Case 1:05-cv-00596-PLF Document 1

o Filed 03/22/2005 Page 1 of 7
FILED

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MAR 22 ZOOS

BR\A<N.D.O.N53Sq. A'~4LE;"~"v"·.',

. §

S-r. Hv A•.~R~ L-E=Y~=L: "A'1P<P~ IN, Q"'..~ d""-~T'"~,~-\:.V-)l-lj~§

HARRELL WATTS.

(In Theic Official Capacities) §

NANCY MAYER WHiTTiNGTON CLERK
U.S. DISTRICT COUIlT'
JUDGE, PaulL. Friedman DECK TYPE, Pro se General Civil DATE STAMP, 03/22/2005

VERIFIED -_.- COMPf.AiNT~c ~--~-
Pceliminacy statelnent .1. This is a federal question action· challenging the Buceau of Pcisons (BOP) failuce to handle inmate cequests fo'c 'celi;Jious accoimnodation consistent with the Religious Freedom Restocation Act (RFRA) and the Religious Land Use And Institutionalized Pecsons Act (RLUIPA), 42 U.S.C. §§ 2000bb, 2000cc et. seq. Plaintiff seeks injunctive and declaratocy relief. Jueisdiction 2. This couet has jurisdiction under 28.U.S.C. § 1331. Venue 3. Venue is aj?j?copciate in the District of Columbia. See 28 U.S.C. § 1391 (e)(l) '" (2). Exhaustion of Adminis.tcative Remedies 4. The plaintiff has exhausted all available administcative ce,uedies using the BOP's administcative cemedy peogcam. See Re,uedy ID # 349793~F1, 349793-R1, 349793-A1. Pacties 5. The plaintiff, Bcandon Sample, is a fedecal pcisoner incaececated at the Fedecal Coccectional Institution in Beaumont,

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Case 1:05-cv-00596-PLF Document 1 Filed 03/22/2005 Page 2 of 7

Texas. Plaintiff-'s mailing addcess is Beandon SaIllple #33949-

037 P.O. BOX 26020 BeauIllont, TX 77720-6020.

6. Defendant Harley Lappin is the Di-cector of the Fedecal

Buceau of Pcisons. He is sued in his official capacity. His

mailing addcess is: 320 Fiest St. N.W. Washington, DC 20534.

7. -Defendant Haccell Watts is the BOP's National Inmate Appeals

AdiUirtistcatoc. He is sued in his official capacity. Hismailing

addcess is 320 Fiest St. N.W. Washing_ton, DC 20534.

statement of .Facts

8. The plaintiff is an obsecvant Jew. _ Plaintiff,;>cacticed

Judais'il befoee his incarceration and continues his ,;>cactice

of JudaisLa -while confined. Plaintiff f-cequently attends Jewish

seevices, eveDts, etc

-and is cuceently the liason between

the Jewish cOlMiunity and chaplaincy staff at _ his ,;>lace of

incd:cce-ea tion.

9. Plaintiff sincerely believes that he must deink at least

3.5 ounces ofced wine (a ceviit) while saying Kiddush, a peayer:

sanctifying the Sabbath, during Feiday night and Satm:day shabbos

seevices. Plaintiff since-.:ely believes that wine must be used

because it has been dictated by -Jewish sages I the Code of Jewish

Law, and by peactice. For: exalu,;>Ie , before - his incacceration,

,;>laintiff said Kiddush ovec wine dueing his Friday night and

Saturday Illoening shabbos secvices.

10. Plaintiff also sincecely believes that he IllUSt dcink fouc

cups containing a least 3.5 ounces of wine ducing the Passovec

sedee, a high holiday co,nmemorating the deliverance of the Jewish

,;>eo.;>le fcoiu Egyptian bondag.e 3300 yeacs ago.

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11. Accocding to plaintiff , the Tocah desccibes the Jewish people's tcansi tion fcom.s lavecy to' fr·eedom using four different wocds to indicate four stages' of·transfoc,nation. These foue wocds . ace known as the "fou'c 'expcessions of "C<odeillption." They ace: A. V'hotzait. - "and I ce,uoved 'you"
B. V'hitzalti - "and Ieescued you"
c. V'goalti - "and I redeemed you"
D. V'lakachti - "and I took you" The fouc cups of wine ducing the Passovec sedee coccespond to these '''foue expcessions of 'cede,nption." 12. Theus'eof wine in Kiddush and ducing Passo'llec is' not only "centeal" to plaintiff's celigious peactice, but also is Lltpoctant and based on a sinceee xeligious .belief. 13. Plaintiff cequested BOP staff to either peovide,or 'pecmit hLu to pucchase, wine foe the Kiddush and Passover obse'cvances. Defendant Watts, acting on behalf. of defendant Lappin, (signatocy authoei ty foe geievance ces'ponses in the j30P' s Centcal Office has been delegated by the Director of the Bureau of Prisons to the National Inamte Ap?eals Administ'ca toe. See 28 C.F.R. § 542.11 Ca) (4)) denied the .cequest. 14. Defendant Watts' denial ·was pr-emised on the Regional
Dicectoc's decision in Remedy ID # 349793-R1 which ?covides
that, "the decision on whether oc not to allow inmate consumption of wine du·cing. Jewish secvices is de?endent upon the choice of the celebcant, not the decision 0'( eequest of the inmate. The decision to use wine in Jewish services will 'be the choice

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of the Jewish contractor. The Jewish contractor has chosen not to use wine, but rather grape juice in the service."
Furthermore, defendant watts' denial included consideration of BOP Program state,nent 5360.08, Religious Beliefs and Practices, which indicates that inmat·es .may receive wine as part of a religious ritual but, only when administered under the supervision of clergy authorized by the BOP to perform the ritual.
COUNT ONE 15. Defendant watts' denial of plaintiff's. request for wine is inconsistent with the requirements of RFRA and R~UIPA. 16. First, instead of gauging plaintiff's request for wine against plaintiff's religious beliefs, watts impermissibly shifted the inquiry to the religious beliefs. of another person
the contract Rabbi. However, under RFRA, RLUIPA, and this circuit's precedents, this was error. See .Henderson v. Kennedy, 265 F.3d 1072, 1073 (D.C. Cir. 2001) (the term "exercise of religion" inlcudes any exercise of religion, whether or not compelled by, or central to, a system of religious belief); Levitan v. Ashcroft, 281 F.3d 1313, 1322 (D.C. Cir. 2002) (the fact that some other Catholics only consume the species of bread is not dispositive, nor are the statements of clergy that the taking of wine by congregants is not a mandatory element of the ritual) (emphasis added). 17. Sacond, as discussed previously, this denial substantially burdens plaintiff's exercise of religion because the taking of wine during Kiddush ·and Passover is not only "central" to

