Your SlideShare is downloading. ×
Quillar v. California Department of Corrections, Case No. 08-15414, Filed Jan. 28, 2010 (9th Cir.)
Upcoming SlideShare
Loading in...5
×

Thanks for flagging this SlideShare!

Oops! An error has occurred.

×

Introducing the official SlideShare app

Stunning, full-screen experience for iPhone and Android

Text the download link to your phone

Standard text messaging rates apply

Quillar v. California Department of Corrections, Case No. 08-15414, Filed Jan. 28, 2010 (9th Cir.)

67
views

Published on

I wrote this successful appellate brief for California prisoner claiming violations of Religious Land Use and Institutionalized Persons Act of 2000.

I wrote this successful appellate brief for California prisoner claiming violations of Religious Land Use and Institutionalized Persons Act of 2000.

Published in: Law

0 Comments
0 Likes
Statistics
Notes
  • Be the first to comment

  • Be the first to like this

No Downloads
Views
Total Views
67
On Slideshare
0
From Embeds
0
Number of Embeds
0
Actions
Shares
0
Downloads
1
Comments
0
Likes
0
Embeds 0
No embeds

Report content
Flagged as inappropriate Flag as inappropriate
Flag as inappropriate

Select your reason for flagging this presentation as inappropriate.

Cancel
No notes for slide

Transcript

  • 1. Case 08-15414 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ____________________________________________ LEE V. QUILLAR Plaintiff-Appellant v. CALIFORNIA DEPARTMENT OF CORRECTIONS, et al., Defendants-Appellees ____________________________________________ On Appeal from the United States District Court For the Eastern District of California Case No. 2:04-CV-01203-FCD-KJM The Honorable Frank C. Damrell, Jr. ____________________________________________ PLAINTIFF-APPELLANT’S OPENING REPLACEMENT BRIEF ____________________________________________ Steven H. Frankel (SBN 171919) Manuel Alvarez, Jr. (SBN 253874) SONNENSCHEIN NATH & ROSENTHAL LLP 525 Market Street, 26th Floor San Francisco, CA 94105 Tel: (415) 882-5000 Fax: (415) 882-0300 Attorneys for Plaintiff-Appellant LEE V. QUILLAR Case: 08-15414 01/28/2010 ID: 7212229 DktEntry: 27-1 Page: 1 of 37
  • 2. - i - TABLE OF CONTENTS Page TABLE OF CONTENTS.......................................................................................... i TABLE OF AUTHORITIES ................................................................................ iii JURISDICTIONAL STATEMENT ......................................................................... 1 ISSUES PRESENTED FOR REVIEW .................................................................... 1 STATEMENT OF THE CASE................................................................................. 2 STATEMENT OF FACTS ....................................................................................... 3 SUMMARY OF ARGUMENT................................................................................ 7 ARGUMENT ........................................................................................................... 9 I. THE DISTRICT COURT ABUSED ITS DISCRETION BY DENYING QUILLAR’S REQUESTS FOR APPOINTMENT OF COUNSEL ...................................9 II. THE DISTRICT COURT ABUSED ITS DISCRETION BY DENYING QUILLAR’S MOTION FOR DISCOVERY. ............................................................12 III. THE DISTRICT COURT ERRED IN DISMISSING QUILLAR’S CLAIMS FOR INJUNCTIVE RELIEF AGAINST DEFENDANTS MURRAY AND MENDOZA...........14 A. Quillar’s Complaint presented an actual case or controversy.............17 B. Quillar’s claims for injunctive relief are not barred by Heck v. Humphrey ..............................................................................20 C. Quillar’s claims for injunctive relief are not barred by Preiser v. Rodriguez ............................................................................22 D. Quillar’s claims for injunctive relief under RLUIPA conform to the letter and spirit of the Act..........................................................23 Case: 08-15414 01/28/2010 ID: 7212229 DktEntry: 27-1 Page: 2 of 37
  • 3. - ii - TABLE OF CONTENTS (cont'd) IV. THE DISTRICT COURT ERRED IN DISMISSING QUILLAR’S ACTION WITHOUT GRANTING LEAVE TO AMEND ........................................................27 CONCLUSION ...................................................................................................... 29 Case: 08-15414 01/28/2010 ID: 7212229 DktEntry: 27-1 Page: 3 of 37
  • 4. - iii - TABLE OF AUTHORITIES Page(s) FEDERAL CASES Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101 (9th Cir. 2004) ......................................................................10, 11 Baker v. McNeil Island Corrections Center, 859 F.2d 124 (9th Cir. 1988) ..............................................................................15 Burch v. Apalachee Community Mental Health Servs., 840 F.2d 797 (11th Cir. 1988) ............................................................................25 Chapman v. Houston Welfare Rights Organization, 441 U.S. 600 (1979)............................................................................................25 City of Erie v. Pap’s A.M., 529 U.S. 277 (2000)............................................................................................18 Estelle v. Gamble, 429 U.S. 97 (1976)..............................................................................................26 Firemen’s Fund Ins. Co. v. City of Lodi, 302 F.3d 928 (9th Cir. 2002) ..............................................................................15 Gillespie v. Civiletti, 629 F.2d 637 (9th Cir. 1980) ........................................................................13, 14 Haines v. Kerner, 404 U.S. 519 (1972)............................................................................................27 Heck v. Humphrey, 512 U.S. 477 (1994).....................................................................................passim Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621 (9th Cir. 1988) ..............................................................................14 L.A. v. Lyons, 461 U.S. 95 (1983)..............................................................................................17 Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000) ............................................................................14 Case: 08-15414 01/28/2010 ID: 7212229 DktEntry: 27-1 Page: 4 of 37
