FILED 


IN THE UNITED STATES DISTRICT COURT FOR

".

SEP 26 2012

THE WESTERN DISTRICT OF OKLAHOMA

ROBERT D, DENNIS, CLERK

DENNIS EARL FULBRIGHT,

)

U.S. DIST~~~R} WESTERN DIST. OF OKLA,

BY ~

DEPUTY

)

Plaintiff,

)

)

vs.

)

No. CIV-03-99-W

)

JUSTIN JONES, Director,

) 


) 


Defendant.

) 


JON ANDREW COTTRIEL,

) 


) 


Plaintiff,

) 


) 


vs.

)

) 


JUSTIN JONES, Director,

) 


) 


Defendant.

) 


No. CIV-03-125-W

JERRY HARMON,

) 


) 


Plaintiff,

) 


) 


vs.

)

) 


JUSTIN JONES, Director,

) 


) 


Defendant.

) 


No. CIV-03-1465-W

ORDER

On August 13, 2012, United States Magistrate Judge Gary M. Purcell issued a

Fourth Supplemental Report and Recommendation 1 in these consolidated matters. Non­

1For purposes of Case No. CIV-03-1465-W, the instant findings and recommendations should be entitled Fifth Supplemental Report and Recommendation. See id. Doc. 153.

party Fred Smith was advised of his right to object, and the matter now comes before the Court on Smith's Objection to Report and Recommendation. 2
The three plaintiffs, Dennis Earl Fulbright, Jon Andrew Cottriel and Jerry Harmon, who are or were state inmates, had each alleged that his right under the 'free exercise clause of the first amendment to the United States Constitution to freely exercise his Orthodox Judaism religion was violated by the defendant's refusal to grant his request for a kosher diet. Each plaintiff had sought injunctive relief against defendant Ron Ward, then in his official capacity as Director of the Oklahoma Department of Corrections ("DOC"), to obtain, at no cost to the plaintiffs, a kosher diet that was consistent with the principles of Orthodox Judaism and that satisfied the nutritional value standards set by the American Correctional Association.
Adopting Magistrate Judge Purcell's findings and recommendations, the Court on January 21,2005, 'first granted a preliminary injunction and ordered Ward "to provide these three plaintiffs a kosher diet at no cost to them until further Order of the Court." Case No. CIV-03-99-W, Doc 70 at 8; Case No. CIV-03-125-W, Doc. 79 at 8; Case No. CIV-03­ 1465-W, Doc. 44 at 8. The Court thereafter determined on April 21 ,200o, in reviewing the preliminary injunction that it was "narrowly drawn, extend[ed] no further than necessary to correct the violation of the plaintiffs' right to the free exercise of their religion ... and [was] ... the least intrusive means necessary to correct this violation." Case No. CIV-03-99-W,
2The parties and Smith are familiar with the procedural history of this case, and the Court finds that it need not restate it except where applicable to Smith's challenges to Magistrate Judge Purcell's Fourth Supplemental Report and Recommendation.
2 


Doc. 78 at 1-2 (citation omitted); Case No. CIV-03-125-W, Doc. 89 at 1-2 (citation omitted); Case No. CIV-03-1465-W, Doc. 52 at 1-2 (citation omitted).
On February 8, 2006, the Court entered a Judgment for Permanent Prospective Injunctive Relief ("Judgment") in favor of the three plaintiffs, after finding that a permanent injunction was "necessary to remedy a violation of these plaintiffs' right to freely exercise their Orthodox Jewish religion ...." Case No. CIV-03-99-W, Doc. 134 at 2; Case No. CIV-03-125-W, Doc. 145 at2; Case No. CIV-03-1465-W, Doc. 106 at2. Justin Jones, who had been substituted in his official capacity as DOC Director as the defendant in these cases pursuant to Rule 25(d)(1), F.R.Civ.P., was ordered "to immediately provide to the plaintiffs kosher diets at no cost." Case No. CIV-03-99-W, Doc. 134 at 2; Case No. CIV-03-125-W, Doc. 145 at 2; Case No. CIV-03-1465-W, Doc. 106 at 2. The Court further ordered that the "diets [provided these three plaintiffs by Jones] shall comply with all nutritional requirements and standards currently applicable to the diets served to all other inmates in ... [DOC] custody ...." Case No. CIV-03-99-W, Doc. 134 at 2; Case No. CIV-03-125-W, Doc. 145 at 2; Case No. CIV-03-1465-W, Doc. 106 at 2.
On December 22, 2011, the Court addressed a challenge by Harmon, who had complained that after his transfer to certain minimum security facilities, he had not consistently received a kosher diet. In response to Harmon's request that Jones be held in contempt, the Court found "that Jones hard] made considerable and diligent efforts not only to substantially comply with the Court's Judgment ... , but also to ensure continued compliance and to resolve [Harmon's] complaints ...." Id. Doc. 158 at 5. The Court further ordered that its Judgment "continue in force and effect[.]" Id.
3 


In the instant challenge, Smith has stated that he too follows the dietary mandates
of Orthodox Judaism and that he is "an intended third party beneficiary of this Court's
[J]udgment ...." Case No. CIV-03-99, Doc. 166 at 1; Case No. CIV-03-125-W, Doc. 177
at 1; Case No. CIV-03-1465-W, Doc. 160 at 1. Smith is currently incarcerated at Davis
Correctional Facility ("DCF"), a private prison owned and operated by Corrections
Corporation of America, Inc. ("CCA"). He has stated that DCF has been providing kosher
meals at no cost to him for several years that complied with DOC's kosher meal policy, OP­
070202, Attachment A, but as of June 6, 2012, DCF was no longer adhering to DOC policy.
Smith has complained that CCA has instituted a new policy at its prisons that alters
the content and preparation of kosher meals and that meals are prepared at these
facilities, including DCF, with non-kosher kitchen tools. Smith has further asserted that the
new kosher menu provided at DCF lacks meats and fresh vegetables and neither satisfies
the calorie requirements of the American Dietetic Association for adult males, nor is
comparable to the daily caloric portions served to those DCF inmates who are not receiving
kosher meals. Smith has requested that the Court find Jones in contempt and issue an
appropriate supplemental order, such that he (Smith) is provided with a kosher diet that is
nutritionally adequate and properly prepared.3
3 Rule 71, F.R.Civ.P., states that "when an order grants relief for a nonparty or may be enforced against a nonparty, the procedure for enforcing the order is the same as for a party." To the extent, if any, Smith has relied upon Rule 71, the Court finds arguably that the rule provides no grounds for relief. Rule 71 does not permit third-party beneficiaries, even assuming Smith could be considered as such, to assert new claims against nonparties to the original proceedings.
It appears that the basis of Smith's Motion for Finding of Contempt or for a Supplementary Order is that on June 6, 2006, DCF "Chaplain, Brian Wideman, issued a memo to all facility kosher recipients, telling them of a major change in the kosher menu effective [June 19,] 2012." Case No. CIV-03-99, Doc. 166 at 2; Case No. CIV-03-125, Doc. 177 at 2; Case No. CIV-03-1465, Doc. 160 at 2. The "major change" about which Smith has complained resulted from CCA's decision to no longer adhere to DOC's kosher meal policy, OP-070202, Attachment A, and to implement a kosher
4 


Upon de novo review, the Court concurs with Magistrate Purcell's findings and his
suggested disposition of Smith's Motion for Finding of Contempt or for a Supplementary
Order filed on June 28, 2012.
Accordingly, the Court
(1) ADOPTS the Fourth Supplemental Report and Recommendation4 filed in these
cases on August 13, 2012;5
(2) FINDS that the Judgment entered in this matter on February 8, 2006, pertains
only to the claims pursued by Fulbright, Cottriel and Harmon against Jones6 and contains
meal policy that mirrors the policies promulgated by the Bureau of Prisons and Immigrations and Customs Enforcement.
The issues surrounding, and prompting, CCA's decision were not the subject, and did not give rise to, the JUdgment, and Smith has conceded that he is not "seeking to enforce any particular DOC policy," Case No. CIV-03-99-W, Doc. 180 at 3; Case No. CIV-03-125-W, Doc. 190 at 3; Case No. CIV-03-1465-W, Doc. 174 at 3, against the named defendants, but rather his complaint centers on his claim that the kosher menu crafted by CCA, a nonparty, violates DOC policy. See CIV-03-99-W, Doc. 180 at 3; Case No. CIV-03-125-W, Doc. 190 at 3; Case No. CIV­ 03-1465-W, Doc. 174 at 3.
4Smith has not sought to intervene in these consolidated matters pursuant to Rule 24, F.R.Civ.P. Accordingly, the Court makes no rulings with regard to Magistrate Judge Purcell's findings as to the timeliness of any request under Rule 24, supra.
5See Case No. CIV-03-99-W, Doc. 176; Case No. CIV-03-125-W, Doc. 185; Case No. CIV­ 03-1465-W, Doc. 167.
Sin discussing the factors relevant to the entry of a preliminary injunction, the Court noted "that supplying a kosher diet at no charge to these three plaintiffs and ultimately, to others who request the same as a result of sincerely held religious beliefs would most certainly impact DOC's budget and result in increased costs." Case No. CIV-03-99-W, Doc. 70 at 5; Case No. CIV-03-125­ W, Doc. 79 at 5; Case No. CIV-03-1465-W, Doc. 44 at 5. The Court's brief reference to other DOC inmates should not be read as a broad grant of authority to other DOC prisoners, then or now incarcerated, who had or have expressed a sincerely-held religious belief, to seek enforcement of the relief provided in, or by, the Judgment.
5

no language that permits it to be enforced by all DOC inmates,7 see 18 U.S.C. §
3626(a)(1 );8
71n Floyd v. Ortiz, 300 F.3d 1223 (10th Cir. 2002), on which Smith has first relied, the inmates sought a permanent injunction directing the Colorado Department of Corrections and its executive director to place inmate funds into income-producing accounts, with the income to be used for the benefit of the ten named plaintiffs as well as for the benefit of other inmates similarly situated, and ordering the defendants to promulgate rules, regulations and procedures that would govern the use of canteen funds.
As United States Court for Appeals for the Tenth Circuit noted, "[~ollowing negotiations and a hearing, the parties entered into a Stipulation and Agreement ('Agreement')[, and] ... there was general assent as to most terms, as well as consensus that the Agreement would benefit, and be enforceable by, all DOC inmates, not just the named plaintiffs." 300 F.3d at 1225.
In Hook v. State of Arizona, 972 F.2d 1012 (9th Cir. 1992), which Smith has also cited, eleven inmates had complained in 1973 about the mail policies promulgated by the Arizona Department of Corrections ("ADOC"). In resolving the dispute, the defendant "presented a comprehensive scheme of mail regulations as a proposed consent decreeL which] . . . [t]he inmates and the court accepted ... as [a] ... consent decree, and the case was closed." 972 F.2d at 1013. After ADOC changed the mail regulations, 265 inmates brought suit in 1990 to enforce the 1973 consent decree. None of the 265 inmates had been a party to the earlier decree.
The United States Court of Appeals for the Ninth Circuit determined that "enforcement of [the] consent decree[ ] .. [was] governed by the established contract principle that non-parties, as intended third party benefiCiaries, may enforce an agreement," id. at 1014 (citation omitted), and held that the 265 inmates were intended benefits of the 1973 consent decree and thus, had standing to enforce that decree.
Unlike these two decisions, the Court did not issue a consent decree, and there is no indication in the record that the Judgment was entered to benefit, and/orwas to be enforceable by, all inmates, although it cannot be disputed that other DOC inmates have subsequently benefitted from DOC policy outlining the protocol for preparing and serving kosher meals that was enacted in 2005, while these consolidated cases were pending. See DOC OP-070202, Attachment A.
818 U.S.C. § 3626 outlines appropriate remedies with respect to prison conditions. Subsection 3626(a)(1 )(A) provides in connection with prospective relief that such
relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The 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.
18 U.S.C. § 3626(a)(1 )(A).
6 


(3) DENIES Smith's Motion for Finding of Contempt or for a Supplementary Order9 filed on June 28, 2012;
(4) DECLINES Smith's request to "transform[ ] this ... proceeding into something similar to a class action ... ," Case No. CIV-03-99, Doc. 180 at 5; Case No. CIV-03-125­ W, Doc. 190 at 5; Case No. CIV-03-1465-W, Doc. 174 at 5;
(5) deems MOOT Jones' Motion to Amend Briefing Schedule10 filed on July 18, 2012;
(6) because a reply would not have aided Magistrate Judge Purcell in his resolution of the issues referred to him or the Court in its consideration of the Fourth Supplemental Report and Recommendation, deems MOOT Smith's Motion for Leave to Reply to Defendant's Response filed on August 10, 2012;11 and
(7) DIRECTS the Clerk of the Court to mail a copy of this Order to Fred Smith, #218694, CCA Davis Correctional Facility, 6888 East 133rd RoadAN-146, Holdenville, OK 74848 and show proof of the same in the records.
:'2' ENTERED this tetday of September, 2012.
. WEST D STATES DISTRICT JUDGE
9See Case No. CIV-03-99-W, Doc. 166; Case No. CIV-03-125-W, Doc. 177; Case No. CIV­ 03-1465-W, Doc. 160.
10See Case No. CIV-03-99-W, Doc. 169; Case No. CIV-03-125-W, Doc. 179; Case No. CIV­ 03-1465-W, Doc. 162.
11See Case No. CIV-03-99-W, Doc. 175; Case No. CIV-03-125-W, Doc. 184; Case No. CIV­ 03-1465-W, Doc. 166.
7

 
 Case 5:03-cv-00099-W Document 18 Filed 07/17/03 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

BILLy EDWARD JONES, Plaintiff,
v.
RON WARD, Defendant.

)

)

)

)

CIV-03-98-A

)

)

)

)

)

CONSOLIDATED WITH:

FILED

JUL 1 7 200:1

,ROBERT D. DENNIS

u.s DIST. COURT, WESTeRN DIS; OF OKLA

BY

~

LlEPUTY

DENNIS EARL FULBRIGHT, Plaintiff,
v.
RON WARD, Defendant.

)

)

) )

CIV-03-99-A *\~

)

)

)

)

CONSOLIDATED WITH:

JON ANDREW COTTRIEL, Plaintiff,
v.
RON WARD, Defendant.

)

)

)

)

)

CIV-03-125-A

)

)

)

)

REPORT AND RECOMMENDAnON

Plaintiffs, state prisoners appearingpro se, bring these consolidated civil rights actions

1

Case 5:03-cv-00099-W Document 18 Filed 07/17/03 Page 2 of 7
pursuant to 42 V.S.c. §1983. The matters have been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 V.S.c. §636(b)(l)(B). In separate motions filed in each case, 1 Defendant has moved to dismiss the causes of action on the grounds of res judicata and/or collateral estoppel. Plaintiffs Fulbright and Cottriel have responded to the motions. Although advised of his obligations under Fed. R. Civ. P. 12(b) and 56 and LCvR 56.1 in responding to Defendant's Motion to Dismiss, Plaintiff Jones has failed to respond to the motion and the time for filing a response has expired. For the following reasons, it is recommended that Defendant Ward's Motion to Dismiss be granted as to PlaintiffJones and that this Plaintiff s cause ofaction against Defendant Ward be dismissed. It is further recommended that Defendant Ward's Motions to Dismiss be denied as to Plaintiffs Fulbright and Cottriel. I. Plaintiffs' Claims
In substantially identical Complaints, each ofthe three Plaintiffs alleges that his First Amendment right to freely exercise his Orthodox Judaism religion has been violated by Defendant's refusal to grant his request for a kosher diet. Each Plaintiff seeks only injunctive relief against Defendant Ward in his official capacity as the Director of the Oklahoma Department of Corrections. The injunctive relief sought by Plaintiffs is the provision of a kosher diet consistent with the principles of Orthodox Judaism and that
iOn June 6, 2003, United States District Judge Wayne Alley directed that all future filings in these matters be filed in Case No. CIV-03-98-A.
2

Case 5:03-cv-00099-W Document 18 Filed 07/17/03 Page 3 of 7
satisfies "the nutritional value standards set by the A.c.A." at no charge to the prisoners. Complaint, John Cottriel, at 5. II. Standard of Review
A complaint should not be dismissed for failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set offacts in support of his claim which would entitle him to relief." Hall v. Bellmon, 935 F.2d 1106, l109(lOth Cir. 1991). In reviewing the sufficiency of the complaint, the court presumes all of the plaintiff's factual allegations to be true and construes them in the light most favorable to the plaintiff. Id. A pro se plaintiff's complaint must be broadly construed under this standard. Haines v. Kerner, 404 U.S. 519, 520(1972). However, the "broad reading" ofpro se complaints dictated by Haines "does not relieve the plaintiffofthe burden ofalleging sufficient facts on which a recognized legal claim could be based." Hall, 935 F.2d at 1110. The court "will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf" Whitney v. New Mexico, 113 F.3d 1170, 1173-1174(10th Cir. 1997). III. Plaintiff Jones
Defendant Ward has moved to dismiss the cause of action brought against him by Plaintiff Jones on the ground that Plaintiff has failed to state a claim for relief under Fed. R. Civ. P. 12(b)(6). Plaintiff Jones has failed to respond to Defendant Ward's Motion to Dismiss despite written notice of the Motion to Dismiss and his obligations in responding
3

Case 5:03-cv-00099-W Document 18 Filed 07/17/03 Page 4 of 7
to the Motion and a sua sponte extension of time to respond. 2 The time for filing the response has expired, and the Motion to Dismiss is deemed confessed under LCvR 7.2(e). Moreover, a review ofpublic records available on the World Wide Web reflects that Plaintiff has been released ITom custody and is currently on parole or probationary status under the supervision of the Oklahoma Probation and Parole Office in the Northeast District Office located in Muskogee, Oklahoma. <http://www.doc.state.ok.us/DOCS/offender_info.htm> Plaintiff Jones' release from prison on probation or parole moots his claim for prospective injunctive relief concerning the conditions of his former confinement. McAlpine v. Thompson, 187 F.3d 1213, 1215( loth Cir. I999)("[Wjhen an inmate's claim for prospective injunctive relief regarding conditions of confinement becomes moot due to the inmateplaintiff's release from confinement, the inmate's parole or supervised release status does not, absent some exceptional showing, bring that claim under the narrow 'capable of repetition, yet evading review' exception to the mootness doctrine."). Thus, although the issue of mootness was not raised by Defendant in Defendant's Motion to Dismiss, the cause of action brought by Plaintiff Jones is moot as it lacks a justiciable case or controversy. See Cox v. Phelps Dodge Corp., 43 F.3d 1345, 1347 n.1 (lOth Cir. 1994)("While the question of mootness was not briefed or argued in this case, we must consider this issue sua sponte as
2The Order entered by the undersigned on June 17, 2003, granting PlaintiffJones a sua sponte extension of time to respond to Defendant's Motion to Dismiss was returned to the Court marked "return to sender - out," indicating that Plaintiff was released from incarceration priorto the date the Order was received at the prison.
4

Case 5:03-cv-00099-W Document 18 Filed 07/17/03 Page 5 of 7
it implicates our jurisdiction."). Accordingly, it is recommended that Defendant Ward's Motion to Dismiss the cause of action against him by Plaintiff Jones be granted and that the cause ofaction brought by PlaintiffJones be dismissed under LCvR 7.2(e) and on the ground ofmootness. IV. Plaintiffs Fulbright and Cottriel
Defendant Ward seeks the dismissal of the causes of action brought against him by Plaintiffs Fulbright and Cottriel for failure to state a claim for relief under Fed. R. Civ. P. l2(b)(6). Defendant contends that these causes of action are barred by the doctrines of res judicata and collateral estoppel, and in support of this contention Defendant relies on two decisions. Defendant asserts that these decisions entered by the District Court of Osage County, Oklahoma, and by the United States District Court for the Northern District of Oklahoma address and reject the merits of an identical First Amendment claim by an Oklahoma prisoner.
"Under res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action." Allen v. McCurry, 449 U.S. 90, 94(1980). According to well-established principles of collateral estoppel, "once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case." Id. at 94. Additionally, a state court judgment is entitled to "the same preclusive effect as would be given that judgement under the law of the State in which the judgment was rendered." Migra v. Warren City School Dist. Bd. Of
5

Case 5:03-cv-00099-W Document 18 Filed 07/17/03 Page 6 of 7
Educ., 465 U.S. 75, 81 (1984). The doctrines ofcollateral estoppel and res judicata, however, apply only in cases where controlling facts and law remain unchanged." Spradling v. City of Tulsa, 198 F.3d 1219, 1223(lOth Cir. 2000)(citing Commissioner v. Sunnen, 333 U.S. 591, 599-600(1948)).
In Beerheide v. Suthers, 286 F.3d 1179(lOth Cir. 2002), the Tenth Circuit Court of Appeals affirmed the United States District Court for the District ofColorado 's decision that, consistent with the First Amendment's Free Exercise Clause, the Colorado Department of Corrections must provide a kosher diet to its Jewish inmates following the dietary restrictions of Orthodox Judaism with no monetary contribution from the inmates. Applying the fourfactor test established in Turner v. Safley, 482 U.S. 78(1987), for evaluating the constitutional validity of prison regulations that burden constitutional rights of inmates, the Third and Ninth Circuit Courts of Appeals have reached similar conclusions that a kosher diet must be provided to an inmate that satisfies the inmate's Orthodox ludaism dietary restrictions. Johnson v. Hom, 150 f.3d 276(3d Cir. 1998); Ashelman v. Wawrzaszek, III F.3d 674(9th Cir. 1997). Cf. Holterman v. Helling, 1995 WL 702300(8th Cir. 1995)(given the "few kosher diet requests" received by the Iowa Department of Corrections, the administrative burden and costs of providing kosher food is "not warranted" and prison is not constitutionaJly required to provide a kosher diet to its Jewish inmates). These decisions reflect a change in the law in this controversial area of prison litigation, and the application of res judicata and/or collateral estoppel under these circumstances is not appropriate. Accordingly, Defendant Ward's Motion to Dismiss Plaintiffs Fulbright and Cottriel' s actions
6

Case 5:03-cv-00099-W Document 18 Filed 07/17/03 Page 7 of 7

should be denied.

RECOMMENDATION

Based on the foregoing reasons, it is recommended that Defendant Ward's Motion to

Dismiss (Doc. #8) be GRANTED and the cause of action be dismissed as to Plaintiff Jones.

It is further recommended that Defendant Ward's Motion to Dismiss (Doc. # 10) be DENIED

as to PlaintiffFulbright and that Defendant Ward's Motion to Dismiss (Doc. #8) be DENIED

as to Plaintiff Cottriel.

The parties are advised of their respective right to file an objection to this Report and

~-/ Recommendation with the Clerk ofthis Court by

l:::::> ,2003, in accordance

with 28 U.S.c. §636 and LCvR 72.1. The parties are further advised that failure to make

timely objection to this Report and Recommendation waives their respective right to

appellate review of both factual and legal issues contained herein. Moore v. United States

of America, 950 F.2d 656(lOth Cir. 1991).

This Report and Recommendation partially disposes of the issues referred to the

undersigned Magistrate Judge in Case Nos. CIV-03-99-A and CIV-03-125-A and disposes

of all ofthe issues in Case No. CIV-03-98-A.

rL, ENTERED this

I .

7-M day

Of---t'~"'I:;-I_-~----jL-_'

2003

.

ARY . PURCELL UNITED STATES MAGISTRA
7

 
 Case 5:03-cv-00099-W Document 67 Filed 08/25/04 Page 1 of 20

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

DENNIS EARL FULBRIGHT, et al., )

)

Plaintiffs,

)

)

)

v.

)

)

RON WARD, Director,

)

)

Defendant.

)

CIV-03-99-W consolidated with CIV-03-125-W consolidated with CIV-03-1465-W

SECOND SUPPLEMENTAL REPORT AND RECOMMENDATION1

Plaintiffs, who are three state prisoners appearing with court-appointed counsel, Mr.

Rand Eddy, each filed a Motion for Preliminary Injunction in these 42 U.S.C. §1983 civil

rights actions, to which Defendant Director of the Oklahoma Department of Corrections has

responded. Plaintiffs seek a preliminary injunction ordering the Oklahoma Department of

Corrections (“DOC”) to provide them with kosher meals free of cost to them. The matter has

been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28

U.S.C. §636(b)(1)(B). On July 8, 2004, an evidentiary hearing was conducted before the

undersigned concerning Plaintiffs’ Motions for Preliminary Injunction, at which the parties

appeared personally and through counsel, testimony was taken, documentary evidence was

1A Report and Recommendation was previously entered in Case No. CIV-03-99-W and Case No. CIV-03-125-W. A Supplemental Report and Recommendation was previously entered in Case No. CIV-03-125-W. However, no previous Report and Recommendation has been entered in Case No. CIV-03-1465-W. Although not technically accurate in all three cases, but for the sake of clarity, this recommendation is labeled a Second Supplemental Report and Recommendation.
1

Case 5:03-cv-00099-W Document 67 Filed 08/25/04 Page 2 of 20
admitted, and the matter was taken under advisement. For the following reasons, it is recommended that Plaintiffs’ Motions for Preliminary Injunction be GRANTED. I. Procedural Background
In their Complaints filed separately in each of the above-described cases and consolidated by Order of United States District Judge Wayne Alley, each Plaintiff seeks injunctive relief under 42 U.S.C. §1983. As the factual basis for their cause of action, Plaintiffs allege that Defendant Director of the Oklahoma DOC has violated their rights under the First Amendment’s Free Exercise Clause by failing to provide them with kosher diets consistent with their Orthodox Jewish religious faith. Following the filing of the Complaints, Plaintiffs filed their pro se Motions for Preliminary Injunction, to which Defendant responded. Counsel was appointed to represent Plaintiffs, and an evidentiary hearing on the Motions for Preliminary Injunction has been conducted. Thus, the Motions for Preliminary Injunction are at issue. II. Standard of Review
To obtain a preliminary injunction under Fed. R. Civ. P. 65, the movant must show (1) a substantial likelihood of success on the merits of the case; (2) irreparable injury to the movant if the preliminary injunction is denied; (3) the threatened harm to the movant outweighs the injury that the proposed injunction may inflict upon the opposing party; and (4) the injunction, if issued, would not be adverse to the public interest. Kikumura v. Hurley, 242 F.3d 950, 955 (10th Cir. 2001); Chemical Weapons Working Group, Inc. v. United States Dep’t of the Army, 111 F.3d 1485, 1489 (10th Cir. 1997); Lundgrin v. Claytor, 619 F.2d 61,
2

Case 5:03-cv-00099-W Document 67 Filed 08/25/04 Page 3 of 20
63 (10th Cir. 1980). A “preliminary injunction is an extraordinary remedy,” and, as such, “the right to relief must be clear and unequivocal.” SCFC ILC, Inc. V. Visa USA, Inc., 936 F.2d 1096, 1098 (10th Cir. 1991). With respect to a request for a preliminary injunction that would either (1) disturb the status quo; (2) provide mandatory as opposed to prohibitory relief; or (3) provide the movant with virtually all of the relief the movant may recover after a trial on the merits, the movant has an “even heavier burden of showing that the four factors listed above weigh heavily and compellingly in movant’s favor before such an injunction may be issued.” Id. at 1098-1099. In this case, the Plaintiffs’ requested preliminary injunction would provide the Plaintiffs with substantially all of the relief they could obtain after a trial on the merits, and therefore the heightened burden of proof applies to their Motions for Preliminary Injunction. III. Facts
The three Plaintiffs each testified that they are adherents to the Orthodox Jewish faith. Plaintiff Cottriel testified that he has been incarcerated in the custody of the Oklahoma DOC for eleven years, that both of his parents are Jewish, and that he has been practicing Orthodox Judaism since 1996 or 1997 to the best of his ability. Cottriel testified that at the time of the hearing he was purchasing kosher meals through the prison canteen at Lexington Correctional Center (“LCC”), that he had previously participated in the “common fare” diet provided at the Joseph Harp Correctional Center (“JHCC”) but that the “common fare” diet did not meet all of the requirements for a kosher diet, that the “common fare” diet was terminated in April 2002, that he is the only practicing Orthodox Jew at LCC, that he
3

Case 5:03-cv-00099-W Document 67 Filed 08/25/04 Page 4 of 20
submitted an administrative request for a kosher diet approximately two years ago and the request was denied, and that the Oklahoma DOC offers other special diets, including a nonpork diet, a vegetarian diet, and a “healthy heart” diet.
Plaintiff Harmon testified that he has been incarcerated in the custody of the Oklahoma DOC since November 1996, that he began investigating Judaism in 1997 while in custody at JHCC, that he has not converted to Judaism but desires to do so, that he attends regular Jewish meetings and participates in Jewish holidays and events to the best of his ability, that at the time of the hearing he was receiving the prison’s vegetarian diet but that the vegetarian diet does not comply with kosher dietary law because the food is not prepared or stored in the appropriate manner, and that he is the inmate in charge of keeping the books for the Jewish inmate community at JHCC.
Plaintiff Fulbright testified that he has been incarcerated in the Oklahoma DOC custody for six years and that he is currently housed at the John Lilley Correctional Center (“JLCC”) but was previously housed at JHCC for approximately 5½ years, that he has been a practicing Orthodox Jew for 3½ years to the best of his ability, and that he has Jewish heritage through his mother. Plaintiff Fulbright further testified that he participated in the “common fare” diet at JHCC before it was terminated even though the diet did not follow strict kosher dietary laws because the meat was not kosher and the inmates prepared the food in a manner that did not comply with strict kosher dietary laws. Plaintiff Fulbright testified that he currently participates in the vegetarian diet offered at JLCC even though the preparation of the food does not comply with kosher dietary laws, that only one other
4

Case 5:03-cv-00099-W Document 67 Filed 08/25/04 Page 5 of 20
practicing Jew is housed at JLCC, and that he believes the failure to follow strict kosher dietary laws causes spiritual harm to him as an Orthodox Jew.
Rabbi Ovadia Goldman testified concerning the dietary laws of Orthodox Judaism. Rabbi Goldman testified that in order to “keep kosher” in accordance with the Torah an Orthodox Jew must never mix dairy and meat in one meal (specifically, meat and dairy cannot be baked at the same time, and utensils and cooking equipment used for meat cannot be used for dairy or used for non-kosher foods), food cannot be contaminated by coming into contact with non-kosher food, only fish with fins and scales can be eaten, only animals which chew their cud and have cloven hooves may be eaten, only certain parts of kosher animals may be eaten, and meat must have been slaughtered in accordance with Jewish law before it can be eaten. Rabbi Goldman further testified that keeping kosher has spiritual meaning to an Orthodox Jew, that keeping kosher is considered an opportunity to strengthen the Orthodox Jew’s relationship with God, and that not keeping kosher will weaken the individual’s relationship with God. Rabbi Goldman stated that there are many pre-packaged kosher foods available from distributors, that a decent dinner can be made of these prepackaged foods for a cost of $6.50 to $7.00 in Oklahoma, and that kosher foods can be prepared in an oven or microwave that is also used to prepare non-kosher food as long as the kosher food is baked alone and is double-wrapped. Rabbi Goldman further testified that no special storage area is required if the kosher food is kept in its original packaging, that a basic kosher kitchen would require a secure area where there is sufficient area for food preparation, that plastic utensils, pots and pans, and knives can be used as long as the eating implements
5

