Edward Barocas Nadia Seeratan ACLU ofNew Jersey Foundation P.O. Box 32159 Newark, NJ 07102 (973) 642-2086

Daniel Mach* ACLU Foundation Program on Freedom of
Religion and Belief 915 15th St., NW Washington, DC 20005 (202) 675-2330
*Pro hac vice application pending

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

HOWARD THOMPSON, JR.,

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Plaintiff,

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v.

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MICHELLE R. RICCI, in her official capacity

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as Administrator, New Jersey State Prison; and *

GEORGE W. HAYMAN, in his official capacity *

as Commissioner, New Jersey Department of

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Corrections,

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Defendants.

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VERIFIED COMPLAINT

Civil Action No.

INTRODUCTION The Religious Land Use and Institutionalized Persons Act of2000 ("RLUIPA") and the Free Exercise Clause of the First Amendment prohibit prison officials from substantially burdening the religious practice of inmates without sufficient justification. Howard Thompson, Jr., the Plaintiff in this case, is a prisoner at New Jersey State Prison ("NJSP") and an ordained Pentecostal minister. For over a decade, he has been preaching at Sunday Protestant services at

1

NJSP and leading other inmates in religious activities such as choir and Bible study. Far from disrupting security at NJSP, Mr. Thompson's activities have been praised by NJSP chaplains as helpful to the rehabilitation ofmany of those confined at NJSP. Last year, however, NJSP implemented a new policy - without warning or justification - that bans Mr. Thompson and all other inmates from preaching in the prison.
NJSP's blanket prohibition on inmate preaching prevents Mr. Thompson from fulfilling his religious calling as a minister and a Pentecostal. Because the policy is not the least restrictive means of advancing any compelling governmental interest, it violates Mr. Thompson's rights under RLUIPA. And because, as currently formulated, it serves no legitimate penological interest, it contravenes the Free Exercise Clause as well. Mr. Thompson files this action to vindicate his right to religious liberty and, more specifically, to restore his ability to preach at NJSP.
JURISDICTION AND VENUE 1. This action arises under the Constitution and laws of the United States, including 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §§ 2000cc, et seq. ("RLUIPA"). This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. 2. This Court has jurisdiction to issue the declaratory relief requested pursuant to the Declaratory Relief Act, 28 U.S.C. §§ 2201, 2202. 3. Venue is proper in the District of New Jersey pursuant to 28 U.S.C. § 1391(b), because all parties reside within the District of New Jersey and the events described in this Complaint occurred in the District of New Jersey.
PARTIES
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4. Plaintiff Howard Thompson, New Jersey State Prisoner #204-289/ SBI # 97607B, is an inmate at New Jersey State Prison ("NJSP"). In 1986, Mr. Thompson was sentenced to 30 years to life in prison. As an ordained minister in the Pentecostal faith, Mr. Thompson feels compelled by his sincerely held religious beliefs to preach and minister to other inmates.
5. Defendant Michelle R. Ricci is employed by the New Jersey Department of Corrections ("NJ DOC") as the Administrator ofNJSP. She is responsible for the daily operations ofNJSP, including all policies relating to prisoners' freedom to preach and minister to others inmates. Ricci is sued in her official capacity.
6. Defendant George W. Hayman is the Commissioner ofthe NJ DOC. He is responsible for the overall operations of the prison facilities in the State ofNew Jersey, including NJSP. Hayman is sued in his official capacity.
FACTS 7. Since he entered NJSP in 1986, Mr. Thompson, an adherent of the Pentecostal faith, has been an active member of the prison's Christian community, participating in and preaching at Sunday services and other religious events, and founding the Protestant choir. 8. As a Pentecostal, Mr. Thompson believes that he has a religious calling to spread the Good News of the Kingdom of God through preaching, study of the Bible, and ministry to others. 9. Those beliefs are deeply and sincerely held by Mr. Thompson. 10. Mr. Thompson first preached in a service at NJSP over a decade ago, when he relieved Bishop Joseph P. Ravenell, the NJSP Protestant Chaplain at the time who was unable to lead the service due to temporary illness.
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11. During the next decade, prior to his ordination as a Pentecostal minister, Mr. Thompson periodically preached at Sunday services, taught Bible study classes, and participated in and led the prison choir.
12. In October of2000, in a service at NJSP overseen by then-Chaplain Samuel K. Atchison, and attended by Bishop Ravenell and two chaplaincy volunteers, Bishop Lawrence S. Thompson and Pastor Stephen Miller, Mr. Thompson was ordained as a Pentecostal minister.
13. Mr. Thompson received the call of ordination and deeply and sincerely believes he has a spiritual calling to preach and lead others in worship, study, and prayer.
14. Although Mr. Thompson began preaching at NJSP long before October of2000, after his ordination, he assumed a more regular schedule ofpreaching at Protestant services in the prison and leading other activities, such as Bible study classes.
15. From October 2000 to September 2006, during Rev. Atchison's tenure as Protestant Chaplain, Mr. Thompson and Rev. Atchison worked together to provide a variety of religious services for Protestant inmates. With Rev. Atchison's express permission and cooperation, Mr. Thompson routinely preached the Sunday morning Protestant worship services at NJSP. Mr. Thompson estimates that he led approximately twelve of these Sunday services per year. Mr. Thompson also preached at additional services held for special occasions such as Holy Week.
16. On certain weeknights, Mr. Thompson taught Bible study classes. Although a volunteer usually attended these classes, Mr. Thompson - rather than the volunteer -led the classes.
17. At various times, inmates needed to prepare for baptismal services. Mr. Thompson conducted special courses for that purpose.
18. On several other occasions, Mr. Thompson held a special four-week course to train inmates to give five-minute testimonies during Sunday morning worship services.
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19. Chaplain Atchison knew of and supported Mr. Thompson's provision of religious services to Protestant inmates. Atchison sometimes, but not always, attended the services and events that Mr. Thompson led.
20. In September 2006, the NJ DOC removed Atchison from NJSP and replaced him with an interim Protestant Chaplain, Rev. DeWitt Timmons, who was neither required nor expected to lead regularly scheduled Sunday services. During Chaplain Timmons' tenure, Mr. Thompson took on the responsibility of ensuring that religious services were available to Protestant inmates. With Chaplain Timmons's approval, and under the supervision of chaplaincy volunteers, Mr. Thompson set the order for services, preached, and provided pastoral care to the Protestant congregation.
21. Mr. Thompson continued to participate in these activities until June 25,2007. 22. No problem or disturbance ever arose in any ofthe services or classes that Mr. Thompson led under Rev. Atchison's or Rev. Timmons's tenure. 23. On June 25,2007, Rev. Pamela Moore took over as Protestant Chaplain at NJSP. 24. Shortly after her arrival, Chaplain Moore informed Mr. Thompson that the administration had banned all inmate preaching at NJSP. 25. Howard Thompson deeply and sincerely believes it is his religious obligation and calling to preach and teach his Pentecostal faith. He is willing to do so under the supervision of and in cooperation with NJSP staff; but under current prison policy, Mr. Thompson will be subject to administrative sanction ifhe attempts to preach to other inmates or lead them in religious services. 26. In addition to Mr. Thompson, numerous other prisoners at NJSP have assumed leadership positions in a variety of contexts, with the express knowledge and permission ofthe NJSP administration. Inmates at NSJP have leadership roles in, for example: the local NAACP
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chapter; the Inmate Legal Association; Trenton Incarcerated Veterans; the L.I.F.E. (Learning Is For Everyone) Program; and Toastmasters.
27. Since June of2007, when Mr. Thompson was first informed of the ban on inmate preaching, he has repeatedly sought to have that ban lifted so that he may preach again. Prison officials have declined to lift the ban or to provide any other way for Mr. Thompson to exercise his religious calling.
28. On April 9, 2008, Mr. Thompson filed an Inmate Remedy System Form at NJSP, seeking accommodation of his religious beliefs and permission to preach. See Exhibit A, Part 1 and continuation (attached hereto). In response, Mr. Thompson received an answer dated April 15,2008. That response rejected Mr. Thompson's request, stating simply, "Staff and Volunteers are assigned the duties to provide religious services. Not inmates." See Exhibit A, Part 3.
29. Mr. Thompson filed a completed administrative appeal form on April 23, 2008. See Exhibit B, Part 4 and continuation (attached hereto).
30. Administrator Ricci rejected Mr. Thompson's appeal on April 28, 2008, stating, "Staff and volunteers will continue to provide religious services to the inmate population at NJSP." No further explanation was given. See Exhibit B, Part 5.
31. Mr. Thompson has exhausted his administrative appeals. 32. On October 2,2008, counsel for Mr. Thompson sent Defendants Ricci and Hayman a demand letter, highlighting Mr. Thompson's statutory and constitutional right to preach at NJSP and seeking resolution of this issue, ifpossible, without resort to litigation. See Exhibit C (attached hereto). 33. In a letter to Mr. Thompson's counsel dated November 5, 2008, Marcus Hicks, Assistant Director for NJ DOC's Office of Community Programs and Outreach Services, purported to respond to the October 2 letter. Hicks's letter, however, addressed an entirely
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separate issue (the procedure for inviting outside volunteers to minister to inmates). The letter offered no accommodation of Mr. Thompson's right to preach at NJSP; indeed, the letter did not discuss in any way the requests reiterated in the October 2 demand letter. See Exhibit D (attached hereto).
34. To date, Defendants have refused to lift the preaching ban and have failed to accommodate Mr. Thompson's sincere religious beliefs.
FIRST CLAIM FOR RELIEF (RLUIPA 42 U.S.C. §§ 2000cc, et seq.) 35. The allegations of paragraphs 1-34 are incorporated herein. 36. The Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §§ 2000cc, et seq. ("RLUIPA"), bars federally funded institutions from imposing substantial burdens on inmates' religious exercise, unless the government demonstrates that imposition ofthe burden furthers a compelling governmental interest and is the least restrictive means of furthering that interest. 37. NJSP receives financial assistance from the U.S. government. 38. NJSP's policy banning inmate preaching, and its refusal to grant Plaintiff Thompson an accommodation under that policy, substantially burdens Mr. Thompson's religious exercise and sincerely held religious belief. 39. NJSP's policy banning inmate preaching, and its refusal to grant Plaintiff Thompson an accommodation under that policy, is not the least restrictive means of furthering any compelling governmental interest. 40. NJSP's policy and actions therefore violate RLUIPA.
SECOND CLAIM FOR RELIEF (First Amendment; 42 U.S.C. § 1983)
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41. The allegations of paragraphs 1-40 are incorporated herein. 42. The First Amendment of the U.S. Constitution protects the rights of all persons freely to exercise their religious beliefs. 43. Preaching and ministering to other inmates is central to Mr. Thompson's sincerely held religious beliefs. 44. Mr. Thompson's long-established practice ofpreaching to other inmates and leading them in religious activities such as Bible study was revoked for reasons that have no reasonable relationship to any legitimate penological interest. 45. By denying Mr. Thompson the chance to follow his religious calling, Defendants, acting under color oflaw, have improperly and unjustifiably infringed Thompson's right to the free exercise of religion, in violation of the First Amendment.
RELIEF REQUESTED Wherefore, Plaintiffprays that this Court enter judgment:
(a) Declaring that the Defendants, while acting under color of state law, violated RLUIPA and the U.S. Constitution by denying Plaintiff the right to practice his religious beliefs;
(b) Enjoining Defendants from prohibiting Mr. Thompson from preaching and ministering to other inmates, from leading religious services, and from teaching religious classes, including Bible study;
(c) Awarding Plaintiff nominal damages; (d) Awarding Plaintiff the costs ofthis action, including reasonable attorneys'
fees; and
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(e) Awarding Plaintiff such other and further relief as the Court deems just and proper.
Respectfully submitted,
/s/ Ed Barocas
Daniel Mach ACLU Foundation Program on Freedom of
Religion and Belief 915 15th St., NW Washington, DC 20005 (202) 675-2330
*Pro hac vice application pending
Edward Barocas Nadia Seeratan ACLU of New Jersey P.O. Box. 32159 Newark, NJ 07102 (973) 642 2086 Attorneysfor Plaintiff
VERIFICATION I, Howard Thompson, Jr., declare and verify under penalty of perjury that the foregoing Verified Complaint is true and correct, to the best of my information and belief.
Ai Executed on 01 'ZV ,2008.
Howard Thompson,
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 DIV OF LAW COPY ROOM Fax:609-777-3117