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Q
pl,tintiff's religious practice, but also is i.nporatimt and is based on plaintiff's sincere beliefs. Levitan, 281 F.3d at 1321 (In other - cases, in which the practice is indisputably an important -coffiponent of the litigant's religious sche,ne, such evidence ,nay be relevant to oVerCO,lle and claim- that the impact of the challenged law is de minimis. Moreover, a rule that bans a practice might n::metheless -impose a substantial burden, if the practice is important and based on a sincere religious belief) . 18. Third, in denying plaintiff's reque~t, defendant Watts did not assert a c:>mpelling - g:::>vernmental interest nor did he consider if his outright denial was the least restrictive ffieans
~
in handling plaintiff's request. 19. Fourth, reliance on P.S. 5360.08 and its requirement that a Rabbi administer wine violates RF1VI. and RLUIPA. This is because such requirement places plaintiff in a "catch 22" plaintiff cannot receive the wine without a Rabbi, but no Rabbi will co.ne to the prison on Shabbat or Pass:>ver to participate in the service, ffiuch less to administer wine,' because Jewish law prohibits driving during these times. This policy does n:>t represent the least restrictive means in handling plaintiff's request for wine. 20. Instead of requiting a Rabbi to administer wine, other BOP staff, such as the instituti:>n chaplain, can administer wine to the plaintiff. Currently, the institution chaplain provides grape juice, candles, natzoh, a lightar, and ot.her religi:>us acoutrements to tha plaintiff. For the purposes of

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.RFRA and RLUIPA, there is no s:i,gnificant difference between a Rabbi and the institution chaplain administering wine and other items to the plaintiff. 21. Fifth, wine is presently provided to other Jewish and Catholic inmates in the BOP. 22. Sixth, M.anishewitz .makes a low alcohol content wine that can be used in lieu of regular wine to prevent drunkenness.
COUNT TWO
23. As evident by the allegations in paragraphs 8-22 of this complaint, defendant .Lappin has failed to train, supervise, and promulgate policies requiring hi.s subordinates to co:nply with RFRA and RLUIPA. Because of this, plantiff's statutory rights have, and will continue, to be violated. Relief Requested 24. Plaintiff seeks injunctive and declaratory relief requiring defendants to: (1) Stop making the religious beliefs of other persons, such as the Rabbi in the instant case, dispositive of plaintiff's request for religious accom:nodation; (2) Conside.r plaintiff's requests for religious accommodation consisteht .with plaintiff's sincere and important religious beliefs; (3) Consider, c;msistent with RFRA and RLUIPA, plaintiff's requests for religious accommodation irrespective of whether the practice at issue is mandatory; (4) Provide plaintiff with at least 3.5 ounces of kosher red wine for Kiddush on Friday nights and Saturday shabbos services;
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(5) Provide plaintiff with four cups containing at least 3.5 ounces of kosher red wine to be drunk during the Passover seder; and (6) Promulgate . polcies and train BOP staff to consider plaintiff's. requests· for religious accommodation consistent with the RFRA, RLUIPA, and circuit precedent.
Plaintiff further seeks costs and attorney's fees, if applicable. Verfication
I declare under penalty of perj ury that the foregoing is
true and correct. 28 u.s.c. § 1746. Signed this 7th day of
February, 2005.

Respectfully submitted,

Brandon Sample #33949-037 P.O. BOX 26020 Beaumont, TX 77720-6020

I

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 Case 1:05-cv-00596-PLF Document 17 Filed 08/08/2005 Page 1 of 52

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BRANDON SAMPLE, Plaintiff,
v. HARLEY LAPPIN, et al.,
Defendants.

) ) ) ) ) Civil Action No. 05-596 PLF ) ) ) ) )

DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT OR TO TRANSFER

Defendants respectfully move, pursuant to Fed. R. Civ. P.

12(b)(1) and (6); and 42 U.S.C. § 1997e(e), to dismiss the

Complaint. In the alternative, this Court should enter summary

judgment in favor of defendants pursuant to Fed. R. Civ. P. 56,

because there is no genuine issue as to any material fact and

defendants are entitled to judgment as a matter of law. Should

the Court deny defendants’ motion to dismiss or in the

alternative for summary judgment, defendants request that the

Court transfer this action to the Eastern District of Texas

pursuant to 28 U.S.C. § 1404(a), because the transfer would

promote the interests of justice and the Court there would be a

more convenient forum.

In support of this motion, Defendants rely upon the

Case 1:05-cv-00596-PLF Document 17 Filed 08/08/2005 Page 2 of 52 accompanying memorandum and statement of material facts not in dispute. A proposed order is also attached.
Respectfully submitted, KENNETH L. WAINSTEIN, DC Bar #451058 United States Attorney R. CRAIG LAWRENCE, DC Bar #171538 Assistant United States Attorney W. MARK NEBEKER, DC Bar #396739 Assistant United States Attorney
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BRANDON SAMPLE Plaintiff,
v. HARLEY LAPPIN, ET AL.
Defendant.

) ) ) ) ) Civil Action No. 05-596 PLF ) ) ) ) )

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE,
FOR SUMMARY JUDGMENT OR TO TRANSFER

INTRODUCTION

Defendants submit that dismissal, summary judgment for

Defendants, or transfer is warranted as set forth below. In

short, Plaintiff's Complaint should be dismissed because

Plaintiff has failed to state a claim upon which relief can be

granted under the Religious Exercise in Land Use and by

Institutionalized Persons Act ("RLUIPA"), which does not apply to

federal prisons. Plaintiff's claim under the Religious Freedom

and Restoration Act ("RFRA") of 1993 are also without merit and

the policy Plaintiff seeks to challenge is reasonably related to

a governmental interest under Turner v. Safley, 482 U.S. 78

(1987), and Plaintiff has failed to exhaust administrative

remedies on at least one of his contentions. Finally, transfer

is appropriate, even were any claim to survive the instant

motion.