Case 5:03-cv-00099-W Document 67 Filed 08/25/04 Page 6 of 20
and equipment do not become cross-contaminated, and that the food ingredients used in the kosher kitchen must also be kosher. Rabbi Goldman testified that an individual who is in the process of converting to Orthodox Judaism will want to follow Jewish law to the best of his or her ability, including following strict kosher dietary laws.
Ron Boone, DOC Deputy Director for the Eastern District of Oklahoma, testified that the cost associated with providing special religious diets to inmates would be detrimental to the Oklahoma DOC. Mr. Boone estimated that the provision of a kosher diet will add $10.00 per day to the average daily cost of feeding an inmate who requests a kosher diet, assuming that the cheapest method of providing a kosher diet is to purchase pre-packaged frozen kosher dinners because he has been advised by the deputy director of the Colorado DOC that such a meal costs the Colorado DOC $5.00 per meal. Although Mr. Boone testified he had no knowledge concerning the annual food budget for the Oklahoma DOC, Mr. Boone testified that $2.56 per day is the amount used by him to figure the budget for feeding inmates in his district. Mr. Boone further testified that 52 of the inmates in the current Oklahoma DOC inmate population claimed to be Jewish when they entered the Oklahoma DOC system. Mr. Boone further testified that his “educated guess” is 6% of the Oklahoma DOC inmate population would request a special religious diet, if the Oklahoma DOC was ordered to provide one, based on the number of religions represented in the Oklahoma DOC (96) and the number of those religions (20) which require special diets. Mr. Boone further testified that the provision of a kosher diet would cause security problems because the Oklahoma DOC currently has a 20% staff vacancy rate statewide, and the additional costs
6

Case 5:03-cv-00099-W Document 67 Filed 08/25/04 Page 7 of 20
for providing a kosher diet would have to be subtracted from the budget for personnel, resulting in greater security risks for inmates, staff members, and the public. Mr. Boone stated that in his district inmates may request either a regular diet or a non-pork diet and that the non-pork diet has not resulted in a severe security problem, even though Mr. Boone conceded that the non-pork diet is related to the Muslim faith. Mr. Boone estimated that the Oklahoma DOC will expend more than three million dollars annually for special religious diets for inmates should Plaintiffs be successful in this case. Mr. Boone further testified that the response of inmates in the Oklahoma DOC prison system to the grant of an injunction in this case would result in massive requests for accommodation of special religious diets, analogous to the response by inmates that followed the decision in Mosier v. Maynard, 937 F.2d 1521 (10th Cir. 1991), and other similar cases. These decisions, commonly known as the “haircut cases,” involved restrictions placed upon the length of inmates’ hair under thencurrent Oklahoma DOC policy in which the circuit court found that such restrictions could violate the inmates’ sincerely-held religious beliefs and their rights under the Free Exercise Clause of the First Amendment to the United States Constitution. Finally, Mr. Boone testified that the Oklahoma DOC had not devised any acceptable method for determining the sincerity of an inmate’s religious beliefs. IV. Sincerity of Religious Beliefs
Defendant did not challenge the sincerity of the Plaintiffs’ religious beliefs in Defendant’s response to Plaintiffs’ Motions for a Preliminary Injunction. At the evidentiary hearing, Defendant cross-examined each of the three Plaintiffs concerning the sincerity of
7

Case 5:03-cv-00099-W Document 67 Filed 08/25/04 Page 8 of 20
their religious beliefs but did not provide evidence rebutting their assertion that they were sincere believers in the Orthodox Jewish faith. The testimony of the Plaintiffs at the hearing, as summarized above, is sufficient to show that the Plaintiffs’ religious beliefs are sincerely held in accordance with Orthodox Judaism. V. Analysis under Turner
There is judicial precedent in this and other circuits supporting Plaintiffs’ assertion of a First Amendment right to receive a kosher diet consistent with their sincere religious beliefs. Three Colorado inmates sought a preliminary injunction in 1996 in the United States District Court for the District of Colorado alleging a constitutional and statutory right to receive a kosher diet. In Beerheide v. Zavaras, 997 F.Supp. 1405, 1413 (D.Colo. 1998)(Beerheide I), the district court entered a preliminary injunction directing the Colorado DOC to provide kosher food to the inmate-plaintiffs in accordance with Orthodox Jewish law. Following the entry of the preliminary injunction, the Colorado DOC instituted a kosher diet program and proposed to the court that the inmate-plaintiffs be required to make a copayment of no more than 25% of the additional cost of the kosher meals. A trial was subsequently conducted in the district court on the issue of the sincerity of the religious beliefs of two of the inmate-plaintiffs and on the constitutionality of the Colorado DOC’s proposed program of cost-sharing for inmates desiring a kosher diet. Beerheide v. Suthers, 82 F.Supp.2d 1190 (D.Colo. 2000)(Beerheide II). In Beerheide II, the district court found that the inmates were sufficiently sincere in their religious beliefs. Further, the district court reviewed the Colorado DOC’s proposed co-payment program in light of the requisite Turner
8

Case 5:03-cv-00099-W Document 67 Filed 08/25/04 Page 9 of 20
v. Safley, 482 U.S. 78 (1978), factors to determine the constitutionality of the proposed program. The court determined that the Colorado “DOC’s proposed co-pay program is an unnecessary burden” on the inmate-plaintiffs’ free exercise of their religion in violation of the First Amendment and that under the Turner analysis the inmates were entitled to a kosher diet provided by the Colorado DOC free-of-cost to them. Consequently, the district court granted a permanent injunction requiring the provision of a kosher diet to the inmateplaintiffs. Beerheide II, 82 F.Supp.2d at 1200.
Colorado DOC officials appealed the district court’s decision. In April 2002, the Tenth Circuit Court of Appeals issued a decision affirming the district court’s decision. Beerheide v. Suthers, 286 F.3d 1179 (10th Cir. 2002). The circuit court reviewed the Turner factors relevant to the alleged denial of the inmates’ constitutional rights and found that the inmates were constitutionally entitled to a kosher diet, that the Colorado DOC had not presented reliable evidence that the cost of providing a kosher diet would be more than de minimis, that the Colorado DOC already had in place a well-established system which served to screen out prisoners who sought to participate in the kosher diet program without a legitimate reason, that the Colorado DOC presented only a “specious argument” that the provision of kosher meals would cause a “floodgate” of litigation from other inmates seeking religious meals, and that the provision of kosher meals to inmates free-of-charge while using a selective screening method unrelated to money was an easy, available alternative with a de minimis impact on the Colorado DOC’s annual food service budget. Beerheide, 286 F.3d at 1185-1192. The circuit court concluded that the Colorado DOC’s proposed co-payment plan
9

Case 5:03-cv-00099-W Document 67 Filed 08/25/04 Page 10 of 20
was not rationally related to the legitimate penological concerns put forth by the officials of cost and abuse, and the court affirmed the lower court’s grant of a permanent injunction.
Turning to the Plaintiffs’ case, it is clearly-established in this circuit that prisoners have a constitutional right to a diet conforming to their sincerely held religious beliefs, unless denying the diet is “reasonably related to legitimate penological interests.” Id. at 1184-1185. In order to determine whether Defendant has unconstitutionally infringed upon Plaintiffs’ right to receive a kosher diet consistent with their Orthodox Jewish faith, the court must determine: “(1) whether a rational connection exists between the prison policy regulation and a legitimate governmental interest advanced as its justification; (2) whether alternative means of exercising the right are available notwithstanding the policy or regulation; (3) what effect accommodating the exercise of the right would have on guards, other prisoners, and prison resources generally; and (4) whether ready, easy-to-implement alternatives exist that would accommodate the prisoner’s rights.” Id. at 1185 (citing Turner, 482 U.S. at 89-91). See O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987)(requiring the application of the Turner analysis to prisons’ claims involving the First Amendment’s Free Exercise Clause).
A. Rational Relationship Between Prison Policy and Legitimate Governmental Interest Defendant contends that the Oklahoma DOC is not constitutionally required to
provide a kosher diet to the Plaintiffs. At the evidentiary hearing, Defendant presented two penological interests as justification for the Oklahoma DOC’s policy against providing kosher diets. Defendant proffered that the provision of kosher diets would be prohibitively
10

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expensive and that the provision of kosher diets would result in a burdensome number of requests by other prisoners for a religious diet. “To satisfy this first prong of the [Turner analysis], the prison administration is required to make a minimal showing that a rational relationship exists between its policy and stated goals.” Beerheide, 286 F.3d at 1186. As the Tenth Circuit Court of Appeals found in Beerheide, “[w]ithout doubt, prison administrators have a legitimate interest in working within a fixed budget.” Id. However, as to the second penological interest put forth by Defendant, a similar assertion by the Colorado DOC in the Beerheide case was rejected by the district court and the Tenth Circuit Court of Appeals. Id. at 1186 n. 2. The Tenth Circuit Court of Appeals’ reasoning in Beerheide is equally applicable here. The circuit court stated that “[d]enying protection of a constitutional right in order to prevent other inmates from seeking recognition and enforcement of their constitutional rights is contrary to the most basic principles of our system of government.” Id. Nevertheless, because Defendant has presented at least a “minimal showing” of a rational relationship between the Oklahoma DOC’s budgetary concern and its policy of not providing a kosher diet, the first Turner factor weighs in favor of the Defendant.
B. Alternative Means of Exercising Constitutional Right Defendant posited at the hearing through the testimony of Mr. Boone that inmates in
Oklahoma correctional facilities may partake of either a non-pork diet or a vegetarian diet and that the inmates may purchase kosher food from prison canteens. However, Rabbi Goldman testified concerning the requirements for maintaining the Jewish kosher dietary
11

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laws, and it is obvious that neither the non-pork or the vegetarian diet provided by the Oklahoma DOC satisfies these strict requirements for the preparation, consumption, or storage of food. Additionally, only one of the Plaintiffs testified that he was financially able to purchase kosher food from the prison canteen. Mr. Boone also testified that the inmates are allowed to practice their Orthodox Jewish religion by attending services, participating in Jewish holidays, and possessing articles of importance to the practice of the Orthodox Jewish faith such as the yarmulke, a small cloth skull-cap. However, Rabbi Goldman testified that an individual who desires to convert to Orthodox Judaism would want to follow the strict kosher dietary laws of the faith and that observing the kosher dietary laws of Orthodox Judaism is considered an opportunity to have a closer relationship with God. Other courts have recognized that “Orthodox Jews consider a kosher diet a religious law.” Ward v. Hatcher, No. 97-16390, 1999 WL 109669 (9th Cir. Mar. 1, 1999). Thus, as the court found in Beerheide, the undersigned finds that the Plaintiffs “do not have a viable alternative to observing the essential tenet of Judaism of eating a kosher diet,” and this factor weighs in favor of Plaintiffs. Beerheide, 286 F.3d at 1197.
C. Effect of Accommodating the Exercise of the Right on Guards, Other Inmates, and Prison Resources
The Court in Turner recognized that “[i]n the necessarily closed environment of the correctional institution, few changes will have no ramifications on the liberty of others or on the use of the prison’s limited resources for preserving institutional order.” Turner, 482 U.S.
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at 90. There is no dispute that the cost of providing kosher meals to the Plaintiffs and to other Oklahoma DOC inmates practicing the Orthodox Jewish faith would be greater than the cost of the non-kosher diet available to the general inmate population. However, the evidence presented at the evidentiary hearing varied greatly concerning the cost estimates for providing kosher meals. Plaintiffs presented evidence that frozen kosher meals were readily available from numerous distributors and that the frozen kosher meals could be purchased by the Oklahoma DOC at costs ranging from $2.35 to $3.44 per meal. Plaintiffs’ Ex. 2. Rabbi Goldman testified that a separate oven or microwave was not needed for the cooking of the frozen kosher meals, as long as no other food is being cooked at the same time as the kosher food and as long as the frozen kosher dinners remain “double-wrapped” in their original packaging. Rabbi Goldman testified that kosher meal preparation would require a secure area for food preparation, plastic utensils for eating and preparation, pots and pans and knives for the separate preparation of meats and dairy foods, paper plates, and the food ingredients such as the frozen kosher dinners.
In Beerheide II, which provides relevant findings concerning the requirements for providing a kosher diet for inmates, the district court found that after the entry of the preliminary injunction in that case the Colorado DOC “set up a modified kosher kitchen within the regular prison kitchen” in which the Colorado DOC provided inmates a place to prepare kosher food trays “in a special locked and caged area set aside” for kosher food preparation and provided “a microwave oven, preparation table, two cutting boards, two nondisposable knives, one pot, one pan, plastic tubs, plastic storage drawers, plastic wear and
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trays, butcher paper, and aluminum foil for exclusive use in the preparation of the kosher meals.” Beerheide II, 82 F.Supp.2d at 1193.
In this case, Defendant presented the testimony at the evidentiary hearing of Mr. Boone, who testified that he had not investigated the cost of providing frozen kosher meals from any kosher distributor or other food vendor, but that he had spoken with a Colorado DOC official who advised him that the Colorado DOC paid approximately $5.00 per meal to provide kosher meals to Orthodox Jewish inmates. Mr. Boone testified he had no knowledge of the total amount of the annual budget for the Oklahoma DOC food services but that $2.56 per day is the amount used to figure his food budget for each inmate in his district. Mr. Boone testified that only 52 inmates in the Oklahoma DOC custody claimed to be Jewish upon their entry into the correctional system and he did not know how many inmates might request a kosher diet, should one be available to them.
The testimony presented by the Defendant that in Mr. Boone’s opinion it would cost an estimated three million dollars to provide special religious diets, should Plaintiffs be successful in this cause of action, is purely speculative and is not credible evidence sufficient to support the Oklahoma DOC’s stated penological goal. See Beeheide, 286 F.3d at 1189 (“[W]hile Turner requires us to defer to the expertise of prison officials, that deference is not absolute. In order to warrant deference, prison officials must present credible evidence to support their stated penological goals.”)(emphasis in original). In light of the evidence presented by Plaintiffs concerning the estimated costs of purchasing kosher meals from a kosher food distributor, the evidence presented by Plaintiffs through Rabbi Goldman
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concerning the work area and the modest equipment needs for maintaining a kosher diet, and the evidence tending to show that no more than a relatively small number of Oklahoma DOC inmates would request a kosher diet, it cannot be said that the costs of providing a kosher diet would more than minimally impact the budget of the Oklahoma DOC.
Turning to the impact of the exercise of Plaintiffs’ right to a kosher diet upon guards and other inmates, the Court in Turner cautioned that “[w]hen accommodation of an asserted right will have a significant ‘ripple effect’ on fellow inmates or on prison staff, courts should be particularly deferential to the informed discretion of corrections officials.” Turner, 482 U.S. at 90. However, “prison officials cannot simply point to any impact to win their case” because any institutional changes are expected to have some effect on other inmates or on the prison’s resources. Beerheide, 286 F.3d at 1190.
Defendant presented the testimony of Mr. Boone at the hearing, who testified that the funds needed to accommodate Plaintiffs’ exercise of their right to receive a kosher diet would impact the guards and other inmates because the Oklahoma DOC is under-funded and has a 20% staff vacancy rate statewide. Mr. Boone testified that the additional costs of providing a kosher diet would have to be taken from the Oklahoma DOC’s personnel budget, leading to an increased security risk for inmates, staff, and the public. The Oklahoma DOC’s strained budget is a legitimate area of concern for prison officials. However, as found previously, Defendant has not presented credible evidence that the provision of kosher diets would more than minimally impact the prison system’s budget. Thus, the Defendant has not shown that the funding needed to make the change to add a kosher diet would greatly impact
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the Oklahoma DOC’s prison staff or other inmates. Mr. Boone testified that the result of the grant of a preliminary injunction in this case
would be similar to those circumstances which followed the haircut policy cases. This testimony is speculative. Mr. Boone testified that a large portion of Oklahoma DOC inmates requested an exemption to the haircut policy then in existence after the courts recognized the exemption could negatively affect an inmate’s sincerely-held religious beliefs, that the Oklahoma DOC could not devise an acceptable policy for determining the sincerity of religious beliefs connected to hair length, and that the Oklahoma DOC therefore revised its policy to allow all inmates to grow their hair. However, with respect to special diets already being provided by the Oklahoma DOC, Mr. Boone testified that inmates must request a nonpork diet, that inmates may either choose a vegetarian diet or receive a clearance for a vegetarian diet through the prison’s medical unit, that inmates receiving special diets are monitored, that prison staff is notified if an inmate eats in the wrong serving line, and that the inmate can be verbally reprimanded or charged with a misconduct for not complying with the inmate’s special diet request. Although Mr. Boone testified that the provision of a kosher diet will cause security problems between guards and inmates and between inmates and other inmates, there is no credible evidence to support this assertion in light of the fact that the Oklahoma DOC already monitors the special diets of inmates and that Mr. Boone testified the provision of a non-pork diet has caused no security problems, even though he admitted the non-pork diet is related to the Muslim religious faith.
In Beerheide, the court recognized that as a result of the lower court decisions 16

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granting injunctive relief the Colorado DOC “already has in place a well-established system that serves as a screen to keep out prisoners who seek to participate in the kosher meal program without a legitimate reason,” that under this policy an inmate must request a religious diet and document his or her religion’s dietary laws, and that inmates are only allowed to change religious affiliation once a year. Beerheide, 286 F.3d at 1191. The Colorado DOC also had an established policy for prisoners who wished to maintain their kosher diet privilege. Id. at 1192 n. 8. The U.S. Bureau of Prisons has established a similar policy for providing religious diets to its inmates. See 28 C.F.R. §548.20.
Although the Oklahoma DOC’s special diet policy does not, at this time, cover the provision of religious diets, evidence presented at the evidentiary hearing reflects the special diet policy is effective to preclude inmate abuse of the special diets offered in the prison system. Moreover, the Oklahoma DOC could easily implement a policy similar to the Colorado DOC’s policy which was recognized in Beerheide as an effective method for screening inmates’ requests for religious diets and monitoring those inmates who are receiving religious diets.
With respect to the Defendant’s assertion, through the testimony of Mr. Boone, that the provision of kosher diets would impact other inmates because the prison system would be deluged with requests for special religious diets, the court in Beerheide rejected the same argument, finding that this argument posited by the Colorado DOC was “specious.” Beerheide, 286 F.3d at 1191. Because the Defendant has failed to show that accommodation of Plaintiffs’ exercise of their right to a kosher diet would more than minimally impact the
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Oklahoma DOC’s budget, its staff, or other inmates, this Turner factor weighs in favor of the Plaintiffs.
D. Existence of Ready, Easy-to-Implement Alternatives Accommodating the Prisoners’ Rights
“[T]he absence of ready alternatives is evidence of the reasonableness of a prison regulation.” Turner, 482 U.S. at 90. On the other hand, “the existence of obvious, easy alternatives may be evidence that the regulation is not reasonable, but is an ‘exaggerated response’ to prison concerns.” Id. With regard to this fourth factor of the Turner analysis, “Turner does not impose a least-restrictive-alternative test, but asks instead whether the prisoner has pointed to some obvious regulatory alternative that fully accommodates the asserted right while not imposing more than a de minimis cost to the valid penological goal.” Overton v. Bazzetta, 539 U.S. 126, 136 (2003). The only alternative at issue here is the provision of kosher diets, which Plaintiffs contend can be accommodated at a modest cost with the use of frozen kosher meals purchased from a kosher food distributor. The fact that Colorado and the U.S. Bureau of Prisons afford Orthodox Jewish inmates the opportunity to observe kosher dietary laws indicates that the accommodation of this First Amendment right is not inconsistent with legitimate penological goals. There is no persuasive evidence presented by Defendant that the cost of providing kosher meals to the Plaintiffs and other Orthodox Jewish inmates would entail more than a minimal increase in the Oklahoma DOC’s annual food budget. In Beerheide, the circuit court found that the provision of kosher meals
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free of charge to inmates in the custody of the Colorado DOC “fits well into the category of ‘quick, easy alternatives.’” Beerheide, 286 F.3d at 1192. Defendant has provided no evidence distinguishing this case from the holding in Beerheide.
The Plaintiffs have shown a substantial likelihood of success concerning their claim that the Oklahoma DOC’s policy of not providing kosher diets to them violates their First Amendment right to freely exercise their Orthodox Jewish religion. Plaintiffs have also shown that the three remaining factors for the issuance of a preliminary injunction weigh heavily in their favor. Accordingly, Plaintiffs’ Motions for Preliminary Injunction should be granted, and an injunction should issue requiring Defendant to provide Plaintiffs with kosher meals free of charge to them, although Defendant should be allowed to exercise his professional discretion to determine a reasonably cost-effective method for providing Plaintiffs with a kosher diet.
RECOMMENDATION Based on the foregoing findings, it is recommended that Plaintiffs’ Motions for Preliminary Injunction (Doc. #44 in Case No. CIV-03-125-W; Doc. #35 in Case No. CIV03-99-W; Doc. #5 in Case No. CIV-03-1465-W) be GRANTED and that a preliminary injunction issue as set out herein. The parties are advised of their respective right to file an objection to this Second Supplemental Report and Recommendation with the Clerk of this Court by September 14th , 2004, in accordance with 28 U.S.C. §636 and LCvR 72.1. The parties are further advised that failure to make timely objection to this Second Supplemental Report and Recommendation waives their respective right to appellate review of both factual
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Case 5:03-cv-00099-W Document 67 Filed 08/25/04 Page 20 of 20 and legal issues contained herein. Moore v. United States of America, 950 F.2d 656(10th Cir. 1991).
This Second Supplemental Report and Recommendation partially disposes of the issues referred to the undersigned Magistrate Judge in the captioned matter.
ENTERED this 25th day of August , 2004.
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 Case 5:03-cv-00099-W Document 70 Filed 01/21/05 Page 1 of 8

FILED IN THE UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF OKLAHOMA

JAN 2 1 2005

DENNIS EARL FULBRIGHT,

)

)

Plaintiff,

)

)

vs.

)

)

RON WARD,

)

)

Defendant.

)

u.s.

ROEERT DIST. COURT

D OENNS
WES I,

' CLERK

BY~DE• PTEU RN DT IST. OYF OKLA.

No. CIV-03-99-W v"-

JON ANDREW COTTRIEL, Plaintiff,
vs. RON WARD,
Defendant.

)

)

)

)

)

No. CIV-03-125-W

)

)

)

)

JERRY HARMON, Plaintiff,
vs. RON WARD,
Defendant.

) )
) ) ) ) ) ) )
ORDER

No. CIV-03-1465-W

On August 25, 2004, United States Magistrate Judge Gary M. Purcell issued a Second Supplemental Report and Recommendation in these three consolidated matters and recommended that the Motions for Preliminary Injunction filed by the plaintiffs, state prisoners Dennis Earl Fulbright, Jon Andrew Cottriel and Jerry Harmon, be granted. The

Case 5:03-cv-00099-W Document 70 Filed 01/21/05 Page 2 of 8
parties were advised of their right to object, and Ron Ward, who in his official capacity as the Director of the Oklahoma Department of Corrections ("DOC") is the defendant in each of the three cases, filed his Objections.
The first amendment to the United States Constitution, which is incorporated by the fourteenth amendment and thus, applicable to the states, precludes Congress from making any "law ... prohibiting the free exercise [of religion] ...." U.S. Const. amend. I. In the instant cases, the plaintiffs have alleged that their rights guaranteed by the first amendment's free exercise clause have been violated by the DOC's failure to provide them free of cost with kosher meals consistent with their Orthodox Jewish faith. Relief for this alleged constitutional violation is sought under title 42, section 1983 of the United States Code, and upon de novo review of the record, the Court concurs with Magistrate Judge Purcell's recommended disposition of the plaintiffs' requests for a preliminary injunction.
As Magistrate Judge Purcell noted, to obtain this extraordinary remedy, a party must show (1) that there is a substantial likelihood that he will prevail on the merits; (2) that he will suffer irreparable injury unless the preliminary injunction issues; (3) that the threatened harm to him outweighs any injury the opposing party might suffer because the injunction
issues; and (4) that the injunction, if issued, would not be adverse to public interest. t i ,
Otero Savings and Loan Association v. Federal Reserve Bank, 665 F.2d 275, 278 (10th Cir. 1981 ).
In this case, where the preliminary injunction would provide mandatory rather than prohibitory relief and/or award the plaintiffs virtually all the relief to which they may be entitled and which they may eventually recover, two historically disfavored categories, the
plaintiffs "must 'satisfy an heightened burden.'" 0 Centro Espirita Beneficiente Uniao do
2

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Vegetal v. Ashcroft, 389 F.3d 973,975 (10th Cir. 2004)(en banc)(per curiam); see id. (en banc court "jettison[ed] that part of SCFC ILC[, Inc. v. VISA, Inc., 936 F.2d 1096 (10th Cir. 1991 ),] which describes the showing the movant must make in such situations as 'heavily and compellingly."')
In this circuit, prisoners have a constitutional right to a diet conforming to their sincerely held religious beliefs, unless a state's decision to deny inmates access to such a diet "'is reasonably related to legitimate penological interests.'" Beerheide v. Suthers, 286 F.3d 1179, 1184 (10th Cir. 2002)(quoting Turner v. Safley, 482 U.S. 78, 89 (1987)). The instant record reveals each plaintiff testified that he is an adherent to the Orthodox Jewish faith and there is no evidence to substantially refute the plaintiffs' assertions that their religious beliefs are sincerely held in accordance with Orthodox Judaism.
Thus, in deciding whether the plaintiffs have shown a substantial likelihood that they will prevail on the merits of their complaints, the Court must determine whether legitimate penological interests justify the DOC's policy against providing inmates kosher diets free of cost. In so doing, the Court has considered the standard for reviewing prison policies challenged on constitutional grounds set forth by the United States Supreme Court in Turner v. Safley, 482 U.S. 78 (1987).
Under Turner, the Court must ascertain "(1) whether a rational connection exists between the prison policy ... and a legitimate governmental interest advanced as its justification; (2) whether alternative means of exercising the right are available notwithstanding the policy ... ; (3) what effect accommodating the exercise of the right would have on guards, other prisoners, and prison resources generally; and (4) whether ready, easy-to-implement alternatives exist that would accommodate the prisoner's rights." 286 F.3d at 1185 (citing Turner, 482 U.S. at 89-91 )(other citation omitted).
3

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The defendant has advanced two governmental interests to justify its policy: the expense of supplying kosher diets and the burdensome number of requests for religious diets by other prisoners. "Without doubt, prison administrators have a legitimate interest in working within a fixed budget." Id. at 1186. Accordingly, the Court finds the defendant has demonstrated a reasonable connection between the DOC's policy of not providing kosher diets and its budgetary concerns and thus, has made the necessary "minimal showing that a rational relationship exists between its policy and stated goals." Id. Having determined that the defendant has satisfied with this showing the first factor of the Turner four-factor analysis, the Court has not considered the legitimacy of the second governmental interest advanced by the defendant. But see id. at 1186 n.2.
A further review of the record shows that the second Turner factor does not however weigh in the defendant's favor. A comparison of the testimony of Bobby Boone regarding the availability of non-pork and vegetarian diets and the inmates' ability to purchase kosher food at prison canteens and the testimony of Rabbi Ovadia Goldman demonstrates that while these three plaintiffs are not deprived of all forms of observing their religious obligations, they do not have a "'viable alternative for observing the essential tenet of
Judaism of eating a kosher diet.'" lQ. at 1186 (quoting Beerheide v. Suthers, 82 F. Supp.2d
1190, 1197 (D. Colo. 2000)). As indicated, the third Turner factor requires an examination of the effect and
consequences, if any, that accommodating the prisoners' exercise of their first amendment right to free religious expression would have on guards, other inmates and prison resources. As the Supreme Court has recognized, "[i]n the necessarily closed environment of the correctional institution, few changes will have no ramifications on the liberty of others
4

Case 5:03-cv-00099-W Document 70 Filed 01/21/05 Page 5 of 8
or on the use of the prison's limited resources for preserving institutional order." 482 U.S. at 90. The Court is therefore mindful that U[w]hen accommodation of an asserted right will have a significant 'ripple effect' on fellow inmates or on prison staff, [it] ... should be
particularly deferential to the informed discretion of corrections officials." lQ. (citation
omitted). Based upon that portion of the record that concerns the estimated costs of
purchasing kosher meals from kosher food distributors or vendors, the Court finds at this stage of the litigation that supplying a kosher diet at no charge to these three plaintiffs and ultimately, to others who request the same as a result of sincerely held religious beliefs would most certainly impact DOC's budget and result in increased costs. This impact, however, is not so significantly detrimental to require a finding that this factor weighs in the defendant's favor.
Furthermore, in evaluating the effect, if any, of the accommodation of the plaintiffs' right to a kosher diet on guards and other prisoners, the Court again acknowledges that budgetary restraints are a very real and legitimate concern for prison officials, but finds at this stage that the funding necessary to add a kosher diet would not unduly impact the prison staff or the staff's ability to maintain order.1
Furthermore, the Court finds that the DOC already has in place an effective special diet policy that is precludes inmate abuse of available special diets (although not religious diets) and that implementation of a policy for likewise screening requests for religious diets
'The Court notes that in his Objections, the defendant has reported that plaintiff Cottriel was attacked by another inmate after the hearing on the plaintiffs' Motions for Preliminary Injunction. The DOC's concern over prison security is justified and legitimate; however, the Court finds that this single incident of inmate violence alone does not at this stage preclude accommodation of the plaintiffs' religious practices.
5

Case 5:03-cv-00099-W Document 70 Filed 01/21/05 Page 6 of 8
would not be unduly burdensome. As required by Turner, the Court has also considered "whether ready, easy-to-
implement alternatives exist that would accommodate the ... [plaintiffs'] rights." 286 F.3d at 1185 (citations omitted). The absence of such alternatives evinces the reasonableness
of a prison's policy. t i , 482 U.S. at 90 (citation omitted). Proof of their existence
arguably evidences the policy's unreasonableness by showing that it is but "an
'exaggerated response' to prison concerns." lQ.
As the United States Court of Appeals for the Tenth Circuit has found in addressing a ,similar situation faced by the Colorado Department of Corrections and its response to a challenge by Colorado inmates, the provision of "kosher meals free of charge [to inmates] fits well into the category of 'quick, easy alternatives.'" 286 F.3d at 1192. There is no evidence in the record that would require this Court to find otherwise or to find that this fourth Turner factor favors the defendant.
Finally, in reviewing the defendant's Objections, the Court notes that the defendant has complained that at the hearing on the Motions for Preliminary Injunction, he presented arguments based upon that clause ofthe first amendment to the United States Constitution that prohibits Congress from making any "law respecting an establishment of religion," U. S. Const. amend. I, and that Magistrate Judge Purcell did not address these arguments when he issued his Second Supplemental Report and Recommendation.
To this end, the defendant has argued that the plaintiffs cannot demonstrate a likelihood of success on the merits of their claims under the free exercise clause because the requested injunctive relief would violate the first amendment's establishment clause. At this stage, the Court finds a state prison's practice of providing a kosher diet at no cost
6

