONDUCT WAS SUFFICIENTLY OUTRAGEOUS TO SUSTAIN A CLAIM FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS ................... .......... 18 IX. PLAINTIFF HAS NO STANDING TO SEEK EQUITABLE REL IEF ...... 19 X. REQUESTED RELIEF ................................ ........ 20 Case 8:07-cv-01012-DOC -MLG Document 15 Filed 01/08/08 Page 3 of 28 Page ID #:7 REPLY TO OPPOSITION RE MOTION TO DISMISS iii 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page Cases Alexander v. County of Los Angeles 64 F.3d 1315 (9th Cir. 1995) ...................... ........... 11 Backlund v. Barnhart 778 F.2d 1386 (9th Cir. 1985) ..................... ........... 12 Barner v. Leeds 24 Cal.4th 676 (2000) ............................. ........... 17 Behrens v. Pelletier 516 U.S. 229 (1996) ............................... ........... 11 Boles v. Neet 402 F.Supp.2d 1237 (D.Colo.2005) .................. ............ 9 Brown v. Department of Corrections Pennsylvania 2007 WL 4322980, *16 (W.D.Pa., 2007) .............. ............ 9 Brown v. Grabowski 922 F.2d 1097 (3rd Cir. 1990) ..................... ........... 12 Caldwell v. Montoya 10 Cal.4th 972 (1995) ............................. ....... 16, 17 Cervantes v. JC Penney Co. 24 Cal.3d 579 (1979) .............................. ........... 19 City of Los Angeles v. Lyons 461 U.S. 95 (1983) ................................ ........... 19 Collins-Bey v. Thomas 2004 WL 2381874, *1 (N.D. Ill. 2004) .............. ............ 8 Dunlap v. Losey 40 Fed.Appx. 41, 43, 2002 WL 1001027, *2 (.A.6 (Mi ch.),2002) .. 7 Case 8:07-cv-01012-DOC -MLG Document 15 Filed 01/08/08 Page 4 of 28 Page ID #:8 REPLY TO OPPOSITION RE MOTION TO DISMISS iv 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page Gooden v. Crain 405 F.Supp.2d 714 ................................. ............ 9 Harlow v. Fitzgerald 457 U.S. 800 (1982) ............................... ........... 11 Hawkins v. Stingut 829 F.2d 317 (2nd Cir. 1987) ...................... ........... 12 Houghton v. Smith 965 F.2d 1532 (9th Cir. 1992) ..................... ........... 11 Hunter v. Bryant 502 U.S. 224 (1991) ............................... ........... 11 In re Osslo 51 Cal.2d 371 (1958) .............................. ........... 19 Kemmerer v. County of Fresno 200 Cal.App.3d 1426 (1988) ........................ ........... 18 Kentucky v. Graham 473 U.S. 159 (1985) ............................... ............ 9 Klock v. Cain 813 F.Supp 1430 (CD Cal 1993) ..................... ........... 13 Lipman v. Brisbane Elementary School Dist. 55 Cal.2d 244 (1961) .............................. ........... 18 Martinez v. City of Los Angeles 141 F.3d 1373 (9th Cir. 1998) ..................... ....... passim Mayweathers v. Terhune 328 F.Supp.2d 1086 (E.D. Cal. 2004) ............... ............ 8 Muhammad v. Wainwright 839 F.2d 1422 (11th Cir. 1987) .................... ........... 12 Case 8:07-cv-01012-DOC -MLG Document 15 Filed 01/08/08 Page 5 of 28 Page ID #:9 REPLY TO OPPOSITION RE MOTION TO DISMISS v 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page Neely v. Feinstein 50 F.3d at 1509 ................................... ....... 11, 12 Newby v. Pate 2007 WL 2791455, *9 (N.D.Tex.)(N.D.Tex.,2007) ..... ............ 7 Perez v. Frank 433 F.Supp. 2d 955 (W.D. Wis. 2006) ............... ............ 7 Rapier v. Harris 172 F.3d 999 (7th Cir. 1999) ...................... ............ 7 Richardson v. Selsky 5 F.3d 615 (2nd Cir. 1993) ........................ ........... 12 Romero v. Kipsap County 931 F.2d 624 (9th Cir. 1991) ...................... ........... 12 Smith v. Allen 502 F.3d 1255 (11th Cir. 2007) .................... ........ 9, 10 Smith v. Haley 401 F.Supp.2d 1240 (M.D.Ala.2005) ................. ............ 9 Spratt v. Rhode Island Dept. Of Corrections 482 F.3d 33 (1st Cir. 2007) ....................... ........... 10 Standing Deer v. Carlson 831 F.2d 1525 (9th Cir. 1987) ..................... ......... 7, 8 Sweaney v. Ada County 119 F.3d 1385 (9th Cir. 1997) ..................... ........... 11 Terry v. Ohio 392 U.S. 1 (1968) ................................. ............ 3 Toles v. Young 2002 WL 32591568, *9 (W.D. Va. 2002) .............. ............ 8 Case 8:07-cv-01012-DOC -MLG Document 15 Filed 01/08/08 Page 6 of 28 Page ID #:10 REPLY TO OPPOSITION RE MOTION TO DISMISS vi 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page Trujillo v. Ontario 428 F.Supp.2nd 1094 (CD Cal 2006) ................. ........... 17 Ward v. Dyke 58 F.3d 271 (6th Cir. 1995) ....................... ........... 12 Warsoldier v. Woodford 418 F.3d 989, 996 (9th Cir. 2005) ................. ............ 8 Statutes 18 U.S.C. § 3626................................... ............. 4 42 U.S.C. § 1983................................... ............. 4 42 U.S.C. § 1997................................... ............. 3 42 U.S.C. § 2000cc et seq.......................... ........ passim 42 U.S.C. § 2000cc-1(a)............................ .......... 3, 4 42 U.S.C. § 2000cc-1(b)(1)......................... ............ 