William Rouser v. Theo White ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM ROUSER, No. 13-56152
Plaintiff-Appellant,
D.C. No.
v. 2:11-cv-09123-
RGK-JEM
THEO WHITE; JAMES GOMEZ,
Director of Corrections; J. YATES;
P. ORTIZ, Correctional Counselor II; OPINION
B. FLORES, Correctional Counselor I;
BRIAN HAWS; BRENDA CASH;
MATTHEW CATE,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted June 4, 2015
Pasadena, California
Filed June 17, 2016
Before: Alex Kozinski and Consuelo M. Callahan, Circuit
Judges, and James K. Singleton,* Senior District Judge.
*
The Honorable James K. Singleton, Senior District Judge for the U.S.
District Court for the District of Alaska, sitting by designation.
2 ROUSER V. WHITE
Opinion by Judge Kozinski;
Dissent by Judge Callahan
SUMMARY**
Consent Decree
The panel vacated the district court’s order terminating a
consent decree, reinstated the 2011 consent decree between
a California state prisoner and defendant prison officials
concerning the prisoner’s religious exercise of his Wiccan
religion, and remanded for further proceedings.
The panel accorded no special deference in reviewing the
district court’s exercise of its discretion in terminating the
consent decree where the district court had only supervised
the litigation for two years of the twenty-year history of the
case.
The panel held that the district court committed numerous
errors in terminating the consent decree. Specifically, the
panel held that the district court applied the wrong legal
standard and found substantial compliance by the prison
officials without giving due attention to the various exacting
obligations embodied in the decree, and without considering
whether the purpose of the decree had been served. The
panel also held that the district court improvidently refused to
hold an evidentiary hearing to resolve material factual
disputes about whether defendants had complied with the
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ROUSER V. WHITE 3
decree. The panel also held that the district court encouraged
noncompliance by finding that defendants had violated the
consent decree, yet the court refused to grant any meaningful
relief. The panel concluded that the district court abused its
discretion in terminating the consent decree.
The panel held that the prisoner’s failure to receive the
district court’s orders prejudiced his ability to allege
violations of the 2011 decree. The panel held that the district
court’s protracted failure to correct the pro se prisoner’s
address, and its repeated failure to re-send notices of orders
that had been returned as undeliverable, raised due process
concerns.
Judge Callahan dissented because the majority’s reversal
of the district court improperly denied the heightened
deference due a trial court’s finding that a consent decree
aimed at institutional reform had served its purpose, was at
odds with the Prison Litigation Reform Act, and was
undermined by a record showing compliance that was
substantial. Judge Callahan would also hold that the prisoner
did not make a due process argument, and even if the district
court made a due process error, the prisoner suffered no
prejudice.
4 ROUSER V. WHITE
COUNSEL
James M. Burnham (argued), Noel J. Francisco, Sarah A.
Hunger and Kelsey A. Israel-Trummel, Jones Day,
Washington, D.C., for Plaintiff-Appellant.
Maneesh Sharma (argued), Deputy Attorney General;
Thomas S. Patterson, Supervising Deputy Attorney General;
Jonathan L. Woff, Senior Assistant Attorney General; and
Kamala Harris, Attorney General; California Department of
Justice, San Francisco, California; for Defendants-Appellees.
OPINION
KOZINSKI, Circuit Judge:
We consider the standards applicable to the termination
of a consent decree on grounds of substantial compliance.
BACKGROUND
William Rouser is a Wiccan. Despite Wicca’s relative
obscurity, Rouser was not its only adherent in the California
State Prison at Sacramento. In 1992, he petitioned on behalf
of himself and some thirty fellow Wiccan inmates that the
prison recognize Wicca as a bona fide religion and afford its
followers the same rights accorded to inmates of other faiths.
Specifically, Rouser sought to (1) possess Wiccan ritual items
like candles, incense and Tarot cards; (2) access A Witches
Bible Compleat when placed in administrative segregation;
(3) use the prison chapel for Wiccan ceremonies; and (4)
receive the ministry of a Wiccan chaplain.
ROUSER V. WHITE 5
When the prison denied his requests, Rouser filed a civil
rights complaint in the Eastern District of California. After
District Judge Karlton set the matter for trial, the parties
entered into a comprehensive settlement agreement (the
“1997 Agreement”). The agreement applied to “any
institution under the jurisdiction of the California Department
of Corrections (CDC) to which [Rouser] is assigned” and
described how the prisons and their staff would accommodate
Rouser’s religious needs.
Over the next 14 years, Rouser notified the court of
various ways in which the CDC and its employees violated
the terms of the 1997 Agreement in the three facilities where
he was housed. Rouser alleged, for example, that officials
suspended Wiccan services while permitting other religious
services; precluded him from ordering religious items like
candles, oil, incense and herbs; prevented inmates from
timely attending Wiccan services; and disregarded his
administrative complaints.
Judge Karlton eventually granted a preliminary
injunction. In a 33-page order, he found that prison officials
substantially burdened Rouser’s religious exercise by
“[i]nhibiting [his] timely receipt of religious articles” and
“[i]nhibiting group worship.” A year later, the parties entered
into another settlement agreement, which the district court
adopted as a consent decree (“2011 Decree”) and is at the
heart of this appeal. The decree reaffirmed the promises the
CDC made in the 1997 Agreement and provided Rouser with
additional privileges: He was allowed to possess listed
religious items in his cell; he was entitled to attend weekly
“esbats” and eight annual “sabbats” at an outdoor religious
activity area; and CDC employees would “develop a
procedure that allows the volunteer Wiccan minister . . . to
6 ROUSER V. WHITE
obtain access to Wiccan group worship articles in a timely
manner for use at Wiccan esbats and sabbats.” In addition,
Rouser was permitted to bypass the informal, formal and first
levels of appeal and file a second-level appeal directly with
the warden or his designee to report any noncompliance with
the 2011 Decree.
The decree provided that after one year, defendants could
move for termination by showing that they had substantially
complied with its terms. After approving the 2011 Decree,
Judge Karlton transferred the case to the U.S. District Court
for the Central District of California on the parties’ motion.
Several months after the 2011 Decree went into effect,
Rouser filed a motion to enforce its terms and asked for a
preliminary injunction. He argued that officials violated the
2011 Decree in at least five ways: by damaging a religious
necklace in their custody; by canceling and suspending
Wiccan services without a legitimate justification; by
prohibiting Rouser from using candles in his worship; and by
failing to construct an outdoor religious worship area. Most
significantly, Rouser alleged that they screened and
disregarded his direct appeals to the warden. Defendants
denied or attempted to justify some of their actions, but didn’t
contest Rouser’s allegations that his appeals weren’t being
processed in accordance with the terms of the 2011 Decree.
And they all but conceded that they violated the decree by
denying Rouser access to candles.
The district court found that defendants had violated the
2011 Decree in two ways: by damaging the religious necklace
and dismissing Rouser’s grievances before they reached the
warden. The court reminded defendants to “adhere to the
terms of the Decree” but didn’t order them to replace the
ROUSER V. WHITE 7
necklace or grant any other relief. The court found no willful
violation of the provision permitting Rouser to use candles—
only a temporary prohibition due to a miscommunication that
was later resolved. As to the remaining claims, the district
court faulted Rouser for failing to provide sufficient evidence
to meet his burden of proving noncompliance. Rouser,
however, had provided a sworn declaration, a prison
memorandum and a statement under penalty of perjury from
another inmate to support his claims that the prison had no
justification for canceling and suspending Wiccan services.
Defendants presented their own sworn statements
contradicting Rouser’s allegations, and the district court
tacitly resolved the factual disputes in favor of defendants
without an evidentiary hearing or even an acknowledgment
that Rouser had presented contrary evidence.
Three months later, defendants moved to vacate the
decree on grounds of substantial compliance. They relied on
the declaration of Correctional Counselor Nathan Wilcox,
who claimed that defendants “fully complied” with the 2011
Decree, but he discussed only some of its terms and said
nothing about compliance with the other terms. See infra p.
12. Nor did he claim that defendants had remedied the two
violations the court had found just three months earlier.
Wilcox relied on an internal prison memorandum that set
forth procedures for facilitating Wiccan group worship. But
that memorandum was dated October 2012 and thus predated
the district court’s finding that defendants had frustrated
Wiccan group worship by damaging the religious necklace
and failing to give Rouser direct access to the warden for his
grievances.
Rouser disputed that the prison complied with the 2011
Decree and sought an evidentiary hearing, claiming that he’d
8 ROUSER V. WHITE
recently been prevented from ordering candles and incense.
In their reply, defendants maintained that Rouser failed to
“articulate any legitimate basis for extending this Court’s . . .
2011 Order,” and asked the court to deny the motion without
a hearing or oral argument.
The court complied. It concluded in a minute order that
“[d]efendants have demonstrated by a preponderance of the
evidence that they have substantially complied with the terms
of the settlement agreement.” The court didn’t mention its
earlier finding that defendants had violated the 2011 Decree.
Rather, the court found that Wilcox’s declaration and the
outdated prison memo showed defendants took “significant
steps to follow the settlement agreement” (emphasis added).