Case 5:03-cv-00099-W Document 70 Filed 01/21/05 Page 7 of 8
to inmates does not impermissibly advance religion or evince sponsorship or financial support of, or active involvement in, a religious activity by the government. Thus, the Court finds, subject to further argument and authority, that the defendant's reliance on the establishment clause does not preclude the issuance of injunctive relief.
Having found that the plaintiffs have shown a substantial likelihood of success on the merits of their claims, the Court has examined the record to determine whether the plaintiffs have established the three remaining factors, proof of which is required before a preliminary injunction may issue. In so doing, the Court finds that the loss of a first amendment freedom clearly constitutes irreparable harm and that to these three plaintiffs, such loss is actual and not theoretical, that the threatened injury resulting from the denial of these plaintiffs' ability to engage in constitutionally protected activity outweighs at this stage the harm to the DOC if the preliminary injunction issues and that such an injunction would not be adverse to the public's interest in ensuring that free religious expression is not curtailed.
Accordingly, the Court (1) ADOPTS the Second Supplemental Report and Recommendation issued on August 25, 2004, and in particular, Magistrate Judge Purcell's recommendation that the defendant should be permitted to exercise his professional discretion to determine a reasonably cost-effective method for providing the plaintiffs a kosher diet; (2) GRANTS
(A) the Motion for Preliminary Injunction filed on October 20, 2003, by Fulbright in Case No. CIV-03-99-W [Doc. 35];
7

Case 5:03-cv-00099-W Document 70 Filed 01/21/05 Page 8 of 8 (8) the Motion for Preliminary Injunction filed on October 20,2003, by Cottriel
in Case No. CIV-03-125-W [Doc. 44]; (C) the Motion for Preliminary Injunction filed on November 3, 2003, by
Harmon in Case No. 03-1465-W [Doc. 5]; (3) ORDERS the defendant to provide these three plaintiffs a kosher diet at no cost
to them until further Order of the Court; and (4) RE-REFERS this matter to Magistrate Judge Purcell for further proceedings.
ENTERED this ,)(~ day of January, 2005.
~~~ UNITED STATES DISTRICT JUDGE
8

 
 Case 5:03-cv-00099-W Document 131 Filed 01/06/06 Page 1 of 5
FI l EO IN THE UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF OKLAHOMA

JAN 6 2006

DENNIS EARL FULBRIGHT,

}

}

Plaintiff,

)

)

vs.

)

)

JUSTIN JONES,

}

)

Defendant.

}

us. DIST. COURT ~ENN!S, CLERK

BY

J;"..STERN DIST. OF OKLA,

~DEPUTY

V ' No. CIV-03-99-W

JON ANDREW COTTRIEL,

)

)

Plaintiff,

)

)

vs.

)

No. CIV-03-125-W

)

JUSTIN JONES,

)

)

Defendant.

)

JERRY HARMON, Plaintiff,
vs. JUSTIN JONES,
Defendant.

)

)

)

)

)

No. CIV-03-1465-W

)

)

)

)

ORDER

Plaintiffs Dennis Earl Fulbright, Jon Andrew Cottriel and Jerry Harmon broughtthese

now consolidated actions seeking preliminary and permanent prospective injunctive relief

under title 42, section 1983 of the United States Code for the alleged deprivation of their right under the first amendment to the United States Constitution to exercise freely their Orthodox Jewish religion. The controversy in each case centered on the refusal of the

Oklahoma Department of Corrections ("DOC") to provide a Kosher diet. On January 21,

Case 5:03-cv-00099-W Document 131 Filed 01/06/06 Page 2 of 5
2005, a preliminary injunction was granted and the DOC was ordered to provide these three plaintiffs a Kosher diet at no cost. The cases were then re-referred to United States Magistrate Judge Gary M. Purcell for further proceedings, including a determination whether permanent injunctive relief was warranted.
The matter now comes before the Court on Magistrate Judge Purcell's Third Supplemental Report and Recommendation and on the Motion to Dismiss filed by Justin Jones, in his official capacity as DOC Director. The plaintiffs have responded in oppositionl to the Motion to Dismiss, and Jones has filed a reply. The deadline for filing objections to Magistrate Judge Purcell's Third Supplemental Report and Recommendation was extended pending resolution of Jones' request for dismissal.
Ron Ward in his official capacity as DOC Director was the original defendant. Upon Ward's retirement, Edward L. Evans, DOC Deputy Director of Administration, was appointed DOC Interim Director, and Evans was substituted as party defendant pursuant to Rule 25(d)(1), F.R.Civ.P. Jones, upon his appointment as DOC Director, was likewise automatically substituted as party defendant for Evans pursuant to Rule 25(d)(1), supra.
The Advisory Committee Notes to Rule 25(d)(1) provide that n[a]utomatic substitution . . . , being merely a procedural device for substituting a successor for a past officeholder as a party, is distinct from and does not affect any substantive issues which may be involved in the action ....
"Where the successor does not intend to pursue the policy of his predecessor which gave rise to the lawsuit, it will be open to him, after
ITo the extent the allegations in the plaintiffs response that the Kosher diets being provided do not meet American Correctional Association nutritional standards, that water is the only Kosher beverage being provided and that Fulbright has "experienced a hostile attitude from kitchen staff"
have not been previously pled and have not been exhausted as required by 42 U.S.C. § 1997e(a),
the Court has disregarded the same. 2

Case 5:03-cv-00099-W Document 131 Filed 01/06/06 Page 3 of 5
substitution, ... to seek to have the action dismissed as moot ...." Advisory Committee Notes, 1961 Amendment (citations omitted).
"If the successor in fact does disavow the policy of his predecessor, he can make that showing and if this does make the suit moot, tested by usual standards, it should be dismissed as such." C. Wright, A. Miller & M. Kane, 7C Federal Practice and Procedure
§ 1960, at 578 (2d ed. 1986). As a general rule, "'a defendant's voluntary cessation of a
challenged practice does not deprive a federal court of its power to determine the legality of the practice' unless it is 'absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.'" Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Services, 532 U.S. 598, 609 (2001 )(quoting Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. 167, 189 (2000)). "[T]he "'heavy burden of persua[ding]" the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness,'" Adarand Constructors, Inc. v. Slater, 528 U.S. 216, 222 (2000)(quoting Friends of the Earth, 528 U.S. at 189 (quoting United States v. Concentrated Phosphate Export Association, Inc., 393 U.S. 199, 203 (1968)))(emphasis deleted), which in this case is Jones.
In this connection, Jones testified at his deposition that Fulbright, Cottriel and Harmon are constitutionally entitled to Kosher meals, see Deposition of Justin Jones (November 21,2005) at 15, 23 (hereafter "Deposition"), and the plaintiffs themselves have admitted that DOC "began attempting to provide ... Kosher diets that satisfied the nutritional value standards of the [American Correctional Association] in approximately March ... 2005 ...." Plaintiffs' Objection and Response (November 28, 2005) at 2.
3

Case 5:03-cv-00099-W Document 131 Filed 01/06/06 Page 4 of 5
Jones has relied upon these undisputed facts to contend that these cases should therefore be dismissed as moot.
Although Jones has admitted that these three plaintiffs are entitled to a Kosher diet, he has likewise admitted that a successor DOC director would not be obligated to continue current DOC policies. Deposition at 49. Despite the fact Jones himself did not continue the conduct which gave rise to these lawsuits,2 the Court finds in light of former DOC policy coupled with DOC's vigorous resistance and opposition to providing Kosher diets to these inmates that there is no absolute assurance that the alleged first amendment violation will not occur in the future, ft&, 528 U.S. at 189 (events must make it absolutely clear that allegedly wrongful behavior could not reasonably be expected to recur), or absolute assurance that these three plaintiffs will not be disadvantaged in the same fundamental way.
"[T]he standard . . . for determining whether a case has been mooted by the defendant's voluntary conduct is stringent," Friends of the Earth, 528 U.S. at 189, and the Court finds Jones has not met his "heavy burden of persuasion." Concentrated Phosphate Association, 393 U.S. at 203. Accordingly, dismissal on the grounds of mootness is not warranted, and the Court therefore
(1) DENIES the Motion to Dismiss filed by Jones in each of these three cases on September 27, 2005;
2At this stage of the litigation, it appears that injunctive relief may not needed to "correct[] behavior by the one ... having official status and power, rather than [the behavior by] one who has lost that status and power through ceasing to hold office." Advisory Committee Notes, 1961 Amendment (citations omitted). However, circumstances do not afford the absolute assurance that the initial harm may not recur.
4

Case 5:03-cv-00099-W Document 131 Filed 01/06/06 Page 5 of 5

(2) under the unique circumstances of this case, DIRECTS the parties to confer

within seven (7) days in a good faith effort to agree upon a proposed order outlining the

injunctive relief requested in this lawsuit and recommended by Magistrate Judge Purcell

and to submit such an order to the Court for approval and execution; and

(3) should the parties be unable to agree upon such an order and instead, desire

to file objections3 to Magistrate Judge Purcell's Third Supplemental Report and

Recommendation, EXTENDS the deadline for doing so to ten (10) days from this date.

2 - ENTERED this

day of January, 2006.

E R. WEST UNITED STATES DISTRICT JUDGE

31n resolving the Motion to Dismiss, the Court addressed only Jones' argument that the instant litigation was moot. In his objections, if any, Jones is not precluded from raising any other arguments now set forth in his Motion, including his contentions under the Prison Litigation Reform
Act, 18 U.S.C. § 3626.
5

 
 Case 5:03-cv-00099-W Document 161 Filed 07/28/06 Page 1 of 4
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

DENNIS EARL FULBRIGHT, Plaintiff - Appellee,
v. EDWARD EVANS, Warden,
Defendant, and JUSTIN JONES, Director, Oklahoma Department of Corrections,
Defendant - Appellant.

Nos. 06-6098 06-6161
(D.C. No. 03-CV-99-W)

A true cop)' Teste

Clerk, U. S. Court of Appeals, 1enth Cj~cuit .~

__ BY,-~',. i~. ~I-kA;A----('c.·~·.-0-.---_. ....

, .~.-y f:lerk

-

ORDER Filed July 25, 2006

In accordance with Rule 33.1, Rules ofthe Tenth Circuit, and upon consideration of the stipulation to dismiss these appeals,
IT IS ORDERED that the above appeals be and hereby are dismissed pursuant to Rule 42(b), Federal Rules ofAppellate Procedure. Each party shall bear its own costs on appeal.

Case 5:03-cv-00099-W Document 161 Filed 07/28/06 Page 2 of 4 A certified copy of this order shall stand as and for the mandate of the court.
Entered for the Court ELISABETH A. SHUMAKER, Clerk
by: eXi'tl ~l\C(0' Deputy Clerk
2

, .' Case 5U:0n3i-tcevd-0S0t0at9e9s-WCouDrot coufmAepnpte1a6ls1foFr iltehde 0T7e/n28th/0C6irPcuaigte 3 of 4
OFFICE OF THE CLERK

Byron White United States Courthouse

1823 Stout Street

Denver, Colorado 80257

Elisabeth A. Shumaker

(303)844-3157

Clerk of Court

Douglas E. Cressler Chief Deputy Clerk

July 25, 2006

Mr. Robert D. Dennis Clerk united states District Court for the W. District of Oklahoma 200 NW Fourth Street Room 1210 united states Courthouse Oklahoma City, OK 73102
Mr. Rand C. Eddy Eddy & Jones, P.C. 228 Robert S. Kerr Ave., suite 220 Oklahoma City, OK 73102
Mr. Guy L. Hurst Asst. Atty. General Mr. J. Kevin Behrens Ms. Angela K. Martin Oklahoma Attorney General 4545 N. Lincoln Blvd. Suite 260 Oklahoma City, OK 73105-3498

Re:

06-6098, Fulbright v. Jones

Dist/Ag docket: 03-CV-99-W,

06-6161, Fulbright v. Jones

Dist/Ag docket: 03-CV-99-W,

Dear Counsel:
The court filed an order today dismissing these cases. A copy of the order is enclosed for all part~es.
Also enclosed for the district court clerk or for the named agency, is a certified copy of the dismissal order which is issued as the mandate of the court. Please file it in the records of the district court or agency.

, <' Case 5:03-cv-00099-W Document 161 Filed 07/28/06 Page 4 of 4
Please contact this office if you have questions. Sincerely, Elisabeth A. Shumaker Clerk, Court of Appeals
By: Cf6~ Deputy Clerk clk:lg

 
 Case 5:03-cv-00099-W Document 176 Filed 08/13/12 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

DENNIS EARL FULBRIGHT, Plaintiff,
v. JUSTIN JONES, Director,
Defendant.

) ) ) ) ) CIV-03-99-W ) ) ) )

JON COTTRIEL,
Plaintiff, v.
JUSTIN JONES, Director,
Defendant.

) ) ) ) CIV-03-125-W ) ) ) )

JERRY HARMON,
Plaintiff, v.
JUSTIN JONES, Director,
Defendant.

) ) ) ) CIV-03-1465-W ) ) ) )

FOURTH SUPPLEMENTAL REPORT AND RECOMMENDATION

In January 2003, Plaintiffs Jones, Fulbright, and Cottriel, who are or were state

inmates, filed separate 42 U.S.C. § 1983 actions in this Court. Jones v. Wa,rCdase No. CIV-

1

Case 5:03-cv-00099-W Document 176 Filed 08/13/12 Page 2 of 10
03-98-A; Fulbright v. Ward, Case No. CIV-03-99-A; Cottriel v. Ward , Case No. CIV-03125-A. In substantially identical Complaints, the three Plaintiffs each alleged that his First Amendment right to freely exercise his Orthodox Judaism religion was violated by Defendant Ward’s refusal to grant his request for a kosher diet. Each Plaintiff sought only injunctive relief against Defendant W ard in his official capacity as the Director of the Oklahoma Department of Corrections (“ODOC”) to secure the provision of a Kosher diet consistent with the principles of Orthodox Judaism and that satisfied the nutritional value standards set by the American Correctional Association at no charge to the Plaintiffs.
On June 6, 2003, former United States District Judge Wayne Alley entered an order consolidating the three cases. Doc. # 15, Case No. CIV-03-98-A (Order, June 6, 2003)(Alley, Wayne E., D.J.). The consolidated action was referred to the undersigned Magistrate Judge for initial proceedings pursuant to 28 U.S.C. § 636(b)(1)(B). Subsequently, Plaintiff Jones was dismissed from the consolidated action as Plaintiff Jones was no longer in custody. Doc. # 16, Case No. CIV-03-98-A (Order, Aug. 11, 2003)(Alley, Wayne E., D.J.). On February 6, 2004, the remaining consolidated cases were reassigned to United States District Judge Lee West for all further proceedings. Doc. # 42, Case No. Civ-03-99-W; Doc. # 52, Case No. CIV-03-125-W. The cases were again referred to the undersigned Magistrate Judge for further proceedings pursuant to 28 U.S.C. § 636(b)(1)(B). With the consolidated actions filed by Plaintiffs Fulbright and Cottriel, the undersigned Magistrate Judge joined a similar action filed by a third Plaintiff, Mr. Harmon, in Case No. CIV-03-1465-W.
Plaintiffs filed pro se motions for a preliminary injunction, and counsel was appointed 2

Case 5:03-cv-00099-W Document 176 Filed 08/13/12 Page 3 of 10
to represent the Plaintiffs. Thereafter, an evidentiary hearing on the motions was conducted. In a Second Supplemental Report and Recommendation the undersigned recommended that the motions for preliminary injunction be granted. In January 2005, the recomendation was adopted, and Defendant Ward was ordered to provide “these three plaintiffs a kosher diet at no cost to them until further Order of the Court.” Doc. # 70, Case No. CIV-03-99-W (Order, Jan. 21, 2005)(West, Lee, D.J.); Doc . # 79, Case No. CIV-03-125-W (Order, Jan. 21, 2005)(West, Lee, D.J.); Doc. # 44, Case No. CIV-03-1465-W (Order, Jan. 21, 2005)(West, Lee, D.J.).
In an Order entered April 21, 2005, Judge West, citing 28 U.S.C. § 3626(a)(1), found that the preliminary injunction issued by the Court was “narrowly dra wn, extend[ed] no further than necessary to correct the violation of the plaintiffs’ right to the free exercise of their religion guaranteed by the free exercise clause of the first am endment to the United States Constitution and [was] the least intrusive means necessary to correct this violation.” Based on these findings Judge West extended the preliminary injunction beyond April 25, 2005, the date on which it was set to expire. Doc. # 78, Case No. CIV-03-99-W (Order, April 21, 2005)(West, Lee, D.J.); Doc. # 89, Case No. CIV-03-125-W (Order, April 21, 2005)(West, Lee, D.J.); Doc. # 52, Case No. CIV-03-1465-W (Order, April 21, 2005)(West, Lee, D.J.).
In December 2005, Defendant Jones, in his official capacity as the Director of ODOC, was automatically substituted for form er ODOC Director Ward pursuant to Fed.R.Civ.P. 25(d)(1). Doc. # 126, Case No. CIV-03-99-W (Order, Dec. 1, 2005)(West, Lee, D.J.); Doc.
3

Case 5:03-cv-00099-W Document 176 Filed 08/13/12 Page 4 of 10
# 137, Case No. CIV-03-125-W (Order, Dec. 1, 2005)(West, Lee, D.J.); Doc. # 98, Case No. CIV-03-1465-W (Order, Dec. 1, 2005)(West, Lee, D.J.).
Motions for summary judgment filed by the Plaintiffs were granted by the Court, and in the Judgm ent entered February 8, 2006, Judge West issued a perm anent injunction ordering Defendant Jones, in his official capacity as the ODOC Director, to “im mediately provide to the plaintiffs Kosher diets at no cost. Such diets shall comply with all nutritional requirements and standards currently applicable to the diets served to all other inamtes in the custody of the [ODOC] .” Doc. # 134, Ca se No. CIV-03-99-W (Judgm ent for Permanent Prospective Injunctive Relief, Feb. 8, 2006)(West, Lee, D.J.); Doc. # 145, Case No. CIV-03125-W (Judgment for Permanent Prospective Injunctive Relief, Feb. 8, 2006)(West, Lee, D.J.); Doc. # 106, Case No. CIV-03-1465-W (Judgm ent for Perm anent Prospective Injunctive Relief, Feb. 8, 2006)(West, Lee, D.J).. On July 28, 2006, the Tenth Circuit Court of Appeals dismissed the appeal of the consolidated cases based on a stipulation of disimssal filed by the parties. Cottriel, et al., v. Evans, et al,.Nos. 06-6099, 06-6163 (10th Cir. July 28, 2006)(unpublished order).1
On September 15, 2011, Plaintiff Harmon moved for contempt. In an Order entered December 22, 2011, District Judge West made the following findings:
Prior to the entry of judgment in this case, DOC in 2005 enacted a protocol for Kosher Menu Preparation and Serving . . . and all
1ODOC’s public records reflect that Plaintiff Fulbright was released from ODOC custody in June 2010. http://www.doc.state.ok.us/offenders/offenders.htm (offender lookup last accessed August 10, 2012).
4

Case 5:03-cv-00099-W Document 176 Filed 08/13/12 Page 5 of 10
DOC facilities were instructed on the preparation, service and delivery of kosher m eals. . . . It is undisputed that Harm on, while housed in DOC m edium security prisons, received a Kosher diet in com pliance wit the Court’s Judgm ent for Permanent Prospective Injunctive Relief and DOC Kosher Diet Protocol and that those correctional facilities that follow DOC policy do not violate Kosher law. Doc. # 158, Case No. CIV-03-1465-W (Order, Dec. 22, 2011)(West, Lee, D.J.). The Court denied Plaintiff Harmon’s motion for contempt and found that Defendant Jones had “made considerable and diligent efforts not only to substantially comply with the Court’s Judgment for Permanent Prospective Injunctive Relief but also to ensure continued compliance and to resolve complaints lodged by Harmon.” Id. The Court also ordered that its Judgm ent for Permanent Prospective Injunctive Relief issued on February 8, 2006, continue in force and effect. Id. All of this litigation history brings the matter to the recent date of June 28, 2012, when a non-party, Fred Smith, filed in the three consolidated actions a Motion for F inding of Contempt Or For a Supplementary Order. Doc. # 166, Case No. CIV-03-99-W; Doc. # 177, Case No. CIV-03-125-W; Doc. # 160, Case No. CIV-03-1465-W. Mr. Smith states in his Motion that he follows the dietary mandates of Orthodox Judaismand that he is an “intended third party beneficiary of this Court’s judgment for permanent prospective [injunctive] relief . . . .” Motion, at 1. He alleges tha t the private prison where he is confined, the Davis Correctional Facility (“DCF”) in Holdenville, Oklahoma, is not adhering to ODOC policy concerning the provision of Kosher meals because the facility has instituted a new policy in which meals will be prepared at the facilitywith non-Kosher kitchen tools and with no fresh
5

Case 5:03-cv-00099-W Document 176 Filed 08/13/12 Page 6 of 10
vegetables and no m eat. Further, he alleges that the new Kosher menu at DCF does not satisfy the calorie requirements of the American Dietetic Association for adult males and is not comparable to the daily caloric portions served to other inmates not on the Kosher meal plan. He requests that the Court issue a finding of contempt and/or “issue an approprate [sic] supplemental order, such that he is provided with a kosher diet . . . . that is nutritionally adequate and properly prepared.” Motion, at 3.
Mr. Smith’s motion seeking a contempt order and Defendant Jones’ Motion to Amend Briefing Schedule have been referred to the undersigned pursuant to 28 U.S.C. § 636. Defendant Jones has now responded to Mr. Smith’s motion, and Defendant Jones’ Motion to Amend Briefing Schedule is denied as moot.
Civil contempt proceedings “are consideredto be a part of the action fromwhich they stem.” F.T.C. v. Kuykendall , 371 F.3d 745, 756 (10 th Cir. 2004). “Sanctions for civil contempt may only be employed . . . to compel or coerce obedience to a court order [and/or] to compensate the contem nor’s adversary for injuries resulting from the contem nor’s noncompliance.” O’Connor v. Midwest Pipe Fabrications, Inc., 972 F.2d 1204, 1211 (10th Cir. 1992).
Mr. Smith is a non-party in this action, and hehas not sought to intervene in the action pursuant to Fed.R.Civ.P. 24. Assuming that Mr. Smith is seeking permissive intervention in these consolidated cases, the rule requires that a motion seeking permissive intervention be “timely” made. Fed.R.Civ.P. 24(b)(1). Inlight of the lengthy time period that has passed since entry of the Judgm ent herein, any re quest by Mr. S mith to intervene in these
6

Case 5:03-cv-00099-W Document 176 Filed 08/13/12 Page 7 of 10
consolidated cases would not be “timely” under any stretch of the im agination. Consequently, the Court should deny his implied request to intervene in these cases.
Generally, a person must be named in the complaint to be a party in a federal action. Birmingham v. Experian Information Solutions, Inc., 633 F.3d 1006, 1020 (10th Cir. 2011). See Marino v. Ortiz , 484 U.S. 301, 304 (1988)( per curiam)(holding “only partie s to a lawsuit, or those that properly become parties, may appeal an adverse judgment”); Raley v. Hyundai Motor Co., Ltd., 642 F.3d 1271, 1274 (10th Cir. 2011)(“Generally speaking, only named parties to a lawsuit in the district court may appeal an adverse final judgment.”); S. Utah Wilderness Alliance v. Kempthorne, 525 F.3d 966, 968 (10th Cir. 2008)(holding “only parties to a lawsuit, or those that properly becmoe parties, may appeal an adverse judgment”). The Supreme Court recognized a narrow exception to this rule in Devlin v. Scardellett,i536 U.S. 1, 7 (2002), in which the Court held that “nonnam ed class members . . . who have objected in a timely manner to approval of th e settlement at the fairness hearing have the power to bring an appeal without first intervening.” Id. at 14.
In these consolidated cases, class action status was neither requested nor granted by the Court. Therefore, Mr. Smith cannot seek contempt in this action as a non-named class member. Nor is Mr. Smith a third-party beneficiary of the previously-entered Judgment for Permanent Prospective Injunctive Relief. Nothing in the Judgment provided that it would be enforceable by all ODOC inmates. Rather, the Judgment was directed only to the claims of the named Plaintiffs.
The decision relied on by Mr. Smith, Floyd v. Ortiz, 300 F.3d 1223 (10th Cir. 2002), 7

Case 5:03-cv-00099-W Document 176 Filed 08/13/12 Page 8 of 10

provides no basis for this Court to invoke its civil contem pt power. In Floyd, non-parties

sought to enforce a consent decree issued by the district court in whic

h there was

“consensus” that the agreem ent “would be nefit, and be enforceable by, all [Colorado

Department of Corrections] inmates, not just the named plaintiffs.” Id. at 1225. In that case,

no separate Rule 58 judgment was entered in the action, and the action was never formally

dismissed in accordance with the agreement of the parties. Id. The Tenth Circuit Court of

Appeals recognized in Floyd that “[a] trial court retains jurisdiction to enforce consent

decrees” and “intended third-party beneficiaries of consent decrees have standing to enforce

those decrees” where the order of dismissal shows an intent to retain jurisdiction. Ida. t 1226. The other case cited by Plaintiff, Hook v. State of Ariz., Dep’t of Corr., 972 F.2d 1012 (9th

Cir. 1992), also involved the issue of whether a non-party could se ek to enforce a consent

decree, and the court held that the non-party inmates could seek to enforce the consent decree

which showed its purpose was to benefit all inmates and not just the named plaintiffs. Id. at

1015.

Defendant Jones asserts that Plaintiff lacks standing to enforce the injunction issued

in favor of the named Plaintiffs in these consolidated cases. The undersigned finds Defendant

Jones’ argument persuasive. Unlike the non-parties in the Floyd and Hook decisions, Mr.

Smith is not an “intended beneficiary” to enforce the perm anent injunction because the

injunction entered as part of the Judgment in these consolidated cases did not extend beyond

the interests and claims of the named Plaintiffs. Pursuant to 18 U.S.C. § 3626(a)(1), “[a]ny

prospective relief in any civil action with respect to prison conditions shall extend no further

8

Case 5:03-cv-00099-W Document 176 Filed 08/13/12 Page 9 of 10

than necessary to corre ct the violation of the Federal right of a particular plaintiff or plaintiffs.” In imposing a permanent injunction upon Defendant Jones in his official capacity as ODOC Director, Judge West specifically tailored the injunction to address only the violation of the named Plaintiff’s First Amendment rights. Additionally, the Court did not continue its jurisdiction over the matter and, instead, entered a final Judgment.
Under the circumstances present herein, permitting Mr. Smith to litigate his motion for contempt in these consolidated cases would effectively transform a civil contem pt proceeding into a class action. Morever, there is no compelling need to allow Mr. Smith to litigate his motion in theses consolidated cases as he may bring a 42 U.S.C. § 1983 action seeking to vindicate a perceived violation of his own constitutional right2s.Accordingly, Mr. Smith’s motion to intervene and/or to seek efnorcement of the Injunction through this Court’s civil contempt authority should be denied.

RECOMMENDATION

Based on the foregoing findings, it is re commended that Mr. Sm ith’s Motion for

Finding of Contempt or for a Supplementary Order (Doc. # 166, Case No. CIV-03-99-W;

Doc. # 177, Case No. CIV-03-125-W; Doc. # 160, Case No. CIV-03-1465-W) be DENIED.

Defendant Jones’ Motion to Am end Briefing Schedule is denied as moot. Mr. Sm ith is

advised of the right to file an objection to this Fourth Supplem

ental Report and

2If Mr. Smith opts to file a 42 U.S.C. § 1983 ac tion, he must, of course, first exhaust his administrative remedies in accordance with 28 U.S.C. § 1997e(a).
9

Case 5:03-cv-00099-W Document 176 Filed 08/13/12 Page 10 of 10 Recommendation with the Clerk of this Court by Septem ber 4th , 2012, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The failure to tim ely object to this Fourth Supplemental Report and Recom mendation would waive appe llate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996)(“Issues raised for the first time in objections to the magistrate judge’s recommendation are deemed waived.”).
This Fourth Supplemental Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in th e captioned matter, and any pending motion not specifically addressed herein is denied.
ENTERED this 13th day of August , 2012.
10

 
 Case 5:03-cv-00099-W Document 184 Filed 10/10/12 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FO

I

THE WESTERN DISTRICT OF OKLAHOMA 


OCT 1 0 20 12

DENNIS EARL FULBRIGHT,

)

)

Plaintiff,

)

)

vs.

)

)

JUSTIN JONES, Director,

) 


) 


Defendant.

) 


ROBERT D. DEN t ,C ERK

US.DtST. COU T, WESTERN DtST. OF OKLA

BY

DEPUTY

No. CIV-03-99-W

JON ANDREW COTIRIEL,

)

)

Plaintiff,

)

)

vs.

)

)

JUSTIN JONES, Director,

)

)

Defendant.

)

No. CIV-03-125-W

JERRY HARMON,

)

)

Plaintiff,

)

)

vs.

)

)

JUSTIN JONES, Director,

)

)

Defendant.

)

No. CIV-03-1465-W

ORDER

On August 13, 2012 , United States Magistrate Judge Gary M. Purcell issued a

Fourth Supplemental Report and Recommendation 1 in these consolidated matters. Non­

1For purposes of Case No. CIV-03-1465-W, Magistrate Judge Purcell's findings and recommendations should be entitled "Fifth Supplemental Report and Recommendation." See id . Doc. 153.

Case 5:03-cv-00099-W Document 184 Filed 10/10/12 Page 2 of 6
party Fred Smith was advised of his right to object, and the matter came before the Court on Smith's Objection to Report and Recommendation.
The three plaintiffs, Dennis Earl Fulbright, Jon Andrew Cottriel and Jerry Harmon, who are or were state inmates, had each alleged that his right under the free exercise clause of the first amendment to the United States Constitution to freely exercise his Orthodox Judaism religion was violated by the defendant's refusal to grant his request for a kosher diet. Each plaintiff had sought injunctive relief against defendant Ron Ward, then in his official capacity as Director of the Oklahoma Department of Corrections ("DOC"), to obtain, at no cost to the plaintiffs, a kosher diet that was consistent with the principles of Orthodox Judaism and that satisfied the nutritional value standards set by the American Correctional Association.
Adopting Magistrate Judge Purcell's findings and recommendations, the Court granted a preliminary injunction and ordered Ward "to provide these three plaintiffs a kosher diet at no cost to them until further Order of the Court." Case No. CIV-03-99-W, Doc 70 at 8; Case No. CIV-03-125-W, Doc. 79 at 8; Case No. CIV-03- 1465-W, Doc. 44 at 8.
Thereafter, on February 8, 2006, the Court entered a Judgment for Permanent Prospective Injunctive Relief ("Judgment") in favor of the three plaintiffs, after finding that a permanent injunction was "necessary to remedy a violation of these plaintiffs' right to freely exercise their Orthodox Jewish religion ...." Case No. CIV-03-99-W, Doc. 134 at 2; Case No. CIV-03-125-W, Doc. 145 at 2; Case No. CIV-03-1465-W, Doc. 106 at 2. Justin Jones, who had been substituted in his official capacity as DOC Director as the defendant pursuant to Rule 25(d)(1), F.R.Civ.P., was ordered "to immediately provide to
2 


Case 5:03-cv-00099-W Document 184 Filed 10/10/12 Page 3 of 6
the plaintiffs kosher diets at no cost." Case No. CIV-03-99-W, Doc. 134 at 2; Case No. CIV-03-125-W, Doc. 145 at 2; Case No. CIV-03-1465-W, Doc. 106 at 2. The Court further ordered that the "diets [provided these three plaintiffs] shall comply with all nutritional requirements and standards currently applicable to the diets served to all other inmates in ... [DOC] custody ...." Case No. CIV-03-99-W, Doc. 134 at 2; Case No. CIV-03-125-W, Doc. 145 at 2; Case No. CIV-03-1465-W, Doc. 106 at 2.
In the instant challenge, Smith had advised that he too follows the dietary mandates of Orthodox Judaism and that he was therefore "an intended third party beneficiary of this Court's [J]udgment ... ."2 Case No. CIV-03-99, Doc. 166 at 1; Case No. CIV-03-125-W, Doc. 177 at 1; Case No. CIV-03-1465-W, Doc. 160 at 1. Smith is currently incarcerated at Davis Correctional Facility ("DCF"), a private prison owned and operated by Corrections Corporation of America, Inc. ("CCA"). He stated that DCF had been providing kosher meals for several years that complied with DOC's kosher meal policy, OP-070202, Attachment A, but as of June 6, 2012, DCF was no longer adhering to DOC policy.
Smith complained that CCA had instituted a new policy at its prisons that altered the content and preparation of kosher meals and that the meals at these facilities, including DCF, were prepared with non-kosher kitchen tools. Smith further asserted that the new kosher menu lacks meats and fresh vegetables and neither satisfies the calorie requirements of the American Dietetic Association for adult males, nor is comparable to the daily caloric portions served to those DCF inmates who do not follow the dietary regimen of Orthodox Judaism and who are not receiving kosher meals. Smith urged the
2Smith did not seek to intervene in these consolidated matters pursuant to Rule 24, F.R.Civ.P.
3 


Case 5:03-cv-00099-W Document 184 Filed 10/10/12 Page 4 of 6
Court to find Jones in contempt and to issue an appropriate supplemental order, such that
he (Smith) would be provided with a kosher diet that was nutritionally adequate and
properly prepared.3
Upon de novo review, the Court concurred with Magistrate Purcell's findings and his
suggested disposition of Smith's Motion for Finding of Contempt or for a Supplementary
Order. Accordingly, the Court on September 26,2012, adopted the Fourth Supplemental
Report and Recommendation 4 and found that the Judgment entered in this matter on
February 8,2006, pertained only to the claims pursued by Fulbright, Cottriel and Harmon
against Jones.5 The Court further found that the Judgment contained no language that
permitted it to be enforced by all DOC inmates. The Court denied Smith's Motion for
3The Court found that Smith's Motion for Finding of Contempt or for a Supplementary Order was triggered by a memo issued on June 6, 2006, by DCF "Chaplain, Brian Wideman, ... to all facility kosher recipients, telling them of a major change in the kosher menu effective [June 19,] 2012." Case No. CIV-03-99, Doc. 166 at 2; Case No. CIV-03-125, Doc. 177 at 2; Case No. CIV-03­ 1465, Doc. 160 at 2. The "major change" was CCA's decision to no longer adhere to DOC's kosher meal policy, OP-070202, Attachment A, and to implement instead a kosher meal policy that mirrored the policies promulgated by the Bureau of Prisons and Immigrations and Customs Enforcement.
The Court found that the issues surrounding, and prompting, CCA's decision were not the subject of, and did not give rise to, the Judgment, and in light of Smith's concession that he was not "seeking to enforce any particular DOC policy," Case No. CIV-03-99-W, Doc. 180 at 3; Case No. CIV-03-125-W, Doc. 190 at 3; Case No. CIV-03-1465-W, Doc. 174 at 3, against the named defendants, but rather was seeking to litigate his claim that the kosher menu crafted by CCA, a nonparty, violated DOC policy, see CIV-03-99-W, Doc. 180 at 3; Case No. CIV-03-125-W, Doc. 190 at 3; Case No. CIV-03-1465-W, Doc. 174 at 3, the Court further found that relief under, and/or reliance on, Rule 71, F.R.Civ.P., was not appropriate.
4See Case No. CIV-03-99-W, Doc. 176; Case No. CIV-03-125-W, Doc. 185; Case No. CIV­ 03-1465-W, Doc. 167.
5See Case No. CIV-03-99-W, Doc. 181; Case No. CIV-03-125-W, Doc. 191; Case No. CIV­ 03-1465-W, Doc. 175.
4

Case 5:03-cv-00099-W Document 184 Filed 10/10/12 Page 5 of 6
Finding of Contempt or for a Supplementary Order6 and further declined his request to "transform[ ] this ... proceeding into something similar to a class action ...." Case No. CIV-03-99, Doc. 180 at 5; Case No. CIV-03-125-W, Doc. 190 at 5; Case No. CIV-03-1465­ W, Doc. 174 at 5.
The matter now comes before the Court on Smith's Motion to Reconsider filed pursuant to Rule 60(b), F.R.Civ.P. Smith has repeated certain arguments and grounds advanced in his initial paper, and he has also warned that the Court's Order of September 26, 2012, "could very well emboldened DOC to totally stop providing any Jewish inmates other than Fulbright, Cottriel and Harmon with kosher meals." Case No. CIV-03-99-W, Doc. 183 at 2; Case No. 03-125-W, Doc. 192 at 2; Case No. Civ-03-1465-W, Doc. 179 at 2.
The Court is not convinced that revisitation of the issues raised by Smith in his Motion for Finding of Contempt or for a Supplementary Order is warranted. The Court finds that Smith has made no showing that the Court either misapprehended Smith's position, the facts or the law or that reconsideration is required to prevent manifest injustice.
Accordingly, the Court (1) DENIES Smith's Motion to Reconsider filed on October 5,2012;7 and
6See Case No. CIV-03-99-W, Doc. 166; Case No. CIV-03-125-W, Doc. 177; Case No. CIV­ 03-1465-W, Doc. 160.
7See Case No. CIV-03-99-W, Doc. 183; Case No. 03-125-W, Doc. 192; Case No. Civ-03­ 1465-W, Doc. 179.
5

Case 5:03-cv-00099-W Document 184 Filed 10/10/12 Page 6 of 6 (2) DIRECTS the Clerk of the Court to mail a copy of this Order to Fred Smith, #218694, CCA Davis Correctional Facility, 6888 East 133rd Road DS-147, Holdenville, OK 74848 and show proof of the same in the records.
ENTERED this !...Ufi:.. day of October, 2012.
6 


 
 Fulbright v. Jones
United States District Court for the Western District of Oklahoma January 26, 2006, Decided ; January 26, 2006, Filed
No. CIV-03-99-W, No. CIV-03-125-W, No. CIV-03-1465-W

Reporter: 2006 U.S. Dist. LEXIS 5789; 2006 WL 222807 DENNIS EARL FULBRIGHT, Plaintiff, vs. JUSTIN JONES, Defendant. JON ANDREW COTTRIEL, Plaintiff, vs. JUSTIN JONES, Defendant. JERRY HARMON, Plaintiff, vs. JUSTIN JONES, Defendant.

Opinion ORDER

Subsequent History: Motion denied by Harmon v. Jones, 2011 U.S. Dist. LEXIS 147879 (W.D. Okla., Dec. 22, 2011)
Prior History: Fulbright v. Evans, 2005 U.S. Dist. LEXIS 40240 (W.D. Okla., Sept. 8, 2005)
Counsel: [*1] For Dennis Earl Fulbright, Plaintiff, Pro se, Taft, OK.
For Dennis Earl Fulbright, Jon Andrew Cottriel, Jerry Harmon, Plaintiffs: Rand C Eddy, Eddy & Jones, Oklahoma City, OK.
For Warden Edward Evans, Director, Oklahoma Department of Corrections, Defendant: Guy L Hurst, Attorney General's Ofc-LINCOLN-OKC, Oklahoma City, OK.

Plaintiffs Dennis Earl Fulbright, Jon Andrew Cottriel and Jerry Harmon brought these now consolidated actions seeking preliminary and permanent prospective injunctive relief under title 42, section 1983 of the United States Code for the alleged deprivation of their right under the first amendment to the United States Constitution to exercise freely their Orthodox Jewish religion. The controversy in each case centered on the refusal of the Oklahoma Department of Corrections ("DOC") to provide a Kosher diet. On January 21, 2005, a [*2] preliminary injunction was granted and the DOC was ordered to provide these three plaintiffs a Kosher diet at no cost. The cases were then re-referred to United States Magistrate Judge Gary M. Purcell for further proceedings, including a determination whether permanent injunctive relief was warranted.

For Justin Jones, Defendant: Guy L Hurst, J Kevin Behrens, Attorney General's Ofc-LINCOLN-OKC, Oklahoma City, OK.
For John Andrew Cottriel, Plaintiff, Pro se, JHCCLEXINGTON, Lexington, OK.
For Jerry Harmon, Plaintiff, Pro se, Lexington, OK.

The matter now comes before the Court on Magistrate Judge Purcell's Third Supplemental Report and Recommendation wherein Magistrate Judge Purcell has recommended that the Court grant judgment in favor of the plaintiffs and order that the preliminary injunction issued in this matter be made permanent. The parties were advised of their right to object, and defendant Justin Jones has filed an Objection 1 to the Third Supplemental Report and Recommendation.

Judges: LEE R. WEST, UNITED STATES DISTRICT [*3] Upon de novo review of the record, the Court concurs

JUDGE.

with Magistrate Judge Purcell's suggested

Opinion by: LEE R. WEST

1 Relying upon the doctrine of mootness, Jones previously argued that he was entitled to dismissal because he had admitted that the three plaintiffs were entitled to a Kosher diet. As the Court noted in its Order on January 6, 2006, "'if the successor in fact does disavow the policy of his predecessor, he can make that showing and if this does make the suit moot, tested by usual standards, it should be dismissed as such.'" C. Wright, A. Miller & M. Kane, 7C Federal Practice and Procedure § 1960, at 578 (2d ed. 1986)." Order at 3 (January 6, 2006). The Court further noted that "as a general rule, '"a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice" unless it is "absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur."' Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Services, 532 U.S. 598, 609, 121 S. Ct. 1835, 149 L. Ed. 2d 855 (2001)(quoting Friends of the Earth, Inc. v. Laidlaw Environmental Services. Inc., 528 U.S. 167, 189, 120 S. Ct. 693, 145 L. Ed. 2d 610 (2000))." Order at 3 (January 6, 2006).
If the burden of persuading this Court that the challenged conduct cannot reasonably be expected to recur falls on Jones, the party asserting mootness, e.g., Adarand Constructors, Inc. v. Slater, 528 U.S. 216, 222, 120 S. Ct. 722, 145 L. Ed. 2d 650 (2000)(quoting Friends of the Earth, 528 U.S. at 189 (quoting United States v. Concentrated Phosphate Export Association, Inc.,

2006 U.S. Dist. LEXIS 5789, *3

Page 2 of 3

disposition of these matters. In so doing, the Court addresses the issued raised in Jones' Objection: whether Jones, who like his predecessors-in-office has been sued in his official capacity as DOC Director, is entitled to the immunity provided by the eleventh amendment to the United States Constitution.
Ron Ward in his official capacity as DOC Director was the original defendant. Upon Ward's retirement, Edward L. Evans, DOC Deputy Director of Administration, was appointed DOC Interim Director, and Evans was automatically substituted as party defendant pursuant to Rule 25(d)(1), F.R.Civ.P. Jones, upon his appointment as DOC Director, was likewise automatically substituted as party defendant for Evans pursuant to Rule 25(d)(1), supra. See Order (December 1, 2005); see also Order (November 1, 2005).

procedural rule for substitution; care should be taken not to distort its meaning by mistaken analogies to the doctrine of sovereign immunity from suit or the Eleventh Amendment. The . . . rule will apply . . . to any action brought in form against a named officer, but instrinsically against the government or the office or the incumbent thereof whoever he may be from time to time during the action. Thus the . . . rule will apply to actions against officers to compel performance of official duties or to obtain judicial review of their orders. . . . In general it will apply whenever effective relief would call for corrective behavior by the one then having official status and power . . . ."
[*5] Id. (citations omitted).

The Advisory Committee Notes to Rule 25(d)(1) provide that a "successor is automatically substituted as a party without an application or showing of need to continue the action," Advisory Committee Notes, 1961 Amendment, and that
"automatic [*4] substitution …, being merely a procedural device for substituting a successor for a past officeholder as a party, is distinct from and does not affect any substantive issues which may be involved in the action. Thus a defense of immunity from suit will remain in the case despite a substitution."Id.
The Advisory Committee Notes to Rule 25(d)(1) further provide that
"the expression 'in his official capacity' is to be interpreted in its context as part of a simple

The Court finds Jones is not entitled to any immunity afforded by the eleventh amendment. Automatic substitution under Rule 25(d)(1) was procedurally appropriate and proper in these cases since it is clear that a controversy continues to exist between the plaintiffs and this defendant in his official capacity. The requested injunctive relief-the purpose for which is to obtain relief against the one who occupies the office of DOC Director at the time of judgment-is necessary since the record establishes that there is no absolute assurance that the constitutional deprivations will not recur.
Jones has also argued that he is entitled to judgment as a matter of law on the plaintiffs' claims. In so doing, Jones has merely directed the Court's attention to the arguments and authorities presented in his Motion for Summary Judgment and reply thereto filed in each case. The Court has reviewed the same, and finds Jones is not entitled to judgment in his favor.

393 U.S. 199, 203, 89 S. Ct. 361, 21 L. Ed. 2d 344 (1968)))(emphasis deleted), the Court REAFFIRMS as it so found on January 6, 2006, that Jones did not meet this burden.
If, on the other hand, in confronting Jones' assertion that these actions are moot, the plaintiffs are charged with the burden of showing that there is a substantial need to continue this litigation, the Court finds that the plaintiffs have met this burden and to this extent, the Court's Order of January 6, 2006, is so AMENDED to reflect this finding.
Jones testified at his deposition that Fulbright, Cottriel and Harmon are constitutionally entitled to Kosher meals, see Deposition of Justin Jones (November 21, 2005) at 15, 23 (hereafter "Deposition"), and the plaintiffs admitted that DOC "began attempting to provide . . . Kosher diets that satisfied the nutritional value standards of the [American Correctional Association] in approximately March . . . 2005. . . ." Plaintiffs' Objection and Response at 2 (November 28, 2005).
However, Jones likewise admitted that a successor DOC director would not be obligated to continue current DOC policies. Deposition at 49. Despite the fact Jones stated that he did not intend to continue the conduct which gave rise to these lawsuits and regardless of which party has the burden of proof, the Court REAFFIRMS that in light of former DOC policy coupled with DOC's vigorous resistance and opposition to providing Kosher diets to these inmates that there is no absolute assurance that the alleged first amendment violation will not occur in the future, e.g.,528 U.S. at 189 (events must make it absolutely clear that allegedly wrongful behavior could not reasonably be expected to recur), or absolute assurance that these three plaintiffs will not be disadvantaged in the same fundamental way.

2006 U.S. Dist. LEXIS 5789, *5

Page 3 of 3

Accordingly, the Court

(4) DIRECTS the plaintiffs to submit with seven (7) days for

(1) ADOPTS the Third Supplemental Report and this Court's approval and execution a proposed judgment

Recommendation issued on September 8, 2005, in each of reflecting the disposition of these three cases and setting forth

these three cases;

the terms of the permanent injunction suggested by Magistrate

Judge Purcell in his Third Supplemental Report and

(2) GRANTS the Motions for Summary Judgment filed on Recommendation and hereby approved by this Court.

April 26, 2005, respectively, [*6] by Fulbright in No. CIV-

03-99-W [Doc. 80], by Cottriel in No. CIV-03-125-W [Doc. ENTERED this 26th day of January, 2006.

91] and by Harmon in No. CIV-03-1465-W [Doc. 54]:

LEE R. WEST

(3) DENIES the Motions for Summary Judgment filed by

Jones on May 11, 2005, respectively, in No. CIV-03-99-W UNITED STATES DISTRICT JUDGE

[Doc. 88], No. CIV-03-125-W [Doc. 98] and No. CIV-03-

1465-W [Doc. 61]: and

 
 Case 5:03-cv-00099-W Document 35 Filed 10/20/03 Page 1 of 15

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

FILED

ocr 2 0 2003

DENNIS EARL FULBRIGHT

)

vs.

Plaintiff, )
) ) )

Case No.

ROBERTO. DENNIS, CLERK

1I.s..D/Sl
CIV-03-99",.A St.

eOORT:

WESTERN

IlI.S8l.~Ql1J;fJ.otltQA.

(consolidated with)

RON WARD, Director Defendant.

) ) )

CIV-03-125-A

PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION

COMES NOW, Plaintiff Fulbright and moves for Preliminary Injunction and Order of this Court directing the Defendant and the Oklahoma Department of Corrections to provide the Plaintiff with kosher meals. 1. Plaintiff asserts that he is a sincere practitioner of
Orthodox Judaism [See attached Affidavit, CIV-03-125-A Exhibits "D" and "E"; See also Werner v. McCotter, 49 F.3d 1476 (lOb 1995)], that keeping kosher is a central tenet of Judaism, that eating non-kosher food is harmful to his body and his soul, and that he cannot be made whole by any alternative as there is no alternative to kosher. Ashelman v. Wawnzaszek, 111 F.3d 674, 675 and n.2; Beerheide v. Zavaras, 997 F.Supp 1405 (D.Colo 1998) ; Beerheide v. Zavaras, 82 F.Supp 1190 (2000) as upheld by Beerheide v. Suthers, 286 F.3d 1179 (10 th 2002); see also 42 USC 2000cc 5 (7) (A) 2000 2. Plaintiff asserts that the harm being done to his body and soul out weighs any financial concerns Defendant my have where the cost of providing this Plaintiff with a kosher meals will

Case 5:03-cv-00099-W Document 35 Filed 10/20/03 Page 2 of 15
have a minimum impact where the facility Food Service budget exceeds $1 Million and the state corrections budget nears $400Million. Further, Plaintiff cannot be forced to bear the cost of feeding himself, in whole or in part. Beerheide v. Zavaras, 997 F.Supp 1405 (D.Colo 1998); Beerheide v. Zavaras, 82 F.Supp 1190 (2000) as upheld by Beerheide v. Suthers, 286 F.3d 1179 (IOU 2002). 3. Plaintiff asserts that the harm being done to his body and soul out weighs any facility security or operational concerns where Defendant's mere allegation does not sUbstantiate adverse effects Beerheide v. Zavaras, 997 F.Supp 1405 (D.Co10 1998); Beerheide v. Zavaras, 82 F.Supp 1190 (2000) as upheld by Beerheide v. Suthers, 286 F.3d 1179 (lOth 2002). 4. Plaintiff asserts that providing him with a kosher meals is not in conflict with public interest in that enforcement of the First Amendment Right to free exercise of religion is in the public interest where religion equates to rehabilitation (Mushlin, Rights of Prisoners 3r~, Vol. 1, p. 674) as this is the very premise under which penitentiaries were first established in the United States, and where the financial burden to the tax payer is de minimus compared to the overall corrections budget. 5. Plaintiff asserts a sUbstantial likelihood of success in light of the enactment of 42 USC 2000cc (2000) and rulings in Beerheide v. Zavaras, 997 F.Supp 1405 (D.Colo 1998); Beerheide

Case 5:03-cv-00099-W Document 35 Filed 10/20/03 Page 3 of 15
v. Zavaras, 82 F.Supp 1190 (2000) as upheld by Beerheide v. Suthers, 286 F.3d 1179 (10tl 2002) . 6. Plaintiff asserts that he is entitled to immediate relief in that Defendant and the Oklahoma Department of Corrections has been aware of Beerheide and 42 USC 2000cc (2000) for at least two years and has had this time to prepare and comply with these standards (See also CIV-03-125-A, Exhibit "G".) WHEREFORE, premises considered, Plaintiff Fulbright prays this Honorable Court grant him Preliminary Injunctive Relief by Ordering the Defendant and the Oklahoma Department of Corrections to begin providing the Plaintiff with kosher meals, immediately, along with any other and further relief the Court deems fit and proper.
R~§~~~tf4lly Submitted,
73051-0548

Case 5:03-cv-00099-W Document 35 Filed 10/20/03 Page 4 of 15
AFFIDAVIT
STATE OF OKLAHOMA ) ) ss
COUNTY OF CLEVELAND ) I, Dennis E. Fulbright, being of lawful age, and having been duly sworn upon my oath, hereby depose and state that:
I am 35 years old and was born to Orbin Ray Fulbright and Joyce Earline Buntin on June 18, 1968. My parents were divorced when I was vety young and I was raised by my mother and I had seen little ofmy father. Neither ofmy parents were religious or attended church that I know of I was introduced to the Christian faith when I was seven. Shortly there after I was "saved" for the first time because I was told that if! died I would spend forever in Hell burning if! weren't "saved." I went to several Christian church camps as a child and was probably "saved" again each time I went because the stories told by the preachers scared me and they said I had to be sure I was "saved" from eternal fire and brimstone. By the time I was in my teens, the "Hell" stories lost their impact on my life and I began to abuse drugs and alcohol, stay out all night, steal, and ditch school. By the time I was twenty-one, I had several felonies and an extensive misdemeanor record. It was during this time in my life that I went to prison for the first time. I went to church a little, but only to break the monotony of prison, not to get religion.
In 1997 when I waS arrested again for the charge I am currently incarcerated for, I finally
decided to tty something different in my life. There were several men in the county jail sporting
Bibles, doing Bible studies through the mail, having prayer groups and appeared to have something I was looking for- happiness and peace. I wanted that, so I got me a little Gideon's New Testament and joined the group and started Bible studies through the mail. I was "saved" again, only this time I prayed for knowledge and guidance in doing what God wanted me to do. I was also baptized in the Oklahoma County Jail before being shipped to prison. I continued to study and do Bible studies through the mail from several different denominations.
Shortly before leaving the county jail, I received a Bible that also included what I referred to at the time as the Old Testament. I started reading it right away beginning with Genesis 1: 1. I was shocked at all the law and rules that God said were for all generations and that a mixed multitude of people were following them. By the time I finished reading the complete Tanach (Torah, Writings and
Page 1 of 3

Case 5:03-cv-00099-W Document 35 Filed 10/20/03 Page 5 of 15
Prophets) I was at Dick Connors Correctional Center (DCCC). What I had read did not match up with what the preachers or Bible studies had been teaching me so I began to question the Christian and Jewish prisoners trying to sort out the truth. I stayed about six months a DCCC and then was transferred to Joseph Harp Correctional Center (JHCC), where I have been for nearly five years as of this writing.
I wanted to learn more about the laws that God said are for all generations because, the best I can tell, even Jesus said to follow the law. Beside that, I had a hard time believing the virgin birth, the God/man thing, not to mention the fact that those laws seemed to be on my mind all too often. I kept remembering the vow that I had made to God when I asked for knowledge and guidance, saying that I would do what he showed me to do.
I met Inmate Billy Jones who was doing what I believed at the time to be Jewish practices. I started attending what was called Messianic Jewish Services. I really enjoyed worshiping with these men because they believed a lot of the same things I believed, like the laws in the Bible were very important and that Jesus was only a man. I was with this group for about three years but I separated myself from them after watching a video with them of a man preaching and making prophecies of things that he predicted were going to happen. The problem was that the video was old and the time period had already passed for the prediction and none of the things he predicted had come about. I had already learned in the Bible that ifa man claims to be a prophet and even if one thing he predicts does not come true, then I must separate myselffrom him. It was a very bitter break because the men in that community I thought were my friends. But when I decided to leave, I learned the truth about most of them.
I didn't know where to go from here because I certainly wasn't a Christian, I wasn't going to be a part ofsomething that goes against the laws of God, there was dissension between the group I was with and the Orthodox Jewish Community, but I still had developed a great love of the law (Torah), God, and the new me that I was becoming. It was time to move on, but I didn't know where to move on to.
By this time I had been in three or four years, and my mother came to see me. I had not seen my mother in seven or eight years. We discussed many things about the past and present but then I asked her ifwe had any Jewish blood in us. She looked at me perplexed and asked why I had asked. I began to tell her about some of the things that I was doing religiously. She asked me how I liked the things I was doing. I told her that it made the most sense to me and that I was making it a part
Page 2 of 3

Case 5:03-cv-00099-W Document 35 Filed 10/20/03 Page 6 of 15

of my life. She told me, "We are Genuan, Indian, and, yes, we are Jewish." I was elated and I couldn't believe what I was hearing. I asked, "Who? I looked up every name that I knew trying to make a Jewish connection, but to no avail." She smiled and said, "My mother is a Jewess." I asked my Grandmother's maiden name and my mother told me it was "Adams." I have not seen my mother

since that visit. I decided to go to the Orthodox Jewish service just to see what it was about. I also believed,
based on my discoveries at visit with my mother, it was where I was supposed to be. After I started attending the Orthodox service regularly, the leader of the other group approached me and told me that ifl continued to go to the Orthodox Jewish service, that I wasn't his brother but I was his enemy. I was utterly torn to hear him say those words, but I could never go back to a lie and what the Bible

says is an abomination. I have now been with the Orthodox Jewish Community a little over two years. I never knew
how profound, knowledgeable and wise the Jewish sages and rabbis of old were. I come to have a much deeper understanding of the prophets, writings and stories in the Bible. I also realized that, although what I believed to be Jewish turned out not to be so, it was a wonderful stepping stone for

me to get where I am now. One ofthe most important things I have learned in my study of Torah, God's law, is that not
only is my physical selfat risk when I don't follow the Law (Oral and Written)) but my spirit is at risk and harmed ifI don't follow all of the laws. I now know and believe with all my heart that ifI eat foods that are not kosher, I am separating myself from God because this is His spirit that HE gave

to me to take care of His way. I have come a long way with God's help, but I am not finished. I believe it is wrong for

Oklahoma DOC to deny me the right to practice Orthodox Judaism on God's tenus.

The above Affidavit was sworn t~nd
subscribed before me this J~ day
oftf?eM~ ,2003 (j)
NOTARY PUBLIC -4~£7N~
My Commission Expires:7-;;7.;..c:?7
Page 3 of 3