10 California Government Code § 820.2................. ........ passim California Government Code § 820.8................. ......... 2, 14 Other Authorities California Constitution, Article I, Section 4...... ...... 1, 2, 14 Prison Litigation Reform Act....................... ........ passim Case 8:07-cv-01012-DOC -MLG Document 15 Filed 01/08/08 Page 7 of 28 Page ID #:11 REPLY TO OPPOSITION RE MOTION TO DISMISS 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. SUMMARY OF ARGUMENTS. Plaintiff’s First Amended Complaint (hereinafter “F AC”) names as Defendants the County of Orange, Sheriff M ichal Carona and Sheriff’s Department Captain Brian Cossairt. T he FAC sets forth five separate causes of action: 1. 42 U.S.C. § 2000cc et seq. (“RLUIPA” or “The Act”); 2. Violation of the First Amendment; 3. Violation of California Constitution, Article I, Section 4; 4. Intentional Infliction of Emotional Distress; and 5. Negligence. RLUIPA applies to persons who are “residing in or c onfined to an institution.” The court lockup is simply not an “institution” as contemplated by The Act. Plaintif f’s argument that “confinement alone” is enough to trigger The A ct simply reads out of the analysis the requirement that a pl aintiff be “residing in or confined to an institution.” The Act, like the First Amendment, requires that th e government impose a “substantial burden” on the exe rcise of religion. As with the requirement of confinement to an institution, Plaintiff’s argument ignores the requi rement that the imposition be “substantial.” Plaintiff asserts that the imposition was substantial and “completed with the forced removal of her hijab.” Plaintiff has not cited authority, nor is there authority for the proposition that requiring the re moval of a Case 8:07-cv-01012-DOC -MLG Document 15 Filed 01/08/08 Page 8 of 28 Page ID #:12 REPLY TO OPPOSITION RE MOTION TO DISMISS 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 head scarf for a matter of hours constitutes a “sub stantial burden” under either RLUIPA or the First Amendment. Additionally, RLUIPA which was passed by Congress u nder its spending powers does not provide for a cause of act ion against individuals such as Sheriff Carona and Captain Coss airt. Plaintiff attempts to turn the qualified immunity a nalysis on its head by arguing that Defendants have failed to cite case law for the proposition that the alleged acts of Sh eriff Carona and Captain Cossairt were not prohibited by “clearl y established law.” Ninth Circuit authority clearly places upon Plaintiff the burden of showing that the alleged unlawful practic e was proscribed by clearly established law at the time i n question, something which plaintiff has utterly failed to do. Nor has Plaintiff cited any authority for the propo sition that California Constitution, Article I, Section 4 provides a cause of action for damages. Additionally, Plaintiff has failed to allege, and c annot credibly allege, that Sheriff Carona and Captain Co ssairt engaged in any “outrageous conduct” as required for a claim of intentional infliction of emotional distress. Addi tionally, Sheriff Carona and Captain Cossairt are entitled to immunity under California Government Code §§ 820.2 and 820.8 from liability for plaintiff’s state law claims. Finally, Plaintiff has not demonstrated the requisi te standing to authorize her request for equitable rel ief. According, the FAC must be dismissed. /// /// Case 8:07-cv-01012-DOC -MLG Document 15 Filed 01/08/08 Page 9 of 28 Page ID #:13 REPLY TO OPPOSITION RE MOTION TO DISMISS 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. THE COURTHOUSE LOCKUP IS NOT A “PRETRIAL DETENT ION FACILITY” AS ENVISIONED BY RLUIPA . A. Plaintiff’s Argument That “Confinement Alone” Trigg ers The Protections Of RLUIPA Is Unsupported And Contra ry To The Purpose Of The Act . In order to invoke the protections of RLUIPA, Plain tiff must show that at the time of the alleged wrongful condu ct, she was “residing in or confined to an institution.” 42 U. S.C. § 2000cc- 1(a). Plaintiff does not argue that she was “resid ing in” an institution. Rather, she relies upon the language of 42 U.S.C. § 1997 of the Prison Litigation Reform Act (hereinaft er “PLRA”) which includes “pretrial detention facility” as par t of the definition for “institution”. Recognizing the absence of any authority for the pr oposition that a courthouse lockup is an “institution”, Plain tiff argues that “confinement alone is enough to merit protection un der RLUIPA.” (Opp., 5:21-22). In other words, Plaintiff total ly ignores the requirement that she be in an “institut ion” and argues that a mere detention, if accompanied by som e form of “confinement,” triggers the protections of RLUIPA. This argument ignores the numerous circumstances where an individ ual is “detained and confined” but not “institutionalized. ” Indeed, under Plaintiff’s argument, a criminal suspect subj ected to a temporary detention under Terry v. Ohio , 392 U.S. 1 (1968) who is confined to a police