  • 5. - iv - TABLE OF AUTHORITIES (cont’d) Mayweathers v. Newland, 314 F.3d 1062 (9th Cir. 2002) ............................................................................26 Mayweathers v. Terhune, 328 F.Supp.2d 1086 (E.D. Cal. 2004) ................................................................24 Noll v. Carlson, 809 F.2d 1446 (9th Cir. 1986) ............................................................................28 Preiser v. Rodriguez, 411 U.S. 475 (1973).....................................................................................passim Procunier v. Martinez, 416 U.S. 396 (1974)............................................................................................26 Solis v. County of Los Angeles, 514 F.3d 946 (9th Cir. 2008) ....................................................................9, 11, 12 State Dep’t of Soc. Servs. v. Leavitt, 523 F.3d 1025 (9th Cir. 2008) ............................................................................13 Streit v. County of L.A., 236 F.3d 552 (9th Cir. 2001) ..............................................................................26 United States v. Sumner, 226 F.3d 1005 (9th Cir. 2000) ............................................................................20 Wakefield v. Thompson, 177 F.3d 1160 (9th Cir. 1999) ............................................................................13 Warsoldier v. Woodford, 418 F.3d 989 (9th Cir. 2005) ....................................................................4, 19, 27 STATE CASES People v. Hernandez, 229 Cal. App. 2d 143 (1964) ..........................................................................8, 23 People v. Howard, 79 Cal. App. 3d 46 (1978) ..................................................................................23 Case: 08-15414 01/28/2010 ID: 7212229 DktEntry: 27-1 Page: 5 of 37
  • 6. - v - TABLE OF AUTHORITIES (cont’d) FEDERAL STATUTES 28 U.S.C. § 1291........................................................................................................1 28 U.S.C. § 1294........................................................................................................1 28 U.S.C. § 1331........................................................................................................1 28 U.S.C. § 1915A.....................................................................................................4 42 U.S.C. § 1983...............................................................................................passim 42 U.S.C. §§ 2000cc et seq...............................................................................passim FEDERAL RULES OF CIVIL PROCEDURE Rule 12(b)(6)..........................................................................................................2, 5 Rule 26(d).................................................................................................................13 Rule 45 .....................................................................................................................13 STATE REGULATIONS Cal. Code Regs. tit. 15, § 2281 ................................................................................19 Cal. Code Regs. tit. 15, § 3326 ................................................................................18 LEGISLATIVE HISTORY 146 Cong. Rec. S7774-01 (July 27, 2000)...............................................................26 Case: 08-15414 01/28/2010 ID: 7212229 DktEntry: 27-1 Page: 6 of 37
  • 7. - 1 - JURISDICTIONAL STATEMENT Plaintiff-Appellant Lee V. Quillar (“Quillar”) brought this pro se civil rights action under 42 U.S.C. § 1983 and 42 U.S.C. §§ 2000cc et seq., the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”). (Excerpts of Record (“ER”) 0102-17.) The District Court had federal question jurisdiction under 28 U.S.C. § 1331. Quillar timely appealed from the District Court’s February 7, 2008 judgment on February 19, 2008. (ER 0001, 0028-29.) This Court has appellate jurisdiction under 28 U.S.C. §§ 1291 and 1294. ISSUES PRESENTED FOR REVIEW 1. Whether the District Court abused its discretion by denying Quillar’s motions requesting appointment of counsel? 2. Whether the District Court abused its discretion by denying Quillar’s motion seeking authorization to take limited discovery to ascertain defendant R.D. Rowlett’s possible successor or representative? 3. Whether the District Court erred in dismissing Quillar’s claims for injunctive relief against defendants S. Murray and J. Mendoza? a. Whether Quillar’s claims for injunctive relief under RLUIPA are moot? b. Whether Quillar’s claims for injunctive relief under RLUIPA are barred by Heck v. Humphrey, 512 U.S. 477 (1994)? Case: 08-15414 01/28/2010 ID: 7212229 DktEntry: 27-1 Page: 7 of 37
  • 8. - 2 - c. Whether Quillar’s claims for injunctive relief under RLUIPA are barred by Preiser v. Rodriguez, 411 U.S. 475 (1973)? 4. Whether the District Court erred in dismissing Quillar’s Complaint without granting leave to amend? STATEMENT OF THE CASE Between 2000 and 2005, while in custody at the California Medical Facility, Quillar received several disciplinary citations for wearing a beard in accordance with his Islamic faith, but in violation of a now-invalid and unconstitutional grooming policy barring male inmates from growing their hair longer than three inches. (ER 0107-10.) Acting pro se, Quillar filed a First Amended Complaint (“FAC” or “Complaint”) alleging violations of his civil rights under both 42 U.S.C. § 1983 and RLUIPA. (ER 0102-17.) The District Court determined that Quillar’s Complaint stated actionable claims for relief against defendants Rowlett, Murray and Mendoza, and directed that they be served with the Complaint. (ER 0018-22.) After being served with process, defendants Murray and Mendoza moved to dismiss the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (ER 0082-95.) In response to that motion, the District Court determined that Murray and Mendoza were immune from damages. (ER 0013-14.) Subsequently, the trial court dismissed Quillar’s action, concluding that Quillar’s claims for injunctive relief under RLUIPA were “speculative and not sufficiently Case: 08-15414 01/28/2010 ID: 7212229 DktEntry: 27-1 Page: 8 of 37
  • 9. - 3 - injurious for this court to retain jurisdiction over defendants . . . .” (ER 0014 at ln. 24-25.) Defendant Rowlett passed away and could not be served with process. (ER 0016-17.) After Quillar failed to identify a substitute party within a set time, the District Court proceeded to dismiss his entire Complaint without leave to amend because no defendants remained. (ER 0002-03, 0004-06.) Quillar timely filed a notice of appeal from the District Court’s judgment. (ER 0028-29.) On July 6, 2009, this Court directed the appointment of pro bono counsel to assist Quillar with this appeal, directing counsel to: [A]ddress whether appellant’s claims for injunctive relief under the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq., are moot or barred by Heck v. Humphrey, 512 U.S. 477 (1994), and if not, whether the district court should have granted leave to amend or to add an official party defendant. (July 6, 2009 Order, Docket No. 15.) Pursuant to that order, this opening replacement brief is submitted on Mr. Quillar’s behalf. STATEMENT OF FACTS Appellant Lee V. Quillar (“Quillar”) wears a beard in accordance with his Islamic faith. (ER 0107 at ln. 2-4, 0108 at ln. 2-7 and 19-24.) Until declared unconstitutional in 2005, the California Department of Corrections and Case: 08-15414 01/28/2010 ID: 7212229 DktEntry: 27-1 Page: 9 of 37
