Case 2:09-cv-00215-JMS-MJD Document 227 Filed 07/19/13 Page 1 of 7 PageID #: 3496

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

JOHN LINDH,

)

Plaintiff,

)

)

vs.

)

)

WARDEN, Federal Correctional Institution, )

Terre Haute, Indiana,

)

Defendant.

)

2:09-cv-00215-JMS-MJD

ORDER

Presently pending before the Court is Plaintiff’s Motion to Hold Defendant in Contempt,

[dkt. 209], which the Court DENIES for the reasons that follow.

I. BACKGROUND

Mr. Lindh brought the underlying action in this matter under the Religious Freedom

Restoration Act of 1993 (“RFRA”), which provides that the “[g]overnment shall not

substantially burden a person’s exercise of religion even if the burden results from a rule of

‘general applicability’” unless it demonstrates that “the application of the burden to the person

(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means

of furthering that interest.” 42 U.S.C. § 2000bb-1. The Court, after finding that the Warden

“failed to establish either that the ban [on group prayer] is justified by a compelling interest or

that it is the least restrictive means to further a compelling governmental interest,” [dkt. 200 at

28], concluded that the Warden’s then-policy banning group prayer in the Communications

Management Unit (“CMU”) violated RFRA with respect to Mr. Lindh “by denying him the

ability to engage in daily congregate prayer during all times that the prisoners are otherwise

released from their cells,” [dkt. 201]. The Court struck the complete ban but afforded the

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Case 2:09-cv-00215-JMS-MJD Document 227 Filed 07/19/13 Page 2 of 7 PageID #: 3497
Warden 60 days to craft a less restrictive policy. The Court’s judgment was not appealed.
On March 12, 2013, the Warden issued a bulletin stating the following, in relevant part:
Inmates who wish to pray outside of their cell at times other than that of the normal weekly authorized group prayer are authorized to engage in congregate worship services in multi-purpose room #3 which has been repurposed as a prayer and meditation area for use by all denominations. Use of the room is limited to 10 inmates at any given time. Generally, this room will be open daily from 7-9 a.m., 1-3 p.m., and 6:30-8:30 p.m. Requests for utilization of this area outside these timeframes will be considered by the Warden and may be authorized so long as normal unit operations are not adversely impacted (i.e. count times, mainline, inmate lockdown periods, etc.). This room will be secured at all other times not scheduled for this use.
In order to ensure a secure and orderly use of the room, inmate religious preference groups who wish to utilize the room for group prayer or meditation may do so by signing up for one (1) thirty minute time slot during each two hour block of time. A sign-up sheet will be posted by the prayer and meditation room for one day at the end of each month to allow each group to sign up for their thirty minute time slot for each time block. That schedule will be formalized and reviewed by Religious Services then posted by staff. A list of expectations for inmate behavior while utilizing the prayer and meditation room will be reviewed by Religious Services staff and posted for the inmate population.
[Dkt. 209-1 (original emphasis).]
On April 10, 2013, Mr. Lindh moved to hold the Warden in contempt, arguing that the
March 12 policy violated the Court’s order that Mr. Lindh have “the ability to engage in daily
congregate prayer during all times that the prisoners are otherwise released from their cells.”
[Dkt. 209 at 3.] Mr. Lindh was particularly concerned that the three times daily prayer violated
his sincerely held religious beliefs, because the Muslim daily prayer was sometimes required at
four time periods per day when the prisoners were otherwise released from their cells.
Subsequent to that filing, the parties had a telephonic status conference before Magistrate Judge
Dinsmore during which the matter was discussed. [Dkt. 213.]
After the status conference, the Bureau of Prisons (“BOP”) authorized a change in the
policy, effective May 21, 2013, which the Warden disclosed in his supplemental response. [Dkt.
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Case 2:09-cv-00215-JMS-MJD Document 227 Filed 07/19/13 Page 3 of 7 PageID #: 3498
215.] The new policy no longer allows prisoners to meet together in a common room three times a day to pray, but rather permits inmate group prayer “only in their assigned cell with a second inmate so long as one of the inmates is assigned to the cell and it does not interfere with the safe, secure, and orderly running of the institution.” [Dkt. 215-1.] The specifics of the altered policy were explained to the CMU inmates at a May 20, 2013 town meeting, and an Inmate Bulletin was issued. [Dkts. 215 at 1-2; 215-1.] Thus the original policy about which Mr. Lindh complained was no longer at issue. On May 24, 2013, Mr. Lindh filed a surreply in which he argued that the new policy likewise constitutes contempt of the Court’s injunction. [Dkt. 216 at 2.]
II. NATURE OF THE MOTION “There is no such thing as an independent cause of action for civil contempt. Instead, civil contempt proceedings are considered to be part of the action from which they stem.” D. Patrick, Inc. v. Ford Motor Co., 8 F.3d 455, 459 (7th Cir. 1993) (internal citation and quotation marks omitted). Given the “supplemental character” of civil contempt, the Court proceeds “in a more summary fashion” than it would for another type of proceeding. Id. While an evidentiary hearing is unnecessary if facts are not in dispute, see Alexander v. Chicago Park Dist ., 927 F.2d 1014, 1025 (7th Cir. 1991) (no evidentiary hearing necessary where relevant facts were not in dispute), the Court conducted an evidentiary hearing to fully develop the record. Civil contempt sanctions are either coercive or remedial. Bailey v. Roob, 567 F.3d 930, 933 (7th Cir. 2009). “Coercive sanctions induce a party’s compliance with a court order in the future, while remedial sanctions compensate an injured party for an opponent’s past noncompliance.” Id. Here, Mr. Lindh is only seeking coercive sanctions, which would compel the Warden’s compliance with the Court’s order that he be allowed to engage in congregate prayer at
3

Case 2:09-cv-00215-JMS-MJD Document 227 Filed 07/19/13 Page 4 of 7 PageID #: 3499
all times when the prisoners are not otherwise locked in their cells. [Dkt. 211 at 4.]
III. DISCUSSION To prevail on a contempt petition, Mr. Lindh must demonstrate by clear and convincing evidence that the Warden “has violated the express and unequivocal command of a court order.” D. Patrick, Inc., 8 F.3d at 460 (emphasis omitted). Mr. Lindh has the burden of showing that: (1) the order sets forth an unambiguous command; (2) the Warden violated that command; (3) the Warden’s violation was significant, meaning that it did not substantially comply with the order; and (4) the Warden failed to take steps to reasonably and diligently comply with the order. See Prima Tek II, L.L.C. v. Klerk’s Plastic Indu stries, B.V., 525 F.3d 533, 542 (7th Cir. 2008). The fourth part of the test means that “[t]he district court does not, however, ordinarily have to find that the violation was ‘willful’ and may find a party in civil contempt if that party has not been reasonably diligent and energetic in attempting to accomplish what was ordered.” Goluba v. School Dist. of Ripon, 45 F.3d 1035, 1037 (7th Cir. 1995) (internal quotations omitted). The parties do not dispute that the order set forth an unambiguous command; they only dispute whether the Warden has violated the order by instituting a policy that does not substantially comply with the order and by failing to take steps to reasonably and diligently comply. Nevertheless, the Court chooses to clarify its order to prevent future litigation.
A. Clarification of the Court’s Order In its judgment and permanent injunction issued on January 11, 2013, the Court stated the following: The Warden has violated Mr. Lindh’s rights under the RFRA by denying him the ability to engage in daily congregate prayer during all times that the prisoners are otherwise released from their cells and a declaratory judgment, pursuant to 28 U.S.C. § 2201 and Rule 57 of the Federal Rules of Civil Procedure is hereby
4

Case 2:09-cv-00215-JMS-MJD Document 227 Filed 07/19/13 Page 5 of 7 PageID #: 3500
entered to that effect. [Dkt. 201.] Mr. Lindh has argued that the “spirit” of that order “contemplates that prisoners will be praying outside of their cells.” [Dkt. 216 at 2, 4.] While neither Mr. Lindh nor the Warden has placed at issue whether the above language is unambiguous, from the parties’ attempts to divine the “spirit” of the order, it is evident to the Court that clarification of the order’s meaning is necessary.
When the Court entered judgment in favor of Mr. Lindh and issued a permanent injunction “prohibiting the Warden from enforcing the policy against congregate prayer for Muslims, including Mr. Lindh, for whom daily congregate prayer is a sincerely held religious belief,” the Court did so in light of evidence that CMU prisoners are free to assemble for nearly all manner of group activities besides prayer, including, but not limited to, playing basketball, watching television and movies, playing cards, discussing current events, and watching religious videos in Arabic. Specifically, the Warden failed to convince the Court that group prayer was distinguishable from these other activities as necessitating a greater level of supervision than the Warden provided for all of the other activities. The Court was unmoved then, and it remains unmoved that the Warden’s current restrictions on group prayer actually further a compelling governmental interest.
Though not explicitly stated in the earlier judgment, the Court’s allowance of “less restrictive measures” was in recognition of the Warden’s limited discretion under RFRA. But that discretion is bounded by RFRA’s requirements that only the least restrictive means may be used to substantially burden an inmate’s sincerely held religious beliefs, and only if in furtherance of a compelling government interest. The Warden argues here that he “diligently attempted, and continues to search for ways to implement a policy and procedure that complies
5

Case 2:09-cv-00215-JMS-MJD Document 227 Filed 07/19/13 Page 6 of 7 PageID #: 3501
with the Court’s final judgment, while preserving a safe and orderly operation of the Unit.” The factual background presented here does not support that conclusion. The Warden initially set aside a common room for group prayer three times daily. He subsequently revoked that access and now limits the prayer to two people and in-cell only. Given the early effort, it is evident to the Court that the Warden’s current policy on group prayer does not constitute the least restrictive means of furthering safe and orderly operation, as RFRA requires. See 42 U.S.C. § 2000bb-1. However, before the Court can properly hold the Warden in contempt, a clear and unambiguous command needs to have been set forth.
For clarity, the Court provides the following unambiguous command and will allow the Warden thirty days from the date of this order to comply: the Warden is to allow group prayer during every Muslim prayer time for w hich the inmates are not confined to their cells. While the Warden may place a limit on the location and number of inmates w ho may assemble in a single place, the limitations mu st be reasonable and in keeping w ith RFRA’s requirement that they are the le ast restrictive means of furthering a compelling interest b e employed. Put simply, just as in mates are free to assemble, socialize, and engage in oth er group activities in common, rec reational areas during times th ey are released from their cells, so too must they be allow ed to engage in group prayer in common, out-of-cell areas, which the Warden may designate in his discretion.
The Court reminds the Warden that he would be well within his discretion to discipline or deny group prayer to any inmates who abuse the right to assemble, just as he would respond to misbehavior during any other group activity. In his discretion, the Warden may, for example, assign the inmates to prayer groups he chooses, designate specific rooms or times, and require rotation of the prayer leader, among other measures, to avoid the development of clique-like
6

Case 2:09-cv-00215-JMS-MJD Document 227 Filed 07/19/13 Page 7 of 7 PageID #: 3502

behavior, inmate hierarchy, or to prevent any inmate defiance or any other prayer-related concerns the Warden has expressed, so long as the restrictions he places constitute the least restrictive means of ensuring order.
While it is not the Court’s role to craft a policy for the Warden, the Court has provided the foregoing guidance in light of the Warden’s request at the conclusion of oral argument on this matter that the Court elucidate the spirit of its order and provide more specific instruction on how the Warden might comply.
In light of this clarification, the Court will allow the Warden thirty days in which to craft a policy that complies with this Court’s clarified order that the prisoners be allowed to engage in group prayer at all prayer times during which they are otherwise released from their cells. See Hall v. Stone, 170 F.3d 706, 708 (7th Cir. 1999) (allowing the Warden thirty days to demonstrate that an “appropriate system” is in place that will prevent recurrence of the failure to comply).
IV. CONCLUSION For the above-stated reasons, the Court DENIES Mr. Lindh’s Motion to Hold Defendant in Contempt, [dkt. 209], as the Court finds its earlier order was not unambiguous and required clarification. Within this order, the Court has clarified its earlier order with an unambiguous command, and it ORDERS the Warden to consider his current policy in light of that command and comply within thirty days.

07/19/2013 Distribution via ECF only to counsel of record

_______________________________
Hon. Jane Magnus-Stinson, Judge United States District Court Southern District of Indiana

7

 
 • Case 2:09-cv-00215-JMS-MJD Document 1 Filed 06/18/09 Page 1 of 6 PageID #: 1

UNITfrJ S rATES DISTRJCT LOl.lU SOU IHERN DISTRJC"l' Of 11'\niA>IA
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Unit t"CMU") at lhc l~edcral Correcuon lushtutU.m in Icrrc Huult:, Jndiunn. IJc::-. pik Ihe

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Case 2:09-cv-00215-JMS-MJD Document 1 Filed 06/18/09 Page 2 of 6 PageID #: 2

JurltditHon. 't'tDUC'. cause of xcLion

2.

rhis Co~rn ho...~ 1Urisdii.!1h1n of lhi'- cause pur:-;ullJH to 28 II S.C.§ 1311

3. Venue i> rropcr m thH diSUlcl pw<uaullo ~\ L.S.C. { 1391

·I

lJcclnral!~rv rchcr i~ uuthoril~d hy 28 U.S.C". §§ 2201, 220:! and h)> Rule 57 nt the

F<d"""l Rules nfCi\·il Pro.:edun:

5. Tnis aouon IS brougln pu,.,unm to RFRA. ~2 U.S.C' ~ 2(J()()bh-1 (c)

6. rnaam An111out ts an udull person l'\IITrntly C()nfi ncd m the CMU d t the F"l·d~.:mJ

7.

Randall T Royer;., ntl tl.dult per~nn cum:ntly conlined In the f'Mt J at th1.: f-ederal

Corre("liOn.•lln~unmvn m 1 t~ Hllllte. lndum~

It

ur The Ward\'n Lhc fl:dcrnl Corrcc1ional ln:stitution. Terre llautc, lndt31\:1, is i ut:d

Wanlen of the ln11111utton. ~al Radq;eround

\.ovenunc.mt shall nc.ll 'uhstantial1y hurd..:-n a pe:rson'~ cXi:I'CiS\.' l'r reltg,ton .,;\en if
the burden rcs.ulls from a ruJe of ~t.-nc:r<il :!pplic.thtllty, l'.M:q'll as pn.h ided in ,.ms.c.ion (h) oflhl> -«.·uoo
fh} E.:xc-.:pli(u\ (jo,emmenl mll)· :rulht.m1i:dl)· bunkn a JkT..cu1's C\~'T\.·1'\ot" oi n:h~wn onJ) 11 I{ ~ttrnonstr:ltc:~ that ;1pph,,ltJOO uf tllC burden h,) th~ f'C(SOn-
(I) ~~ m tl.trthetan4.:c uf:1 oompdhng 1:~-'' enuncmulunerc-s.1; w•d
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Case 2:09-cv-00215-JMS-MJD Document 1 Filed 06/18/09 Page 3 of 6 PageID #: 3
(2) '' the feast rcsl·n~liVC m~ans Of rurthcnng lhilt \.'OJTl}ltlhng
£.OVl'MUnt'ntal imcre.I\L
(c) Jud1cial n:lltf A re~on whu\e reliiJhU.' excrc1sc: has been hurdcmxl 111 \'iohnion of' tJus :,c&:hOt'i
ma)" u,_-.en the1 'iolilhOO a5o 41 cla1m or de"fensl.' m a judiciuiJlf~)C\.""Cdmg and obcam :IJ'I"'f~•pnatc rt:hef ag,uu<~t a gl)\•t:mmcnt. StaudHlg 1<.1 a'~Crt a dBun or J\:hmse under 1h1i SC'clhJn j\hall b.: b"(IVCJlttxl hy the gc.."Dt"flll 1ulcs t\1 <.tan.dint uuder ankle Ill of cbc Cmtsurunon l' actua l Allt1!alion~
11 As comp:&r« l to other unit~ withm the ~OP. the CMU fl!oturc:, h:wcr opportwuttcs for telephone: calls and '''1IS. I~. ]lw pn..a11crs w11lml the CMII ~c bou~ ln indi\'idual cell.... 11. Th~.: rrisoncr~ Within lh~: C.VtU ,ln: allow~d (IU( of thdr cells from ~arproximllld) nl"l a.m. unlll3:45 r rn. and ohm from 4·10 p m. unuiY:IS p.m.
lloY..e\'n, che muln~rurposc n""un ts ~-nnaJiy \ h.;ml.
<he CMIJ.
1

Case 2:09-cv-00215-JMS-MJD Document 1 Filed 06/18/09 Page 4 of 6 PageID #: 4
mamlmes be tl on~ •n o JU'OUP 10 AI the CMU pldinuff) aod the other \1ushm rn(;(){KT; nrt' allowed to go to tht< mulu-purpo::.c room I'Vr Lhe J u~n'uh pmy~T.
~U. H~l\\e\tr. m lh~ Hadnh. the \,:ll.lllrttaons ._,f 'Dylngs of the: f>rorhtt. numm•\15
,uti:tncnt' are made that gTOU(l J)I"OlY(T fur .l!l the mal'ldGtcd prav~ is pl':'fCrrc:J nml thnt such pr:l)'CI multtpht~ th~: blc,~mgs and otlltcy "'' prayer. ~I Thcn·forc.. whcncn"T possible. \1uslirm. ,~,u pr:ty togcdu.T dunng the lhe dady
pruyers:. 22 Thc')C dail}• pru)'·etS lr\: vcr} sh:on.. uml tukc onI~ a fC'\o\ mmures.
2l Whceft the C\·tU W3.s Vre'fli?d, Mu.;Juu pnMmetS: WI.Tc aUowed IV meet together in 1hc tmJ11 1-purpos~;: rt)CJm to ~~·~ngc in lhc fi ve ~ai ly JU!l)l~ h11' 3pprox imat~ly :.1~ milnths. ~4 HO\h'' cr. the d~f~:nd.lnt ba... now pn.tuhllcd ~dl C.lngrt:gatc pt3}cr for plaumtfs nnd the other Mushm pnsont:rS, even th('ough the lllUitl-pUrpt)!-~ room 1S gcnomlly u1lOccupi~l ond a :s1..h~olc cn uld easil) t-e ~rca.u.".\1 ..o thar guup pr:tycr cl\Uid occur lfl rhe muJti--ptlfp()SC room w•tlwut 3••)' diSNruoo to othet schOOulN e\'cnt~. 1~. '11l1S Ull)JU~j; .a suhstruu ial bur(l~l oo pl<~lllltffs• rcl1p1ous c'<ercises. 2o. l'll1nlirfo;; h3vc timel)" and pnlptrly p~ued :dl gnnam."C". :ll each lc\d, pro\H.Ia.f
b~ 11le BOP to dt3Hmge the dcni:~l oftht· u:-.e {)f the mulfi·PUlll')'e room l<•r g.roup vrover.
27 Cop1ef. of the.· grlevnnl:Cs, anti rt:'iflOilSl.:~• ..tre on~t"-hcd hcrc..1o ao; tdubil 1\ for rhunuffA.m.-out .mel J-".xh.ibn R f« phunhJ)' KO)t.-r 2H At 1hc curre•U Hmc their gnc\'lin~es ha\t! hocn pending :utile linnl lcvd of rcv1cw 01 the \lftic~.· ur Ciencrul C'flUibd rl \f rhc BOr rOr mmc: lh:m -40 \.3..lrnJrrr d~}"S. 1\~lht:r platn11ff hob ro:e•H"d m "·nun.g nuf1C"C' of un c-xtcru;iun of timt' for Lh...· Cit"!'lll'ral C'm.s.n~cl to

Case 2:09-cv-00215-JMS-MJD Document 1 Filed 06/18/09 Page 5 of 6 PageID #: 5
comrlere 11~ r~\'te\\·, AccotdangJy, porsttant ffi 28 C.F.R. ~ 542 lit the JDic"ances hn\e bGocn deemc..'tl to be dc..-niM l.I the GenN'3.1 Coun.~. l •
21>. The defendant's ncr1on$ m tlils mfln~r l'li'C n4,.\1 :-uh~l:mllally JUsnfil'<L
no adcquatt rcm{'()y .11 law.
C'l~aim for relie.f
times a dtty impose~ u .~ubstw,illl burden 011 plaintill':o' t'cbgiuu~ cx_crci:-e nnd ndther furthers a ~mpd hn~ govcmrrh!tuaJ 1n1~:SL nor 10i 11 th-= le.1.~ r~ncm e il}tcmuti"t to funhcr llun intc:re'-t It i\ thercfon: unla"'ful as '1nl!11111g the Religious Freedom
Rcswrnuon Acl, 42 U S.C.§ 2000bh-l
Rtqucst for relitf \VI ir:lti:'FORE, pl:rinhO'; requ,·so that dti• ('oun :
c. Eme1· u prellnun<~ry aniun>.:timl, la1cr It' be mlldt p-cmumcnt \..-'tlJnuung ddC!ndmt h• allow rlAJ.nutr~ Jlld Olbt'l' Mushm J'flSOflCN wnhin lhe CM\.1 lO en,ga&te tn gn>up pr.t)'\.T fnt the m:~nd.lt~ ti\ e ibdy pr.l}ffl.
d. A\''ard Jll:unli lh lhcir c.•'B ::.nd r~:A.~nabh: DtiOml·~·' fe-es p ursuant to 2.S
L.~.c ~W1
e. Award ull other pwper rdu:l'.
/\(). 6777-4"'
AC'LIJ u flndi:.no
r. 1031 Was.hHl~IOn Sl.
lmba"''li)Uii~ 1!\ S6202
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Case 2:09-cv-00215-JMS-MJD Document 1 Filed 06/18/09 Page 6 of 6 PageID #: 6
31 7d>35-40SQ <XI 1114 lax: J IH>3S·4 I05
Attorney foe Pluhn1ffs

Case 2:09-cv-00215-JMS-MJD Document 1-1 Filed 06/18/09 Page 1 of 17 PageID #: 7
Exhibit A

Case 2:09-cv-00215-JMS-MJD Document 1-1 Filed 06/18/09 Page 2 of 17 PageID #: 8
Exhibit A

I
Case 2:09-cv-00215-JMS-MJD Document 1-C1enFtriole!dO0f6fi/r1e8A/0d9minPiastgreat3lvotf R1t7mPtadgyeAIDpp#t:a9l

1)1"1«tiC hll-poil:lJ!'l1 Jt~ tre DOr<W, subc:ndourt.'lf'ld O~~ee:~py edl at diiiO:UplMi BP-2:29(J3) 1W DN~I J), er.:..:J~~a.,t IIIIIY .....
~M«t ..::... be'A:hmiuo.,,rJI ~· •r~

"""" [ARNAOIJT, Enaam ]
l.ASJ.NI\Mt!, fUt.ST, ).«0DLEOOT1Al.

l l lt504·424l
RP,t1 ~0

D·CMU
t.;Nn

[ FCI/{M) Terce llauta]
U.SnnnlOI'f

Put A · 'REASON f OR APt EAL
l do herein r•-elaim >iord tor word as [ dld In my SP·9 & BP - 10 as the ~arden God the Regional Dire~tor f~iled to reach ay complete raquest for REMEDY & liELIP.F, as stlpuhted in the orlgnial dal m
for r~lief. Thoce c l alrn e ace res t~ted as if s t at~d here by t his
ceferenca.

t fur t ber s ug,,ges t t hat an otdcr f orthcOn [ ng fr om your or f ice is in

light or the Regional Olceetors finding A a soond aid in resol ving

this matter. My suggestion is that th a Chaplain and hi~ ~taff be

ordered to nceORGOdate~ our population during the day and even-

ing in the Multi -~urpose Atca Lo view r~ligious materials,

and

inclusive a llow foL ~~to conduct our 5 daily,prayers. T as WQll

as the hrot'hers tfl'ill· of eourtJc -re:spect each o t her and al l here in

CMU.

Done, ~Ot iCF.D and CLATM~D thi~,

z.;'!iay of Apdt 2009

DllT£

e.c.

Aggrl~ ~ Enftam Arnaout
SJQWURQ01' lt£QUES1Dt

Pari C • R.BCI:IPT
~~---------------------------------

CA:,I: NUMBl!lt· - - -- - -- l><S1T111MM

Case 2:09-cv-00215-JMS-MJD Document 1-1 Filed 06/18/09 Page 4 of 17 PageID #: 10

SNAAX M ARNAOOT. l4 50 t ••I H

Tf!RRii: llAUTB ret

tll:T J CIRl

;200 8URRNJ ROAD N:ORTi-1

TERRt: HA\ITR, lti ·Pil08

Case 2:09-cv-00215-JMS-MJD Document 1-1 Filed 06/18/09 Page 5 of 17 PageID #: 11

U.S. Department of Justice

Federal Bureau of Prisons

Regional Administrative Remedy Appeal

North Central Regional Office

Part B -Response

-~--- ~

Administrative Romedy Number: 527287-R t

This is in respon54 to your Regional Administrative Remedy Appeal receiVed in this offoce on March 19, 2009. in whiCh you allege you are not allowed to pray or practiCe any rerogioos activltM!s, even Individual, except one hour per week. You are requesting free access to, and the practice of, your religion. as It had been in all of 2007.
We have reviewed your appeal and the response the Warden provided Jo your BP-229. In accordance with Program Stafement 5360 09, Religious Beliefs and Practices, the level of scheduled relogious activrties may be commensurate wtth the mossion or need of the lnstiiUtion. Therefore, you have been aDowed to hold a Friday afternoon congregate prayer service in keeping with lhe tmdrtoons of your Islamic religion. You are encouraged to practice your religion as an Individual practitioner In your assigned cell. Fur1hermore, the Institution is in the process of connecting a TVIOVD player in Jhe multipurpose room for use in self-directed religious study. You are encouraged to continue constructive dialogue with the Religious SeiVIees Department seeking effective ways to enhance the study and practice of your religion ••hlle assigned to the Communications Management Unit
Based on lhe above Information, lhls response In your Regional Administrative Remedy Appeal ts for Informational purposes only.
If you are dissatisfied with this response, you may appeal to the Office of General Counsel, Federal Bureau of Prisons. 320 First Streel, NW, Washingfon, DC 20534. Your appeal must be received in the Office of General Counsel within 30 days from the date of lhis response

Case 2:09-cv-00215-JMS-MJD

Document• 1• -j1l e

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•

0A6d/m18in/0i s9t r nPd vacgeRe6moefd1y7APp ta>geael ID

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LAST NAM[!. n il~l. M!DDI.E I>ITTIM.

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UNIT

fr'Cl Terre Haute]
lNSlrTUTfOI\

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A ·RE~SONt-·OR+\PI'E:o\1.
ep .. 9 request wh

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ich a

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appealing e noo- assu

the mpfl

ans'.oters it for t

h

to
e

the [nfo
follow~:Q.e;

r•ns reas

Reso
ons:

~t 1 one
1 Neither

answer answered nor addressed the i~~ues of my claims: 2) ·To insta l~tely

TtVhouin~h

t

h i

e t'

mul s s

tiour ti l l

poso no t

f urono~rtn1o

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fter Lng)

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CMU ervic

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teven re-

quirements of my faith; (3 Wit!> tne new 2005 FBOP policy >360 . og ll!mltj qg Sun-

ni t.ll.)sltm service to two our s per week na tionwide, not 1.ncludinR VCR/TV or

OVO ; (4) Netion~ ide FBOP facilities have a spfet fic ehar-cl orea in !very In -

stitution which is open anytime I Llri.nf{ f ree moves for meditation emi p r ayers

ineludinJ>; access to all rell.glou• mater ials (print, TV, Auc ioi VCR, OVD,etc,)

while CM!J bas NOTHING like toet, even regard ing what t liey col t he multipur -

NOI pose room is EMPTY all rlav long , yet even though we are a pOJ:?I.I lAti.on of 90k

Muslim or Rtac

f~lth
t tc.e

a1 nywh

ore

hliegv:~touo~bliaC~<tat~Vo'rlvti~psra,

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had

been for all of 2007, t he policy our whole f!rsl year her e . Plensc issue the

Order for this relief •• requested in t.hl.s appeal.

Aggrieved ,

1&th day of March 20 GO

Thank you,

o,m
hr1 8 • f{ESP()KSE -!

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Rt.CIONAL OIRECI\!f.