Dec 23 2008 15:59

P.04

Case 3:08-cv-05926-AET-DEA Document 6 Filed 12/29/08 Page 1 of 2 PageID: 71

ANNE MILGRAM ATTORNEY GENERAL OF NEW JERSEY R.J. Hughes Justice Comple~ 25 Market Street P.O. Box 112 Trenton, New Jersey 08625 Potential Attorney for Defendants George Hayman and Michelle Ricci

By: Susan M. Scott Deputy Attorney General

RECE\VED

(609) 633-7786

susan.scott@dol.lps.state.nj.us

DEC 19 ?008

_hi UNITED STATES DISTRICT COURT

fOR THE DISTRICT OF NEW JERSEY

VICINAGE OF TRENTON

HOWARD THOMPSON, JR., Plaintiff,
v. MICHELLE R. RICCI, et al.,
Defendants.

HON. ANNE E. THOMPSON, U.S.D.J. Civil Action No. 08-5926 (AET)
ORDER

The following is a joint order for the above-captioned matter, submitted by Anne Milgram, Attorney General of New Jersey, by Susan M. Scott, Deputy Attorney General, as potential counsel on behalf of Defendants George Hayman and Michelle Ricci, with the consent of Edward L. Barocas, Esquire and Daniel Mach, Esquire, counsel for Plaintiff.
IT IS ON this ORDEFED that:
1) Plaintiff's motion for a prelimir.a::y in) unctio:1 is adjourned to February 17, 2009;

DIV OF LAW COPY ROOM Fax:609-777-3117

Dec 23 2008 15:59

P.05

Case 3:08-cv-05926-AET-DEA Document 6 Filed 12/29/08 Page 2 of 2 PageID: 72

2) Defendants' opposition, if any, to Plaintiff's motion for a preliminary injunction is due by January 16, 2009; and,
3) Plaintiff's, reply, if any, is due by Februar 9, 2009.

 
 Case 3:08-cv-05926-AET-DEA Document 18 Filed 02/23/09 Page 1 of 6 PageID: 159

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

HOWARD THOMPSON, JR., Plaintiff, v.
MICHELLE R. RICCI, et al., Defendants.

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:

Civil No. 08-5926 (AET)

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MEMORANDUM AND ORDER

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THOMPSON, U.S.D.J.

INTRODUCTION

This matter comes before the Court on Plaintiff’s Motion for a Preliminary Injunction [2].

On December 29, 2008, the Court issued an Order [6] adjourning the matter until February 17,

2009. On February 17, 2009, the Court heard oral arguments in the matter. For the reasons

stated below, Plaintiff’s motion is denied.

BACKGROUND

A. Factual Background

Plaintiff Howard Thompson, Jr., is an inmate at the New Jersey State Prison (“NJSP”).

Plaintiff brings suit against Michelle Ricci, the administrator of the NJSP; and George Hayman,

the Commissioner of the New Jersey Department of Corrections (“NJDOC”)(collectively

“Defendants”). In 1986, Thompson was sentenced to thirty years-to-life in prison. Plaintiff

states that since his incarceration began at NJSP–a high security prison, he has participated in

NJSP’s Protestant Christian community, including preaching at worship services. Plaintiff

Case 3:08-cv-05926-AET-DEA Document 18 Filed 02/23/09 Page 2 of 6 PageID: 160
adheres to the Pentecostal faith and believes he has a religious calling to spread “the Good News of the Kingdom of God” through preaching and ministering to others. Plaintiff states he was ordained as a minister in 2000 and the former chaplain at NJSP, Rev. Atchinson, approved of Plaintiff leading Protestant services at NJSP. In 2006, Plaintiff states he began regularly preaching at weekly services.
In 2007, Rev. Atchinson’s tenure as chaplain terminated, at which point he was replaced by Rev. Moore. Rev. Moore did not permit Plaintiff to continue preaching, allegedly citing a ban on formal inmate-led preaching. Defendants assert that NJSP chaplains did not and do not have the authority to permit Plaintiff to preach at formal services, and that there is no formal blanket ban on inmate preaching. Defendants further assert that Plaintiff is allowed to preach informally, in groups of six persons or less, but that prison policies against formal inmate leadership and assembling in groups of more than six inmates are necessary for the safe administration of the prison. B. Procedural Background
On April 9, 2008, Plaintiff filed an administrative complaint with the NJDOC regarding restrictions on his preaching. NJDOC instructed Plaintiff that the task of providing religious services to inmates was assigned to staff and outside volunteers, not to other inmates. In October 2008, Plaintiff, through counsel, requested Defendants lift their ban on inmate-led preaching. Plaintiff was dissatisfied with the response he received from NJDOC and filed the instant action, requesting a preliminary injunction forbidding Defendants from enforcing a blanket policy against inmate preaching, contending it violates his rights under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”). For the reasons stated below, Plaintiff’s request for
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Case 3:08-cv-05926-AET-DEA Document 18 Filed 02/23/09 Page 3 of 6 PageID: 161
injunctive relief is denied. DISCUSSION
A. Standard for Preliminary Injunction When considering a motion for injunctive relief, the Court must consider: (1) the
likelihood of the movant’s success on the merits; (2) the probability of irreparable injury to the movant in the absence of injunctive relief; (3) the possibility of harm to the non-movant if relief is granted; and (4) the public interest. Gerardi v. Pellulo, 16 F.3d 1363, 1373 (3d Cir. 1994) (citations omitted). Furthermore, injunctive relief is by its nature an extraordinary remedy which should be granted in limited circumstances. Frank’s GMC Truck Ctr., Inc., v. Gen. Motors Corp., 847 F.2d 100, 102 (3d Cir. 1988). B. The Prisoner Litigation Reform Act
Because Plaintiff is a prisoner litigant, the Court must also consider the Prison Litigation Reform Act (“PLRA”) before it can grant injunctive relief to an incarcerated individual. When granting injunctive relief pursuant to the PLRA, four additional criteria must be met: (1) the relief must be narrowly drawn; (2) the relief must extend no further than necessary to correct the violation of the federal right; (3) the relief must be the least intrusive means necessary to correct the violation of the federal right; and (4) substantial weight must be given to any adverse impact on public safety or the operation of the criminal justice system that might be caused by the relief. 18 U.S.C. § 3626 (a)(2). C. Religious Land Use and Institutionalized Persons Act
RLUIPA governs the religious rights of incarcerated individuals at federally funded
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Case 3:08-cv-05926-AET-DEA Document 18 Filed 02/23/09 Page 4 of 6 PageID: 162
prisons.1 RLUIPA bars federally funded prisons from “impos[ing] a substantial burden on the religious exercise of a person . . . unless the government demonstrates that imposition of the burden on that person . . . (A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling interest.” 42 U.S.C. § 2000cc(a). To state a claim under RLUIPA, a prisoner must establish that his religious exercise has been “substantially burdened.” Once a claimant satisfies this element, the burden shifts to the government to show that the burden on the prisoner’s religious exercises furthers a “compelling governmental interest” and “is the least restrictive means of achieving that interest.” Washington v. Klem, 497 F.3d 272, 277 (3d Cir. 2007). D. Analysis of Plaintiff’s Request for Injunctive Relief
Plaintiff contends his inability to lead groups larger than six people in prayer with his Bible violates his right to religious freedom under RLUIPA and the First Amendment. Defendants explain that their policy of restricting inmates from preaching to groups of larger than six persons and their policy to prevent inmates from assuming leadership positions are in place to maintain safety. Plaintiff responds that NJSP policies effectively ban him from the free exercise of his religion and are not the least restrictive means to effectuate the prison’s objectives.
The Court has carefully considered Plaintiff’s request for injunctive relief but finds that Plaintiff has not established his entitlement to such relief. Though Plaintiff’s religion requires him to proselytize and attract new members to his faith, the six-person congregant limitation
1 Because the Religious Land Use and Instutionalized Persons Act (“RLUIPA”) provides heightened protections to prisoners beyond those established under the First Amendment to the U.S. Constitution, the instant motion is discussed under RLUIPA. See Washington v. Klem, 497 F.3d 272, 277 (3d Cir. 2007).
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Case 3:08-cv-05926-AET-DEA Document 18 Filed 02/23/09 Page 5 of 6 PageID: 163
imposed by Defendants at NJSP reasonably satisfies that need. Defendants assert a threat to security when inmates lead a religious service over a certain number of participants. Defendants explain that there is a real concern to prison safety in this situation because if prison inmates are permitted to assume a leadership role, they are tacitly placed in a position of control over inmates. This abdication of leadership jeopardizes prison security because it presents an alternate structure of authority from which prisoners could take commands. This poses a threat to prison control. Therefore, balancing the parties’ competing interests, Defendants’ restriction on inmate-led preaching is not unreasonable and Plaintiff is denied injunctive relief on these grounds.
Plaintiff also contends that NJSP’s limit on prisoners from gathering in large groups violates his Pentecostal faith. The Court is persuaded that NJSP’s restriction on inmates from gathering in groups of six persons or greater is secular in nature. Defendants indicate–and the Court agrees–that group size is reasonably related to security concerns within the institution. Defendants’ concern regarding inmate religious gatherings was not shown to be unreasonable. Plaintiff can still pray and lead small groups of congregants in his religious faith informally. He can attend and participate in religious services led by volunteers and staff. Therefore, the Court finds Plaintiff is not at risk of suffering irreparable harm as he may practice his Pentecostal faith in ways that do not run afoul of NJSP’s policies designed to maintain safety and order.
CONCLUSION For the reasons given above, and for good cause shown, It is on this 23rd day of February, 2009,
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Case 3:08-cv-05926-AET-DEA Document 18 Filed 02/23/09 Page 6 of 6 PageID: 164 ORDERED that Plaintiff’s Motion for a Preliminary Injunction [2] is DENIED. s/ Anne E. Thompson ANNE E. THOMPSON, U.S.D.J.
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 Case 3:08-cv-05926-AET-DEA Document 31 Filed 11/24/09 Page 1 of 2 PageID: 230