Finding this sufficient to show substantial compliance, the
court concluded that Rouser’s allegations of noncompliance,
even if assumed to be true, were “insufficient to render
Defendants substantially non-compliant” with the 2011
Decree.
DISCUSSION
We review for abuse of discretion the district court’s
decision to terminate a consent decree. See Jeff D. v. Otter
(Otter), 643 F.3d 278, 283 (9th Cir. 2011) (citing Jeff D. v.
Kempthorne (Kempthorne), 365 F.3d 844, 850 (9th Cir.
2004)). We apply heightened deference to the district court’s
discretionary decisions where it “has been overseeing
complex institutional reform litigation for a long period of
time.” Kempthorne, 365 F.3d at 850. Here, however, the
court that vacated the consent decree had supervised it for
only two years of the twenty-year history of the case. Neither
our cases nor the PLRA require deference to a district court
simply because it has managed institutional-reform litigation
ROUSER V. WHITE 9
for two years. The dissent identifies no authority to the
contrary. Diss. at 33–34. Thus, we accord no special
deference in reviewing its exercise of discretion.
I. Purpose and History of the 2011 Decree
Our case law instructs district courts deciding a motion to
vacate a consent decree to first consider “the more general
goals of the decree.” Otter, 643 F.3d at 288 (quoting
Youngblood v. Dalzell, 925 F.2d 954, 960 (6th Cir. 1991)).
Then the court should examine defendants’ entire “record of
compliance.” Id. (quoting Freeman v. Pitts, 503 U.S. 467,
491 (1992)). We have reversed a district court’s termination
of a consent decree for failing to explicitly consider the
“goals of the decree[]” and only evaluating compliance with
individual action items. Id. at 289.
The district court overlooked the teachings of Otter.
Nowhere in its terse minute order did it mention the
defendants’ record of compliance—either with the 2011
Decree or its predecessor—“which over the course of the
litigation has been far from exemplary.” Id. at 288. Nor did
it analyze whether the purposes of the 2011 Decree had been
“adequately served” by defendants. Id. at 289.
The dissent claims that the district court identified the
purpose of the decree by explaining that Rouser initially
brought suit for, and entered into a settlement that governs,
his “right to practice his religion, Wicca.” See Diss. at 38.
But these passing observations don’t satisfy Otter’s
requirement that a district court give “[e]xplicit consideration
[to] the goals of the decree[].” 643 F.3d at 289. Nor do they
comply with Otter’s requirement that the district court find
10 ROUSER V. WHITE
that “those goals have been adequately served” before
vacating the decree. Id.
This alone provides sufficient grounds for reversing the
order vacating the decree. Id. But there’s much more.
Because the case must be returned to the district court, we
note numerous other errors so that they will not be repeated
on remand.
II. Substantial Compliance
A. Definition
The district court didn’t evaluate whether defendants
substantially complied with each of the 2011 Decree’s terms.
Instead, it concluded that they “complied with the [2011
Decree]” as a whole. As such, it abused its discretion by
applying law incorrectly. Id. at 283. Our cases do not treat
consent decrees as monolithic commands with which
defendants either comply or not. “Without question courts
treat consent decrees as contracts,” United States v. Asarco,
Inc., 430 F.3d 972, 980 (9th Cir. 2005), that have “the
additional element of judicial approbation.” Smith v. Sumner,
994 F.2d 1401, 1406 (9th Cir. 1993). Like terms in a
contract, distinct provisions of consent decrees are
independent obligations, each of which must be satisfied
before there can be a finding of substantial compliance.
Accordingly, courts don’t release parties from a consent
decree unless they have substantially complied with every one
of its provisions.
In Hallett v. Morgan we affirmed the district court’s
ruling that a prison substantially complied with the specific
provisions of a consent decree requiring the facility to
ROUSER V. WHITE 11
provide proper mental health and dental services to inmates.
296 F.3d 732, 749–50 (9th Cir. 2002). At the same time, we
reversed its determination that the prison substantially
complied with the “other medical care provisions” of the
decree. Id. at 750–51. We also tacitly endorsed the Otter
district court’s approach of separately evaluating whether
defendants complied with individual “Action Items” in a
consent decree. Otter, 643 F.3d at 285; see also Washington
v. Penwell, 700 F.2d 570, 572 (9th Cir. 1983) (remanding to
district court for failing to analyze compliance with one of
several obligations in a consent decree).
The district court thus erred by applying the wrong legal
standard for substantial compliance. The court was satisfied
that the decree had been complied with because defendants
had taken “significant steps to follow the settlement
agreement.” See supra p. 8. But merely taking significant
steps toward implementing the decree falls far short of
“substantial compliance.” While the term is not amenable to
a “mathematically precise definition,” Otter, 643 F.3d at 284
(quoting Joseph A. v. N.M. Dep’t of Human Servs., 69 F.3d
1081, 1085 (10th Cir. 1995)), state law gives it meaning. Id.
And in California a party is deemed to have substantially
complied with an obligation only where any deviation is
“unintentional and so minor or trivial as not ‘substantially to
defeat the object which the parties intend to accomplish.’”
Wells Benz, Inc. v. United States, 333 F.2d 89, 92 (9th Cir.
1964) (quoting Connell v. Higgins, 150 P. 769, 775 (Cal.
1915)).
This standard doesn’t require perfection, contrary to what
the dissent suggests. Diss. at 36. Deviations are permitted so
long as they don’t defeat the object of the decree. But merely
taking significant steps toward compliance comes nowhere
12 ROUSER V. WHITE
near satisfying this exacting standard. Rather, the district
court should have first found that defendants substantially
complied with each of the decree’s terms for a substantial
period before terminating the decree.
B. Application
The record did not contain sufficient evidence to permit
the district court to conclude that defendants met the
substantial-compliance standard. For one, the district court
had found, just four months earlier, that defendants had not
complied with provisions related to custody over group
worship supplies and expedited administrative appeals.
Wilcox says nothing in his declaration to indicate that
defendants had remedied these defects. Given this
uncontested record of violations and the absence of any
evidence that the deficient performance had been remedied,
the district court’s conclusion that there has been substantial
compliance rested on a “clearly erroneous finding of material
fact.” Otter, 643 F.3d at 283 (quoting Casey v. Albertson’s
Inc., 362 F.3d 1254, 1257 (9th Cir. 2004)).
More significant still, defendants failed to establish
altogether that they complied with several action items in the
2011 Decree. For example, defendants agreed to make copies
of a master schedule of religious services that included the
time and location of Wiccan events. Nothing in the record
documents that they fulfilled this obligation. And what of
Rouser’s ability to access his Wiccan bible in administrative
segregation? Or his right to be released from confinement in
time to attend full Wiccan services? We don’t know, because
defendants presented no evidence and the district court made
no findings as to these terms of the 2011 Decree. There is no
indication that the district court was aware of these terms
ROUSER V. WHITE 13
when it entered its order. Yet a consent decree may not be
terminated without well-supported findings that all of its
terms have been faithfully complied with for a substantial
period.
The dissent doesn’t explain how defendants could
possibly show substantial compliance with all key obligations
in a consent decree by only complying with some of those
obligations. Nor does it explain how Rouser could
“concede[]” that defendants complied with decree provisions
that weren’t mentioned in their motion to vacate. Diss. at 42.
The dissent relies on stale documents—the 2012 internal
prison memorandum and a year-old joint status report—to
support its claim that the prison was complying with all
decree provisions in 2013. Diss. at 45–46. That’s
inconsistent with our caselaw requiring courts to examine the
“record reflecting [prison] conditions as of the time
termination is sought.” Gilmore v. California, 220 F.3d 987,
1010 (9th Cir. 2000). It’s also at odds with the dissent’s own
warning that “past instances of non-compliance are of
questionable relevance in deciding whether to vacate a
consent decree.” Diss. at 46.
In addition to these gaps in the record, the district court
overlooked those of defendants’ claims that Rouser disputed.
Specifically, Rouser alleged that he was only allowed one
ritual outdoors. And he claimed that he wasn’t allowed to use
the seven candles specified in the 2011 Decree or obtain
incense—both of which were important components of
outdoor group worship. Where there is a factual dispute
about whether defendants substantially complied with a
decree, the district court may not simply “examine the
[existing] record for ‘findings.’” Gilmore, 220 F.3d at 1010.
Rather, the court must take evidence on the current conditions
14 ROUSER V. WHITE
at the prison. Id. As the dissent acknowledges, the district
court didn’t follow this rule, even though Rouser contested
“two relevant instances” of defendants’ compliance. Diss. at
41–42. The defendants’ alleged failures weren’t merely
“trivial” deviations warranting a finding of substantial
compliance. Connell, 150 P. at 775. If true, Rouser’s
allegations would have documented material noncompliance
with the terms of the decree and thus precluded any finding
of substantial compliance. Accordingly, the district court
should have—but didn’t—conduct a hearing before deciding
material factual disputes related to defendants’ compliance
with the decree.
III. Denial of Due Process
The district court terminated the 2011 Decree at a time
when Rouser wasn’t receiving notice of its orders. The court
had granted Rouser’s request to proceed pro se on March 28,
2012 and had recorded his address as the California State
Prison, Los Angeles County, in Lancaster. However, the
docket was not updated to reflect the address change, and the
court continued to send its orders to Rouser’s former
counsel—almost two dozen over the course of two years.