~~~ enIllSE. Fulbri g
JHCC E-2-113
Rt .. 1, Box 548
Lexington, Ok 73051

h:'I."'-~.-..:S-.1-)'EI:-iA(:;-At?-.;.L..-...,)-----

------------------
SANDRA DORRIS Cleveland County

-

----

, " )0(;' Notary Public in and for

l ,.,~~,-~...,

State of Oklahoma

:

: Commission # 99010119 Expires 7127107: ------------------------~-----------

Case 5:03-cv-00099-W Document 35 Filed 10/20/03 Page 7 of 15

CERTIFICATE OF MAILll~G
On this JL day of _-"o~d"""-_ _ _-,, 20~, a true and correct copy of the foregoing
attached document (instrument), specifically, _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
Motion for Preliminary Injunction

was mailed, postage prepaid, by placing the above document (instrument) with the Joseph Harp Correctional Center's, Box 548, Lexington, Oklahoma. 73051-0548, Mail room personnel to be mailed to the below listed individuals;

Attorneyfqr the Defendant

3)t/S- & {/hce/n girL 51-eJ-to

at OJ,

73(a[-]Y9Y

Case 5:03-cv-00099-W Document 35 Filed 10/20/03 Page(!8).JoVf 155~,aI

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

FILED
oar 2 0 2003

JON ANDREW COTTRIEL,

)

Plaintiff, )

)

)

vs.

) )

)

RON WARD, Director Defendant.

) ) )

Case No.

ROSEAr t1. DENNIS ClERK usIYo.lsr. COURT. WUltAHOISTO.eOpFUOTYK!.A.

CIV-03-125-A

(consolidated with)

CIV-03-99-A

PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION

COMES NOW, Plaintiff Cottriel

and moves for Preliminary

Injunction and Order of this Court directing the Defendant and the

Oklahoma Department of Corrections to provide the Plaintiff with

kosher meals.

1. Plaintiff asserts that he is a sincere practitioner of

Orthodox Judaism [See attached Affidavit, CIV-03-125-A

Exhibi ts "D" and "E"; See also Werner v. McCotter, 49 F. 3d

1476 (10~ 1995)], that keeping kosher is a central tenet of

Judaism, that eating non-kosher food is harmful to his body

and his soul, and that he cannot be made whole by any

alternative as there is no alternative to kosher. Ashelman v.