Edward Barocas Nadia Seeratan ACLU of New Jersey Foundation P.O. Box 32159 Newark, NJ 07102 (973) 642-2086
Daniel Mach (appearing pro hac vice) Heather L. Weaver (appearing pro hac vice) ACLU Foundation Program on Freedom of Religion and Belief 915 15th St., NW Washington, DC 20005 (202) 675-2330 Counsel for Plaintiff

Anne Milgram, Attorney General of New Jersey Dianne M. Moratti, Deputy Attorney General Susan Scott, Deputy Attorney General R.J. Hughes Justice Complex 25 Market Street P.O. Box 112 Trenton, NJ 08625 Counsel for Defendants

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY (VICINAGE OF TRENTON)

HOWARD THOMPSON, JR.,

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*

Plaintiff,

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v.

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MICHELLE R. RICCI, in her official capacity *

as Administrator, New Jersey State Prison; and *

GEORGE W. HAYMAN, in his official capacity *

as Commissioner, New Jersey Department of

*

Corrections,

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*

Defendants.

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*

* * * * * * * * * * * * * * * * * * * * * *

Hon. Anne E. Thompson, U.S.D.J. Hon. Douglas Arpert, U.S.M.J.
Civil Action No. 08-5926 (AET/DEA)

STIPULATION OF DISMISSAL

Case 3:08-cv-05926-AET-DEA Document 31 Filed 11/24/09 Page 2 of 2 PageID: 231
The claims in this action having been settled and resolved between plaintiff Howard
Thompson, Jr., and defendants Michelle R. Ricci and George W. Hayman;
IT IS hereby stipulated and agreed that, pursuant to Federal Rule of Civil Procedure
41(a)(1)(A)(ii), this action and the claims asserted herein by the parties shall be dismissed with
prejudice in accordance with the settlement agreement between the parties, dated November 24,
2009.
Respectfully submitted,
/s/ Edward Barocas Edward Barocas Nadia Seeratan ACLU of New Jersey Foundation P.O. Box 32159 Newark, NJ 07102 (973) 642-2086
Daniel Mach (appearing pro hac vice) Heather L. Weaver (appearing pro hac vice) ACLU Foundation Program on Freedom of Religion and Belief 915 15th St., NW Washington, DC 20005 (202) 675-2330 Counsel for Plaintiff
/s/ Dianne M. Moratti Anne Milgram, Attorney General of New Jersey Dianne M. Moratti, Deputy Attorney General Susan Scott, Deputy Attorney General R.J. Hughes Justice Complex 25 Market Street P.O. Box 112 Trenton, New Jersey 08625 Counsel for Defendants
DATED: November 24, 2009

 
 Edward Barocas Nadia Seeratan ACLU ofNew Jersey Foundation P.O. Box 32159 Newark, NJ 07102 (973) 642-2086

Daniel Mach*
ACLU Foundation
Program on Freedom of
Religion and Belief 915 15th St., NW
Washington, DC 20005
(202) 675-2330
*Pro hac vice application pending

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

HOWARD THOMPSON, JR.,

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Plaintiff,

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v.

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MICHELLE R. RICCI, in her official capacity

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as Administrator, New Jersey State Prison; and *

GEORGE W. HAYMAN, in his official capacity *

as Commissioner, New Jersey Department of

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Corrections,

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Defendants.

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Civil Action No.

MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION

TABLE OF CONTENTS
TABLE OF CONTENTS ................................................................................................................. i
TABLE OF AUTHORITIES .......................................................................................................... ii
INTRODUCTION ........................................................................................................................... 1
STATEMENT OF FACTS ..............................................................................................................2
LEGAL STANDARD ......................................................................................................................4
ARGUMENT ...................................................................................................................................5
I. Mr. Thompson Will Likely Prevail on the Merits of His RLUIPA Claim ...................................................................................................5
A. NJSP's policy places a substantial burden on Mr. Thompson's exercise of his sincere religious beliefs ............................................................6
B. NJSP's policy does not serve a compelling governmental interest, because its relationship to prison security is arbitrary and speculative..................................................................................................8
C. NJSP's policy is not the least restrictive means offurthering its security interest, given the readily available alternative of supervised preaching .................................................................................. 11
II. Mr. Thompson Will Likely Prevail on the Merits of His First Amendment Claim ...................................... ~ ................................................. 14
III. Plaintiff Will Be Irreparably Harmed by Denial of Immediate Injunctive Relief.................................................................................... 17
IV. The Balance Of Hardships Tips Heavily in Favor of Granting Injunctive Relief Because Mr. Thompson's Certain, Ongoing Harm Outweighs Defendants' Unspecified Concerns ........................................................... 17
V. Injunctive Relief Will Serve the Public Interest ..............................................,........... 18
CONCLUSION .............................................................................................................................. 19

TABLE OF AUTHORITIES CASES
Albanian Associated Fund v. Twp. 0/ Wayne, No. 06-cv-3217 (PGS),
2007 WL 2904194 (D.N.J. Oct. 1, 2007) ....................................................................... '" .........7 American Civil Liberties Union a/New Jersey v. Black Horse
Pike Regional Bd. o/Educ., 84 F.3d 1471 (3d Cir. 1996) .........................................................4 Anderson v. Angelone, 123 F.3d 1197 (9th Cir. 1997) .................................................................. 16 Anderson v. Davila, 125 F.3d 148 (3d Cir. 1997).......................................................................... 17 Brown v. City a/Pittsburgh, 543 F. Supp. 2d 448 (W.D. Pa. 2008)................................................7 City o/Richmond v. J.A. Croson, 488 U.S. 469 (1989) ................................................................. 11 Conehatta, Inc. v. Evanko, 83 Fed. Appx. 437 (3d Cir. 2003) ...................................................... 17 Cutter v. Wilkinson, 544 U.S. 709 (2005) .............................................................................. passim DeHartv. Horn, 227 F.3d47 (3d Cir. 2000) (en banc) ........................................................... 14, 16 Elrod v. Burns, 427 U.S. 347 (1976) ............................................................................................. 17 Employment Div. v. Smith, 494 U.S. 872 (1990) .............................................................................6 Gonzales v. 0 Centro Espirita Beneficente Uniao do Vegetal,
546 U.S. 418 (2006) ..................................................................................... .................... passim
Guru Nanak Sikh Soc y v. County a/Sutter, 326 F. Supp. 2d 1140
(B.D. Cal. 2003), affd, 456 F.3d 978 (9th Cir. 2006) ............................................................ 17 Heleva v. Kramer, 214 Fed. Appx. 244 (3d Cir. 2007) .................................................................14 Hummel v. Donahue, No. 07-cv-1452, 2008 WL 2518268
(S.D. Ind. June 19, 2008) ......................................................................................................... 17 Jones v. Brown, 461 F.3d 353 (3d Cir. 2006) ................................................................................ 15 McDaniel v. Paty, 435 U.S. 618 (1978)..............,............................................................................6 Murphy v. Missouri Dep 't o/Corr., 372 F.3d 979 (8th Cir. 2004) ..................................................9
11