Each of those was returned to the district court as
undeliverable.1 Once back, a deputy clerk dutifully filed and
1
Although the court substituted Rouser for a few of his attorneys when
it granted his request to proceed pro se, the docket continued to show that
Rouser was being represented by attorney Richard Bates. Rouser had
retained Bates in 2004 to represent him during his proceedings in the
Eastern District of California. Although Bates withdrew as counsel in
2006, he was not removed as counsel of record until after Rouser filed his
appeal. The dissent claims that the withdrawal was conditioned on Rouser
filing a separate order, which he never did. Diss. at 48. But the district
court’s minute entry indicates that Bates was dismissed even absent the
ROUSER V. WHITE 15
docketed them. See Appendix A. But nobody bothered to
correct the service address or resend the court’s orders to
Rouser in prison.
Rouser wrote to the court on October 27, 2012, explaining
that he was “pro per and the only way he has been finding out
about the [court’s] hearing dates is from the response filing of
the defendants.” If anyone read this statement on the first
page of Rouser’s pleading, nobody bothered to find out why
Rouser was not getting the court’s orders or implement the
address change. The court’s orders continued to be sent
to—and immediately returned from—Rouser’s former
attorney’s address.
Rouser’s failure to receive the court’s orders prejudiced
his ability to allege violations of the 2011 Decree. The
court’s November 15, 2012 order instructed Rouser on the
proper format under the local rules for submitting notices of
additional violations. It also informed him that the court
would disregard any noncompliant filings dated after October
9, 2012. Rouser had no way of knowing about this ruling. So
he was unfairly denied the chance to re-file his flawed notices
and effectively oppose the motion to vacate the consent
decree.
Had Rouser submitted his notices in the proper format,
the district court would have been confronted with a host of
additional allegations of non-compliance. Rouser claimed in
filing of an order for the court’s signature. In any case, the district court
was well aware of Rouser’s pro se status, as it signed and filed his 2012
attorney-substitution request identifying him as proceeding “pro se.”
Thus, despite knowing Rouser was pro se, the court delivered Rouser’s
copy of its orders to Bates as if he were still Rouser’s attorney.
16 ROUSER V. WHITE
his several defective filings that defendants deprived him of
the Wiccan bible in administrative segregation; prevented
him from applying for the volunteer chapel clerk position;
and continued to deny him direct access to the warden for his
grievances. If true, each of these claims would have
amounted to a material violation of the 2011 Decree.
Most troubling is the district court’s cavalier response
once it finally realized that Rouser had not been receiving its
orders. Rouser, apparently unaware that the case was over,
wrote to the court on April 12, 2013, explaining that he’d
learned that all of the court’s orders had been sent to his
former counsel. Rouser claimed that he had been “effectively
denied all due process and basically [had] been forced to fly
blind.” He specifically sought leave to appeal “[i]f the judge
has granted the defendants’ motion [to terminate the decree]”
and requested the district court send him past orders. On the
same day, he sent a letter addressed to the clerk’s office,
explaining that his former counsel left the case in 2006, that
he was a “pro per plaintiff” and that he had not received
orders from the court, which denied him “all due process.”
The docket does not reflect any response from either the court
or the clerk’s office to Rouser’s letters.
On May 27, 2013, Rouser sent a strongly worded letter to
the deputy state attorney general who served as counsel for
defendants, with a copy to the court. In it, he declared that
the court had “refused to send [him] any of its orders
concerning this case . . . [w]hen it knows [he is] pro per and
[has] been filing all motions and responses [himself].”
Exasperated, Rouser wrote: “I am at a loss on how to get this
court to send me copies of its orders . . . . I have [written to]
the clerk as well and don’t know if I need to go to someone
ROUSER V. WHITE 17
else or who else is it when the court will not send you rulings
in your own case.”
The court finally sent a copy of its order terminating the
decree to Rouser on June 7, 2013. It declined to give Rouser
additional time to oppose the now-moot motion to vacate,
reasoning that Rouser already availed himself of the
opportunity to respond to the motion. The court faulted
Rouser for failing to keep it advised of his address and
concluded that his failure to receive orders was due to his
own oversight. The court, however, overlooked its own order
of March 28, 2012 granting Rouser’s request to proceed pro
se and recording his address as the Lancaster prison. Rouser
has remained at that prison since. The failure to effectuate
Rouser’s address change was thus the court’s fault, not
Rouser’s.
This breakdown of communication between the court and
Rouser is at loggerheads with the court’s obligation to alert
pro se litigants that they are entitled to submit evidence when
the district court is about to resolve a dispositive motion. Cf.
Anderson v. Angelone, 86 F.3d 932, 935 (9th Cir. 1996). And
it stands on its head the “special solicitude” we consistently
afford pro se prisoners due to the lack of control they have
over their mail. See Caldwell v. Amend, 30 F.3d 1199, 1201
(9th Cir. 1994). To this day, there’s nothing in the record
indicating that anyone in the Central District of California has
paused to question why so many returned orders are being
docketed in this case. Rouser tried to bring the problem to
the district court’s attention in multiple filings, all to no
18 ROUSER V. WHITE
effect.2 This raises doubts as to whether the judge or anyone
else paid sufficient attention to Rouser’s pleadings. Because
of this failure, Rouser was denied a fair opportunity to contest
defendants’ motion to terminate the decree.
* * *
We are disappointed by the district court’s insouciance in
this case. The court committed numerous errors in
terminating a consent decree that had been carefully crafted
over the course of two decades. The court applied the wrong
legal standard and found substantial compliance without
giving due attention to the various exacting obligations
embodied in the decree, and without considering whether the
purpose of the decree had been served. The court
improvidently refused to hold an evidentiary hearing to
resolve material factual disputes about whether defendants
had complied with the decree. The court also encouraged
noncompliance by finding that defendants had violated the
consent decree, yet refusing to grant any meaningful relief.
In light of the court’s own findings, only four months
earlier, that defendants had failed to comply with material
2
As discussed, in October 2012, Rouser filed a pleading indicating that
he was only receiving notice of hearing dates from the “response filing of
the defendants.” Then in April 2013, he wrote to the court and the clerk’s
office explaining that he was a pro se plaintiff and had not received the
court’s orders, and was thus deprived of due process. When the district
court and the clerk’s office remained silent, Rouser sent a letter to
opposing counsel with a copy to the court, saying that he was “at a loss on
how to get [the] court to send [him] copies of its orders.” All of these
communications were docketed and filed but had no effect until June 7,
2013, when the court eventually sent Rouser a copy of the order
terminating the decree.
ROUSER V. WHITE 19
aspects of the decree, and with no proof that those failures
had been remedied, termination of the decree was clearly an
abuse of discretion. Under no circumstances should the
district court consider terminating a decree unless and until
there has been a substantial period of substantial
compliance—in this case no less than a year—with every one
of its terms.
The district court’s protracted failure to correct Rouser’s
address, and its repeated failure to re-send notices of orders
that had been returned as undeliverable, raises even broader
questions. Bluntly stated, the record documented in
Appendix A casts doubt on whether anyone in the Central
District of California’s Clerk’s Office is paying attention to
the important and sensitive process of providing parties with
fair notice of the court’s orders. How can it be that the
district court failed to implement the change of address for
the delivery of orders after granting Rouser’s motion to
proceed pro se, and then ignored almost two dozen orders that
were returned to the court as undeliverable? Is the problem
we note here limited to this case or does it reflect an absence
of procedures designed to prevent and correct such errors in
other cases? We find it inconceivable that a properly run
clerk’s office would permit this to go on over the course of
years.
We therefore VACATE the district court’s order
terminating the consent decree, REINSTATE the 2011
Consent Decree and REMAND the case to the district court
for further proceedings consistent with our opinion. Costs to
Appellant.
20 ROUSER V. WHITE
APPENDIX A
ORDER DATE & DATE ORDER
DOCKET NO. RETURNED & CONTENTS
DOCKET NO.
March 15, 2012 April 24, 2012 In chambers notice
Dkt. No. 548 Dkt. No. 555 regarding partial joint
settlement statement
July 18, 2012 July 26, 2012 Order requiring
Dkt. No. 557 Dkt. No. 583 further filings related
to partial joint
settlement statement
July 31, 2012 August 24, 2012 Order calendaring
Dkt. No. 559 Dkt. No. 562 Rouser’s motion to
enforce consent
decree
August 24, 2012 September 10, 2012 Order granting
Dkt. No. 561 Dkt. No. 583 defendants’ request
to extend response
time
August 30, 2012 September 13, 2012 In chambers order
Dkt. No. 563 Dkt. No. 583 taking Rouser’s
motion to enforce
consent decree under
submission
September 19, 2012 October 4, 2012 Order requiring
Dkt. No. 566 Dkt. No. 583 response from
defendants to notice
of further violations
of consent decree
ROUSER V. WHITE 21
ORDER DATE & DATE ORDER
DOCKET NO. RETURNED & CONTENTS
DOCKET NO.
