Hazle v. Crofoot

• Decision Date: 23 August 2013
• Docket Number: No. 11–15354.,11–15354.
• Citation: 727 F.3d 983
• Parties: Barry A. HAZLE, Jr., Plaintiff–Appellant, v. 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 Jallins, Individually and as Deputy Commissioner; Westcare, A Nevada Non–Profit Corporation, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

727 F.3d 983

Barry A. HAZLE, Jr., Plaintiff–Appellant,

v.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 Jallins, Individually and as Deputy Commissioner; Westcare, A Nevada Non–Profit Corporation, Defendants–Appellees.

No. 11–15354.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 12, 2013.

Filed Aug. 23, 2013.

John G. Heller (argued) and Suhani Kamdar, Rogers Joseph O'Donnell, San Francisco, CA; Carol D. Quackenbos, Brisbane, CA; Philip A. Leider, Chapman Popik & White, LLP, San Francisco, CA, for Plaintiff–Appellant.

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, CA, for Defendants–Appellees Mitch Crofoot, Brenda 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, CA; Wayne H. Maire, Maire & Burgess, Redding, CA, for Defendant–Appellee Westcare California, Inc.

Appeal from the United States District Court for the Eastern District of California, Garland E. Burrell, Jr., Senior District Judge, Presiding. D.C. No. 2:08–cv–02295–GEB–EFB.

Before: DOROTHY W. NELSON, STEPHEN REINHARDT, and MILAN D. SMITH, JR., Circuit Judges.

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.

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 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 returninghim 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 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 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 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,...