Murphy v. Zoning Comm 'n o/Town o/New Milford, 148 F. Supp. 2d 173 (D. Conn. 2001) ...................................................................................... 17
o 'Lone v. Shabazz, 482 U.S. 342 (1987) ....................................................................................... 16
Reaching Hearts Int'l v. Prince George's County, Civ. No. RWT 05-1688, 2008 WL 4817008 (D. Md. Nov. 4, 2008) ..................................................... 17
Reese v. Sparks, 760 F.2d 64 (3d Cir. 1985)....................................................................................2 Sharp v. Johnson, No. 00-2156,2008 WL 941686
(W.D. Pa. Apr. 7, 2008) ..........................................................................................................6,7 Sherbert v. Verner, 374 U.S. 398 (1963) .........................................................................................7 Spratt v. Rhode Island Dep 't o/Corrections, 482 F.3d 33 (lst Cir. 2007) ......................................7 Smith v. Kyler, No.1 :CV-03-0898, 2008 WL 474252
(M.D. Pa. Feb. 20, 2008) ...........................................................................................................7 Sutton v. Rasheed, 323 F.3d 236 (3d Cir. 2003) ............................................................................ 16 Tenafly Eruv Ass 'n, Inc. v. Borough o/Tenafly,
309 F.3d 144 (3d Cir. 2002)..................................................................................................... 17
Thomas v. Review Bd. 0/Indiana Employment Security Div.,
450 U.S. 707 (1981) ...................................................................................................................7 Thornburgh v. Abbott, 490 U.S. 401 (1989) .................................................................................. 16 Turner v. Safley, 482 U.S. 78 (1987) ..................................................................................... passim United States v. Playboy Entm 't Group, Inc.,
529 U.S. 803 (2000) ................................................................................................................. 11 Warsoldier v. Woodford, 418 F.3d 989 (9th Cir. 2005) ..............................................,.......... passim Washington v. Klem, 497 F.3d 272 (3d Cir. 2007) ................................................................ passim Waterman v. Farmer, 183 F.3d 208 (3d Cir. 1999) .......................................................................14 Wolfv. Ashcroft, 297 F.3d 305 (3d Cir. 2002) ............................................................................... 16
iii

CONSTITUTIONAL PROVISIONS, STATUTES, AND REGULATIONS 42 U.S.C. § 2000cc, et seq. .................................................................................................... passim 146 Congo Rec. S7774, S7775, S7776 (July 27,2000) Goint statement ofSens. Hatch and
Kennedy on RLUIPA) ..................................................................................................... passim Federal Bureau of Prisons, Program Statement: Religious Beliefs and Practices, Statement
P5360.09 (2004) ....................................................................................................................... 12 S. Rep. 103-111 (1993) ....................................................................................................................8
IV

INTRODUCTION For over a decade, Plaintiff Howard Thompson has preached to his fellow inmates during weekly worship services at New Jersey State Prison ("NJSP") in Trenton. Not only has this preaching resulted in no security incidents of any kind, but the prison's chaplaincy staff has actively supported Mr. Thompson and encouraged him to spread his deeply held message of faith. Yet in June 2007, without any warning or justification, NJSP instituted a blanket ban on all preaching by all inmates, even when done under the direct supervision of prison staff. America's prisoners, however pervasively subject to the control ofthe state, still maintain inalienable rights under the law. "Prison walls do not form a barrier separating prison inmates from the protections ofthe Constitution." Turner v. Safley, 482 U.S. 78, 84 (1987). Congress strengthened these rights when it passed the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"), 42 U.S.c. § 2000cc et seq., which compels the courts to apply strict scrutiny to those prison regulations that substantially burden an inmate's constitutional right to free religious exercise. NJSP has violated both the First Amendment's Free Exercise Clause and RLUIPA by implementing an absolute ban on inmate preaching. The ban serves no compelling governmental interest, does not employ the least restrictive possible means, and is not reasonably connected to legitimate penological interests. Indeed, a plaintiff in materially identical circumstances in another state recently prevailed against just such a preaching ban. See Spratt v. Rhode Island Dep 't a/Carr., 482 F.3d 33, 34-37 (1st Cir. 2007). Mr. Thompson respectfully requests that the Court issue a preliminary injunction to restore his fundamental right to preach at NJSP.
1

STATEMENT OF FACTS As a devout Pentecostal, Howard Thompson has participated in the religious life ofNJSP throughout his incarceration. Since 1986, he has preached at supervised Christian worship services, and he both founded and led the prison's Protestant choir. See Verified Compl. ~~ 7,
It is a central tenet of Pentecostalism that when an individual receives a special calling to the ministry from God, that individual must spread the Word of God by preaching and ministering to others within the faith community. Mr. Thompson is sincere in his belief that he has received such a calling, and is thus compelled by his faith to preach. See Verified Compl. ~~ 8,9, 13,25; Ravenell Decl. ~ 7.2
Every instance of Mr. Thompson's preaching was authorized and encouraged by NJSP's chaplaincy staff. Verified Compl. ~~ 10, 15, 19,20; Ravenell Decl. ~ 8. At no point throughout Mr. Thompson's incarceration at NJSP has his preaching been linked to any security concerns, nor to any other impediment to the good order ofthe prison. Verified Compl. ~ 22; Ravenell Decl. ~ 9. Quite the contrary, NJSP's chaplains and volunteers have cited the positive impact of Mr. Thompson's preaching on the behavior of his fellow inmates. See Ravenell Decl. ~ 10.
Although he had been preaching periodically at NJSP for years, Mr. Thompson was formally ordained as a Pentecostal minister in October 2000, at a Sunday morning worship service that was overseen by then-chaplain Rev. Samuel K. Atchison, former chaplain Bishop Joseph Ravenell, and two chaplaincy volunteers. For the next six years, Mr. Thompson preached
1 Mr. Thompson filed a Verified Complaint in this case, which serves as his affidavit for purposes ofthis motion. See, e.g., Reese v. Sparks, 760 F.2d 64, 67 (3d Cir. 1985). 2 The Declaration of Bishop Joseph Ravenell is attached hereto as Exhibit 1.
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at Sunday services regularly, with the approval ofthe chaplaincy staff and without incident. See Verified CompI. ~~ 12-22; Ravenell DecI. ~~ 8-9.
Mr. Thompson began to lead these services on a weekly basis in 2006, when the interim chaplain was unavailable to lead worship services on Sundays. See Verified CompI. ~ 20. NJSP Administrator Michelle Ricci was aware ofthis weekly preaching and knowingly permitted it to continue, without incident.
On June 24, 2007, Mr. Thompson preached his last sermon. Soon afterward, the chaplain informed Mr. Thompson that Administrator Ricci would henceforth enforce a ban on all preaching and religious leadership by inmates. See id. ~~ 24,27.
Mr. Thompson proceeded to file an Inmate Remedy System Form, formally requesting relief from the ban on inmate preaching. Administrator Ricci responded to this initial complaint on April 15,2008, stating only: "Staff and volunteers are assigned the duties to provide religious services. Not inmates." See id. ~ 28 and Ex. A (attached thereto). Mr. Thompson promptly appealed the decision, and on April 28, 2008, Ricci responded in similar fashion, rejecting the administrative appeal and explaining simply: "Staff and volunteers will continue to provide religious services to the inmate population at NJSP." See id. ~~ 29-30 and Ex. B (attached thereto).
After Mr. Thompson exhausted his administrative remedies, his counsel sent a demand letter to Administrator Ricci and George Hayman, Commissioner of the New Jersey Department of Corrections ("NJ DOC"). The October 2, 2008 letter highlighted Thompson's statutory and constitutional right to preach at NJSP and sought resolution of this issue, if possible, without resort to litigation. See id. ~ 32 and Ex. C (attached thereto). Neither Mr. Thompson nor his counsel received any substantive response, other than a form letter from the NJ DOC's Office of
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Community Programs and Outreach Services that addressed an entirely different issue. See id. ~ 33 and Ex. D (attached thereto).
To date, the Defendants have provided no explanation for the preaching ban. Indeed, at no point since implementing the ban has NJSP mentioned any justification or relevant incidents that might explain the prison's interest in this newfound policy. Meanwhile, a variety of other inmate-led activities continue unimpeded at NJSP, including a prison NAACP chapter, an inmate legal association, and an incarcerated veterans' group. See id. ~ 26.
Mr. Thompson is willing and ready to preach to other inmates under prison supervision,3 and does not insist on any leadership title or mantle of authority. See id. ~ 25. He merely wishes to restore his right to minister to fellow prisoners to the same extent, and in the same highly supervised, controlled environment in which he previously practiced his faith at NJSP.
LEGAL STANDARD
The granting of a preliminary injunction is based on four factors: "(1) whether the movant has shown a reasonable probability of success on the merits; (2) whether the movant will be irreparably injured by denial of the relief; (3) whether granting preliminary relief will result in even greater harm to the nonmoving party; and (4) whether granting the preliminary relief will be in the public interest." American Civil Liberties Union ofNew Jersey v. Black Horse Pike Regional Bd. ofEduc., 84 F.3d 1471, 1477 n.2 (3d Cir. 1996) (citations omitted). As discussed below, Plaintiff easily meets this test and is therefore entitled to a preliminary injunction.
3 As with other inmate-led activities and organizations, NJSP's supervision of Mr. Thompson's religious exercise can take a variety of forms, and need not be limited to direct oversight by the prison chaplain.
4

ARGUMENT I. Mr. Thompson Will Likely Prevail on the Merits ofRis RLUIPA Claim.
Like the plaintiff in Spratt v. Rhode Island Department o/Corrections, 482 F.3d 33 (1st Cir. 2007) - a case materially indistinguishable from this action - Mr. Thompson is highly likely to prevail on the merits ofhis claims. Wesley Spratt was incarcerated in the maximum security unit of a federally funded prison in Rhode Island, underwent a religious awakening in 1995, and was ordained in 2000. Id. at 35. From 1995 to 2003, the prison's chaplains allowed Mr. Spratt to preach during weekly services. Although his preaching resulted in no disciplinary problems, in 2003 the prison prohibited him from continuing to preach. Id. On appeal, the Court of Appeals for the First Circuit reversed the district court's grant of summary judgment for the defendant department of corrections, id. at 37-43, and the defendant ultimately agreed to a settlement in July 2007 that allowed Mr. Spratt and other inmates to resume supervised preaching, see, e.g., Eric Tucker, "R.I. inmate wins right to resume jailhouse preaching," A.P., Aug. 2, 2007, available at http://www.firstamendmentcenter.org/news.aspx?id=18867. The First Circuit's analysis in Spratt applies with equal force here.
As in Spratt, Mr. Thompson challenges the preaching ban under RLUIPA, which subjects burdens on prisoners' religious exercise4 to strict scrutiny. RLUIPA bars federally funded prisons from "impos[ing] a substantial burden on the religious exercise of a person residing in or confined to an institution ... unless the government demonstrates that imposition of the burden on that person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." 42 U.S.C. § 2000cc-1(a)
4 In addition to its protections for institutionalized persons, RLUIPA contains separate provisions (not at issue here) governing restrictions on religious exercise imposed by land use regulations. See 42 U.S.C. § 2000cc.
5