If dh1>iniJ.fitd ...,lh du~ tC.j~'(oii'J'I", ~"il "'') a:r rult,.. 1he C-c ner.tl Cuun$1:1 Y?ll' J.pped m~u b.: ~«e1w..J 111 1~ (jeN;n! r!<~u~el's Offa.:c wichm JO ~·~~k,,.~:~,

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Case 2:09-cv-00215-JMS-MJD Document 1-1U.FSil.eDd e06p/a18rt/0m9enPtaogef J7uosf 1ti7cPeageID #: 13
Federal Bureau of Prisons
Federal Correctional Complex
Terre Haute, Indiana
01/ieo of tile WtJtden
Administrative Remedy Detivel)' Document
Inmate Name: ARNBDul
Inmate Reg•ster # IL\60/f- 'ijJo
Remedy# 63"1-~-~~
Date Signed by the Warden: _ _,~,_·C\_,_-0=-q-=-----
Regional Director.:_ _ _ _ __ National Inmate Appeals Admio•strator.:_- - - -- -
Date Delivered to Inmate: ----=~~·1!.!!-~~~---
Printed name of staff member and Litle:
~~Yh{Yl.l.. (ltl(~
Signature ot staff member: ---~(~J\~~~-=(::~.·__Date: -=3~·:..:.114/~L--

Case 2:09-cv-00215-JMS-MJD Document 1-1 Filed 06/18/09 Page 8 of 17 PageID #: 14

Remedy No.: 527287-F 1

FCC Terre Haute, IN

PART B- RESPONSE
ThIs is in response to your Admlnls1ratlve Remedy receipted on February 23, 2009, in which you request additional lime for the Islamic Community in the multi-purpose room of the Communication Management Unll (CMUJ.
A review of your request indtcates the Islamic Community, in the CMU, is provided a one hour Jumah Prayer service each Friday just as the general population. The process is underway for a TV to be mounted In the mult~purpose room for religious vfdeo/DVO vfewtng. When this project i.s complete, an additional time wtll be scheduled for each recognized refigioos corMlunlty represented in the CMU. No addtUonal time wil be provided until the project is completed.
Therefore, your request for Administrative Remedy is denied.
If you are dissatlsfled with this response, you may appeal to the Regional Director, Federal Bureau of Prisons, Gateway Comple<, Tower II, 8., Floor, 4., & Slate Ave., Kansas City, Kansas 66101 . Your appeal must be received within 20 calendar days of the data of this response.

i1·9-pl?
Data

'~arden

Case 2:09-cv-00215-JMS-MJD Document 1-1 Filed 06/18/09 Page 9 of 17 PageID #: 15
Exhibit B

0.,...._ .. ·a.s.

Case 2:09-cv-00215-JMS-MJD Document 1-1 Filed 06/18/09 Page 10 of 17 PageID #: 16

tl )11511«

Ctnrral Olliec Adminislrllli•·• Remed) App<'3]

~tA"-

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....,... aM~~ C."QIIXt 4r>llll

l'art A·

FOR APPEAL

T am appealing the. refusa1 of the. chaplain, '-'A r den, Rnd. unit Danager to aec~~oodate ay religious practices, including group prayer, religious s lud LQs, and voluntary fa sts. This ra1 fusal amounts to an ongoing pattern of the nforemention"d individuals a nd th~!o BOP p l ac i ng a substantial burden on my s incere religi ous pTaetJce:s. Evcm if t here wns some l eg it-imate c.or rcct-ional goal involved (a goal th•se of fic ials fail to even attempt to identify, and whieb the Regional Diree~or in hl6 respon se fails to even attempt t o identify) the outr i&ht refu~ol. lof these stAff members to make any alt~mpt to ccco~nodat my rcl iglous prFtc:.tices 1s not. thc Least restric t ive means of ac.h leving that , aoal. Thus, these s taff oembers and t he BOP a r e violstlng my rights under ~h~ ' First Amendment and the R~lll igJou < Freedom Ru t orat1.on A~t (RFRA). Although
"i't;;;;··"'"·' '"'""''' . . "'"Z";,'"' '""""'· the Regional DirecLor proCessed not to understend what relief I seek, it i~
obvious thnt by "appealing the refus al of {BOP st•ff] ... tn accom:aodate my
I

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Case 2:09-cv-00215-JMS-MJD Document 1-1 Filed 06/18/09 Page 11 of 17 PageID #: 17

U.S. Oopartmont of Juatice Federal Bureau of Prisons Nonh Central Regional Office

Regional Administrative Romedy Appeal Part B • Response

Administrative Remedy Number: 524266-Rt

-

-·

- - ·- -- - --

-

This Is on respellsa to your Regional Administrative Remedy Appeal received In this offocc on March 10. 2009 on whiCh you allege staff are viotahng your rights under the First Amendment and the Religious Freedom Restorabon Act (RFRA) Specrfically, you aDege staff are placing a subslantral burden on your religious practices by denyong you accommodations lor group prayer, personal lasts and religious studies. You are not requesting specific remedy

We have reviewed your appeal and the response the Warden provided to your BP-229 You are being accommodated with group prayer for the Friday Jurnah Prayer service. All other praye~ may
be accOfTllllished as an ondwidual practitioner by praying in your cell Program Statement 5360.09. Relogoous Beliefs and Pra~. dosbnguishes between the acoommodaloons pro\llded for a publoc fast and a personal last. Furthermore, you are allowed to utilize the religoous resources available through
the •nstitu1ion chapel library. Moreover, a system Is In place where the Chaplaons rotate avaolable religoous resources inside the Convnunicatloos Management Un~ (CMU) on a weekly basis You may utilize these resources for your personal religiOus study

Based on the above information, this respense to your Regional Admonistrative Remedy Appeal•s infonnat•onat purposes only.

If you are dissatrsfoed woth this response, you may appeal to the Offtee of General Counsel, Federal
Bureau of Prisons, 320 First Street, NW. Washington. DC 20534. Your appeal must be received on
the Office of General Counsel wothin 30 days from the date of this response

Case 2:09-cv-00215-JMS-MJD Document 1-1 Filed 06/18/09 Page 12 of 17 PageID #: 18

U.S. 1)8PARTt-'ffi~T Of JtiSTIO:. F~ral T:hne.r• e~f his~t'li

RF.QUEST FOR -\O~fiNlSTRATIVF. RF.li!F.OY

46812·,iJ83

CflU

FCI Terre flau l e

Pm A- L"illiTE REQUEST
I object to the refusal of t he chapLain, warden, s od unit manager to
accommodate my rell~ious prac t ices (see the attached BP-8 tor an example).
This refusal a~ounts to an oagoing ~attern of the aforementioed individuals placing a substantial burden on my sincere religious practices. Even iftbcrc
is some legitimate co~ecticnal goal involved (D &oal the chaplaio and warden
fail to even attempt to identify), the outright refusal by these staff member s to make any attempt to accommodate my religious practices is no tthe least restrictive means of achieving that goa l. ~hus, these staff members a~e violati ng :ny rights under the First Amendment to the O.S. Constitu tion 1.1 nci the Religous Freedom Resto<ation Act (RFRA) .

1/22/09
0 •10
Pan ll- Jtli:SI'Ot•WS£

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5JV1'o'ATLIRE OF Rf.QQF..ST£Jt

D"£
lfditl4fif/Hd ~w. •lt4 ••tf"'•o.u:.J"" md) ~ r.t drt ~"jJ,' Dirrcw~. }'.,..,.v.ppml..,..,M •«ttotJue rlw ~,;;w!N:l Of/i~ ...ww. ltl ~..w oillyu{dot Uu ofdtit ~t;ti'!IP
CAS€ }llJM:S.:~-=-========:...

Part C- RECJilY'f

C.<\SF: NUll.ffiER: - -- - - -- --
nm

Case 2:09-cv-00215-JMS-MJD Document 1-1 Filed 06/18/09 Page 13 of 17 PageID #: 19
ROYER. Randall Reg No.. 46812.083 ,
CMU

Inmate Request to Staff Response

This is In response to your Inmate Request to Staff. received on January t4. 2009,
wherein you request religious accommodations lor group prayer. religious studies, and personal fasts

In regards to allowing group prayer. the adm•n,stration Is willing to provide the required
bme for congregational prayer on Fridays for Jumah Prayer only. Inmates may pray tndividual y on their personal areas, but no additional congregatiOnal prayer time{s) shall
be prOVIded other than Fnclay's Jumah Prayer

While religious studies are an lntroc:ate part of every religion the Bureau of Prisons Is not requtred to accommodate group studies beyond what is outlined on Program Statement 5360.09. Religlou$ Beliefs and Practices. However. Inmates are allowed to
engage in individual study as they feel necessary.

Per Program Statement 5360.09. Religious Beliefs and Practices. There are generally

two different types of fasts, a public and a private or personal fast. When inmates

observe a public last, I.e. one which is regulated by law or custom for all the faith

adherents. Food SeiVlC9 will provide a meal nutritionally equivalent to the meal(s)

missed.

•

Public fasts usually begin and end at specific times. Accommodatoons may also be
made for bagged meals at bmes when Food Service is normally closed When an Inmate fasts for personal, religious reasons, no special accommodatoons need to be
made for the meal(s) missed.
Your fast is considered to be a personal las!, therefore, you will not be allowed to retain
food from the Food Service area.

\ .)-J:,Cf\
Oate

.. Case 2:09-cv-00215-JMS-MJD Document 1-1 Filed 06/18/09 Page 14 of 17 PageID #: 20
ROYER, Randau Reg. No.• 46812·083 CMU
Informal Resolution Rosponso
This is in response to your RO<!uest for lnfOfmal Resolution, received on
January 21. 2009, wherein you request the administration take a more accommodating stance toward your r"''uests to practlce your religion.
In regards to allo•.ving group prayer, the adm.nistration Is willing to provide the required time for congregational prayer on Fridays for Jumah Prayer only. Inmates may pray indMdually in ~heir personal areas, but no additional congregational prayer time(s) shal be provided ather than Friday's Jumah Prayer
While reJ•goous studies are an imr'.cate pall of every religion. the Bureau of Prisons Is
not required to accommodate group studies beyond wnatls ooUined in Program Statement 5360.09, Religious Beliefs and Pracbces. However. Inmates are allowed to engage in Individual study as they feel necessary.
Per Program Statement 5360.09, Religious Befiefs and Prac!icet. There are generally two different types of fasts, a public and a private or peraonal fast. When Inmates - r v e a pubfic last, i.e. one which Is regulated by law Of custom for all tile faith adherents, Food Service wll pi'QIIide a meal nutritionally equivalent to the meal(s) missed.
Publie fasts usually begin and end at specific umes. Accommodations may also be made for bagged meals at ttmes Wilen Food ServJCe is normally closed. When an inmate fasts for personal. religious reasons. no special accommodations need to be
made ror lho mea~s) missed
Your fast is considered to bo a personal fasL therefore, you will not be allowed to retain food from the Food Service area.
The administration Is in compliance Wllh Program Statement 5360.09, RellgiQos Beliefs and Practices.

Case 2:09-cv-00215-JMS-MJD Document 1-1 Filed 06/18/09 Page 15 of 17 PageID #: 21
ROYER, Randall Reg No.. 46812·083
CMU
lnmato Request to Staff Rosponso
Th1s IS In response to your Inmate Request to Staff receiVed on January 13 2009,
wherein you request religious accommodations for group prayer. religious stuaies. and personal fasts
In regards to allowing group prayer. the administration is willing Ia provide the requued une for congregational prayer on Fridays for Jumah Prayer only Inmates may pray 1ndMdually in theor personal areas but no addmonaI congregational prayor tme(s) shall be prav1ded other than Friday's Jumah Prayer.
While reltgtous studies are an mtncate part of every religiOn. the Bureau of Prisons 1s not requ1red to accommodate group studies beyond what IS outlined m Program Statement 5360 09, Religious Belief$ and Practjoes. However, •nmates are allowed to engage 111 indiVIdual study as they feel necessary
Per Program Statement 5360.09, RehgiQ\IS Bet1efs and Practice§. T here are generally two diflerent types of fasts. a public and a private or personal fast When 1nmates
observe a public fast, I e one whiCh is regula ted by law or custom for an the tanh
adherents. FOOd Service will prov1de a meal nut ritionally equivalent to the meal(s) missed
Public fasts usually beg1n and and at specofic times. Accommodations may also be
made for bagged meals at times when rood Service is nonnally closed . When an
1nmate fasts for personal, relog10us reasons. no specoal accommodatiOns need to be made for the meal(s) missed.
Yoor fast is cons<lered to be a personal fast, therefore, you will not be allOWed to retam food from the Food Serv.ce area
i ;--1'(-D

Case 2• :09-cv-00215-JMS-MJD Document 1-1 Filed 06/18/09 Page 16 of 17 PageID #: 22
...
lNIIATE REQUEST TO STl-FF

DATE: l/12/2009
fROH: Randal l Royer /~6812-053 ~0: Chaplain Ode~n
CC : 'Warden Marberry, '.larden Jett, Mr ...-t;tla:l

t am ~~lting to yoo regarding certain requests for relieious
ac.cQ.CII:lOdativn that h ave until no1oo' been dtented b}' \lllrden Jett,
l"'•r· Julian, and your self. The pucpos.= of this reqtJe$t is to ask
you to reconsider those deninls and to ask you to recoaoend to t~e ~4 rden anQ Mr. Julian that he approve the$e reque st • fnr a~ommod­
a~iun of c~lig lou$ pract\ces.

(a) Pra.ter . .A.s you .kno.,., about 901 of the inll':atero !.n 'tht,t. CY"l.l •re
kus ima. lL is: one- of the reli&ious practlct of Isl8rr,, es you koov, to pro.y in u t"t"oup - - in ft'let, the Prophet (peace ~ upon-bj~~ &aid that pr.c::yer in t' grour1 ls Of 27 lllllCS ;reater
reward ln Cod 's eyes than pcay~c alone. One $::hool cf thcughl
holds. prayer in a ~roup to b~ obligat.ar)' w~eu i t i t possible.

there ~ay be •ome perceiv~d rQason t o p~ohibit Muslims fro~
prayin& in a &roup outside the chapel in tho f'CI 'Ie:rt'l! Haul~ general population, bu t since eon~itions 8r~ vory di f fe rent in
tha CNU, there iJ no sovnd penolo&i:at rnason to apply tha saoe prohibition herQ. First, bS m~ntionad, 901 of tha CHU tnmatG$ ar11 Musllm5. Sac:cnd. there is oo cha~ fur us :.o pre;· in a& a group, a . ~he Mu~;.Ums (and ooh -l'fUSfiuts , for that oatte-r)
in the gene r al population hav(". Finally, the solution is ver y &imple: allow us to pray in the cnulti-purpo•e room when il !.lJ r.ot b&Jng US$d for so~:~• oti1er schtoduled pcrpose. The Toom is ample, there wou ld bo no c hance of int~rfer ing with o~he.r irur.ates, 3nd Sir~c~ there is a <:.allat'a and wic.tophono t rained on tbe room that is tecord'Lil,g and is l i ve mooitorf'd, our short prayer would be supervi~ed by st~Cr.

A• (b) R.eliRious study. Obviou,ly, religious study is one. o f Jslam'o

r el[gious practices, juat.

ln every r eligion. For over a y~~~:ar

ve cond\i.ct.cd r el igious 'tudy circles "'ith no clo j m r.h<Jt any
h31:1!3 resu lted i of a sud\'fen, we 1.1er:e proh1.b1 ted. No non-Hua: u,.

lrutate:. coapla1ned or v as affected, a s we were we-ll out of the

wa;•. At tho snnie time, as noted 1 virtually avery inc!'l of the OfU is covered by F. car.1ertt or rnicrophOnl:!, so those s tudy aroJps

werQ 3nd would b e monito red by staff. An~ as vith prayer , ttere

ls no chape.l 4rea for us to study in her () 11'1 th~ CMU , 3s there

is in the gen~rsl po\'ulAt i o" , $o this religious prec~fce now

eoes utterly unfulfi led. If your response to this r equesl is

that. no "uoa.uthor\z~d a <:t iv l t.ies" ara pemltt.ed, thee l ask

you to 5i&ply aul.horlz.e out gr-oup study .

(e) Personal fasta. A~ you ~now, DOP Prog~am S totemen[ 5360 .09 , in

c.orr:.mentery on 26 C.f.R. § 5t..8.20(c), recognizes the. volidlty of

personal fasr• poliey t t ates:

(disti nct "RequeSt.:s

fr ol'n for- t

pu ea

bl ls

l

c a

f

Ctu ler

ls a

7

p

l e

i r

ka so

n

S:4madtm al faa;t

)

. s

The houl.

d

•

•Case 2:09-cv-00215-JMS-MJD Document 1-1 Filed 06/18/09 Page 17 of 17 PageID #: 23 •

....

Chaplai~ Odean l/lU2u09 l'age· 2 ot 2

0~ determined On a G3SP•by-~SE ~sis, ap~lyl~g &Ound C~rr~el­ ionnl •nd pastoral judze~tC!nt. ''
Tn Lho case of the CMll fnnates, 8 nu•ube r oC us try to foll ow t!te: T&coco21endation of the Proph_,L (peac:~ t.f' upon hiw) .in fasting on Mondays and Thursdays, as well as on the three da}'S in the nidd le or ~he h.nar £~:onth. Our paat prac.tlce, as )'OU know, ~~s si~p1y to savA the food thar VAl served At oeals to bre.u\c. ou r fast wi t h. This was etuty bccatulot as you elsa kno~J, t:tl! a.Taa that at! rves as the CHII'a dining area is also a CO:'I'JIIon area w1tb card t3bles, ~tc. that is used throughout the day, in eonlt"&St to the s:itu•t.lon in the. g.cn•r•l population.
}{ow, ho•ilcver , \rli th the rtee-n t deeisi on of the 1J'c.H:den, Nr. Jul lac: J e~ al., to apply policles jn force in Lhl\ ge neral po pulation un the prison cor.apound to 011 ill the Cl'tU housing unit, we are not allo~od to (a) t8ke food out of, or (b) l~Ave food in the socalled "chow hall" (th8t ~ the cocaon arf!a. t-hat sitves as a chow hall at maol times). As. a_. re.su lt, those "~o.•ho wish to hH:t must. thro.,.. their {OI)d away, and they hsvc nothing to break your
fast w1tb. l L 1$ oy undvrstanding that your current, position is that you ~~11 not cake (or racOD~~nd) any religiout exception to this general rule. r r•qucst chat you axercise your authori~y undar fede ral r•~ulationa anrl policy ~nd allow ~hoae •ho ar~ fasttna for r~ llg1ouq rauwon~ to auve thair meals (as they did
for l.'-'0 years ) 1u orde,- t.o brea." Lhcic faal. If spoil a*e is a
concern, the refrigerator t-h&t \rri41S in tho "dinln& eC'ea until re~~~tly served, and could again serve, to store the mea l s.
or Chaplain Odean, you are wel l aware our sit.uotion herP in tht: CM'J.
You ~no• t hat because \ole 8t'8 C01lfin l'td in a tight l y r estricted housing unit, l.l8 do nol have access to the wider pt'ison compound li'ke tilt"
&eneral populacion, and ve do noc have accesw to the reLigio~~ retour ces that the &e-neral popclation does. '-'• do not have s ch•pel. we do not have audio-visual resoure~a. etc. that is ~hy it is ou~
hopt: that ataf£ 1 l.neluding yours<!lf, vould bC't ".-ill in& to ~Jorlc w.l.tt. the CMU inmat es to arrive llt an urranaeruetH t.hal ·•01.11d satisfy rhe
adrJinistrGI..ion 's concerns \o'htle s t ill allowiu!J us to prac ti~e our religion. Cert~inly, a fl•t, reflexive prohibttlon on ~•ch of these reltgtous practice• cannot be the leatt ~estr1etive fteans of
schlcving the adm1n1stratinn's goills, and is "" exaggerutcd reslJe\\SE' to its concer ns. Indeed, it b• une.loar t his f lat prohib i tion is rationil ll y 1:e lated to any logiliu:a[,. eo~l .3t 1111. Spic-iLua l pru.l(is t9 knoVIl \.0 promote corceetion.s.l goa}J~;.
'•<11 t.h al l dy"' respect t the c~fusa l to J\ccorr.or.u1ote- the above- reaao~able requests orcvuotR to a substantiA l burden on Lhe sineerf!l rcl i.E,ious pr~ctiees r>f the. CHU inma t ea. 1 hu.nb l y urge you, \J11rdftn Marber 'l'>', U•rder Je~t, at~d Hr. Jul ian to ~;econtlder this r efu sal.

 
 Case 2:09-cv-00215-JMS-MJD Document 86 Filed 01/25/11 Page 1 of 7 PageID #: 1187

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

JOHN LINDH, BRIAN CARR, ALI

)

ASAD CHANDIA,

)

)

)

Plaintiffs,

)

)

v.

)

)

WARDEN, FEDERAL CORRECTIONAL )

INSTITUTION, TERRE HAUTE,

)

INDIANA,

)

)

Defendant.

)

No. 2:09-cv-215 JMS-WGH

Second Amended Complaint for Declaratory and Injunctive Relief

Introduction

1. Plaintiffs John Lindh, Brian Carr, and A li Asad Chandia are Muslim prisoners

confined to the Comm unications Management Unit (“CMU”) at the Federa l Correction

Institution in Terre Haute, Indiana. The majority of the prisoners in the unit are Muslim.

Despite the fact that plaintiffs’ religion commands them to pray five times daily, and they

consider group prayer to be m andatory and superior to individua l prayer, congregate

prayer is only allowed for one hour a week. This rule is imposed by defendant despite

the fact that the prisoners are out of their cells for virtually the entire day and are allowed

to engage in a whole variety of congregate ac tivities both in the un it in and an outside

recreation area. The defendant’s prohibition on congregate worship imposes a substantial

burden on plaintiffs’ exercise of religion and neither furthers a compelling governmental

interest nor represents the least restrictive means of furthering a compelling governmental

interest. It theref ore violates the Relig ious Freedom Restoration Act (“RFRA”), 42

Case 2:09-cv-00215-JMS-MJD Document 86 Filed 01/25/11 Page 2 of 7 PageID #: 1188
U.S.C. § 2000bb-1. Appropriate declaratory and injunctive relief is requested. Jurisdiction, venue, cause of action 2. This Court has jurisdiction of this cause pursuant to 28 U.S.C. § 1331. 3. Venue is proper in this district pursuant to 28 U.S.C. § 1391. 4. Declaratory relief is authorized by 28 U.S.C. '' 2201, 2202 and by Rule 57 of the Federal Rules of Civil Procedure. 5. This action is brought pursuant to RFRA, 42 U.S.C. § 2000bb-1(c). Parties 6. John Lindh, Brian Carr, and Ali Asad Chandia are adult persons currently confined in the CMU at the Federal Correctional Institution in Terre Haute, Indiana. 7. The Warden of the Fede ral Correctional Institution, Terre Haute, Indiana, is sued pursuant to Rule 17(d) of the Federal Rules of Civil Procedure and is the duly appointed Warden of the Institution. Legal Background 8. RFRA provides, in pertinent part at 42 U.S.C. § 2000bb-1:
(a) In general Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section. (b) Exception Government may substantially burden a pe rson's exercise of religion only if it demonstrates that application of the burden to the person--
(1) is in furtherance of a compelling governmental interest; and (2) is th e least restrictive means of furthering that com pelling governmental interest.
2

Case 2:09-cv-00215-JMS-MJD Document 86 Filed 01/25/11 Page 3 of 7 PageID #: 1189
(c) Judicial relief A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief again st a gov ernment. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution. Factual Allegations 9. The CMU has been created to house certain prisoners who are deem ed to require additional monitoring of their communications. 10. As compared to other units within the B OP, the CMU features fewer opportunities for telephone calls and visits. 11. The prisoners within the CMU are housed in individual cells. 12. The prisoners within the CMU are allowed out of their cells from approximately 6:00 a.m. until 9:15 p. m., except for one 30-45 m inute “count” period during the week and two such periods during the weekends. 13. During this tim e they are allowed to e ngage in a wide variety of congregate activities, including recreation, watching television, playing cards, or sitt ing at tables or in chairs conversing. They are also allowed to go to their cells or the cells of other prisoners. 14. The CMU contains a multi-purpose room in which classes are held via videotape. However, the multi-purpose room is generally vacant. 15. Plaintiffs are Muslims as are a large m ajority of the approximately 40 persons on the CMU. 16. Prayer is the second pillar of Islam and it is obligatory on Muslim s to pray five times a day.
3

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17. Every Friday, all Muslim s engage in the Jum’ah prayer which th e Qur’an mandates be done in a group. 18. At the CMU plaintiffs and the other Mus lim prisoners are allowed to go to the multi-purpose room for the Jum’ah prayer. 19. However, in the Hadith, the collections of sayings of th e Prophet, num erous statements are made that group prayer for a ll the mandated prayers is preferred and that such prayer multiplies the blessings and utility of prayer. 20. One of the four orthodox schools of Islamic jurisprudence holds that group prayer is mandatory and not merely preferred. 21. All plaintiffs are Sunni Muslims who believe that group daily prayer is a religious requirement. 22. Therefore, whenever p ossible, Muslims will p ray together during th e five daily prayers. 23. These daily prayers are very short, and take only a few m inutes. The prayers follow a prescrib ed sequence of actions a nd words and the prisone rs do not converse among themselves during the prayers. 24. When the CMU was opened, Muslim prisoners were allowed to meet together in the multi-purpose room to engage in daily prayers for approximately six months. 25. However, the defendant has now prohibite d all congregate pray er for plaintiffs and the o ther Muslim prisoners, even though the m ulti-purpose room is generally unoccupied and a schedule could easily be created so that group prayer could occur in the multi-purpose room without any disruption to other scheduled events. 26. The prohibition was temporarily lifted during the m onth of Ra madan in 2009
4

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when Muslim prisoners were allowed to go to the multi-purpose room in th e CMU f or three of the five daily regular daily prayers required of Muslims. Following Ramadan in 2009, the prohibition was reinstated. 27. During the month of Ram adan in 2010 Muslim prisoners in the CMU were allowed to go to the multi-purpose room in the CMU for one of the five regular daily prayers. Following Ramadan in 2010, the prohibition was reinstated. 28. Plaintiffs desire to be able to engage in congregate prayer for all daily prayers that take place during the time that CMU prisoners are otherwise allowed out of their cells. 29. The prohibition imposes a substantial burden on plaintiffs’ religious exercises. 30. Plaintiffs have timely and properly pursued all grievances, at each level, provided by the BOP to challenge the denial of the use of the multi-purpose room for group prayer. 31. Copies of the grievances and responses fo r plaintiff Lindh are attach ed to this complaint as Exhibit A. 32. Copies of the grievances and responses for plaintiff Carr are attached to this complaint as Exhibit B. At the time that Mr . Carr filed his original complaint in Cause No. 2:10-cv-0175 JMS-WGH, whic h was consolid ated with this case on Septem ber 9, 2010 (Doc. No. 61), his grievance was pending at the final level review at the offic e of General Counsel for the Bureau of Prisons for more than the original 40 days provided by federal regulations and for m ore than the additional 20 days extended by the Bur eau of Prisons. Accordingly, pursuant to 28 C.F.R. § 542.18, the grievances have been deem ed to be denied. 33. Copies of the grievances a nd responses for plaintiff Cha ndia are attached to th is complaint as Exhibit C. Mr. Chandia’s gr ievance has been pending at the final level of
5

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review at th e office of General Co unsel for th e Bureau of Prisons for m ore than th e original 40 days provided by federal regulations and for more than the additional 20 days extended by the Bureau of Prisons. The BOP ha d until November 7, 2010, to m ake its response at the final (C entral Office) grie vance level and did not do so. Accordingly, pursuant to 28 C.F.R. § 542.18, the grievances have been deemed to be denied. 34. The defendant’s actions in this matter are not substantially justified. 35. The actions of defendant are causing plaintiffs irreparable harm for which there is no adequate remedy at law. Claim for relief 36. The failure of the defendant to allow plaint iffs to participate in daily group prayer imposes a substantial burden on plaintiffs’ re ligious exercise and neither furthers a compelling governmental interest, nor is it the l east restrictive alternative to further that interest. It is the refore unlawful as violating the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1. Request for relief
WHEREFORE, plaintiffs requests that this Court: a. Accept jurisdiction of this case and set it for hearing. b. Declare that defendant is violating federal law as noted above. c. Enter a prelim inary injunction, late r to be made perm anent, enjoining defendant to allow the plaintiff-Muslim prisoners to engage in daily group prayers during the times that prisoners are otherwise allowed out of their cells. d. Award plaintiffs their costs and reasonable attorney’s fees pursuant to 28 U.S.C. § 2412. e. Award all other proper relief.
6

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No.
1031 Indianapolis, 317/635-4059 fax:

/s/ Kenneth J. Falk
Kenneth J. Falk 6777-49
ACLU of Indiana E. Washington St. IN 46202 ext. 104 317/635-4105

Attorney for Plaintiffs

Certificate of Service

I hereby certify that on this 25th day of January, 2011, a copy of the foregoing was filed electronically with the Clerk of this Court. Notice of this filing will be sent to the following parties by operation of the Court's electronic filing system and the parties may access this filing through the Court's system.