September 27, 2012 October 22, 2012 Order granting
Dkt. No. 568 Dkt. No. 583 extension of time to
defendants to
respond to notice of
further violations of
consent decree
October 11, 2012 October 25, 2012 In chambers order
Dkt. No. 570 Dkt. No. 583 taking notice of
further violations of
consent decree under
submission
October 19, 2012 December 7, 2012 Order placing motion
Dkt. No. 574 Dkt. No. 580 for injunction,
evidentiary hearing
and sanctions on
court calendar
November 15, 2012 December 18, 2012 Order granting
Dkt. No. 577 Dkt. No. 581 motion to enforce
consent decree in
part and instructing
Rouser that future
violations must be
filed as separate
motions
November 28, 2012 December 7, 2012 Order denying
Dkt. No. 579 Dkt. No. 582 motion for
injunction,
evidentiary hearing
and sanctions
February 1, 2013 February 22, 2013 Form order notifying
Dkt. No. 585 Dkt. No. 590 defendants of
deficiencies in their
motion to vacate
22 ROUSER V. WHITE
ORDER DATE & DATE ORDER
DOCKET NO. RETURNED & CONTENTS
DOCKET NO.
February 1, 2013 February 22, 2013 Form order striking
Dkt. No. 586 Dkt. No. 591 deficient motion to
vacate
March 13, 2013 June 12, 2013 Order granting
Dkt. No. 594 Dkt. No. 604 motion to vacate
March 18, 2013 March 25, 2013 Order denying as
Dkt. No. 596 Dkt. No. 598 moot Rouser’s
request for hearing
on motion to vacate
June 21, 2013 August 1, 2013 Rouser’s notice of
Dkt. No. 605 Dkt. No. 609 appeal to the Ninth
Circuit
July 1, 2013 August 9, 2013 Forwarding order
Dkt. No. 607 Dkt. No. 610 from Ninth Circuit
detailing appeal
schedule and
providing notice of
past due docket fee
September 5, 2013 October 16, 2013 Form order rejecting
Dkt. No. 612 Dkt. No. 615, 616 Rouser’s motion to
take judicial notice of
perjury and
fraudulent documents
October 15, 2013 November 26, 2013 Forwarding order
Dkt. No. 614 Dkt. No. 619 from Ninth Circuit
granting Rouser’s
motion to proceed in
forma pauperis
ROUSER V. WHITE 23
ORDER DATE & DATE ORDER
DOCKET NO. RETURNED & CONTENTS
DOCKET NO.
November 19, 2013 January 14, 2014 Forwarding order
Dkt. No. 618 Dkt. No. 623 from Ninth Circuit
assessing initial
partial filing fee
December 18, 2013 January 27, 2014 Forwarding order
Dkt. No. 621 Dkt. No. 624 from Ninth Circuit
denying Rouser’s
motion to take
judicial notice of
perjury and
fraudulent documents
24 ROUSER V. WHITE
CALLAHAN, Circuit Judge, dissenting:
In 1993, William Rouser filed suit against California state
prison officials (Defendants), alleging that they had infringed
his right to practice Wicca while incarcerated in violation of
the Establishment and Equal Protection Clauses of the U.S.
Constitution, among other laws. Twenty years later, the
district court concluded that a court-approved settlement
agreement (the Consent Decree) balancing Rouser’s ability to
practice Wicca with prison officials’ need to maintain safe
prisons had served its purpose. The court therefore vacated
the Decree. We must decide whether the district court abused
its discretion in determining that Defendants had substantially
complied with the Decree.
The majority’s reversal of the district court improperly
denies the heightened deference due a trial court’s finding
that a consent decree aimed at institutional reform has served
its purpose, is at odds with the Prison Litigation Reform Act
(PLRA), and is undermined by a record showing compliance
that is substantial. The majority rules that a party seeking to
terminate a consent decree, including decrees involving
federal-court intervention in state prisons, must demonstrate
compliance with every one of a decree’s provisions for a
substantial period of time. This rule effectively requires full,
not substantial compliance. The rule is contrary to our
precedent and Congressional intent, and it thrusts federal
courts beyond their institutional competence. I dissent.
I.
Understanding the district court’s determination that
Defendants have substantially complied with the Consent
Decree first requires understanding the Decree’s contents and
ROUSER V. WHITE 25
the events preceding its vacatur. The majority does not
explain the Decree’s numerous provisions and instead focuses
on, and incorrectly describes, the few provisions that Rouser
says have been violated. The majority’s failure to
acknowledge the undisputed breadth of Defendants’
compliance is not without irony given that the majority faults
the district court for not addressing “every one of [the
Decree’s] provisions.” Maj. Op. 10 (emphasis in original).
A. The Consent Decree
Since Rouser initiated this lawsuit, the district court,
among other things, approved a private settlement agreement
in 1997, reopened the case in 2004 following Rouser’s
motion to enforce the settlement agreement, and granted
Rouser a preliminary injunction in 2010. After Defendants
noticed that they intended to appeal the district court’s
preliminary injunction order, the parties agreed to mediation
and, in 2011, reached a court-approved settlement agreement
that is the focus of this appeal.
The Consent Decree provides Rouser with access to listed
personal religious items, including the Witches’ Bible, the
Book of Shadows, other religious literature, a deck of tarot
cards, up to four ounces of listed oils, listed herbs, up to five
one-inch stones or ten one-half-inch stones, four feathers, a
pentagram or other approved Wiccan medallion, and one
package of eighteen seashells not larger than one-half inch in
diameter. While in administrative segregation or the security
housing unit Rouser is allowed access only to the Witches’
Bible, and only to the extent that prisoners of other religious
faiths are allowed to have a religious text in those units. The
Decree provides Rouser with access to a different set of items
for group religious services, including candles and candle
26 ROUSER V. WHITE
holders, incense and incense holders, listed oils, water, salt,
listed herbs, tarot cards, a drum, feathers, stones, seashells, a
wood wand, a chalice or ritual cup, a small bell, a drum, an
altar and altar cloth, and a small picture or statue of deities.
While the Decree permits Rouser to use seven candles for
group religious services, his access is subject to institutional
safety and security concerns, including applicable fire safety
regulations. Prison officials maintain custody and control
over these group religious items while they are not in use.
The Consent Decree requires Defendants to provide
Rouser with “reasonable opportunities to participate” in
Wiccan events, including weekly services called Esbats,
weekly religious study groups, and special religious services
called Sabbats. In fulfilling these obligations, however, the
Decree recognizes that Defendants also must “tak[e] into
account factors such as the number of inmates, available
space, safety and security, resources, and administrative
considerations.” Sabbats are held eight times a year, and
prison officials are required to “use their reasonable efforts to
schedule the Sabbats on the dates identified.” If a Sabbat is
cancelled for administrative reasons, prison officials must
reschedule the Sabbat at the earliest practicable date.
However, the Decree provides that officials will not
reschedule a Sabbat cancelled because of inmate-caused
safety or security concerns. The Decree requires Defendants
to construct a fire pit and outdoor worship area, which Rouser
may use during Sabbats. A volunteer Wiccan minister may
attend and lead Wiccan services.
The Decree also includes provisions aimed at ensuring
that prison officials treat Wicca similarly to how they treat
other religions. For example, the Decree provides that the
schedule, time, and location of Wiccan events will be posted
ROUSER V. WHITE 27
and announced in the same manner as other religious events
and that Rouser may apply and be considered for an inmate
work assignment as a clerk to the facility chaplain. The
Decree requires prison officials to provide food for Sabbats
to the extent that they provide food for special religious
observances of other religious groups. Similarly, if prison
officials allow inmates to bring food or canteen items to
religious services and study groups, they will permit Rouser
to bring comparable food or canteen items to weekly Wiccan
services and study groups.
More generally, the Decree provides Rouser with an
expedited inmate appeals process for appeals relating to
noncompliance with the Decree. It also provides that prison
officials may temporarily suspend the Decree’s provisions in
emergencies, for security reasons, or when Rouser is confined
in administrative segregation or the secure housing unit.
Finally, the Decree includes a termination provision stating
that, one year after its filing, Defendants could move to
vacate the decree, dismiss the action with prejudice, and enter
judgment on the ground that the preponderance of the
evidence shows they have substantially complied with the
Decree.
In sum, the Consent Decree’s central goal is to permit
Rouser, like inmates of other faiths, to practice his religion
while incarcerated consistent with prison officials’ need to
maintain safe, orderly prisons in the face of finite resources.
Achieving this goal requires prison officials to permit Rouser
reasonable access to the religious items, services, and
facilities that are important to Wicca.
28 ROUSER V. WHITE
B. Post-Settlement Litigation
Defendants proceeded to fulfill their obligations under the
Consent Decree after the district court entered it on October
18, 2011. On March 8, 2012, the parties filed a joint status
report describing Defendants’ compliance. The parties stated
that Defendants had provided Rouser with access to all
specified personal and group religious items, allowed Rouser
to order additional religious items, progressed with
construction of the fire pit, included Wiccan events in the
master schedule for religious services and study groups,
secured a volunteer Wiccan minister, and determined that
there currently was not a chaplain clerk position open for
application by Rouser or any other inmate. Defendants
permitted Rouser to attend Wiccan services and activities on
a regular basis, though Rouser complained that “there have
been several instances where services were not timely started
or were otherwise canceled.” Rouser, however,
acknowledged that he was able to avail himself of an
expedited inmate appeals process to address his concern.