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ARGUMENT
RLUIPA does not apply to Federal Prisons Plaintiff alleges that the denial of his request for a religious accommodation while in federal prison violates RLUIPA. RLUIPA applies exclusively to state prisons and has no application in federal prisons. Ish Yerushalayim v. United States, 374 F.3d 89 (2d Cir. 2004); Benning v. Georgia, 391 F.3d 1299 (11th Cir. 2004). See also 42 U.S.C. § 2000cc-2 and cc-5. Because Plaintiff is incarcerated in federal prison and his contentions related to matters that occur while in federal prison, RLUIPA does not provide the proper basis to challenge actions by federal officials in federal prisons. Thus, the Plaintiff’s claims under RLUIPA must be dismissed.
Plaintiff has not exhausted administrative remedies for one of his contentions Under the Prison Litigation Reform Act ("PLRA"), a prisoner must exhaust “such administrative remedies as are available” before bringing a civil action in federal court. 42 U.S.C. §1997e(a). In Booth v. Churner, 532 U.S. 731 (2001), a unanimous Supreme Court held that Congress mandated completion of any prison administrative remedy process capable of addressing the inmate’s complaint and providing some form of relief, “irrespective of the forms of relief sought and offered through
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administrative avenues.” Id. at 741 n.6. The remedy system at issue in Booth was nearly identical to the three-level process used in the federal prison system. Id. at 734; 28 C.F.R. Part 542.
The Supreme Court affirmed dismissal of the case for failure to complete exhaustion. The High Court also closed the door on any futility arguments made by the inmate, stating, “we will not read futility or other exceptions into statutory exhaustion requirements where Congress has provided otherwise.” Id. at 1825. See also Porter v. Nussle, 534 U.S. 516 (2002).
Exhaustion of all stages of the administrative remedy system is therefore mandatory before a federal action may be commenced by a prisoner. The Bureau of Prisons ("BOP") administrative remedy procedure is set out at 28 C.F.R. § 542.10, et seq., and provides formal review of any complaint which relates to any aspect of the inmate's confinement. The process has four levels of review: informal resolution, institution level, regional director, and office of general counsel in central office, which is the final administrative appeal in the Bureau of Prisons. 28 C.F.R. § 542.13-14.
A review of the administrative remedy requests filed by this plaintiff revealed that he exhausted his administrative remedies regarding the denial of wine on Fridays and Saturdays and holy days under the former BOP Central Policy. See Attachment A:
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Request for Administrative Remedies, and Regional and Central Office Appeals. However, the Plaintiff did not exhaust his administrative remedies with respect to his request that a staff member, other than the Jewish Rabbi, provide him with the wine he seeks. See Attachment B: Declaration of Harrell Watts, National Appeals Administrator. Thus, the court should dismiss those allegations.1 The Plaintiff is well acquainted with the administrative remedy program as he has filed a total of 145 administrative requests since September of 2000.
The Bureau of Prisons Regulations and Program Statements The Code of Federal Regulations explains that BOP does not require that incarcerated individuals express a religious belief or preference. Upon arriving at the institution, inmates go through an initial screening completed by the Unit Team, during which inmates may or may not make known their religious preferences. Inmates can also request a change of their religious preferences by submitting a written request to the Chaplain at any time. 28 C.F.R. § 548.10 (c). BOP policy has
1 Arguably, because Plaintiff exhausted his request for wine only under the BOP’s earlier policy, his claim under that policy is ineffectual, because that former policy is moot. BOP questions whether his desire for relatively large amounts of wine would ever be consistent with safety and security. But if he is seeking to have his warden employ the “least restrictive alternative” of Program Statement 5360.09, he should address his request to his Warden. The proper place to litigate such an issue, however, would be in the District where he is incarcerated.
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provided, and provides that in determining what religious
activities an inmate can participate in, “staff may wish to refer
to information reported on the intake screening form and the
inmate’s religious preference history. Inmates showing ‘No
Preference’ or indicating membership in a different faith group
may be restricted from participating in activities deemed
appropriate for members only.” See Program Statement 5360.08
(Attachment C), ¶ 8; accord Program Statement 5360.09, ¶ 8.
The regulations, which afford all inmates equal
opportunities in the accommodation of their religious practices,
provide:
(a) The Bureau of Prisons provides inmates of all faith groups with reasonable and equitable opportunities to pursue religious beliefs and practices, within the constraints of budgetary limitations and consistent with the security and orderly running of the institution and the Bureau of Prisons.
(b) When considered necessary for the security or good order of the institution, the Warden may limit attendance at or discontinue a religious activity. Opportunities for religious activities are open to the entire inmate population, without regard to race, color, nationality, or ordinarily, creed. . . .
28 C.F.R. § 548.10 (emphasis added).
The BOP policy specifically addresses the use of wine during
religious rituals. The BOP policy, amended in August 2002,
reads as follows:
Inmates may be permitted to receive small amounts of wine as part of a religious ritual, only when administered under the supervision of clergy authorized by the Bureau of Prisons to perform the ritual.
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Because wine is otherwise a contraband substance, it can be dispensed only under strict control and supervision. Inmates will not be allowed to give wine to other inmates. For purposes of this policy, the consumption of wine under these circumstances will not be considered consumption of alcohol or ingestion of an illegal substance.
See Program Statement 5360.08, Religious Beliefs and Practices,
pages 15-16, Section 20 (August 22, 2002 Change Notice).2
On December 31, 2004, the BOP policy was again amended. See
Attachment C: Program Statement 5360.09, Religious Beliefs and
Practices, page 4, Section 7(b) (December 31, 2004). The 2004
amended policy which came into effect on December 31, 2004, reads
as follows:
Inmates may be permitted to receive small amounts of wine as part of a religious ritual only when administered under the supervision of BOP chaplains, clergy contractors, or clergy volunteers authorized by the Bureau to perform the ritual.
Program Statement 5360.09 at 4. The distinction between the two
amendments is that the 2004 amendment expands the category of
individuals who can administer the wine to “BOP chaplains, clergy
contractors, or clergy volunteers.” See id.
In determining how to accommodate the inmate requests for