car for fifteen minutes would be subject to protections of RLUIPA. Clearly, Congress did not i ntend RLUIPA to apply so broadly. If it had, there would be no requirement that a plaintiff be “residing in or confined to an institution.” Case 8:07-cv-01012-DOC -MLG Document 15 Filed 01/08/08 Page 10 of 28 Page ID #:14 REPLY TO OPPOSITION RE MOTION TO DISMISS 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 All that would be required is that the States not i mpose a substantial burden upon an individual’s religious p ractices under color of law. Of course, that was addressed long a go in 42 U.S.C. § 1983, i.e., that State actors not violate the constitutional rights of individuals under color of law. Clearly, mere confinement alone is not enough to tr igger RLUIPA. Accordingly, Plaintiff cannot proceed on h er First Cause of Action. B. Plaintiff Was Not A Pretrial Detainee And A “Pre trial Detention Facility” Connotes More Than A Temporary Detention In A Courthouse Lockup . As set forth in the moving papers, RLUIPA applies t o persons “residing in or confined to an institution.” 42 U. S.C. § 2000cc- 1(a). RLUIPA defers to the PLRA in defining “Insti tution,” and includes within this definition of institution a “p retrial detention facility.” See , 18 U.S.C. § 3626. First of all, Plaintiff was not a pretrial detainee ; she was not awaiting trial. She had been convicted and sen tenced. The PLRA was intended to address, among other thing s, the avalanche of frivolous lawsuits filed by inmates re garding conditions of confinement. Accordingly, the defini tion of “institution” under the PRLA includes pretrial dete ntion facilities. This is because detentions of inmates awaiting trial can be lengthy and result in lawsuits relating to c onditions of confinement. The same cannot be said of courthouse lockup facilities. Courthouse lockups are used for tempor ary Case 8:07-cv-01012-DOC -MLG Document 15 Filed 01/08/08 Page 11 of 28 Page ID #:15 REPLY TO OPPOSITION RE MOTION TO DISMISS 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 detentions. 1 Rarely do such detentions result in “conditions o f confinement” lawsuits. Notably, Plaintiff has failed to cite a single case under RLUIPA defining a courthouse lockup as an “institut ion.” Indeed, Plaintiff has failed to cite a single case under th e PRLA defining courthouse lockup as an “institution.” C. Plaintiff’s Reliance Upon Comments By An Orange County Grand Jury Demonstrates That Plaintiff’s Argument I s Unsupportable . Plaintiff refers to an Orange County Grand Jury Rep ort as support for her argument that a courthouse lockup i s a “pretrial detention facility” under RLUIPA. 2 The fact that Plaintiff has had to go to such lengths to characterize the court lockups as an “institution” demonstrates just how unsupportable h er position is. Whether the courthouse lockup is a “pretrial detent ion facility” is a question of federal law. A county g rand jury is not a law-making body of government. Nor is a county grand jury an arm of county governm ent. Consequently, it does not have authority to set pol icies for the County. There is no assertion by Plaintiff, nor could Plain tiff truthfully make such an argument, that the county g rand jury 1 The Orange County Grand Jury Report referenced in the Opposition papers notes that “lockups are to be use d for detentions not exceeding 12 hours.” 2 Plaintiff does not argue that the county grand jur y can determine what an institution is for purposes of RL UIPA. Plaintiff simply argues that the grand jury yeport “demonstrates Case 8:07-cv-01012-DOC -MLG Document 15 Filed 01/08/08 Page 12 of 28 Page ID #:16 REPLY TO OPPOSITION RE MOTION TO DISMISS 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 report was addressing RLUIPA or issues relating to religious observances by the county jails. Finally, even if the grand jury report had some rel evance, it does not support Plaintiff’s position. The Report states: “There are basically five types of detention facilities…where inmates may be detained…A COURT HOLDING FACILITY IS A SECURED DETENTION FACILITY LOCATED WITHIN A COURT BUILDING USED FOR THE CONFINEMENT OF PERSONS SOLELY FOR THE PURPOSE OF A COURT APPEARANCE FOR A PERIOD NOT TO EXCEED 12 HOURS.” The fact that a court holding facility is not inten ded for confinement exceeding 12 hours further confirms Def endants’ position that courthouse lockups are not covered by The Act. The danger of depriving inmates of the right to religio us exercise is simply not as great in these temporary detention fa cilities as it is in prisons and jails where inmates are awaiting trial or serving sentences. Persons in courthouse lockups a re not “residing in or confined to an institution.” III. THE DEPRIVATION OF PLAINTIFF’S HIJAB FOR LESS THAN EIGHT HOURS DID NOT CONSTITUTE A SUBSTANTIAL BURDEN ON HER RIGHT TO PRACTICE RELIGION . In her Reply, Plaintiff refuses to recognize that “ duration” is, in most cases, a fundamental component in deter mining whether an imposition on a religious exercise