  • 10. - 4 - Rehabilitation (“CDCR”)1 enforced a grooming policy that barred male inmates from maintaining hair longer than three inches. See generally Warsoldier v. Woodford, 418 F.3d 989 (9th Cir. 2005). In January 2005, Quillar, a CDCR inmate acting pro se, filed his First Amended Complaint (“FAC” or the “Complaint”) against various defendants seeking relief from disciplinary measures the CDCR had taken against him for violating the unconstitutional grooming policy by virtue of his beard. (ER 0102-17.) The Complaint alleged that such disciplinary measures, involving the issuance of forms called “CDC Form 128-A,” violated Quillar’s protections under RLUIPA. (ER 0112 at ln. 13-24, 0107-11.) The Complaint also included a prayer for injunctive relief that would “[r]estore [Quillar’s] rights dating back to October 12, 2000[.]” (ER 0115 at ln. 4-5.) Shortly after filing the Complaint, Quillar filed a motion requesting leave to proceed in forma pauperis and requesting the appointment of counsel largely because his legal work on the case to that point had been confiscated. (ER 0098- 0101.) The District Court granted Quillar’s request to proceed in forma pauperis but summarily denied his request for counsel. (ER 0023-27.) On December 5, 2005, the District Court screened Quillar’s Complaint pursuant to 28 U.S.C. § 1915A and determined that it stated cognizable claims for 1 In 2005, CDCR was officially known as California Department of Corrections. Case: 08-15414 01/28/2010 ID: 7212229 DktEntry: 27-1 Page: 10 of 37
  • 11. - 5 - relief against defendants R.D. Rowlett, S. Murray and J. Mendoza and ordered that they be served with process. (ER 0024 at ln. 3-9.) The United States Marshall served both Murray and Mendoza in October 2006. (ER 0018-22.) However, Rowlett could not be served because he had passed away. (ER at 0016-17.) Dismissal of Defendants Murray and Mendoza On November 16, 2006, Quillar filed a motion requesting that Rowlett’s “wife, successor and/or personal representative be served as a substituted party.” (ER at 0096-97.) Before the District Court could issue an order on Quillar’s motion for substitution, Murray and Mendoza filed a Fed. R. Civ. P. 12(b)(6) motion to dismiss on February 5, 2007. (ER 0082-95.) On July 12, 2007, the magistrate judge recommended that Murray and Mendoza be dismissed from the case and demanded that Quillar “identify by name the person or entity he wishes to substitute for defendant Rowlett within thirty days.” (ER at 0015 at ln. 3-4, 0009 at ln. 22-24.) The magistrate judge also found that Quillar’s RLUIPA claims and his concerns about the disciplinary reports jeopardizing his eligibility for parole were “speculative and not sufficiently injurious for th[e] court to retain jurisdiction over defendants Murray or Mendoza.” (ER 0014 at ln. 24-25.) On August 16, 2007, over Quillar’s timely objections, the District Court adopted the magistrate’s recommendations. (ER 0066-77, 0007-08.) Case: 08-15414 01/28/2010 ID: 7212229 DktEntry: 27-1 Page: 11 of 37
  • 12. - 6 - Dismissal of Defendant Rowlett On July 24, 2007, Quillar filed a motion for limited discovery to ascertain the identity of a possible substitute party for Rowlett. (ER 0078-81.) On August 6, 2007, ten days before they were dismissed from the action, defendants Murray and Mendoza opposed Quillar’s motion. (ER 0063-65.) Three days later, Quillar filed another motion requesting appointment of counsel for the specific purpose of assisting with discovery of Rowlett’s proper substitute. (ER 0041-62.) On August 22, 2007, after Murray and Mendoza had been dismissed, the magistrate judge recommended that Quillar’s motion for discovery be denied because defendants Murray and Mendoza were no longer part of the action. (ER 0004 at ln. 20-21.) The magistrate judge also summarily denied Quillar’s renewed request for appointment of counsel. (ER 0005 at ln. 13-14.) Finally, the magistrate judge recommended that Rowlett be dismissed from the action because Quillar had failed “to identify a specific party to substitute for defendant Rowlett” within the 30 days. (ER 0005 at ln. 4-10.) The District Court adopted the magistrate judge’s recommendations on February 5, 2008 and dismissed Quillar’s action, entering final judgment on February 7, 2008. (ER 0001, 0002-03.) This timely appeal followed. Case: 08-15414 01/28/2010 ID: 7212229 DktEntry: 27-1 Page: 12 of 37
  • 13. - 7 - SUMMARY OF ARGUMENT The District Court’s judgment should be reversed because the District Court abused its discretion and committed legal errors. First, in light of the procedural “traps” Quillar faced, the District Court abused its discretion in denying his requests for the appointment of counsel. On December 5, 2005, the District Court determined that Quillar’s complaint stated claims for relief against Rowlett, Murray and Mendoza. (ER 0024 at ln. 3-9.) But over the next two years, on two separate occasions, the court inexplicably denied Quillar’s requests for appointment of counsel and abused its discretion in doing so. Second, the District Court abused its discretion by denying Quillar’s motion requesting authorization to take limited discovery to ascertain a proper substitute defendant for Rowlett. The District Court also erred in dismissing defendants Murray and Mendoza because Quillar’s Complaint stated proper claims for injunctive relief under RLUIPA as a result of their denial of his rights to the free exercise of religion. 42 U.S.C. § 2000cc-2(a). Defendants Murray and Mendoza wrongfully issued, signed or otherwise authorized the issuance of several disciplinary reports against Quillar based on his violation of the CDCR’s unconstitutional grooming policy by virtue of his wearing a beard in accordance with his Islamic faith. The Complaint properly sought injunctive relief that would “[r]estore [his] rights dating back to Case: 08-15414 01/28/2010 ID: 7212229 DktEntry: 27-1 Page: 13 of 37