Wawnzaszek, III F.3d 674, 675 and n.2; Beerheide v. Zavaras,

997 F.Supp 1405 (D.Colo 1998); Beerheide v. Zavaras, 82 F.Supp

1190 (2000) as upheld by Beerheide v. Suthers, 286 F.3d 1179

(loth 2002); see also 42 USC 2000cc 5 (7) (A) 2000

2. Plaintiff asserts that the harm being done to his body and

soul out weighs any financial concerns Defendant my have where

the cost of providing this Plaintiff with a kosher meals will

Case 5:03-cv-00099-W Document 35 Filed 10/20/03 Page 9 of 15
have a minimum impact where the facility Food Service budget exceeds $1 Million and the state corrections budget nears $400Million. Further, plaintiff cannot be forced to bear the cost of feeding himself, in whole or in part. Beerheide v. Zavaras, 997 F.Supp 1405 (D.Colo 1998); Beerheide v. Zavaras, 82 F.Supp 1190 (2000) as upheld by Beerheide v. Suthers, 286 F.3d 1179 (10th 2002). 3. Plaintiff asserts that the harm being done to his body and soul out weighs any facility security or operational concerns where Defendant's mere allegation does not substantiate adverse effects Beerheide v. Zavaras, 997 F.Supp 1405 (D.Colo 1998); Beerheide v. Zavaras, 82 F.Supp 1190 (2000) as upheld by Beerheide v. Suthers, 286 F.3d 1179 (10th 2002). 4. Plaintiff asserts that providing him with a kosher meals is not in conflict with public interest in that enforcement of the First Amendment Right to free exercise of religion is in the public interest where religion equates to rehabilitation (Mushlin, Rights of Prisoners 3rd , Vol.1, p. 674) as this is the very premise under which penitentiaries were first established in the United States, and where the financial burden to the tax payer is de minimus compared to the overall corrections budget. S. Plaintiff asserts a substantial likelihood of success in light
of the enactment of 42 usc 2000cc (2000) and rulings in
Beerheide v. Zavaras, 997 F.Supp 1405 (D.Colo 1998); Beerheide

Case 5:03-cv-00099-W Document 35 Filed 10/20/03 Page 10 of 15
v. Zavaras, 82 F.Supp 1190 (2000) as upheld by Beerheide v. Suthers, 286 F.3d 1179 (10 th 2002). 6. Plaintiff asserts that he is entitled to immediate relief in that Defendant and the Oklahoma Department of Corrections has
been aware of Beerheide and 42 USC 2000cc (2000) for at least
two years and has had this time to prepare and comply with these standards (See also CIV-03-1~5-A, Exhibit ftG".) WHEREFORE, premises considered, Plaintiff Cottriel prays this Honorable Court grant him Preliminary Injunctive Relief by Ordering the Defendant and the Oklahoma Department of Corrections to begin providing the Plaintiff with kosher meals, immediately, along with any other and further relief the Court deems fit and proper.
Respectfully Submitted,
n A. Cottriel HCC G-2-250 Rt. 1, Box 548 Lexington, OK 73051-0548

Case 5:03-cv-00099-W Document 35 Filed 10/20/03 Page 11 of 15

AFFIDAVIT

STATE OF WASHINGTON

)

COUNTY OF -r~r1I'Jtrw'

)

ss

)

I, mnRL.eoe lv.

, being of lawful age,

having been duly sworn upon my oath, hereby depose and state:

I am the mother of Jon Andrew Cottriel

___MY llloth~r 's name was_ L~~la M. Gadd

My mother was a Jewess

- - - - - - --~------ ---------~--------

-
Notay Public State of Washington
BRYON L. DAHL My Appointment Expires MaV 2, 2007

Signature of Affiant
825 Gregory Way S.E.
Olympia, Wa. 98503

The above Affidavit was sworn to and subscribed before me
~~::RY ~ile ~kr , 2003

2ClJ7 , / '

r

My Commision Expires: Illcer. 2.

Case 5:03-cv-00099-W Document 35 Filed 10/20/03 Page 12 of 15
AFFIDAVIT
STATE OF OKLAHOMA ) ) ss
COUNTY OF CLEVELAND )
I, Jon Andrew Cottriel, being of lawful age, and having
been duly sworn upon my oath, hereby derose and state that:
Both of my grandmothers were Jewish and they both married Christians. I was raised as a Christian. I was brought up with the understanding that there are only two ways to view the Bible: either it is the Word of G-d and it is 100% true, or it is not. I decided to figure out which it was. After much in depth study I found portions of the New Testament which I could not resolve due to it being in direct conflict with my understanding of the rest of the Bible. Consequently in the early 1990's I had to rethink my view of religion. This eventually drew me towards Judaism. Since then I have found that the closer I follow Judaism the less complicated my life becomes. With each Mitzvah (Biblical Command, Ordinance or Decree) that I internalize I feel that I build another connection to my Creator, and what my Creator expects of me as his creation. Keeping kosher is one of the ways I internalize these Mitzvos.
I started consciously following the laws of kashrus (Jewish Dietary Law) to the best of my knowledge and ability in the mid to late 1990's because I have come to truly believe that since the food and beverages that I consume becomes blood, tissue and energy, food that is not kosher can only defile me mentally, physically and spiritually, and alienate me from Yiddishkeit (Judaism) and, subsequently, separate me from G-d. Only kosher food can nourish me mentally, physically and spiritually in a manner that will not defile me.
The day after I arrived at Joseph Harp Correctional Center (JHCC), I received a change of diet form (JHCC-070202-03 attachment) from inmate John Mosier. I filled it out as "Non-pork (Common Fare) ." I gave this form back to Inmate Mosier who promptly turned it in to the chapel. It was approved by Chaplain Grant and sent to the food service manager, Byron Brown. It was then given to the kitchen clerk, who updated the common fare diet list. Although no DOC staff member ever questioned my religious sincerity, I was questioned about my lineage by inmate Russell Calhoun #105073, who, at that time, was the leader of the "Common Fare Community."
I continually had difficulties with various members of the common fare community over combining meat and dairy in the same meal and/or in the same pot, which is strictly prohibited by kashrus. In order to avoid defiling my meals (and my soul) in this manner, I filled out another change of diet form requesting "Vegetarian (Common Fare)" diet. This was approved via the same ways and means as the previous diet request.
I applied for a job in the kitchen as "Common Fare Cook", in
Page 1 of 3

Case 5:03-cv-00099-W Document 35 Filed 10/20/03 Page 13 of 15
June of 2001. After being briefed on procedure (which to my disappointment was, in many instances, contrary to the Shulchan Aruck (Jewish Code of Law) by inmate Calhoun, and passing a medical examination ... I was given the position of "Common Fare Cook".
My job was to prepare lunch and dinner 5-6 days per week (the other meals were prepared by other members of the "Common Fare Community"). As much as possible the individual products of each meal were supposed to resemble the "Main Line's" menu. To prepare our meals we had our own cups, cutting boards, glasses, mixer, pans, pots, plates, spice cupboard, stand-up "Hot Boxes", table, thermometer, and utensils. We used a stove, tilt-skillet, and vat that were supposed to be allocated to "Common Fare", "Diet Line", and "Non-Pork" only. I washed, salted, drained, washed, and cooked our meats (in spite of the meat not actually being "kosher" to begin with). I washed, prepped and cooked our raw vegetables or used canned items (reallocating any excess to the "Non-Pork" line or the "Main" line if they weren't serving Pork for that meal). I made and baked our own bread and pastries (unless they were already made by a member of the community) .
The Common Fare diet was available at JHCC from Thanksgiving of 1997 until it was closed down on April 28, 2002.
When they closed down Common Fare, in addition to my new job, I continued to work in the kitchen as a "Volunteer" in order to be able to eat one meal per day. When the kitchen ceased to allow volunteers to work in the kitchen, I could no longer eat food in the kitchen because I could no longer be certain about whether the food was Treifa (inedible) according to the laws of Kashrus (Jewish dietary laws). It has now been over a year since I have eaten in the kitchen (although occasionally someone brings me an apple, banana or an orange) .
During the weekdays: In the morning I thank the living and Eternal King for restoring my soul to me. I put on my Yarmulke and perform my morning ablutions, then as recite the appropriate prayers as I wash my hands, don My Tzitzis and Tefillin (Phylacteries), etc. Last month (the Jewish month of Elul) I blew my rams horn after my morning prayers in hopes of awakening any Jews that are in a spiritual slumber to awake and realize that it was nearly time for Rosh Hashana. Then I go to work. When the time is appropriate I prepare my lunch which generally consists of noodles and vegetable soup. When it is time to eat I pronounce the appropriate blessings. After the meal if there are any Jews that have sat at my table I lead the "Grace after Meal". After work on Mondays I attend "Incarcerated Veterans of America" meetings. After work on Tuesdays I go to the "Jewish" locker in the chapel, I sign the log stating what items I am removing or returning from the "Jewish" locker (the only people authorized in this locker are inmate Fulbright #186054, and myself) and get out audio and/or video tapes, books, Dreidles, Menorah, candlestick holders, etc., for the class I teach on Yiddishkeit (Judaism). During the class we read from the Tanach discuss Ethics of the Fathers, discuss Tanya, discuss various Halacha (Jewish laws), etc. After class I return the materials to the "Jewish" locker. In the evenings I prepare
Page 2 of 3

Case 5:03-cv-00099-W Document 35 Filed 10/20/03 Page 14 of 15
dinner which is often similar to lunch except that I will add cheese or egg, or fish, or peanut butter and crackers. When it is time to eat I pronounce the appropriate blessings. After the meal if there are any Jews that have sat at my table I lead the Grace after Meal. After dinner I read from the Torah, psalms, and Tanya; then I say my bedtime Sh'ma and go to sleep.
On the weekend: On Fridays I go to a conference room where we conduct services and read the same weekly portion of the Torah as Jews through-out the world. Then I pronounce a blessing and we have a small meal (usually consisting of crackers and grape drink). After the meal I lead Grace after Meal, then we go back to our respective units. On Saturday morning I have the same basic routine as other mornings except that I don a Tallis (Large Prayer Shawl) but I do not don my Tefillin. Then I go to the conference room where we have a small meal that usually consists of bread and grape drink. After the meal I lead Grace after Meal, then we study Midrash for the weekly portion. We meet again in the afternoon to have a pot luck meal consisting of bread, grape drink, pasta, beans, fish, and vegetables when we can afford them. After the meal I lead Grace after Meal. Then we read Ethics of the Fathers and Week in Review, a study guide from The Aleph Institute. In the evening we meet again in a conference room, read from the prophets or writings (Bible) then we conduct a Conclusion of the Shabbas service, then we have a small meal that usually consists of bread and grape drink. I lead Grace after Meal. Then we go back to our respective units.
As the current Chazan (Leader/Reader) of the "Orthodox Jewish Community", I have submitted many change of diet forms to the Chaplain on behalf of various members of the Orthodox Jewish Community and, to date, no one has ever been refused. In response to the September 11, 2001 events, Chaplain Ron Grant requested that I, "as a representative of the Jewish Community," speak publicly to the population of JHCC. Chaplain Grant has also come to me for elucidation of various Halacha (explanation of Jewish Laws) such as shaatnez (the prohibition against wearing garments that are made of the mixture of both wool and linen). When the new Ops concerning religion were brought into effect, Chaplain Grant invited the leaders of the various religions at JHCC to his office to have the new Ops and their ramifications explained. I was invited to represent the Jewish Community.

The above Affidavit was sworn to and
4,
subscribed before me this 8 ~ day of
_!(2,-,t-",};;j~..<..::;;U&:>.~:;.· _, 2003.
Notary Public jandt6 fJ~
My Commission Expires: ____7L--~~~7~-~t1~_~____
Page 3 of 4

Rt.l, Box 548 Lexington, OK 73051

I:o:'!\i'i~~Q)·.;S"I'.Ei.?..'A.~.A!L~?.').,.../\';

SANDRA DORRIS Cleveland County
Notary Public In and for State of Oklahoma

: C__o_m__m_i_s_s_i_o_n_#__9_9_0_1_0_1_1_9__E__x_p_lr_••••7~1~2~7=1=0M"l

Case 5:03-cv-00099-W Document 35 Filed 10/20/03 Page 15 of 15

CERTIFICATE OF MAILING·

r r On this day of OCrOSe1{

. 20)1£, a true and correct copy of the foregoing

attached document(instru.rnent), specifically, _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

Motion for preliminary Injunction

was mailed, postage prepaid, by placing the above document (instrument) with the Joseph Harp Correctional Center's, Box 548, Lexington, Oklahoma. 73051-0548, Mail room personnel to be mailed to the below listed individuals;
sr~FA)../ 1<, DOtJ{H1Y
Attorney fQr the Defendant
4~4$ Hdt,H L.,1J./CI1W /lLll/);; 5U/7g ;2'0
t>KLAJllI\tfA CJ1~ OJ:' 7:1/05 -3,/9 F

 
 Case 5:03-cv-00099-W Document 112 Filed 09/08/05 Page 1 of 31

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

DENNIS EARL FULBRIGHT, et al., )

)

Plaintiffs,

)

)

)

v.

)

)

EDWARD L. EVANS,1

)

)

Defendant.

)

CIV-03-99-W consolidated with CIV-03-125-W consolidated with CIV-03-1465-W

THIRD SUPPLEMENTAL REPORT AND RECOMMENDATION
Plaintiffs Fulbright, Cottriel, and Harm on are state prisone rs appearing with court-
appointed counsel in this civil rights action brought pursua nt to 42 U.S.C. §19832 seeking
prospective injunctive relief for the alleged deprivation of their First Am endment right to
freely exercise their Orthodox Jewish religion as a result of the Defendant’s refusal to
1Edward L. Evans has been appointed as the Acting Director of the Oklahoma Department of Corrections upon the retirement of former Director RonWard. Therefore, pursuant to Rule 25(d)(1) of the Federal Rules of Civi l Procedure, Edward L. Evans is substituted for former Director Ron Ward as the Defendant in this suit being brought against the Director in his official capacity.
2A separate cause of action filed by a nother prisoner, Billy Edward Jones v. Ron Ward, Case No. CIV-03-98-W, was originally consolidated in this Court with the causes of action filed by Plaintiffs Fulbright and Cottriel. However, because Jones was released from prison after filing his action, his cause of action seeking prospective injunctive relief was deemed moot and dismissed.
1

Case 5:03-cv-00099-W Document 112 Filed 09/08/05 Page 2 of 31
provide a kosher diet. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. §636(b)(1)(B). I. Background
In Plaintiffs’ Complaints, which have been consolidated in this Court, Plaintiffs seek a perm anent injunction directing the Oklahom a Departm ent of Corrections (“DOC”) to provide them with a nutritionally-adequate kosher diet. 3 Following the filing of their Complaints, Plaintiffs moved for a preliminary injunction to require Defendant to provide them a kosher diet. Counsel was appointed to represent the Plaintiffs, and an evidentia ry hearing was conducted on the motion before the undersigned. In the Second Supplemental Report and Recommendation previously entered herein, the undersigned made findings of fact concerning the evidence presented at the prelim inary injunction hearing, which are adopted by reference herein, and recom mended that Plaintiffs’ request for a prelim inary injunction be granted. By Order entered January 21, 2005, United States District Judge West found that Plaintiffs had shown a substantial likelihood of success on theemrits of their First Amendment claim, tha t the loss of a First Am endment freedom clearly constitutes irreparable harm and that to the Plaintiffs such loss is actual and not theoretical, that the threatened injury resulting from the denial of Plaintiffs’ ability to engage in constitutionally protected activity outweighs the harm to the DOC if the preliminary injunction issued, and that such an injunction would not be adverse to the public’s interest in ensuring tha t free
3There is no dispute that Plaintiffs exhausted their adm inistrative remedies prior to filing their causes of action.
2

Case 5:03-cv-00099-W Document 112 Filed 09/08/05 Page 3 of 31
religious expression is not curtailed. Based on these findings, Judge West adopted the Second Supplemental Report and Recommendation, granted the Plaintiffs’ Motion for Preliminary Injunction, and ordered the Defendant to provide the three Plaintiffs a kosher diet at no cost to them until furthe r order of the Court. Judge West also re-referred the m atter to the undersigned consistent with 28 U.S.C. §636(b)(1)(B) for further proceedings.
Now before the undersigned for consideration are the cross-m otions for sum mary judgment filed by Plaintiffs and Defendant. Each party seeks sumary judgment under Fed. R. Civ. P. 56 with respect to Plaintiffs’ claimof a First Amendment free exercise deprivation. Both parties have responded to the opposing parties’ summary judgment motions, and both parties have filed reply briefs. Thus, the motions are at issue. II. Standard of Review
Summary judgment may be gra nted only where the pleadings and any supporting documentary materials “show that there is no genuine issue as to any material fact and that the moving party is entitled to judgm ent as a matter of law.” Fe d. R. Civ. P. 56(c). In considering a motion for summary judgment, the Court reviews the evidence and inferences drawn from the record in the light most favorable to the nonmoving party. Kaul v. Stephan, 83 F.2d 1208, 1212 (10th Cir. 1996); Calhoun v. Gaines , 982 F.2d 1470, 1472 (10th Cir. 1992); Manders v. State of Oklahom a, 875 F.2d 263, 264 (10th Cir. 1989). A dispute is “genuine” if a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). “ Material facts” are “facts which m ight affect the outcome of the suit under the governing law.” I.dAdditionally, if the moving party
3

Case 5:03-cv-00099-W Document 112 Filed 09/08/05 Page 4 of 31
demonstrates an absence of evidence regarding an issue on which the nonmoving party will bear the burden of proof at trial, the nonmoving party can defeat summary judgment only by designating with evidence outside of the pleadings “specific facts showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). III. Legal Issues
In their Motion for Summary Judgment, Plaintiffs contend that Defendant’s policy of not providing a kosher diet to Plaintiffs violates their right under the First Am endment to freely exercise their Orthodox Jewish faith. In Defendant’s Motion for Sumary Judgment, Defendant contends that he is entitled to sum mary judgm ent because (1) litigation of Plaintiffs’ First Amendment free exercise claim is precluded by prior decisions rendered in the District Court of Osage County and the United States District Court for the Northern District of Oklahoma, (2) Plaintiffs have alleged only mental or emotional injury and have not shown physical injury as required by 42 U.S.C. §1997e(e), (3) providing Plaintiffs with a kosher diet would violate the First Am endment’s Establishm ent Clause, and (4) the increased costs of providing kosher diets and institutional se curity and adm inistrative concerns are legitimate penological objectives which are reasonably related to Defendant’s policy of not providing kosher diets and therefore no F irst Am endment deprivation has occurred as a result of Defendant’s policy. IV. Uncontroverted Facts
In Plaintiffs’ Motion for Summary Judgment (“Plaintiffs’ Motion”), Plaintiffs submit a S tatement of Material and Uncontroverted F acts (“P laintiffs’ S tatement”). P laintiffs’
4

Case 5:03-cv-00099-W Document 112 Filed 09/08/05 Page 5 of 31
Motion, at 2-5. Defendant has also submitted a Statement of Uncontroverted, Material Facts
in his Motion for Sum mary Judgm ent (“Defendant’s Statem ent”). In his response to
Plaintiffs’ Motion, Defendant disputes only one of the facts asserted in Plaintiffs’ Stateemnt.
Thus, all of the facts presented in Plaintiffs’ Statement except for the paragraph numbered
six are uncontroverted for purposes of resolving the cross-motions for summary judgment.
However, not all of the uncontroverted facts contained in Plaintiffs’ Statem ent are
material for purposes of the resolution of the cross-m otions for sum mary judgm ent.
Likewise, not all of the uncontroverted facts contained in Defendant’s Stateemnt are material
for purposes of resolving the cross-m otions for sum mary judgm ent. Othe r than a one-
sentence argument contained in Defendant’s Statement, Defendant has not challenged the sincerity of the three Plaintiffs’ beliefs in Orthodox Judaism .4 Defe ndant’s one-sentence
statement does not present any legal authority for his assertion of insincerity. As such, the
one-sentence argument does not adequately raise an issue before this Court concerning the
sincerity of Plaintiff Cottriel’s religious beliefs. See Utahns for Better Transp. v. United
4In Defendant’s Statement, Defendant states “Plaintiff Cottriel, during the time he had requested kosher food from Ward, purchased clearly non-kosher items, such as pork rinds and Vienna sausages, from the prison canteen, seriously calling into question the sincerity of his requests and his attempts to keep kosher.” The only factual support for the statement provided by Defendant is a report of canteeunsage by Cottriel covering approximately a onemonth period in March-April 2003. In response to this statement, Plaintiffs provide copies of receipts for Plaintiff Cottriel’s canteen purchases for the same time period. Plaintiffs also provide documentary evidence in the form of deposition testimony of an official at Davis Correctional Facility where Cottriel is now in cusotdy in which the official states that Cottriel has purchased only kosher item s from the pr ison’s canteen except for soda, which is considered kosher only in some states. Plaintiff’s Response, Ex. 4, at 31.
5

Case 5:03-cv-00099-W Document 112 Filed 09/08/05 Page 6 of 31
States Dep’t of Transp., 305 F.3d 1152, 1175 (10th Cir. 2002)(issues not adequately briefed are deemed waived; including an issue within a list is not adequate briefing), m odified on rehearing, 319 F.3d 1207 (10 th Cir. 2003). Moreover, the record contains m ore than sufficient evidence to support the finding that Plaintiff Cottriel has a sincere belief in his Orthodox Judaism faith, even though he may have strayed on occasion from following the strict requirements normally associated with a kosher diet. The undersigned previously found in the Second Supplem ental Report and Recom mendation that Plaintiffs’ religious beliefs are sincerely held in accordance with Orthodox Judaism, and Defendant has provided insufficient evidence to overcom e this factual finding. Therefore, the relevant facts for purposes of resolving the cross-motions encompass only the issue of reasonableness of the penological objectives submitted by Defendant to support DOC’s policy of not providing a kosher diet. These material facts are as follows: 1. In order to keep kosher in accordance withJewish law, meat and dairy cannot be cooked at the same time. Cooking utensils and equipm ent used for m eat also cannot be use d for dairy or other non-kosher foods. Kosher food cannot coeminto contact with non-kosher food during the cooking process. Only certain types of animals and certain animal parts can be eaten according to Jewish dietary law. Only fish with scales and fins and animals that chew their cud and have cloven hooves may be eaten. Also, all meat products must be slaughtered in accordance with Jewish law to qualify as kosher.
6

Case 5:03-cv-00099-W Document 112 Filed 09/08/05 Page 7 of 31
2. Kosher has spiritual meaning to an Orthodox Jew and not keeping kosher will weaken an Orthodox Jew’s relationship with God. Also, an individual who is in the process of converting to Orthodox Judaism will want to follow strict Jewish dietary law. 3. No special storage space is needed as long as the kosher food stays in its original packaging. 4. Defendant, through DOC policy, provides inmates with a regular diet, a non-pork diet, a vegetarian diet, or a specialized medical diet.5 A non-pork diet is related to the Muslimfaith. DOC’s provision of a non-pork diet to inmates has not resulted in a severe security problem. 5. The available die ts provided to inm ates do not m eet the strict requirem ents for food preparation, consumption, or storage of kosher food. 6. Defendant, through DOC policy, allows inm ates to practice Orthodox Judaism by attending services, participating in Jewish holidays, and possessing articles of importance to the Orthodox Jewish faith. 7. Currently there are only 52 inmates in the DOC who claimed to be Jewish upon entering the DOC system.
5In Plaintiffs’ Statem ent, Plaintiffs state that “[i] n at least the Eastern District of Oklahoma De fendant provides inm ates with either a regular diet or a non-pork diet.” However, in Defendant’s Statement, Defendant states that DOC, through its written policy, provides inmates with a regular diet, a non-pork diet, a vegetarian diet, and special medical diets. This statement is supported by testimony at the evidentiary hearing showing that DOC provides more food options than that contained in Plaintiffs’ Statement. Thus, the factual statement contained in Defendant’s Statement, rather than the incomplete statement of fact contained in Plaintiffs’ Statement, is deemed the uncontroverted, material fact relevant to the resolution of the cross-motions for summary judgment.
7

Case 5:03-cv-00099-W Document 112 Filed 09/08/05 Page 8 of 31
8. DOC inm ates receiving special diets are m onitored. If prison staff observe an inm ate eating in the wrong line, the inm ate can be verbally reprim anded or charged with a misconduct for not complying with a special diet. 9. Keeping kosher and the observance of kosher dietary laws are strictly tied to the Jewish faith and would benefit only Jewish inmate believers. 10. Rabbi Goldman testified at the evidentiary hearing that, in his opinion, it could cost as much as $8.00, with a “low end” of $4.50, per meal to purchase pre-packaged, frozen kosher meals. Bobby Boone, the DOC’s Eastern Region director, testified at the evidentiary hearing that feeding the frozen kosher dinner would be the “cheapest” way to feed kosher meals to inmates and estimated it would cost approximately $5.00 per meal to feed such kosher meals to the inmates. 11. The State of Oklahoma presently feeds the average inmate in the DOC system at a cost of approximately $2.50 per day, which includes three meals per inmate. That is presently the figure used by DOC facilities to prepare budgets for food costs for inmates. 12. At the present time, the DOC is feeding kosher, pre-packaged, frozen dinners to the three Plaintiffs, in compliance with the preliminary injunction. The meals are purchased through Sysco, a vendor from whom the DOC purchases other food items. 13. Defendant has legitimate concerns about institutional security related to food, namely the perception of special or favorable treatm ent to one inm ate group a nd the reality of fighting and riots related to food issues.
8