is “substanti al.” Indeed, that the County considers the courthouse holding facility equivalent to “jail.” (Opp., 4:12-13) (emphasis ad ded). Case 8:07-cv-01012-DOC -MLG Document 15 Filed 01/08/08 Page 13 of 28 Page ID #:17 REPLY TO OPPOSITION RE MOTION TO DISMISS 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff goes so far as to assert that the substan tial burden element was “completed with the forced removal of h er hijab” and that she was “wholly prevented [] from observing he r faith.” (Opp., 7:17-18; 8:16-18.) Numerous cases addressing short-term deprivations a nalogous to Plaintiff’s claim have recognized that the durat ion of the denial plays a central role in determining whether there was a substantial burden on the right to religious exerci se. See , Dunlap v. Losey , 40 Fed.Appx. 41, 43, 2002 WL 1001027, *2 (C.A.6 (Mich. (C.A.6 (Mich.),2002) (holding that the temp orary deprivation of an inmate’s hardcover Bible did not coerce him into action contrary to his beliefs and was insuffi cient to state a claim under RLUIPA); Newby v. Pate , 2007 WL 2791455, *9 (N.D.Tex.)(N.D.Tex.,2007) (holding that the tempora ry confiscation of the inmate’s religious properties d id not violate RLUIPA); Standing Deer v. Carlson , 831 F.2d 1525 (9th Cir. 1987) (holding that a ban on religious headgear while din ing did not violate the free exercise provision of the First Am endment); Perez v. Frank , 433 F.Supp. 2d 955, 964 (W.D. Wis. 2006) (recognizing that a delay in replacing an inmate’s prayer oil would be insufficient to support a claim that his f ree exercise right had been violated); Rapier v. Harris , 172 F.3d 999, 1006 n. 4 (7th Cir. 1999) (holding that the unavailability of pork-free meals on three out of 810 occasions constituted onl y a de minimis burden on prisoner's religion). Plaintiff also fails to meaningfully distinguish St anding Deer which upheld the deprivation of religious headgear in a dining hall notwithstanding the argument asserted b y the Case 8:07-cv-01012-DOC -MLG Document 15 Filed 01/08/08 Page 14 of 28 Page ID #:18 REPLY TO OPPOSITION RE MOTION TO DISMISS 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 plaintiff that the headbands had special religious significance for Native Americans “and that even brief interrupt ions in this practice seriously intrude[d] upon their religious beliefs.” 831 F.2d at 1527. In support of her position, Plaintiff only cites ca ses involving the forced removal of body hair in prison contrary to the inmates’ religious beliefs. (Opp., 19:2-11) (c iting Warsoldier v. Woodford , 418 F.3d 989, 996 (9th Cir. 2005) (prison policy required a Native American inmate to cut his hair); Mayweathers v. Terhune , 328 F.Supp.2d 1086 (E.D. Cal. 2004) (prison’s grooming regulation forced a Muslim inmat e to shave his beard); Collins-Bey v. Thomas , 2004 WL 2381874, *1 (N.D. Ill. 2004) (prison’s grooming policy prohibited a Mooris h-American Muslim from having long hair); Toles v. Young , 2002 WL 32591568, *9 (W.D. Va. 2002) (prison’s policy required a Hebr ew Israelite inmate to cut his hair and shave his beard before e ntering the facility). Cases involving the forced removal of b ody hair are a far cry from the instant case. For example, in War soldier , the forced cutting of a Native American’s hair involved an imposition on the inmate which had implications starting long before and continuing long after the temporal act of hair cutt ing. Unlike the removal of an article of clothing, cutting of a person’s hair cannot be immediately reversed by simply “putting i t back on.” The effects last long after the initial act and, sy mbolically, extend to a point long before the act. Essentially , it is the duration and lasting effects of the acts which dist inguish Plaintiff’s cited cases from the instant case and m ost analogous authorities. Case 8:07-cv-01012-DOC -MLG Document 15 Filed 01/08/08 Page 15 of 28 Page ID #:19 REPLY TO OPPOSITION RE MOTION TO DISMISS 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The removal of Plaintiff’s hijab in the instant cas e was a temporary deprivation which lasted a matter of hour s, after which Plaintiff was returned to her status quo. IV. PLAINTIFF MAY NOT BRING A CLAIM FOR MONETARY DA MAGES UNDER RLUIPA AGAINST DEFENDANTS CARONA AND COSSAIRT IN THEIR INDIVIDUAL CAPACITIES . Defendants contend that RLUIPA does not authorize a suit for damages against an individual in his individual cap acity since RLUIPA was passed by Congress pursuant to its spend ing powers. 