(internal punctuation omitted). Under 42 U.S.C. § 2000cc-2(b), "once a plaintiffhas established that his religious exercise has been substantially burdened, the onus shifts to the government to show that the burden furthers a compelling governmental interest and that the burden is the least restrictive means of achieving that compelling interest." Spratt, 482 F.3d at 38 (internal citations and numbering omitted); see also, e.g., Sharp v. Johnson, No. 00-2156, 2008 WL 941686 (W.D. Pa. Apr. 7,2008); Washington v. Klem, 497 F.3d 272 (3d Cir. 2007).5
Like the plaintiff in Spratt, Mr. Thompson easily satisfies this test under RLUIPA. NJSP's preaching ban unequivocally burdens Mr. Thompson's exercise of his sincerely held calling to preach, without furthering any compelling governmental interest or using the least restrictive means to achieve such an interest.
A. NJSP's policy places a substantial burden on Mr. Thompson's exercise of his sincere religious beliefs.
The NJSP ban on inmate preaching clearly burdens Mr. Thompson's "religious exercise," defined by RLUIPA as including "any exercise of religion, whether or not compelled by, or central to, a system of religious belief." 42 U.S.C. § 2000cc-5(7)(a) (emphasis added); see Spratt, 482 F.3d at 38 ("[I]t is clear that preaching is a form of religious exercise."). As the Supreme Court has made clear, "the right to the free exercise of religion unquestionably encompasses the right to preach, proselyt[ize], and perform other similar religious functions." McDaniel v. Paty, 435 U.S. 618, 626 (1978). See also, e.g., Employment Div. v. Smith, 494 U.S. 872 (1990) ("[T]he 'exercise of religion' often involves not only belief and profession but the performance of ... physical acts [such as] assembling with others for a worship service [or] proselytizing ...."), quoted in part in Cutter v. Wilkinson, 544 U.S. 709, 720 (2005).
5 By its express terms, RLUIPA "shall be construed in favor of a broad protection ofreligious exercise, to the maximum extent permitted by the terms ofth[e statute] and by the Constitution." 42 U.S.c. § 2000cc-3(g).
6

While RLUIPA "does not preclude inquiry into the sincerity of a prisoner's professed religiosity," Cutter, 544 U.S. at 725 n.13, courts assume such sincerity when it is not contested by the opposing party, see, e.g., id. at 713; Klem, 497 F.3d at 282. In any event, the sincerity of Mr. Thompson's religious beliefs is beyond dispute, as affirmed by NJSP chaplaincy staff; he sincerely believes that he must obey God's call to the ministry by preaching to fellow inmates within his faith community. See Verified CompI. ~~ 8,9, 13,25; Ravenell DecI. ~ 7.
The Third Circuit recently articulated a controlling definition of"substantial burden" in Klem, holding that a Pennsylvania Department of Corrections restriction on the number of books permitted in prisoners' possession substantially burdened the plaintiffs religious exercise. Citing legislative history indicating that "substantial burden" as used in RLUIPA "should be interpreted by reference to Supreme Court jurisprudence," 146 Congo Rec. S7774, 7776 (July 27, 2000), the Klem court established a disjunctive test that combines the slightly different holdings of Sherbert V. Verner, 374 U.S. 398,404 (1963) and Thomas V. Review Board o/Indiana Employment Security Division, 450 U.S. 707, 717-18 (1981):
For the purposes ofRLUIPA, a substantial burden exists where: 1) a follower is forced to choose between following the precepts ofhis religion and forfeiting benefits otherwise generally available to other inmates versus abandoning one of the precepts of his religion in order to receive a benefit; OR 2) the government puts substantial pressure on an adherent to substantially modify his behavior and to violate his beliefs. Klem, 497 F.3d at 280;/01l0wed by Sharp, 2008 WL 941686, at *65-66; Brown V. City 0/ Pittsburgh, 543 F. Supp. 2d 448, 487 (W.D. Pa. 2008); Smith V. Kyler, No. I:CV-03-0898, 2008 WL 474252, at *8-10 (M.D. Pa. Feb. 20, 2008); Albanian Associated Fund V. Twp. o/Wayne, No. 06-cv-3217 (PGS), 2007 WL 2904194, at *11-14 (D.N.J. Oct. 1,2007). Under this test, the NJSP ban has put "substantial pressure" on Mr. Thompson not only "to substantially modify his behavior," as he may no longer preach (even under staff
7

supervision), but also "to violate his beliefs," as he has a deeply held calling to preach. See Verified CompI. '1r'1r 8,9, 13,25; Ravenell DecI. '1r 7. The plaintiff in Klem satisfied this standard by showing that a ten-book limitation on inmate possessions effectively prevented him from exercising his religious mandate to read four new Afro-centric books each day. Klem, 497 F.3d at 282. The challenged policy in Klem was far less restrictive than NJSP's preaching ban, which permits absolutely no exercise of Thompson's preaching right whatsoever. Not surprisingly, the First Circuit in Spratt found that the RIDOC' s blanket preaching ban satisfied the prima facie requirements for a substantial burden under this standard. Spratt, 482 F.3d at 38. Just like the plaintiff in Spratt, Mr. Thomas will be subject to disciplinary sanctions ifhe attempts to preach in defiance ofthe ban. See Verified CompI. '1r 25. The clear and overwhelming consequence of the NJSP preaching ban is an absolute and substantial burden on Mr. Thompson's sincere religious exercise.
B. NJSP's policy does not serve a compelling governmental interest, because its relationship to prison security is arbitrary and speculative.
The government bears the burden of persuasion as to whether its policy serves a compelling interest. 42 U.S.c. § 2000cc-2(b); Klem, 497 F.3d at 283. The legislative history of RLUIPA makes clear that, although courts should give "due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good order, security and discipline, consistent with consideration of costs and limited resources[,] . .. inadequately formulated prison regulations and policies grounded on mere speculation, exaggerated fears, or post-hoc rationalizations will not suffice to meet the act's requirements." S. Rep. No. 103-111, 10 (1993) (emphasis added) (discussing Religious Freedom Restoration Act of 1993 ("RFRA")), quoted in 146 Congo Rec. S7774, S7775 (2000) ("[w]hat the
8

Judiciary Committee said about [the compelling interest] standard in its report on RFRA is equally applicable to [RLUIPA]").
Congress thus clearly advised against a judicial rubber-stamp ofprison policies, as confirmed by the Third Circuit: "Even in light of the substantial deference given to prison authorities, the mere assertion of security or health reasons is not, by itself, enough for the Government to satisfy the compelling governmental interest requirement. Rather, the particular policy must further this interest. A conclusory statement is not enough." Klem, 497 F.3d at 283 (emphasis added) (internal quotation marks omitted) (citing Spratt, 482 F.3d at 39; Murphy v. Missouri Dep 't o/Corr., 372 F.3d 979,988-89 (8th Cir. 2004) (to satisfy RLUIPA, prison authorities must provide some basis for their concern that racial violence will result from religious accommodation of plaintiff inmate); and Gonzales v. 0 Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006) (to satisfy strict scrutiny under RFRA, government cannot rely on a general interest in health and safety to ban religious use of hallucinogenic tea)). Applying this particularity requirement to the facts in Klem, the Third Circuit found scant evidence that the prison's ten-book rule furthered a compelling governmental interest, given the multitude of conflicting policies in effect under the Pennsylvania Administrative Code and Department of Corrections rules: "If safety and security are the paramount concerns, these exceptions seem to undermine the compelling nature of the ten-book limitation." Klem, 497 F.3d at 284.
Under RLUIPA, moreover, the prison must have a compelling interest not only in the particular policy at issue, but also in its refusal to grant the particular individual his requested exemption from that policy. In discussing the strict scrutiny mandated by both RLUIPA and its predecessor statute, RFRA, the Supreme Court recently "reaffirmed ... the feasibility of case-
9

by-case consideration of religious exemptions to generally applicable rules." 0 Centro, 546 U.S. at 436 (discussing Cutter, 544 U.S. at 722). When enforcing the religious-liberty protections of those statutes (which, in turn, incorporate the Supreme Court's compelling interest test prior to Smith, see 0 Centro, 546 U.S. at 431), courts must "look[] beyond broadly formulated interests justifying the general applicability of government mandates [and] scrutinize[] the asserted harm of granting specific exemptions to particular religious claimants." Id.
NJSP has thus far offered no evidence or explanation that would establish any adverse effect of Mr. Thompson's preaching on prison security, and his preaching caused no known security problems prior to the ban. See Verified CompI. ~ 22; Ravenell DecI. ~~ 9-10. As the First Circuit concluded about a materially identical inmate, "Spratt's seven-year track record as a preacher, which is apparently unblemished by any hint of unsavory activity, at the very least casts doubt on the strength of the link between his activities and institutional security." Spratt, 482 F.3d at 40.
While Plaintiff can only speculate about NJSP's proffered justification for its absolute ban on inmate preaching, any such justification would be undermined by NJSP' s simultaneous endorsement of non-religious inmate leadership roles, including the prison's NAACP chapter, inmate legal association, and incarcerated veterans' group. See Verified CompI. ~ 26. However valid an interest NJSP has in maintaining security, this interest does not compel its total ban on preaching and religious leadership, any more than the Klem prison's valid interest in reducing fire risk, sanitation problems, and hidden contraband compelled its arbitrary ten-book rule. Klem, 497 F.3d at 284. Just as NJSP's security concerns clearly have not compelled the prison to ban a wide range ofleadership roles currently held by inmates, its ban on preaching as one among many forms ofleadership cannot be a truly compelling necessity.
10