Thomas E. Kieper Assistant United States Attorney tom.kieper@usdoj.gov

William L. McCloskey Assistant United States Attorney William.mccoskey@usdoj.gov

/s/ Kenneth J. Falk Kenneth J. Falk Attorney at Law

7

 
 Case 2:09-cv-00215-JMS-MJD Document 36 Filed 05/26/10 Page 1 of 2 PageID #: 197

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

ENAAM ARNAOUT, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

WARDEN, FEDERAL CORRECTIONAL )

INSTITUTION, TERRE HAUTE,

)

INDIANA,

)

)

Defendant.

)

CAUSE NO. 2:09-CV-00215-LJM-WGH

ORDER This matter is before the Court on the Defendant’s Motion to Dismiss Randall Royer from this cause because the Court lacks jurisdiction. Randall Royer, by counsel, has responded that he agrees that the motion to dismiss should be granted, without prejudice. IT IS, THEREFORE, ORDERED that Randall Royer’s claim is moot because he has been transferred out of the United States Penitentiary, Terre Haute, Indiana, this Court no longer has jurisdiction to adjudicate his claim, and his claim is dismissed.

Date: 05/26/2010

________________________________________ JUDGE, United States District Court Southern District of Indiana
________________________________ LARRY J. McKINNEY, JUDGE United States District Court Southern District of Indiana

Case 2:09-cv-00215-JMS-MJD Document 36 Filed 05/26/10 Page 2 of 2 PageID #: 198 Distribution: Thomas E. Kieper tom.kieper@usdoj.gov Kenneth J. Falk kfalk@aclu-in.org
2

 
 Case 2:09-cv-00215-JMS-MJD Document 61 Filed 09/09/10 Page 1 of 2 PageID #: 503

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

ENAAM ARNAOUT, JOHN LINDH, and )

BRIAN CARR, on their own behalf and on )

behalf of a class of those similarly situated, )

)

Plaintiffs,

)

)

v.

)

)

WARDEN, FEDERAL CORRECTIONAL )

INSTITUTION, TERRE HAUTE,

)

INDIANA,

)

)

Defendant.

)

No. 2:09-cv-215 JMS-WGH

ORDER CONSOLIDATING CASES Plaintiffs Arnaout and Lindh, having filed their Motion to Consolidate the case of Carr v. Warden, Federal Correctional Institution, Terre Haute, Indiana, 2:10-cv-00175, with the case of Arnaout, et. al. v. Warden, Federal Correctional Institution, Terre Haute, Indiana, and the Court having read the Motion, and being duly advised, finds that good cause exists to grant the motion, and, IT IS THEREFORE ORDERED that the two cases are consolidated, for all purposes, and shall be captioned as specified above. The Clerk shall docket this Entry in Cause No. 2:10-cv-00175 and close Cause No. 2:10-cv-00175.

09/09/2010

_______________________________
Hon. Jane Magnus-Stinson, Judge United States District Court Southern District of Indiana

Case C2:a0s9e-c2v:-0090-2c1v-50-0JM21S5--MJMJDS-WDGocHumDeonct u6m1 enFtil5e9d-109/0F9il/e1d0 08P/a3g0e/120 ofP2agPeag2eoIDf 2#: 504

_____________

DATE

JUDGE,

_______________________________________ UNITED STATES DISTRICT COURT

cc:
Kenneth J. Falk ACLU of Indiana kfalk@aclu-in.org
Thomas E. Kieper Assistant United States Attorney tom.kieper@usdoj.gov
William L. McCoskey Assistant United States Attorney William.mccoskey@usdoj.gov
Attorney General of the United States 10th & Constitution Ave., N.W. Washington, D.C. 20530
Warden Federal Correctional Institution 4200 Bureau Road North Terre Haute, IN 47808
United States Attorney Southern District of Indiana 10 W. Market Street Suite 2100 Indianapolis, IN 46204

 
 Case 2:09-cv-00215-JMS-MJD Document 67 Filed 11/08/10 Page 1 of 7 PageID #: 519

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

JOHN LINDH, et al., Plaintiffs,
vs.
WARDEN, Federal Correctional Institution, Terre Haute, Indiana,
Defendant.

) ) ) ) 2:09-cv-0215-JMS-WGH ) ) ) )

ORDER DENYING PLAINTIFFS’ MOTION TO CERTIFY CLASS Presently before the Court is Plaintiffs’ Motion to Certify Class.1 [Dkt. 45.] Plaintiffs

seek class certification on their claim against the Federal Correctional Institution in Terre Haute

(“FCI”) for allegedly violating the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. §

2000bb-1(c), by not allowing Muslim inmates in the Communications Management Unit

(“CMU”) to participate in group prayer five times per day.

BACKGROUND Plaintiffs are Muslim inmates housed in the CMU of the FCI. [Dkts. 40 at 1 ¶ 1; 47 at 1 ¶

1.] The CMU is a self-contained general population unit established to house inmates who “re-

quire increased monitoring of communication between inmates and persons in the community in

order to protect the safety, security, and orderly operation of Bureau facilities, and to protect the

public.” [Dkt. 18-1 at 3 ¶ 5.] The inmates are allowed out of their cells from 6:00 a.m. until 3:45

p.m. and then again from 4:30 p.m. until 9:15 p.m. [Dkt. 46-1 at 7.] During these times, they are

1 Enaam Arnaout and John Lindh were the named plaintiffs in the Amended Complaint. [Dkt. 40.] In September 2010, Mr. Arnaout was dismissed from the case, [dkt. 63], and a separate action filed by Brian Carr (initially docketed as 2:10-cv-0175) was consolidated with this action, [dkt. 61]. Mr. Lindh and Mr. Carr are currently the named plaintiffs in this litigation.
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free to stay in their cells or go to the law library, food service area, exercise room, or outside recreation area, individually or in groups. [Dkt. 46-1 at 8-11, 12-13.]
In December 2009, there were forty-one inmates assigned to the CMU, and twenty-four of them identified themselves as Muslim. [Dkt. 18-1 at 3 ¶ 6.] Plaintiffs assert that even though their religion “commands them to pray five times daily, and group prayer is deemed to be either mandatory or theologically superior to individual prayer, congregate prayer is only allowed for one hour a week.” [Dkts. 40 at 1 ¶ 1; see also 46-6 at 2 ¶¶ 2-3 (Carr affidavit attesting that “congregate prayer is a communal obligation”).] Plaintiffs allege that preventing them from participating in group prayer five times per day imposes a substantial burden on their religious exercise, does not further a compelling government interest, and is not the least restrictive alternative to furthering any interest, all in violation of the RFRA. [Dkt. 40 at 6 ¶ 40.] They seek declaratory and injunctive relief. [Dkt. 40 at 6-7.]
Plaintiffs ask the Court to certify the following class: “all Muslim prisoners currently and in the future who are confined to the Communications Management Unit at the Federal Correctional Institution in Terre Haute, Indiana.” [Dkt. 40 at 2 ¶ 10; 45 at 1 ¶ 2.] Plaintiffs estimate that the putative class, if certified, would currently contain twenty-five Muslim inmates housed in the CMU. [Dkts. 46 at 3.] Because Plaintiffs seek to include future Muslim prisoners who will be confined to the CMU, they argue that the putative class will expand because of inevitable turnover in the prison population.
DISCUSSION I. Standards for Class Certification It is Plaintiffs’ burden to prove that an identifiable class exists that merits certification under Federal Rule of Civil Procedure 23(a). Oshana v. Coca-Cola Co., 472 F.3d 506, 513 (7th Cir. 2006). The primary question when ruling on class certification is “whether plaintiff is as-
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serting a claim which, assuming its merit, will satisfy the requirements of Rule 23.” Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 675 (7th Cir. 2001). The four prerequisites of Rule 23(a) are numerosity, commonality, typicality, and adequacy of representation. Siegel v. Shell Oil Co., 612 F.3d 932, 935 (7th Cir. 2010). In addition to these four requirements, Plaintiffs must satisfy one of the criteria set forth in Rule 23(b). Oshana, 472 F.3d at 513. A class may be certified under Rule 23(b)(2), the section Plaintiffs rely upon here, only if the party opposing the class acted or refused to act on grounds that apply generally to the class. Rahman v. Chertoff , 530 F.3d 622, 627 (7th Cir. 2008). When deciding whether to certify a class, the Court may not blithely accept as true the allegations of the complaint but, instead, must “make whatever factual and legal inquiries are necessary under Rule 23” to resolve contested issues. Szabo, 249 F.3d at 676.
II. Evaluating Plaintiffs’ Proposed Class The parties agree that the FCI does not allow Muslim prisoners in the CMU to engage in congregate prayer, except for the Jumu’ah prayer that occurs each Friday. [Dkts. 40 at 1 ¶ 1; 57 at 4; 46-1 at 18.] They also agree that between 22 and 25 prisoners in the CMU have identified themselves as Muslim. [Dkts. 46 at 6 (Plaintiffs allege 25); 57 at 5 (FCI alleges 22).] The FCI emphasizes, however, that various sects within the Muslim faith have different interpretations of the requirements of group prayer, [dkt. 18-2 at 3], and that Plaintiffs have only offered evidence that five Muslim inmates in the CMU also share the belief that their faith requires group prayer five times per day, [dkt. 57 at 5]. Plaintiffs respond that differences between the sects do not matter because “whether or not a Muslim prisoner in the CMU believes that daily congregate prayer is required, or only preferred, is completely irrelevant to the prisoners’ claim that denial of the congregate prayer opportunity violates the [RFRA].” [Dkt. 60 at 3.]
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A. Existence of an Identifiable Class The FCI argues that Plaintiffs have failed to sufficiently define the class and that their proposed definition, which includes all Muslims housed in the CMU, “sweeps too broadly . . . and cannot be sufficiently defined by objective criteria.” [Dkt. 57 at 7.] Plaintiffs must prove that the class is identifiable, and the class definition must be definite enough that the class can be ascertained. Oshana, 472 F.3d at 513. A class is sufficiently defined “if the proposed class members are ascertainable by reference to objective criteria.” McGarry v. Becher, 2010 U.S. Dist. LEXIS 28246 *5 (S.D. Ind. Mar. 24, 2010). Conversely, a class is not sufficiently defined if highly individualized inquiries must be made to determine whether a person is a member of the proposed class. Id. The Court agrees that the proposed class definition is overbroad because it encompasses all Muslims housed in the CMU, despite evidence that not all sects agree with Plaintiffs’ belief that group prayer is required five times per day. [See dkt. 18-2 at 3 ¶¶ 4-9 (detailing differences between the Sunni, Shia, Sufism, Nation of Islam, and Moorish Science Temple sects regarding views on requirement of group prayer).] Although Plaintiffs argue that this distinction is irrelevant, in fact, it goes directly to the heart of this case. To succeed on their RFRA claim, Plaintiffs must prove that the government action at issue substantially burdens a sincerely held religious belief. United States v. Jefferson, 175 F. Supp. 2d 1123, 1127 (N.D. Ind. 2001). Plaintiffs assert that the FCI violated the RFRA by denying them the ability to exercise their sincerely held belief that group prayer is required five times per day. [Dkt. 40 at 6 ¶ 40.] If the Court were to certify a class that included prisoners who did not sincerely hold the religious belief at issue, the class would improperly include members who could not prove an element of the asserted claim. See
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Oshana, 472 F.3d at 513-14 (affirming district court’s decision not to certify class because some members of proposed class would be unable to prove elements of claim).
Even if the Court were to limit the class definition to only include Muslim prisoners in the CMU who, like Plaintiffs, possess a sincerely held religious belief that they are required to participate in group prayer five times per day, that narrow definition still fails because there is no evidence in the record that class members would be ascertainable by reference to objective criteria. McGarry, 2010 U.S. Dist. LEXIS 28246 at *5. For example, there is no evidence in the record that CMU prisoners ever specifically disclose to the facility their position as to whether their understanding of Islam requires group prayer five times per day. Because Plaintiffs have not sufficiently defined a class, their Motion to Certify must be denied.
B. Numerosity Even if Plaintiffs had sufficiently defined a class, their Motion still fails because they do not meet the numerosity requirement of Rule 23(a)(1). The Court can only certify a class that “is so numerous that joinder of all members is impracticable.” Fed. R. Civ. Pro. 23(a)(1). “Although there is no ‘bright line’ test for numerosity, a class of forty is generally sufficient to satisfy Rule 23(a)(1).” McCabe v. Crawford & Co. , 210 F.R.D. 631, 644 (N.D. Ill. 2002) (collecting cases). There are fifty regular cells in the CMU and five segregation cells. [Dkt. 46-1 at 5-6.] Because each cell only houses one inmate, [id.], at most there could be fifty five identifiable inmates in the CMU. There were forty-one inmates in the CMU in December 2009, and twentyfour of them identified themselves as Muslim. [Dkt. 18-1 at 3 ¶ 6.] Plaintiffs concede that even under their proposed class definition, which the Court has already found to be overbroad, the putative class is “admittedly a relatively small class. . . .” [Dkt. 46 at 6.] And narrowing the class
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Case 2:09-cv-00215-JMS-MJD Document 67 Filed 11/08/10 Page 6 of 7 PageID #: 524
to Muslim prisoners in the CMU who hold Plaintiffs’ belief that group prayer is required five times per day shrinks the putative class to seven identifiable individuals (the two named plaintiffs and five additional inmates).2 [Dkts. 46-3 to 46-8.] Seven individuals do not make joinder impracticable under these circumstances.
Plaintiffs argue that they can meet the numerosity requirement by including future Muslim prisoners who will be housed in the CMU because those individuals “will be subjected to the exact same unlawful policy.” [Dkt. 60 at 5.] While the Court acknowledges that considering future class members may be appropriate in certain cases, this is not one of them. As discussed above, there is no evidence in the record that objective criteria exists to limit the class to members who possess Plaintiffs’ specific religious belief, and this problem also applies to future members. Cf. Willis v. Comm’r Ind. Dep’t of Corr., 1:09-cv-0815-JMS-LJM, [dkt. 47 at 3] (S.D. Ind. 2009) (holding that plaintiff established numerosity with 122 identifiable class members and future class members who could be ascertained by objective criteria).
In sum, the evidence in the record identifies seven Muslim prisoners confined to the CMU—two of whom have filed suit—who believe that group prayer is required five times per day. Future inmates cannot be ascertained by objective criteria. Because joinder of the class members is not impracticable, Plaintiffs have failed to establish the numerosity requirement of Rule 23(a)(1). The Court need not address the other requirements for establishing class certification because Plaintiffs have failed to establish numerosity. McGarry, 2010 U.S. Dist. LEXIS 28246 at *8.
2 At the time Plaintiffs moved to certify the class, Mr. Arnaout was a named plaintiff and submitted an affidavit in support of Plaintiffs’ motion. [Dkt. 46-2.] Since that time, however, Mr. Arnaout has been released from prison and dismissed from this case. [Dkts. 62; 63.] Consequently, the Court will not consider Mr. Arnaout’s affidavit.
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CONCLUSION Because Plaintiffs have not sufficiently defined a class and have failed to establish numerosity, their Motion to Certify the Class, [dkt. 45], is DENIED. Plaintiffs have until December 3, 2010 to move to join the additional inmates whose affidavits were submitted as evidence for class certification if those individuals seek to be named plaintiffs in this case.

11/08/2010

_______________________________
Hon. Jane Magnus-Stinson, Judge United States District Court Southern District of Indiana

Distribution via ECF only:
Kenneth J. Falk ACLU OF INDIANA kfalk@aclu-in.org
Thomas E. Kieper UNITED STATES ATTORNEY'S OFFICE tom.kieper@usdoj.gov
William Lance McCoskey UNITED STATES ATTORNEY'S OFFICE william.mccoskey@usdoj.gov

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 Case 2:09-cv-00215-JMS-MJD Document 121 Filed 02/03/12 Page 1 of 19 PageID #: 2072

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

JOHN LINDH, Plaintiff,
vs.
WARDEN, Federal Correctional Institution, Terre Haute, Indiana
Defendant.

) ) ) ) 2:09-cv-00215-JMS-MJD ) ) ) )

ORDER

Presently before the Court are the parties’ cross-motions for summary judgment. [Dkts. 106; 112.] For the reasons set forth herein, the Court GRANTS in part and DENIES in part Plaintiff’s Summary Judgment Motion, [dkt. 106], and DENIES Defendant’s Summary Judgment Motion, [dkt. 112].
I. STANDARD OF REVIEW A motion for summary judgment asks that the Court find that a trial based on the uncontroverted and admissible evidence is unnecessary because, as a matter of law, it would conclude in the moving party’s favor. See Fed. R. Civ. Pro. 56. To survive a motion for summary judgment, the non-moving party must set forth specific, admissible evidence showing that there is a material issue for trial. Fed. R. Civ. Pro. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). As the current version Rule 56 makes clear, whether a party asserts that a fact is undisputed or genuinely disputed, the party must support the asserted fact by citing to particular parts of the record, including depositions, documents, or affidavits. Fed. R. Civ. Pro. 56(c)(1)(A). A party can also support a fact by showing that the materials cited do not establish

1

Case 2:09-cv-00215-JMS-MJD Document 121 Filed 02/03/12 Page 2 of 19 PageID #: 2073
the absence or presence of a genuine dispute or that the adverse party cannot produce admissible evidence to support the fact. Fed. R. Civ. Pro. 56(c)(1)(B). Affidavits or declarations must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on matters stated. Fed. R. Civ. Pro. 56(c)(4). Failure to properly support a fact in opposition to a movant’s factual assertion can result in the movant’s fact being considered undisputed, and potentially the grant of summary judgment. Fed. R. Civ. Pro. 56(e).
The Court need only consider the cited materials, Fed. R. Civ. Pro. 56(c)(3), and the Seventh Circuit Court of Appeals has “repeatedly assured the district courts that they are not required to scour every inch of the record for evidence that is potentially relevant to the summary judgment motion before them,” Johnson v. Cambridge Indus., 325 F.3d 892, 898 (7th Cir. 2003). Furthermore, reliance on the pleadings or conclusory statements backed by inadmissible evidence is insufficient to create an issue of material fact on summary judgment. Id. at 901.
The key inquiry, then, is whether admissible evidence exists to support a plaintiff’s claims or a defendant’s affirmative defenses, not the weight or credibility of that evidence, both of which are assessments reserved to the trier of fact. See Schacht v. Wis. Dep’t of Corrections , 175 F.3d 497, 504 (7th Cir. 1999). And when evaluating this inquiry, the Court must give the non-moving party the benefit of all reasonable inferences from the evidence submitted and resolve “any doubt as to the existence of a genuine issue for trial . . . against the moving party.” Celotex, 477 U.S. at 330.
Courts are frequently confronted with cross-motions for summary judgment because Rules 56(a) and (b) of the Federal Rules of Civil Procedure allow both plaintiffs and defendants to move for such relief. Cross-motions for summary judgment do not automatically mean that all
2