  • 14. - 8 - October 12, 2000” because the existence of those improper disciplinary reports in his central inmate file adversely effect his parole eligibility and, therefore, present an actual injury. (ER 0115 at ln. 4-5.) Since those improper disciplinary reports could have been expunged from his central inmate file, Quillar’s RLUPA claim was not moot, and the District Court erred in granting Murray and Mendoza’s motion to dismiss. The Supreme Court’s ruling in Heck v. Humphrey, 512 U.S. 477, 486 (1994), does not bar Quillar’s RLUIPA claims since they do not require him to prove the wrongfulness of his conviction or confinement. Similarly, Preiser v. Rodriguez, 411 U.S. 475, 500 (1973), does not bar Quillar’s claims for relief because expunging his disciplinary reports would not result in his immediate or quicker release from prison. Rather, those disciplinary reports impact Quillar’s eligibility for parole. See, e.g., People v. Hernandez, 229 Cal. App. 2d 143, 149 (1964) (although “a parolee is not a prison inmate in the physical sense, he is constructively a prisoner under legal custody of the State Department of Corrections”). Finally, the District Court erred in dismissing Quillar’s action without leave to amend after having dismissed Rowlett, the last remaining defendant. Even though Quillar had filed a motion to allow discovery so that he could identify a proper substitute for defendant Rowlett who had passed away, the District Court Case: 08-15414 01/28/2010 ID: 7212229 DktEntry: 27-1 Page: 14 of 37
  • 15. - 9 - improperly denied his motion. At the same time, the District Court also dismissed Rowlett from the action because Quillar had allegedly failed to timely identify a proper substitute party within the time the court had previously specified. In doing so, the District Court failed to consider that Quillar, a pro se inmate proceeding in forma pauperis, could not have possibly located a substitute party without the ability to take some limited discovery. For these reasons, the District Court’s judgment should be reversed. ARGUMENT I. THE DISTRICT COURT ABUSED ITS DISCRETION BY DENYING QUILLAR’S REQUESTS FOR APPOINTMENT OF COUNSEL. Quillar requested the appointment of counsel on three separate occasions during the course of the underlying litigation: June 23, 2004, September 7, 2005 and August 9, 2007. (ER 0135-39, 0098-0101, 0041-62.) The District Court denied each request. (ER 0023-27, 0004-06.) Notably, the court’s denial of Quillar’s final request for appointment of counsel came after he was granted leave to proceed in forma pauperis. (ER 0023-27, 0004-06.) In light of both Quillar’s cognizable claims for relief and the complex legal and procedural issues that arose during the underlying proceeding, the court abused its discretion in denying Quillar’s motions for appointment of counsel. The denial of a request for the appointment of counsel by a plaintiff proceeding in forma pauperis is reviewed for abuse of discretion. See Solis v. Case: 08-15414 01/28/2010 ID: 7212229 DktEntry: 27-1 Page: 15 of 37
  • 16. - 10 - County of Los Angeles, 514 F.3d 946, 958 (9th Cir. 2008). A court’s determination of such a request requires “at least an evaluation of the likelihood of the plaintiff’s success on the merits and an evaluation of the plaintiff’s ability to articulate his claims in light of the complexity of the legal issues involved.” Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101, 1103-05 (9th Cir. 2004) (internal quotations omitted) (holding trial court abused its discretion by denying appointment of counsel where in forma pauperis plaintiff’s meritorious claims raised procedural complexities). This Court should reverse the District Court’s February 5, 2008 order denying Quillar’s final request for appointment of counsel. First, and as acknowledged by the District Court’s December 5, 2005 screening order, Quillar’s Complaint stated cognizable claims for relief. (ER 0024 at ln. 3-4.) Thus, based on the pleadings themselves, Quillar’s claims for relief had a reasonable likelihood of success on the merits. Second, Quillar’s case presented a number of complexities that merited the assistance of counsel. Most notably, the interplay of Heck v. Humphrey, 512 U.S. 477 (1994), Preiser v. Rodriguez, 411 U.S. 475 (1973), RLUIPA and Quillar’s requested injunctive relief presented questions of first impression in this circuit. Moreover, the timing of (1) the District Court’s July 12, 2007 order directing Quillar to identify Rowlett’s substitute within 30 days; (2) followed by Quillar’s July 24 motion for discovery and Murray and Mendoza’s August 6 opposition to Case: 08-15414 01/28/2010 ID: 7212229 DktEntry: 27-1 Page: 16 of 37
  • 17. - 11 - the motion for discovery; (3) followed by Quillar’s final request for appointment of counsel on August 9 and the court’s August 16 dismissal of Murray and Mendoza; (4) followed by the magistrate judge’s August 22 order denying the motions for discovery, appointment of counsel and substitution, and recommending that the action be dismissed placed Quillar in a precarious situation that would have challenged even the most experienced litigator. In short, Quillar’s meritorious claims for relief were sufficiently complex to warrant appointment of counsel. See Agyeman, 390 F.3d at 1103-05 (ordering appointment of counsel on remand in order to correctly frame plaintiff’s meritorious claims against under Bivens and the Federal Tort Claims Act). In any event, this Court should reverse the District Court’s February 5, 2008 order adopting the magistrate judge’s recommendation to deny appointment of counsel because the magistrate failed to articulate actual reasons for denying Quillar’s request. See Solis, 514 F.3d at 958 (reversing district court’s denial of plaintiff’s request for counsel; “[B]ecause the district court failed to articulate its reasons for denying Solis’s request [for appointment of counsel], we cannot determine on appellate review whether its denial constituted an abuse of discretion.”). In response to Quillar’s final request for appointment of counsel, the District Court simply stated, “In the present case, the court does not find the required exceptional circumstances. Plaintiff’s motion for the appointment of Case: 08-15414 01/28/2010 ID: 7212229 DktEntry: 27-1 Page: 17 of 37
  • 18. - 12 - counsel will therefore be denied.” (ER 0005 at ln. 1-3.) That was essentially the same inadequate reason the district court in Solis gave for denying plaintiff’s request for appointment of counsel. Solis, 514 F.3d at 958 (“[T]he district court stated only that ‘[t]he Court has reviewed the motion for appointment of counsel, filed by plaintiff on April 28, 2005. The motion is denied.’ ”). Thus, notwithstanding the exceptional circumstances that warranted appointment of counsel here, the District Court’s summary denial of Quillar’s request provides no meaningful basis on which to review its basis for denial. See id. at 958. Accordingly, this Court should reverse the District Court’s February 5, 2008 order and remand for further proceedings. II. THE DISTRICT COURT ABUSED ITS DISCRETION BY DENYING QUILLAR’S MOTION FOR DISCOVERY. The same order that dismissed defendant Rowlett from the action and denied Quillar’s final request for appointment of counsel also summarily denied his motion requesting authorization to take limited discovery to ascertain Rowlett’s proper substitute. (ER 0004 at ln. 19-21, 0005 at ln. 4-10 and 13-14.) The District Court’s only stated basis for denying Quillar’s motion for discovery, however, was that, “given that the motion was directed to defendants [Murray and Mendoza] who have been dismissed, it is being denied.” (ER 0005 at fn. 1.) Because it was not clear that Quillar’s requested discovery would not uncover the identity of Rowlett’s substitute, the District Court abused its discretion in denying the motion. Case: 08-15414 01/28/2010 ID: 7212229 DktEntry: 27-1 Page: 18 of 37