3 Plaintiff argues that Defendants Carona and Cossair t can be sued in their individual capacities since the term “government” in RLUIPA includes the definition of “persons actin g under color of state law.” Plaintiff cites only District Court cases to support her position. The District Courts, however , are split on the issue. Indeed, many District Courts have found that RLUIPA does not authorize suits for damages against indivi duals. See generally, Brown v. Department of Corrections Penns ylvania , 2007 WL 4322980, *16 (W.D.Pa., 2007); Gooden v. Crain , 405 F.Supp.2d 714, 723; Boles v. Neet , 402 F.Supp.2d 1237, 1241 (D.Colo.2005); Smith v. Haley , 401 F.Supp.2d 1240, 1246 (M.D.Ala.2005). The only Circuit decision on this issue is Smith v. Allen , 502 F.3d 1255 (11th Cir. 2007). In Smith , the Eleventh Circuit held that RLUIPA does not authorize a cause of acti on against an individual in his individual capacity. Id. at 1275. Recognizing 3 Defendants do not contest the claims against Defen dant Carona and Cossairt in their official capacities because t hose are not claims “against the official personally, for the re al party in interest is the [public] entity” Orange County. Ke ntucky v. Graham, 473 U.S. 159, 165-166 (1985). Case 8:07-cv-01012-DOC -MLG Document 15 Filed 01/08/08 Page 16 of 28 Page ID #:20 REPLY TO OPPOSITION RE MOTION TO DISMISS 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that Congress enacted RLUIPA pursuant to its spendi ng power, the court reasoned that only grant recipients, and not their employees, are amenable to suit as a condition of r eceiving funds. Id. at 1275. The court emphasized that “Congress cann ot use its spending power to subject a non-recipient o f federal funds, including a state official acting [in] his o r her individual capacity, to private liability for monet ary damages.” Id. at 1273. This limitation on RLUIPA was recognized by the First Circuit, which stated, “[w]hereas RFRA had ap plied to all actions by ‘Government,’ RLUIPA is substantially na rrower in scope, and [it] ... applies only to ‘a program or a ctivity [in an institution] that receives Federal financial assist ance.’” 42 U.S.C. § 2000cc-1(b)(1); Spratt v. Rhode Island Dep t. Of Corrections , 482 F.3d 33, 37 (1st Cir. 2007) (alteration added ) (alteration in original). RLUIPA applies to public entities that receive fede ral funds, not individuals who do not receive such bene fits. Accordingly, Plaintiff cannot sue Defendants Carona and Cossairt in their individual capacities under RLUIPA. V. AS TO THE QUALIFIED IMMUNITY DEFENSE, PLAINTIFF HAS FAILED TO CARRY HER BURDEN OF SHOWING THAT THE LAW WAS CLEARLY ESTABLISHED AT THE TIME DEFENDANTS CARONA AND COSSAIRT WERE REQUIRED TO ACT. Plaintiff asserts that qualified immunity should n ot be granted on a motion to dismiss. Just the opposite is true. Qualified immunity is an immunity from suit, not ju st a defense to liability. Accordingly, qualified immunity can be raised at Case 8:07-cv-01012-DOC -MLG Document 15 Filed 01/08/08 Page 17 of 28 Page ID #:21 REPLY TO OPPOSITION RE MOTION TO DISMISS 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 any stage of the proceedings. Behrens v. Pelletier , 516 U.S. 229, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996). In discussing the importance of deciding the issue of qualified immunity at the earliest possible stage o f litigation, the United States Supreme Court in Hunter v. Bryant , 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991), st ated: “...because ‘[t]he entitlement is an immunity from suit rather than a mere defense to liability,’ Mitchell v. Forsyth, [supra ], we repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” (Emphasis in original). In Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), the Supreme Court stated tha t “until this threshold immunity question is resolved, discovery should not be allowed.” This is because the purpose of qualified immunity is to prevent insubstantial claims from interfering wi th the functions of public officials. Alexander v. County of Los Angeles , 64 F.3d 1315, 1319 n.2 (9th Cir. 1995) (“The prim ary concern in analyzing qualified immunity is whether the risk of monetary liability will inhibit officers in the dis charge of their duties.”) Not only must the law be clearly established regard ing the right allegedly violated, but it is the plaintiff’s burden of proving it so. See , Sweaney v. Ada County , 119 F.3d 1385, 1388 (9th Cir. 1997); Neely v. Feinstein , supra , 50 F.3d at 1509; Houghton v. Smith , 965 F.2d 1532, 1534 (9th Cir. 1992). A Case 8:07-cv-01012-DOC -MLG Document 15 Filed 01/08/08 Page 18 of 28 Page ID #:22 REPLY TO OPPOSITION RE MOTION TO DISMISS 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 plaintiff is required to offer more than general co nclusory allegations that defendants violated a constitution al or federal right (Backlund v. Barnhart , 778 F.2d 1386, 1389 (9th Cir. 1985); Neely v. Feinstein , supra ) and is required to show that the particular facts of his case involved a claim of cl early established law. Backlund v. Barnhart , supra ; Romero v. Kipsap County , 931 F.2d 624, 627 (9th Cir. 1991). In determining whether a right was clearly established at the time defendants acted, ‘the law must be clear in regard to the official’s particular actions in the particular situation.’ [citations] Ward v. Dyke , 58 F.3d 271, 273 (6th Cir. 1995). A District Court decision will not ordinarily “‘cle arly establish’ the law even of its own circuit, much le ss that of other circuits.” Hawkins v. Stingut , 829 F.2d 317, 321 (2nd Cir. 1987); accord, Brown v. Grabowski , 922 F.2d 1097 (3rd Cir. 1990), cert. denied, 111 S. Ct. 2287 (1991); Muhammad v. Wainwright , 839 F.2d 1422, 1425 (11th Cir. 1987). “Although distri ct judges within a particular circuit will frequently find ea ch other’s decisions persuasive, they remain free to disagree. ” Hawkins , 829 F.2d at 321. Disagreement among the District Court Judges is a s trong indicator that the law was not clearly established. Richardson v. Selsky , 5 F.3d 615, 623 (2nd Cir. 1993) (“The disparate rulings in [District Court] cases further confirm o ur conclusion that the issue was not clearly established within t his Circuit.”) Case 8:07-cv-01012-DOC -MLG Document 15 Filed 01/08/08 Page 19 of 28 Page ID #:23 REPLY TO OPPOSITION RE MOTION TO DISMISS 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff has utterly failed to carry her burden of showing that clearly established law precluded Sheriff Caro na and Captain Cossairt from acting as alleged, i.e., precluding a detainee in a court lockup from wearing a religious headscarf. P laintiff makes an analytical error discussed repeatedly in Supreme Court decisions on qualified immunity, i.e., she over-gen eralizes the right at issue. She merely alleges that RLUIPA had been “in existence for more than 6 years” at the time of the events in question and that “for years it [had] clearly estab lished that imposing a substantial burden on religious exercise is unlawful under RLUIPA… .” (Opp., 18:5-18). Most tellingly, Plaintiff states that “defendants cite no cases to support their argument that Mrs. Khatib’s right under RLUIPA to wear her h ijab in accordance with her religious beliefs was not clear ly established at the time of the violation.” (Opp., 20:2-4). Th is admission alone establishes the absence of clearly establishe d law. See , Klock v. Cain , 813 F.Supp 1430, 1431 n. 5 (CD Cal 1993) (The rul e [clearly established law] requires that some case-l aw precedent exist. The lack of merit to plaintiff’s motion is conceded by plaintiff’s own statement that, “there appears to b e no case directly on point to support this right.”) Plaintiff has failed to offer any analogous authori ty suggesting that her First Amendment rights or right s under RLUIPA were violated. A fortiori, it cannot be said that the law was “clearly established.” Accordingly, Defendants Car ona and Cossairt are entitled to qualified immunity with re gard to Plaintiff’s First and Second Causes of Action. Case 8:07-cv-01012-DOC -MLG Document 15 Filed 01/08/08 Page 20 of 28 Page ID #:24 REPLY TO OPPOSITION RE MOTION TO DISMISS 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VI. PLAINTIFF HAS FAILED TO SHOW WHY THIS COURT SHO ULD CREATE A CAUSE OF ACTION UNDER ARTICLE I, SECTION 4 OF THE C ALIFORNIA CONSTITUTION. In response to Defendants’ argument that Article I, Section 4 of the California Constitution does not authorize a cause of action for damages, Plaintiff states “ no California court has foreclosed the possibility of private damages for such violations.” (Opp., 20:15-17(emphasis added)). Plaintiff cites absolutely no authority supporting such a cause of action and does not even argue why this fe deral court should, in the first instance, recognize a cause of action under the California Constitution. In essence, Plaintiff has failed to state facts upo n which a claim may be based. The Third Cause of Action must be dismissed. VII. CALIFORNIA GOVERNMENT CODE SECTION 820.2 AND 8 20.8 PROVIDE IMMUNITY FOR DEFENDANTS CARONA AND COSSAIRT. Plaintiff concedes that the Fourth and Fifth Cause s of Action should be dismissed against the County but c laims that Defendants Carona and Cossairt are not entitled to immunity since they were allegedly engaged in “operational” or “mi nisterial” decisions. (Opposition, p.21 fn 16.) Plaintiff is incorrect. California Government Code § 820.8 establishes tha t public employees (Carona and Cossairt) cannot be liable on a respondeat superior basis for the acts of subordinates. When considered in conjunction with California Government Code § 820.2 and the allegations in the Complaint, it is clear that Defe ndants Carona and Cossairt cannot be liable under state law (Thir d, Fourth and Fifth Causes of Action). Case 8:07-cv-01012-DOC -MLG Document 15 Filed 01/08/08 Page 21 of 28 Page ID #:25 REPLY TO OPPOSITION RE MOTION TO DISMISS 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 While Plaintiff attempts to plead around the afore mentioned immunities by claiming that Defendants Carona and C ossairt were acting at the “operational” or “ministerial” level, it is clear that neither had any personal involvement and both were acting at the decisional level, thereby entitling them to imm unity under § 820.2. Nowhere in the Complaint is there an allegation th at either Sheriff Carona or Captain Cossairt had any personal involvement with Plaintiff. The Complaint alleges that Sheriff Carona “manages and supervises the