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questions of material fact have been resolved. Franklin v. City of Evanston , 384 F.3d 838, 842 (7th Cir. 2004). “In such situations, courts must consider each party’s motion individually to determine if that party has satisfied the summary judgment standard.” Kohl v. Ass'n. of Trial Lawyers of Am. , 183 F.R.D. 475 (D. Md. 1998). Thus, in determining whether genuine and material factual disputes exist in this case, the Court considers the parties’ respective memoranda and the exhibits attached thereto, and construes all facts and drawn all reasonable inferences therefrom in the light most favorable to the respective non-movant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
II. BACKGROUND The following facts are not in dispute. Plaintiff John Lindh is a Muslim prisoner currently incarcerated in the Communications Management Unit (“CMU”) of the Federal Correctional Complex (“FCC”) in Terre Haute, Indiana. [Dkts. 107 at 1; 114 at 10.] Mr. Lindh is serving a 120-month sentence after pleading guilty to (1)supplying services to the Taliban, and (2) carrying an explosive during the commission of a felony which may be prosecuted in the United States. A tenet of the Islamic faith is five-daily prayers; performing these prayers in a group is either highly preferable or mandatory, depending on the school of Islam to which one adheres. [Dkt. 107 at 6.] Mr. Lindh professes to adhere to a school of Islam that considers group prayer mandatory, [id.; dkt. 114 at 31], and he alleges that the Warden’s current policy prohibiting group prayer within the CMU substantially burdens his exercise of religion. A. The Communications Management Unit The CMU is a self-contained general population unit whose prisoners are placed there because authorities believe these inmates need to have their communications closely monitored.
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[Dkts. 107 at 3; 114 at 9.] Although one might expect a unit of this kind to enforce strict rules regarding the interaction between the prisoners it houses, the prisoners at the CMU are allowed a considerable amount of freedom. The prisoners are housed in individual cells, but their cell doors are generally kept unlocked. [Id.] Prisoners are allowed to roam the unit and outside recreation area from 6:00 a.m. until 9:15 p.m. except during times of lockdown, and they may freely converse and engage in recreational activities together. [Dkts. 46-1 at 6-7; 107 at 3-4; 114 at 9.] There is a daily lockdown count period both before the cells are opened an at 4:00 p.m. that each take approximately 30-45 minutes, [dkt. 46-1 at 6-7], and an additional count on weekends and holidays at 10:00 a.m., [id. at 7].
During the times they are allowed out of their cells, CMU inmates may gather together to talk, snack, play board games, play cards, watch current events on television, exercise, and even play semi-contact sports like basketball. [Dkts. 46-1 at 8-13; 107 at 3-4.] They may congregate and discuss anything as long as their behavior is good, they do not cause much noise, and the conversation “doesn’t escalate into a confrontation.” [Dkt. 106-1 at 7.] Throughout the day, they may return to their cells and can have another prisoner in their cell at the same time. One thing they cannot do: recite the daily Muslim prayers in a group. B. Group Prayer Among Muslim Prisoners at the CMU
When the CMU first opened in late 2006, Muslim CMU prisoners were able to pray together in the multi-purpose room for the daily prayers that occurred during the periods when prisoners were generally allowed out of their cells. [Dkts. 107 at 7.] Although the parties disagree whether these group prayers were “officially authorized” [dkt. 113-1 at 20], under the policy at that time, there is no dispute that the group prayers occurred with the knowledge of CMU officials. [Id; 115 at 22; 115-2 at 5.]
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Around May or June 2007, Muslim prisoners other than Mr. Lindh who were praying in the multi-purpose room failed to immediately lock up during a fire emergency. [Id.; dkt. 114 at 14.] Although the prisoners were not disciplined for the failure to immediately lock up, they were no longer allowed to pray in the multi-purpose room for the daily prayers. [Dkt. 107 at 7.] Muslim prisoners were allowed one group service each week, the Friday Jumu’ah service, which was held in the multi-purpose room. [Id. at 7-8.] Muslim inmates other than Mr. Lindh were also involved in an assault on another Muslim prisoner over what the Warden believes to be a religious dispute.
After the multi-purpose room was no longer available for daily prayer, small groups of prisoners, in view of the CMU staff, would gather together to engage in the daily prayers in various places throughout the unit, including the kitchen area, the large outside recreation area, small outside recreation cages, small indoor recreation rooms, and individual cells. [Id. at 8; dkt. 106-2 at 7.] In June 2009, the Warden issued a written memo to the CMU specifying that “[e]xcept for regular Friday Jumu’ah prayer and other special holiday events as prescribed and approved by the Chaplain, inmates are not permitted to participate in group prayer.” [Id. at 9.] Since the issuance of the memorandum, the prisoners have no longer been able to pray in small groups throughout the CMU. [Id.] Currently, Muslim inmates at FCC Terre Haute are permitted to engage in group prayer once weekly during the Friday Jumu’ah prayer. [Id.] Daily prayers must be conducted individually from within the cells, and prayer times are announced to facilitate simultaneous prayer. [Id.; dkt. 114 at 7.] C. The Plaintiff
Mr. Lindh was transferred to the CMU in October 2007. [Dkt. 107 at 11.] The Bureau of Prisons has placed Mr. Lindh in the CMU because of the nature of his crime of conviction and
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because of his affiliation with terrorist organizations. His placement is not contested. Before arriving at the CMU, Mr. Lindh was disciplined for speaking in a language other than English in violation of special administrative measures then applicable to him, and for placing a chair on a tier, sitting on it, and refusing an order to move it. [Dkts. 106-1 at 3-4; 114 at 10.] In 2006, he was also disciplined for not following an instruction to unfold his pant leg, [dkts. 106-1 at 4; 114 at 10], and for receiving mail through another inmate, [dkts. 106-1 at 4; 114 at 11]. Since arriving at the CMU in 2007, Mr. Lindh has been disciplined twice: first for announcing the “call to prayer” during a morning count, [dkt. 114 at 11], and second for engaging in group prayer in a cell with former-plaintiff Ali Chandia and another Muslim inmate, [id; dkt. 107 at 11].
In June 2009, following the issuance of the Warden’s memorandum, two Muslim CMU prisoners, Enaam Arnaout and Randall Royer, filed suit against the Warden alleging that the Warden’s policy on group prayer violates the Religious Freedom Restoration Act of 1993. A year later, Mr. Lindh joined Mr. Arnaout in filing an Amended Complaint against the Warden. [Dkt. 40.] Following additions and voluntary dismissals of prisoners for lack of standing following their release from prison, Mr. Lindh remains as the sole plaintiff.
As briefing progressed, and as will be discussed in more detail, Mr. Lindh modified the scope of relief he requests. He now seeks the ability to participate in group prayer in the CMU three times daily, and seeks permission only to recite the scripted daily prayer. He does not seek the ability to sermonize or have another sermonize, nor does he request a single-room setting.1 [Dkt. 115 at 34, 40-41.] Both the Warden and Mr. Lindh now seek summary judgment. [Dkts. 106; 122.]
1 A significant portion of the Warden’s evidence addresses the legitimate staffing and security concerns inherent in prisoners conducting group prayer in a single-room setting, here the CMU’s multi-purpose room. As Plaintiff has withdrawn that request, the relevance of that evidence has necessarily diminished.
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III. DISCUSSION Mr. Lindh has sued the Warden under the Religious Freedom Restoration Act of 1993 (“RFRA”), which provides that the “[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of ‘general applicability’” unless it demonstrates that “the application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that interest.” 42 U.S.C. § 2000bb-1. The Court will consider, in turn, whether: (A) group prayer constitutes a religious exercise motivated by Mr. Lindh’s sincerely held religious beliefs, (B) the Warden’s policy on group prayer creates a substantial burden on Mr. Lindh’s exercise of group prayer, (C) the Warden’s policy on group prayer furthers a compelling governmental interest, and (D) limiting group prayer is the least restrictive means of furthering that interest. A. Does Group Prayer Constitute a Relig ious Exercise Motivated by S incerely Held Beliefs? RFRA states that “the term ‘exercise of religion’ means “religious exercise, as defined in section 2000cc-5 of this title,” 42 U.S.C. § 2000bb-2(4), the Religious Land Use and Institutionalized Persons Act (“RLUIPA”). The Seventh Circuit has held that RFRA and RLUIPA apply a common standard, Koger v. B ryan, 523 F.3d 789, 801 (7th Cir. 2008), and therefore the Court will rely on cases enforcing both Acts in conducting its analysis. Under RLUIPA, the term “religious exercise” means “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc-5(7). The term refers not only to belief and profession but also “the performance of ... physical acts [such as] assembling with others for a worship service.” Cutter v. W ilkinson, 544 U.S. 709, 720 (2005). Although RLUIPA does not permit “inquiry into whether a particular belief or practice
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is ‘central’ to a prisoner’s religion, the Act does not preclude inquiry into the sincerity of a prisoner’s professed religiosity.” Id. at 725 n.13 (internal citation omitted).
Here, the Warden concedes that one school of the Islamic faith, the Hanbali school, “requires adult males to perform the prayer in congregation, if possible,” [dkt. 113-7 at 17 ¶ 4], and he does not dispute that Mr. Lindh belongs to that school, [dkt. 114 at 31]. Instead, the Warden challenges the sincerity of Mr. Lindh’s beliefs in light of Mr. Lindh’s apparent concession regarding the Warden’s need to maintain prison security during periods of lockdown. [Dkt. 114 at 31-32.] Specifically, the Warden challenges Mr. Lindh’s initial assertion that five daily group prayers are “mandatory and not optional,” [dkt. 86-1 at 2], as inconsistent with his later acknowledgement that any request for group prayer during periods of lockdown would be “futile,” [dkt. 106-2, ¶ 17]. The Warden contends that Mr. Lindh “reverses his prior demand,” [dkt. 114 at 31], in claiming that “[t]he inability to engage in daily prayers with other Muslim prisoners during the times [they] are out of our cells is imposing a substantial burden on [his] exercise of religion,” [id at ¶ 19].
While it is true that inconsistencies in a plaintiff’s professed beliefs may be evidence of insincerity, Koger, 523 F.3d at 798, the Warden incorrectly characterizes Mr. Lindh’s requests as inconsistent. It is undisputed that the Hanbali school mandates group prayer “if possible,” [dkt. 113-7 at 17 ¶ 4], and a prison lockdown clearly renders any group activity impossible. Therefore, Mr. Lindh’s concession that group prayer is not possible during times of a prison
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lockdown does not call into question the sincerity of his beliefs. Instead, it is an appropriate (and welcome) concession that argument otherwise would be meritless.2
The Warden also challenges Mr. Lindh’s sincerity on the grounds that his beliefs do not align with the Hanbali school because its tenets recognize that security concerns may prevent group prayer. [Dkt. 114 at 35.] The Warden is correct that the Court may look to the tenets of Islam in evaluating Mr. Lindh’s sincerity. See Vinning-El v. Evans, 657 F.3d 591, 594 (7th Cir. 2011) (“[A]lthough sincerity rather than orthodoxy is the touchstone, a prison still is entitled to give some consideration to an organization’s tenets.”). However, once again the Warden’s arguments bear not the issue of sincerity, but rather the issue of whether group prayer is possible within the CMU. What the Warden essentially argues is that, under Islamic law, Mr. Lindh would be excused from performing group prayer if only he would accept that “security concerns do not allow it,” [dkt. 114 at 34]. Because the Warden’s argument turns on Mr. Lindh’s acceptance of the Warden’s policy on group prayer, not on his acceptance and adherence to Islamic law, the Warden’s challenge to Mr. Lindh’s sincerity on the grounds that his beliefs differ from the tenets of Islam is without merit.
The uncontested facts show that the school of Islam to which Mr. Lindh professes to belong mandates daily group prayer whenever possible, and Mr. Lindh has evidenced a consistent adherence to that school. Further, Mr. Lindh rejects the Warden’s view that simultaneous prayer in separate cells is adequate. To him, communal prayer requires the
2 The Court praises Kenneth Falk, Mr. Lindh’s attorney, for his fair and appropriate concessions throughout the pendency of this case. Indeed, the Court encourages attorneys to concede what must be conceded; concessions such as these are not only a courtesy to the Court, but also legally expected. Part of the attorney’s role is to distill cases for the Court and present only the arguments that are actually at issue. By failing to do so, attorneys may be subject to penalty pursuant to 28 U.S.C. § 1927 for unreasonably protracting litigation.
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participants to be together where they can see and hear each other. [Dkt. 106-2 at 4.] The importance of that belief will be discussed below.
For the foregoing reasons, the Court finds as a matter of law that daily group prayer is a religious exercise motivated by Mr. Lindh’s sincerely held religious beliefs.
B. Does the Warden’s Policy on Gro up Prayer Create a S ubstantial Burden on Mr. Lindh’s Exercise of Religion?
Mr. Lindh bears the burden of persuasion on the issue of whether the challenged policy “substantially burden[s]” the exercise of his religion. 42 U.S.C. § 2000bb-1(a). While RFRA does not define substantial burden, the same definition of “substantial burden” applies under RFRA, RLUIPA, and the Free Exercise Clause. Patel v. U.S. Bureau of Prisons , 515 F.3d 807, 814 (8th Cir. 2008). In the context of the Free Exercise Clause, the Supreme Court has held that a government imposes a substantial burden when it “puts substantial pressure on an adherent to modify his behavior and violate his beliefs.” Thomas v. Review Bd., 450 U.S. 707, 718 (1981). The Seventh Circuit has recently defined a substantial burden as “one that necessarily bears direct, primary, and fundamental responsibility for rendering religious exercise ... effectively impracticable.” Koger, 523 F.3d at 799 (internal citation omitted).
The Court has determined as a matter of law that Mr. Lindh’s sincerely held religious beliefs require that group prayer participants be together and be able to see and hear each other. [Dkt. 106-2 at 4.] Mr. Lindh contends that under the Warden’s policy, group prayer is “not only impracticable; it is impossible.” [Id.] He testified he cannot see or other fellow inmates during the daily prayers. [Dkt. 106-2 at ¶ 23.]
In response, the Warden claims that group prayer is indeed possible because the prisoners are able to pray simultaneously, albeit from within different cells. The Warden also contends that although the prisoners are not allowed to conduct prayers in loud voices, they can hear each
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other from their cells. [Dkt. 113-2 at 9.] At oral argument, the Warden claimed that the prisoners are able to hear and see each other from the doorways of their cells, and he contends that group prayer is still possible under his policy because the prisoners may “collectively raise their group voices.” [Dkt. 116 at 2.] The evidence submitted by the Warden directly contradicts Mr. Lindh’s allegation that the prison’s practice of orchestrating simultaneous, individual prayer “is hardly an accommodation when the prisoners ... [are] in individual cells where they cannot see or hear each other, and in fact are forbidden to shout to make themselves heard.” [Dkt. 115 at 41, 106-2 at ¶ 23.] In light of this factual dispute, the Court cannot, as a matter of law, conclude in either party’s favor. See Fed. R. Civ. Pro. 56.
Whether the prisoners are isolated or are able to see and hear each other during prayer is material to determining whether the Warden’s policy has rendered Mr. Lindh’s exercise of religion “effectively impracticable,” Koger, 523 F.3d at 799. Neither party submitted photographic, audio or video evidence of the CMU, either during the time of daily prayer or any other time. The descriptions contained in the papers do not permit a determination as to which position is credible. (Indeed such a credibility finding is likely improper when considering motions for summary judgment.) As the Warden has argued, context will matter. [Dkt. 166 at 2.] Thus, the Court finds that a genuine issue of material fact exists concerning whether the Warden’s policy on group prayer has substantially burdened Mr. Lindh’s religious exercise.
C. Has the Warden Demonstrated that the Policy on Grou p Prayer Furthers a Compelling Governmental Interest?
Even if evidence at trial establishes that the Warden’s policy on group prayer substantially burdens Mr. Lindh’s exercise of religion, the Warden can avoid a violation of RFRA if he can demonstrate that the imposition of this burden furthers a compelling governmental interest and is the least restrictive means of furthering that interest. 42 U.S.C. §
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2000bb-1(b). To satisfy the first part of his burden under RFRA, the Warden must show not only that he has a compelling governmental interest, but also that his policy actually furthers that interest. Id. The Warden has sought to meet that burden by affirmatively moving for summary judgment.
The Warden cites prison security as the compelling interest behind his policy, [dkt. 114 at 15], and it is undisputed that the orderly and safe operations of the CMU is a compelling governmental interest, [dkt. 115 at 31].3 The legislative history of RFRA demands that courts enforcing the statute give due deference to prison officials on issues of prison discipline. Mack v. O’Leary, 80 F.3d 1175, 1190 (7th Cir. 1996) (citing H. Rep. No. 88, 103d Cong., 1st Sess. 8 (1993); S. Rep. No. 11, 103d Cong., 1st Sess. 10, U.S. Code Cong. & Admin. News 1993 p. 1900). See also Cutter, 544 U.S. at 723 (noting Congress’ intent that courts show “due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good order, security and discipline, consistent with consideration of costs and limited resources.”). However, the Court must not blindly defer to the Warden’s position on matters that implicate prison security, and “to prevail on summary judgment, the Warden ‘must do more than merely assert a security concern.’” Spratt v. Rhode Island Dep’t of Corr., 482 F.3d 33, 39 (1st Cir. 2007) (quoting Murphy v. Mo. Dep’t. of Corr., 372 F.3d 979, 988 (8th Cir. 2004)). See also Lovelace v. Lee, 472 F.3d 174, 190 (4th Cir. 2006) (“[A] court should not rubber stamp or mechanically accept the judgments of prison
3 Mr. Lindh has objected to much of the Warden’s evidence on the basis that the Warden’s witnesses lack personal knowledge of the matters they attested to, or that the evidence is hearsay. [Dkt. 115 at 7-12.] However, the witnesses have properly testified based on a review of properly authenticated BOP records, which is permissible. In addition, the Court overrules the hearsay objection on the grounds that the Warden is permitted to state the information he is relying upon to justify his policy, a non-hearsay use. Put another way, the information is not being considered as offered for its truth, but rather offered to show the rationale behind the Warden implementing and maintaining the policy against group prayer.
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administrators....”) (citing Shimer v. Washington, 100 F.3d 506, 510) (7th Cir. 1996)). Although the Warden undoubtedly has a compelling interest in maintaining prison security, he still bears the burden of demonstrating that his policy on group prayer serves to further that compelling interest. 42 U.S.C. § 2000bb-1(b).
The Warden has not satisfied that burden here. He has presented multiple academic articles about prison radicalization as evidence that “[i]nmate-led religious services ... threaten the security of the institution as extremist inmates could use the religious services to radicalize and recruit other inmates,” and he contends that his policy on group prayer was developed because of this and other security concerns. [Dkt. 116 at 14.] But the evidence that he submitted is not one-sided. The Court notes that these articles also establish that religious participation can promote positive behavior among prisoners and aid in the rehabilitation process. [See dkt. 11311 at 5; 113-12 at 4, 6, 10.] None of the articles describes how rote recitation of a scripted prayer leads to radicalization.
In addition to concerns about radicalization, the Warden points to Mr. Lindh’s disciplinary history in limiting Mr. Lindh’s exercise of group prayer. [Dkt. 114 at 10.] And of course, the Warden has a compelling interest in controlling prisoner conduct and limiting a prisoner’s misbehavior. But the evidence before the Court shows that Mr. Lindh has been free of disciplinary write-ups since July 21, 2010. [Dkt. 113-3 at 64.] His last conduct violation was for his attempt to participate in group prayer in violation of the policy at issue here. [Id.] The Warden rightly characterizes such conduct as an act of defiance and challenge to his authority. [Dkt. 113-2 at 6.] But if the Warden is exercising that authority in violation of RFRA, the challenge can be considered less troublesome. And time is passing and Mr. Lindh is behaving, thus casting doubt on the compelling interest in prohibiting him from daily group prayer
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permanently. Moreover, the most recent misconduct postdates the policy; it cannot have served as a basis for implementing it.
The Warden also seeks to justify enforcing the policy against Mr. Lindh taking into account “not only [Mr. Lindh’s] specific circumstances, but also those of the other CMU inmates and the unit as a whole.” [Dkt. 114 at 11.] The Warden’s admission places at issue the disciplinary histories of all other Muslims in the CMU, despite the Warden’s successful opposition to Mr. Lindh’s motion to obtain class certification in this matter. [Dkts. 45; 67.] The continued validity of this concern is questionable given that most of the inmates for whom specific disciplinary incidents are cited are no longer in the CMU, [see dkt. 110], and given the evidence that daily group prayer occurred within the CMU’s common areas without incident in the period between the closing of the multi-purpose room and the implementation of the policy, [dkts. 113-1 at 20; 106-2 at 2; 106-4 at 2; 106-5 at 2].
Setting aside the question of the extent to which Mr. Lindh’s exercise of religion may be burdened as a result of other Muslim inmates’ conduct, the Court recognizes that Mr. Lindh cannot engage in group prayer by himself. Other Muslims in the CMU need be permitted to join him in prayer, regardless of whether they have been able to join him in this suit. However, even in light of the criminal histories and general past behavior4 of Muslim inmates at the CMU, [see dkt. 114 at 14-15], the Court cannot conclude that the Warden’s permanent blanket policy, which
4 The Warden points out that “from November 2009 through November 2010, 13 of the 17 disruptive incidents in the CMU were perpetrated by Muslim inmates,” but that “[d]uring the pendency of this lawsuit, however, the number of disciplinary incidents by [Mr. Lindh] and other CMU Muslim inmates has significantly decreased.” [Dkt. 114 at 17.] While the Warden apparently seeks the inference that their good behavior is calculated to achieve success in the present action, and that therefore the Court should at least disregard it, or better yet actually view it as negative behavior, the Warden is not entitled to such an inference when moving for summary judgment. Celotex, 477 U.S. at 330.
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does not take individual prison behavior into account, furthers a compelling governmental interest.
The Warden has neglected the second half of his burden on the issue of compelling interest; he has not established as a matter of law that his policy on group prayer actually serves to further prison security. Specifically, the Warden has not demonstrated the nexus between prohibiting group recitation of rote, scripted prayers – which feature no additional conversation or sermon – and maintaining security in a unit where prisoners are otherwise free to gather, converse and engage in myriad activities.
The Warden’s burden here is more than a nominal one,5 and he cannot prevail on summary judgment by merely invoking the deferential standard and asserting security concerns. See O’Bryan v. Bureau of Prisons , 349 F.3d 399, 401 (7th Cir. 2003) (“RFRA does not allow governments to defeat claims so easily. A governmental body ... must demonstrate, not just assert, that the rule at issue is the least restrictive means of achieving a compelling governmental interest.”). Because the Warden bears the ultimate burden of persuasion at trial on this issue, to prevail on summary judgment, he must show that “the evidence is so powerful that no reasonable jury would be free to disbelieve it.” See MOORE’S FED. PRACTICE 3d, § 56.13[1]. He has not done so here. Based on this record, and in light of the freedom of activity and conversation otherwise enjoyed by prisoners at the CMU, a reasonable jury could disbelieve that the Warden’s
5 Mr. Lindh has not challenged the constitutionality of the Warden’s policy, under which challenge the Warden might only be subject to rational-basis scrutiny for his facially neutral policy. See Locke v. Davey, 540 U.S. 712, 721 (2004) (applying rational-basis scrutiny to a rule facially neutral with respect to religion). Because Mr. Lindh’s claim is brought under RFRA, the Warden must meet the much higher standard proving his policy furthers a compelling governmental interest. RFRA was explicitly enacted “to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder , 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise is substantially burdened.” 42 U.S.C. § 2000bb(b)(1). Thus, the Warden’s repeated citation to free exercise cases applying the lesser standard is somewhat misplaced.
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policy on group prayer furthers the compelling governmental interest of prison security. Summary judgment on this issue is therefore inappropriate.
D. Is Limiting Group Pr ayer the Leas t Restrictive Mean s of Achieving the Compelling Governmental Interest?
Even if the Warden can establish that the CMU’s security concerns amount to a compelling governmental interest, he would also have to demonstrate that prohibiting daily group prayer is the least restrictive means of furthering that interest, should his policy be deemed a substantial burden on Mr. Lindh’s exercise of religion. 42 U.S.C. § 2000bb-1(b)(2). To do so, the Warden must show that he could not protect his compelling interest by some less restrictive means. Mack v. O’Leary, 80 F.3d 1175, 1180 (7th Cir. 1996). See Shakur v. Schirro, 514 F.3d 878, 890 (9th Cir. 2008) (“[A] prison cannot meet its burden to prove least restrictive means unless it demonstrates that it has actually considered and rejected the efficacy of less restrictive measures before adopting the challenged practice.”) (internal citation omitted).
In arguing that the existing policy is the least restrictive measure to further prison security, the Warden elaborates on the pragmatism behind requiring the prisoners to pray in their individual cells, for example, that it “does not require the constant staff supervision like group prayers do,” and that “in the event of an emergency, officers can just close the doors and account for, and secure, the inmates in their cells,” [dkt. 114 at 23]. Nonetheless, he fails to demonstrate that any less restrictive alternatives would be feasible or were actually considered. Dismissing as “an irrelevant distraction,” [dkt. 116 at 17], Mr. Lindh’s argument that other prisons within the BOP have managed to accommodate daily group prayer, the Warden never demonstrates to the Court why allowing group prayer is feasible at other institutions but not at the CMU. Instead, the Warden offers little more than conclusory statements from CMU officials that the current
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policy on group prayer is the least restrictive means of achieving prison security. [See dkts. 1132 at 17; 113-5 at 36.]
Characterizing Mr. Lindh’s prior request for single-room assembly as an “all-or-nothing” demand, [dkt. 114 at 58], the Warden relies on an Eight Circuit case in arguing that Mr. Lindh’s “case presents ‘the unusual situation where the government has satisfied the least restrictive means prong by demonstrating that other less restrictive alternatives are not acceptable to plaintiff.’ Fowler v. Crawford , 534 F.3d 931, 938 (8th Cir. 2008).” [Dkt. 114 at 58-59.] His reliance is misplaced. The Warden is not relieved from considering other, less restrictive alternatives. Mr. Lindh’s case is distinguishable from Fowler,6 where the plaintiff was unwilling to accept anything but a full sweat lodge, 534 F.3d at 938, because Mr. Lindh “would be willing to pray with other prisoners in other areas of the unit as [they] did for years.” [Dkt. 106-2 at ¶ 26.] As Mr. Lindh specifically points out, “[a]llowing these prayers by small groups of prisoners is an alternative that the Warden has not considered.” [Dkt. 115 at 41.] Indeed, the Warden has introduced no evidence that he has actually considered – as RFRA and BOP policy require – any less restrictive means. [Dkt. 113-2 at 21.] The Warden has rejected single-room assembly in the multi-purpose room, and embraced separate simultaneous prayer within the cell. No evidence of consideration of other measures in between has been presented, including consideration of the alternatives suggested by Mr. Lindh, who bears no burden on this issue. Where a record is so deficient, the case remains viable. Miles v. Moore , 2011 U.S. App. LEXIS 21193 (4th Cir. 2011).
Given the procedural posture, the Court must give Mr. Lindh the benefit of all reasonable inferences from the evidence submitted and resolve “any doubt as to the existence of a genuine
6 Fowler is also distinguishable because it is a constitutional challenge, not an action under RFRA.
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issue for trial . . . against the [Warden].” Celotex, 477 U.S. at 330. Therefore, although the Warden has the compelling interest of maintaining prison security, genuine issues of material fact exist about whether the current policy furthers that interest, or whether the Warden’s policy on group prayer is the least restrictive means of furthering it. On this evidentiary record, the Court cannot conclude as a matter of law that the Warden’s policy on group prayer is consistent with RFRA.
IV. CONCLUSION For the foregoing reasons, the Court GRANTS in part and DENI ES in part Mr. Lindh’s Motion for Summary Judgment, [dkt. 106], and DENIES the Warden’s Cross-Motion for Summary Judgment, [dkt. 112]. The Court finds as a matter of law that recitation of the five daily Muslim group prayers is a religious exercise rooted in Mr. Lindh’s sincerely held religious beliefs. However, genuine issues of material fact exist regarding whether the Warden has substantially burdened Mr. Lindh’s exercise of religion. And the Warden has not satisfied his burden of showing either that the policy on group prayer is in furtherance of the compelling governmental interest of prison security, or that he has used the least restrictive means to further the government’s interest.

02/03/2012
Distribution via ECF only: Kenneth J. Falk ACLU OF INDIANA kfalk@aclu-in.org

_______________________________ Hon. Jane Magnus-Stinson, Judge United States District Court Southern District of Indiana
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Case 2:09-cv-00215-JMS-MJD Document 121 Filed 02/03/12 Page 19 of 19 PageID #: 2090 Thomas E. Kieper UNITED STATES ATTORNEY'S OFFICE tom.kieper@usdoj.gov William Lance McCoskey UNITED STATES ATTORNEY'S OFFICE william.mccoskey@usdoj.gov
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 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

JOHN LINDH,

)

Plaintiff,

)

)

vs.

)

)

WARDEN, Federal Correctional Institution, )

Terre Haute, Indiana,

)

Defendant.

)

2:09-cv-00215-JMS-MJD

FINDINGS OF FACT AND CONCLUSIONS OF LAW

On August 27, 2012, through August 30, 2012, the Court conducted a bench trial in this

action. Plaintiff John Walker Lindh was present in person and via teleconference and by counsel

Kenneth Falk and Gavin Rose. Defendant Warden was present in person and by counsel Thomas

Kieper and William Lance McCoskey.

John Walker Lindh is well known as the “American Taliban” who pled guilty to

supplying services to the Taliban and carrying an explosive during the commission of a felony;

however, his prison record paints a different portrait. His scant, nonviolent disciplinary history

during his incarceration has merited him a classification of low security. He is allowed to

engage in contact sports, play cards, and watch movies and television, including Muslim videos

in the Arabic language. In this matter, he seeks permission to engage in one more activity:

congregate prayer in accordance with his sincerely held religious beliefs.

Mr. Lindh has brought this action under the Religious Freedom Restoration Act of 1993

(“RFRA”), which was explicitly enacted “to restore the compelling interest test as set forth in

Sherbert v. Verner , 374 U.S. 398 (1963) and Wisconsin v. Yoder , 406 U.S. 205 (1972) and to

guarantee its application in all cases where free exercise of religion is substantially burdened.”