Case 5:03-cv-00099-W Document 112 Filed 09/08/05 Page 9 of 31
14. In another case pending before the United States District Court for the Western District of Oklahom a, Case No. CIV-03-1404-W, and styled Madyn Abdulhase eb a /k/a/ Jerry Thomas v. S. Beasley, et al., another DOC inmate has sued, at least in part, over the denial of his request for a halal diet which strictly adheres to Islamic law. V. Res Judicata/Collateral Estoppel
Defendant contends that Plaintiff’s cause of action is barred by the doctrine of res judicata and/or collateral estoppel. Defendant states that in 1988 a district court in Oklahaom rejected the claim of a state prisoner that he was constitutionally entitled to a kosher diet consistent with his Jewish religion. Defendant identifies this case as Middaugh v. Chpaimon, Case No. C-88-206. Defendant contends that in a subsequent cause of action filed in the United States District Court for the Northern District of Oklahom a, whic h De fendant identifies as Mosier v. Oklahom a Dep’t of Corrections , Case No. 88-C-357-C, the court entered a judgment nunc pro tunc in 1991 in favor of the defendants on the grounds of res judicata and/or colla teral estoppel in reliance upon the prior state district court opinion. Defendant has not provided the Court with the unpublished decisions in these cases. Thus, Defendant provides no evidentiary support for his assertion that the same first amendment issue raised herein was litigated in those 1988 and 1991 decisions.
Defendant raised this same “issue preclusion” defense in a Motion to Dism iss filed in these consolidated cases on May 16, 2003 (Doc. #8). In a Report and Recommendation entered July 17, 2003, the undersigned recommended that Defendant’s Motion to Dismiss be denied. Defendant did not file an objection to the Report and Recommendation despite
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the advice therein concerning the parties’ right to object and the consequences of a failure to object. The Report and Recommendation was adopted by the Court in an Order entered August 11, 2003. Jones v. Ward, Case No. CIV-03-98-A (Order, Alley, D. J.)(Doc. # 16). The Court’s adoption of the previous Report and Recomendation prevents Defendant from raising the same issue under the law-of-the-case preclusion rule. However, even if the lawof-the-case preclusion rule is not applicable, the undersigned again re jects the “issue preclusion” defense raised by Defendant in his Motion for Summary Judgment.
Under well-established principles of collateral estoppel, “once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of acti on involving a party to th e first case.” Allen v. McCurry, 449 U.S. 90, 94 (1980). “The doctrines of collate ral estoppel and res judicata, however, apply only in cases where controlling factsand law remain unchanged.” Spradling v. City of Tulsa , 198 F.3d 1219, 1223 (10 th Cir. 2000). “Consequently, res judicata and collateral estoppel are inapplicable where, between the first and second suits, an intervening change in the law or modification of significant facts create new legal conditions.” Id. See Oklahoma City Airport Trust v. Huggins , 105 P.3d 344, 346 (Okla. Civ. App. 2004)(“A judgment should be denied a conclusive effect to future actions if there has been a change in the law. This applies to all types of changes in the law, including acts of the Legislature, judicial decisions and changes in regulations. Generally, res judicata is no defe nse where between the time of the first judgment and the second action there has been an intervening change in the law creating a n a ltered situation.”). In response to Defendant’s Motion,
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Plaintiffs contend that the Tenth Circuit Court of Appeals’ decision in Beerheide v. Suther,s 286 F.3d 1179 (10th Cir. 2002), represents new and controlling precedent and therefore the doctrines of res judicata and collateral estoppel do not apply. As the undersigned found in the previous Report and Recommendation, the decision in Beerheide as well as consistent decisions in other circuits, e.g., Johnson v. Horn, 150 F.3d 276 (3rd Cir. 1998); Ashelman v. Wawrzaszek, 111 F.3d 674 (9th Cir. 1997), recognizing Orthodox Jewish inmates’ right to receive a kosher diet “reflect a change in the law in this contr oversial area of prison litigation, a nd the application of res judicata and/or collateral estoppel under these circumstances is not appropriate.” Report and Recommendation, at 6. There are no material issues of fact for trial concerning this issue, and Defendant’s Motion for Summary Judgment seeking summary judgment in his favor on the basis of res judicata and/or collateral estoppel should be denied. VI. 42 U.S.C. §1997e(e)
Defendant alternatively contends that he is entitled to sum mary judgment because Plaintiffs have failed to demonstrate facts showing they have suffered any physical injury as required by 42 U.S.C. §1997e(e). Defendant misconstrues this statutory lim itation on recovery by prisoners in 42 U.S.C. §1983 actions. Title 42 U.S.C. §1997e(e) provides that:
No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional fac ility, for m ental or emotional injury suffe red while in custody without a prior showing of physical injury.
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The Tenth Circuit Court of Appeals has construed this statutory limitation as a bar to compensatory damages for mental and emotional injuries in the absence of physical injury. Searles v. Van Bebber, 251 F.3d 869, 874-877 (10th Cir. 2001). Plaintiffs have not sought compensatory damages in this case and have requested only injunctive relief. Title 42 U.S.C. “§ 1997e(e) does not affect actions for declaratory and injunctive relief.” Perkins v. Kansas Dep’t of Corre ctions, 165 F.3d 803, 808 (10 th Cir. 1999). Accordingly, Defendant is not entitled to summary judgment on this basis, and Defendant’s Motion for Sumary Judgment based on 42 U.S.C. §1997e(e) should be denied. VII. Establishment Clause
Defendant alternatively seeks sum mary judgm ent on the ground that the relief Plaintiffs seek would violate the First Am endment’s Establishm ent Cla use. The First Amendment contains the provision: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” As the Suprem e Court recently explained in Cutter v. Wilkinson, U.S. , 125 S.Ct. 2113 (2005),
[t]he first of the two clauses, commonly called the Establishment Clause, com mands a separation of church and state. The second, the Free Exercise Clause, requires government respect for, and noninterference with, the religious beliefs and practices of our Nation’s people. While the two Clauses express complimentary values, they often exert conflicting pressures. Id., at 2120. Although Plaintiffs have not sought relief under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), it is necessary to review this federal legislation and the recent Supreme Court decision upholding the RLUIPA’s institutionalized-persons
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provision against an Establishment Clause challenge to better understand the Defendant’s Establishment Clause challenge made herein.
Congress enacted the RLUIPA in response to the Supreme Court’s holding in City of Boerne v. Flores, 521 U.S. 507 (1997), in which the Court declared the Religious Freedom Restoration Act unconstitutional. The RLUIPA contains the following provision in relation to inmates:
No governm ent shall im pose a substantial burden on the religious exercise of a person residing in or c onfined to an institution....even if the burden results from a rule of general applicability, unless the governm ent dem onstrates that imposition of the burden on that person - - (1) is in furtherance of a com pelling governm ental interest; and (2) is the least restrictive means of furthering that com pelling governmental interest. 42 U.S.C. § 2000cc-1(a). The Suprem e Court in Cutter rejected a facial challenge to the RLUIPA’s institutionalized-persons provisionon Establishment Clause grounds, finding that the provision does not “elevate accommodation of religious observances over an institution’s need to m aintain order and safety.” Id. , at 2122. Rather, the Court found that the institutionalized-persons provision of the RLUIPA “protects institutionalized persons who are unable freely to attend to the ir religious needs and are therefore dependent on the government’s permission and accommodation for exercise of their religion.” Id. Defendant admits that “courts have upheld various religious accommodations” by a governmental entity, but Defendant contends that the accomodation requested by Plaintiffs would provide a religious benefit that shows favoritism for one religion over others and
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would give religious prisoners “a position of perceived power to com mand preferential treatment that could well be the first step to gaining exemptions from whatever other prison regulations they wish.” Defendant’s Motion for Summary Judgment and Brief in Support, at 22.
The Supre me Court in Cutter rejected a sim ilar argum ent presented by the state corrections director in that case. The Court reasoned that
[w]hile some accommodations of religious observance, notably the opportunity to assem ble in worship services, m ight attract joiners seeking a break in thei r closely guarded day, we doubt that all accommodations would be perceived as “benefits.” For example, congressional hearings on RLUIPA revealed that one state corrections system served as its kosher diet “a fruit, a vegetable, a granola bar, and a liquid nutritional supplement - each and every meal.” Cutter, 125 S.Ct. at 2122 n. 10 (citation omitted). Defendant already provides a myriad of religious diet accommodations for State inmates, including a non-pork diet and a vegetarian diet, as well as other accom modations such as providing inmates with sack lunches to eat after special religious observances and excusingthe adherents of various religious faiths from working on religious holidays. Fulbright v. Evans , Case No. CIV-03-99, Specia l Report (Doc. #9) attachments, especially: DOC OP-070202, Modified Diet Request Forms, Affidavit of Larry Turner, Food Service Manager for Joseph Harp Correctional Center, and Addendum to Special Report (Doc. #12). Under these circumsta nces, Defendant’s assertion that providing a kosher diet somehow “crosses that line” concerning acceptable and unacceptable religious accommodations is not persuasive. As the Supreme Court recognized in the pre-
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eminent Establishment Clause de cision, Lemon v. Kurtzm an, 403 U.S. 602, 614 (1971), “total separation [between church and state] is not possible in an absolute sense. Som e relationship between government and religious organizations is inevitable.” There is no hard line separating church and state, rather, “the line of separation, far from being a ‘wall,’ is a blurred, indistinct, and variable barrier depending on all the circum stances of a particular relationship.” Id. In the prison context in which this case arises, the Plaintiffs have no freedom to exercise their religion in the manner in which a citizen outside the prison m ay choose to do so. Their right to practice thei r religion is wholly determ ined by prison authorities. Hence, the Defendant and the State of Oklahoma are necessarily entangled with the religious activities in which prisoners engage during their confinement.
Defendant posits that Plaintiffs wish to impose a “strict scrutiny” standard on Defendant’s discretionary decision concerning religious diets. This is exactly the standard that the RLUIPA applies to institutional decisions affecting inm ates’ religious rights. 6 Although Plaintiffs have not raised a claim under RLUIPA, by adopting the RLUIPA Congress clearly expressed its desire to protect the free exercise rights of inmates, including Plaintiffs, by im posing a greater burden upon prison officials to show a com pelling governmental interest with respect to institutional policies which interfere with inm ates’ religious exercise rights. Far from being the “dramatic enhancement of religious inmates’
6The RLUIPA expansively defines “religious exercise” as “any exercise of religion, whether or not compelled by, or central to, a systemof religious belief.” 42 U.S.C. §2000cc5(7)(A).
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rights” posited by Defendant, the provision of kosher emals to Orthodox Jewish inmates does not significantly differ from the various religious dietary accommodations already provided in the Oklahoma prison system for adherents of the Muslim , Buddhist, Hare Krishna, and Seventh-Day Adventist religious faiths. So long as Defendant provides religious diet accommodations for other religions, the fact that Defendant m ust provide adherents to the Jewish Orthodox religion with frozen kosher dinners served with disposable utensils, which is the m ethod chosen by Defendant to accom modate Plaintiffs under the prelim inary injunction, does not substantially entangle the prison in a particular religion. There is no material issue of fact for trial with respect to Defendant’s Establishment Clause claim, and Defendant is not entitled to summary judgment concerning this issue. VIII. Free Exercise Clause
Plaintiffs seek sum mary judgm ent concerning their Free Exerc ise claim , and Defendants also seek summary judgment concerning Plaintiffs’ Free Exercise claim. In the Second Supplemental Report and Recom mendation, the undersigned analyzed Plaintiffs’ Free Exercise claim under Turner v. Safley , 482 U.S. 78 (1978), in connection with the factors necessary to the preliminary injunction determination, and concluded that Plaintiffs had shown a substantial likelihood of success concerning their claim that DOC’s policy of not providing kosher diets to them violates their First Amendment right to freely exercise their Orthodox Jewish religion. The Court adopted the recommendation that a preliminary injunction should issue, and the preliminary injunction became effective on January 21, 2005,
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when the Court ordered Defendant to provide the Plaintiffs a kosher diet at no cost to them until further order of the Court.
In Defendant’s Motion for Sum mary Judgm ent, Defendant urges that DOC’s economic and institutional security concerns are legitimate penological reasons for refusing to provide the kosher diet requested by Plaintiffs. With respect to the issue of the expense of providing the kosher diet, Defendant asserts that the cost per inmate of providing a kosher diet in com parison with the average daily cost of feeding each inm ate a non-kosher diet would increase between 350 % and 840 %.7 Defendant asserts that such an increase in the average daily cost to feed a prisoner is “hardly de minimus” and represents a significant burden on DOC. Defendant’s Motion for Summary Judgment and Brief in Support, at 16. With respect to the issue of institutional security concerns, Defendant points to “a recent upswing in violence at DOC facilities,” a potential need to “reduce its force of employees” in order to pay for the increased costs of providing the religious diet requested by Plaintiffs, a “dem onstrated history of problem s directly related to food, including riots,” a nd the negative effects of inm ate “perceptions” of privilege associated with the provision of a religious-based diet.
7With respect to the Defendant’s assertion that the increased costs of providing kosher diets provide a legitimate penological reason for the current policy of not providing kosher diets, Defendant elected to provide pre-packaged, pre-prepared kosher m eals to inm ates following the entry of the prelim inary injunction. Thus, any e vidence concerning the construction and m aintenance of kosher kitchens is not m aterial to the resolution of the instant motions.
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As the undersigned found in the Second Supplemental Report and Recommendation, it is clearly-established law in this circuit that prisoners have a constitutional right to a diet conforming to their sincerely held religious beliefs, unless denying the diet is “reasonably related to legitimate penological interests.” Beerheide, 286 F.3d at 1184-1185. To resolve the cross-m otions for summa ry judgm ent, the Court m ust determ ine whether there are material, disputed facts concerning the issue of whether Defendant has unconstitutionally infringed upon Plaintiffs’ right to receive a kosher diet consistent with their Orthodox Jewish faith. The factors relevant to this determination include: “(1) whether a rational connection exists between the prison policy regulation and a legitimate governmental interest advanced as its justification; (2) whether alternative m eans of exercising the right are available notwithstanding the policy or regulation; (3) what effect accommodating the exercise of the right would have on guards, other prisoners, and prison resources generally; and (4) whether ready, easy-to-implement alternatives exist that would accommodate the prisoner’s rights.” Id. at 1185 (citing Turner, 482 U.S. at 89-91). See O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987)(requiring the a pplication of the Turner analysis to prisoner’s claim s of a deprivation of the First Amendment’s Free Exercise Clause due to an institutional policy).
“[T]he prison administration is required to make a minimal showing that a rational relationship exists between its policy and stated goals.” Beerheid,e286 F.3d at 1186. There is no doubt that m aintaining a fixed budget and institutional security are legitim ate penological goals. Id. (agreeing with district court that “prisoner adm inistrators have a legitimate interest in working within a fixed budget” and “a legitim ate concern that other
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inmates might react negatively to providing some prisoners with a kosher diet”). This factor therefore weighs in favor of Defendant.
The second Turner factor requires a de termination of whether Plaintiffs have alternative means of exercising the right to m aintain a kosher diet. The only alternatives offered by Defendant at the hearing on the preliminary injunction, through the testimony of Mr. Boone, a DOC Deputy Director, are the availability of the non-pork and vegetarian diets that are now served in Okla homa pr ison facilities and the opportunity given inm ates to purchase koshe r food from prison canteens. It is undisputed that the non-kosher m eals provided to inmates do not meet the strict requirements for food preparation, consumption, or storage of kosher food. In Beerheid,ethe Colorado Department of Corrections offered the same two food options of non-pork or vegetarian m eals for the plaintiffs who requested a kosher diet. Id. at 1186-1187. The Tenth Circuit Court of Appeals clearly stated that these options are “not an alternative at all” to thekosher diet because the options do not satisfy the kosher dietary laws, or kashruth, for Orthodox Jews. Ida. t 1187. Moreover, Rabbi Goldman testified at the preliminary injunction hearing that an individual who desires to convert to Orthodox Judaism would want to follow the strict kosher dietary laws of the faith and that observing the kosher dietary laws of Orthodox Judaismis considered an opportunity to have a closer relationship with God. Courts have recognized that “Orthodox Jews consider a kosher diet a religious law,” Ward v. Hatche,rNo. 97-16390, 1999 WL 109669 (9th Cir. Mar. 1, 1999)(unpublished op.), cert. denied, 527 U.S. 1009 (1999), and that Orthodox Jews attach
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“deep religious significance” to the kosher dietary laws. Kahane v. Carlson, 527 F.2d 492,

495 (2nd Cir. 1975).

The DOC’s second alternative requires inmates to pay for their kosher meals. This

alternative in effect punishes Plaintiffs on th e basis of their faith, a result that one court

termed “wholly repugnant to the free exercise of religion guaranteed by the

First

Amendment.” Thompson v. Vilsack , 328 F.Supp.2d 974, 978-979 (S.D. Iowa 2004). In

Beerheide, the Tenth Circuit Court of Appeals rejected the proposal of the Colorado

Department of Corrections that inmates be required to make a co-payment for a kosher diet,

finding that the co-pay systemwas not an alternative means of following Jewish dietary laws

because “[p]urchasing meals in the canteen is financially impossible for prisoners of limited

means” and because requiring prisoners to go into debt in order to eat does not further their

rehabilitation but forces them into a “ Hobson’s choice rather than a true alternative.”

Beerheide, 286 F.3d at 1187-1189.

It is also undisputed that Defendant, through DOC policy, allows inmates to practice

Orthodox Judaism by attending services, pa rticipating in Jewish holidays, and possessing

articles of importance to the Orthodox Jewish faith. In light of the holding in Beerheidethat

the inmates were entitled to a kosher diet and that the Colorado Department of Corrections

had not offered a viable alternative to observing “the essential tenet of Judaism of eating a

kosher diet,” the opportunities for religious expression offered by Defendant a re not

reasonable alternatives. Accordingly, this factor weighs in favor of the Plaintiffs.

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The third Turner factor requires the Court to determine what effect accommodating the exercise of the right would have on guards, other prisoners, and prison resources generally. The Supreme Court recognized in Turnerthat “few changes [in prisons]will have no ramifications on the liberty of others or on the use of the prison’s lim ited resources for preserving institutional order.” Turner, 482 U.S. at 90. There is no dispute that the cost of providing kosher meals to Orthodox Jewish inmates will be greater than the cost of the nonkosher meals available to the general inm ate population. Defendant asserts that the prepackaged frozen kosher m eals DOC chose to provide to Plaintiffs under the prelim inary injunction cost an average of $7.00 per m eal or $21.00 per day, representing an 840 % increase in the cost of feeding the Plaintiffs per day. Defendant’s evidence presented in connection with this factual assertion is the affdi avit of Greg Williams. In his affidavit, Mr. Williams, who is the Assistant Deputy Director of Operations Support for DOC, presented a list of the “current cost of the various frozen kosher entrees” selected by DOC to provide kosher food to Plaintiffs following the entry of the preliminary injunction. Defendant’s Motion, Ex. 3. Using the figures provided by Mr. Williams in his affidavit, the average cost of these seven different frozen dinners is $5.98. Mr. Williams estimates that supplemental items such as fruit, crackers, m ilk, coffee, m argarine, and salad necessary to provide a nutritionally-adequate diet range in price from76 cents to $1.09 per meal. Id. Mr. Williams also avers that he hired a licensed dietician to determine the nutritional quality of the kosher meals at a cost thus far of $960.00. Id.
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Defendant has chosen one method of accommodating Plaintiffs’ request for a kosher diet.8 This dietary option is undoubtedly m ore expensive tha n the non-kosher diets now provided by DOC. Plaintiff has presented evidence that less expensive frozen kosher meals are available on the m arket at a cost of approxim ately $2.89 per meal. Plaintiffs provide evidence that the less-expensive frozen meals are being used at Davis Correctional Facility to provide inmates with a kosher diet at thatprivate prison facility. Plaintiff’s Response, Ex. 7. Although Defendant disputes that DOC is capable of buying frozen kosher meals at this price because of its current food vendor contract, Defendant does not present evidence that DOC’s approved food vendors are unwilling or unable to purchase cheaper frozen kosher meals. It would not be rational for Defendant to merely allow its food vendors to purchase more expensive food if less expensive food is available from a nother source. Moreover, Defendant does not contend that the less-expensive frozen meals offered as an alternative by Plaintiffs would not be nutritionally adequate.
Despite the increased cost for prison systems associated with kosher diets, the Tenth Circuit Court of Appeals and other circuit courts have found under the Turneranalysis that the prison system must accommodate the kosher dietary laws of Orthodox Jewish inmates. Beerheide, 286 F.3d at 1191 (affirming district court’s finding that Colorado Department of Corrections has failed to show that either its budget or its guards or other inmates would be more than minimally impacted by providing kosher diets free-of-cost); Johnson, 150 F.3d at

8Neither party has presented evidence conce accommodating Plaintiffs’ request for a kosher diet.
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283( Third Circuit Court of Appeals holding that free exercise clause required prisons to provide inmates with a diet sufficient to sustain them in good health without violating the kosher laws); Ashelman, 111 F.3d at 678 (Ninth Circuit Court of Appeals holding prison must provide Orthodox Jewish inm ate with a diet sufficient to sustain him in good health without violating the laws of kashruth); Kahane v. Carlson , 527 F.2d 492 (2 nd Cir. 1975)(holding prison was required to provide a diet sufficient to sustain the prisoner in good health without violating the Jewish dietary laws but “without otherwise mandating specific items of diet”); Ward v. Hatcher , No. 97-16390, 1999 WL 109669 (9 th Cir. Mar. 1, 1999)(unpublished op.)(holding prison’s refusal to provide inmate with a kosher diet was not reasonably related to a legitimate penological interest and that “[r] easonable alternatives exist” which would allow the prison to accommodate the inmate’s Orthodox Jewish religious beliefs consistent with the prison’s correctional goals, including providing one frozen kosher dinner supplemented by other kosher items already on the prison menu), cert. denied, 527 U.S. 1009 (1999). See also Love v. McCown, No. 02-1155, 38 Fed. Appx. 2002 (8th Cir. 2002)(unpublished op.)(affirming entry of preliminary injunction requiring prison to provide inmate with kosher food items and weekly monetary deposits into his prison account to be used to buy kosher food fromthe commissary at cost in cause of action seeking provision of kosher diet under RLUIPA and First Amendment).
Defendant provides no inform ation concerning the num ber of inm ates who have requested the accommodation of a kosher diet in the interimsince the preliminary injunction issued. Plaintiffs have provided evidence that at one private prison operating in Oklahoma,
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the Davis Correctional Facility (“DCF”), an average of 10 to 14 inmates actually participate in the kosher diet line, and that the kosher diet provided at DCF has not enge ndered any complaints from inmates other than complaints from “chronic complainers who complained about everything.” Plaintiffs’ Response, Ex. 7 (Affidavit of Ala n Kerby). In a “revised affidavit,” Mr. Kerby, who identifies himself as a volunteer chaplain with Jewish Prisoner Services International and as the secretary of the Oklahom a Interfaith Council on Prison Ministry, avers that the kosher diet implemented at DCF has not had a significant negative impact on the prison’s budget, guards, or other inm ates, and that he has provided DOC officials with information concerning the less-expensive, pre-packaged kosher meals served at DCF. Fulbright v. Ward, Case No. CIV-03-99-W (Doc. #93).
Defendant has not provided any evidence as to the overall effect of the kosher dietary option upon DOC’s budget, relying instead on the estimated increase in the cost per inmate of providing a kosher diet. However, Plaitniffs have submitted evidence showing that DOC’s food budget for the current year is over 31 million dollars. Plaintiffs’ Response, Exs. 6, 9. Courts have recognized that only a small number of inmates partake of a kosher diet and thus the expense associated with providing a kosher diet represents only ade minimis portion of the correctional budget. See Beerheide v. Suthers, 82 F.Supp.2d 1190, 1199-1200 (D. Colo. 2000)(finding that “relatively few inmates, fourteen, ha[d] sought to keep kosher” following entry of preliminary injunction, that Colorado Department of Corrections’ estimated annual cost of providing kosher food was only 0.158 percent of the agency’s food service budget, and therefore providing kosher m eals had a de minimis effect on a gency’s food service
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budget); Luckett v. Lewis, 883 F. Supp. 471, 480 (D. Ariz. 1995)(“Only a few prisoners have legitimate religious beliefs which require they m aintain a Kosher diet, and the expense of providing Kosher meals to these few prisoners is minimal.”). Under these circumstances, DOC has not shown that the minimal cost associated with providing kosher diets to the small number of Orthodox Jewish inm ates who would pote ntially request a kosher diet would create a significant financial burden on DOC’s annual food budget.
With respect to the administrative difficulties associated with providing a kosher diet, the federal Bureau of Prisons provides kosher diets for federal inmates who request one and who “articulat[e] the religious motivation” for their request. 28 C.F.R. §548.20(a). In the Special Report prepared by DOC, the food service m anager at Joseph Ha rp Correctional Center avers in an affidavit that the f acility prepares 3,300 meals daily for 1,100 inm ates, including 330 non-pork meals and 360 special “healthy heart” diets. Special Report (Doc. #9), Affidavit of Larry Turner. The official st ates that com pliance with a die t request is monitored by staff in the following manner:
Inmates are required to scan their identification badges through a scanner to record they have gone through the line. Staff is able to determ ine if an inm ate receives m ore than one try without perm ission or if he eats in the wrong line by the information provided through the scanning system. If an inmate on the ‘Special Diet List’ fails to eat in the special diet line and chooses to eat on the regular line, unit staff is notified. It is then the unit staff’s responsibility as to either handle form ally through a ‘Disobedienc e to Orders’ m isconduct or to handle informally with a verbal reprimand.
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Id. In addition to this daily monitoring procedure, DOC has established a policy requiring

that an inmate who desires to change his or her food selection based on the requirements of

religious faith m ust submit a written notice of the particular faith requiring the m eal. Id.,

DOC OP-030112(VII)(A), “Religious Programs.” In a recent addendumto this policy, DOC

now provides that “[a]ll tenets of an inmate’s faith practice that require accommodations by

the departm ent m ust be supported and verified by the faith’s recognized sa cred te xt,

historically e stablished proc edures and outside religious authorities.”

<www.doc.state.ok.us/offtech/op030112.htm>. The addendumto the policy also estbalishes

a review procedure for religious accommodation requests that are denied by the facility head

or the facility chaplain. Id. DOC has established a clearly-defined and adequate monitoring

program for determining the religious sincerity of its inmates and for monitoring the meals

of inm ates who have requested religious-based diets. DOC has not shown tha

t

accommodating Plaintiffs’ religious dietary request would have substantial negative

consequences in terms of financial burdens or administrative problems.

Defendant contends that providing a kosher diet would result in significant security

concerns. The only evidence pr esented by Defendant in support of this assertion is a

memorandum authored by a DOC official who described a physical assault upon Plaintiff

Cottriel by another inmate on July 10, 2004. According to the memorandum, the inmate who

assaulted Plaintiff Cottriel stated that he went to Cottriel’s cell and walke d in to ask him a

question, inmate Cottriel threatened to kill the inmate if he didn’t leave, and the inmate left

and t hen d ecided t o ret urn t o C ottriel’s cel l an d as sault him because o f t he t hreatening

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statement made earlier by Cottriel. Defendant’s Motion, Ex. 4; Plaintiff’s Response, Ex.8. The assault upon Cottriel was not related to Cottriel’s status in this cause of action or his status as an Orthodox Jew. Rather, the Defendant’s evidentiary material shows that Plaintiff Cottriel was assaulted because of a threat he made upon the life of another inm ate. Defendant provides no evidentiary ma terials supporting the conclusory assertion that the provision of a kosher diet will engender jealousy and violence am ong inm ates and a concomitant negative effect on prison guards. Courts have recognized that a disruptive effect “is present in every case that requires special accom modations for adherents to particular religious practices.” Ward v. Walsh , 1 F.3d 873, 878 (9 th Cir. 1993). Defendant already provides religiously-motivated diets to accommodate inmates of other religious faiths, and Defendant does not present any evidence showing a negative effect on other inm ates or guards as a result of these accommodations.
Defendant has presented evidence that one imn ate has filed a civil rights action in this Court requesting a special diet for religious reasons that is not now accom modated by Defendant. See undisputed fa ct num ber 14. This one cause of action, which is in its preliminary stages in this Court, does not provide persuasive evidence that accommodating Plaintiffs’ request for a kosher diet will lead toa multitude of frivolous religious diet requests or litigation. Even accepting Defendant’s contention that other prisoners who are not provided a kosher diet might conclude Plaintiffs are receiving favorable attention, prompting feelings of jealousy, “this effect is always present when special accommodations are made for religious beliefs.” Ashelman, 111 F.3d at 677. Defendant speculates that other kosher-
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related litigation will f ollow if DOC is required to provide kosher diets. However, this
possibility of further litigation could also occur as a result of the provision of the religiousbased die ts already being provided by DOC 9 and as a result of the enactm ent of the
RLUIPDA. Thus, the third Turner factor weighs in favor of Plaintiffs.
The Court must also consider the availability of alternative means to accommodate
Plaintiffs’ free exercise rights at minimal cost. The “existence of obvious, easy alternatives
may be evidence that the regulation is not reasonable.” Turner , 482 U.S. at 89. Plaintiffs
contend that Defendant’s cost estimates for purchasing pre-packaged, frozen kosher dinners
are speculative and fail to consider the less-expensive, pre-packaged, frozen kosher dinners
that are available on the m arket. In response to this a ssertion, Defendant states that it is
restricted to purchasing food from an approved vendor, and that the food vendor’s choices
concerning particular food items it purchases from third-party sources for DOC “cannot be
attributed to DOC.” Defendant’s Response to Plaintiffs’ Motion for Summary Judgment, at
3. If Defendant is at all concerned about its food budget, then it is not reasonable for
9In this respect, Defendant asserts that “P laintiff Cottriel has already expressed a desire to file further litigation, despite the provision of no cost Kosher m eals to him .” Defendant’s Response to Plaintiff’s Motion forSummary Judgment, at 6. As support for this statement, Defendant refers to an exhibit that purports to be “a record of conversations concerning the kosher diet and related issues” m ade by an assistant warden for DOC. Defendant’s Response, Ex. 3. This unsworn “record of conversations” is not an acceptable evidentiary document for judicial consideration of the cross-motions for summary judgment. See Fed. R. Civ. P. 56 (c) (sum mary judgment motions are decided upon the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any....” presented by the parties). Theref ore, this docum ent will not be considered in resolving the cross-motions.
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Defendant to simply “wash its hands” of food purchasing decisions and allow a food vendor to obtain food froma third-party source at a greater cost if the vendor is capable of obtaining the same type of food from a less-expensive source. Defendant has provided no evidence that its food vendors are not capable of purchasing less-expensive frozen kosher dinners. Moreover, Defendant has presented the affidavit of a DOC official who avers that following the entry of the preliminary injunction he “coordinated efforts with [prison]staff and [a food vendor] in purchasing a variety of frozen Koshe r entrees” and that several “Kosher food items are being used to supplement the entrees as advised by the dietician.” Id., Ex. 5. This statement indicates that, far from being incapable of determ ining appropriate sources for purchasing kosher dinners, DOC prison officials have actively participa ted with one of DOC’s approved food vendors in choosing the tihrd-party sources for purchasing kosher food under the prelim inary injunction. Thus, Defendant’s cost estim ates for providing kosher meals to Plaintiffs are less than reliable, and because Plaintiffs have offered an alternative that fully accommodates their constitutionally-protected right atde minimiscost, Defendant’s assertion of a significant financial burden is an exaggerated response to the Plaintiff’s request for a kosher diet.
Defendant also contends that DOC has incurred “significant administrative costs” in administering a kosher food program under the preliminary injunction. Id., at 5. Defendant is apparently referring to the estimation of one DOC official contained in his affidavit of the number of hours the DOC official had spent in implementing the kosher diet programas well as the cost of employing a dietician to advise the official concerning the nutritional value of
29

Case 5:03-cv-00099-W Document 112 Filed 09/08/05 Page 30 of 31
the meals provided to Plaintiffs. However, these initial costs would be connected with the implementation of any religious-based or medically-required dietary changes. Thus, they are not evidence of on-going budgetary concerns associated with the kosher diet requested by Plaintiffs.
Although Turner does not require DOC to demonstrate they have considered or tried all other methods of accommodating an inmate’s request for a kosher diet, Defendant must provide “convincing evidence” that the cost and security issues advanced as reasonable bases for not providing a kosher diet are “other than de minimis.” Beerheide, 286 F.3d at 1192. Defendant has not satisfied this burden. Although the undersigned is cognizant of the strapped financial status of DOC at this time and is also aware that DOC prison officials must constantly deal with tensions between inmates resulting from perceptions of favoritism based on religious accommodations, DOC’s refusal to provide a kosher diet, in light of its provision of religious-based diets for other inm ates without negative im pact, is not entitled to total deference. Here, the record does not reflect m ore than a de minimis impact upon DOC’s economic resources and does not reflect any significant negative im pact upon the othe r concerns subm itted by DOC as rational bases for the current policy. Accordingly, the undersigned finds that there are no material issues of fact for trial, that Plaintiffs are entitled to summary judgment, and that Defendant is not entitled to summary judgment.
RECOMMENDATION Based on the foregoing findings, it is recom mended tha t Plaintiffs’ Motion for Summary Judgment be GRANTED and that Defendant’s Motion for Summary Judgment be
30

Case 5:03-cv-00099-W Document 112 Filed 09/08/05 Page 31 of 31 DENIED, that judgment issue in favor of Plaintiffs and against the Defendant, and that the temporary injunction be made permanent. The parties are advised of their respective right to file an objection to this Third Supplemental Report and Recommendation with the Clerk of this Court by Se ptember 28th , 2005, in accordance with 28 U.S.C. §636 and LCvR 72.1. The parties are further advised that failu re to m ake timely objection to this Third Supplemental Report and Recommendation waives their respective right to appellate review of both factual and legal issues contained herein. Moore v. United States of Am erica, 950 F.2d 656 (10th Cir. 1991).
This Third Supplemental Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter.
ENTERED this 8th day of September , 2005.
31

 
 Case 5:03-cv-00099-W Document 134 Filed 02/08/06 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

FILED FEB 82006

DENNIS EARL FULBRIGHT,

)

)

Plaintiff,

)

)

vs.

)

)

JUSTIN JONES, Director,

)

Oklahoma Department of Corrections,

)

)

Defendant.

)

V No. CIV-03-99-W

JON ANDREW COTTRIEL,

)

)

Plaintiff,

)

)

vs.

)

)

JUSTIN JONES, Director,

)

Oklahoma Department of Corrections,

)

)

Defendant.

)

No. CIV-03-125-W

JERRY HARMON,

)

)

Plaintiff,

)

)

vs.

)

)

JUSTIN JONES, Director,

)

Oklahoma Department of Corrections,

)

)

Defendant.

)

No. CIV-03-1465-W

JUDGMENT FOR PERMANENT PROSPECTIVE INJUNCTIVE RELIEF

Upon consideration of the record in these consolidated cases and pursuant to this

Court's Order of January 26, 2006, adopting the Third Supplemental Report and

1

Case 5:03-cv-00099-W Document 134 Filed 02/08/06 Page 2 of 2
Recommendation issued in each case by United States Magistrate Judge Gary M. Purcell on September 8,2005, the Court ORDERS that judgment should be and is hereby entered in favor of plaintiffs Dennis Earl Fulbright, Jon Andrew Cottriel and Jerry Harmon.
Because the plaintiffs are entitled to permanent prospective injunctive relief, the Court hereby further ORDERS the defendant, Justin Jones, Director, Oklahoma Department of Corrections, to immediately provide to the plaintiffs Kosher diets at no cost. Such diets shall comply with all nutritional requirements and standards currently applicable to the diets served to all other inmates in the custody of the Oklahoma Department of Corrections.
After giving substantial weight to any adverse impact on public safety and on the operation of the criminal justice system caused by this relief, the Court specifically FINDS that the injunction is necessary to remedy a violation of these plaintiffs' rights to freely exercise their Orthodox Jewish religion as guaranteed by the first amendment to the United States Constitution. The Court further FINDS that the injunction is narrowly drawn to remedy the constitutional violation at issue in these consolidated cases, extends no further than necessary to correct this violation and is the least intrusive means necessary to correct this violation of the plaintiffs' constitutional rights.
DATED and ENTERED at Oklahoma City, Oklahoma, this ~day of February,
2006.
2

 
 Case 5:03-cv-00099-W Document 150 Filed 04/10/06 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF OKLAHOMA

DENNIS EARL FULBRIGHT,

)

)

Plaintiff,

)

)

vs.

)

)

JUSTIN JONES,

)

)

Defendant.

)

No. CIV-03-99-W

JON ANDREW COTTRIEL,

)

)

Plaintiff,

)

)

vs.