On July 26, 2012, Rouser, now proceeding pro se, filed
the first of a series of documents with the district court
seeking to compel Defendants’ compliance with the Consent
Decree. He alleged that (1) a religious necklace had been
damaged; (2) the December 2011 Yule Sabbat had been
canceled due to a contraband-related “laundry sweep”; (3)
weekly services had been “terminated indefinitely” for two
weeks; (4) officers were “desecrating” religious items in their
custody by touching them while dispensing them; (5) the
outdoor religious area under construction had not been
completed; and (6) he had twice been denied expedited
prisoner appeals. In later filings, Rouser sought monetary
damages and immediate release from administrative
ROUSER V. WHITE 29
segregation, where he alleged that he was placed due to
“enemy concerns” related to a Protestant inmate. He also
alleged that Defendants told him that he could not order
candles and incense.
Defendants responded with declarations from prison staff.
Defendants explained that, consistent with the Consent
Decree, the Yule Sabbat was “canceled due to inmate-caused
safety and security issues, specifically reports of contraband
in the inmate laundry that precipitated a temporary lockdown
of the prison facility.” They explained that Wiccan weekly
services were briefly suspended following a May 9, 2012
service during which “volunteers covered up windows in the
chapel with inmates inside, restricting the view into the area,
thereby creating a significant safety and security breach
within the prison.” The suspension was lifted two weeks
later, immediately after the Wiccan volunteers returned and
were further instructed on compliance with prison procedures.
Defendants averred that Rouser’s religious necklace, which
is not listed among the group religious items kept by prison
officials, was damaged while it was in his control.
Defendants confirmed that they completed construction of the
outdoor religious activity area and fire pit on August 21,
2012, and that Rouser had made use of the area since that
time. Addressing Rouser’s latter allegations, Defendants
explained that Rouser was not denied access to either candles
or incense, but acknowledged “some miscommunication
concerning [his] access and use of an open flame during
services” stemming from security concerns, which had been
resolved.
On November 15, 2012, the district court consolidated
most of Rouser’s numerous filings and denied most of his
30 ROUSER V. WHITE
claims.1 The court began by noting that many of Rouser’s
allegations were “unclear, unsupported, or unrelated to the
terms of the Decree.” The court found that prison officials
had not violated the Decree by improperly cancelling
services, noting that the officials provided evidence that
services were properly cancelled because of security and
safety threats. The court found that prison officials had not
denied Rouser access to an outdoor religious area or
“desecrated” religious items by touching them, as they must
in order to keep and dispense them. The court acknowledged
Rouser’s allegation that a necklace had been damaged and
other unspecified items had been stolen, and ordered prison
officials to adhere to the terms of the Consent Decree “[t]o
the extent religious items are under [their] control.”
Addressing the only uncontested violation of the Decree, the
court ordered Defendants to provide Rouser with expedited
inmate appeals concerning the Decree.
C. Vacatur of the Consent Decree
A few months later, on February 4, 2013, Defendants
moved to vacate the Consent Decree. In support of the
motion, Defendants provided a declaration from Nathan
Wilcox, a Correctional Counselor and Litigation Coordinator
at the Lancaster Prison. Wilcox attested to Defendants’ “full
compliance with the terms of the Consent Decree, including
the construction of the outdoor religious area and Plaintiff’s
access to religious items.” Wilcox stated that Rouser had
been provided access to the personal religious items set forth
in the Decree, including “tarot cards, oils, herbs, stones,
1
On November 28, 2012, the court issued a separate order denying
Rouser’s other outstanding motions because Rouser had failed to comply
with the Consent Decree’s exhaustion requirement.
ROUSER V. WHITE 31
feathers, and shells.” Rouser also had received access to all
religious group items for Wiccan services, and had “been
permitted to order and purchase additional religious items.”
Esbats now were scheduled and held on a weekly basis with
the assistance of a volunteer Wiccan minister, subject to
institutional safety and security concerns. A fire pit and
outdoor religious worship area had been constructed for
Wiccan inmates’ use. Wilcox explained that Wiccan inmates
used the outdoor religious area for the Samhain Sabbat on
October 31, 2012, and the Yule Sabbat on December 23,
2012. Defendants also submitted an October 18, 2012
memorandum requiring Wiccan service “to be announced in
the same manner and to the same extent as announced for
religious events of other religious groups,” and detailing
procedures for storage of group religious items and use of the
outdoor religious area.
On February 21, 2013, Rouser opposed the motion to
vacate, alleging that prison officials had only allowed him, in
the absence of a volunteer chaplain, to complete one ritual at
the outdoor religious ground since it was completed and to
use one candle, instead of seven, for the 2012 Yule Sabbat.
On March 13, 2013, the district court granted the motion
to vacate and entered judgment for Defendants. Citing to
declarations by prison staff and “internal prison procedures
setting forth approved Wiccan religious activities,” the court
ruled that Defendants had demonstrated by a preponderance
of the evidence that they had substantially complied with
Decree. The court explained that “[a]lthough it is not entirely
clear from his Opposition, Plaintiff contends that Defendants
have not complied with the settlement agreement in a handful
of instances.” The court concluded that, even assuming these
32 ROUSER V. WHITE
allegations to be true, they did not overcome Defendants’
showing of substantial compliance.
II.
The district court’s three-page order granting the motion
to vacate is terse. Indeed, if the majority simply vacated and
remanded for further explanation little ink would be spilled
in dissent.2 However, the majority goes much further, rattling
off supposed errors like a gatling gun. In doing so, the
majority commits larger legal errors related to the standards
applicable to the termination of consent decrees governing
state prisons.
A. We owe special deference to the district court’s
determination the Consent Decree has served its
purpose.
We review the district court’s grant of a motion to vacate
a consent decree for an abuse of discretion. Jeff D. v. Otter,
643 F.3d 278, 283 (9th Cir. 2011). While the abuse-of-
discretion standard is always deferential, the deference owed
2
While terse, the district court’s explanation is sufficient to allow for
meaningful judicial review. See Husain v. Olympic Airways, 316 F.3d
829, 835 (9th Cir. 2002) (“[I]f the district court’s findings are plausible in
light of the record viewed in its entirety, the appellate court cannot reverse
even if it is convinced it would have found differently.”). As elaborated
below, the largely uncontested declaration and prison procedures
referenced by the district court confirm that the court did not abuse its
discretion in finding substantial compliance. This case is therefore not, as
Rouser contends, like Blue Cross & Blue Shield of Ala. v. Unity
Outpatient Surgery Center, Inc., 490 F.3d 718, 725 (9th Cir. 2007), where
we remanded because a district court’s order was devoid of “any
discussion of the relevant factors or any indication of the basis for its
decision.”
ROUSER V. WHITE 33
a district court’s decision to terminate a consent decree
governing institutional reform is heightened where, as here,
the trial judge oversaw the decree for a significant period of
time. See Jeff D. v. Kempthorne, 365 F.3d 844, 850 (9th Cir.
2004). A trial court in an institutional reform case is due
special deference not only because of its familiarity with any
progress toward compliance and past instances of non-
compliance, but also because of its better understanding of
the challenges that might make more perfect compliance
unrealistic. For example, in overseeing a decree governing
the management of state prisons, the trial court “develop[s]
an understanding of the difficulties involved in . . . managing
a jail that an appellate court, even with the best possible
briefing, could never hope to match.” Rufo v. Inmates of
Suffolk Cty. Jail, 502 U.S. 367, 394 (O’Connor, J.,
concurring); see also Hutto v. Finney, 437 U.S. 678, 688
(1978) (providing “special deference because of the trial
judge’s years of experience with the problem at hand and his
recognition of the limits on a federal court’s authority in a
case of this kind”).
The majority initially errs by denying special deference to
the district court’s determination that the Consent Decree has
served its purpose, reasoning that the district court handled
the case for “only two years.” Maj. Op. 8. But even
assuming that a district court must oversee a consent decree
for some threshold amount of time before deference is due,
two years of managing a decree is more than enough. This
case’s history demonstrates that the district court is far better
positioned than we are to determine if Defendants have
substantially complied with the Decree. As noted, the district
court decided to grant the motion to vacate not long after
granting in part and denying in part Rouser’s motion to
enforce. The district court was thus very familiar with the
34 ROUSER V. WHITE
challenges facing prison officials’ compliance, the steps that
Defendants had made toward achieving full compliance, and
the nature of Rouser’s remaining allegations of non-
compliance.
That the district court’s experience supervising the Decree
for two years is enough to merit deference is also supported
by the PLRA, pursuant to which the Consent Decree was
entered. The PLRA provides that, after two years, consent
decrees providing prospective relief with respect to prison
conditions are “terminable upon the motion of any party or
intervener,” unless “the court makes written findings based
on the record that prospective relief remains necessary to
correct a current and ongoing violation of the Federal right”
at issue. 18 U.S.C. § 3626(b)(1), (3). If consent decrees are
presumptively terminable after two years under the PLRA, it
follows that two years of supervising a decree is a sufficient
amount of time for a trial judge to acquire the expertise
needed to determine whether a decree’s purpose has been
served.