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42 U.S.C. § 2000bb(b)(1). The statute reflects Congress’ concern about the United States Supreme Court’s holdings in Employment Division v. Smith, 494 U.S. 872 (1990), and O’Lone v. Estate of Shabazz , 482 U.S. 342 (1987), both of which, in Congress’ estimation, weakened traditional First Amendment protections. S. Rep. 103-11, 1993 U.S.C.C.A.N 1892, 1895-1901. Because Congress thought that Smith and Lone gave prison wardens a level of discretion that Congress thought was too restrictive on prisoners’ rights, Congress through RFRA therefore holds the Warden to a higher standard than would be required by a constitutional claim.
The Court now enters its findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a)(1). Any finding of fact that is more properly considered a conclusion of law is adopted as such. Similarly, any conclusion of law that is more properly considered a finding of fact is adopted as such. Finally, the Court recognizes that there was conflicting testimony on several issues presented at trial. The Court considered all of the evidence presented by the parties in arriving at its findings of fact, and its findings reflect the testimony that the Court credited.
I. FINDINGS OF FACT The parties stipulated to the following facts: 1. The Communications Management Unit (“CMU”) is a self-contained population housing unit within the Federal Correctional Institution at the Federal Correctional Complex in Terre Haute, Indiana (“FCI Terre Haute” and “FCC Terre Haute,” respectively). 2. The CMU was established to house inmates whose communication with persons inside and outside Bureau of Prisons (“BOP”) facilities the Government has determined must be monitored closely to ensure the safety, security, and orderly operation of BOP facilities and the
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protection of the general public. Inmates are assigned to the CMU based on the offenses for which they have been convicted, their offense behavior, and other verifiable information. 3. As a self-contained unit, all meals, religious services, and educational, recreational, vocational, and administrative programming and activities for the CMU inmates takes place inside the unit. 4. There are 55 cells in the CMU. 5. Although the cells could hold two inmates each, inmates currently are housed one-to-acell, and there are no plans to assign multiple inmates to a cell. This arrangement is always subject to change at the discretion of the Warden based on the population of the unit and his judgment as to how best to achieve the Government’s compelling interest in maintaining the safety, security, and orderly operation of FCC Terre Haute. 6. The cells contain, among other things, a bed and toilet/sink unit. 7. Five cells within the CMU, referred to as the Special Housing Unit (“SHU”), are reserved for short-term administrative and disciplinary segregation. Inmates assigned to the SHU are restricted to their cells and do not enjoy freedom of movement within the CMU. 8. Inmates in the CMU are subject to the same restrictions applied to inmates in all other general population housing units. All incoming and outgoing mail, except legal mail, is inspected before inmates may read it or send it out. 9. Inmates in the CMU are subject to additional restrictions unique to the CMU based on its unique mission and purpose.
a. For example, except for communications with their attorneys, all inmates’ phone calls and conversations with visitors and other inmates are monitored.
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b. As an additional example, all areas of the CMU are subject to constant audio surveillance.
10. In all general population housing units, including the CMU, inmates are free to move within the unit except when confined to the SHU or ordered to lock down by BOP staff. 11. In all general population housing units, including the CMU, prisoners are allowed out of their cells from 6:00 A.M. until 9:15 P.M. except when confined to the SHU or ordered to lock down by BOP staff for counts or other administrative or safety reasons. 12. The count takes approximately 30-45 minutes. 13. In all general population housing units, including the CMU, when inmates are out of their cells, they are free to go to various areas within the unit. In the CMU, these areas include a lounge area with multiple televisions; a food service area with tables, microwave, and drink dispenser that can be accessed at any time; multi-purpose rooms with a washer and dryer that can be used for personal laundry; a room where emails can be sent and received, as well as legal research conducted; rooms with exercise equipment; and an outdoor recreation area containing a basketball court and smaller recreation enclosures. With the exception of food services, similar facilities are included in all general population housing units. 14. In all general population housing units, including the CMU, inmates who are not confined to the SHU or ordered to lock down may gather outside their cells to talk, snack, play board games or cards, watch television, exercise, and play sports. 15. In all general population housing units, including the CMU, inmates who are not confined to the SHU or ordered to lock down are allowed to congregate and discuss anything as
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long as their behavior is good, they do not make too much noise, and the conversation does not escalate into a confrontation. 16. In all general population housing units, including the CMU, inmates are allowed to return to their cells during the day. 17. There are cameras and listening devices throughout the CMU. Some of these devices are visible to the inmates, and some are not. 18. The BOP’s policy concerning religious practices is articulated in BOP Policy Statement 5360.09 (“PS 5360.09”), which was implemented on December 31, 2004. 19. Congregate religious services in the CMU take place in a multi-purpose room, which has a mesh door and mesh barrier between it and the hallway so the activities inside can be seen and heard from outside the room. 20. The multi-purpose room is used for educational and recreational programming and other approved group activities in addition to five weekly religious services. 21. Activities authorized for group activities are specifically identified on the schedule for the multi-purpose room and the Schedule of Religious Activities. 22. As of June 27, 2012, 23 of the 43 inmates in the CMU were Muslim. 23. A central tenet of the Islamic faith is the obligation for adult Muslims to engage in five daily prayers, or Salat. 24. The Koran commands that these prayers be held at dawn (Fajr), early afternoon (Dhur), in the late afternoon (Asr), at post-sunset (Maghrib), and in the evening (Isha). The Koran does not command that these prayers be held at a specific time, but within a prescribed range of times based on the sun’s ascent and descent.
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25. Depending on the school of Islam to which an adherent belongs, making these prayers in congregation, if possible, is either considered to be theologically preferable or required. 26. Mr. Lindh claims to be an adherent to the Hanbali school of Islam, and believes that congregation for all five daily prayers is mandatory, not optional. Therefore, Mr. Lindh wishes to perform the Salat prayers in congregation with his fellow Muslim inmates. The Salat prayers are each of short duration and feature a prescribed sequence of bowing, prostration, sitting, and reciting formulaic verses in Arabic. 27. Although the prescribed range of times for each daily prayer varies from day to day based on the sun’s ascent and descent, the earliest Salat prayer may take place before inmates are allowed out of their cells in the morning, and the latest prayer may take place after inmates are confined to their cells in the evening. 28. Mr. Lindh concedes that security concerns may restrict congregate prayer activities, and concedes that congregating to perform Salat prayers prescribed to take place during times inmates are confined to their cells is futile even though he believes that congregation is mandatory, not optional, because of security concerns during times when inmates are otherwise locked down. Mr. Lindh nevertheless wishes to perform all other Salat prayers in congregation with other Muslims inmates. 29. In May 2007, BOP staff initiated an institution-wide lockdown at FCI Terre Haute due to a fire emergency. In the CMU, the unit officer found sixteen Muslim inmates performing unauthorized congregate Salat prayers in the multi-purpose room.
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30. The multi-purpose room continues to host authorized congregate religious services once per week for Muslims and other religious faiths represented in the CMU, consistent with BOP policy. 31. At least nine religions are represented in the CMU population. Five have requested accommodation and hold authorized weekly congregate services in the multi-purpose room. 32. For Muslim inmates in the CMU, the authorized congregate prayer in the multi-purpose room is the Friday Jumu’ah service. 33. The Jumu’ah service lasts longer than the daily prayers and features, in addition to formulaic verses recited in Arabic, a sermon. 34. At the current time, a contract Imam is present for the authorized Jumu’ah service approximately once per month. The authorized Jumu’ah service is led by inmates who rotate responsibility for leading the service, under the supervision of staff or the contract Imam. 35. During the 2009 Ramadan holy month, the Warden exercised his discretion under BOP policy to allow Muslim inmates access to the multi-purpose room for three of the five daily prayers. 36. During the 2010, 2011, and 2012 Ramadan holy months, the Warden has exercised his discretion under BOP policy to allow Muslim inmates to meet in the multi-purpose room for one of the daily prayers. 37. The Ramadan prayers are led by the inmates. 38. In June and August of 2009, the Wardens of FCI Terre Haute issued memoranda specifically advising the CMU inmates of the CMU policy for religious activities. 39. All inmates in the CMU may pray at any time in their individual cells.
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40. An updated schedule displaying the prescribed range of times for each day’s Salat prayers is constantly posted in the CMU and is visible to all inmates so Muslim inmates can know when to perform their prayers each day. This schedule is obtained from www.Islamicfinder.org. 41. As with any other activity performed in the institution, inmates who pray in their cells must do so in a manner that does not disrupt the safety, security, or orderly operation of the institution. 42. Mr. Lindh pled guilty to supplying services to the Taliban and carrying an explosive during the commission of a felony. He was sentenced to 120 months imprisonment and three years of supervised release. 43. Mr. Lindh entered into the custody of the Bureau of Prisons in 2003. He is projected to be released in 2019. 44. In October of 2007, Mr. Lindh was confined to the CMU and has been there since that time. 45. There are five security levels assigned to inmates within the Bureau of Prisons: minimum, low, medium, high, and administrative. The CMU is an Administrative unit and is authorized by policy to house inmates of all security classifications. 46. Upon Mr. Lindh’s arrival at the CMU, he was assigned a security classification of “high,” which he held from 2007 until October 1, 2008, when he received his current classification of “low” security. 47. Mr. Lindh has committed the following disciplinary infractions since his arrival in the Bureau of Prisons:
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a. In 2003, Mr. Lindh spoke Arabic with another inmate in violation of a special administrative measure (SAM) (now lapsed) that prohibited him from communicating in any language other than English.
b. In 2006, Mr. Lindh was disciplined for refusing an order by placing a chair on a tier and sitting on it after having been ordered not to do so by BOP staff.
c. Also in 2006, Mr. Lindh was disciplined for ignoring an order to unfold his pants leg because he said that Islam prohibited wearing pants below the ankles.
d. Also in 2006, Mr. Lindh was disciplined for unauthorized use of the mail after a third party forwarded him communications from another inmate.
e. In 2010, while in the CMU, Mr. Lindh was found guilty of refusing to obey an order after making the call to prayer in a loud voice during the 5:00 A.M. count.
f. In 2010, Mr. Lindh was found guilty of participating in an unauthorized meeting when he met with two other inmates in a cell to engage in congregate prayer.
g. In October 2011, Mr. Lindh was found guilty of being insolent to a staff member for writing a letter.
48. BOP also employs one outside Imam to visit the CMU and lead the Friday Jumu’ah service once per month.
49. H.J. Marberry, the former Complex Warden of FCC Terre Haute, did not personally see
or hear:
a. Radical speeches being delivered to prisoners in the CMU.
b. Prisoners within the CMU refusing to obey staff commands during an insititutional emergency.
c. Prisoners within the CMU refusing to stop authorized group activity during a fire emergency.
d. The Amir at the CMU being an alternative authority figure.
e. The assault that is mentioned in paragraph 18 of her previously filed declaration. [Dkt. 69-6.]
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50. Ammar Amonette, the Imam of the Islamic Center in Richmond, Virginia, has not personally seen or heard:
a. Muslim prisoners within the CMU being pressured to attend congregate prayer. b. Any prisoner within the CMU engaging in the Adhan or call to prayer. c. Muslim prisoners in the multi-purpose room in the CMU refusing to return to their
cells when ordered to do so. d. Muslim prisoners within the CMU attempting to recruit and train other prisoners. 51. Leslie Smith, the Chief of the Counterterrorism Unit for the BOP, has not personally seen or heard: a. Any disruptive actions by Muslim prisoners within the CMU. b. Incidents where Muslims at the CMU were engaged in radicalization and/or radical
action during religious services or while invoking religious themes. c. Inmates at the CMU being defiant to staff authority. d. Inmates at the CMU stating that they are waging war against the United States. e. Prisoners at the CMU attributing their incarceration to the Unites States’ “war”
against Islam. f. A CMU Muslim inmate engaging in inflammatory rhetoric during a Jumu’ah prayer
inciting a disturbance on the unit. g. The assault in which Brian Carr was involved as mentioned in paragraph 33 of his
declaration. [Dkt. 69-8.] h. Brian Carr after the assault. i. Mr. Lindh, Brian Carr, and/or Ali Asad Chandia. The Court accepts the foregoing stipulations as its findings of fact, and enters the following additional findings:
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52. As previously determined in its Order regarding the parties’ cross-motions for summary judgment, [dkt. 121], the recitation of the five daily prayers in congregation is a religious exercise rooted in Mr. Lindh’s sincerely held religious belief. 53. As stipulated by the parties, the daily congregational prayer for Muslims is either mandatory or strongly preferred. For Mr. Lindh, it is deemed to be a mandatory religious obligation.1 54. Due to the specific requirements of group prayer, the need to be aligned properly and the need to have visual or aural contact with the Imam, group prayer can only occur while Muslims are physically together and it cannot be accomplished in the CMU while the prisoners are confined separately to their individual cells. 55. The denial of daily group prayer opportunities substantially burdens Mr. Lindh’s religious beliefs as a factual matter. 56. Daily congregate prayer for the prayers that fall during the time that the prisoners are out of their cells in the CMU occurred from the time the CMU opened in 2006 until at least November of 2009, without a serious incident other than the fire alarm in May of 2007. The only evidence before the Court is that the prisoners did not hear the call to return to their cells on that date, and the Court deems it significant that no prisoner was penalized for failing to return. The Court therefore concludes that the May of 2007 incident is of no relevance in considering Mr. Lindh’s request to allow daily congregate prayer.
1 In so finding, the Court deems the testimony of Ammar Amonette irrelevant. The question under RFRA is whether the plaintiff is sincere in his professed beliefs, not whether his beliefs comport with a proferred expert’s interpretation of mainstream Islamic doctrine.
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57. The Court finds it significant that, even after the daily prayers ceased in the multipurpose room, Muslim prisoners continued to pray in small groups throughout the CMU with no incidents or disruptions. 58. The examples of misbehavior by Mr. Lindh and Muslim prisoners in the CMU have no bearing on the issue of congregate prayer as the misbehavior, aside from two incidents where small groups of prisoners were praying together in cells in 2010, did not concern group prayer. 59. The Court understands, and gives deference to, the articulated need of the BOP to be fair, firm, and consistent. However, the Court finds that the congregate prayer activity that the Plaintiff seeks, which is the same congregate activity that occurred without serious incident for at least three years in the CMU, is not significantly different than any other group activity that is already allowed in the CMU. It is not a formal service with a sermon. It is instead a brief meeting to engage in ritualistic prayer. It is uncontested, for example, that Muslim prisoners may gather together in the multi-purpose room, without restriction on number, to listen or watch recordings, in Arabic, of verses from the Koran. Given that this activity is already allowed, along with a host of other congregate activities, allowing persons to recite short formulaic prayers is entirely consistent with the activities that are allowed in the CMU. Therefore, allowing this prayer to continue does not violate the BOP’s need to be fair, firm, and consistent. Moreover, it is clear that the notion that prisoners are treated in a fair, firm, and consistent way does not always mean that every prisoner is treated identically. For example, some prisoners within the CMU have jobs, and some do not. There is no evidence that this disparity has led to violence or any other difficulties. Similarly, allowing a month of at least one daily congregate
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prayer during Ramadan is another example of differentiated treatment. There is no evidence that this treatment has led to resentment or problems with non-Muslim prisoners. 60. Moreover, across the BOP it is clear that the need to be fair, firm, and consistent does not prevent special accommodations for different religions that result in, for example, certain prisoners being able to drink wine, have special diets on a daily basis as well as special regular diets, or wear special headwear or clothing consistent with their sincerely held religious beliefs. 61. The Court acknowledges that the BOP’s Program Statement regarding religious practices (Ex. 9) restricts congregate services to once a week. However, this is no bar to allowing daily congregate prayer, even if such brief, formulaic, prayers are deemed to be “congregate services,” as the Warden retains the right to modify this policy and has for the Muslim prisoners during Ramadan. 62. The Program Statement also requires that all services be supervised by constant staff supervision if they are inmate-led. However, the elevated audio and video surveillance within the CMU has already, during Ramadan services and during the daily prayers that inmates engaged in for several years without incident, been allowed to substitute, without incident, for constant in-person supervision. Any daily congregate prayers can be supervised in the same manner. The Court finds that the necessity for monitoring during Ramadan, which involves a meal, hour-long study and prayers, is greater than any need to monitor the brief, formulaic, daily prayers that are consistent with other group behavior currently allowed in the CMU. Therefore, the supervision experience during Ramadan is not analogous to that needed for the daily prayers. 63. The Court acknowledges the concerns raised by the Warden and his witnesses regarding the security concerns if daily congregate prayers are again allowed. However, the Court finds it
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significant that the prayers occurred for a three-year period without any apparent problems or reactions from non-Muslim prisoners. From this evidence, the Court is persuaded that the prayers may occur safely within the CMU. 64. The Court also acknowledges the concern that the Warden expressed about allowing any type of leader to develop among prisoners. However, insofar as this is a concern regarding prayers, the Warden can merely require, as he has already done with regard to the weekly Jumu’ah prayer, that the role of prayer leader rotate on a regular basis. This concern can also be met by allowing prayers only in small groups so that no one prisoner can become a leader. The Court finds, however, that the concerns expressed by the Warden regarding prisoner leaders are undercut by the fact that there is no prohibition on the Muslim prisoners within the CMU appointing an Amir from among themselves – in fact, staff consult with the Amir when there are problems, as well as by the fact that inmates lead both Jumu’ah and Ramadan services. Those concerns are also undermined by the fact that for the more than two years that Muslim prisoners prayed in small groups following the May of 2007 incident in the multi-purpose room, there were no incidents traced to leadership issues arising from prisoners functioning as prayer leaders. 65. Although the current warden, unlike his predecessors, did state that he reviewed alternatives to the total ban on daily group prayer, the Court finds that no attempt was made to review how group prayer is accommodated in the many BOP institutions where group prayer by Muslim prisoners has been allowed. The Court also finds that the Warden has not made any effort to actually see a daily prayer so that he can more accurately assess how it would impact the CMU. The Court finds, therefore, that the Warden has not adequately pursued alternatives to the total ban on daily congregate prayer.
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66. Any finding made above should be deemed to be a conclusion of law to the extent necessary.
II. CONCLUSIONS OF LAW2 Mr. Lindh’s action was brought under the Religious Freedom Restoration Act of 1993 (“RFRA”), which provides that the “[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of ‘general applicability’” unless it demonstrates that “the application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that interest.” 42 U.S.C. § 2000bb-1. Under RFRA, the plaintiff has the burden of persuasion of showing that a challenged practice creates a substantial burden on religious exercise, at which point the burden of persuasion shifts to the government to prove that the burden is necessitated by a compelling governmental interest and that the restriction at issue is the least restrictive means to meet that interest. See, e.g., Navajo Nation v. U.S. Forest Serv. , 535 F.3d 1058, 1069 (9th Cir. 2008). In City of Boerne v. Flores, 521 U.S. 507 (1997), the Supreme Court held that RFRA was not a valid exercise of Congress’ powers under Section 5 of the Fourteenth Amendment to enforce the substantive portions of that amendment. Id. at 532-35. However, this holding did not disturb the constitutionality of RFRA when addressed to the United States, as opposed to those acting under color of state law, inasmuch as “legislation affecting the internal operations of the national government does not depend on § 5 [of the Fourteenth Amendment]; it rests securely on Art. I § 8 cl. 18.” O’Bryan v. Bureau of Prisons, 349 F.3d 399, 401 (7th Cir. 2003) (holding that RFRA
2 Any conclusion of law should be deemed a finding of fact to the extent necessary. 15

applies to the federal Bureau of Prisons). Therefore, “[e]very appellate court that has squarely addressed the question has held that the RFRA governs the activities of federal officers and agencies.” Id.
Congress responded to Flores by enacting the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc. RFRA and RLUIPA are “substantively identical with respect to prisoners’ entitlements.” Whitfield v. Illinois Dep’t of Corr. , 237 Fed. Appx. 93, 94 (7th Cir. 2007). RLUIPA applies to state and local government and to those acting under color of state law. 42 U.S.C. § 2000cc-5(4). However, in order for RLUIPA to apply, the program or activity in question must receive federal financial assistance, affect interstate or foreign commerce, or involve land use regulations. 42 U.S.C. § 2000cc(a)(2). Because of their substantial similarity, both RFRA and RLUIPA cases are relied on by the Court interchangeably.
A. Does the Warden’s Policy on Group Pray er Create a Substantial Burden on a Religious Exercise Motivated by Mr. Lindh’s Sincerely Held Beliefs?
RFRA states that “the term ‘exercise of religion’ means “religious exercise, as defined in section 2000cc-5 of this title,” 42 U.S.C. § 2000bb-2(4), RLUIPA. Under RLUIPA, the term “religious exercise” means “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc-5(7). The term refers not only to belief and profession but also “the performance of ... physical acts [such as] assembling with others for a worship service.” Cutter v. Wilkinson, 544 U.S. 709, 720 (2005). Although RLUIPA does not permit “inquiry into whether a particular belief or practice is ‘central’ to a prisoner’s religion, the Act does not preclude inquiry into the sincerity of a prisoner’s professed religiosity.” Id. at 725 n.13 (internal citation omitted).
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1. Mr. Lindh’s Sincerely Held Beliefs On summary judgment, this Court previously found “as a matter of law that daily group prayer is a religious exercise motivated by Mr. Lindh’s sincerely held religious beliefs,” [dkt. 121 at 10], and entered partial summary judgment in Mr. Lindh’s favor on that ground, [id. at 18]. The Court abides by this decision. See, e.g., Isovolta Inc. v. ProTrans Int’l, Inc. , 780 F. Supp. 2d 776, 779 (S.D. Ind. 2011) (recognizing that the 2010 changes to the Federal Rules of Civil Procedure contemplate that summary judgment may be entered on a part of a party’s legal claim or defense). Even if Mr. Lindh’s sincerity were not already decided, the Court would conclude that he has a sincere belief in the necessity of five daily congregate prayers. Mr. Lindh has adduced evidence of his sincerity, has continuously sought to pray in congregation, and has done so when allowed to do so in the CMU. His belief in the necessity of group prayer is consistent with the belief of many Muslims and he is a strict adherent to Islamic law. Although the Warden offered the testimony of Imam Ammar Amonette, who indicated that he interprets Islamic doctrine in such a manner so that there is no religious detriment to a prisoner’s failure to engage in daily congregate prayer when the prison prohibits it, as the Court iterated in its findings of fact, the question under RFRA, is whether the plaintiff is sincere in his professed beliefs, not whether his beliefs comport with a proferred expert’s interpretation of mainstream Islamic doctrine. As indicated above, this Court finds that Plaintiff is sincere. Moreover, for purposes of RFRA it is irrelevant as to whether Mr. Lindh believes that group prayer is mandated or preferred. As indicated, RFRA protects more than mandated religious exercises: it protects all religious exercises, whether compelled by, or central to, religious belief. 42 U.S.C. § 2000cc-5(7)(A), 42 U.S.C. § 2000bb-2(4). The group prayer is therefore a religious exercise motivated by Mr.
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Lindh’s sincerely held religious beliefs. 2. Substantial Burden
Mr. Lindh bears the burden of persuasion on the issue of whether the challenged policy “substantially burden[s]” the exercise of his religion. 42 U.S.C. § 2000bb-1(a). While RFRA does not define substantial burden, the same definition of “substantial burden” applies under RFRA, RLUIPA, and the Free Exercise Clause. Patel v. U.S. Bureau of Prisons , 515 F.3d 807, 814 (8th Cir. 2008). In the context of the Free Exercise Clause, the Supreme Court has held that a government imposes a substantial burden when it “puts substantial pressure on an adherent to modify his behavior and violate his beliefs.” Thomas v. Review Bd., 450 U.S. 707, 718 (1981). The Seventh Circuit has recently defined a substantial burden as “one that necessarily bears direct, primary, and fundamental responsibility for rendering religious exercise ... effectively impracticable.” Koger v. Bryan, 523 F.3d 789, 799 (7th Cir. 2008) (internal citation omitted).
Given Mr. Lindh’s sincere religious belief that he is required to engage in daily congregate prayer, and the Court’s findings of fact regarding the Warden’s current policy on group prayer, the Court concludes that Mr. Lindh is substantially burdened in his exercise of religion. Indeed, his ability to engage in daily group prayer is not only substantially burdened in the CMU, but it is absolutely prohibited. “We have little difficulty in concluding that an outright ban on a particular religious exercise is a substantial burden on that religious exercise,” and, therefore, prohibiting the plaintiff “from attending religious worship services substantially burden[s] his ability to exercise his religion.” Greene v. Solano County Jail , 513 F.3d 982, 988 (9th Cir. 2008); see also, e.g., McKinley v. Maddox, __ Fed. App’x __, No. 11-6263, 2012 WL 3292389, at *5 (10th Cir. Aug. 14, 2012) (refusal to permit inmate to attend church services constitutes a substantial burden on his religious exercise).
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As indicated in the findings of fact, the prayer occurring in individual cells within the CMU cannot be considered to be the group prayer that Mr. Lindh and other Muslims believe to be mandatory or strongly preferred. In its summary judgment decision, the Court found that a genuine issue of material fact existed with respect to this issue, [dkt. 121 at 10-11], the issue only existed because it was disputed whether prisoners were able to hear and see each other from within their individual cells, and “[w]hether the prisoners are isolated or are able to see and hear each other during prayer is material to determining whether the Warden’s policy has rendered Mr. Lindh’s exercise of religion ‘effectively impracticable,’ Koger, 523 F.3d at 799.” [Dkt. 121 at 11.] Between its ruling on summary judgment and the bench trial, the Court took a tour of the CMU to observe the facility first-hand and better assess the feasibility of group prayer and various areas of the CMU, including the individual cells.
At trial, the Warden appeared to abandon his earlier argument that prisoners may “collectively raise their group voices,” [dkt. 116 at 2], from within their individual cells; he introduced no evidence that Muslim inmates may engage in congregate prayer while in their separate cells. Even if he had advanced such an argument, from the Court’s factual findings, the conclusion follows that prayer by individuals in separate cells does not amount to Salat according to Mr. Lindh’s sincerely held religious beliefs: Muslims are required to be in tight rows immediately behind an Imam, which cannot occur in individual cells; Muslims must see or hear the Imam in order to follow him, which the facts demonstrate is impossible in the CMU; and all Muslims engaging in the congregate prayer must face Mecca, whereas there is no guarantee in the CMU that Muslim inmates will even be celled next to other Muslims, and certainly no guarantee that the Imam will be between Muslim inmates and Mecca so that he is in
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front of them during the prayer. The Warden has argued that Mr. Lindh’s religious exercise is not substantially burdened
insofar as he may practice his faith in ways unrelated to congregate prayer, such as by using a prayer rug, wearing a kufi, or praying individually. The fact that Mr. Lindh is allowed to pray in his cell and to practice his Muslim faith in other ways within the CMU does not alter the fact that this rights under RFRA are being violated by the Warden’s failure to allow congregate prayer. “[P]laintiff’s ability to practice his faith by means other than group prayer is irrelevant to the question whether his ability to freely exercise his beliefs was substantially burdened.” Meyer v. Teslik, 411 F. Supp. 2d 983, 989 (W.D. Wis. 2006). This is because, “[u]nlike the First Amendment, RLUIPA protects more than the right to practice one’s faith; it protects the right to engage in specific, meaningful acts of religious expression in the absence of a compelling reason to limit expression.” Id. This applies under RFRA as well. And, as the Meyer court noted in language apposite to this action, “[i]t is difficult to imagine a burden more substantial than banning an individual from engaging in a specific religious practice.” Id.
As stated above, the Court has found that group prayer can only occur while Muslims are physically together. By prohibiting Mr. Lindh and the other Muslim prisoners who hold similar beliefs in the CMU from praying in each other’s presence, the Warden has denied Mr. Lindh and these other prisoners the religious exercise of daily group prayer. This religious exercise is rooted in Mr. Lindh’s sincere religious belief, and it is substantially burdened inasmuch as the Warden has rendered group prayer impossible, not just “effectively impracticable.” Koger, 523 F.3d at 799.
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B. Is the Warden’s Policy on Group Prayer the Least Restrictiv Achieving a Compelling Governmental Interest?

e Means of

Because the denial of group prayer substantially burdens Mr. Lindh’s sincere religious

belief, Mr. Lindh is entitled to judgment unless the Warden carries his burden of demonstrating

both that this substantial burden furthers a compelling governmental interest and that it is the

least restrictive means of furthering that interest. 42 U.S.C. § 2000bb-1(b). The Warden has not

demonstrated either that the ban on group prayer actually furthers a compelling governmental

interest or that it is the least restrictive means of furthering that interest.

1. Compelling Governmental Interest The Warden has argued that the ban on group prayer furthers the compelling

governmental interest in prison security. It is undisputed that institutional security is “the most

compelling governmental interest in a prison.” Ochs v. Thalacker , 90 F.3d 293, 296 (8th Cir.

1996). Indeed, the legislative history of RFRA demands that courts enforcing the statute give

due deference to prison officials on issues of prison security and discipline. Mack v. O’Leary, 80

F.3d 1175, 1190 (7th Cir. 1996) (citing H. Rep. No. 88, 103d Cong., 1st Sess. 8 (1993); S. Rep.

No. 11, 103d Cong., 1st Sess. 10, U.S. Code Cong. & Admin. News 1993 p. 1900). See also

Cutter, 544 U.S. at 723 (noting Congress’ intent that courts show “due deference to the

experience and expertise of prison and jail administrators in establishing necessary regulations

and procedures to maintain good order, security and discipline, consistent with consideration of

costs and limited resources.”).

However, the Court must not blindly defer to the Warden’s position on matters that

implicate prison security, and “inadequately formulated prison regulations and policies grounded

on mere speculation, exaggerated fears, or post-hoc rationalization will not suffice to meet the

21

act’s requirements.” S.Rep. No. 103-11, 1993 U.S. Code Cong. & Admin. News at 1900. Although the Warden undoubtedly has a compelling interest in maintaining prison security, he still bears the burden of demonstrating that his policy on group prayer actually serves to further the security interest. 42 U.S.C. § 2000bb-1(b)(1). He has not satisfied that burden here.
At trial, the Warden advanced several specific reasons that he believes the complete ban on congregate daily prayer advances the compelling interest in prison security. The Court will address each in turn.
First, the Warden argues that prison policies must be “firm, fair, and consistent.” However, RFRA recognizes that religions have differing requirements and requires that these individual requirements be accommodated to the extent practicable. Existing BOP policy already affords special religious diets to Jewish inmates, a special prayer location to Native American inmates, and the opportunity to engage in varying activities related to each religion’s high holy period. Permitting inmates of all religions to pray non-disruptively in small groups at times that they are allowed to roam the CMU and participate in other small group activities, such as reading, playing cards, watching religious DVDs, or engaging in conversation, would be harmonious with a “firm, fair, and consistent” policy.
Second, the Warden argues that any grouping of inmates naturally poses a security risk and must take place in locations designated for the activity, specifically the multi-purpose room for religious services.3 The CMU is unique among BOP facilities insofar as it is extensively monitored by audio and by video. The Warden’s contention that group prayer poses an
3 The Court does not find that the multi-purpose is the only location in which congregate prayer can occur. At the outset of the litigation, the Warden successfully opposed class certification challenging Plaintiff’s ability to meet the numerosity requirement, and arguing there were too few inmates seeking congregate prayer to warrant class treatment.
22

unacceptable security risk is undermined by evidence that inmates have prayed in small groups throughout the CMU and at other BOP institutions without incident. Furthermore, Chief Chaplain Michael Smith’s affirmative response as to whether chapels at other facilities, including high-security institutions, were “left open to inmates to walk in and engage in religious activities during times when there was no other formal programming,” [dkt. 188 at 246], is persuasive evidence that a policy of allowing self-directed, additional religious exercises is not problematic or threatening to prison security.
Third, the Warden expresses concern about any sort of group activity where there is a leadership structure. This concern rings hollow, however, in light of the fact that the BOP is made aware of which inmate is the present Amir in the Muslim community at the CMU, staff speak with that individual about any problems that might arise, and staff does not discipline or prohibit the Amir position. Moreover, Muslim inmates already typically lead the Jumu’ah service, where they have an opportunity to give a sermon, as well as the Ramadan services within the CMU, and a leadership structure is less likely to arise in the context of formulaic prayers than it is when inmates are giving sermons. The Warden has already taken measures to avoid potential leadership struggles by requiring that the Amir position be rotated regularly, and he can require inmates to rotate leading daily prayers in the same manner.
Fourth, the Warden contends that all inmate-led services must be supervised. Again, this concern rings hollow in light of the fact that there is often no in-person supervision of the inmate-led Ramadan services within the CMU. Moreover, unlike the other BOP facilities where prayer occurs throughout units, the CMU is extensively monitored and the staff-to-inmate ratio is far greater. Chaplain Holston testified that surveillance by audio and visual devices is in fact
23

used in another part of the Terre Haute institution as a substitute for in-person supervision. The Warden has not established why it is more necessary for direct in-person supervision of small, formulaic group prayers than for groupings of inmates watching Koranic verses on television, playing cards, or engaging in other conversations. And, the evidence establishes that, while no disruptive episodes have occurred in the CMU as a result of small group prayers, a fight has occurred over a remote control and one has occurred when the victim was reading.
Fifth, the Warden argues that permitting daily congregate prayer in the CMU in Terre Haute may negatively impact the other CMU in Illinois because congregate prayers are not permitted in that location. Initially, the Warden presented no evidence concerning whether small group prayers have occurred informally in the other CMU in the same manner that they have occurred in Terre Haute, and his witnesses therefore were only describing the formal policy of that CMU. Additionally, while this case only concerns the CMU in Terre Haute, this Court cannot find that the prohibition on daily congregate prayer is justified by the fact that daily prayer is not permitted elsewhere. This is especially true given the undisputed fact that daily prayer does occur in other BOP facilities.
Finally, the Warden briefly addressed the impact of permitting small groups of Muslim inmates to pray together in a cell. The Warden contends that this would threaten security insofar as, when multiple inmates are in a cell, “you don’t know what they are doing in there” and “bad things can happen” such as “drug use, homosexual activity, fights, homicides.” [Dkt. 192 at 183184.] However, this ignores the fact that the Warden does permit inmates to visit each other’s cells, and this explanation therefore cannot be said to advance prison security.
RFRA requires that the Warden “must do more than merely assert a security concern.”
24