OCSD and all of its div isions, including the Court Operations Division.” (FAC, ¶5 ). Likewise, the Complaint alleges that Captain Cossairt “manage s the Court Operations Division of the OCSD, which staffs and o perates the holding facilities at the Orange County Superior Co urts.” (Id. at ¶6.) While the Complaint alleges that a custom, practic e or policy of the County regarding the use of religious head coverings was “implemented by the OCSD, Defendant C arona, [and] Defendant Cossairt,” the Complaint avoids alleging who the pertinent policy-maker would be. As an elected off icial, Sheriff Carona is the policy maker for the Orange County Sh eriff’s Department. Likewise, as is clear from the FAC, Ca ptain Cossairt is at the policy making or decisional level, exerci sing such authority over the Court Operations Division. The cases cited by Plaintiff in opposition to the motion support Defendants’ argument. The first is Martine z v. City of Los Angeles , 141 F.3d 1373 (9th Cir. 1998). In that case, Los Angeles Police Officers were seeking discretionary immunity from Case 8:07-cv-01012-DOC -MLG Document 15 Filed 01/08/08 Page 22 of 28 Page ID #:26 REPLY TO OPPOSITION RE MOTION TO DISMISS 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 state law claims arising from the Plaintiff’s alleg ed illegal arrest and false imprisonment. The Ninth Circuit h eld that discretionary immunity under California Government Code § 820.2 did not immunize the police officers from liability for negligently conducting an investigation which resul ted in the arrest of the plaintiff. Notably, however, the Cou rt’s language indicates that the officers, regardless of rank, wo uld be immune with regard to their decisions to act. “There is no immunity “if the injury…results, not from the employee’s exercise of discretion vested in him to undertake the act, but from his negligence in performing it after having made the discretionary decision to do so.” [citation omitted] Applying this Rule, the California Supreme Court has held that even if a police officer exercises his discretion in deciding to investigate an automobile accident, he may be liable for negligently conducting that investigation. [citation]” 141 F.3d at 1379. The allegations against Sheriff Carona and Captain Cossairt relate to their decisions to act, not the negligent performance of ministerial acts. In Caldwell v. Montoya , 10 Cal.4th 972 (1995). The California Supreme Court held that immunity under § 820.2 precluded school board members from being liable fo r their decision to fire a school superintendent. Relying upon one of its prior decisions, the Caldwell Court noted that: Case 8:07-cv-01012-DOC -MLG Document 15 Filed 01/08/08 Page 23 of 28 Page ID #:27 REPLY TO OPPOSITION RE MOTION TO DISMISS 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “ Johnson concluded, a “workable definition” of immune discretionary acts draws the line between “planning” and “operational” functions of government.” 10 Cal.4th at 981. The Court went on to note: “Of course, basic policy decisions entitled to immunity under Section 820.2 are not limited to strictly legislative or regulatory issues. ...It is well-settled that the more general immunity for discretionary acts also extends to fundamental decisions within the executive or administrative authority of the agency or official E.G. Thompson v. County of Alameda , supra , 27 Cal.3rd 741, 747 – 748 [decision to release juvenile offender]; Johnson , supra , 69 Cal.2d 782, 795 [decision to parole youthful offender]; Lipman , supra , 55 Cal.2d 224, 230 [personnel issues].” Id. at 983 fn. 5. Nor is Plaintiff’s citation to Barner v. Leeds , 24 Cal.4th 676 (2000) of any assistance in resolving this issu e. Barner addressed whether a public defender is entitled to discretionary immunity relating to the decisions made during the course of representation of a criminal defendant. Likewise, Trujillo v. Ontario , 428 F.Supp.2nd 1094 (CD Cal 2006) adds nothing to the analysis since it arrives at the same conclusion as Martinez , i.e., that a police officer is not entitled to disc retionary Case 8:07-cv-01012-DOC -MLG Document 15 Filed 01/08/08 Page 24 of 28 Page ID #:28 REPLY TO OPPOSITION RE MOTION TO DISMISS 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 immunity for decisions made during the course of a criminal investigation. Plaintiff alleges no personal involvement by Defend ants Carona or Cossairt beyond alleged responsibility fo r the supervision of subordinates. The California Courts have held, and have not been overruled in holding, that person nel related decisions are shielded by the immunity provided und er § 820.2. Kemmerer v. County of Fresno , 200 Cal.App.3d 1426 (1988); Martinez , supra ; Lipman v. Brisbane Elementary School Dist. , 55 Cal.2d 244, (1961). Alternatively, if Plaintiff’s allegation is based upon the policy-making authority of the indiv idual Defendants, they are likewise immune under § 820.2. VIII. PLAINTIFF FAILS TO DEMONSTRATE THAT DEFENDANT S’ CONDUCT