religious practices, BOP regulations also provide: that
The Warden may request the chaplain to consult with community representatives of the inmate’s faith group . . . to verify the religious significance of the requested observance. The chaplain will work with requesting inmates to accommodate a proper observance of the holy day.
2 On August 22, 2002, a Change Notice amended the 2001 policy to allow inmates to use “small amounts of wine” during religious rituals. See Program Statement 5360.08, Change Notice.
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28 C.F.R. § 548.18. The new BOP policy is rationally related to a legitimate governmental interest The Court of Appeals in Levitan v. Ashcroft, 281 F.3d 1313
(D.C. Cir. 2002), provided an analytical framework for cases filed in the District of Columbia, which involve religious practices in correctional institutions. In Levitan, Catholic inmates challenged the BOP policy no longer in effect which prohibited inmates from drinking wine at any time, even during religious ceremonies. Catholic inmates had previously been allowed to partake in the wine during mass and subsequently were denied access to wine due to a policy change.3 Id. at 1316.
The Levitan case involved a challenge under the First Amendment and did not address whether the BOP policy violated the RFRA as the appellants had not raised that issue at the District Court level. Id. at 1316. Nevertheless, the Appellate Court remanded the case with instructions to apply Turner v. Safley, 482 U.S. 78 (1987), and O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987),4 as the standard applicable to cases involving a free exercise claim in this circuit. Id. at 1318-19. The Levitan
3 The 1997 policy stated that “[s]acramental wine is necessary for the worship of some faith groups . . . In those cases only, the staff or contract chaplain may consume small amounts of wine for performance of the ritual.” See Program Statement 5360.07, Religious Beliefs and Practices, at 10, Section 19 (August 25, 1997).
4 In O’Lone, the Supreme Court applied the reasonableness test in Turner. See infra.
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court concluded that the religious practice subject to restriction does not have to be mandatory to be protected. Id. at 1319. However, the restriction must be of a substantial nature, and the restriction may be substantial if the practice is based on a sincere belief. Id. at 1319-20.
The Plaintiff in this case files his complaint under RFRA. The Bureau of Prisons has amended its policy since Levitan and currently allows inmates the use of wine during religious rituals. The current policy is reasonable and establishes a balance between the religious rights of inmates and the legitimate governmental interest of maintaining security of the institution.
In Levitan, the Catholic inmates’ religious practice could have been accommodated with a small amount of wine, or even by just dipping the host in the wine. Id. at 183. Unlike the small amount of wine at issue in Levitan, the Plaintiff in this case is asking for a relatively large quantity of wine on a regular basis thereby presenting the institution with a serious threat to security and a significant challenge to the efficient allocation of resources devoted to religious purposes as similar requests for wine from inmates of all religions who utilize wine would have to be accommodated. See Declaration of Susan VanBaalen ("VanBaalen Decl."); Declaration of Linda Thomas ("Thomas Decl."). The BOP policy the Plaintiff challenges meets the test
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enunciated in Turner as it is reasonably related to the legitimate governmental interest of maintaining the secure and orderly running of correctional institutions. Moreover, the limitations imposed by Plaintiff’s Warden and by BOP’s Central Policy are the least restrictive alternatives that allow some wine for religious purposes but are designed to protect the safety and security of the prisons.
The New BOP Regulation and Policy Statement satisfy the Turner test as enunciated in Levitan and the RFRA
The Levitan Court directed district courts to apply the Turner test in cases involving regulations which restrict the free exercise of religion in a prison setting. In so doing, the court outlined the four prong test first enunciated in Turner, supra, as follows:
First, there must be a valid, rational connection between the regulation and the legitimate interest put forth to justify it. Second, there must be a determination whether the prisoners retain alternative means of exercising their asserted rights. Third, there must be an assessment of the impact accommodation of the asserted constitutional right will have on guards, other inmates, and prison resources. Finally, “the absence of ready alternatives is evidence of the reasonableness of a prison regulation.” Id. at 1318 (citing Turner, 482 U.S. at 90). In Turner, the Supreme Court recognized the difficulty in running prisons which “requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government.” Turner,
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supra, at 85. The Supreme Court established the standard of review “that is responsive both to the ‘policy of judicial restraint regarding prisoner complaints and [to] the need to protect constitutional rights.’” Id. Application of the Turner test to the BOP religious policy reflects that it is rationally related to the security of the prisons.
First, the BOP regulations and policy (hereinafter BOP policy) regarding the use of wine by incarcerated individuals for a religious purpose meet the first prong of the Turner test. The policy is permissive; thus, allowing prison administrators to make decisions which fit the special circumstances or inmate population in their institutions. The governmental interest in restricting the use of wine in federal correctional institutions is most definitely legitimate. Use of wine or any other alcoholic beverage in prison could seriously compromise the security of the institution as such consumption has the effect of altering moods and eliciting violent behavior. See Linda Thomas, ¶ 4-11. Many individuals who consume alcohol engage in violent, erratic behavior, or behavior that disrupts the orderly running of the institution. See VanBaalen Decl., ¶¶ 11-16; Thomas Decl., ¶¶ 4-11. This violent and erratic behavior may be exacerbated by the conditions of confinement. Id. Many incarcerated offenders have a history of substance abuse and may utilize the religious rituals to get the amounts of alcohol or wine they choose. See
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Thomas Decl., ¶¶ 5-11. The governmental objective in this case is neutral and the regulation is implemented in a neutral fashion. All inmates of all religious faiths are treated the same, are subject to the same policy, and are provided the same or equivalent access to religious objects and rituals.
The BOP policy is not arbitrary or irrational nor is it an exaggerated response to a governmental interest. The BOP policy allows for the use of wine in “small amounts” during religious rituals thereby striking a compromise between the religious rights of the inmates and the secure and orderly running of the institution. See Program Statement 5360.09, ¶ 7; VanBaalen Decl., ¶¶ 6-7, 12-16; Thomas Decl., ¶¶ 9-10.