  • 19. - 13 - A District Court’s denial of a request for discovery is reviewed for abuse of discretion. State Dep’t of Soc. Servs. v. Leavitt, 523 F.3d 1025, 1031 (9th Cir. 2008). “[A] plaintiff should be given the opportunity through discovery to identify [] unknown defendants, unless it is clear that discovery would not uncover the identities, or that the complaint would be dismissed on other grounds.” Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980); see also Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999). Here, the District Court abused its discretion by denying Quillar’s motion for limited discovery at the same time it dismissed Rowlett from the action and denied Quillar’s last request for counsel. See Gillespie, 629 F.2d at 643 (holding abuse of discretion where district court did not permit discovery on identity of “John Doe” defendants at the same time it dismissed plaintiff’s complaint). From purely a practical perspective, taking limited discovery was the only way Quillar could have possibly identified a proper substitute party for Rowlett.2 Certainly, it is not clear that the requested limited discovery would have failed to disclose the identity of Rowlett’s substitute. See id. (with the denied discovery, the “allegations 2 Federal Rule of Civil Procedure 26(d) allows the district court to order discovery early in a case and Rule 45 allows service of a subpoena on a non-party. Thus, with leave of the court, Quillar could have issued a subpoena to a non-party within CDCR or elsewhere for the limited purpose of discovering the identity of Rowlett’s successor or representative. Case: 08-15414 01/28/2010 ID: 7212229 DktEntry: 27-1 Page: 19 of 37
  • 20. - 14 - contained in appellant’s complaint, if proven, could possibly have provided bases for relief . . . .). Moreover, “[i]n civil rights cases where the plaintiff appears pro se, the court . . . must afford plaintiff the benefit of any doubt.” Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). To afford Quillar the benefit of any doubt, the District Court should have permitted him to conduct limited discovery to enable him to discover Rowlett’s successor or representative. See Gillespie, 629 F.2d at 642 (“The district court abused its discretion in not permitting the discovery sought by the appellant and the court’s subsequent dismissal of the complaint was error.”); see also Lopez v. Smith, 203 F.3d 1122, 1134 n.1 (9th Cir. 2000) (Rymer, C.J., concurring) (noting possible argument that district court did not abuse discretion in dismissing pro se plaintiff’s complaint where he was advised of deficiencies and given time for discovery). For these reasons, this Court should reverse the District Court’s February 5, 2008 order adopting the magistrate judge’s findings and recommendations, and remand for further proceedings. III. THE DISTRICT COURT ERRED IN DISMISSING QUILLAR’S CLAIMS FOR INJUNCTIVE RELIEF AGAINST DEFENDANTS MURRAY AND MENDOZA. On August 16, 2007, the District Court adopted the magistrate judge’s recommendation to grant the 12(b)(6) motion to dismiss filed by defendants Murray and Mendoza, and accordingly dismissed them from Quillar’s action. (ER Case: 08-15414 01/28/2010 ID: 7212229 DktEntry: 27-1 Page: 20 of 37
  • 21. - 15 - 0007-08, 0009-15.) The magistrate judge’s recommendation to dismiss Murray and Mendoza, however, was based on legal error. In particular, the magistrate erroneously concluded that Quillar’s claims for injunctive relief under RLUIPA were “speculative and not sufficiently injurious for th[e] court to retain jurisdiction over defendants Murray or Mendoza.” (ER 0014 at ln. 24-25.) This Court “review[s] de novo a district court’s decision to grant or deny a motion to dismiss.” Firemen’s Fund Ins. Co. v. City of Lodi, 302 F.3d 928, 939 (9th Cir. 2002), cert. denied, 538 U.S. 961 (2003); Baker v. McNeil Island Corrections Center, 859 F.2d 124, 127 (9th Cir. 1988). RLUIPA provides that No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution … unless the government demonstrates that imposition of the burden on that person-- (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. 42 U.S.C. § 2000cc-1(a). “A person may assert a violation of this Act as a claim or defense in a judicial proceeding an obtain appropriate relief against a government.” 42 U.S.C. § 2000cc-2(a). Quillar’s Complaint alleged that defendants “punished, caused to be punished, or failed to prevent plaintiff from suffering years of undu[e] punishment Case: 08-15414 01/28/2010 ID: 7212229 DktEntry: 27-1 Page: 21 of 37
  • 22. - 16 - based on nothing more than plaintiff growing his beard as mandated by his religious doctrine[,]” and that such punishment was “without any penological interest … .” (ER 0112 at ln. 13-24.) The Complaint also alleged that, between 2000 and 2005, defendants Murray and Mendoza wrongfully issued, signed or otherwise authorized the issuance of a multitude of disciplinary reports against Quillar for wearing a beard in observance of his Islamic faith. (ER 0106-11.) Those disciplinary actions included: • A Rules Violation Report signed by Murray documenting a November 9, 2000 CDC Form 115 issued to Quillar for wearing a beard (ER 0107 at ln. 17-21, 0120); • A Rules Violation Report signed by Mendoza documenting a December 12, 2000 CDC Form 115 issued to Quillar for wearing a beard (ER 0107 at ln. 22-24, 0121); • A Rules Violation Report reviewed by Mendoza documenting a June 13, 2001 CDC Form 115 issued to Quillar for wearing a beard (ER 0107 at ln. 25-28, 0122); • A Rules Violation Report signed by Mendoza documenting a March 25, 2003 CDC Form 115 issued to Quillar for wearing a beard (ER 0108 at ln. 13-15, 0125); and • A Rules Violation Report signed by Mendoza documenting an April 19, 2004 CDC Form 115 issued to Quillar for wearing a beard (ER 0108 at ln. 16-18, 0126). Finally, Quillar’s Complaint prayed for injunctive relief that would “[r]estore [his] rights dating back to October 12, 2000[.]” (ER 0115 at ln. 4-5.) Case: 08-15414 01/28/2010 ID: 7212229 DktEntry: 27-1 Page: 22 of 37