Of course, we don’t need Congress to tell us that two
years is a substantial amount of time. Common sense tells us
so. Two years is the term of a member of the House of
Representatives, for example. Indeed, we classify crimes
punishable by two years imprisonment as felonies because
that is a substantial amount of time. The majority errs by
refusing to accord “substantial deference to ‘the trial judge’s
years of experience with the problem at hand.’” Rufo, 502
U.S. at 394 (O’Connor, J., concurring) (quoting Hutto, 437
U.S. at 688).
ROUSER V. WHITE 35
B. The district court did not abuse its discretion in
vacating the Consent Decree.
Giving the district court the special deference it is owed,
I cannot agree with the majority that the district court abused
its discretion in vacating the Consent Decree. “A district
court abuses its discretion if it does not apply the correct law
or if it rests its decision on a clearly erroneous finding of
material fact.” Casey v. Albertson’s Inc., 362 F.3d 1254,
1257 (9th Cir. 2004). Rouser has demonstrated neither of
these conditions.
1. The district court did not fail to observe any
procedure required for terminating consent
decrees. Rather, the majority creates a rule that is
inconsistent with our case law and the PLRA.
The majority first faults the district court for failing to
observe procedure that the majority rules courts must follow
in deciding whether to vacate a consent decree. According to
the majority, a court faced with a motion to terminate a
consent decree must first determine whether the basic
purposes of the decree have been met, and then must
determine whether the party seeking release from the decree
has “substantially complied with every one of its provisions”
for a “substantial period.” Maj. Op. 10, 11–12, 13, 19.
The majority’s “substantial period of substantial
compliance with every term” invention is inconsistent with
our case law and at odds with the PLRA. The majority
attributes its rule to “the teachings of Otter.” Maj. Op. 9. But
Jeff D. v. Otter, 643 F.3d 278 (9th Cir. 2011), created no such
rule. In Otter, we faulted the district court for employing “the
contempt burden and standard of proof” in determining
36 ROUSER V. WHITE
whether “substantial compliance [permitted] consent decrees
to be vacated.” Otter, 643 F.3d at 287. We also directed the
district court, on remand, to consider whether “the larger
purposes of the decrees have been served,” rather than
focusing myopically on whether individual “Action Items”
had been completed. Id. at 288. This direction is consistent
with our other decisions, which emphasize that substantial
compliance does not mean that “every last wish and hope of
the decree [has been] achieved, but [that] the decree
accomplished its essential purposes and the situation
improved greatly.” Labor/Cmty. Strategy Ctr. v. Los Angeles
Cty. Metro. Transp. Auth., 564 F.3d 1115, 1123 (9th Cir.
2009) (emphasis added). The majority’s rule requiring a
substantial period of substantial compliance with every term
violates this precedent.
The majority’s rule, which effectively requires full rather
than substantial compliance, is particularly inappropriate in
cases involving federal oversight of a state prison. Its rule is
in tension with the general “principle that federal court
intervention in state institutions is a temporary measure and
may extend no longer than necessary to cure constitutional
violations.” Id. (citing Bd. of Ed. of Okla. City Pub. Sch. v.
Dowell, 498 U.S. 237, 248 (1991); Toussaint v. McCarthy,
801 F.2d 1080, 1087 (9th Cir. 1986)). The majority’s rule is
also inconsistent with the PLRA, which we have recognized
was “intended . . . to revive the hands-off doctrine” regarding
federal judicial intervention in prisons. Gilmore v.
California, 220 F.3d 987, 997 (9th Cir. 2000). Under the
PLRA, a court must terminate a consent decree after two
years in the absence of a “current and ongoing violation” of
ROUSER V. WHITE 37
an asserted federal right.3 18 U.S.C. § 3626(b)(3). “In other
words, if a violation no longer exists, the statute does not
permit the court” to refuse to terminate the Decree. Hallett v.
Morgan, 296 F.3d 732, 743 (9th Cir. 2002).
Accordingly, the majority’s rule requiring substantial
compliance with every provision for a substantial period of
time has no place under our precedent or the law. Nor is its
rule obligating district courts to examine in detail past
instances of non-compliance that are not ongoing consistent
with applicable law in prison-reform cases. Rather, our
precedent and California law direct courts to consider
“whether the larger purposes of [consent] decrees have been
served” in deciding whether their vacatur is justified due to
substantial compliance. Otter, 643 F.3d at 287; see
Labor/Cmty. Strategy Ctr., 564 F.3d at 1122 (“Our analysis
requires we do more than simply count the number of
technical deviations from the decree. Instead, we must
determine, using a holistic view of all the available
information, whether [defendant’s] compliance with the
Decree overall was substantial, notwithstanding some
minimal level of noncompliance.”). And in deciding whether
prospective relief remains merited in a case aimed at reform
of a state prison, federal courts should “give substantial
3
Rouser accepts that this requirement applies to the district court’s
termination of the Consent Decree, but argues that the PLRA requires
evidentiary hearings and written findings before a district court terminates
a consent decree governed by the PLRA. This position is contrary to
§ 3626(b)(3)’s plain language, our precedent, and decisions of our sister
circuits. See, e.g., Hallett, 296 F.3d at 743; Cagle v. Hutto, 177 F.3d 253,
258 (4th Cir. 1999); see also Guajardo v. Tex. Dep’t of Criminal Justice,
363 F.3d 392, 397 (5th Cir. 2004).
38 ROUSER V. WHITE
weight to any adverse impact on public safety or the
operation of a criminal justice system.” 18 U.S.C.
§ 3626(a)(2).
Here, the district court satisfied these requirements by
recognizing that the underlying purpose of the Consent
Decree was to provide for Rouser’s “ability to practice Wicca
while incarcerated.” The majority does not explain why this
description of the Decree’s goal is inadequate or even attempt
to provide a better description. The district court then found
that Defendants’ largely uncontested declarations and
memorandum regarding prison procedures demonstrated, by
a preponderance of evidence, that Defendants have
substantially complied with the Decree. In so holding, the
district court did not violate any court-mandated procedure
for resolving motions to vacate consent decrees.
Nor did the district court err, as the majority alternatively
holds, by finding substantial compliance without conducting
an evidentiary hearing. The majority relies on Gilmore v.
California, but that case only held that a district court must
“take evidence on the current circumstances at the prison . . .
with respect to those remedies as to which plaintiffs did not
concede that defendants were in compliance.” 220 F.3d at
1010. Here the district court took and considered evidence on
current circumstances presented by both parties and assumed
Rouser’s evidence as true. The district court did not, as the
majority incorrectly states, “simply examine the existing
record.” Maj Op. 13–14 (quotation marks and alteration
omitted). The majority fails to understand that the act of
taking evidence includes taking declarations and other new
evidence, and is not limited to live hearings.
ROUSER V. WHITE 39
Neither our precedent nor the terms of the Consent
Decree required more. See, e.g., Stewart v. Cate, 757 F.3d
929, 942 (9th Cir. 2014) (holding that a district court did not
abuse its discretion in denying a request for an evidentiary
hearing where newly presented evidence requiring a
credibility assessment was assumed true). In fact, under the
PLRA, neither evidentiary hearings nor written findings
based on the record are required where a federal court
determines that the consent decree governing state prisons
should terminate. 18 U.S.C. § 3626(b)(3); Cagle, 177 F.3d at
258 (“The plain language of § 3626(b)(3) imposes no
requirement that a district court conduct an evidentiary
hearing in order to determine whether there is a current and
ongoing violation of federal rights.”).
2. The district court did not use an incorrect
standard for substantial compliance.
The majority also faults the district court for “applying
the wrong legal standard for substantial compliance.” Maj.
Op. 11. The majority claims that the district court equated
substantial compliance with “significant steps to follow the
settlement agreement.” Id. Rouser, who is now represented
by a major law firm, did not make, and thus waived, this
argument, which unfairly characterizes the district court’s
decision.4 Consistent with the Consent Decree’s termination
4
Without providing any supporting precedent, Rouser incorrectly faults
the district court for “fail[ing] to define substantial compliance.” The
district court was under no obligation to define substantial compliance.
In fact, the court had no need to clarify its meaning in light of the parties’
agreement that California law governs the term. The parties agree that,
under California law, substantial compliance does not require “literal
compliance,” it requires that “the defects of performance must not pervade
the whole or be so essential as substantially to defeat the object which the
40 ROUSER V. WHITE
provision, the district court placed the evidentiary burden on
Defendants, and found that they had “demonstrated by a
preponderance of the evidence that they have substantially
complied with the terms of the [Decree].” The reference to
“significant steps to follow the settlement agreement” simply
indicates that Defendants have diligently worked to achieve
compliance with the Decree, as detailed in their mostly
uncontested filings. The district court concluded that
Defendants’ evidence established that they “have
substantially complied with the settlement agreement.”
3. The district court did not clearly err in finding
that a preponderance of the evidence showed
substantial compliance with the Consent Decree.