In FCI Beaumont’s Low Security facility (“Beaumont Low”), inmates are not allowed to partake in the wine because of security concerns. Even if Beaumont Low allowed wine, the Plaintiff would not obtain the relief he is seeking. The Plaintiff in this case is asking for a substantial amount of wine - several ounces on a regular basis - clearly outside the amount generally allowed by the BOP policy. Specifically, he is asking for 3.5 ounces while saying Kiddush5 during Friday and Saturday
5 “The Sabbath meal on Friday evening is ushered in with the recital of Kiddush (the sanctification blessing). It is meritorious to say Kiddush over aged and perfect wine, but grape juice is acceptable in the institutional setting. . . . When wine of grape juice are unavailable, the Kiddush may be recited over two loaves of bread or whole matzot. . . . The Kiddush should also be recited over a cup of wine or grape juice at the start of the Sabbath morning meal.” Institutional Handbook of Jewish
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shabbos6 services, and four cups of 3.5 ounces of wine each
during the Passover seder.7 The BOP must provide equal
opportunities for all inmates of all faith groups to pursue their
religious practices. As a result, BOP would have to provide all
inmates with religious practices involving wine consumption with
substantial amounts of wine. See VanBaalen Decl., ¶¶ 7-8.
Indeed, BOP would have to accommodate inmates’ requests for wine
in the amounts requested. Thus, the dispensation of wine as the
Plaintiff requests would be contrary to sound correctional
Practice and Procedure, Chapter 4-7 (9/98). 6 Shabbos and Shabbat both are the Hebrew word for Sabbath. 7 Passover Seder is described as follows:
The two Passover Seders are not simply ‘meals’ - they are religious rituals that require certain foods as part of their proper observance. Observant Jews are obligated to partake in two Seders on Passover, on the first two eves of the holiday.
During the Seder, the ‘Haggadah’ is recited. The Haggadah is a collection of prayers, songs and text recounting the Exodus from Egypt.
Matzo, bitter herbs and wine (or grape juice), ‘Charoses’ (see below), a chicken neck or other piece of roasted meat, horseradish and romaine lettuce, potatoes, onions, salt water and a hard-boiled whole egg are religious items that are required to complete the Seder rituals, as are the other foods comprising a religious meal.
Among other rituals, Jews are mandated to drink four cups of wine at each of the two Seders. . . . If, however, for health or other reasons, wine is unavailable, kosher grape juice may be used instead.
Id. at 6-20.
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judgment and would seriously jeopardize the security of BOP institutions. See Thomas Decl., ¶¶ 9-10.
Moreover, Beaumont Low is utilizing grape juice as a substitute for wine for the celebration of religious rituals, including those of Judaism. See VanBaalen Decl., ¶ 4. Grape juice is accepted in the Jewish faith generally as a permissible substitute for wine during the Jewish ceremonies and holy days. See VanBaalen Decl., ¶ 13. The Plaintiff is still able to celebrate his religious holy days and observances. He is given access to a Rabbi and to articles needed to celebrate his holy days. Id., ¶ 5. Thus, the policy is a rational response to the legitimate governmental interest of preserving institution security.
Second, the plaintiff has an alternative means to exercise his religious preference. In engaging in this prong of the Turner analysis, the Court looked at whether the inmates were deprived of “all means of expression.” Turner, supra, at 92. In O’Lone, the Supreme Court upheld a prison policy which prevented some Muslim prisoners from participating in a Muslim service as the Plaintiffs were not deprived of “all forms of religious exercise but instead allow[ed] participation in a number of Muslim religious ceremonies.” O’Lone, supra, at 343. Similar to O’Lone, this Court should look at the plaintiff’s ability to participate in all the holy days and observances of his religion
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as support that the restriction on the use of wine is reasonable. The Plaintiff is allowed to participate in all weekly Sabbath observances, which consist of two congregate services one on Friday evening and the other on Saturday morning. The institution contracts a Rabbi who visits the institution once a month. VanBaalen Decl., ¶ 5. The Plaintiff is allowed to observe the required Occasional Observances/Holy Days & Public Fasts as they occur throughout the Jewish Calendar Year. He also receives a Kosher diet. Id. Moreover, as the Plaintiff himself admits in his complaint, the institution Chaplain provides him with “grape juice, candles, matzah,8 a lighter, and other religious acoutrements [sic]. . .” Complaint, ¶ 20. Thus, the application of the policy to the Plaintiff’s request only bars him from drinking the substantial amount of wine he seeks during the rituals, but it does not bar him from participating or observing the holy days and rituals of his religion as reflected in the same Code of Jewish Law which he cites. Complaint, ¶ 9; Thus, the application of the regulation does not deprive the plaintiff “of all means of expression.”
The Plaintiff in this case challenges the decision to
8 The matzah is known as the bread of affliction the Jews eat during Passover. “Matzah has no special flavor, as it contains no salt and no yeast. The dough for baking the matzah must not be allowed to become leavened. For this reason, while kneading the dough, special precautions are taking against fermentation.” Rabbi Solomon Ganzfried, Code of Jewish Law, fn. 81, Hebrew Publishing Co. (1961).
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Case 1:05-cv-00596-PLF Document 17 Filed 08/08/2005 Page 17 of 52
utilize grape juice for his religious observances. Based on security concerns, wine is not used at Beaumont Low. The Rabbi has indicated that grape juice is an adequate substitute for wine. The Levitan court concluded that a statement made by a religious leader about the consumption of wine not being mandatory in not necessary dispositive of the issue. In this case, Jewish Law itself, upon which the Rabbi relies and which Plaintiff contends he follows (Complaint, ¶ 9), provides grape juice as an alternative to celebrate the Kuddish and Passover Seder when wine is not available. See Institutional Handbook, at 4-7 and 6-20; VanBaalen Decl., ¶ 4. Indeed, the recitation of Kuddish can be done in one of three ways: pray Kuddish over wine, pray Kuddish over grape juice, or pray Kuddish over the bread without wine. Id. Consistent with this instruction, grape juice is being used as a substitute for wine at Beaumont Low. Plaintiff still retains alternative means of expressing his religious belief and is able to participate in all observances of his religion.
Third, accommodating the plaintiff’s request would have a serious, negative impact on the security of inmates, correctional officers, and even religious services staff. See VanBaalen Decl., ¶¶ 6-8, 11-13, 16-18; Thomas Decl., ¶¶ 8-11. In enunciating this prong, the Turner court explained:
In the necessarily closed environment of the correctional institution, few changes will have no ramifications on the