NJSP is thus unlikely to meet its considerable burden to demonstrate that its preaching ban, including its specific application to Mr. Thompson, serves a compelling governmental interest.
C. NJSP's policy is not the least restrictive means of furthering its security interest, given the readily available alternative of supervised preaching.
To satisfy its burden ofpersuasion under RLUIPA, NJSP must demonstrate not only that its policy serves a compelling interest, but also that the policy is the least restrictive means of furthering that interest. 42 U.S.C. § 2000cc-2(b); Klem, 497 F.3d at 283; see also, e.g., 0 Centro, 546 U.S. at 429. It is easy to envision a less restrictive means for NJSP to protect any security interests without burdening Mr. Thompson's religious exercise: simply restore his ability to preach under proper prison supervision (whether by the chaplain or other prison officials). The Spratt court was particularly frustrated by the defendant prison's failure to consider this alternative to a total ban. 482 F.3d at 42. As NJSP allows supervised inmate leadership over a variety ofnon-religious assemblies, it is hardly conceivable that a preaching ban is the least restrictive policy available.
The Supreme Court, in considering other strict-scrutiny requirements, has held that the government's burden cannot be satisfied without an active consideration of alternative means. United States v. Playboy Entm 't Group, Inc., 529 U.S. 803, 824 (2000) (when considering a First Amendment challenge to speech restrictions, "[aJ court should not assume a plausible, less restrictive alternative would be ineffective"); City ofRichmond v. J.A. Croson, 488 U.S. 469, 507 (1989) (in part because city had not considered whether race-neutral measures would have achieved the government's interest, city's minority set-aside program failed "narrowly tailored" test). In Warsoldier v. Woodford, 418 F.3d 989 (9th Cir. 2005), the Ninth Circuit adapted this reasoning to the RLUIPA claim of a Native American inmate whose religion forbade him from
11

cutting his hair in compliance with prison rules. "[The prison] cannot meet its burden to prove least restrictive means unless it demonstrates that it has actually considered and rejected the efficacy ofless restrictive measures before adopting the challenged practice." Id. at 999 (holding that the prison failed to satisfy this burden).
This "consider and reject" requirement is controlling in the Third Circuit under Klem: "[W]e agree with the Ninth Circuit in Warsoldier that this requirement applies with equal force to RLUIPA. Additionally, the phrase 'least restrictive means' is, by definition, a relative term. It necessarily implies a comparison with other means. Because this burden is placed on the Government, it must be the party to make this comparison." Klem, 497 F.3d at 284. With this requirement in place, the Klem Court could easily imagine policies less restrictive than the tenbook rule: "The least restrictive means would be to allow an inmate to choose what property he may keep in the [four permissible] storage units so long as the property does not violate prison policy for an independently legitimate reason." Id. at 285.
The availability of a less restrictive alternative to NJSP's breaching ban is inescapable for yet another reason: Inmates in federal prisons are permitted to deliver "[s]ermons, original oratory, teachings and admonitions" as part of supervised "[i]nmate-Ied religious programs." Federal Bureau ofPrisons, Program Statement: Religious Belieft and Practices, Statement P5360.09 (2004); see also Spratt, 482 F.3d at 42 (citing same). As the Supreme Court has noted, "'[f]or more than a decade, the federal Bureau of Prisons has managed the largest correctional system in the Nation under the same heightened scrutiny standard as RLUIPA without compromising prison security, public safety, or the constitutional rights of other prisoners. '" Cutter, 544 U.S. at 725 (quoting Brief for United States at 24).
12

Even maximum-security federal prisons permit supervised preaching and religious leadership by inmates. It is highly unlikely that the relatively permissive policy of a federal supermax prison would be unworkable at a state prison in New Jersey; thus "the Federal Bureau of Prisons policy suggests that some form of inmate preaching could be pennissible without disturbing prison security." Spratt, 482 F.3d at 42; see also Warsoldier, 418 F.3d at 1000 ("[W]e have found comparisons between institutions analytically useful when considering whether the government is employing the least restrictive means. Indeed, the failure of a defendant to explain why another institution with the same compelling interests was able to accommodate the same religious practices may constitute a failure to establish that the defendant was using the least restrictive means.").
The Third Circuit adopted this comparative inquiry in Klem, examining the plaintiff inmate's full two-decade incarceration history within the Pennsylvania correctional system, and finding no prior restriction on his religiously mandated possession ofmore than ten books at a time. This comparison to less restrictive state prisons, together with its analysis ofless restrictive hypothetical policies, led the Court to conclude that "the Pennsylvania DOC has not satisfied its burden to show that the [ten-book] limitation qualified as the least restrictive means to protect its interests in health, safety, and security." 497 F.3d at 285.
Similarly, NJSP is highly unlikely to prevail in proving that its ban is the least restrictive means of guaranteeing prison security, given the less restrictive policies of (a) the same prison prior to 2007, (b) the same prison today with respect to non-religious inmate leadership, and (c) the federal prison system. It is doubtful that NJSP's current security interests are so distinct that they alone require no less than a blanket ban on all inmate preaching and religious leadership.
13

Moreover, even ifNJSP were to demonstrate successfully a unique and hitherto unexplained security interest in prohibiting certain of its inmates from preaching, this would still not satisfy the least-restrictive-means test with respect to Mr. Thompson. NJSP's policy could be narrowly tailored to affect only those inmate populations or individuals associated with a history of disruption or a heightened security risk. Mr. Thompson's preaching has transpired without incident for more than a decade, and thus any preaching ban could be less restrictively tailored to accommodate his religious exercise. II. Mr. Thompson Will Likely Prevail on the Merits of His First Amendment Claim.
Independent ofRLUIPA, the NJSP policy violates Mr. Thompson's free-exercise rights under the First Amendment. In Turner v. Safley, 482 U.S. 78, 89 (1987), the Supreme Court held that "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid ifit is reasonably related to legitimate penological interests." 482 U.S. at 89. Seeking to balance a court's duty to protect inmates' rights with due deference to the expertise of prison administrators, Turner articulated four factors in applying this "reasonable relationship" test, as summarized by the Third Circuit in Waterman v. Farmer, 183 F.3d 208 (1999):
[Turner] requires courts to consider (1) whether a rational connection exists between the regulation and a neutral, legitimate government interest; (2) whether alternative means exist for inmates to exercise the constitutional right at issue; (3) what impact the accommodation of the right would have on inmates, prison personnel, and allocation of prison resources; and (4) whether obvious, easy alternatives exist. Id. at 213 n.6 (citing Turner, 428 U.S. at 89-91). "When a prisoner claims that his or her right to exercise religion has been curtailed, a court must determine as a threshold matter whether the prisoner has alleged a belief that is 'both sincerely held and religious in nature. '" Heleva v. Kramer, 214 Fed. Appx. 244, 246 (3d Cir. 2007) (citing DeHart v. Horn, 227 F.3d 47,51 (3d Cir. 2000)(en banc)). This threshold is easily
14

crossed, given Mr. Thompson's unquestioned sincerity and the clearly religious nature of his preaching. See supra Part LA; Verified Compl. ~ 25.
NJSP's preaching ban fails the first prong of the Turner test, because "a regulation cannot be sustained where the logical connection between the regulation and the asserted goal is so remote as to render the policy arbitrary or irrational." Turner, 428 U.S. at 89. NJSP has asserted no goal for its policy, despite repeated administrative requests by Mr. Thompson. In light of his prior decades ofproductive, supervised preaching, it would strain credulity to claim a newfound rational connection between a blanket ban on that preaching and the prison's legitimate interests.
Even ifthere were some imaginable security risk posed by Mr. Thompson's ministering to fellow inmates, such risk must be "non-negligible" before constitutional rights may be infringed. Jones v. Brown, 461 F.3d 353, 364 (3d Cir. 2006). The Jones Court held that only three years after the anthrax attacks of 200 1, the New Jersey state prisons could no longer establish a rational connection to a policy that abridged inmates' free-speech rights under the First Amendment: "Yes, such an attack is conceivable, but ... while the health and safety of inmates and staff are legitimate penological interests, if there is no information suggesting a significant risk of an anthrax attack, there is no reasonable connection between those interests and the policy of opening legal mail in the absence of the inmate addressee." Id. at 363-64. NJSP's preaching ban is even less rationally connected to prison security because it was first implemented arbitrarily, rather than in the wake of any actual threat.
Even if Defendants succeed with respect to this first prong ofthe Turner test, Mr. Thompson is still highly likely to prevail on the balance of the remaining three factors. "[T]he determination that there is a rational relationship between the policy and the interest commences rather than concludes our inquiry as not all prison regulations that are rationally related to such
15

an interest pass Turner's overall reasonableness standard." Wolfv. Ashcroft, 297 F.3d 305,309 (3d Cir. 2002) (citing DeHart, 227 F.3d at 53) (internal quotation marks omitted).
Turning to the second prong of Turner, Mr. Thompson clearly has no alternative means of exercising his constitutional right to preach, as the NJSP policy bans all forms of preaching and religious leadership by any inmates. Although this right "must be viewed sensibly and expansively," Thornburgh v. Abbott, 490 U.S. 401, 417 (1989); see also 0 'Lone v. Shabazz, 482 U.S. 342 (1987); DeHart, 227 F.3d 54, Mr. Thompson's permitted forms of religious exercise are no substitute for his right to obey his calling to preach. See Sutton v. Rasheed, 323 F.3d 236, 257 (3d Cir. 2003) (finding that notwithstanding 0 'Lone, the deprivation ofNation ofIslarn texts "implicates not just the right to read those particular texts, but the prisoners' ability to practice their religion in general").
Regarding the third Turner factor, NJSP has offered no arguments supporting any adverse impact ofinmate preaching on prison guards, other inmates, or prison resources. NJSP continues to support a Protestant inmate congregation with regular prayer services under constant supervision, and Mr. Thompson's preaching did not cause even a single indirect adverse effect in the years prior to NJSP's sudden ban.
This leads to the fourth and final prong of the Turner test, where, in stark contrast to the facts of 0 'Lone, NJSP has an obvious and easy alternative policy available to it: restore staffsupervised inmate preaching. This would involve de minimis additional cost - if any costs at all - as chaplaincy staff are already on hand to lead the prayer services during which inmates like Mr. Thompson seek to preach. See Anderson v. Angelone, 123 F.3d 1197, 1199 (9th Cir. 1997) (upholding prison rule that prohibited inmate from acting as minister of his own church, but noting that "[t]he rule does not foreclose [plaintiff] from practicing his religion; in fact, he is
16