The majority also holds that the district court’s substantial
compliance determination is based on a clearly erroneous
factual finding. Under the abuse of discretion standard, “if
the district court’s findings are plausible in light of the record
viewed in its entirety, the appellate court cannot reverse even
if it is convinced it would have found differently.” Husain,
316 F.3d at 835. Again, this standard is even more
deferential where, as here, we review a district court’s
determination that a consent decree aimed at institutional
reform has served its purpose. Labor/Cmty. Strategy Ctr.,
564 F.3d at 1121.
Applying these rules to the record presented compels me
to conclude that the district court did not abuse its discretion
in finding that Defendants had substantially complied with
the Consent Decree. As noted, the district court found that
parties intend to accomplish.” Connell v. Higgins, 170 Cal. 541, 556
(1915); see also Labor/Cmty. Strategy Ctr., 564 F.3d at 1122.
ROUSER V. WHITE 41
“declarations from prison staff, outlining the various actions
taken to comply with the settlement agreement” and “internal
prison procedures setting forth approved Wiccan religious
activities” demonstrated Defendants’ substantial compliance
with the Decree. The Wilcox declaration explained that (1)
Rouser had been provided access to the personal and religious
group items listed in the Decree; (2) Wiccan group services
were scheduled and held on a weekly basis with the
assistance of a volunteer Wiccan minister, subject to
institutional safety and security considerations; (3) a fire pit
and outdoor religious worship area had been constructed for
Wiccan inmates’ use; and (4) Wiccan inmates used the
outdoor religious area for the “Samhain sabbat on October 31,
2012 and the Yule sabbat on December 23, 2012.” The
referenced prison procedures, among other things, (1) provide
that Wiccan “services shall be announced in the same manner
and to the same extent as announced for religious events of
other religious groups”; (2) explain that the group religious
items listed in the Consent Decree “are to be secured in the
Facility Chapel”; and (3) establish rules for use of the outdoor
religious area.
In response to Defendants’ proffer of compliance with the
Decree, Rouser alleged two relevant instances of non-
compliance.5 He alleged that prison officials had (1) only
allowed him, in the absence of the volunteer chaplain, to use
one candle, instead of seven, for the Yule 2012 Sabbat; and
5
Like his earlier motion to enforce, Rouser’s opposition to the motion
to vacate focused in large part on his placement in administrative
segregation due to enemy concerns related to other inmates. As the
district court implicitly acknowledged in its earlier order on Rouser’s
motion to enforce, these allegations are “unclear” and “unrelated” to the
Consent Decree. The majority appears to agree and does not address these
allegations.
42 ROUSER V. WHITE
(2) only allowed him, in the absence of the volunteer
chaplain, to complete one ritual at the outdoor religious
ground since it was completed a few months earlier. The
district court determined that, even accepting these
allegations that Defendants “have not complied with the
[Decree] in a handful of instances” as true, they do not refute
Defendants’ showing of substantial compliance.
The record does not show that this finding was clearly
erroneous. Rouser did not contest most of Defendants’ sworn
declaration stating that Defendants had fully complied with
the Decree. Accordingly, the district court could take as true
that Defendants complied with the Consent Decree except as
to those provisions disputed by Rouser. The majority
incorrectly treats all provisions in the Consent Decree not
specifically addressed by Defendants as having been
insufficiently evidenced. However, Defendants were not
required to list out and address every line of the Consent
Decree separately, and the majority errs by faulting the
district court for not holding Defendants to such a
requirement. A district court need not take evidence
regarding provisions of a consent decree governing a state
prison with which a plaintiff concedes defendants have
complied. See Gilmore, 220 F.3d at 1010; 18 U.S.C.
§ 3626(b)(3).
There is therefore no dispute that, for example: volunteer
Wiccan ministers now may attend and lead Wiccan services;
weekly Esbats are now permitted; weekly Wiccan study
groups are now permitted; an outdoor religious area and fire
pit have been constructed for Wiccan inmates, which inmates
had already used during Sabbats; Wiccan services now are
posted and announced in the same manner as other religious
events; Wiccan inmates are permitted to order food for
ROUSER V. WHITE 43
Sabbats and bring food to weekly Esbats and study groups;
Rouser has been allowed to order and possess all of the
personal religious items listed in the Decree; and Rouser may
apply and be considered for an inmate work assignment as a
clerk to the facility chaplain.
Additionally, it is apparent that there is no dispute that
Rouser has been permitted to order and access the full list of
group religious items. The single exception, according to
Rouser, was that, during one Sabbat, he was only allowed
access to one candle instead of seven in the absence of the
volunteer chaplain.6 While the Decree permits Rouser to use
seven candles for group religious services, subject to
“institutional safety and security concerns,” the alleged non-
compliance with this provision for a single service does not
undermine Defendants’ showing of substantial compliance.
Indeed, Rouser has not alleged that he was denied access to
any group religious item for any weekly Esbat or any other
Sabbat.7
6
In one part of his opposition, Rouser alleges more generally that he
was not permitted to order candles, incense, or associated holders. This
allegation, however, is contradicted by Rouser’s subsequent allegation that
he was denied access to more than one candle (with no mention of
incense) and only during the 2012 Yule Sabbat. Indeed, Rouser does not
dispute that he was permitted to use candles and incense during other
Sabbats and weekly Esbats. It follows that he has been permitted to order
candles, incense, and associated holders.
7
It is notable that the only items that have been of concern are those
involving open flames, which raise obvious prison-safety concerns.
Indeed, in responding to Rouser’s same claim in his motion to enforce
regarding candles and incense, Defendants explained that Rouser was not
denied access to either candles or incense, but acknowledged “some
miscommunication concerning [his] access and use of an open flame
during services” stemming from security concerns, which had been
44 ROUSER V. WHITE
Rouser’s other allegation of non-compliance—that he was
only allowed to complete one ritual at the outdoor religious
ground since it was completed a few months earlier—does
not undermine Defendants’ showing of substantial
compliance either. There were three Sabbats since the
beginning of October—the Samhain Sabbat on October 31,
the Yule Sabbat on December 23, and the Imbolg Sabbat on
February 2. Before the Imbolg Sabbat had come to pass,
Defendants declared under penalty of perjury that inmates
used the outdoor religious area for the Samhain Sabbat and
the Yule Sabbat. Thus, it appears that Rouser’s concern is
either with the Imbolg Sabbat or that, while Rouser accessed
the outdoor religious area during the Yule Sabbat, he could
not appropriately observe the event because he was denied
access to the requisite number of candles. Regardless, Rouser
acknowledged that he was unable to use the outdoor religious
area because the Wiccan volunteer chaplain was not available
to supervise the event.
Even accepting Rouser’s allegation as true, the fact that
he could not use the outdoor religious area due to the absence
of the volunteer chaplain during one Sabbat does not
necessarily demonstrate even an isolated violation of the
Consent Decree. The Decree acknowledges that, in providing
Rouser “reasonable opportunities to participate in Wiccan
group religious services,” prison officials must “tak[e] into
account factors such as the number of inmates, available
resolved. Prison officials should, consistent with safety and administrative
considerations, respect a Wiccan inmate’s interest in using candles for
Wiccan services to the same extent that inmates of other religions are
permitted to use candles for their services. It is likely unreasonable,
however, to expect prison officials to be able to supervise the use of
candles by Rouser and all other inmates every week of the year and on
every Sabbat.
ROUSER V. WHITE 45
space, safety and security, resources, and administrative
considerations, so long as those factors are also considered in
determining the access of other religious groups to regularly
scheduled group religious activities.” Moreover, Defendants’
prison procedures memorandum governing the use of the
outdoor religious area makes clear that a volunteer or other
staff must be available to escort inmates to the event.
Indicative of its commitment to riddle the district court’s
exercise of discretion with as many holes as possible,
regardless of their merit, the majority goes beyond the
allegations of non-compliance made by Rouser in his
opposition to the motion to vacate. First, the majority faults
the district court and Defendants for not addressing a
provision of the Consent Decree that does not exist. The
majority says that Defendants should have addressed
Rouser’s “right to be released from confinement in time to
attend full Wiccan services.” Maj. Op. 12. The Decree
contains no such provision. In fact, the Decree allows prison
officials to suspend its provisions “when Rouser is confined
in Administrative Segregation.”
Second, the majority faults Defendants for not addressing
issues that they addressed. For example, the majority faults
Defendants for not explaining whether they had made “copies
of a master schedule of religious services that included the
time and location of Wiccan events.” However, Rouser
himself acknowledged in a joint status report that Defendants
had included Wiccan events in the master schedule for
religious services and study groups, as required. Moreover,
the prison procedures memorandum states that “services shall
be announced in the same manner and the same extent as
46 ROUSER V. WHITE
announced for religious events of other religious groups.8 As
with the vast majority of other provisions in the Consent
Decree, there is simply no dispute that Defendants have
complied with this requirement.