)

No. CIV-03-125-W

)

JUSTIN JONES,

)

)

Defendant.

)

JERRY HARMON, Plaintiff,
vs. JUSTIN JONES,
Defendant.

)

)

)

)

)

No. CIV-03-1465-W

)

)

)

)

ORDER

Judgment was entered in these three consolidated matters on February 28, 2006,

in favor of the plaintiffs, Dennis Earl Fulbright, Jon Cottriel and Jerry Harmon, and against

the defendant, Justin Jones. In the Judgment, the Court ordered Jones as Director of the

Oklahoma Department of Corrections ("DOC") to provide to the plaintiffs, at no cost,

Kosher diets that complied with all nutritional requirements and standards currently

Case 5:03-cv-00099-W Document 150 Filed 04/10/06 Page 2 of 5
applicable to the diets served to all other inmates in DOC custody. The Court found that these plaintiffs, who had sought relief under title 42, section 1983 of the United States Code, were entitled to such prospective injunctive relief to remedy a violation of their rights to freely exercise their Orthodox Jewish religion as guaranteed by the first amendment to the United States Constitution.
The matter now comes before the Court on the plaintiffs' Motion for Attorney Fees. Jones has challenged not only the plaintiffs' entitlement to an award of fees, but also the amount requested. The plaintiffs, at the Court's direction, have filed a reply. Based upon the record, the Court makes its determination.1
Title 42, section 1988(b) of the United States Code provides that "[i]n any action or proceeding to enforce a provision of section[] ... 1983, ... the [C]ourt, in its discretion,
may allow the prevailing party ... a reasonable attorney's fee ...." 42 U.S.C. § 1988(b).
Because the plaintiffs succeeded on the significant issues in these lawsuits and achieved the benefits they sought in commencing the actions, the Court finds the plaintiffs are "prevailing parties" for purposes of section 1888(b) and thus, are entitled to an award of fees.
In determining the amount of legal fees to be awarded in these cases, "'the ... [C]ourt must arrive at a "lodestar" figure by multiplying the hours plaintiffs' counsel reasonably spent on the litigation by a reasonable hourly rate.'" Case v. Unified School District No. 233,157 F.3d 1243, 1249 (10th Cir. 1998)(quoting Jane L. v. Bangerter, 61 F.3d
IWhile evidentiary hearings on the issue of attorney's fees may be generally preferred, they are not always required. Under the instant circumstances, the Court in its discretion finds that a hearing is unwarranted in these cases.
2

Case 5:03-cv-00099-W Document 150 Filed 04/10/06 Page 3 of 5
1505,1509 (10 th Cir. 1995)). The plaintiffs, who "'bearO the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates,'" Mares v. Credit Bureau of Raton, 801 F.2d 1197, 1201 (10 th Cir. 1986)(quoting Hensleyv. Eckerhart, 461 U.S. 424, 437 (1983)), have submitted for the Court's review the hourly rate of $250.00 charged by their counsel, Rand C. Eddy.
However, as Jones has correctly pointed out, when a litigant is incarcerated, such
as the plaintiffs in these cases, the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. §
1997e, controls. The PLRA provides that attorney's fees in suits brought by prisoners "shall be based on an hourly rate [not] greater than 150 percent of the hourly rate
established under ... [the Criminal Justice Act, 18 U.S.C. § 3006A] for payment of courtappointed counsel." 42 U.S.C. § 1997e(d)(3). Jones has argued that application of the
PLRA to this case results in an hourly rate of $92.00. The plaintiffs have conceded that any fees awarded in these cases are limited by
the PLRA, but they have argued that Jones' calculations are flawed. The Court agrees. As of January 1, 2006, the compensation rate for attorneys appointed to represent
persons eligible under the Criminal Justice Act, 18 U.S.C. § 3006A, was $92.00 in non-
capital cases and $163.00 in federal capital prosecutions and post-conviction proceedings. Although the plaintiffs have contended that the higher of the two amounts should be allowed in this case, the Court finds in the absence of authority for the same that 150 percent (150%) of $92.00, or $138.00, is the hourly rate which is applicable in this case.
Having determined the hourly rate, the Court must now ascertain the number of hours reasonably spent by counsel and, again, the plaintiffs have "the burden of proving [the reasonableness of the] hours [expended] ...." Case, 157 F.3d at 1250.
3

Case 5:03-cv-00099-W Document 150 Filed 04/10/06 Page 4 of 5
This burden is met by the submission of "meticulous, contemporaneous time records that reveal ... all hours for which compensation is requested and how those hours were allotted to specific tasks." Id. (citation omitted). Recognizing that "'block billing' [or] ... lumping multiple tasks into a single entry of time," Cadena v. Pacesetter Corporation, 224 F.3d 1203, 1214 (10th Cir. 2000), is highly discouraged, if not forbidden, the Court nevertheless finds the billing records submitted by the plaintiffs are sufficiently precise in most instances for the Court to determine "'all hours for which compensation is_requested and how those hours were allotted to specific tasks ....111 Robinson v. City of Edmond, 160 F.3d 1275, 1281 (10th Cir. 1998)(quoting Ramos v. Lamm, 713 F.2d at 546,553 (10th Cir. 1983)).
The Court has discounted those hours claimed by the plaintiffs that are associated with telephone conversations with R. Manning2 and with the issue of class certification, 3 and after having done so, the Court finds the remaining hours claimed by the plaintiffs to have been expended by their counsel are neither excessive nor unreasonable. Accordingly, the Court finds 378.10 to be the number of hours reasonably spent by plaintiffs' counsel in ligating these matters, which results in an award of legal fees in the amount of $52,177.80 ($138.00 x 378.10).
The Court is mindful that in certain non-PLRA cases "of exceptional success an enhanced fee award may be justified." Hensley, 461 U.S. at 435. "'Exceptional success'
2E&., Case v. Unified School District No. 233,157 F.3d 1243, 1252 (10 th Cir. 1998}(time disallowed for billing entries that do not describe subject matter of telephone conversations).
3The Court finds the hours spent in extensive research of this issue were not "directly and
reasonably incurred in proving an actual violation of the plaintiff[s'] rights ...." 42 U.S.C. §
1997e(d)(1 }(A). 4

Case 5:03-cv-00099-W Document 150 Filed 04/10/06 Page 5 of 5
justifying an enhanced fee may be based upon the performance of counsel ... or upon the result achieved ...." Ramos, 713 F.2d at 557.
In this case, an important constitutional right was vindicated, and the plaintiffs achieved their success "while facing strong resistance and tenacious defense ... by the State [of Oklahoma]." Skinner v. Uphoff, 324 F. Supp.2d 1278, 1286 (D. Wyo. 2004). Acknowledging the complexity of the issues and logistical difficulties in representing incarcerated individuals and "[g]iven the low hourly rate allowed under the PLRA, this Court cannot make a fair award without granting an enhancement of the fee," id.;~, Ginest v. Board of County Commissioners, 2006 WL 856199 (D. Wyo. March 9, 2006), and finds that a fifty percent (50%) enhancement will be awarded in these consolidated cases.
Accordingly, the Court (1) GRANTS the Motion for Attorney Fees filed by the plaintiffs in each of these cases; and (2) hereby AWARDS legal fees in the amount of $52,177.80, with a fifty percent (50%) multiplier of $26,088.90, for a total fee award of $78,266.70.
DI ENTERED this daYOfApril'20~~
LE R. WEST UNITED STATES DISTRICT JUDGE
5

 
 Case: 5:03-cv-99 As of: 04/24/2015 01:23 PM CDT 1 of 14
CLOSED,CONSOL,PURCELL
U.S. District Court Western District of Oklahoma[LIVE] (Oklahoma City)
CIVIL DOCKET FOR CASE #: 5:03−cv−00099−W

Fulbright v. Ward Assigned to: Honorable Lee R. West Demand: $0 Case in other court: 06−06098
06−06161 Cause: 42:1983 Prisoner Civil Rights Plaintiff
Dennis Earl Fulbright

Date Filed: 01/21/2003 Date Terminated: 02/08/2006 Jury Demand: None Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question
represented by Dennis Earl Fulbright #186054 JDCC−TAFT Jess Dunn Correctional Center P O Box 316 Taft, OK 74463−0316 PRO SE
Rand C Eddy Mulinix Ogden Hall &Ludlam PLLC 210 W Park Ave Suite 3030 Oklahoma City, OK 73102 405−232−3800 Fax: 405−232−8999 Email: Rand@lawokc.com TERMINATED: 04/02/2007

V. Defendant Ron Ward Director TERMINATED: 12/01/2005
Defendant Edward Evans Director, Oklahoma Department of Corrections

represented by J Kevin Behrens Attorney General's Ofc−LINCOLN−OKC 4545 N Lincoln Blvd Suite 260 Oklahoma City, OK 73105−3498 405−521−4274 Fax: 405−528−1867 Email: kevin_behrens@oag.state.ok.us TERMINATED: 04/09/2007 ATTORNEY TO BE NOTICED
Stefan K Doughty The Doughty Law Firm PLLC P O Box 720806 Oklahoma City, OK 73172−0806 405−831−8284 Fax: 405−604−9775 Email: stefan@christensenlawgroup.com TERMINATED: 09/28/2005
represented by Guy L Hurst Oklahoma Tax Commission 120 N Robinson Ave Suite 2000 W Oklahoma City, OK 73102 405−319−8550

Case: 5:03-cv-99 As of: 04/24/2015 01:23 PM CDT 2 of 14

Fax: 405−601−7144 Email: guy.hurst@clo.state.ok.us ATTORNEY TO BE NOTICED

Defendant Justin Jones

represented by Craig M Regens Attorney General's Ofc−NE 21STREET−OKC 313 NE 21st St Oklahoma City, OK 73105 405−521−3921 Fax: 405−521−4518 Email: craig_regens@okwb.uscourts.gov ATTORNEY TO BE NOTICED

Angela K Martin Attorney General's Ofc−LINCOLN−OKC 4545 N Lincoln Blvd Suite 260 Oklahoma City, OK 73105−3498 405−521−4274 Fax: 405−528−1867 Email: angela_martin@oag.state.ok.us ATTORNEY TO BE NOTICED

Guy L Hurst (See above for address) ATTORNEY TO BE NOTICED

J Kevin Behrens (See above for address) TERMINATED: 04/09/2007 ATTORNEY TO BE NOTICED

Date Filed 01/21/2003 01/21/2003 01/28/2003
01/30/2003
02/07/2003 03/21/2003 03/21/2003

# Docket Text
1 COMPLAINT (mms) (Entered: 01/27/2003)
RECEIPT For Money Received from plaintiff Dennis Earl Fulbright in the amount of $ 150.00, receipt # 095453 (mms) (Entered: 01/27/2003)
2 ORDER by Honorable Vicki Miles−LaGrange, Case referred to Magistrate Judge Bana Roberts for conducting hrg, including evidentiary hrg if necessary, and submission of Findings &Recommendation (cc: all counsel) [EOD Date 1/28/03] (fp) (Entered: 01/28/2003)
3 ORDER Requiring Service &Special report by Magistrate Judge Bana Roberts, ordered that officials responsible for the operation of Joseph Harp Correctional Center shall review the subj matter of the Complaint; a Special Report shall be attached to &filed w/the Ans or dispositive mtn due no later than 60 days fm the date of service of process on the Dft; a copy of this Order &the complaint w/summons shall be served on ea Dft; said service shall not be effected until the nec service papers hv been completed by Plf &furnished w/in 20 days fm this date to the Clk for processing &issuance (cc: all counsel) [EOD Date 1/30/03] (kab) (Entered: 01/30/2003)
4 PRAECIPE for and issued 2 summons by plaintiff Dennis Earl Fulbright (fp) (Entered: 02/10/2003)
5 LETTER from plaintiff Dennis Earl Fulbright showing confirmation of delivery of certified mail to Drew Edmondson, AG, which contained Fed Ct Summons. Cpy of receipts i sent out Feb 21, 2003 (fp) Modified on 03/25/2003 (Entered: 03/25/2003)
6 LETTER from plaintiff Dennis Earl Fulbright re cpy of two receipts of the certified mail containing the summons to Mr. Ward, also, enclosed the response fm the

Case: 5:03-cv-99 As of: 04/24/2015 01:23 PM CDT 3 of 14

04/21/2003 04/25/2003
05/12/2003 05/12/2003 05/12/2003 05/15/2003 06/03/2003 06/05/2003 06/06/2003
06/10/2003 07/17/2003
07/17/2003
08/20/2003 08/21/2003 08/21/2003 08/25/2003

Postmaster General, which were the two tracking system confirmation rpts (fp) (Entered: 03/25/2003)
7 MOTION by defendant Ron Ward addl time to ans and/or resp and to transfer case (nm) (Entered: 04/22/2003)
8 ORDER by Magistrate Judge Bana Roberts granting motion addl time to ans and/or resp [7−1] granting Dft an ext of 28 days or until May 19, 2003 w/in which to prepare &file his ans or other initial pleading responsive to Plf's Compl; &denying motion to transfer case [7−2] as premature w/out prej to reassertion of the mtn after the response has been filed or at such later time as is appropriate (cc: all counsel) [EOD Date 4/25/03] (kab) Modified on 04/25/2003 (Entered: 04/25/2003)
9 NOTICE by defendant Ron Ward, Dept of Correction of Special Report of Review of Factual Basis of Claims Asserted in Civil Rights Complaint Purs to 42 USC Section 1983 (fp) (Entered: 05/12/2003)
10 MOTION by defendant Ron Ward to dismiss w/Brief in Supt (fp) (Entered: 05/12/2003)
11 ATTORNEY APPEARANCE for defendant Ron Ward by Stefan K. Doughty (fp) (Entered: 05/12/2003)
12 APPENDIX filed by defendant Ron Ward, OK Dept of Corrections to Special Report of Review of Factual Basis of Clms Asserted in Civil Rights Cmp Purs to 42 USC 1983 re: [9−1] (fp) (Entered: 05/15/2003)
13 RESPONSE by plaintiff Dennis Earl Fulbright to motion to dismiss [10−1] (brs) (Entered: 06/04/2003)
14 ORDER by Honorable Vicki Miles−LaGrange, Case reassigned to Honorable Wayne E. Alley (cc: all counsel) [EOD Date 6/5/03] (fp) (Entered: 06/05/2003)
15 ORDER by Honorable Wayne E. Alley, consolidating cases CIV−03−98−A with CIV−03−99−A and CIV−03−125−A. All future filings shall be made in CIV−03−98−A only. (cc: all counsel) [EOD Date 6/6/03] (brs) (Entered: 06/06/2003)
16 OBJECTIONS by plaintiff Dennis Earl Fulbright to notice [9−1] (cjs) (Entered: 06/12/2003)
17 ENTER ORDER by Honorable Wayne E. Alley that in light of the consolidation order, the previous referral order in this case to Magistrate Judge Roberts is hereby vacated. This case is now referred to Magistrate Judge Gary M. Purcell (cc: all counsel) [EOD Date 7/17/03] (brs) (Entered: 07/17/2003)
18 REPORT and RECOMMENDATION by Magistrate Judge Gary M. Purcell: it is recommended that Dft Ward's Mtn to Dism (Doc. #8) be GRANTED &cause of action be dism as to Plf Jones; it is fur recommended that Dft Ward's Mtn to Dism (Doc. #10) be DENIED as to Plf Fulbright &that Dft Ward's Mtn to Dism (Doc. #8) be DENIED as to Plf Cottriel; ptys adv of their respective rt to file an obj to this RRw/Clk of this Ct by 8/6/03; this RRpartiall disposes of the issues ref to the undersigned Judge in Cs Nos CIV−03−99−A &CIV−03−125−A &disposes of all issues in Cs. No CIV−03−98−A (cc: all counsel) (dm) (Entered: 08/08/2003)
19 ANSWER by defendant Ron Ward (brs) (Entered: 08/22/2003)
20 APPLICATION by defendant for order allowing deposition of plaintiff Fulbright (brs) (Entered: 08/22/2003)
22 APPLICATION by defendant Ron Ward for order allowing deposition of plf Cottriel (dm) (Entered: 08/25/2003)
21 ORDER by Magistrate Judge Gary M. Purcell granting motion for order allowing deposition of plaintiff Fulbright [20−1] at a date, time &place to be subsequently determined by mutual agreement or ntc of ptys (cc: all counsel) [EOD Date 8/25/03] (dm) (Entered: 08/25/2003)

Case: 5:03-cv-99 As of: 04/24/2015 01:23 PM CDT 4 of 14

08/25/2003 09/04/2003 09/04/2003 09/08/2003 09/11/2003 09/11/2003 09/11/2003 09/11/2003 09/26/2003 09/29/2003
10/07/2003 10/20/2003
10/20/2003 10/30/2003 11/03/2003 11/10/2003 11/12/2003 11/13/2003
11/26/2003 01/13/2004

23 ORDER by Magistrate Judge Gary M. Purcell granting motion for order allowing deposition of plf Cottriel [22−1] (cc: all counsel) [EOD Date 8/25/03] (dm) (Entered: 08/25/2003)
24 NOTICE by defendant Ron Ward of taking deposition of Dennis Earl Fulbright (brs) (Entered: 09/05/2003)
25 MOTION by defendant Ron Ward to strike plaintiffs' objection to defendant's answer (brs) (Entered: 09/05/2003)
26 MOTION by plaintiff Dennis Earl Fulbright to proceed in forma pauperis (brs) (Entered: 09/09/2003)
27 ORDER by Magistrate Judge Gary M. Purcell denying motion as moot to proceed in forma pauperis [26−1] as Court's records reflect Plf has pd the $150. filing fee (cc: all counsel) [EOD Date 9/11/03] (dm) (Entered: 09/11/2003)
28 ORDER by Magistrate Judge Gary M. Purcell: Plf's Mtn for Appointment of Cnsl filed March 10, 2003, is DENIED (cc: all counsel) [EOD Date 9/11/03] (dm) (Entered: 09/11/2003)
29 OBJECTIONS by plaintiffs to defendant's notice of deposition [24−1] (brs) (Entered: 09/12/2003)
30 RESPONSE by plaintiffs to defendant's motion to strike plaintiffs' objection to defendant's answer [25−1] (brs) (Entered: 09/12/2003)
31 FIRST INTERROGATORY to defendant by plaintiff Dennis Earl Fulbright (brs) (Entered: 09/29/2003)
32 ORDER by Magistrate Judge Gary M. Purcell striking Plfs' First Interrogatory To Dft [31−1]: Depos, interrogatories, reqs for docs, reqs for admissions, &answs &resps thereto shall not be filed w/Clk unless on ord of the Ct or unless they are attached to a mtn, resp thereto, or are needed for use in a trial or hrg (LCvR 5.31) (cc: all counsel) [EOD Date 9/30/03] (dm) (Entered: 09/30/2003)
33 MOTION by plaintiff Dennis Earl Fulbright for leave request to serve interrogatories on defendant (brs) (Entered: 10/08/2003)
34 ORDER granting 25 Motion to Strike Plf's Obj to Dft's Answer, denying 29 Plf's Obj to Dft's Ntc of Depositions, denying 33 Plaintiff's Motion seeking an order allowing Plfs to serve interrogatories. Signed by Judge Gary M. Purcell on 10/20/03. (dm) (Entered: 10/20/2003)
35 MOTION for Preliminary Injunction by Dennis Earl Fulbright. (db, ) (Entered: 10/21/2003)
36 MOTION for Reconsideration by Dennis Earl Fulbright. (Attachments: # 1 Exhibit Interrogatories)(db, ) (Entered: 10/31/2003)
37 RESPONSE by Dft to re 35 Plf's MOTION for Preliminary Injunction filed by Ron Ward. (brs, ) (Entered: 11/04/2003)
38 NOTICE by Dennis Earl Fulbright (db, ) (Entered: 11/12/2003)
39 REPLY to Response to Motion re 35 MOTION for Preliminary Injunction filed by Dennis Earl Fulbright. (Attachments: # 1 Exhibit)(db, ) (Entered: 11/13/2003)
40 ORDER appointing Attorney Rand C Eddy for Dennis Earl Fulbright added. Order entered 9/11/03 (Doc. #36) is vacated, &Plfs' request for Appointment of Counsel (Doc. 334) is GRANTED. . Signed by Judge Gary M. Purcell on 11/13/03. (dm) (Entered: 11/13/2003)
41 ENTRY of Appearance by Rand C Eddy on behalf of Dennis Earl Fulbright (brs, ) (Entered: 12/01/2003)
Motion No Longer Referred: RRent 7/17/03, Doc. #18, recommended that 10 Motion to Dismiss be DENIED. RRpartially disposes of issues ref to Judge Purcell) (dm). (Entered: 01/13/2004)

Case: 5:03-cv-99 As of: 04/24/2015 01:23 PM CDT 5 of 14

02/02/2004 02/06/2004 02/24/2004 02/26/2004 02/26/2004 02/26/2004
03/01/2004 03/08/2004 04/22/2004 05/06/2004
05/07/2004
05/13/2004 05/28/2004 05/28/2004 06/02/2004 06/04/2004 06/04/2004 06/04/2004 06/07/2004

7/17/03 RRpartially disposed of issues ref to Judge Gary M. Purcell. (dm) (Entered: 02/02/2004)
42 ORDER REASSIGNING CASE. Case reassigned to Judge Lee R. West for all further proceedings. Judge Wayne E. Alley no longer assigned to case. Signed by Judge Wayne E. Alley on 2/6/04. (brs, ) (Entered: 02/06/2004)
43 UNOPPOSED MOTION to Consolidate Cases and MOTION Appoint Counsel and Brief in Support by Dennis Earl Fulbright and Jon A Cottriel. (nm, ). (Entered: 02/25/2004)
44 ORDER referring 43 Motion to Appoint Counsel, granting 43 Motion to Consolidate Cases . Signed by Judge Lee R. West on 2/26/04. (brs, ) (Entered: 02/26/2004)
CASE REFERRED to Magistrate Judge Gary M. Purcell., Cases associated. (brs, ) (Entered: 02/26/2004)
45 ENTER ORDER: In consideration of 40 Order appointing cnsl ent in these consolidated matters, Plf's cnsl is dir to adv Ct w/in 10 days of cnsl's intention to join or w/draw Mtn for Prel Injunction filed by Plf's Fulbright &Cottriel on 10/20/04. Signed by Judge Gary M. Purcell on 2/26/04. (dm) (Entered: 02/27/2004)
46 ORDER: Plf's Unopposed Mtn to Consolidate Cases, Appoint Cnsl &Brf in Supp (Doc. #19) is granted as to motion to appoint cnsl in Case CIV−03−1465−W . Signed by Judge Gary M. Purcell on 3/1/04. (dm, ) (Entered: 03/01/2004)
47 NOTICE of Advisement to the Court by Dennis Earl Fulbright (brs, ) (Entered: 03/09/2004)
48 GENERAL ORDER 04−02 (April 15, 2004) Mandatory Electronic Case Filing. Signed by Judge Lee R. West on 4/15/04. (brs, ) (Entered: 04/22/2004)
49 ENTER ORDER re 35 MOTION for Preliminary Injunction filed by Dennis Earl Fulbright: Hearing set for Tuesday, 6/8/2004 10:00 AM in Courtroom #103 before Magistrate Judge Gary M. Purcell.. Signed by Judge Gary M. Purcell on 5/6/04. (dm) (Entered: 05/06/2004)
50 ENTER ORDER: Ord dated 8/11/03, in case no. CIV−03−98−A (attached hereto) is to be entered as of this date in CIV−03−99−W and CIV−03−125−W to reflect denials of mtns to dism in CIV−03−99 and CIV−03−125 . Signed by Judge Gary M. Purcell on 5/7/04. (dm) (Entered: 05/07/2004)
51 ORDER re: CIV−03−1465−W as to Dft's (Doc. #27) Unopposed Mtn to Strike Deadlines . Signed by Judge Gary M. Purcell on 5/13/04. (dm ) (Entered: 05/13/2004)
52 MOTION to Continue Hearing on Plaintiffs' Motion for Preliminary Injunction by Ron Ward. (Doughty, Stefan) (Entered: 05/28/2004)
53 ORDER denying 52 Defendant's Motion to Continue Hearing on Plfs' "Motions for Preliminary Injunction" in the Fulbright &Cottriel matters. Signed by Judge Gary M. Purcell on 5/28/04. (dm) (Entered: 06/01/2004)
54 MOTION for Writ of Habeas Corpus ad testificandum by Dennis Earl Fulbright. (Eddy, Rand) (Entered: 06/02/2004)
55 ORDER granting 54 Motion for Writ of Habeas Corpus ad testificandum. Writ issued. Hearing set for 6/8/04 @10:00 before Judge Purcell. Signed by Judge Gary M. Purcell on 6/4/04. (dm) (Entered: 06/04/2004)
56 Mail Returned (Doc. #53, Order) as Undeliverable. Mail sent to Dennis Earl Fulbright (dm) (Entered: 06/04/2004)
57 ENTER ORDER striking hearing set on 6/8/04 @10:00 a.m.. Signed by Judge Gary M. Purcell on 6/4/04. (dm) (Entered: 06/04/2004)
58 Writ of Habeas Corpus ad Testificandum for Dennis Fulbright Returned Unexecuted. (dm) (Entered: 06/10/2004)

Case: 5:03-cv-99 As of: 04/24/2015 01:23 PM CDT 6 of 14

06/15/2004 06/15/2004
06/16/2004 06/17/2004 06/21/2004 06/21/2004 07/08/2004
08/12/2004 08/25/2004
08/30/2004 09/14/2004
01/21/2005
01/21/2005 01/31/2005
02/03/2005 02/04/2005 03/28/2005

59 NOTICE of Change of Address by Dennis Earl Fulbright (db, ) (Entered: 06/15/2004)
60 ENTER ORDER: re 35 MOTION for Preliminary Injunction filed by Dennis Earl Fulbright. Hearing set on Thursday, 7/8/2004, 10:00 AM in Courtroom #103 before Magistrate Judge Gary M. Purcell. Signed by Judge Gary M. Purcell on 6/15/04. (dm) (Entered: 06/15/2004)
61 ENTRY of Appearance by J Kevin Behrens on behalf of Ron Ward (Behrens, J) (Entered: 06/16/2004)
62 MOTION for Writ of Habeas Corpus ad testificandum by Dennis Earl Fulbright. (Eddy, Rand) (Entered: 06/17/2004)
63 ORDER granting 62 Motion for Writ of Habeas Corpus ad testificandum . Signed by Judge Gary M. Purcell on 6/21/04. (dm) (Entered: 06/21/2004)
64 Writ of Habeas Corpus ad Testificandum Issued as to Dennis Earl Fulbright for Thursday, July 8, 2004, at 10:00 a.m.. (dm) (Entered: 06/21/2004)
65 Minute Entry for proceedings held before Judge Gary M. Purcell : Motion Hearing held on 7/8/2004 re 35 Plf's MOTION for Preliminary Injunction. Evidence taken. Argument presented. Ct takes matter under advisement. Plf's Exh Nos. 1,2 admitted w/o objection (attached) (Court Reporter Jeanne Ring) (dm) (Entered: 07/09/2004)
66 NOTICE of Change of Address by Dennis Earl Fulbright (db, ) (Entered: 08/16/2004)
67 REPORT AND RECOMMENDATION: It is recommended that 35 MOTION for Preliminary Injunction filed by Dennis Earl Fulbright be GRANTED. Objections to RRdue by 9/14/2004. This RRpartially disposes of the issues ref to the undersigned Judge in the captioned matter. Signed by Judge Gary M. Purcell on 8/25/04. (dm) (Entered: 08/25/2004)
68 ORDER denying 36 Motion for Reconsideration . Signed by Judge Gary M. Purcell on 8/30/04. (dm) (Entered: 08/30/2004)
69 OBJECTION to 67 Report and Recommendation re Plaintiffs' Motions for Preliminary Injunction by Ron Ward. (Attachments: # 1 Exhibit 1 −− Killingsworth Petition# 2 Exhibit 2 −− Interoffice Memorandum re Cottriel Assault)(Doughty, Stefan) (Entered: 09/14/2004)
70 ORDER ADOPTING SECOND SUPPLEMENTAL REPORT AND RECOMMENDATION 35 Granting Plaintiff's Motion for Preliminary Injunction filed by Dennis Earl Fulbright, Re 35 , 67 . The defendant is ordered to provide these three plaintiffs a kosher diet at no cost to them until further Order of the Court. This case is re−referred to Magistrate Judge Purcell for further proceedings. Signed by Judge Lee R. West on 1/21/05. (brs, ) (Entered: 01/21/2005)
CASE RE−REFERRED to Magistrate Judge Gary M. Purcell. (brs, ) (Entered: 01/21/2005)
71 ORDER: In consideration of Order entered 1/21/05 by US District Judge West re−referring these consolidated cases to the undersigned for further proceedings, the following ddl is established for this matter: February 25, 2005 − dispositive Motions . Signed by Judge Gary M. Purcell on 1/31/05. (dm) (Entered: 01/31/2005)
72 MOTION for Extension of Time by Ron Ward. (Behrens, J) (Entered: 02/03/2005)
73 ORDER granting 72 Defendant's Motion for Extension of Time. The Dispositive Motion ddl originally set for 2/25/05 is hereby extended until 4/26/05. Signed by Judge Gary M. Purcell on 2/4/05. (dm) (Entered: 02/04/2005)
74 MOTION to Clarify Court's Order Granting Preliminary Injunction by Ron Ward. (Attachments: # 1 Exhibit 3−23−05 Letter from Rand Eddy to Defendant's Counsel)(Doughty, Stefan) (Entered: 03/28/2005)

Case: 5:03-cv-99 As of: 04/24/2015 01:23 PM CDT 7 of 14

03/29/2005 04/15/2005 04/18/2005 04/20/2005 04/21/2005 04/25/2005 04/26/2005 04/28/2005 05/03/2005 05/03/2005 05/09/2005 05/09/2005 05/09/2005 05/10/2005 05/11/2005 05/11/2005
05/12/2005 05/12/2005 05/14/2005 05/16/2005