WAS SUFFICIENTLY OUTRAGEOUS TO SUSTAIN A CLAIM FOR INTE NTIONAL INFLICTION OF EMOTIONAL DISTRESS . As set forth in the moving papers, a necessary el ement of a cause of action under state law for intentional inf liction of emotional distress is “outrageous conduct” by the D efendant. The only alleged wrongful conduct of Defendants Ca rona and Cossairt is their alleged failure to supervise and/ or their implementation of a policy precluding the use of re ligious headscarfs while at the courthouse lockup. Plainti ff has not been able to cite a single case to demonstrate that she was subjected to any unlawful conduct. Given that the conduct is not even demonstrably unlawful, it can hardly be said t hat it is outrageous, i.e., so extreme as to exceed all bound s of that which is usually tolerated in a civilized community . Cervantes Case 8:07-cv-01012-DOC -MLG Document 15 Filed 01/08/08 Page 25 of 28 Page ID #:29 REPLY TO OPPOSITION RE MOTION TO DISMISS 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. JC Penney Co. , 24 Cal.3d 579, 593 (1979). Accordingly, the Fourth Cause of Action must be dismissed. IX. PLAINTIFF HAS NO STANDING TO SEEK EQUITABLE REL IEF . Plaintiff unsuccessfully attempts to distinguish t he holding in City of Los Angeles v. Lyons , 461 U.S. 95 (1983) by arguing that she could face “immediate danger of irreparabl e injury” for engaging in “entirely innocent conduct” such as fai ling to carry a valid California Driver’s License. (Opp., 24:19. ) Plaintiff’s contention has no merit in light of her admission t hat “[i]t is Plaintiff’s status of being on probation that subje cts her to the very real threat of incarceration.” (Opp., 25:8-9. ) Probation is a privilege and not a right. In re Os slo , 51 Cal.2d 371, 377 (1958). Plaintiff’s agreement to t he terms of probation put her on notice that the failure to abi de by those terms could subject her to possible criminal penalt ies for the underlying crime . Thus, the likelihood that Plaintiff will be incarcerated in the future is no different than the plaintiff in Lyons . It depends entirely upon her own decision whethe r to abide by the law. Since, Plaintiff cannot demonstr ate an “immediate danger of irreparable injury” apart from being detained for her admitted violation of law, Plainti ff has no standing to seek equitable relief. /// /// /// /// /// /// Case 8:07-cv-01012-DOC -MLG Document 15 Filed 01/08/08 Page 26 of 28 Page ID #:30 REPLY TO OPPOSITION RE MOTION TO DISMISS 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 X. REQUESTED RELIEF . For the reasons set forth in the moving papers and as argued herein, the FAC should be dismissed. Respectfully submitted, DATED: January 8, 2008 FRANSCELL, STRICKLAND, ROBE RTS & LAWRENCE, PC By_______________________ DAVID D. LAWRENCE CHRISTINA M. SPRENGER Attorneys for Defendants, COUNTY OF ORANGE, SHERIFF MICHAEL S. CARONA and DEPUTY COSSAIRT Case 8:07-cv-01012-DOC -MLG Document 15 Filed 01/08/08 Page 27 of 28 Page ID #:31 REPLY TO OPPOSITION RE MOTION TO DISMISS 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA; COUNTY OF ORANGE I, Donna Adams, am employed in the aforesaid Count y, State of California; I am over the age of 18 years and no t a party to the within action; my business address is 500 North State College Blvd., Suite 1350, Orange, California 92868. On January 8, 2008, I served the foregoing REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO DIS MISS on the interested parties in this action by placing a true copy thereof, enclosed in a sealed envelope, addressed as follows : Hector O. Villagra, Esq. Ranjana Natarajan, Esq. ACLU FOUNDATION OF SO. CALIF. 2140 W. Chapman, Suite 209 Orange, CA 92868 Telephone:(714)450-3962 Facsimile:(714)450-3969 Attorneys for Plaintiff Owais Qazi, Esq. Ellen Radovic, Esq. LAW OFFICES OF OWAIS QAZI 1785 Pomona Road, Ste. A Corona, CA 92880 Telephone: (951)273-0956 Facsimile: (951) 537-6570 Attorneys for Plaintiff Jennifer Mathis,Esq. Becki F. Kieffer, Esq. ROSS, DIXON & BELL, LLP 5 Park Plaza, Ste. 1200 Irvine, CA 92614-8592 Telephone: (949) 622-2700 Facsimile: (949) 622-2739 Attorneys for Plaintiff Michelle L. Palmer Deputy County Counsel HALL OF ADMINISTRATION P.O. Box 1379 Santa Ana, California 92702-1379 Telephone: (714) 834-3318 Facsimile: (714) 834-2359 Attorneys for Defendants Re Injunctive Relief Only BY MAIL: I am "readily familiar" with the firm's practice of collection and processing correspondence for mai ling. Under that practice, it would be deposited with the U.S. Postal Service on that same day with postage thereo n fully prepaid at Orange, California, in the ordinary cour se of business. X (BY ELECTRONIC TRANSMISSION) I caused such docume nt(s) to be transmitted electronically (faxed) via telecopy to the addressee at telecopy number listed above. X (Federal) I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on January 8, 2008, at Orange, California . ________________________ Declarant Case 8:07-cv-01012-DOC -MLG Document 15 Filed 01/08/08 Page 28 of 28 Page ID #:32