Third, the majority faults the district court for not
mentioning past instances of non-compliance with the
Decree. As explained above, past instances of non-
compliance are of questionable relevance in deciding whether
to vacate a consent decree entered under the PLRA, which
requires an “ongoing violation of the Federal right” for relief
to be continued after two years. See 18 U.S.C. § 3626(b)(3);
Hallett, 296 F.3d at 743. In any case, the majority wrongly
concludes that the district court’s decision on the motion to
enforce undermines the same court’s decision on the motion
to vacate. The district court did not find that prison officials
had damaged Rouser’s necklace. Instead, it ordered prison
officials to adhere to the terms of the Consent Decree “[t]o
the extent religious items are under [their] control.” Indeed,
8
The majority’s dismissal of evidence such as the prison procedures
memorandum and the joint status report as “stale” illustrates how far the
majority oversteps its role as a reviewing court. This evidence was not
stale—the prison procedures memorandum was less than five months old
and the joint status report was a year old when the district court vacated
the Decree. Combined with Defendants’ declarations, this evidence
confirmed, as Rouser did not dispute in opposition to the motion to vacate,
that all or nearly all of the Decree’s provisions had been achieved.
Moreover, the majority does not appreciate the difference between past,
now-corrected instances of non-compliance and past acts achieving
compliance. While corrected instances of non-compliance are of
questionable relevance under the PLRA, which requires an “ongoing
violation of the Federal right” for relief to be continued, 18 U.S.C.
§ 3626(b)(3), a district court obviously may look into the past in assessing
whether a decree’s objectives, such as commitments to construct fire pit
and allow access to spiritual leaders, have been accomplished.
ROUSER V. WHITE 47
a “religious necklace” is not a listed item in the Consent
Decree. To the extent that the necklace in question is the
medallion or pentagram, it is listed as a personal religious
item, which the Decree states that Rouser possesses.
The only uncontested violation of the Decree alleged in
the motion to enforce was Defendants’ failure to provide
Rouser with expedited inmate appeals on a few occasions.
However, this procedural failure did not undermine the
purpose of the Decree. The Decree’s purpose is to provide
Rouser with access to religious items, services, spiritual
leadership, and facilities that are important to Wicca, not to
provide Rouser with expedited inmate appeals. The majority
fails to appreciate the difference between a procedural
mechanism and a “larger purpose” of a decree. See Otter,
643 F.3d at 287; see also Labor/Cmty. Strategy Ctr., 564 F.3d
at 1123.
On the record presented, the district court did not clearly
err in finding that Rouser’s allegations that Defendants had
failed to comply with the Decree in a “handful of instances”
did not undermine Defendants’ showing of substantial
compliance. The alleged “defects of performance [do] not
pervade the whole.” Connell, 170 Cal. at 556. Nor are they
“so essential as substantially to defeat the object which the
parties intend to accomplish.” Id. Instead, “the larger
purposes of [the Consent Decree has] been served,” Otter,
643 F.3d at 287, “and the situation improved greatly.”
Labor/Cmty. Strategy Ctr., 564 F.3d at 1123. Like inmates of
other religions, Rouser now has access, consistent with prison
security and administrative considerations, to religious items,
services, spiritual leadership, and facilities that are important
to his faith. It certainly cannot be said that extending the
48 ROUSER V. WHITE
Decree is necessary to correct an ongoing violation of
Rouser’s rights under federal law.
4. Rouser has not been deprived of due process, as he
concedes.
The final reason the majority gives for reversal is that the
district court violated Rouser’s due process rights by sending
several orders to Rouser’s former counsel instead of Rouser.
This argument was not raised by Rouser on appeal and was
therefore abandoned. Wilcox v. Comm’r, 848 F.2d 1007,
1008 n.2 (9th Cir. 1988). Indeed, it is the majority that
demonstrates “insouciance” by jumping to name-calling
without having heard from the parties about due process
concerns.
As an initial matter, the majority inappropriately pins all
of the blame for the misdeliveries on the district court.
Rouser’s previous attorney moved to withdraw as counsel in
2006, citing irreconcilable differences, including Rouser’s
propensity to pepper the court with unauthorized filings.
After a hearing, the district court granted the motion to
withdraw subject to submission of “an order for the court’s
signature.” The district court subsequently reminded the
parties that “[t]he court indicated its intent to grant this
motion and directed plaintiff’s counsel to file a proposed
order.” Neither Rouser nor his former counsel ever filed the
requisite order and thus none was entered. Accordingly, the
majority faults the district court for sending court orders to a
counsel whose motion to withdraw was never granted and
who thus continued to be listed as Rouser’s counsel.
Moreover, Rouser was represented by attorneys at a major
law firm from April 21, 2007, until March 28, 2012. During
ROUSER V. WHITE 49
this time, and certainly before withdrawing, Rouser’s counsel
could have notified the court that the docket should not list
Rouser’s previous attorney as a counsel of record. Even if the
former counsel’s ongoing listing as a counsel of record was
not apparent then, Rouser should have notified the district
court of any problem earlier once it became apparent. The
majority states that Rouser clearly did so in October 2012.
However, the filing that the majority references only requests
that “the court send him the ruling of the hearing of 10/5/12
for plaintiff is pro per and the only way he has been finding
out about the hearing dates is from the response filing of
defendants.” The import of this single sentence of a stream-
of-consciousness letter focused on unrelated issues, if clearer
now in hindsight, was undoubtedly less than obvious back
then. Rouser did not clearly notify the district court of the
delivery problem until April 24, 2013. Thereafter, on June 7,
2013, the district court entered an order acknowledging that
Rouser had been proceeding pro se and directing the clerk to
send Rouser the order vacating the Consent Decree that
Rouser requested.
Even if the district court’s failure to send documents to
Rouser is partially attributed to the court and somehow
constituted an error of constitutional magnitude, the district
court correctly concluded that Rouser suffered no prejudice.
Rouser received Defendants’ motion to vacate, learned of the
court’s earlier order on his motion to enforce, and timely filed
an opposition to the motion to vacate. Rouser has not alleged
any prejudice.
The majority nonetheless contends that “Rouser’s failure
to receive the court’s orders prejudiced his ability to allege
violations of the 2011 Decree.” Maj. Op. 15. The majority
reasons that the docket error left Rouser in the dark about the
50 ROUSER V. WHITE
requirements that must be met before submitting notices of
violations of the Decree, which the majority says were set
forth in the district court’s November 14, 2012 order denying
Rouser’s motion to enforce. The majority’s argument fails
for several reasons. First, it is not clear that Rouser did not
actually obtain the November 14, 2012 order. Second, the
order did not create any new filing requirements, it only
referenced the Consent Decree’s exhaustion provision. As
the district court noted, the Consent Decree requires that
“allegations that Defendants violated the Decree must follow
the administrative procedures outlined in the Decree before
being brought to this Court.” Rouser was well aware of these
requirements, having agreed to the Consent Decree, and thus
suffered no prejudice even if he did not obtain the order.
Third, the subsequent allegations made by Rouser do not
demonstrate that the district court erred in vacating the
Consent Decree.9 Rouser’s allegation that he was denied the
Witches’ Bible while in administrative segregation may be
concerning, but Rouser did not repeat this allegation in
opposing the motion to vacate. Moreover, the Consent
Decree only requires prison officials to permit Rouser access
to the Witches’ Bible to the extent that prisoners of other
religious faiths are allowed to have a religious text while in
administrative segregation. Rouser has never alleged that
other prisoners are allowed such texts. Nor did Rouser repeat
9
The majority’s lists of filings that the district court failed to address
and orders that Rouser didn’t receive are inaccurate. The district court
addressed Rouser’s March 13, 2013 oral argument request, which the
majority describes as alleging a violation of the expedited appeal
provision, in a March 18, 2013 Order. Appendix A incorrectly lists
Rouser as not having received the Court’s March 15, 2012 Order.
However, Rouser was represented by counsel at the time that Order was
filed, and his counsel received the Order.
ROUSER V. WHITE 51
his unclear allegation regarding applying for a volunteer
chapel clerk position. In any case, this provision does not
guarantee that Rouser will be selected for the chaplain clerk
position, but only allows him “to apply and be considered for
such an assignment.” In a joint status report, Rouser had
previously acknowledged that Defendants had determined
that there currently was not a chaplain clerk position open for
application by Rouser or any other inmate.
Thus, even if Rouser had made a due process argument,
and even if the district court had made a due process error,
Rouser suffered no prejudice.
III.
The district courts’s finding of substantial compliance
was not clearly erroneous or based on an incorrect legal
standard. The majority, however, imposes a standard for
terminating consent decrees that is inconsistent with our
precedent and federal courts’ limited role in overseeing
reform of state prisons. The majority also overreaches our
role as an appellate court by refusing to provide the district
court the special deference that it is due in this case and
offhandedly dismissing evidence that the trial court found
compelling.
The record shows that the basic purpose of the Consent
Decree has been achieved. Prison officials now permit
Rouser, like inmates of other faiths, to practice his religion
while incarcerated, consistent with security and
administrative considerations. Rouser has reasonable access
to the religious items, services, spiritual leadership, and
facilities that are important to his faith. Prison officials
provide Wiccan events with resources comparable to those
52 ROUSER V. WHITE
provided for events of other religions, such as publicity, food,
and staffing. While strictly observing any faith, particularly
one involving many rituals, is undoubtedly difficult for an
inmate, whose rights are not coextensive with those of the
general public, Rouser’s ability to observe Wicca is greatly
improved. It is time for this twenty-three-year-old case to be
dismissed. Accordingly, I dissent.