welcome to assist the prison chaplain in leading religious activities"). Given the longstanding success of this prior policy, NJSP's recent ban is an "exaggerated response" under Turner. It is not rationally related to legitimate penological interests, and it fails the reasonable relationship test applied in full. III. Plaintiff Will Be Irreparably Harmed by Denial of Immediate Injunctive Relief.
Defendants are currently infringing Mr. Thompson's fundamental religious-liberty rights, as guaranteed by RLUIPA and the First Amendment, and that harm will persist as long as the NJSP preaching ban continues to restrict Mr. Thompson's religious exercise. See Conehatta, Inc. v. Evanko, 83 Fed. Appx. 437, 442-43 (3d Cir. 2003) (citing Anderson v. Davila, 125 F.3d 148, 164 (3d Cir. 1997)) (First Amendment violation must be both threatened and occurring in order to warrant preliminary injunction). Mr. Thompson, therefore, will suffer ongoing irreparable harm absent an injunction, as "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion); followed by Tenafly EruvAss'n, Inc. v. Borough of Tenafly, 309 F.3d 144, 178 (3d Cir. 2002). This is equally true for Mr. Thompson's RLUIPA claim, which serves to vindicate his free-exercise rights. See, e.g., Hummel v. Donahue, No. 07cv-1452, 2008 WL 2518268, at *8 (S.D. Ind. June 19,2008) (violation ofRLUIPA inflicts irreparable harm) (citing cases); Reaching Hearts Int'l v. Prince George's County, Civ. No.
RWT 05-1688, 2008 WL 4817008, at *23 (D. Md. Nov. 4, 2008) (same); Guru Nanak Sikh Soc y
v. County ofSutter, 326 F. Supp. 2d 1140, 1161-62 (E.D. Cal. 2003) (same), aff'd, 456 F.3d 978 (9th Cir. 2006); Murphy v. Zoning Comm 'n ofTown ofNew Milford, 148 F. Supp. 2d 173, 180181 (D. Conn. 2001) (same).
17

IV. The Balance Of Hardships Tips Heavily in Favor of Granting Injunctive Relief Because Mr. Thompson's Certain, Ongoing Harm Outweighs Defendants' Unspecified Concerns. While a preliminary injunction will afford immediate relief for Mr. Thompson's clear and
ongoing deprivation of constitutional rights, such relief will not result in greater harm to the Defendants. NJSP has indicated no particular harm that would arise from the renewal of Mr. Thompson's supervised preaching. Indeed, Mr. Thompson has engaged in such preaching for many years at NJSP without any evidence of impediment to the security and good order of the prison. See Verified CompI. ~ 22; Ravenell DecI. iJ9-10. V. Injunctive Relief Will Serve the Public Interest.
A preliminary injunction is necessary to serve the public's vital interest in protecting the religious freedom of those citizens most vulnerable to arbitrary authority.
Before enacting the RLUIPA, "Congress documented, in hearings spanning three years, that 'frivolous or arbitrary' barriers impeded institutionalized persons' religious exercise." Cutter, 544 U.S. at 716. In passing the statute, Congress deliberately and explicitly sought to ensure that state prisons would no longer restrict inmates' religious freedom unnecessarily: "Far more than any other Americans, persons residing in institutions are subject to the authority of one or a few local officials. Institutional residents' right to practice their faith is at the mercy of those running the institution, and ... prison officials sometimes impose frivolous or arbitrary rules. Whether from indifference, ignorance, bigotry, or lack of resources, some institutions restrict religious liberty in egregious and unnecessary ways." 146 Congo Rec. S7774, S7775 (2000) Goint statement of Sens. Hatch and Kennedy on RLUIPA), quoted in part in Cutter, 544 U.S at 716. Restoring Mr. Thompson's right to preach at NJSP would thus vindicate the central purpose behind RLUIPA and, therefore, would surely serve the public interest.
18

Injunctive relief, moreover, will allow Mr. Thompson to resume a ministry ofpreaching that has positively affected the lives of his fellow inmates for years. Ravenell Dec!. ~ 10. Far from creating a security concern, such positive influences serve the public interest by decreasing the likelihood of inmate conflict and post-incarceration recidivism.
CONCLUSION After years of incident-free preaching by Mr. Thompson at NJSP, the facility has imposed a blanket ban on Plaintiff's fundamental religious exercise. Defendants cannot possibly justify this highly restrictive prohibition, either under the strict scrutiny of RLUIPA or under the Free Exercise Clause. Mr. Thompson, therefore, respectfully requests that the Court grant his motion for preliminary injunction, and restore his ability to follow his deeply held religious calling without detriment to the good order of the prison where he has long ministered.

Respectfully submitted,
_lsi Edward Barocas
Edward Barocas Nadia Seeratan ACLU ofNew Jersey Foundation P.O. Box 32159 Newark, NJ 07102 (973) 642-2086
Daniel Mach* ACLU Foundation Program on Freedom of
Religion and Belief 915 15th St., NW Washington, DC 20005 (202) 675-2330
*Pro hac vice application pending

Dated: December 3, 2008

Attorneysfor Plaintiff

19

 
 Case: 3:08-cv-5926 As of: 09/19/2012 07:19 PM EDT 1 of 4
CLOSED,SCHEDO
U.S. District Court District of New Jersey [LIVE] (Trenton) CIVIL DOCKET FOR CASE #: 3:08−cv−05926−AET−DEA

THOMPSON v. RICCI et al Assigned to: Judge Anne E. Thompson Referred to: Magistrate Judge Douglas E. Arpert Cause: 42:1983 Prisoner Civil Rights
Plaintiff

Date Filed: 12/03/2008 Date Terminated: 11/25/2009 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

HOWARD THOMPSON, JR.

represented by EDWARD L. BAROCAS AMERICAN CIVIL LIBERTIES UNION OF NJ FOUNDATION P.O. BOX 32159 NEWARK, NJ 07102 (973) 642−2086 Fax: (973) 642−6253 Email: ebarocas@aclu−nj.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant MICHELLE R. RICCI IN HER OFFICIAL CAPACITY AS ADMINISTRATOR, NEW JERSEY STATE PRISON
Defendant GEORGE W. HAYMAN IN HIS OFFICIAL CAPACITY AS COMMISSIONER, NEW JERSEY DEPARTMENT OF CORRECTIONS

represented by SUSAN MARIE SCOTT OFFICE OF THE NJ ATTORNEY GENERAL RJ HUGHES JUSTICE COMPLEX PO BOX 112 TRENTON, NJ 08625 (609) 633−7786 Fax: (609) 777−3607 Email: susan.scott@dol.lps.state.nj.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by SUSAN MARIE SCOTT (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 12/03/2008
12/03/2008 12/03/2008

# Docket Text
1 COMPLAINT against MICHELLE R. RICCI, GEORGE W. HAYMAN ( Filing fee $ 350 receipt number 03120000000002295125.), filed by HOWARD THOMPSON, JR. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Civil Cover Sheet, # 6 Declaration OF BISHOP JOSEPH RAVENELL)(gxh) (Entered: 12/04/2008)
2 MOTION for Preliminary Injunction by HOWARD THOMPSON, JR. (Attachments: # 1 Brief, # 2 Certificate of Service, # 3 Text of Proposed Order)(gxh) (Entered: 12/04/2008)
Set Deadlines as to 2 MOTION for Preliminary Injunction. Motion set for 1/5/2009 before Judge Anne E. Thompson. The motion will be decided on the papers. No appearances required unless notified by the court. (gxh) (Entered: 12/04/2008)

Case: 3:08-cv-5926 As of: 09/19/2012 07:19 PM EDT 2 of 4

12/03/2008
12/03/2008
12/04/2008 12/04/2008 12/29/2008 01/08/2009 01/09/2009 01/09/2009 01/16/2009
01/22/2009
01/23/2009 01/23/2009 01/23/2009 02/09/2009 02/09/2009
02/10/2009
02/11/2009