  • 23. - 17 - As the District Court properly concluded in its 1915A screening order, these allegations stated cognizable claims for injunctive relief against Murray and Mendoza. (ER 0024 at ln. 3-9.) A. Quillar’s Complaint presented an actual case or controversy. The District Court’s dismissal of Murray and Mendoza was based on the magistrate judge’s erroneous conclusion that Quillar’s claims for injunctive relief were “speculative and not sufficiently injurious for th[e] court to retain jurisdiction over [them].”3 (ER 0007-08, 0009-15, 0014 at ln. 24-25.) To the contrary, Quillar’s claims for injunctive relief against Murray and Mendoza were not speculative, and addressed specific and sufficient injury that, if granted, would provide actual and practical relief. The central issue in an Article III standing or mootness inquiry is whether plaintiff’s claim, if granted, would result in actual relief from a presently existing injury. L.A. v. Lyons, 461 U.S. 95, 101-02 (1983) (“The plaintiff must show that he ‘has sustained or is immediately in danger of sustaining some direct injury’ as the result of the challenged official conduct and the injury or threat of injury must 3 The District Court’s stated basis for dismissal is essentially a conclusion that Quillar failed to demonstrate an actual case or controversy as required by Article III. (ER 0014-15 (citing Lyons, 461 U.S. at 101-02).) This Court asked appointed pro bono counsel to address whether Quillar’s claims for injunctive relief under RLUIPA are now moot. While those issues might be considered analytically separate from one another, they can both be addressed by discussing Quillar’s presently existing injury and the actual relief that would follow if his claims for injunctive relief under RLUIPA were granted. Case: 08-15414 01/28/2010 ID: 7212229 DktEntry: 27-1 Page: 23 of 37
  • 24. - 18 - be both ‘real and immediate,’ not ‘conjectural’ or ‘hypothetical.’”); West v. Secretary of Dep.t of Transp., 206 F.3d 920, 925 (9th Cir. 2000) (in deciding a mootness issue, the question “is whether there can be any effective relief.”) (internal citation omitted). As long as a plaintiff can obtain any effective relief, then a court may properly adjudicate the controversy. City of Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000). Under the Title 15 rules and regulations concerning California prisons, any CDC Form 115s that have been issued remain in an inmate’s central file. “When an inmate is held responsible for the act charged [in a CDC Form 115], copies of all documents prepared for and used in the disciplinary proceedings shall be placed in the inmate’s central file.” Cal. Code Regs. tit. 15, § 3326(a)(1). Also, “[i]nformation developed through the disciplinary process . . . shall be recorded by the disciplinary hearing officer on a CDC Form 128-B,” which is then placed in the inmate’s central file . . . .” Cal. Code Regs. tit. 15, § 3326(b), (b)(4). Consequently, the CDC Form 115s and any related record developed through the disciplinary process remain in Quillar’s central file. Those items will subsequently impact the parole board’s consideration of Quillar’s eligibility for parole. Division 2 of Title 15 of the California Code of Regulations establishes guidelines for determining an inmate’s parole eligibility by providing that “[a]ll relevant, reliable information available to the panel shall be considered in Case: 08-15414 01/28/2010 ID: 7212229 DktEntry: 27-1 Page: 24 of 37
  • 25. - 19 - determining suitability for parole. Such information shall include the circumstances of the prisoner’s . . . the base and other commitment offenses, including behavior before, during and after the crime . . . .” Cal. Code Regs. tit. 15, § 2281(b) (emphasis provided). The Title 15 Regulations also list specific circumstances that show lack of fitness for parole including circumstances where “[t]he prisoner has engaged in serious misconduct in prison or jail.” Cal. Code Regs. tit. 15, § 2281(c)(6). The Title 15 Guidelines would require a parole board to consider all documents in an inmate’s central file when determining eligibility for parole. Cal. Code Regs. tit. 15, § 2281(b). The CDC Form 115s that remain in Quillar’s central file for his purported violation of an invalid and unconstitutional grooming policy pose actual harm to Quillar because they reflect disciplinary actions taken against him for “misconduct” that could potentially deny him parole. Cal. Code Regs. tit. 15, § 2281(c)(6). Consequently, Quillar suffers an actual injury even though the grooming regulations on which his disciplinary actions are based were held to be unconstitutional and no longer exist. See Warsoldier v. Woodford, 418 F.3d 989 (9th Cir. 2005). Furthermore, Quillar is entitled to “appropriate relief” under RLUIPA for defendants’ violations of the Act. 42 U.S.C. § 2000cc-2(a). Given RLUIPA’s mandate that it be “construed in favor of a broad protection of religious exercise,” Case: 08-15414 01/28/2010 ID: 7212229 DktEntry: 27-1 Page: 25 of 37
  • 26. - 20 - such “appropriate relief” would necessitate expunging his central files of any CDC Form 115s that had been wrongfully issued for his violations of the unconstitutional grooming regulation. 42 U.S.C. § 2000cc-3(g); see also United States v. Sumner, 226 F.3d 1005, 1012 (9th Cir. 2000) (noting that federal appellate courts have upheld expunging criminal records as equitable relief; “Congress has also enacted statutes that expressly authorize a district court to order expungement or to correct an inaccurate government record[.]”) (internal citations omitted). Hence, Quillar’s Complaint alleged an actual, concrete and specific injury that injunctive relief could have remedied. Accordingly, the District Court’s order dismissing defendants Murray and Mendoza should be reversed. B. Quillar’s claims for injunctive relief are not barred by Heck v. Humphrey. In Heck v. Humphrey, the Supreme Court held that a section 1983 suit for damages arising out of an allegedly unlawful conviction requires the plaintiff to directly establish the invalidity of the conviction. 512 U.S. at 489. Though the issues in Heck were not presented to the District Court in this case, Quillar’s claims for injunctive relief are not barred by Heck because adjudication of his claims do not “necessarily require the plaintiff to prove the unlawfulness of his conviction or confinement[.]” Id. at 486. Heck’s section 1983 complaint alleged that his conviction for voluntary manslaughter was the result of an arbitrary investigation and the knowing destruction of evidence. Id. at 479. The complaint sought money Case: 08-15414 01/28/2010 ID: 7212229 DktEntry: 27-1 Page: 26 of 37
