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

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

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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

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TABLE OF CONTENTS (cont'd)
IV. THE DISTRICT COURT ERRED IN DISMISSING QUILLAR’S ACTION
WITHOUT GRANTING LEAVE TO AMEND ........................................................27
CONCLUSION ...................................................................................................... 29

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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

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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

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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

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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)?

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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

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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

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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.

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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.)

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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.

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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

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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

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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.

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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

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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

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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.

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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.

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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

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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

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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
0107 at ln. 25-28, 0122);
• A Rules Violation Report signed by Mendoza documenting a March
0108 at ln. 13-15, 0125); and
• A Rules Violation Report signed by Mendoza documenting an April
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.)

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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.

- 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

- 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,”

- 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

- 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

- 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

- 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

- 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

- 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[.]”

- 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).

- 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

- 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.

- 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

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
MANUEL ALVAREZ, JR.

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.
MANUEL ALVAREZ, JR.

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

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