Murphy v. Missouri Dept. of Corrections , 372 F.3d 979, 988 (8th Cir. 2004). However, the evidence presented by the Warden is an assertion of security concerns without corresponding evidence to support the concern. Mr. Lindh is a low-security prisoner who wishes to engage in a brief communal activity with other prisoners during the time that prisoners in the unit are allowed to engage in a host of communal activities. The desired activity, daily group prayer, is one that Mr. Lindh and the other prisoners previously engaged in with no additional security problems or concerns. Furthermore, there is no credible factual evidence to support the Warden’s argument that the resumption of prayer in a unit that is open and extensively monitored via visual and audio observance of all prisoners, will cause additional security concerns different than that posed by communal activities currently allowed on the unit. The Warden therefore has failed in his burden to establish that his group prayer ban actually furthers the compelling interest of prison security.
2. Least Restrictive Means In addition to establishing that the ban on group prayer actually furthers the compelling interest of security, to prevail the Warden must also establish that the ban is the least restrictive means of furthering that compelling governmental interest. 42 U.S.C. § 2000bb-1(b)(2). The Warden has failed to establish that the total ban on daily congregate prayer by Mr. Lindh and other Muslim prisoners within the CMU is the least restrictive means of meeting the Warden’s security concerns. “In determining the least restrictive means, ‘the Government must consider and reject other means before it can conclude that the policy chosen is the least restrictive means.’” Williams v. Secretar y Pennsylvania Dep’t of Corrections, 450 Fed. App’x 191, 195 (3d Cir. 2011) (quoting Washington v. Klem, 497 F.3d 272, 277 (3d Cir. 2007)); see also, e.g., Shakur v.
25

Schirro, 514 F.3d 878, 890 (9th Cir. 2008) (“[A] prison ‘cannot meet its burden to prove least restrictive alternative unless it demonstrates that it has actually considered and rejected the efficacy of less restrictive measures before adopting the challenged practice.’”) (internal citation omitted). The Warden has failed to legitimately consider alternatives to the total ban on daily congregate prayer by Muslim prisoners within the CMU. While it is true that Warden Oliver testified that he considered alternatives, [dkt. 192 at 186-187], he did so long after the ban on daily group prayer was implemented and without ever having seen a Muslim prayer other than the Jumu’ah prayer, [id. at 172]. He expressed concern that allowing any prayer would not be “firm, fair, and consistent”; however, merely articulating this concern is not a substitute to considering alternatives to a complete ban on the congregate daily prayer. Warden Oliver’s considerations therefore are more akin to “post-hoc rationalizations” than they are to the sincere consideration of less restrictive alternatives. Accordingly, the Court cannot conclude that he legitimately considered alternatives to the total ban on daily congregate prayer.
The consideration of less restrictive alternatives by Warden Jett and Warden Lockett is similarly problematic. Warden Jett, who first instituted the ban on congregate daily prayer, testified that the only alternatives he considered were permitting inmates to pray in their cells or to pray while walking. [Dkt. 192 at 133.] However, it is undisputed that neither praying individually in a cell nor praying while walking meets the requirements for Muslim congregate daily prayer; accordingly, these options cannot be considered less restrictive alternatives to a complete ban on group prayer. Similarly, Warden Lockett testified that the only alternative he considered was permitting additional prayer times during the holy month of Ramadan. [Dkt. 192 at 105, 107.] He also testified that permitting additional accommodations during each religion’s
26

“high holy period,” such as Ramadan or Christmas, was a part of pre-existing BOP policy, [id. at 105]. Warden Lockett’s testimony concerning the consideration of less restrictive alternatives to a complete ban on congregate daily prayer is therefore not a legitimate consideration of alternative but rather a description of other religious accommodations in existence. As indicated above, the various other religious accommodations offered to Muslims are irrelevant to the legality of the ban at issue in this case. The Court therefore concludes that the Warden did not adequately consider any alternatives to the ban at issue.
While under RFRA, it is not the responsibility of the plaintiff to suggest alternatives, Mr. Lindh has noted that if the multi-purpose room is not available for daily prayer, prayers may continue, as before, in smaller groups throughout the unit. In determining whether there are less restrictive measures to the total ban, it is relevant that prisoners in other Bureau of Prison institutions are allowed to pray together for the daily prayers, in addition to the Jumu’ah Friday prayer. The fact that daily prayer can be accommodated in other institutions within the Bureau of Prisons demonstrates that there are other alternatives that should have been considered by the Warden here. As Judge Hamilton noted in a case finding the refusal of the Indiana Department of Correction to allow communal worship by Odinist prisoners to be unlawful under RLUIPA, “[t]he fact that other prison systems permit Odinists to worship collectively is persuasive evidence that it should be possible to find a solution that effectively balances prisons’ important security concerns with inmates’ right to be free from substantial burdens on their free exercise of religion.” Hummel v. Donahue, 2008 WL 2518268, at *8 (S.D. Ind. 2008). This Court likewise finds the fact that daily prayer can be accommodated in other BOP institutions persuasive evidence that it should be possible to craft a less restrictive policy for the CMU than a total ban
27

on group prayer.
In sum, Mr. Lindh has demonstrated that his rights under RFRA are violated by the
CMU’s total ban on daily group prayer, and the Warden has failed to establish either that the ban
is justified by a compelling interest or that it is the least restrictive means to further a compelling
governmental interest. Mr. Lindh is therefore entitled to appropriate relief.
C. What Relief Should B e Granted to Mr. Lindh Under the Prison Litigation Reform Act?
RFRA provides that a “person whose religious exercise has been burdened in violation of
this section may assert that violation as a claim . . . in a judicial proceeding and obtain
appropriate relief against a government.” 42 U.S.C. § 2000b-1. The relief that may be awarded
to a prisoner when federal law is violated is constrained by the Prison Litigation Reform Act (“PLRA”), 18 U.S.C. § 3626, et seq., which provides that, in litigation brought by a prisoner concerning prison conditions, a court
shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.
18 U.S.C. § 3626(a)(1). The PLRA defines prospective relief as “all relief other than
compensatory monetary damages.” 18 U.S.C. § 3626(g)(7).
As detailed above, a “federal right,” established by RFRA, has been violated here. Mr.
Lindh is therefore entitled to declaratory relief that the ban on daily congregate prayer imposed
by the Warden violates RFRA. The declaratory judgment will not in any way be intrusive nor
will it negatively impact public safety. Moreover, the U.S. Supreme Court has recently stressed
that the PLRA does not prevent orders that have an impact on the public. See Brown v. Plata, __
28

U.S. __, 131 S.Ct. 1910, 1941 (2011). Furthermore, the Court finds that as a component of narrowly drawn relief that goes no
further than necessary to correct the violation of RFRA, it is both appropriate and necessary to enter a permanent injunction requiring the Warden to employ a less restrictive alternative to his total ban on group prayer. A plaintiff must satisfy a four-factor test before the Court can grant a permanent injunction: (1) that he has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and the defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction. eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006).
Here, Mr. Lindh is being caused irreparable harm for which there is no adequate remedy at law. See Hummel, 2008 WL 2518268, at *8 (“[I]rreparable harm accompanies a substantial burden on an individual’s rights to the free exercise of religion .…” (quoting Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996))). Furthermore, the balance of hardships also weighs in Mr. Lindh’s favor because while the Warden may further his goal of maintaining safety through less restrictive means, Mr. Lindh “has no other way to practice his religion with others.” Id. Because the Warden may maintain a safe and orderly prison while permitting Mr. Lindh to engage in group prayer, the public interest would not be disserved by a permanent injunction. The Court therefore grants Mr. Lindh’s motion for a permanent injunction.
III. CONCLUSION In passing the Religious Freedom and Restoration Act, the United States Congress restricted the ability of federal prison wardens to substantially burden the sincerely held religious
29

beliefs of inmates. Such burdens can only be imposed to further a compelling governmental interest, and by use of the least restrictive means. Throughout this action, the Warden has argued for deference to his decisions, yet he has not given appropriate deference to the standard imposed by Congress. Accordingly, the Court finds that the Warden’s policy prohibiting daily group prayer by Muslim inmates violates RFRA. The Warden will have 60 days in which to employ a new policy with respect to daily group prayer for Muslims. The Court is issuing today a permanent injunction to take effect in 60 days.

01/11/2013

_______________________________
Hon. Jane Magnus-Stinson, Judge United States District Court Southern District of Indiana

Distribution via ECF only:
Kenneth J. Falk ACLU OF INDIANA kfalk@aclu-in.org
Thomas E. Kieper UNITED STATES ATTORNEY'S OFFICE tom.kieper@usdoj.gov
William Lance McCoskey UNITED STATES ATTORNEY'S OFFICE william.mccoskey@usdoj.gov

30

 
 Case: 2:09-cv-215 As of: 07/24/2013 04:14 PM EDT 1 of 18
CMP,CLOSED
U.S. District Court Southern District of Indiana (Terre Haute) CIVIL DOCKET FOR CASE #: 2:09−cv−00215−JMS−MJD

ARNAOUT et al v. WARDEN Assigned to: Judge Jane Magnus−Stinson Referred to: Magistrate Judge Mark J. Dinsmore Cause: 42:2000 Job Discrimination (Public Accomodations)
Plaintiff

Date Filed: 06/18/2009 Date Terminated: 01/11/2013 Jury Demand: None Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

JOHN LINDH

represented by Gavin Minor Rose ACLU OF INDIANA 1031 E. Washington Street Indianapolis, IN 46202 317−635−4059 ext.106 Fax: 317−635−4105 Email: grose@aclu−in.org ATTORNEY TO BE NOTICED

Kenneth J. Falk ACLU OF INDIANA 1031 East Washington Street Indianapolis, IN 46202−3952 (317) 635−4059 x104 Fax: (317) 635−4105 Email: kfalk@aclu−in.org ATTORNEY TO BE NOTICED

V.
Defendant
WARDEN Federal Correctional Institution Terre Haute Indiana

represented by Thomas E. Kieper UNITED STATES ATTORNEY'S OFFICE 10 West Market Street Suite 2100 Indianapolis, IN 46204 (317) 226−6333 Fax: (317) 226−6125 Email: tom.kieper@usdoj.gov ATTORNEY TO BE NOTICED
William Lance McCoskey UNITED STATES ATTORNEY'S OFFICE 10 West Market Street Suite 2100 Indianapolis, IN 46204 317−229−2412 Fax: 317−226−5027 Email: william.mccoskey@usdoj.gov ATTORNEY TO BE NOTICED

Date Filed 06/18/2009

# Docket Text
1 COMPLAINT against WARDEN, filed by ENAAM ARNAOUT, RANDALL T ROYER. (Attachments: # 1 Exhibit a)(VS) (Entered: 06/19/2009)

Case: 2:09-cv-215 As of: 07/24/2013 04:14 PM EDT 2 of 18

06/18/2009 06/18/2009 06/18/2009 06/18/2009 06/18/2009 06/18/2009 07/08/2009 08/18/2009 08/18/2009 09/16/2009 09/23/2009 11/09/2009
11/09/2009 11/17/2009 12/03/2009 12/16/2009
12/22/2009
12/23/2009 12/28/2009

2 CIVIL COVER SHEET, filed by Plaintiffs ENAAM ARNAOUT, RANDALL T ROYER. (VS) (Entered: 06/19/2009)
3 Summons Issued as to WARDEN. Attorney General Office of USA (VS) (Entered: 06/19/2009)
4 NOTICE of Appearance by Kenneth J. Falk on behalf of Plaintiffs ENAAM ARNAOUT, RANDALL T ROYER. (VS) (Entered: 06/19/2009)
5 MAGISTRATE JUDGE's NOTICE of Availability to Exercise Jurisdiction issued. (VS) (Entered: 06/19/2009)
6 MAGISTRATE JUDGE'S Summary of CMP Notice (VS) (Entered: 06/19/2009)
7 RECEIPT #th 000862 in the amount of $ 350.00 (VS) (Entered: 06/19/2009)
8 SUMMONS Returned Executed by all plaintiffs. WARDEN served on 7/1/2009. (Falk, Kenneth) (Entered: 07/08/2009)
9 NOTICE of Appearance by Thomas E. Kieper on behalf of Defendant WARDEN. (Kieper, Thomas) (Entered: 08/18/2009)
10 NOTICE of Parties' First Extension of Time, filed by Defendant WARDEN. (Kieper, Thomas) (Entered: 08/18/2009)
11 Clerk's Notice of Change of Terre Haute Division Mailing Address. (JD) (Entered: 09/16/2009)
12 Defendant's ANSWER to 1 Complaint and Defendant's Affirmative Defenses, filed by WARDEN.(Kieper, Thomas) (Entered: 09/23/2009)
13 MOTION to Amend/Correct Complaint, filed by Plaintiffs ENAAM ARNAOUT, RANDALL T ROYER. (Attachments: # 1 Proposed amended complaint, # 2 Exhibit A−C to Proposed Amended Complaint, # 3 Text of Proposed Order)(Falk, Kenneth) (Entered: 11/09/2009)
14 BRIEF/MEMORANDUM in Support re 13 MOTION to Amend/Correct Complaint, filed by Plaintiffs ENAAM ARNAOUT, RANDALL T ROYER. (Falk, Kenneth) (Entered: 11/09/2009)
15 Unopposed MOTION for Extension of Time to December 22, 2009, filed by Defendant WARDEN. (Attachments: # 1 Text of Proposed Order)(Kieper, Thomas) (Entered: 11/17/2009)
16 CASE MANAGEMENT PLAN TENDERED, filed by Plaintiffs ENAAM ARNAOUT, RANDALL T ROYER. (Attachments: # 1 Summary of CMP)(Falk, Kenneth) (Entered: 12/03/2009)
17 ORDER: CASE MANAGEMENT PLAN APPROVED AS SUBMITTED. Dispositive Motions due by 8/23/2010. Settlement Conference set for 5/20/2010 10:00 AM in room #131 before Magistrate Judge William G. Hussmann, Jr. In light of the potential for SJ to resolve this matter, a trial date will be set at the settlement conference. Signed by Magistrate Judge William G. Hussmann, Jr., on 12/16/2009.(NRN) (Entered: 12/16/2009)
18 RESPONSE in Opposition re 13 MOTION to Amend/Correct Complaint Defendant's Objection to Plaintiff's Motion to File Amended Complaint, filed by Defendant WARDEN. (Attachments: # 1 Exhibit 1, Declaration of Harvey G. Church, # 2 Exhibit 2, Declaration of Bashar Murad)(Kieper, Thomas) (Entered: 12/22/2009)
19 ORDER granting 15 Motion for Extension of Time to File Reponse to Amended Complaint to 12/22/2009. Signed by Magistrate Judge William G. Hussmann, Jr., on 12/23/2009. (NRN) (Entered: 12/23/2009)
20 MOTION for Extension of Time to January 25, 2010 to file reply to 13 MOTION to Amend/Correct Complaint, filed by Plaintiffs ENAAM ARNAOUT, RANDALL T ROYER. (Attachments: # 1 Text of Proposed Order)(Falk, Kenneth) (Entered: 12/28/2009)

Case: 2:09-cv-215 As of: 07/24/2013 04:14 PM EDT 3 of 18

12/29/2009 01/25/2010 01/25/2010 01/25/2010 02/22/2010 03/23/2010 03/24/2010
04/01/2010 04/01/2010 04/09/2010 04/12/2010 04/16/2010
04/16/2010 05/03/2010 05/25/2010 05/25/2010

21 ORDER granting 20 Motion for Extension of Time to File Reply re 13 MOTION to Amend/Correct Complaint. Reply due by 1/25/2010. Signed by Magistrate Judge William G. Hussmann, Jr., on 12/29/2009. (NRN) (Entered: 12/29/2009)
22 NOTICE of Service of Initial Disclosures, filed by Plaintiffs ENAAM ARNAOUT, RANDALL T ROYER. (Falk, Kenneth) (Entered: 01/25/2010)
23 REPLY in Support of Motion re 13 MOTION to Amend/Correct Complaint, filed by Plaintiffs ENAAM ARNAOUT, RANDALL T ROYER. (Attachments: # 1 Exhibit Declaration−Lindh, # 2 Exhibit Declaration−Arnaout)(Falk, Kenneth) (Entered: 01/25/2010)
24 NOTICE of Service of Initial Disclosures, filed by Defendant WARDEN. (Kieper, Thomas) (Entered: 01/25/2010)
25 Witness List −Preliminary, filed by Plaintiffs ENAAM ARNAOUT, RANDALL T ROYER, Exhibit List Preliminary, filed by Plaintiffs ENAAM ARNAOUT, RANDALL T ROYER. (Falk, Kenneth) (Entered: 02/22/2010)
26 Witness List, filed by Defendant WARDEN, Exhibit List, filed by Defendant WARDEN. (Kieper, Thomas) (Entered: 03/23/2010)
27 MOTION to Allow Plaintiffs to Appear at the Settlement Conference by Telephone and to Excuse Randall Royer from the Conference if Suitable Arrangements Cannot be Made for his Telephonic Appearance, filed by Plaintiffs ENAAM ARNAOUT, RANDALL T ROYER. (Attachments: # 1 Text of Proposed Order)(Falk, Kenneth) (Entered: 03/24/2010)
28 MOTION to Dismiss Randall Royer and His Claim, filed by Defendant WARDEN. (Kieper, Thomas) (Entered: 04/01/2010)
29 BRIEF/MEMORANDUM in Support re 28 MOTION to Dismiss Randall Royer and His Claim, filed by Defendant WARDEN. (Attachments: # 1 Decl. of B. Shoemaker)(Kieper, Thomas) (Entered: 04/01/2010)
30 MOTION for Extension of Time to May 19, 2010 to file response to 28 MOTION to Dismiss Randall Royer and His Claim, filed by Plaintiffs ENAAM ARNAOUT, RANDALL T ROYER. (Attachments: # 1 Text of Proposed Order)(Falk, Kenneth) (Entered: 04/09/2010)
31 ORDER granting 30 Motion for Extension of Time to File Response to 5/19/2010 re 28 MOTION to Dismiss Randall Royer and His Claim. Signed by Magistrate Judge William G. Hussmann, Jr., on 4/12/2010. (NRN) (Entered: 04/13/2010)
32 Minute Entry for proceedings held before Magistrate Judge William G. Hussmann, Jr.: Attorney Conference Call held on 4/13/2010. The settlement conference set for 5/20/2010 10:00 AM is converted to a Telephonic Status Conference before Magistrate Judge William G. Hussmann, Jr. The 27 Motion to Allow Plaintiffs to Appear by Telephone is DENIED, as moot, in light of the fact that the May 20th conference will no longer be held as a settlement conference. At the May 20th status conference, counsel shall advise the Magistrate Judge if the parties would agree to a resolution of this lawsuit under the terms and conditions as explained in this Entry. (NRN) (Entered: 04/16/2010)
ORDER denying as moot 27 Motion. Signed by Magistrate Judge William G. Hussmann, Jr., on 4/16/2010. (NRN) (Entered: 04/16/2010)
33 RESPONSE to Motion re 28 MOTION to Dismiss Randall Royer and His Claim, filed by Plaintiffs ENAAM ARNAOUT, RANDALL T ROYER. (Falk, Kenneth) (Entered: 05/03/2010)
34 STATUS REPORT Concerning Exhaustion of Remedies by Proposed Plaintiff Lindh by ENAAM ARNAOUT, RANDALL T ROYER. (Falk, Kenneth) (Entered: 05/25/2010)
35 Submission Proposed Order in Support of Motion to Dismiss, Dkt. #28, filed by Defendant WARDEN. (Kieper, Thomas) (Entered: 05/25/2010)

Case: 2:09-cv-215 As of: 07/24/2013 04:14 PM EDT 4 of 18

05/26/2010 05/28/2010 06/16/2010 06/28/2010
06/29/2010 06/29/2010 06/29/2010 07/02/2010 07/07/2010
07/08/2010 07/08/2010
07/16/2010 08/05/2010

36 ORDER granting, without prejudice defendant's 28 Motion to Dismiss Randall Royer from this cause because Court lacks jurisdiction; Randall Royer's claim is dismissed. Signed by Judge Larry J. McKinney on 5/26/2010. cm (NKD) (Entered: 05/26/2010)
37 Minute Entry for proceedings held before Magistrate Judge William G. Hussmann, Jr: Status Conference held on 5/20/2010. Telephonic Status Conference set for 11/8/2010 09:30 AM before Magistrate Judge William G. Hussmann Jr. (SMD) (Entered: 05/28/2010)
38 Reassignment of Case to Judge Jane Magnus−Stinson. Judge Larry J. McKinney no longer assigned to the case. Please include the new case number (2:09−cv−00215−JMS−WGH), which includes the initials of the newly assigned judge, on all future filings in this matter. (TRG) (Entered: 06/16/2010)
39 ORDER granting 13 Motion to Amend/Correct complaint; plaintiff may file Amended Complaint within three days; Defendant shall answer or respond within 20 days thereafter; Court notes parties have dicussed issue of exhaustion [dkt 34], Parties ORDERED to meet and confer about a briefing schedule for class certification (taking into account whether any additional discovery need to be performed) as well as any other issues that may need to be addressed; If parties can agree to briefing schedule, they must file proposal by July 7, 2010. If they cannot reach agreement by that time, they should request, by the same deadline, a telephone conference with the Magistrate Judge, who will issue an appropriate schedule under the circumstances. Signed by Judge Jane Magnus−Stinson on 6/28/2010. (VS) (Entered: 06/29/2010)
40 AMENDED COMPLAINT against WARDEN, filed by ENAAM ARNAOUT, John Lindh. (Attachments: # 1 Exhibit Arnaout grievances, # 2 Exhibit Lindh grievances)(Falk, Kenneth) (Entered: 06/29/2010)
41 NOTICE Accompanying Plaintiffs' Filing of Amended Class Action Complaint for Declaratory and Injunctive Relief, filed by Plaintiffs ENAAM ARNAOUT, John Lindh (Falk, Kenneth) (Entered: 06/29/2010)
42 NOTICE of Appearance by Kenneth J. Falk on behalf of Plaintiff John Lindh. (Falk, Kenneth) (Entered: 06/29/2010)
43 MOTION for approval of −Briefing Schedule and Status Report, filed by Plaintiffs ENAAM ARNAOUT, John Lindh. (Attachments: # 1 Text of Proposed Order)(Falk, Kenneth) Modified on 7/6/2010 (NRN). (Entered: 07/02/2010)
44 ORDER Approves 43 Motion for approval of briefing schedule and stauts report; ORDERED Plaintiffs are to file motion for class certification and supporting memorandum no later than 07/09/10; Defendant will file its response memorandum no later than 08/30/10; Plaintiffs will file any reply memorandum no later than 17 days after the defendant files her response memorandum. Signed by Judge Jane Magnus−Stinson on 7/7/2010. (VS) (Entered: 07/07/2010)
45 MOTION to Certify Class, filed by Plaintiffs ENAAM ARNAOUT, JOHN LINDH. (Falk, Kenneth) (Entered: 07/08/2010)
46 BRIEF/MEMORANDUM in Support re 45 MOTION to Certify Class, filed by Plaintiffs ENAAM ARNAOUT, JOHN LINDH. (Attachments: # 1 Exhibit Church deposition, # 2 Exhibit Aranaout Declaration, # 3 Exhibit Bilal Affidavit, # 4 Exhibit Chandia Affidavit, # 5 Exhibit Twitty Affidavit, # 6 Exhibit Carr Affidasvit, # 7 Exhibit Haouari Affidavit, # 8 Exhibit Dhafir Affidavit)(Falk, Kenneth) (Entered: 07/08/2010)
47 ANSWER Defendant's Answer to Plaintiffs' Amended Complaint and Defendant's Affirmative Defenses, filed by Defendant WARDEN. (Kieper, Thomas) (Entered: 07/16/2010)
48 Joint MOTION to Amend/Correct Case Management Plan, filed by Defendant WARDEN. (Attachments: # 1 Text of Proposed Order)(Kieper, Thomas) (Entered: 08/05/2010)

Case: 2:09-cv-215 As of: 07/24/2013 04:14 PM EDT 5 of 18

08/09/2010 08/16/2010 08/17/2010 08/18/2010 08/19/2010 08/25/2010 08/26/2010
08/26/2010 08/30/2010 08/30/2010 08/30/2010 09/07/2010 09/09/2010
09/16/2010 09/17/2010 09/20/2010 09/21/2010 09/22/2010

49 ORDER granting 48 Motion to Amend Case Management Plan. Signed by Magistrate Judge William G. Hussmann, Jr on 8/9/2010. (SMD) (Entered: 08/09/2010)
50 MOTION for Extension of Time to August 30, 2010 to file for Summary Judgment, filed by Plaintiffs ENAAM ARNAOUT, JOHN LINDH, RANDALL T ROYER. (Attachments: # 1 Text of Proposed Order)(Falk, Kenneth) (Entered: 08/16/2010)
51 ORDER granting 50 Motion for Extension of Time to File motion for summary judgment and supporting materials to 08/30/10. Signed by Judge Jane Magnus−Stinson on 8/17/2010. (VS) (Entered: 08/17/2010)
52 NOTICE of Appearance by William Lance McCoskey on behalf of Defendant WARDEN. (McCoskey, William) (Entered: 08/18/2010)
53 Submission of Signature Requirement re 52 Notice of Appearance by WARDEN. (McCoskey, William) (Entered: 08/19/2010)
54 NOTICE of Filing Signature Pages for the Deposition of Harvey G. Church by ENAAM ARNAOUT, JOHN LINDH (Attachments: # 1 Deposition Signature Pages) (Falk, Kenneth) (Entered: 08/25/2010)
55 MOTION for Summary Judgment, filed by Plaintiffs ENAAM ARNAOUT, JOHN LINDH. (Attachments: # 1 Exhibit Church deposition, # 2 Exhibit Admissions, # 3 Exhibit Supplemental Declaration−Lindh, # 4 Exhibit Declaration−Royer)(Falk, Kenneth) (Entered: 08/26/2010)
56 BRIEF/MEMORANDUM in Support re 55 MOTION for Summary Judgment, filed by Plaintiffs ENAAM ARNAOUT, JOHN LINDH. (Falk, Kenneth) (Entered: 08/26/2010)
57 RESPONSE in Opposition re 45 MOTION to Certify Class, filed by Defendant WARDEN. (McCoskey, William) (Entered: 08/30/2010)
58 MOTION to Consolidate Cases, filed by Plaintiffs ENAAM ARNAOUT, JOHN LINDH. (Attachments: # 1 Text of Proposed Order)(Falk, Kenneth) (Entered: 08/30/2010)
59 MOTION to Consolidate Cases −CORRECTED−, filed by Plaintiffs ENAAM ARNAOUT, JOHN LINDH. (Attachments: # 1 Text of Proposed Order)(Falk, Kenneth) (Entered: 08/30/2010)
60 REPLY in Support of Motion re 45 MOTION to Certify Class, filed by Plaintiffs ENAAM ARNAOUT, JOHN LINDH. (Falk, Kenneth) (Entered: 09/07/2010)
61 ORDER granting plaintiffs Arnaout and Lindh's 59 Motion to Consolidate Cases. The two cases are consolidated, for all purposes, and shall be captioned as specified in this Entry. Clerk shall docket this Entry in Cause No. 2:10−cv−00175 and close Cause No. 2:10−cv−00175. Signed by Judge Jane Magnus−Stinson on 9/09/2010. (Service by US mail) (NKD) (Entered: 09/10/2010)
62 MOTION to Dismiss Enaam Arnaout, filed by Plaintiffs ENAAM ARNAOUT, BRIAN CARR, JOHN LINDH. (Attachments: # 1 Text of Proposed Order)(Falk, Kenneth) (Entered: 09/16/2010)
63 ORDER granting plaintiffs' 62 Motion to Dismiss Enaam Arnaout from this case. Enaam Arnaout is dismissed from this action. Signed by Judge Jane Magnus−Stinson on 9/17/2010. (NKD) (Entered: 09/17/2010)
64 NOTICE Concerning Status of Plaintiff Brian Carr as Class Representative, filed by Plaintiffs BRIAN CARR, JOHN LINDH (Falk, Kenneth) (Entered: 09/20/2010)
65 Unopposed MOTION for Extension of Time to November 9, 2010 to file response to 55 MOTION for Summary Judgment, filed by Defendant WARDEN. (Attachments: # 1 Text of Proposed Order)(Kieper, Thomas) (Entered: 09/21/2010)
66 ORDER granting 65 Motion for Extension of Time to File Response re 55 MOTION for Summary Judgment. Defendant shall have through November 9, 2010, to file his response to Plaintiffs motion for summary judgment, and to file a summary judgment in favor of defense in this cause. Plaintiffs shall have through