75 ORDER denying 74 defendant's Motion to Clarify Order . Signed by Judge Lee R. West on 3/29/05. (brs, ) (Entered: 03/29/2005)
76 ORDER Granting Plaintiff's Application for Reimbursement of Costs. Signed by Judge Lee R. West on 4/15/05. (brs, ) (Entered: 04/15/2005)
TRANSCRIPT of Proceedings held on July 8, 2004 before Judge Purcell. Court Reporter: B. Jeanne Ring. Transcript of: Preliminary Injunction Hearing (dl, ) (Entered: 04/20/2005)
77 JOINT MOTION for Extension of Time for Preliminary Injunction Relief by Dennis Earl Fulbright. (Eddy, Rand) (Entered: 04/20/2005)
78 ORDER granting 77 Motion for Extension of Preliminary Injunction, now set to expire on 4/25/05, beyond such date pursuant to the provisions of section 3626 . Signed by Judge Lee R. West on 4/21/05. (brs, ) (Entered: 04/21/2005)
79 UNOPPOSED MOTION for Extension of Time to File Dispositive Motions by Ron Ward. (Doughty, Stefan) (Entered: 04/25/2005)
80 MOTION for Summary Judgment and Brief in Support by Dennis Earl Fulbright. (Attachments: # 1 Exhibit 1− Transcript Part 1# 2 Exhibit 2 − Transcript Part 2# 3 Exhibit 2 − Affidavit of Allan Kerby)(Eddy, Rand) (Entered: 04/26/2005)
81 ORDER granting 79 Motion for Extension of Time until 5/11/05 to file dispositive motions. Signed by Judge Gary M. Purcell on 4/28/05. (dm) (Entered: 04/28/2005)
82 NOTICE to Take Deposition of Representative of the Oklahoma Department of Corrections by Dennis Earl Fulbright. (Eddy, Rand) (Entered: 05/03/2005)
83 NOTICE to Take Deposition of Representative of the Oklahoma Department of Corrections by Dennis Earl Fulbright. (Eddy, Rand) (Entered: 05/03/2005)
84 UNOPPOSED MOTION for Leave to Sumbit Revised Affidavit of Alan Kerby, attached as Exhibit "B" to Plaintiffs' Motion for Summary Judgment by Dennis Earl Fulbright. (Eddy, Rand) (Entered: 05/09/2005)
85 UNOPPOSED MOTION for Leave to submit Revised Affidavit of Alan Kerby, attached as Exhibit "B" to Plaintiffs Motion for Summary Judgment by Dennis Earl Fulbright. (Eddy, Rand) (Entered: 05/09/2005)
Docket Annotation: Document number 84 was revised and refiled as document number 85 in order to include the electronic signature. (brs, ) (Entered: 05/09/2005)
86 ORDER that the Court Strikes document 57 in Case CIV−03−1465−W and document 94 in Case CIV−03−125−W as misfiled . Signed by Judge Lee R. West on 5/10/05. (brs, ) (Entered: 05/10/2005)
87 UNOPPOSED MOTION for Leave to File Brief in Excess of Page Limit by Ron Ward. (Doughty, Stefan) (Entered: 05/11/2005)
88 MOTION for Summary Judgment and Brief in Support by Ron Ward. (Attachments: # 1 Exhibit 1 − Hearing Transcript# 2 Exhibit 2 − Canteen Usage Report# 3 Exhibit 3 − Williams Affidavit# 4 Exhibit 4 − Jones Memo)(Doughty, Stefan) (Entered: 05/11/2005)
89 ORDER granting 87 Motion for Leave to file a brief in excess of the page limit of 25 pages in support of his dispositive motions. Signed by Judge Gary M. Purcell on 5/12/05. (dm) (Entered: 05/12/2005)
90 ORDER granting 85 Motion for Leave to submit a revised affidavit of Alan Kerby attached as Exhibit "B" to Plaintiff's Motion for Summary Judgment. Signed by Judge Gary M. Purcell on 5/12/05. (dm) (Entered: 05/12/2005)
91 UNOPPOSED MOTION for Extension of Time to File Response/Reply as to 80 MOTION for Summary Judgment and Brief in Support by Ron Ward. (Behrens, J) (Entered: 05/14/2005)
92 ORDER: Plaintiff shall have until 6/1/05 to respond to 88 MOTION for Summary Judgment filed by Ron Ward . Signed by Judge Gary M. Purcell on 5/12/05. (dm)

Case: 5:03-cv-99 As of: 04/24/2015 01:23 PM CDT 8 of 14

05/18/2005 05/19/2005 05/20/2005 05/23/2005
05/24/2005 05/26/2005 06/06/2005 06/06/2005 06/06/2005
06/06/2005 06/07/2005 06/16/2005 06/20/2005 06/22/2005
06/22/2005

(Entered: 05/16/2005)
93 NOTICE by Dennis Earl Fulbright of Filing Revised Affidavit of Alan D. Kerby Pursuant to Court's Order of May 12, 2005 (Attachments: # 1 Exhibit Revised Affidavit of Alan Kerby − Exh "B" to MSJ)(Eddy, Rand) (Entered: 05/18/2005)
94 UNOPPOSED MOTION for Extension of Time to File Response/Reply to Defendant's Motion for Summary Judgment by Dennis Earl Fulbright. (Eddy, Rand) (Entered: 05/19/2005)
95 NOTICE to Take Deposition of Gregg Williams by Dennis Earl Fulbright. (Eddy, Rand) (Entered: 05/20/2005)
96 RESPONSE to Motion re 80 MOTION for Summary Judgment and Brief in Support filed by Ron Ward. (Attachments: # 1 Exhibit 1− Requests to Staff − Jerry Harmon# 2 Exhibit 2 − Request to Staff − Dennis Fulbright# 3 Exhibit 3 − Records of Asst. Warden Ezell# 4 Exhibit 4 − Notice of Contract Award# 5 Exhibit 5 − Affidavit of Greg Williams# 6 Exhibit 6 − Transcript of Proceedings, July 8, 2004# 7 Exhibit 7 − Requests to Staff − Gary Middaugh)(Behrens, J) (Entered: 05/23/2005)
97 ORDER granting Plaintiff's 94 Motion for Extension of Time to File Response to Defendant's Motion for Summary Judgment. Response due by 6/8/2005. Signed by Judge Gary M. Purcell on 5/24/05. (dm) (Entered: 05/24/2005)
98 ENTER ORDER granting Defendant's 91 Unopposed Motion for Extension of Time to File Response to 80 MOTION for Summary Judgment . Signed by Judge Gary M. Purcell on 5/26/05. (dm) (Entered: 05/26/2005)
99 UNOPPOSED MOTION for Extension of Time to File Response/Reply as to 88 MOTION for Summary Judgment and Brief in Support by Dennis Earl Fulbright. (Eddy, Rand) (Entered: 06/06/2005)
100 UNOPPOSED MOTION for Leave to File Reply Brief in Response to Defendant's Response to Plaintiffs' Motion for Summary Judgment by Dennis Earl Fulbright. (Eddy, Rand) (Entered: 06/06/2005)
101 ORDER granting 99 Plaintiff's Unopposed Motion for Extension of Time to File Response to Defendant's Motion for Summary Judgment. Responses due by 6/22/2005. Signed by Judge Gary M. Purcell on 6/6/2005. (bc, ) (Entered: 06/06/2005)
102 ORDER granting 100 Plaintiff's Unopposed Motion for Leave to File Reply to Defendant's Response to Plaintiff's Motion for Summary Judgment. Signed by Judge Gary M. Purcell on 6/6/2005. (bc, ) (Entered: 06/06/2005)
103 NOTICE to Take Deposition of Gregg Williams by Dennis Earl Fulbright. (Eddy, Rand) (Entered: 06/07/2005)
104 UNOPPOSED MOTION for Leave to File A Brief in Excess of Page Limitations by Dennis Earl Fulbright. (Eddy, Rand) (Entered: 06/16/2005)
105 ORDER granting Plaintiff's 104 Unopposed Application for Leave to file a brief in excess of the page limit of 25 pages in support of their Response to Dft's Mtn for SJ. Signed by Judge Gary M. Purcell on 6/20/05. (dm) (Entered: 06/20/2005)
106 REPLY by Plaintiff Dennis Earl Fulbright re 96 Response to Motion, re: Plaintiff's Motion for Summary Judgment filed by Dennis Earl Fulbright. (Attachments: # 1 Exhibit Deposition of Robert Ezell# 2 Exhibit Deposition of Alan Kerby)(Eddy, Rand) (Entered: 06/22/2005)
107 RESPONSE to Motion re 88 MOTION for Summary Judgment and Brief in Support filed by Dennis Earl Fulbright. (Attachments: # 1 Part 2 − Response Brief# 2 Exhibit 1 − Transcript of Preliminary Hearing# 3 Exhibit 2 − Canteen Receipts# 4 Exhibit 3 − Deposition of Cottriel# 5 Exhibit 4 − Deposition of Ezell# 6 Exhibit 5 − Affidavit of Greg Williams# 7 Exhibit 6 − Deposition of Williams# 8 Exhibit 7 − Deposition of Kerby# 9 Exhibit 8 − Interoffice Memorandum# 10 Exhibit 9 − Food Budget Printout)(Eddy, Rand) (Entered: 06/22/2005)

Case: 5:03-cv-99 As of: 04/24/2015 01:23 PM CDT 9 of 14

06/24/2005 06/24/2005 06/27/2005
07/18/2005
09/08/2005
09/08/2005 09/27/2005 09/27/2005 09/27/2005 09/27/2005 09/27/2005 09/28/2005 09/28/2005
09/28/2005 10/11/2005 10/12/2005

108 UNOPPOSED MOTION for Leave to File Reply to Plaintiff's Response to Defendant's Motion for Summary Judgment by Ron Ward. (Behrens, J) (Entered: 06/24/2005)
110 Mail Returned (Doc. #105 Order granting lv to file brf in excess of 25 pgs) as Undeliverable. Mail sent to Dennis Earl Fulbright (dm) (Entered: 06/28/2005)
109 ORDER Before the Court is Defendant, Ron Ward's Unopposed Motion for Leave to File a reply toPlaintiffs' Response to Defendant's Motion for Summary Judgment. Plaintiffs' counsel does notobject to Defendant's request to file a reply brief. Therefore, the unopposed motion for leave to filea reply brief is granted. Defendant's reply brief shall be filed on or before July 18, 2005.DONE and ORDERED this 27th day of June, 2005.granting granting 108 Motion for Leave to File Reply . Signed by Judge Gary M. Purcell on 6/27/05. (sr, ) (Entered: 06/27/2005)
111 REPLY to Response to Motion re 88 MOTION for Summary Judgment and Brief in Support filed by Ron Ward. (Attachments: # 1 Exhibit 2 −− copy of transcript of deposition of Alan Kerby# 2 Exhibit 1 −− copy of transcript of deposition of Robert Ezell)(Doughty, Stefan) (Entered: 07/18/2005)
112 REPORT AND RECOMMENDATION re 80 MOTION for Summary Judgment filed by Dennis Earl Fulbright and 88 MOTION for Summary Judgment filed by Defendant. It is recommended that Plfs' Mtn for SJ be GRANTED &that Dft's Mtn for SJ be DENIED, that judgment issue in favor of Plfs &against the Dft, &that the temporary injunction be made permanent. Objections to RRdue by 9/28/2005. This 3rd Supplemental RRdisposes of all issues ref to the undersigned Judge in the captioned matter. Signed by Judge Gary M. Purcell on 9/8/05. (dm) (Entered: 09/08/2005)
Judge Gary M. Purcell no longer assigned to case. (dm) (Entered: 09/08/2005)
113 ENTRY of Appearance by Guy L Hurst on behalf of all defendants (Hurst, Guy) (Entered: 09/27/2005)
Docket Annotation: Please disregard Document number 113 as it was filed in error. It will be resubmitted. (brs, ) (Entered: 09/27/2005)
114 ENTRY of Appearance by Guy L Hurst on behalf of Edward L Evans (Hurst, Guy) (Entered: 09/27/2005)
115 MOTION to Dismiss of Edward L. Evans and Brief in Support by Edward L Evans. (Hurst, Guy) (Entered: 09/27/2005)
116 MOTION for Extension of Time to File Objection to Third Supplemental Report and Recommendation By Evans by Edward L Evans. (Hurst, Guy) (Entered: 09/27/2005)
117 MOTION for Order to Withdraw Counsel of Record by Ron Ward. (Behrens, J) (Entered: 09/28/2005)
118 ORDER granting 116 Motion for Extension of Time to File objections to the Third Supplemental R &R. Defendant is granted 7 days after the Court resolves his Motion to Dismiss to file his objections. Signed by Judge Lee R. West on 9/28/05. (brs, ) (Entered: 09/28/2005)
119 ORDER granting 117 Motion to Withdraw Attorney Stefan K. Doughty . Signed by Judge Lee R. West on 9/28/05. (brs, ) (Entered: 09/28/2005)
120 MOTION for Extension of Time to File Response/Reply as to 115 MOTION to Dismiss of Edward L. Evans and Brief in Support and Leave to take the deposition of Edward L. Evans by Dennis Earl Fulbright. (Eddy, Rand) (Entered: 10/11/2005)
121 ORDER granting 120 Motion for Extension of Time and for Leave to Take the Deposition of Edward L. Evans. The plaintiffs are granted leave to depose defendant Edward Evans and the plaintiffs are directed to respond no later than 11/7/05 to the Motion to Dismiss . Signed by Judge Lee R. West on 10/12/05. (brs, ) (Entered: 10/12/2005)

Case: 5:03-cv-99 As of: 04/24/2015 01:23 PM CDT 10 of 14

11/01/2005
11/01/2005
11/08/2005 11/28/2005
12/01/2005 12/09/2005 12/09/2005 12/09/2005 12/09/2005 12/09/2005 01/06/2006
01/20/2006 01/26/2006
02/08/2006 02/22/2006 02/22/2006
02/22/2006

122 UNOPPOSED MOTION for Extension of Time to File Response/Reply as to 115 MOTION to Dismiss of Edward L. Evans and Brief in Support and for Leave to Take the Deposition of Justin Jones by Dennis Earl Fulbright. (Eddy, Rand) (Entered: 11/01/2005)
123 ORDER granting 122 Motion for Extension of Time to File Response re 115 MOTION to Dismiss of Edward L. Evans and Brief in Support; Response due by 11/28/2005. The Court also grants leave to depose Justin Jones. Signed by Judge Lee R. West on 11/1/05. (brs, ) (Entered: 11/01/2005)
124 NOTICE to Take Deposition of Justin Jones by Dennis Earl Fulbright. (Eddy, Rand) (Entered: 11/08/2005)
125 RESPONSE to Motion re 115 MOTION to Dismiss of Edward L. Evans and Brief in Support filed by Dennis Earl Fulbright. (Attachments: # 1 Exhibit 1 − Fulbright Affidavit# 2 Exhibit 2 − Harmon Affidavit# 3 Exhibit 3 − Director's News Update# 4 Exhibit 4 − Jones Deposition# 5 Exhibit 5 − November 4, 2005 letter# 6 Exhibit 6 − DOC Policy)(Eddy, Rand) (Entered: 11/28/2005)
126 ORDER that the Court Directs Justin Jones, hereby substituted as the defendant, to file a reply on or before 12/9/05, to the Plaintiffs' Objection and Response re 125 , 115 . Signed by Judge Lee R. West on 12/1/05. (brs, ) (Entered: 12/01/2005)
127 ENTRY of Appearance by J Kevin Behrens on behalf of Justin Jones (Behrens, J) (Entered: 12/09/2005)
128 FIRST MOTION for Leave to Appear Entry of Appearance by Justin Jones. (Hurst, Guy) (Entered: 12/09/2005)
129 RESPONSE to Motion re 115 MOTION to Dismiss of Edward L. Evans and Brief in Support Director Justin Jones' Reply for His Motion to Dismiss filed by Justin Jones. (Hurst, Guy) (Entered: 12/09/2005)
130 ENTRY of Appearance by Guy L Hurst on behalf of Justin Jones (Hurst, Guy) (Entered: 12/09/2005)
Docket Annotation: Please disregard document number 128 as being filed incorrectly. It has been correctly filed as document number 130 . (brs, ) (Entered: 12/12/2005)
131 ORDER denying 115 Motion to Dismiss. Directing the parties to confer within 7 days to agree upon a proposed order and to submit such an order to the Court for approval. Should the parties be unable to agree upon the order and instead, desire to file objections to the Third Supplemenal R &R, the Court extends the deadline for doing so to 10 days from this date re 112 . Signed by Judge Lee R. West on 1/6/05. (brs, ) (Entered: 01/06/2006)
132 OBJECTION to 112 Report and Recommendation by Justin Jones. (Behrens, J) (Entered: 01/20/2006)
133 ORDER ADOPTING REPORT AND RECOMMENDATION and denying the motions for summary judgment. The Court directs plaintiffs to submit within 7 days, for the Court's approval, a proposed judgment re 112 , 88 , 80 . Signed by Judge Lee R. West on 1/26/06. (brs, ) (Entered: 01/26/2006)
134 JUDGMENT in favor of plaintiffs . Signed by Judge Lee R. West on 2/8/06. (brs, ) (Entered: 02/08/2006)
135 BRIEF IN SUPPORT of Application for Bill of Costs by Dennis Earl Fulbright. (Eddy, Rand) (Entered: 02/22/2006)
136 BILL OF COSTS by Dennis Earl Fulbright. (Attachments: # 1 Exhibit 1 − Bill of Costs Itemization# 2 Exhibit 2 − Disbursement Invoice# 3 Exhibit 3 − Fees of the Clerk# 4 Exhibit 4 − Fees for Court Reporters# 5 Exhibit 5 − Fees for Witnesses# 6 Exhibit 6 − Fees for Exemplification and Copies# 7 Exhibit 7 − Other Costs − Part 1# 8 Exhibit 7 − Other Costs − Part 2)(Eddy, Rand) (Entered: 02/22/2006)
137 MOTION for Attorney Fees and Brief In Support by Dennis Earl Fulbright. (Attachments: # 1 Exhibit 1 − Eddy Affidavit)(Eddy, Rand) (Entered: 02/22/2006)

Case: 5:03-cv-99 As of: 04/24/2015 01:23 PM CDT 11 of 14

02/22/2006 03/07/2006 03/08/2006 03/13/2006 03/13/2006 03/13/2006 03/17/2006 03/17/2006 03/22/2006
03/30/2006
04/04/2006 04/07/2006
04/10/2006 04/11/2006 04/17/2006
04/21/2006 05/02/2006 05/02/2006 05/02/2006 05/08/2006 05/09/2006

138 NOTICE OF BILL OF COSTS HEARING, Bill of Costs Hearing set for 4/4/2006 at 10:00 AM in Court Clerk's Office (brs, ) (Entered: 02/23/2006)
139 NOTICE OF APPEAL by Justin Jones. (Behrens, J) (Entered: 03/07/2006)
140 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 139 Notice of Appeal (dl, ) (Entered: 03/08/2006)
141 USCA Case Number 06−6098 for 139 Notice of Appeal filed by Justin Jones,. (dl, ) (Entered: 03/13/2006)
142 RESPONSE to Motion re 137 MOTION for Attorney Fees and Brief In Support filed by Justin Jones. (Behrens, J) (Entered: 03/13/2006)
143 RESPONSE to Plaintiffs' Bill of Costs filed by Justin Jones. (Behrens, J) (Entered: 03/13/2006)
144 TRANSCRIPT Order Form by Justin Jones that transcripts are not necessary. See order form for dates and proceedings. (Behrens, J) (Entered: 03/17/2006)
145 USCA Appeal Fee received in the amount of $ 255, receipt number 115460, re 139 Notice of Appeal filed by Justin Jones, (dl, ) (Entered: 03/20/2006)
146 ORDER that Plaintiff is directed to file a reply by 3/30/06 to their Motion for Attorney Fees re 137 . Signed by Judge Lee R. West on 3/22/06. (brs, ) (Entered: 03/22/2006)
147 REPLY to Response to Motion re 137 MOTION for Attorney Fees and Brief In Support filed by Dennis Earl Fulbright. (Attachments: # 1 Exhibit 1 − 18 USC Sec. 3006A# 2 Exhibit 2 − Behrens correspondence)(Eddy, Rand) (Entered: 03/30/2006)
148 Costs Taxed in amount of $ 3,359.85 against Defendant (brs, ) (Entered: 04/04/2006)
149 TRANSCRIPT LETTER advising that transcripts are not necessary re 139 Notice of Appeal filed by Justin Jones,. The record is ready for appeal purposes. (dl, ) (Entered: 04/07/2006)
150 ORDER granting 137 Motion for Attorney Fees. Signed by Judge Lee R. West on 4/10/06. (lb) (Entered: 04/10/2006)
151 OBJECTIONS re 150 Order on Motion for Attorney Fees filed by Justin Jones. (Behrens, J) (Entered: 04/11/2006)
152 ORDER advising the plaintiffs that if they intend to respond to the defendant's Objectsions, such response should be filed no later than 4/21/06 re 151 Objections filed by Justin Jones, . Signed by Judge Lee R. West on 4/17/06. (brs, ) (Entered: 04/17/2006)
153 REPLY by Plaintiff Dennis Earl Fulbright re 151 Objections to Order Taxing Costs filed by Dennis Earl Fulbright. (Eddy, Rand) (Entered: 04/21/2006)
154 NOTICE by Justin Jones re 150 Order on Motion for Attorney Fees Notice of Appeal of Judgment of Attorney Fees (Behrens, J) (Entered: 05/02/2006)
155 NOTICE OF APPEAL as to 150 Order on Motion for Attorney Fees by Justin Jones. (Behrens, J) (Entered: 05/02/2006)
156 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 155 Notice of Appeal (dl, ) (Entered: 05/02/2006)
157 USCA Case Number 06−6161 for 155 Notice of Appeal filed by Justin Jones,. (dl, ) (Entered: 05/08/2006)
158 ORDER that the Court Overrules Jones' Objection to Order Taxing Costs and Affirms the Clerk's award of costs in favor of the plaintiffs in the amount of $3,359.85 re 151 . Signed by Judge Lee R. West on 5/9/06. (brs, ) (Entered: 05/09/2006)

Case: 5:03-cv-99 As of: 04/24/2015 01:23 PM CDT 12 of 14

05/11/2006 06/08/2006 07/28/2006
03/30/2007 04/02/2007 04/04/2007 04/09/2007 06/28/2012
06/29/2012
06/29/2012 07/05/2012 07/18/2012 07/19/2012
07/20/2012 07/26/2012 07/27/2012 07/31/2012 08/10/2012 08/13/2012

159 USCA Appeal Fee received in the amount of $ 455, receipt number 116368, re 155 Notice of Appeal filed by Justin Jones, (dl, ) (Entered: 05/15/2006)
160 TRANSCRIPT LETTER advising that no transcripts are necessary re 155 Notice of Appeal filed by Justin Jones,. The record is ready for appeal purposes. (dl, ) (Entered: 06/08/2006)
161 MANDATE From USCA − Upon consideration of the stipulation to dismiss these appeals, it is ordered that the appeals be hereby are DISMISSED 139 Notice of Appeal filed by Justin Jones,, 155 Notice of Appeal filed by Justin Jones, (dl, ) (Entered: 07/28/2006)
162 MOTION to Withdraw as Attorney by Dennis Earl Fulbright. (Eddy, Rand) (Entered: 03/30/2007)
163 ORDER granting 162 Motion to Withdraw as Attorney. Attorney Rand C Eddy terminated. Signed by Judge Lee R. West on 4/2/07. (brs, ) (Entered: 04/02/2007)
164 MOTION for Order to Allow Substitution of Counsel by Justin Jones. (Martin, Angela) (Entered: 04/04/2007)
165 ORDER granting 164 Motion for Order to Allow Substitution of Counsel. Signed by Judge Lee R. West on 4/9/07. (brs, ) (Entered: 04/09/2007)
166 MOTION for Order by Fred Smith. (Attachments: # 1 Exhibit 1−Letter from CCA, # 2 Exhibit 2−Meal Plan, # 3 Exhibit 3−Request to Staff, # 4 Exhibit 4−Request to Staff, # 5 Exhibit 5−Affidavit, # 6 Exhibit 6−Affidavit, # 7 Exhibit 7−Request to Staff, # 8 Exhibit 8−Response from CCA)(db, ) (Entered: 06/29/2012)
167 ORDER for Response on or before 7/19/12 by Justin Jones to 166 MOTION for for Finding of Contempt or for Supplementary Order filed by non−pty Fred Smith; DIRECTS Clk of Court to mail copy of this Order to Fred Smith, #218694, Davis Corr Facility, 6888 E 133rd Rd AN−146, Holdenville OK 74848; and electronically transmit copy of Smith's Mtn and this Order to Atty Gen of St of OK at fhc.docket@oag.state.ok.us. Signed by Honorable Lee R. West on 6/29/12. (ap) (Entered: 06/29/2012)
Set/Reset Deadlines as to 166 MOTION for Order. Responses due by 7/19/2012 (ap) (Entered: 06/29/2012)
168 Mail Returned as Undeliverable. Mail sent to Dennis Earl Fullbright (ap) (Entered: 07/12/2012)
169 MOTION to Amend/Correct 167 Order for Response, Brief Schedule by Justin Jones. (Regens, Craig) (Entered: 07/18/2012)
170 ORDER RE−REFERRING CASE to Magistrate Judge Gary M. Purcell. Including Mtn for Finding of Contempt, Doc #177, Mtn to Amend, Doc #179, filed in CIV−03−125−W; DIRECTS Clk of Court to mail copy of this Order to Fred Smith to address in Order. Signed by Honorable Lee R. West on 7/19/12. (ap) (Entered: 07/19/2012)
171 ORDER granting 169 Motion to Amend/Correct Order for Response. Signed by Magistrate Judge Gary M. Purcell on 7/20/2012. (brs) (Entered: 07/20/2012)
172 Mail Returned as Undeliverable. Mail sent to Dennis Earl Fulbright, Doc #171, Order, did not remail (ap) (Entered: 07/26/2012)
173 Mail Returned as Undeliverable. Mail sent to Dennis Earl Fulbright, Doc #170, Order, did not remail (ap) (Entered: 07/27/2012)
174 RESPONSE to Motion re 166 MOTION for Order for Contempt filed by Justin Jones. (Attachments: # 1 Exhibit OP−090124, # 2 Exhibit Clarkson v. Caoughlin)(Regens, Craig) (Entered: 07/31/2012)
175 MOTION for Leave to Reply by Fred Smith. Motions referred to Gary M. Purcell. (db, ) (Entered: 08/10/2012)
176 FOURTH SUPPLEMENTAL REPORT AND RECOMMENDATION re 166 MOTION for Order filed by Fred Smith. it is recommended that Mr. Smiths

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08/13/2012 08/20/2012 08/22/2012 09/06/2012
09/06/2012 09/06/2012 09/06/2012 09/14/2012 09/26/2012
10/04/2012 10/05/2012 10/10/2012
10/18/2012 08/29/2013

Motion for Finding of Contempt or for a Supplementary Order be DENIED. Defendant Jones Motion to Amend Briefing Schedule is denied as moot. Mr. Smith is advised of the right to file an objection to this Fourth Supplemental R &R by 9/4/2012. This Fourth Supplemental Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied. Signed by Magistrate Judge Gary M. Purcell on 8/13/2012. (brs) (Entered: 08/13/2012)
Magistrate Judge Gary M. Purcell no longer assigned to case. (brs) (Entered: 08/13/2012)
177 Mail Returned as Undeliverable. Document 176 sent to Dennis Earl Fulbright marked "Return to Sender" "Unknown" (kw, ) (Entered: 08/21/2012)
178 NOTICE of Change of Address of Mr. Cottriel by Fred Smith (db, ) Modified on 8/23/2012 (db, ). (Entered: 08/23/2012)
179 ORDER on 8/13/12, US Magistrate Judge Gary M Purcell issd 176 Fourth Supplemental REPORT AND RECOMMENDATION re 166 ; because there is no indication that Magistrate Judge Purcell's findings and recommendations were mailed to nonpty Fred Smith, the Court DIRECTS the Clk of Court to mail a copy of this order and copy of Fourth Suppl RRto Fred Smith, #218694, Davis Corr Facility, 6888 E 133rd Rd AN−146, Holdenville OK 74848 and show proof of same in records; EXTENDS deadline Smith may obj to Fourth Suppl RRto 9/24/12. Signed by Honorable Lee R West on 9/6/12 (ap) . (Entered: 09/06/2012)
Docket Annotation: Doc Entry #179 was modifed to reflect the signing of Order by Judge West (ap) (Entered: 09/06/2012)
Docket Annotation: Copies of Docs #176, #179, mailed by US Mails to nonpty Fred Smith to address listed in Doc #179, Order (ap). (Entered: 09/06/2012)
Docket Annotation: Second Doc Entry re mailing modified to reflect Docs #176 and #179 mailed to nonpty (ap) (Entered: 09/06/2012)
180 OBJECTION TO REPORT AND RECOMMENDATION 176 filed by Fred Smith. (db, ) (Entered: 09/17/2012)
181 ORDER ADOPTING REPORT AND RECOMMENDATION the Court ADOPTS the 176 Fourth Supplemental Report and Recommendation; FINDS the judgment entered on 2/8/06, pertains only to claims by Fulbright, Cottriel and and Harmon agst Jones and contains no language that permits it to be enforced by all DOC inmates; deems MOOT Smith's 175 Motion for Leave to Reply; DENIES Smith's 166 Motion for Finding of Contempt or for a Supplementary Order; deems MOOT Jones' Motion to Amend Briefing Schedule; DIRECTS Clk of Court to mail copy of this Order to Fred Smithk #218694, CCA Davis Corr Facility, 6888 E 133rd Rd AN−146, Holdenville OK and show proof in the records. Signed by Honorable Lee R. West on 9/26/12. (ap) (Entered: 09/26/2012)
182 Mail Returned as Undeliverable. Mail, Doc #181, sent to Dennis Earl Fulbright, returned marked "unknown", did not remail (ap) (Entered: 10/04/2012)
183 MOTION for Reconsideration re 181 Order Adopting Report and Recommendation,, by Fred Smith. (db, ) (Entered: 10/09/2012)
184 ORDER the Court DENIES Smith's 183 Motion for Reconsideration; DIRECTS the Clk of Court to mail a copy of this Order to Fred Smith, #218694, CCA Davis Corr Facility, 6888 E 133rd Rd DS−147, Holdenville OK 74848 and show proof of same in records. Signed by Honorable Lee R. West on 10/10/12. (ap) (Entered: 10/10/2012)
185 Mail Returned as Undeliverable. Mail sent to Dennis Earl Fulbright; Doc #184, Order, returned. Did not remail. (ap) (Entered: 10/19/2012)
186 SIXTH REPORT AND RECOMMENDATION: it is recommended that Plaintiffs Application to Hold Defendant In Contempt Pursuant to Rule 70(e) of Federal Rules of Civil Procedure (Docs. # 194, 197). Objections to RRdue by 9/18/2013. This Sixth Supplemental Report and Recommendation disposes of all issues

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09/06/2013

referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied. Signed by Magistrate Judge Gary M. Purcell on 8/29/2013. (brs) (Entered: 08/29/2013)
187 Mail Returned as Undeliverable. Mail sent to Dennis Earl Fulbright, Doc #186, Sixth Suppl Rreturned 'Unknown', did not remail (ap) (Entered: 09/06/2013)