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Case 1:05-cv-00596-PLF Document 17 Filed 08/08/2005 Page 18 of 52
liberty of others or on the use of the prison’s limited resources for preserving institutional order. When 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 decision of corrections officials. Turner, supra, at 90. To give Plaintiff the relief he seeks would impose a tremendous burden on institution resources as wine would have to be provided to all inmates of all religious faiths who utilize wine in the amounts of the inmates’ preferences. See United States v. Jefferson, 175 F.Supp.2d 1123, 1132 (N.D. Ill. 2001)(“Any judicial attempt to carve out a religious exception will result in significant administrative problems for the [agency] and open the door to a myriad of claims for religious exceptions.”) One of the main principles of correctional management is to provide all inmates with equal opportunities and not to afford preferential treatment to any particular group or inmate. The principle of equity was preserved in the policy at issue here. The resources available in the institutions are limited. Moreover, the BOP would lose its ability to restrict drinking wine in its institutions, in the amounts, time, place, and manner that would not compromise the security of the institution whenever an inmate asserts a religious purpose. Additionally, to provide the inmate with wine would mean to force the Rabbi to give him wine against his own decision or to even violate the Rabbi’s own religious practice.
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Case 1:05-cv-00596-PLF Document 17 Filed 08/08/2005 Page 19 of 52
Fourth, there are no ready alternatives to accommodate the Plaintiff’s request. The BOP amended its policy to accommodate the religious rights of inmates and provided that inmates may use “small amounts of wine” during religious rituals. There is no other alternative to accommodate the competing interests of security of the institution and the religious practices of incarcerated individuals. The discretionary nature of the policy strikes a balance between those two competing interests. The policy is clearly not an exaggerated response to prison concerns.
Generally, if a plaintiff can “point to an alternative that fully accommodates the prisoner’s rights at de minimis cost to valid penological interests, a court may consider that as evidence that the regulation does not satisfy the reasonable relationship standard.” Id. at 91. The Plaintiff has not been able to point to an alternative that properly safeguards safety and security; he is requesting 3.5 ounces of wine for Kiddush and the shabbos services on Friday nights and Saturday morning and four glasses of 3.5. ounces of wine for Passover Seder. The Plaintiff contends that BOP could use Manischewitz, which according to him distills a low alcohol wine. However, the Plaintiff requests such large amounts of wine on a regular basis that providing him even with this presumptively low alcohol wine would impose a heavy burden on prison resources and still not adequately protect against drunkenness and assaultive behavior by
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Case 1:05-cv-00596-PLF Document 17 Filed 08/08/2005 Page 20 of 52
those attempting to secure more wine of any alcoholic content. See VanBaalen Decl., ¶¶ 12, 16; Thomas Decl., ¶¶ 10-11. The same accommodations would have to be made for all inmates whose claimed religious practices might include the use of wine. Specifically, inmates would be able to obtain the amount of wine of their choice so long as they raise a sincere religious belief that requires the wine, a situation which would pose a serious threat to the security of prisons. Id.
In light of all these reasons, the new policy is rationally related to the governmental interest in maintaining the security of the institutions and meets the four prong test in Turner.
Similarly, Plaintiff does not have a valid claim under the Religious Freedom and Restoration Act. In his complaint, Plaintiff contends that the denial of his request for wine substantially burdens his free exercise of religion as it is based on his sincere religious belief. Plaintiff contends that in denying his request, the BOP “did not assert a compelling governmental interest nor did [it] consider if [this] outright denial was the least restrictive means. . .” Plaintiff’s complaint, ¶ 18. Plaintiff further contends that the BOP failed to accommodate his request for religious accommodation in violation of RFRA.
On November 16, 1993, Congress enacted RFRA, which reads as follows:
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(a) In general
Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.
(b) Exception
Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person--
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
(c) Judicial relief
A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution.
Religious Freedom and Restoration Act of 1993, 42 U.S.C.A. §
2000bb. The RFRA was Congress’ way of returning to the
compelling governmental interest abrogated in Employment
Division, Department of Human Resources of Oregon v. Smith, 494
U.S. 872 (1990). The RFRA statute does not provide definitions
of its key terms “substantial burden,” “compelling governmental
interest,” and/or “least restrictive means.” See id. The
Legislative Committee encouraged Courts to look at cases prior to
the Smith case for guidance with respect to those definitions.
See S. Rep. 103-111. Inmates are allowed to bring claims under
RFRA. The legislative history of RFRA shows that Congress
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intended through the enactment of this statute for courts to accord prison administrators due deference.9
Under RFRA, the government cannot substantially burden a
person’s exercise of religion. “Inadequately formulated prison
regulations and policies grounded on mere speculation,
exaggerated fears, or post-hac rationalizations will not suffice
to meet the [A]ct’s requirements.” S. Rep. No. 103-111. In
order to state a claim under RFRA, plaintiff must allege facts
demonstrating that a sincerely held religious belief has been
substantially burdened by the government policies. Henderson v.
Kennedy, 253 F.3d 12 (D.C. Cir. 2001); Jackson v. District of
Columbia, 89 F. Supp.2d 48 (D.D.C. 2000). Once the Plaintiff has
met the burden of showing a substantial burden on his sincerely
held beliefs, the burden then shifts to the government to
demonstrate that application of a burden to the person’s religion
is (1) in furtherance of a compelling government interest and (2)
9 In so doing, the Committee explained:
The Committee does not intend to act to impose a standard that would exacerbate the difficult and complex challenges of operating the Nation’s prisons and jails in a safe and secure manner. Accordingly, the committee expects that the courts will continue the tradition of giving due deference to the experience and expertise to 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.
S. Rep. 103-111, 1993 U.S.C.C.A.N. 1892, 1899-1900 (July 27, 2993) (footnote omitted).
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is the least restrictive means of furthering that compelling governmental interest. 42 U.S.C. § 2000bb-1(a), (b).