Case: 2:09-cv-215 As of: 07/24/2013 04:14 PM EDT 6 of 18

11/08/2010
11/09/2010 11/09/2010
11/09/2010 11/12/2010 11/12/2010 11/15/2010 11/19/2010 11/22/2010
12/01/2010

December 7, 2010, to respond to Defendants summary judgment and to reply in support of their summary judgment. Defendant shall have until December 22, 2010, to reply to Plaintiffs response to its summary judgment motion. Signed by Judge Jane Magnus−Stinson on 9/22/2010. (NKD) (Entered: 09/22/2010)
67 ORDER denying Plaintiff's 45 Motion to Certify Class. Plaintiffs have not sufficiently defined a class and have failed to establish numerosity, their Motion to Certify the Class, 45 , is DENIED. Plaintiffs have until December 3, 2010 to move to join additional inmates whose affidavits were submitted as evidence for class certification if those individuals seek to be named plaintiffs in this case. (See Order for Details) Signed by Judge Jane Magnus−Stinson on 11/8/2010. (NKD) (Entered: 11/09/2010)
68 MOTION for Summary Judgment and Response In Opposition to Plaintiffs' Motion for Summary Judgment, filed by Defendant WARDEN. (Kieper, Thomas) (Entered: 11/09/2010)
69 Appendix of Exhibits in Support of Motion re 68 MOTION for Summary Judgment and Response In Opposition to Plaintiffs' Motion for Summary Judgment, filed by Defendant WARDEN. (Attachments: # 1 Exhibit 1− Decl. of H. Church, # 2 Exhibit 2−Decl. of D. Holston, # 3 Exhibit 3 − Decl. of F. Coleman &att. Notice to Inmate, # 4 Exhibit 4 − Decl. of S. Harvey, # 5 Exhibit 5 − Decl. of C. Lockett, # 6 Exhibit 6− Decl. of H. Marberry, # 7 Exhibit 7 − Decl. of A. Amonette &att. CV, # 8 Exhibit 8 −Decl. of L. Smith &atts. 1 − 3, # 9 Exhibit 8 − att. 4 −Terroist Recruitment, # 10 Exhibit 8 − att. 5 − Review of Religious Srvs., # 11 Exhibit 9 − Decl. of C. Gonzalez)(Kieper, Thomas) (Entered: 11/09/2010)
70 MOTION for Leave to File Oversized Brief, filed by Defendant WARDEN. (Attachments: # 1 Att. 1 − Resp. to Plt. MSJ and Memo in Support of Cross−MSJ, # 2 Text of Proposed Order)(Kieper, Thomas) (Entered: 11/09/2010)
71 ORDER (See order for more details) parties motions for summary judgment, [dkts. 55; 68], are DENIED as premature without prejudice to refile pursuant to this Order, and the Wardens Motion for Leave to File an Oversized Brief, [dkt. 70], is DENIED as moot. Signed by Judge Jane Magnus−Stinson on 11/12/2010. (VS) (Entered: 11/12/2010)
72 TRIAL PROCEDURES AND PRACTICES before Judge Jane Magnus−Stinson. (VS) (Entered: 11/12/2010)
73 Minute Entry for proceedings held before Magistrate Judge William G. Hussmann, Jr.: Status Conference held on 11/8/2010. Status Conference set for 4/22/2011 09:30 AM Telephonic before Magistrate Judge William G. Hussmann, Jr. (NRN) (Entered: 11/15/2010)
74 MOTION to Vacate Deadline for Final Witness and Exhibit Lists and to Modify Case Management Deadlines (AGREED), filed by Plaintiffs BRIAN CARR, JOHN LINDH. (Attachments: # 1 Text of Proposed Order)(Falk, Kenneth) (Entered: 11/19/2010)
75 ORDER granting Agreed 74 Motion to Vacate Deadline The current deadline of November 23, 2010, for the filing of final witness and exhibit lists is vacated. In the event that plaintiffs file a motion to amend the complaint and in the event that this is approved by the Court, that within thirty (30) days of the pleadings being closed that the parties shall file an amended case management plans specifying dates for: Disclosure of expert witnesses. Filing of final witness and exhibit lists. Completion of Discovery (if new parties are added). Filing of dispositive motions. In the event that plaintiffs do not join parties and move to amend the complaint, the time to file the final witness and exhibit list is extended to thirty (30) days after the expiration of the joinder deadline established by the Court. Signed by Judge Jane Magnus−Stinson on 11/22/2010. (NKD) (Entered: 11/22/2010)
76 MOTION to Amend/Correct Second Amended Complaint to Join Additional Plaintiffs, filed by Plaintiffs BRIAN CARR, JOHN LINDH. (Attachments: # 1 Proposed Am. Complaint, # 2 Exhibit 1− Seecond Am. Compl, # 3 Exhibit 2−Second Am. Compl, # 4 Exhibit 3−Second Am. Compl, # 5 Text of Proposed Order)(Falk, Kenneth) (Entered: 12/01/2010)

Case: 2:09-cv-215 As of: 07/24/2013 04:14 PM EDT 7 of 18

12/01/2010 12/14/2010 12/17/2010
12/20/2010 01/07/2011
01/07/2011 01/07/2011 01/18/2011 01/25/2011
01/25/2011 01/25/2011 01/28/2011 02/23/2011 02/24/2011 05/03/2011

77 BRIEF/MEMORANDUM in Support re 76 MOTION to Amend/Correct Second Amended Complaint to Join Additional Plaintiffs, filed by Plaintiffs BRIAN CARR, JOHN LINDH. (Falk, Kenneth) (Entered: 12/01/2010)
78 RESPONSE in Opposition re 76 MOTION to Amend/Correct Second Amended Complaint to Join Additional Plaintiffs, filed by Defendant WARDEN. (Attachments: # 1 Supplement Attachment 1 Declaration of T. Myers)(Kieper, Thomas) (Entered: 12/14/2010)
79 MOTION for Extension of Time to January 17, 2011 to file reply to 76 MOTION to Amend/Correct Second Amended Complaint to Join Additional Plaintiffs so that Relevant Documents may be Reviewed, filed by Plaintiffs BRIAN CARR, JOHN LINDH. (Attachments: # 1 Text of Proposed Order)(Falk, Kenneth) (Entered: 12/17/2010)
80 ORDER granting 79 Motion for Extension of Time to File Reply to 1/17/2011 re 76 MOTION to Amend/Correct Second Amended Complaint to Join Additional Plaintiffs. Signed by Magistrate Judge William G. Hussmann, Jr., on 12/20/2010. (NRN) (Entered: 12/20/2010)
81 Amended MOTION to Amend/Correct File Substituted Second Amended Complaint to Join Additional Plaintiff, filed by Plaintiffs BRIAN CARR, JOHN LINDH. (Attachments: # 1 Proposed amended complaint, # 2 Ex 1 to proposed amended complaint, # 3 Ex. 2 to proposed amended complaint, # 4 Ex. 3 to proposed amended complaint, # 5 Text of Proposed Order)(Falk, Kenneth) (Entered: 01/07/2011)
82 BRIEF/MEMORANDUM in Support re 81 Amended MOTION to Amend/Correct File Substituted Second Amended Complaint to Join Additional Plaintiff, filed by Plaintiffs BRIAN CARR, JOHN LINDH. (Falk, Kenneth) (Entered: 01/07/2011)
83 REPLY in Support of Motion re 76 MOTION to Amend/Correct Second Amended Complaint to Join Additional Plaintiffs (Reply Concerning Motion), filed by Plaintiffs BRIAN CARR, JOHN LINDH. (Falk, Kenneth) (Entered: 01/07/2011)
84 ENTRY (Marginal) − 76 Motion is denied as moot in light of docket 81. JMS, DJ, 1/18/11(NKD) (Entered: 01/18/2011)
85 ORDER − Plaintiffs, having filed their Amended Motion to file Substituted Second Amended Complaint to Join Additional Plaintiffs (Doc No. 81), and Court having read Motion and being duly advised, finds that good cause exists to grant it. IT IS THEREFORE ORDERED that Second Amended Complaint for Declaratoryand Injunctive Relief submitted with Amended Motion to File Substituted Second Amended Complaint may be filed by plaintiffs within three days of this Order. Defendant shall answer or otherwise respond within twenty days thereafter. Signed by Judge Jane Magnus−Stinson on 1/25/2011. (NKD) (Entered: 01/25/2011)
86 AMENDED COMPLAINT (Second) for Declaratory and Injunctive Relief against WARDEN, filed by BRIAN CARR, JOHN LINDH, Ali Asad Chandia. (Attachments: # 1 Exhibit Lindh grievances, # 2 Exhibit Carr grievances, # 3 Exhibit Chandia grievances)(Falk, Kenneth) (Entered: 01/25/2011)
87 NOTICE of Appearance by Kenneth J. Falk on behalf of Plaintiff Ali Asad Chandia. (Falk, Kenneth) (Entered: 01/25/2011)
88 ANSWER to Plaintiffs' Second Amended Complaint and Defendant's Affirmative Defenses, filed by Defendant WARDEN. (Kieper, Thomas) (Entered: 01/28/2011)
89 MOTION to Amend Case Management Plan, filed by Plaintiffs BRIAN CARR, Ali Asad Chandia, JOHN LINDH (Attachments: # 1 Text of Proposed Order) (Falk, Kenneth) Modified on 2/24/2011 (NKD). (Entered: 02/23/2011)
90 ORDER granting 89 Motion to Amend/Correct Case Management Plan. Signed by Magistrate Judge William G. Hussmann, Jr on 2/24/2011. (SMD) (Entered: 02/24/2011)
91 Minute Entry for proceedings held before Magistrate Judge William G. Hussmann, Jr.: Status Conference held on 4/22/2011. Status Conference set for 11/15/2011 09:30 AM Telephonic before Magistrate Judge William G. Hussmann, Jr. (NRN)

Case: 2:09-cv-215 As of: 07/24/2013 04:14 PM EDT 8 of 18

05/16/2011 05/24/2011 06/02/2011 06/06/2011 06/07/2011
06/07/2011 06/08/2011
07/22/2011 07/25/2011 08/05/2011

(Entered: 05/03/2011)
93 NOTICE of Serving Expert Witness Disclosure, filed by Defendant WARDEN (Kieper, Thomas) (Entered: 05/16/2011)
94 Reassignment of Case to Magistrate Judge Mark J. Dinsmore. Magistrate Judge William G. Hussmann, Jr no longer assigned to the case. Please include the new case number (2:09−cv−00215−JMS−MJD), which includes the initials of the newly assigned judge, on all future filings in this matter. (NKD) (Entered: 05/24/2011)
95 SCHEDULING ENTRY: This telephone status conference currently scheduled for Tuesday, November 15, 2011 at 9:30 a.m. is hereby VACATED. This matter is set for a telephone status conference on Monday, August 1, 2011 at 3:00 p.m. The purpose of this conference is to discuss case status. Counsel shall attend the conference by calling the phone number to be provided by the court in an email. Signed by Magistrate Judge Mark J. Dinsmore on 6/2/2011.(NKD) (Entered: 06/03/2011)
96 Unopposed MOTION for Extension of Time to August 30, 2011 for Filing of Dispositive Motions, filed by Plaintiffs BRIAN CARR, Ali Asad Chandia, JOHN LINDH. (Attachments: # 1 Text of Proposed Order)(Falk, Kenneth) (Entered: 06/06/2011)
97 ORDER − Plaintiffs, having filed their 96 Unopposed Motion to Extend Deadlines for Filing of Dispositive Motions, and the Court having read the Motion, and being duly advised, finds that good cause exists to grant it, and, IT IS THEREFORE ORDERED that the deadlines for the filing of dispositive motions be extended as follows: Plaintiffs to file their motion for summary judgment and supporting material no later than July 1, 2011. Defendant to file his cross−motion for summary judgment and supporting material combined with her response in opposition to plaintiffs' motion no later than thirty−one days after plaintiffs' filing. Plaintiffs to file their reply in support of their motion combined with their response in opposition to the cross−motion no later than thirty−one days after defendant's filing. Defendant to file his reply in support of cross−motion for summary judgment no later than 17 days after plaintiffs' filing. Signed by Judge Jane Magnus−Stinson on 6/7/2011. (NKD) Modified on 6/8/2011 (NKD). (Entered: 06/07/2011)
98 Amended MOTION for Extension of Time to August 30, 2011 to File Dispositive Motions (Unopposed), filed by Plaintiffs BRIAN CARR, Ali Asad Chandia, JOHN LINDH. (Attachments: # 1 Text of Proposed Order)(Falk, Kenneth) (Entered: 06/07/2011)
99 ORDER granting 98 Motion to extend deadlines for filing of Dispositive Motions; Plaintiffs to file their motion for summary judgment and supporting material no later than August 30, 2011 Defendant to file his cross−motion for summary judgment and supporting material combined with her response in opposition to plaintiffs motion no later than thirty−one days after plaintiffs' filing. Plaintiffs to file their reply in support of their motion combined with their response in opposition to the cross−motion no later than thirty−one days after defendants filing Defendant to file his reply in support of cross−motion for summary judgment no later than 17 days after plaintiffs' filing. Signed by Judge Jane Magnus−Stinson on 6/8/2011. (VS) (Entered: 06/08/2011)
100 MOTION for Continuance Telephone Status Conference, filed by Plaintiffs BRIAN CARR, Ali Asad Chandia, JOHN LINDH. (Attachments: # 1 Text of Proposed Order)(Falk, Kenneth) (Entered: 07/22/2011)
101 ORDER granting 100 Motion for Continuance; ( Status Conference set for 8/9/2011 03:30 PM in Telephonic before Magistrate Judge Mark J. Dinsmore) All other requirements of the Court's Order dated 6/2/2011 [dkt. 95] remain in full force and effect. Signed by Magistrate Judge Mark J. Dinsmore on 7/25/2011.(VS) (Entered: 07/25/2011)
103 STIPULATION OF FACTS, filed by Plaintiffs BRIAN CARR, ALI ASAD CHANDIA, JOHN LINDH. (Falk, Kenneth) Modified on 8/22/2011 (VS). (Entered: 08/05/2011)

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08/10/2011
08/11/2011
08/29/2011
08/29/2011 09/20/2011 09/21/2011 10/04/2011 10/05/2011 10/11/2011 10/11/2011

104 ***STRICKEN ***PER CORRECTED ENTRY #105***Minute Order for proceedings held before Magistrate Judge Mark J. Dinsmore: Status Conference held on 8/9/2011. The parties appeared by telephone for a status conference. The parties discussed plaintiff's claim for social security benefits. The parties also discussed case management deadlines. The Court hereby enlarges the deadline to complete all discovery to September 30, 2011. All other requirements of the Approved Case Management Plan [dkt. 18] remain in full force and effect. In addition, the parties are to evaluate their claims to explore the possibility of settlement. Signed by Magistrate Judge Mark J. Dinsmore.(VS) Modified on 8/11/2011 (VS). (Entered: 08/11/2011)
105 Corrected Minute Order for proceedings held before Magistrate Judge Mark J. Dinsmore: Status Conference held on 8/9/2011. This Corrected Minute Entry Strikes the Minute Entry dated 8/10/11 [Dkt. 104]. The parties appeared by telephone for a status conference. The parties discussed the status of discovery and the cross−motions for summary judgement. The parties report they believe the filing of the cross−motions for summary judgement will dispose of this case. Signed by Magistrate Judge Mark J. Dinsmore.(VS) (Entered: 08/11/2011)
106 Second MOTION for Summary Judgment, filed by Plaintiffs BRIAN CARR, ALI ASAD CHANDIA, JOHN LINDH. (Attachments: # 1 Exhibit Coleman Dep. Excerpts, # 2 Exhibit Lindh Supp. Declaration 2, # 3 Exhibit Chandia Supp. Affidavit, # 4 Exhibit Carr Supp. Declaration, # 5 Exhibit Haouari Supp. Affidavit, # 6 Exhibit Dhafir Supp. Affidavit, # 7 Exhibit Arnaout Supp. Declaration 2, # 8 Exhibit Warden Memo June 1, 2009, # 9 Exhibit Warden Memo Aug. 10, 2009, # 10 Exhibit Church Dep. Excerpts, # 11 Exhibit Lockett Dep. Excerpts)(Falk, Kenneth) (Entered: 08/29/2011)
107 BRIEF/MEMORANDUM in Support re 106 Second MOTION for Summary Judgment, filed by Plaintiffs BRIAN CARR, ALI ASAD CHANDIA, JOHN LINDH. (Falk, Kenneth) (Entered: 08/29/2011)
108 MOTION for Extension of Time to October 10, 2011 to file response to 106 Second MOTION for Summary Judgment, filed by Defendant WARDEN. (Attachments: # 1 Text of Proposed Order)(Kieper, Thomas) (Entered: 09/20/2011)
109 ORDER granting 108 Motion for Extension of Time to File Response to 10/10/2011 to file his response to Plaintiffs 106 Second MOTION for Summary Judgment, and to file a counter−motion for summary judgment in favor of the defense in this cause. The remaining schedule for reply briefs remains as set in the June 8, 2011, Order previously entered. Signed by Magistrate Judge Mark J. Dinsmore on 9/21/2011. (VS) (Entered: 09/21/2011)
110 MOTION to Dismiss Brian Carr and Ali Asad Chandia, filed by Plaintiffs BRIAN CARR, ALI ASAD CHANDIA, JOHN LINDH. (Attachments: # 1 Text of Proposed Order)(Falk, Kenneth) (Entered: 10/04/2011)
111 ORDER granting 110 Motion to Dismiss Brian Carr and Ali Asad Chandia from this case. Parties BRIAN CARR and ALI ASAD CHANDIA are dismissed from this action, without prejudice. Signed by Judge Jane Magnus−Stinson on 10/5/2011.(NKD) (Entered: 10/05/2011)
112 Cross MOTION for Summary Judgment and Response in Opposition to 106 Plaintiff's Second Motion for Summary Judgment, filed by Defendant WARDEN. (Kieper, Thomas) Modified on 12/2/2011 (LBT). (Entered: 10/11/2011)
113 Appendix of Exhibits in Support of Motion re 112 Cross MOTION for Summary Judgment and Response in Opposition to Plaintiff's Second Motion for Summary Judgment, filed by Defendant WARDEN. (Attachments: # 1 Exhibit 1−Decl. of Harvey Church, # 2 Exhibit 2−Decl of D. Holston, # 3 Exhibit 3−Decl. of T. Coleman, # 4 Exhibit 4−Decl. of S. Harvey, # 5 Exhibit 5−Decl. of J. Oliver, # 6 Exhibit 6−Decl. of C. Lockett, # 7 Exhibit 7−Decl. of I. Ammonette, # 8 Exhibit 8−Decl. of L. Smith, # 9 Exhibit 8−Decl. of L. Smith−Att. 1, # 10 Exhibit 8−Decl. of L. Smith−Att. 2, # 11 Exhibit 8−Decl. of L. Smith−Att. 3, # 12 Exhibit 8−Decl. of L. Smith−Att. 4, pp 1−70, # 13 Exhibit 8−Decl. of L. Smith−Att. 4, pp 71 to 128, # 14 Exhibit 8−Decl. of L. Smith, Att. 5, # 15 Exhibit 9−Decl. of C. Gonzales, # 16 Exhibit 10−Decl. of H. Joyner, # 17 Exhibit 11−Decl. of J. Pryor)(Kieper,

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10/11/2011 11/11/2011 12/01/2011 12/08/2011 12/08/2011 12/08/2011 12/22/2011 02/03/2012
02/08/2012 02/21/2012

Thomas) (Entered: 10/11/2011)
114 RESPONSE in Opposition re 106 Second MOTION for Summary Judgment and Memorandum in Support of 112 Defendant's Second Cross−Motion for Summary Judgment, filed by Defendant WARDEN. (Kieper, Thomas) Modified on 12/2/2011 (LBT). (Entered: 10/11/2011)
115 RESPONSE in Opposition re 112 Cross MOTION for Summary Judgment and Response in Opposition to Plaintiff's Second Motion for Summary Judgment and Reply Memorandum in Support of Plaintiffs' Second Motion for Summary Judgment 106 , filed by Plaintiffs BRIAN CARR, ALI ASAD CHANDIA, JOHN LINDH. (Attachments: # 1 Exhibit Holston Deposition, # 2 Exhibit Coleman Deposition, # 3 Affidavit Randall Royer, # 4 Affidavit Avon Twitty)(Falk, Kenneth) (Entered: 11/11/2011)
116 REPLY in Support of Motion re 112 Cross MOTION for Summary Judgment and Response in Opposition to 106 Plaintiff's Second Motion for Summary Judgment, filed by Defendant WARDEN. (Attachments: # 1 Att. 1 − Incident Report, pgs. 1 &2)(Kieper, Thomas) Modified on 12/2/2011 to create link to Second Motion for SJ (LBT). (Entered: 12/01/2011)
117 SCHEDULING ORDER: Hearing on Cross−Motions for Summary Judgment set for 12/19/2011 01:30 PM in room #349, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana, before Judge Jane Magnus−Stinson. Counsel shall have 30 minutes per side. Signed by Judge Jane Magnus−Stinson on 12/6/2011.(SMD) (Entered: 12/08/2011)
118 MOTION for Continuance of Hearing Presently Set for December 19, 2011, at 1:30 p.m., filed by Defendant WARDEN. (Attachments: # 1 Text of Proposed Order)(Kieper, Thomas) (Entered: 12/08/2011)
119 ORDER granting 118 Defendant's Motion for Continuance − Hearing on 12/19/2011 is ordered CONTINUED. Hearing is reset for 12/22/2011 02:00 PM (E.T.) in room #349, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana before Judge Jane Magnus−Stinson. The parties are allowed 30 minutes each for argument. Signed by Judge Jane Magnus−Stinson on 12/8/2011. (JKS) (Entered: 12/09/2011)
120 ENTRY FOLLOWING ORAL ARGUMENT − On December 22, 2011, the Court heard oral argument on the parties' cross−motions for summary judgment, [dkts. 106 ; 122 ], which the Court took UNDER ADVISEMENT. Plaintiff was present by counsel Kenneth Falk, and Defendant was present by counsel Thomas Kieper and William McCoskey and by client representative Katherine Siereveld. The Court reporter was Jean Knepley. Signed by Judge Jane Magnus−Stinson on 12/22/2011.(JD) (Entered: 12/23/2011)
121 ORDER granting in part and denying in part 106 Motion for Summary Judgment; denying 112 Motion for Summary Judgment. For the foregoing reasons, the Court GRANTS in part and DENIES in part Mr. Lindhs Motion for Summary Judgment, [dkt. 106], and DENIES the Wardens Cross−Motion for Summary Judgment, [dkt. 112]. The Court finds as a matter of law that recitation of the five daily Muslim group prayers is a religious exercise rooted in Mr. Lindhs sincerely held religious beliefs. However, genuine issues of material fact exist regarding whether the Warden has substantially burdened Mr. Lindhs exercise of religion. And the Warden has not satisfied his burden of showing either that the policy on group prayer is in furtherance of the compelling governmental interest of prison security, or that he has used the least restrictive means to further the governments interest. (SEE ORDER FOR MORE DETAILS.). Signed by Judge Jane Magnus−Stinson on 2/3/2012. (MRI) Modified on 2/3/2012 (MRI). (Entered: 02/03/2012)
122 SCHEDULING ORDER: Status Conference set for 2/14/2012 at 11:10 AM in room #257, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana before Magistrate Judge Mark J. Dinsmore. Signed by Magistrate Judge Mark J. Dinsmore on 2/7/2012.(RSF) (Entered: 02/08/2012)
123 Minute Entry for proceedings held before Magistrate Judge Mark J. Dinsmore: Status Conference held on 2/14/2012. Scheduling Order entered. Parties are

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03/06/2012 03/06/2012 03/06/2012 03/06/2012 03/07/2012 03/08/2012
03/08/2012 03/12/2012 03/15/2012 03/23/2012 04/04/2012
04/04/2012 04/06/2012 05/01/2012

instructed to file a motion for a site visit by the District Judge. (SMD) (Entered: 02/21/2012)
124 Witness List (Second Preliminary), filed by Plaintiff JOHN LINDH, Exhibit List (Second Preliminary), filed by Plaintiff JOHN LINDH. (Falk, Kenneth) (Entered: 03/06/2012)
125 Joint MOTION for Court to Conduct Site Visit at the Communications Management Unit, filed by Plaintiff JOHN LINDH, Defendant WARDEN. (Attachments: # 1 Text of Proposed Order)(Falk, Kenneth) (Entered: 03/06/2012)
126 Witness List Second Preliminary, filed by Defendant WARDEN, Exhibit List Second Preliminary, filed by Defendant WARDEN. (Kieper, Thomas) (Entered: 03/06/2012)
127 Witness List Supplement to Second Preliminary, filed by Plaintiff JOHN LINDH. (Falk, Kenneth) (Entered: 03/06/2012)
128 SEALED Order granting parties' joint motion for a site visit to FCI Terre Haute. (copy to US Marshals Service) Signed by Judge Jane Magnus−Stinson on 3/7/2012.(SMD) (Entered: 03/07/2012)
129 **DATES VACATED AT DKT 134 ** SCHEDULING ORDER Bench Trial set for 7/30/2012 at 9:00 AM in room #307, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana before Judge Jane Magnus−Stinson. Final Pretrial Conference set for 7/13/2012 at 1:00 PM in room #307, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana before Judge Jane Magnus−Stinson. Counsel are reminded of the required pretrial preparation deadlines set forth in paragraph VIII of the case management plan. Signed by Judge Jane Magnus−Stinson on 3/8/2012.(RSF) Modified on 4/5/2012 (RSF). (Entered: 03/08/2012)
130 PROCEDURES AND PRACTICES before Judge Jane Magnus−Stinson. (RSF) (Entered: 03/08/2012)
131 SEALED ENTRY − The parties are ordered to file the sealed statementby March 26, 2012. The Court notes that the visit should occur during a time of day when one of the daily prayers that is the subject of the litigation is being recited. Signed by Judge Jane Magnus−Stinson on 3/12/2012.(RSF) (Entered: 03/12/2012)
132 MOTION for Continuance of Trial Setting, filed by Plaintiff JOHN LINDH. (Attachments: # 1 Text of Proposed Order)(Falk, Kenneth) (Entered: 03/15/2012)
133 SEALED JOINT REPORT TO THE COURT, filed by Plaintiff RANDALL T ROYER, Defendant WARDEN. (Falk, Kenneth) (Entered: 03/23/2012)
134 ORDER granting 132 Motion for Continuance. Scheduling: Bench Trial reset for 8/27/2012 at 9:00 AM (location of the trial shall be determined and set by a future Order of this Court) before Judge Jane Magnus−Stinson. Final Pretrial Conference reset for 8/2/2012 at 9:00 AM in room #307, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana before Judge Jane Magnus−Stinson. Counsel are reminded of the required pretrial preparation deadlines set forth in paragraph VIII of the case management plan. Counsel are further reminded to review the undersigneds Practices and Procedures, available at http://www.insd.uscourst.gov/Publications/CourtroomProceduresJMS.pdf. Signed by Judge Jane Magnus−Stinson on 4/4/2012.(RSF) (Entered: 04/05/2012)
135 PROCEDURES AND PRACTICES before Judge Jane Magnus−Stinson. (RSF) (Entered: 04/05/2012)
136 NOTICE of Appearance by Gavin Minor Rose on behalf of Plaintiff JOHN LINDH. (Rose, Gavin) (Entered: 04/06/2012)
137 MOTION for Writ of Habeas Corpus ad testificandum (for Dhafir, Haouari, Chandia), filed by Plaintiff JOHN LINDH. (Attachments: # 1 Writ for Dhafir/Haouari/Chandia, # 2 Text of Proposed Order)(Falk, Kenneth) (Entered: 05/01/2012)

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05/01/2012 05/01/2012 05/01/2012 05/02/2012 05/02/2012 05/02/2012 05/02/2012
05/02/2012 05/03/2012 05/03/2012 05/03/2012 05/03/2012 06/18/2012 06/18/2012 06/25/2012 06/29/2012 07/10/2012
07/17/2012