3 MOTION for Leave to Appear Pro Hac Vice by HOWARD THOMPSON, JR. (Attachments: # 1 Certification IN SUPPORT OF PRO HAC VICE PETITION, # 2 Certification IN SUPPORT OF PRO HAC VICE PETITION, # 3 Text of Proposed Order)(gxh) (Entered: 12/04/2008)
Set Deadlines as to 3 MOTION for Leave to Appear Pro Hac Vice. Motion set for 1/5/2009 before Magistrate Judge John J. Hughes. The motion will be decided on the papers. No appearances required unless notified by the court. (gxh) (Entered: 12/04/2008)
4 Summons Issued as to MICHELLE R. RICCI. Days Due − 20. Summons mailed to counsel. (gxh) (Entered: 12/04/2008)
5 Summons Issued as to GEORGE W. HAYMAN. Days Due − 20. Summons mailed to counsel. (gxh) (Entered: 12/04/2008)
6 ORDER adjourning pltf's motion for preliminary injunction to 2/17/09; and setting briefing schedule. Signed by Judge Anne E. Thompson on 12/29/08. (lk) (Entered: 12/29/2008)
7 ORDER granting 3 Motion for Daniel Mach, Esq. Leave to Appear Pro Hac Vice. Signed by Magistrate Judge John J. Hughes on 1/7/09. (lk) (Entered: 01/08/2009)
8 SUMMONS Returned Executed by HOWARD THOMPSON, JR. MICHELLE R. RICCI served on 1/5/2009, answer due 1/26/2009. (BAROCAS, EDWARD) (Entered: 01/09/2009)
9 SUMMONS Returned Executed by HOWARD THOMPSON, JR. GEORGE W. HAYMAN served on 1/5/2009, answer due 1/26/2009. (BAROCAS, EDWARD) (Entered: 01/09/2009)
10 BRIEF in Opposition re 2 MOTION for Preliminary Injunction filed by MICHELLE R. RICCI, GEORGE W. HAYMAN. (Attachments: # 1 Certification of Michelle Ricci, # 2 Certificate of Service)(MORATTI, DIANNE) (Entered: 01/16/2009)
11 Application and Proposed Order for Clerk's Order to extend time to answer Attorney SUSAN MARIE SCOTT and SUSAN MARIE SCOTT for MICHELLE R. RICCI and GEORGE W. HAYMAN added. (Attachments: # 1 Certificate of Service)(SCOTT, SUSAN) (Entered: 01/22/2009)
Granting 11 Application and Clerk's text only Order to extend time to answer as to MICHELLE R. RICCI answer due 2/9/2009; GEORGE W. HAYMAN answer due 2/9/2009. (lk) (Entered: 01/23/2009)
Pro Hac Vice fee received for Daniel Mach, Esq.: $150, receipt number 300 371075 (mmh) (Entered: 01/23/2009)
12 Letter from Request by Local Counsel for Pro Hac Vice Attorney to Receive Electronic Notification. (BAROCAS, EDWARD) (Entered: 01/23/2009)
13 ANSWER to Complaint with Jury Demand by MICHELLE R. RICCI, GEORGE W. HAYMAN. (Attachments: # 1 Certificate of Service)(SCOTT, SUSAN) (Entered: 02/09/2009)
14 REPLY to Response to Motion re 2 MOTION for Preliminary Injunction (Reply Brief) filed by HOWARD THOMPSON, JR. (Attachments: # 1 Declaration of Howard Thompson, # 2 Declaration of Dr. Yolanda Pierce)(BAROCAS, EDWARD) (Entered: 02/09/2009)
CLERK'S QUALITY CONTROL MESSAGE: FOR FUTURE REFERENCE The Answer 13 submitted by S. Scott, Esq. on 2/9/09 did not contain a proper handwritten signature of Dianne M. Moratti. Only the filing user is permitted to sign electronically filed documents with an s/. This submission will remain on the docket unless otherwise ordered by the court. (lk) (Entered: 02/10/2009)
15 NOTICE of Hearing:A Telephone Conference Call has been set for 3/12/2009 03:00 PM in Trenton − Courtroom 6E before Magistrate Judge Tonianne J. Bongiovanni. (ce3) (Additional attachment(s) added on 2/11/2009: # 1 Main

Case: 3:08-cv-5926 As of: 09/19/2012 07:19 PM EDT 3 of 4

02/17/2009 02/18/2009 02/23/2009 03/06/2009
03/16/2009 03/16/2009 03/16/2009
04/03/2009 04/08/2009 04/09/2009 04/13/2009 04/14/2009 04/14/2009

document) (ce3, ). (Entered: 02/11/2009)
16 Minute Entry for proceedings held before Judge Anne E. Thompson: Motion Hearing held on 2/17/2009 re 2 MOTION for Preliminary Injunction filed by HOWARD THOMPSON, JR. DENIED. OTBS. (Court Reporter/Recorder M. Kalbach.) (jb, ) (Entered: 02/18/2009)
17 Letter from Defendants Requesting Extension of Producing a Discovery Plan. (MORATTI, DIANNE) (Entered: 02/18/2009)
18 MEMORANDUM AND ORDER denying 2 Motion for Preliminary Injunction. Signed by Judge Anne E. Thompson on 2/23/09. (lk) (Entered: 02/24/2009)
19 Transcript of MOTION HEARING held on 2/17/2009, before Judge ANNE E. THOMPSON. Court Reporter/Transcriber J &J COURT TRANSCRIBERS, INC., Telephone number (609) 586−2311. NOTICE REGARDING REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this Transcript. If no such notice is filed, the transcript will be made remotely available in electronic format to the public without redaction after ninety(90) calendar days. The redaction policy is located on our website at www.njd.uscourts.gov. Transcripts may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for release of transcript restriction. After that date it may be obtained through PACER. Redaction Request due 3/27/2009. Redacted Transcript Deadline set for 4/6/2009. Release of Transcript Restriction set for 6/4/2009. (mmh) (Entered: 03/09/2009)
Minute Entry for proceedings held before Magistrate Judge Tonianne J. Bongiovanni: Telephone Conference held on 3/12/2009. (ce3) (Entered: 03/16/2009)
TEXT ORDER − Status Conference via telephone set for Tuesday, July 21, 2009 at 10:30 AM before Magistrate Judge Douglas E. Arpert. It shall be plaintiffs counsels responsibility to contact all counsel to set up the conference as well as initiate the conference call. Kindly mark your calendar accordingly.(ce3) (Entered: 03/16/2009)
20 SCHEDULING ORDER: Telephone Conference set for 7/21/2009 10:30 AM in Trenton − Courtroom 6E before Magistrate Judge Tonianne J. Bongiovanni. Final Pretrial Conference set for 11/5/2009 11:00 AM in Trenton − Courtroom 6E before Magistrate Judge Tonianne J. Bongiovanni. Discovery due by 9/11/2009 and setting schedule for service of certain reports. Signed by Magistrate Judge Tonianne J. Bongiovanni on 3/13/09. (ij, ) (Entered: 03/16/2009)
Case Reassigned to Magistrate Judge Douglas E. Arpert. (mak) (Entered: 04/03/2009)
21 MOTION for Leave to Appear Pro Hac Vice (for Heather Weaver) by HOWARD THOMPSON, JR. (Attachments: # 1 Certification of Ed Barocas in Support of Pro Hac Vice Petition, # 2 Certification of Heather Weaver in Support of Pro Hac Vice Petition, # 3 Text of Proposed Order)(BAROCAS, EDWARD) (Entered: 04/08/2009)
Set Deadlines as to 21 MOTION for Leave to Appear Pro Hac Vice (for Heather Weaver) MOTION for Leave to Appear Pro Hac Vice (for Heather Weaver). Motion set for 5/4/2009 before Magistrate Judge Douglas E. Arpert. The motion will be decided on the papers. No appearances required unless notified by the court. (lk) (Entered: 04/09/2009)
Pro Hac Vice fee received for Heather L. Weaver, Esq.: $150, receipt number 200 356313 (mmh) (Entered: 04/14/2009)
22 ORDER granting 21 Motion for Heather L. Weaver, Esq. Leave to Appear Pro Hac Vice for pltf.. Signed by Judge Anne E. Thompson on 4/13/09. (lk) (Entered: 04/15/2009)
23 ORDER setting certain discovery deadlines (lk) (Entered: 04/15/2009)

Case: 3:08-cv-5926 As of: 09/19/2012 07:19 PM EDT 4 of 4

04/21/2009 06/02/2009 06/03/2009
06/08/2009 07/20/2009 07/21/2009 07/22/2009 09/11/2009 09/25/2009 09/28/2009
10/05/2009 10/08/2009
10/08/2009 11/24/2009 11/25/2009

24 NOTICE of Appearance by EDWARD L. BAROCAS on behalf of HOWARD THOMPSON, JR (BAROCAS, EDWARD) (Entered: 04/21/2009)
25 Joint MOTION to Amend/Correct /Modify the Pretrial Scheduling Order by HOWARD THOMPSON, JR. (Attachments: # 1 Text of Proposed Order)(BAROCAS, EDWARD) (Entered: 06/02/2009)
Set Deadlines as to 25 Joint MOTION to Amend/Correct /Modify the Pretrial Scheduling Order. Motion set for 7/6/2009 before Magistrate Judge Douglas E. Arpert. The motion will be decided on the papers. No appearances required unless notified by the court. (lk) (Entered: 06/03/2009)
26 ORDER granting 25 Joint Motion to Modify Pretrial Scheduling Order. Signed by Magistrate Judge Douglas E. Arpert on 6/4/2009. (mmh) (Entered: 06/08/2009)
27 Letter from Deputy Attorney General Susan M. Scott on behalf of Defendants seeking an Order to depose Plaintiff, an inmate. (Attachments: # 1 Text of Proposed Order)(SCOTT, SUSAN) (Entered: 07/20/2009)
Minute Entry for proceedings held before Magistrate Judge Douglas E. Arpert: Telephone Conference held on 7/21/2009. (ce3) (Entered: 07/21/2009)
28 ORDER granting request to take deposition of plaintiff. Signed by Magistrate Judge Douglas E. Arpert on 7/21/09. (lk) (Entered: 07/27/2009)
Minute Entry for proceedings held before Magistrate Judge Douglas E. Arpert: Telephone Conference held on 9/11/2009. (ce3) (Entered: 09/14/2009)
29 Proposed Pretrial Order /Modifying the Pretrial Scheduling Order by HOWARD THOMPSON, JR. (BAROCAS, EDWARD) (Entered: 09/25/2009)
CLERK'S QUALITY CONTROL MESSAGE: The Document 29 Proposed Order submitted by E. Barocas, Esq. on 9/25/09 must be executed by a Judicial Officer before filing. Please forward to the appropriate Judicial Officer in accordance with his/her preferred practice. This submission will remain on the docket unless otherwise ordered by the court. This message is for informational purposes only.(lk) (Entered: 09/28/2009)
NOTICE of Hearing: Telphone Conference set for 10/8/2009 11:00 AM in Trenton − Courtroom 6W before Magistrate Judge Douglas E. Arpert. (ce3) (Entered: 10/05/2009)
Minute Entry for proceedings held before Magistrate Judge Douglas E. Arpert: Telephone Conference held on 10/8/2009, ( Status Conference set for 1/5/2010 10:30 AM in Trenton − Courtroom 6W before Magistrate Judge Douglas E. Arpert. It shall be Plaintiff's responsibility to set up and initiate call. Mark your calendars accordingly). (ce3, ) (Entered: 10/08/2009)
30 SCHEDULING ORDER: Telephone Conference set for 1/5/2010 10:30 AM before Magistrate Judge Douglas E. Arpert. Motions due by 5/14/2010.. Signed by Magistrate Judge Douglas E. Arpert on 10/8/09. (lk) (Entered: 10/08/2009)
31 STIPULATION of Dismissal by HOWARD THOMPSON, JR. (SEERATAN, NADIA) (Entered: 11/24/2009)
***Civil Case Terminated. (ss, ) (Entered: 11/25/2009)