Plaintiff’s Claim Of A Religious Belief The Plaintiff states that he is an observant Jew who has “practiced Judaism before his incarceration and continued his practice while confined.” Complaint at ¶ 8. He asserts he “frequently attends Jewish services, events, etc. . . .” Complaint, ¶ 8. The Plaintiff contends that he must drink wine during the Sabbath and Passover Seder as drinking wine is not only central to his religion but it is also a sincerely held belief. In his complaint, Plaintiff specifically contends that he sincerely believes: that he must drink at least 3.5 ounces of red wine (a reviit) while saying Kiddush, a prayer sanctifying the Sabbath, during Friday night and Saturday shabbos services. Plaintiff sincerely believes that wine must be used because it has been dictated by Jewish sages, the Code of Jewish Law, and by practice. For example, before his incarceration, plaintiff said Kiddush over wine during his Friday night and Saturday morning shabbos services. Plaintiff also sincerely believes that he must drink four cups containing at least 3.5 ounces of wine during the Passover sader . . . Complaint, ¶¶ 9-10. In Wisconsin v. Yoder, 406 U.S. 205, 215-16 (1972), a case preceding Smith, supra, and the passage of RFRA, the Supreme Court cautioned that “[a]lthough a determination of what is a ‘religious’ belief or practice entitled to constitutional protection may present a most delicate question, the very concept
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Case 1:05-cv-00596-PLF Document 17 Filed 08/08/2005 Page 24 of 52
of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests.” The Supreme Court later said that “[i]t is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpretation of those creeds.” Hernandez v. Commissioner of Internal Revenue Service, 490 U.S. 680, 699 (1989).
There is substantial reason to doubt Plaintiff's claims about his claimed long-held Jewish beliefs, see VanBaalen Decl., ¶¶ 8, 11. But, assuming arguendo that Plaintiff holds a sincere religious belief to drink the amounts of wine he identifies in his Complaint, the BOP policy does not impose a substantial burden on his sincere belief, is justified by a compelling governmental interest, and constitutes the least restrictive means of achieving that interest.
The BOP Regulation does not impose a substantial burden on the Plaintiff’s Sincerely Held Beliefs
Assuming that the Plaintiff has the sincerely held belief of having wine in the amounts and manner he describes in the Complaint, he now bears the burden of showing that the BOP regulation substantially burdens his sincere religious belief. Mere conclusory allegations are not enough to carry that burden. "[A] court must accept only well-pleaded allegations of fact, it
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Case 1:05-cv-00596-PLF Document 17 Filed 08/08/2005 Page 25 of 52
need not 'accept ‘legal conclusions.’” Taiwo Okusami v. Psychiatric Inst. of Washington, Inc., 959 F.2d 1062, 1069 (D.C. Cir. 1992), quoting 5A Wright & Miller, Federal Practice and Procedure, § 1357, at 315; see also Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). Courts must be mindful that “[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.” Price v. Johnston, 334 U.S. 266, 285 (1948).
To show a substantial burden, “[t]he interference must be more than an inconvenience; the burden must be substantial and an interference with a tenet or belief to religious doctrine.” Graham v. Commissioner of Internal Revenue Service, 822 F.2d 844, 850-51 (9th Cir. 1987), aff’d sub nom, Hernandez v. Commissioner of Internal Revenue Service, 490 U.S. 680 (1989). “A substantial burden constitutes ‘putting substantial pressure on an adherent to modify his behavior and to violate his beliefs.’” Cockrell-El v. District of Columbia, 937 F.Supp. 18 (D.D.C. 1996) (quoting Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U.S. 136, 141 (1987)). “A substantial burden does not arise merely because ’the government refuses to conduct its own affairs in ways that comport with the religious beliefs of particular citizens.’" Alliance for Bio-Integrity v. Shalala, 116 F.Supp.2d 166 (D.D.C. 2000)(quoting Bowen v. Roy, 476 U.S. 693, 699 (1986)).
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Case 1:05-cv-00596-PLF Document 17 Filed 08/08/2005 Page 26 of 52
In Henderson v. Kennedy, 253 F.3d 12 (D.C. Cir. 2001), the D.C. Circuit Court found the challenged regulation which banned the sales of T-shirts in the Mall was content neutral and did not discriminate among viewpoints. Id. at 16. The plaintiffs still had a “multitude of means” to spread the gospel as they could still distribute the T-shirts for free or sell them elsewhere. Id. Essentially, the Court found the regulation did not force plaintiffs “to engage in conduct that their religion forbids or that it prevents them from engaging in conduct their religion requires. . . . Nor does the regulation ‘significantly inhibit or constrain conduct or expression that manifests some central tenet of [plaintiffs] beliefs.’” Id. at 17. See also Lynn v. Northwest Indian Cemetery Protective Association, 485 U.S. 439, 450-51 (1988)(same); Branch Ministries v. Rossotti, 40 F.Supp.2d 15, 25 (D.D.C. 1999), aff'd 211 F.3d 137 (D.D.C. 2000)(same); CockrellEl, supra, 937 F.Supp. at 21 (same). The plaintiffs were not forced to change their practices nor were they force to violate a tenet of their religion. Thus, the Court upheld the regulation since it did not impose a substantial burden on the plaintiffs. See also Thiry v. Carlson, 78 F.3d 1491 (10th Cir. 1996)(finding no substantial burden in a case in which the governmental action did not cause the plaintiffs to change their religious practices; indeed, plaintiffs would continue with their religious beliefs and practices even after implementation of the challenged
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Case 1:05-cv-00596-PLF Document 17 Filed 08/08/2005 Page 27 of 52
action). In the context of prisons, in Gartrell v. Ascroft, 191
F.Supp.2d 23, 25 (D.D.C. 2002), the District Court for the District of Columbia, on remand, evaluated a case in which the Virginia Department of Corrections ("VDOC") grooming policy precluded BOP inmates housed in VDOC, from complying with the fundamental tenet of their religions (i.e., Rastafarian and Muslim) which prohibited men from shaving their faces. BOP inmates in VDOC institutions sued on the basis of RFRA. In order to ensure compliance with this grooming regulation, VDOC went as far as forcibly shaving inmates and placing them in segregation for failure to voluntarily comply with the grooming regulation. Id. at 26. The Court found a substantial burden on the inmates’ religious beliefs as they were forced to violate a fundamental tenet of their religion. Id. at 26-27.
In Cockrell-El v. District of Columbia, the Plaintiff contended that his rights under RFRA were violated as he was not able to travel to and from his religious service without being assaulted. 937 F.Supp. at 21. The Court found no substantial burden as the Plaintiff contended the alleged assault occurred after the Plaintiff attended the service and neither prevented the Plaintiff from participating in his religious practice nor pressured him to commit an action that would violate his religion. Id. The plaintiff failed to show that “the state
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Case 1:05-cv-00596-PLF Document 17 Filed 08/08/2005 Page 28 of 52