138 MOTION for Writ of Habeas Corpus ad testificandum (for Royer), filed by Plaintiff JOHN LINDH. (Attachments: # 1 Text of Proposed Order, # 2 Wit (for Royer))(Falk, Kenneth) (Entered: 05/01/2012)
139 MOTION for Writ of Habeas Corpus ad testificandum (Lindh), filed by Plaintiff JOHN LINDH. (Attachments: # 1 Text of Proposed Order, # 2 Writ (Lindh))(Falk, Kenneth) (Entered: 05/01/2012)
140 MOTION for Writ of Habeas Corpus ad testificandum (Carr), filed by Plaintiff JOHN LINDH. (Attachments: # 1 Writ (Carr), # 2 Text of Proposed Order)(Falk, Kenneth) (Entered: 05/01/2012)
141 ORDER granting 137 Motion for Writ of Habeas Corpus ad testificandum concerning Dr. Rafil Dhafir, Mokhtar Haouari, and Ali Asad Chandia. Signed by Judge Jane Magnus−Stinson on 5/2/2012. (RSF) (Entered: 05/03/2012)
143 ORDER granting 138 Motion for Writ of Habeas Corpus ad testificandum concerning Randall Royer. Signed by Judge Jane Magnus−Stinson on 5/2/2012. (RSF) (Entered: 05/03/2012)
145 ORDER granting 139 Motion for Writ of Habeas Corpus ad testificandum concerning John Lindh. Signed by Judge Jane Magnus−Stinson on 5/2/2012. (RSF) (Entered: 05/03/2012)
147 ** See corrected document at 148 ** ORDER granting 140 Motion for Writ of Habeas Corpus ad testificandum concerning Brian Carr. Signed by Judge Jane Magnus−Stinson on 5/2/2012. (RSF) Modified on 5/3/2012 (RSF). (Entered: 05/03/2012)
148 CORRECTED DOCUMENT − Please disregard document re 147 Order on Motion for Writ of Habeas Corpus ad testificandum which was Docketed in Error. Corrected document has been attached to this entry. (RSF) (Entered: 05/03/2012)
142 WRIT of Habeas Corpus Ad Testificandum issued concerning Dr. Rafil Dhafir, Mokhtar Haouari, and Ali Asad Chandia. (RSF) (Entered: 05/03/2012)
144 WRIT of Habeas Corpus Ad Testificandum issued concerning Randall Royer. (RSF) (Entered: 05/03/2012)
146 WRIT of Habeas Corpus Ad Testificandum issued concerning John Lindh. (RSF) (Entered: 05/03/2012)
149 WRIT of Habeas Corpus Ad Testificandum issued concerning Brian Carr. (RSF) (Entered: 05/03/2012)
150 RETURN of USM Service upon Defendant WARDEN regarding 142 − served on 5/6/12. (RSF) (Entered: 06/18/2012)
151 RETURN of USM Service upon Defendant WARDEN regarding 146 − served on 5/6/12. (RSF) (Entered: 06/18/2012)
152 **PLEASE DISREGARD − DOCUMENT STRICKEN AT ENTRY 154 ** Letter from IMAM ASIM AHMAD, non−party, regarding congregational prayers and guidelines. (JD) Modified on 7/10/2012 (RSF). (Entered: 06/26/2012)
153 MOTION to Strike Civil Docket Item #152, filed by Defendant WARDEN. (Attachments: # 1 Text of Proposed Order)(Kieper, Thomas) (Entered: 06/29/2012)
154 ENTRY − The defendant's motion to strike 153 is granted for the reasons set forth in the motion, those being principally that the filing 152 was not made by a party, was not served on counsel for the parties, and contains unsubstantiated, conclusory assertions which cannot properly be presented to the court through a letter or other informal means. The filing referred to above 152 is stricken and is of no effect. Signed by Judge Jane Magnus−Stinson on 7/10/2012. (RSF) (Entered: 07/10/2012)
155 Joint MOTION for Extension of Time to August 1, 2012 to File Proposed Stipulations of Fact, filed by Defendant WARDEN. (Attachments: # 1 Text of Proposed Order)(Kieper, Thomas) (Entered: 07/17/2012)

Case: 2:09-cv-215 As of: 07/24/2013 04:14 PM EDT 13 of 18

07/18/2012
07/19/2012 07/19/2012 07/19/2012
07/19/2012 07/19/2012 07/19/2012 07/19/2012
07/19/2012
07/19/2012 07/19/2012 07/19/2012 07/19/2012 07/19/2012 07/23/2012
07/26/2012
07/26/2012 07/26/2012 08/01/2012 08/01/2012 08/06/2012

162 ORDER granting 155 Joint Motion for Extension of Time − IT IS THEREFORE ORDERED that the Joint Motion is GRANTED and the time for filing stipulations of fact with the Court is extended to and including August 1, 2012. Signed by Judge Jane Magnus−Stinson on 7/18/2012. (JKS) (Entered: 07/19/2012)
156 Witness List , filed by Plaintiff JOHN LINDH. (Rose, Gavin) (Entered: 07/19/2012)
157 Exhibit List , filed by Plaintiff JOHN LINDH. (Rose, Gavin) (Entered: 07/19/2012)
158 NOTICE of Filing of Deposition Summaries by JOHN LINDH (Attachments: # 1 Exhibit Dep. Summary of Church (30(b)(6), # 2 Exhibit Dep. Summary of Arnaout, # 3 Exhibit Dep. Summary of Twitty, # 4 Exhibit Dep. Summary of Bilal, # 5 Exhibit Dep. Summary of Lockett, # 6 Exhibit Dep. Summary of Church (2d), # 7 Exhibit Dep. Summary of Coleman, # 8 Exhibit Dep. Summary of Holston) (Rose, Gavin) (Entered: 07/19/2012)
159 TRIAL BRIEF by JOHN LINDH. (Rose, Gavin) (Entered: 07/19/2012)
160 Proposed Findings of Fact by JOHN LINDH. (Rose, Gavin) (Entered: 07/19/2012)
161 MOTION to Separate Witnesses, filed by Plaintiff JOHN LINDH. (Rose, Gavin) (Entered: 07/19/2012)
163 ** PLEASE DISREGARD − WITHDRAWN PER ENTRY AT 170 ** Exhibit List , filed by Defendant WARDEN. (Kieper, Thomas) Modified on 7/23/2012 (RSF). (Entered: 07/19/2012)
164 ** PLEASE DISREGARD − WITHDRAW PER ENTRY AT 170 ** Witness List , filed by Defendant WARDEN. (Kieper, Thomas) Modified on 7/23/2012 (RSF). (Entered: 07/19/2012)
165 Exhibit List , filed by Defendant WARDEN. (Kieper, Thomas) (Entered: 07/19/2012)
166 Witness List , filed by Defendant WARDEN. (Kieper, Thomas) (Entered: 07/19/2012)
167 Proposed Findings of Fact by WARDEN. (Kieper, Thomas) (Entered: 07/19/2012)
168 TRIAL BRIEF by WARDEN. (Kieper, Thomas) (Entered: 07/19/2012)
169 MOTION to Withdraw Docket Items, filed by Defendant WARDEN. (Attachments: # 1 Text of Proposed Order)(Kieper, Thomas) (Entered: 07/19/2012)
170 ORDER − granting 169 Motion to Withdraw Docket Items 163 and 164 . Said entries are withdrawn from the record of this cause. Signed by Magistrate Judge Mark J. Dinsmore on 7/23/2012. (RSF) (Entered: 07/23/2012)
171 OBJECTION Partial Objection to Plaintiff's Notice of Filing of Deposition Summaries by WARDEN. Related document: 158 NOTICE of Filing filed by JOHN LINDH. (Attachments: # 1 Exhibit Attachment 1, # 2 Exhibit Attachment 2, # 3 Exhibit Attachment 3)(McCoskey, William) (Entered: 07/26/2012)
172 OBJECTION Partial Objection to Plaintiff's Motion to Separate Witnesses by WARDEN. (Kieper, Thomas) (Entered: 07/26/2012)
173 OBJECTION Partial Objection to Plaintiff's Final Exhibit List by WARDEN. (Kieper, Thomas) (Entered: 07/26/2012)
174 Exhibit List (Joint Amended Final Exhibit List), filed by Plaintiff JOHN LINDH, Defendant WARDEN. (Rose, Gavin) (Entered: 08/01/2012)
175 STIPULATION of Facts and Evidentiary Stipulation (Joint), filed by Defendant WARDEN. (Kieper, Thomas) (Entered: 08/01/2012)
176 MINUTE ORDER for proceedings held before Judge Jane Magnus−Stinson: Final Pretrial Conference held on 8/2/2012. ORDER granting in part 161 Motion to separate witnesses, with the exception of the Warden and the Imam, who will be permitted to remain seated at cousnel table. The parties will submit proposed

Case: 2:09-cv-215 As of: 07/24/2013 04:14 PM EDT 14 of 18

08/14/2012 08/14/2012 08/17/2012 08/20/2012 08/22/2012 08/28/2012 08/29/2012 08/30/2012 08/31/2012
09/07/2012

conclusions of law and findings of law in lieuof or in addition to trial briefs (at their choice.) Signed by Judge Jane Magnus−Stinson. (Court Reporter Jean Knepley.)(SMD) (Entered: 08/06/2012)
177 MINUTE ENTRY for proceedings held before Judge Jane Magnus−Stinson: On August 14, 2012, the parties appeared by counsel for a telephonic status conference in this matter. The parties discussed trial logistics. The Government shall file (under seal) its logistical proposal and its underlying basis by August 17, 2012. Plaintiff shall respond by August 21, 2012. Signed by Judge Jane Magnus−Stinson.(RSF) (Entered: 08/14/2012)
178 STIPULATION Amending Paragraphs 29 and 52 of the Joint Stipulation of Facts and Evidentiary Stipulation (Doc. No. 175), filed by Plaintiff JOHN LINDH, Defendant WARDEN. (Falk, Kenneth) (Entered: 08/14/2012)
179 SEALED Warden's Report Regarding Trial Logistics, filed by Defendant WARDEN. (Attachments: # 1 Att. 1 − Decl. of John C. Oliver)(Kieper, Thomas) (Entered: 08/17/2012)
181 SEALED Entry Discussing Plaintiff's Objection to Video Conference Trial − Plaintiff's objection to video conference trial 180 must be overruled. The Defendant is to ensure that videoconferencing capabilities, as well as a private telephone line through which plaintiff can communicate with his counsel, are arranged. (See Entry.) Signed by Judge Jane Magnus−Stinson on 8/20/2012.(RSF) (Entered: 08/21/2012)
182 ENTRY that the Court Trial set for 8/27/2012 will begin at 09:00 AM in room #349, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana before Judge Jane Magnus−Stinson. Signed by Judge Jane Magnus−Stinson on 8/22/2012.(SMD) (Entered: 08/22/2012)
183 MINUTE ENTRY for proceedings held before Judge Jane Magnus−Stinson. Day 1 of Bench Trial held on 8/27/2012. Parties were present in person and by counsel. Plaintiff began his case in chief. Exhibits were offered into evidence. Witnesses testified. Plaintiff rested. Defendant began his case in chief. Exhibits were offered into evidence. Witnesses testified. Due to the late hour, the Court recessed, to reconvene on August 28, 2012 at 1:00 p.m. Signed by Judge Jane Magnus−Stinson. (Court Reporter Jean Knepley.)(RSF) (Entered: 08/28/2012)
184 Minute Entry for proceedings held before Judge Jane Magnus−Stinson: Bench Trial continues on 8/28/2012. Court to reconvene on August 29, 2012 at 9:00 am. (Court Reporter Jean Knepley.) (SMD) (Entered: 08/29/2012)
185 MINUTE ENTRY for proceedings held before Judge Jane Magnus−Stinson. Day 3 of Bench Trial continues on 8/29/2012. Plaintiff was present by counsel and via video teleconference, and Defendant was present in person and by counsel. Defendant continued his case in chief. Exhibits were entered into evidence. Witnesses testified. Due to the late hour, the Court recessed, to reconvene on August 30, 2012 at 9:00 a.m. Signed by Judge Jane Magnus−Stinson. (Court Reporter Jean Knepley.)(RSF) (Entered: 08/30/2012)
186 MINUTE ORDER for proceedings held before Judge Jane Magnus−Stinson − On August 30, 2012, the Court resumed its bench trial in this action. Plaintiff was present by counsel and via video teleconference, and Defendant was present in person and by counsel. Defendant continued his case−in−chief. Exhibits were entered into evidence. Witnesses testified. The parties agreed that submission of final arguments would be best accomplished after the transcript of the trial is completed. The Court requested that the parties submit their summations in the form of Proposed Findings of Fact and Conclusions of Law, with reference to the transcript utilizing the CM/ECF page designation. The parties will have until forty−five (45) days following the filing of the official transcript to submit their proposed findings. Signed by Judge Jane Magnus−Stinson. (Court Reporter Jean Knepley.) (JKS) (Entered: 08/31/2012)
187 RETURN of USM Service as to Defendant WARDEN regarding 144 − served on 8/7/12 (RSF) (Entered: 09/10/2012)

Case: 2:09-cv-215 As of: 07/24/2013 04:14 PM EDT 15 of 18

10/11/2012
10/11/2012
10/11/2012 10/11/2012
10/11/2012
10/11/2012 10/11/2012 10/16/2012 10/16/2012 11/19/2012 11/21/2012 11/26/2012 01/11/2013

188 TRANSCRIPT of Bench Trial, Day 1 held on 8−27−12 before Judge Jane Magnus−Stinson. (256 pages.) Court Reporter/Transcriber: Jean Knepley (Telephone: (317) 686−0197). Please review Local Rule 80−2 for more information on redaction procedures. Redaction Statement due 11/1/2012. Release of Transcript Restriction set for 1/9/2013. (Knepley, Jean) Released on 10/16/2012 per Order dated 10/16/2012 (SWM). (Entered: 10/11/2012)
189 TRANSCRIPT of Bench Trial, Day 2 held on 8−28−12 before Judge Jane Magnus−Stinson. (132 pages.) Court Reporter/Transcriber: Jean Knepley (Telephone: (317) 686−0197). Please review Local Rule 80−2 for more information on redaction procedures. Redaction Statement due 11/1/2012. Release of Transcript Restriction set for 1/9/2013. (Knepley, Jean) Released on 10/16/2012 per Order dated 10/16/2012 (SWM). Released on 1/11/2013 (SWM). (Entered: 10/11/2012)
190 SEALED TRANSCRIPT of Sealed Excerpt from Bench Trial, Day 3 held on 8−29−12 before Judge Jane Magnus−Stinson. (21 pages.) Court Reporter/Transcriber: Jean Knepley (Telephone: (317) 686−0197). (Knepley, Jean) (Entered: 10/11/2012)
191 TRANSCRIPT of Bench Trial, Day 3 held on 8−29−12 before Judge Jane Magnus−Stinson. (195 pages.) Court Reporter/Transcriber: Jean Knepley (Telephone: (317) 686−0197). Please review Local Rule 80−2 for more information on redaction procedures. Redaction Statement due 11/1/2012. Release of Transcript Restriction set for 1/9/2013. (Knepley, Jean) Released on 10/16/2012 per Order dated 10/16/2012 (SWM). Modified on 10/16/2012 (SWM). Released on 1/11/2013 (SWM). (Entered: 10/11/2012)
192 TRANSCRIPT of Bench Trial, Day 4 held on 8−30−12 before Judge Jane Magnus−Stinson. (197 pages.) Court Reporter/Transcriber: Jean Knepley (Telephone: (317) 686−0197). Please review Local Rule 80−2 for more information on redaction procedures. Redaction Statement due 11/1/2012. Release of Transcript Restriction set for 1/9/2013. (Knepley, Jean) Released on 10/16/2012 per Order dated 10/16/2012(SWM). Released on 1/11/2013 (SWM). (Entered: 10/11/2012)
193 NOTICE of FILING of OFFICIAL TRANSCRIPT of Bench Trial, Volumes 1 − 4 held before Judge Jane Magnus−Stinson on August 27 − August 30, 2012 (Knepley, Jean) (Entered: 10/11/2012)
194 NOTICE of FILING of OFFICIAL TRANSCRIPT under SEAL of Sealed Excerpt from Volume 3 (Day 3 of Bench Trial) held before Judge Jane Magnus−Stinson on August 29, 2012 (Knepley, Jean) (Entered: 10/11/2012)
195 NOTICE , filed by Plaintiff JOHN LINDH, Defendant WARDEN (McCoskey, William) (Entered: 10/16/2012)
196 ENTRY re 195 Joint Notice To The Court − The Court approves the request for expedited release of the transcript. (Marginal Notation). Signed by Judge Jane Magnus−Stinson on 10/16/2012. (JKS) (Entered: 10/16/2012)
197 Letter from BRIAN E. CARR (Attachments: # 1 Supporting Documents) (JKS) (Entered: 11/20/2012)
198 Proposed Findings of Fact by JOHN LINDH. (Falk, Kenneth) (Entered: 11/21/2012)
199 TRIAL BRIEF Defendant's Post−Trial Brief by WARDEN. (Kieper, Thomas) (Entered: 11/26/2012)
200 FINDINGS OF FACT AND CONCLUSIONS OF LAW. Court finds that the Warden's policy prohibiting daily group prayer by Muslim inmates violates RFRA. The Warden will have 60 days in which to employ anew policy with respect to daily group prayer for Muslims. The Court is issuing today a permanent injunction to take effect in 60 days. Signed by Judge Jane Magnus−Stinson on 1/11/2013.(SMD) (Entered: 01/11/2013)

Case: 2:09-cv-215 As of: 07/24/2013 04:14 PM EDT 16 of 18

01/11/2013
01/18/2013 01/22/2013
03/26/2013 03/26/2013 03/29/2013
04/08/2013 04/09/2013
04/10/2013 04/26/2013 04/29/2013 05/06/2013

201 CLOSED JUDGMENT in favor of Plaintiff, John Lindh, against Defendant, Warden. PERMANENT INJUNCTION shall issue prohibiting the Warden from enforcing the policy against daily congregate prayer for Muslims, including Mr. Lindh, for whom daily congregate prayer is a sincerely held religious belief. This injunction shall not be construed so as to prohibit less restrictive measures intended by the Warden to promote safety and security in the Federal Correctional Institution, Terre Haute, Indiana. Signed by Judge Jane Magnus−Stinson on 1/11/2013.(SMD) (Entered: 01/11/2013)
202 Unopposed MOTION for Extension of Time to File for Attorneys' Fees and Costs, filed by Plaintiff JOHN LINDH. (Attachments: # 1 Text of Proposed Order)(Falk, Kenneth) (Entered: 01/18/2013)
203 ORDER − Plaintiff, having filed his Unopposed Motion to Extend Time to File for Attorneys' Fees and Costs, and the Court having read the Motion, and being duly advised, finds that good cause exists to grant it, and, IT IS THEREFORE ORDERED that the time for Plaintiff to file for his reasonable attorneys' fees and costs is extended until 30 days after the time to appeal this Court's Judgment expires or, if an appeal is filed, until 90 days after the Seventh Circuit issues its mandate in this case or 30 days after the denial of certiorari or an opinion by the United States Supreme Court, whichever date is latest. Signed by Judge Jane Magnus−Stinson on 1/22/2013. (RSF) (Entered: 01/22/2013)
204 MOTION for Attorney Fees , filed by Plaintiff JOHN LINDH. (Attachments: # 1 Exhibit CJA Pay Chart, # 2 Affidavit Kenneth J. Falk, # 3 Affidavit Gavin M. Rose, # 4 Affidavit Michael K. Sutherlin)(Falk, Kenneth) (Entered: 03/26/2013)
205 BRIEF/MEMORANDUM in Support re 204 MOTION for Attorney Fees , filed by Plaintiff JOHN LINDH. (Falk, Kenneth) (Entered: 03/26/2013)
206 CLERK'S ENTRY FOR MARCH 29, 2013 − Counsel are advised that the exhibits received in the above cause are now released and may be receipted for in the Clerk's Office, 105 U.S. Courthouse, 46 E. Ohio Street, Indianapolis, Indiana between 8:30 a.m. and 4:30 p.m. Counsel may call Michelle Imel at 317−229−3672 regarding exhibits. The items will be disposed of on April 10, 2013, if not taken. (RSF) (Entered: 04/01/2013)
207 STIPULATION to Settle Plaintiff's Claim for Attorney's Fees and Costs, filed by Plaintiff JOHN LINDH, Defendant WARDEN. (Attachments: # 1 Text of Proposed Order)(Falk, Kenneth) (Entered: 04/08/2013)
208 ORDER − The parties having filed their Stipulation to Settle Plaintiff's Claim for Attorneys' Fees and Costs, and the Court having read the Stipulation and being duly advised finds that it should be approved, and, IT IS THEREFORE ORDERED that the Stipulation is APPROVED and made the ORDER of the Court, and, IT IS FURTHER ORDERED that plaintiff's Petition for Attorney's Fees and Costs (ECF No. 204) is therefore DENIED as moot. Signed by Judge Jane Magnus−Stinson on 4/9/2013. (RSF) (Entered: 04/09/2013)
209 MOTION (VERIFIED) to Hold Defendant in Contempt, filed by Plaintiff JOHN LINDH. (Attachments: # 1 Inmate Bulletin − CMU Worship, # 2 Prayer Times, # 3 Text of Proposed Order)(Falk, Kenneth) (Entered: 04/10/2013)
210 RESPONSE in Opposition re 209 MOTION (VERIFIED) to Hold Defendant in Contempt , filed by Defendant WARDEN. (Kieper, Thomas) (Entered: 04/26/2013)
211 REPLY in Support of Motion re 209 MOTION (VERIFIED) to Hold Defendant in Contempt , filed by Plaintiff JOHN LINDH. (Falk, Kenneth) (Entered: 04/29/2013)
212 MINUTE ENTRY for proceedings held before Magistrate Judge Mark J. Dinsmore: Status Conference held on 5/3/2013. The conference was scheduled to discuss the parties availability for an in person pretrial conference to discuss Plaintiff's Motion for Contempt. Pretrial Conference set for 5/9/2013 at 9:00 AM in room #257, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana before Magistrate Judge Mark J. Dinsmore. Defendant will make arrangements to have Plaintiff available telephonically, if needed and will make arrange for the Warden to participate telephonically. Signed by Magistrate Judge Mark J. Dinsmore.(RSF) (Entered: 05/06/2013)

Case: 2:09-cv-215 As of: 07/24/2013 04:14 PM EDT 17 of 18

05/09/2013
05/23/2013 05/24/2013 05/28/2013 06/21/2013
06/25/2013 06/25/2013 06/25/2013 06/25/2013 06/25/2013 06/25/2013 06/25/2013

213 MINUTE ENTRY for proceedings held before Magistrate Judge Mark J. Dinsmore: Settlement Conference held on 5/9/2013. The parties appeared in person and by counsel for a settlement conference to discuss issues relating to the Plaintiff's Motion to Hold Defendant in Contempt [Dkt. 209]. Telephonic Status Conference set for 5/23/2013 at 4:00 PM before Magistrate Judge Mark J. Dinsmore. Counsel shall attend the status conference by calling the designated phone number, to be provided by the Court via email generated by the Court's ECF system. Signed by Magistrate Judge Mark J. Dinsmore.(RSF) (Entered: 05/10/2013)
215 RESPONSE in Opposition re 209 MOTION (VERIFIED) to Hold Defendant in Contempt , filed by Defendant WARDEN. (Attachments: # 1 Att. 1 − FCC Terre Haute − Inmate Bulletin)(Kieper, Thomas) (Entered: 05/23/2013)
216 Surreply re 209 MOTION (VERIFIED) to Hold Defendant in Contempt −Response to Defendant's Supplement to Verified Response in Opposition to Plaintiff's Verified Petition to Hold Defendant in Contempt, filed by Plaintiff JOHN LINDH. (Falk, Kenneth) (Entered: 05/24/2013)
217 MINUTE ENTRY for proceedings held before Magistrate Judge Mark J. Dinsmore: Status Conference held on 5/23/2013. Parties appeared by telephone for a Status Conference. The parties discussed Plaintiff's Motion to Hold Defendant in Contempt [Dkt. 209]. Signed by Magistrate Judge Mark J. Dinsmore.(RSF) (Entered: 05/28/2013)
218 SCHEDULING ORDER: Contempt Hearing set for 6/26/2013 01:00 PM in room #307, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana before Judge Jane Magnus−Stinson. Each party shall have 30 minutes for argument, and should file a witness and exhibit list by close of business June 25, 2013, if any witnesses are to be called or exhibits submitted beyond what is already on the Court's docket. The Court directs the parties to specifically be prepared to address, with citation to relevant authority, the following questions: For Plaintiff: Please provide authority to support the notion that the Court's review of the current policy of the Defendant is properly brought through a contempt petition, as opposed to a new lawsuit. For Defendant: Please explain how the current policy can possibly be considered the least restrictive means of burdening Plaintiff's sincerely held religious believe in congregate daily prayer given that the Defendant already implemented (and then abandoned) a less restrictive alternative. Signed by Judge Jane Magnus−Stinson on 6/21/2013.(MRI) (Entered: 06/21/2013)
219 Unopposed MOTION for Continuance of Hearing Scheduled for June 26, 2013, filed by Plaintiff JOHN LINDH. (Attachments: # 1 Text of Proposed Order)(Rose, Gavin) (Entered: 06/25/2013)
220 ORDER − granting 219 Motion for Continuance. Contempt Hearing reset for 6/27/2013 at 9:00 AM in room #307, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana before Judge Jane Magnus−Stinson. Signed by Judge Jane Magnus−Stinson on 6/25/2013.(RSF) (Entered: 06/25/2013)
221 NOTICE Concerning Witnesses and Exhibits for Contempt Hearing, filed by Plaintiff JOHN LINDH (Falk, Kenneth) (Entered: 06/25/2013)
222 NOTICE of Provision of Relevant Authority, filed by Plaintiff JOHN LINDH (Falk, Kenneth) (Entered: 06/25/2013)
223 MOTION to Have Plaintiff Appear at Contempt Hearing Via Video−Conferencing, filed by Plaintiff JOHN LINDH. (Attachments: # 1 Text of Proposed Order)(Rose, Gavin) (Entered: 06/25/2013)
224 Witness List , filed by Defendant WARDEN, Exhibit List , filed by Defendant WARDEN. (Kieper, Thomas) (Entered: 06/25/2013)
225 ORDER − granting 223 Motion to Have Plaintiff Appear at Contempt Hearing Via Video−Conferencing. IT IS THEREFORE ORDERED that arrangements shall be made so that the plaintiff may appear at the contempt hearing on this cause (scheduled for 9:00 a.m. on June 27, 2013) via video−conferencing from the CMU in Terre Haute, Indiana. IT IS FURTHER ORDERED that the defendant shall produce the plaintiff to appear via video−conferencing. Counsel shall appear in

Case: 2:09-cv-215 As of: 07/24/2013 04:14 PM EDT 18 of 18

06/27/2013 07/19/2013

Room 349, U.S. Courthouse, 46 E. Ohio St, Indpls, IN. Signed by Judge Jane Magnus−Stinson on 6/25/2013. (RSF) (Entered: 06/26/2013)
226 MINUTE ORDER for proceedings held before Judge Jane Magnus−Stinson: Evidentiary Hearing held on 6/27/2013. The Court held an evidentiary hearing on Plaintiff's Petition to Hold Defendant in Contempt, [dkt. 209], which the Court took UNDER ADVISEMENT. Plaintiff was present by videoconference and by counsel Kenneth Falk and Gavin Rose, and Defendant was present in person and by counsel Thomas Kieper. Bureau of Prison counsel Katherine Siereveld was also present. Joint Exhibits 1 and 2 were admitted into evidence by stipulation. Defendant Warden John C. Oliver testified. Signed by Judge Jane Magnus−Stinson. (Court Reporter Jean Knepley.)(MRI) (Entered: 06/27/2013)
227 ORDER − The Court DENIES Mr. Lindh's Motion to Hold Defendant in Contempt, [dkt. 209], as the Court finds its earlier order was not unambiguous and required clarification. Within this order, the Court has clarified its earlier order with an unambiguous command, and it ORDERS the Warden to consider his current policy in light of that command and comply within thirty days. (See Order.) Signed by Judge Jane Magnus−Stinson on 7/19/2013. (RSF) (Entered: 07/19/2013)

Case #: 2:09−cv−00215−JMS−MJD