  • 27. - 21 - damages rather than injunctive relief or speedier release from custody. Id. at 478- 79. The trial court dismissed Heck’s complaint because it directly challenged the legality of his confinement, and the Seventh Circuit affirmed on the same grounds. Id. at 479. On certiorari, the Supreme Court first explained that the holding of Preiser v. Rodriguez, 411 U.S. 475 (1973), did not cover the issues presented in Heck’s complaint for damages. Preiser dealt with the issue of whether habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release. Id. at 481-82. To determine whether section 1983 claims for damages were at all relevant, the Court began with the principle that “42 U.S.C. § 1983 creates a species of tort liability,” and accordingly turned to the common law of torts. Id. at 483. In holding that Heck’s claim for money damages could not be granted, the Court explained: We think the hoary principle that civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments applies to § 1983 damages actions that necessarily require the plaintiff to prove the unlawfulness of his conviction or confinement, just as it has always applied to actions for malicious prosecution. [¶] We hold that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into Case: 08-15414 01/28/2010 ID: 7212229 DktEntry: 27-1 Page: 27 of 37
  • 28. - 22 - question by a federal court’s issuance of a writ of habeas corpus. Id. at 486-87. Here, Quillar’s Complaint alleged violations of both section 1983 and RLUIPA. The alleged violations of RLUIPA and Quillar’s request for injunctive relief differ significantly from the matters addressed in Heck. To state a claim under RLUIPA, a plaintiff must produce “prima facie evidence to support a claim alleging a violation of the Free Exercise Clause . . . .” 42 U.S.C. § 2000cc-2(b). Unlike a claim for damages brought under section 1983, a plaintiff need not prove the unlawfulness of his conviction or confinement under RLUIPA. See Heck, 512 U.S. at 486. Thus, because RLUIPA does not require a finding of unlawful conviction or confinement, Heck has no application here, and it does not bar Quillar’s claim for injunctive relief. C. Quillar’s claims for injunctive relief are not barred by Preiser v. Rodriguez. Preiser v. Rodriguez does not bar Quillar’s injunctive relief claims either. In Preiser, state prisoners brought suit under § 1983 to restore good time credits they were deprived of in alleged violation of their due process rights. Id. at 476-77. The question before the Supreme Court was “whether state prisoners seeking such redress may obtain equitable relief under [§ 1983 of] the Civil Rights Act, even though the federal habeas corpus statute [] clearly provides a specific federal Case: 08-15414 01/28/2010 ID: 7212229 DktEntry: 27-1 Page: 28 of 37
  • 29. - 23 - remedy.” Id. at 477. Ultimately, the Court held “that when a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to an immediate or speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus.” Id. at 500. Preiser is inapplicable here because Quillar’s RLUIPA injunctive relief claim does not challenge the fact or duration of his imprisonment. Rather, Quillar seeks to expunge his central inmate file of invalid disciplinary records that adversely impact his future parole eligibility. Parole is not “release” from prison; it is an extension of prison. See, e.g., People v. Hernandez, 229 Cal. App. 2d 143, 149 (1964) (although “a parolee is not a prison inmate in the physical sense, he is constructively a prisoner under legal custody of the State Department of Corrections”); People v. Howard, 79 Cal. App. 3d 46, 49 (1978) (A “parolee is at all times in custodia legis. Although a parolee is not a prison inmate in the physical sense, he is serving the remainder of his term outside rather than within the prison walls.”). Thus, because Quillar’s RLUIPA claim does not challenge the fact or duration of his imprisonment, Preiser does not bar his claim. D. Quillar’s claims for injunctive relief under RLUIPA conform to the letter and spirit of the Act. Whether Heck or Preiser bar RLUIPA claims for injunctive relief appears to be an issue of first impression in this Circuit. However, Judge Karlton of the Case: 08-15414 01/28/2010 ID: 7212229 DktEntry: 27-1 Page: 29 of 37
  • 30. - 24 - Eastern District of California correctly analyzed that question in Mayweathers v. Terhune, 328 F.Supp.2d 1086 (E.D. Cal. 2004), by ruling that the Heck and Preiser did not bar such claims. There, plaintiffs sought various forms of relief under RLUIPA, including the expungement of disciplinary records issued for violations of the same unconstitutional grooming policy that gave rise to this action. On plaintiffs’ motion for summary judgment and a permanent injunction, Judge Karlton analyzed the critical differences between RLUIPA and section 1983. First, he observed that RLUIPA is a “specific Congressional enactment . . . designed to redress the harms that result from preventing prison inmates from exercising their religion.” Mayweathers, 328 F.Supp.2d at 1101. That observation is important because the Preiser Court’s holding hinged on the logic (1) that habeas corpus was the appropriate vehicle for attacking the validity of the conviction or length of confinement and (2) “that specific determination must override the general terms of § 1983.” Preiser, 411 U.S. at 490. As Judge Karlton then observed, the situation with the Mayweathers plaintiffs, as with Quillar, is reversed: “RLUIPA addresses a much more specific problem than the habeas statutes and, within that specific area, erects no exhaustion barrier and gives courts the power to remedy wrongs.” Mayweathers, 328 F.Supp.2d at 1101. Second, Judge Karlton observed that both Preiser and Heck were based on a comparison between habeas and the general tort regime of section 1983 that is Case: 08-15414 01/28/2010 ID: 7212229 DktEntry: 27-1 Page: 30 of 37
  • 31. - 25 - inapplicable to claims brought under specific modern civil rights statutes designed to apply in the prison context, such as RLUIPA. Id. at 1101. Finally, Judge Karlton noted that, “had Congress intended for habeas exhaustion requirements to limit relief under RLUIPA, Congress could surely have so indicated.” Id. at 1101. Instead, Congress directed that RLUIPA “be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this Act and the Constitution.” 42 U.S.C. § 2000cc-3(g). Stated plainly, the Preiser-Heck rule applies to section 1983 claims that challenge the legality of a conviction or the length of confinement, but not to claims for relief under RLUIPA that challenge neither the conviction nor length of confinement. That is for good reason because the underlying purposes behind section 1983 and RLUIPA are completely different. On the one hand, section 1983 does “not provide for any substantive rights.”4 Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 617 (1979). Rather, it provides a vehicle for relief to plaintiffs who have been deprived of rights, privileges or immunities secured by the Constitution or the laws of the United States. See Burch v. 4 42 U.S.C. § 1983 provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress[.]” Case: 08-15414 01/28/2010 ID: 7212229 DktEntry: 27-1 Page: 31 of 37
  • 32. - 26 - Apalachee Community Mental Health Servs., 840 F.2d 797, 800 (11th Cir. 1988), cert. granted, 489 U.S. 1064 (1989), aff’d, 494 U.S. 113 (1990).5 Congress enacted RLUIPA over 25 years after Preiser and it has since survived constitutional challenge. See Mayweathers v. Newland, 314 F.3d 1062 (9th Cir. 2002), cert. denied, 540 U.S. 815. RLUIPA was enacted with the specific aim of preventing correctional institutions from restricting “religious liberty in egregious and unnecessary ways.” 146 Cong. Rec. S7774-01 (July 27, 2000) (Joint Statement of Senators Hatch and Kennedy). Under RLUIPA, “[n]o government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person . . .” 42 U.S.C. § 2000cc-1(a)(1). It further states that it “shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this Act and the Constitution.” 42 U.S.C. § 2000cc-3(g) (emphasis added). Quillar’s claims for injunctive relief fall squarely within the letter and spirit of RLUIPA -- “to protect the exercise of religion in institutions from unwarranted and substantial infringement.” Mayweathers v. Newland, 314 F.3d 1062, 1068 (9th Cir. 2002). Quillar’s claims sought relief from the detrimental and permanent 5 Some examples of the broad sweep of section 1983 claims brought by prisoners include monetary damages for overdetention, Streit v. County of L.A., 236 F.3d 552 (9th Cir. 2001), deliberate indifference to medical needs in violation of the Eighth Amendment, Estelle v. Gamble, 429 U.S. 97 (1976), and suppression or censorship of correspondence, Procunier v. Martinez, 416 U.S. 396 (1974). Case: 08-15414 01/28/2010 ID: 7212229 DktEntry: 27-1 Page: 32 of 37
  • 33. - 27 - effects on his disciplinary record for being cited for violations of an unconstitutional grooming policy that sought to prohibit the free exercise of his religion. See Warsoldier, 418 F.3d at 1002 (“CDC has utterly failed to demonstrate that the disputed grooming policy is the least restrictive means necessary to ensure prison safety and security.”). The very spirit of the Act would be frustrated if Quillar is denied relief under RLUIPA. Expunging the invalid disciplinary records at issue from Quillar’s central inmate file would advance the “broad protection of religious exercise” that RLUIPA expressly promotes. Because Quillar’s Complaint presented valid claims for injunctive relief under RLUIPA, the District Court’s judgment dismissing defendants Murray and Mendoza should be reversed. IV. THE DISTRICT COURT ERRED IN DISMISSING QUILLAR’S ACTION WITHOUT GRANTING LEAVE TO AMEND. Following Rowlett’s dismissal from the underlying action, the District Court proceeded to dismiss Quillar’s action because no defendants remained. (ER 0002- 03, 0004-06.) The District Court refused to grant Quillar leave to amend his complaint because he failed to name a substitute party within the time the court specified. In doing so, the District Court committed reversible error. It is axiomatic that pro se complainants are held to less stringent standards than complainants who are represented by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curium) (reversing a dismissal of a pro se inmate’s Case: 08-15414 01/28/2010 ID: 7212229 DktEntry: 27-1 Page: 33 of 37
  • 34. - 28 - complaint). Indeed, “[t]he rule favoring liberality in amendments to pleadings is particularly important for the pro se litigant.” Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1986). “[A] pro se litigant bringing a civil rights suit in forma pauperis is entitled to . . . an opportunity to amend the complaint to overcome the deficiency [in the event of dismissal] unless it clearly appears from the complaint that the deficiency cannot be overcome by amendment.” Id. In its 1915A screening order, the District Court determined that Quillar’s Complaint stated a proper claim for relief against Rowlett under RLUIPA. (ER 0024 at ln. 3-9.) Indeed, the District Court dismissed Rowlett from the action only because Quillar had failed to identify a specific substitute party within the 30 days allowed under the July 13, 2007 order.6 (ER 0005 at ln. 4-10.) Therefore, not only was it clear that Quillar could amend his Complaint to allege RLUIPA violations, but his Complaint already alleged such violations. Considering that Quillar was proceeding pro se and in forma pauperis, the District Court erred in dismissing his Complaint without leave to amend because of Quillar’s alleged failure to name a substitute party within the requisite time. See Noll, 809 F.2d at 1449 (“Because it is not absolutely clear that Noll could not amend his complaint to allege 6 As discussed above, the District Court abused its discretion in denying Quillar’s motion seeking permission to take discovery to ascertain Rowlett’s possible successor or representative. Case: 08-15414 01/28/2010 ID: 7212229 DktEntry: 27-1 Page: 34 of 37
  • 35. - 29 - constitutional violations, the district court erred by not notifying Noll of the amended complaint’s deficiencies and allowing him leave to amend.”). Accordingly, this Court should reverse the District Court’s February 5, 2008 order adopting the magistrate judge’s recommendation to dismiss Quillar’s action, and remand for further proceedings. CONCLUSION For the foregoing reasons, Quillar respectfully prays that the District Court’s judgment be reversed. Respectfully submitted, Dated: January 28, 2010 SONNENSCHEIN NATH & ROSENTHAL LLP By: __/s/ Manuel Alvarez, Jr._______ MANUEL ALVAREZ, JR. Attorneys for Plaintiff-Appellant Lee V. Quillar Case: 08-15414 01/28/2010 ID: 7212229 DktEntry: 27-1 Page: 35 of 37
  • 36. STATEMENT OF RELATED CASES Pursuant to Circuit Rule 28-2.6, Mr. Quillar’s appointed pro bono counsel is unaware of any pending related cases By: __/s/ Manuel Alvarez, Jr._______ MANUEL ALVAREZ, JR. Case: 08-15414 01/28/2010 ID: 7212229 DktEntry: 27-1 Page: 36 of 37
  • 37. CERTIFICATE OF COMPLIANCE Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C) and Ninth Circuit Rule 32-1, I hereby certify that the foregoing brief is in a proportionally spaced typeface of 14 points and contains a total of 6,335 words (including footnotes) as counted by Microsoft Word 2002, the word processing software used to prepare this brief. By: __/s/ Manuel Alvarez, Jr._______ MANUEL ALVAREZ, JR. Case: 08-15414 01/28/2010 ID: 7212229 DktEntry: 27-1 Page: 37 of 37