condition[ed] receipt of an important benefit upon conduct proscribed by a religious faith, or [that] it denie[d] such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs.” Id. (Citation omitted). See Sherbert v. Verner, 374 U.S. 398, 406 (1963)(finding that conditioning “the availability of benefits upon the appellant’s willingness to violate a cardinal principle of her religious faith effectively penalizes the free exercise of her constitutional liberties.”)
In this case, especially given the Code of Jewish Law upon which Plaintiff, himself, relies, Plaintiff’s allegations do not rise to the level of a substantial burden - only an inconvenience suffered which does not significantly inhibit or constrain his religious conduct or expression.10 Nothing in the complaint indicates any fundamental or substantial interference with the exercise of his religious rights. In accordance with RFRA, the BOP attempts to accommodate the practices of religion of all inmates of all religions at correctional institutions. However, an inconvenience to an inmate’s practice of religion is not
10 Defendants are mindful that the Court of Appeals has concluded that the protections of free exercise clause of the Constitution are not limited to religions that incorporate mandatory tenets, see Levitan, 281 F.3d at 1320. But, the Court has also reiterated that "it is sometimes the case that litigants can make no credible showing that the affected practice is either central or important in their religious scheme." Id. at 1321.
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considered a substantial interference. The policy in question and its application to the Plaintiff
does not have the effect of changing or inhibiting his religious expression. It does not have the effect of precluding the Plaintiff from complying with a tenet of his religion nor does it force him to engage in activities that violate his religion. The BOP does not condition the receipt of any benefit upon the Plaintiff’s willingness to not drink wine during his religious holy days. See Sherbert v. Verner, 374 U.S. 398, 406 (1963). The Plaintiff can practice all observances of his religion. Indeed, the Plaintiff can pray Kiddush and participate in Passover Seder without wine in accordance with the Jewish Law upon which he describes himself as observing. The BOP provides the Plaintiff with articles, such as candles and matzah, he may use to celebrate his religious holy days. The BOP also provides the Plaintiff with an adequate substitute for wine by providing him with Kosher grape juice. The BOP contracts with a Rabbi to visit the institution periodically. VanBaalen Decl., ¶ 5. Although Plaintiff asserts that he disagrees with the Rabbi regarding the use of wine, “[t]he Constitution does not require . . . a religious advisor whose beliefs are completely congruent with his own.” Weir v. Nix, 114 F.3d 817, 820 (8th Cir. 1997). The application of the BOP policy to this Plaintiff is “at most a restriction on one of a multitude of means, it is not a
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Case 1:05-cv-00596-PLF Document 17 Filed 08/08/2005 Page 30 of 52
substantial burden on [his] vocation.” See Lynn, supra, 485 U.S. at 450-51. But see Rigdon v. Perry, 962 F.Supp. 150, 162 (D.D.C. 1997) (court found a substantial burden when military chaplains were prohibited from encouraging congregants to write to Congress about pending abortion law as the chaplains were left with no autonomy to determine the religious content of their sermons).
Nevertheless, assuming arguendo that the BOP policy imposes a substantial burden on the Plaintiff’s religious practices, such burden is justified by a compelling governmental interest and it constitutes the least restrictive means.
The burden on Plaintiff’s Religion is in furtherance of a compelling governmental interest The Plaintiff contends that BOP is substantially burdening his sincere belief to drink wine and such burden is not in furtherance of a compelling governmental interest in violation of RFRA. RFRA was passed to return to the compelling governmental interest standard enunciated in Sherbert v. Verner, 374 U.S. 398 (1963). See H.R. Rep. 103-88 (May 11, 1993). Under the RFRA, the government bears the burden of showing that the policy furthers a compelling government interest. To be compelling, the “interest must be of the ‘highest order.’” Winconsin v. Yoder, supra, 406 U.S. at 215. Maintaining security in correctional institutions has been regarded as an interest of the “highest
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Case 1:05-cv-00596-PLF Document 17 Filed 08/08/2005 Page 31 of 52
order.” H.R. Rep. 103-88, supra. “Whether something qualifies as a compelling interest is a question of law.” United States v. Hardman, 297 F.3d 1116, 1127 (10th Cir. 2002) (citation omitted).
Under the RFRA, a court will not examine the general application of a prison regulation, but will instead look at whether there is a compelling governmental interest, advanced through the least restrictive means, to apply the prison regulation to the individual Plaintiff. Kikumura v. Hurley, 242 F.3d 950 (10th Cir. 2001). The government has a compelling interest in controlling alcohol consumption and intoxicants within its prison walls. See Jenkins v. Angelone, 948 F.Supp. 543, 548 (E.D. Va. 1996)(denying inmate a religious diet which consisted of fresh fruit and vegetables because the “potential for inmates to make alcohol or mash would dramatically increase” which would “result in a great security threat” to the institution.) The use of alcohol has a correlation with violent and disruptive behaviors. See VanBaalen Decl., ¶ 14; Thomas Decl., ¶¶ 4-11. This correlation is exacerbated in the volatile prison environment where tensions are already at its highest. Because of the threat posed by alcohol consumption in prisons, BOP policy generally prohibits inmates from drinking alcohol. Indeed, the BOP disciplinary code penalizes inmates who use alcohol or intoxicants in prison. 28 C.F.R. § 541.13 (Codes 215, 222). The BOP policy, however, strikes a balance between the
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religious rights of inmates and the security of the institution by providing in its religious policy that inmates may be allowed to drink a “small amount of wine” during religious rituals.
Plaintiff is requesting to have 3.5 ounces of wine for shabbos services on Friday evening and Saturday morning and four glasses of 3.5 ounces of wine in Passover Seder. The Plaintiff’s request can reasonably be read as outside the scope of the BOP policy, which allows inmates to drink “small amounts of wine” during religious rituals. The Plaintiff seeks to amend policy as opposed to comport with it. By asking for such large amounts of wine, the Plaintiff is seeking to obtain preferential treatment over other Jewish inmates as well as all other inmates at Beaumont Low. To allow this one Jewish inmate to get wine in the manner he seeks would create serious problems in the institution. Prison officials would appear to favor one inmate over all other inmates of his own and other religious affiliations. This could readily lead to violence in the institution.
Moreover, to give Plaintiff the relief he seeks would create an administrative nightmare for prison administrators at Beaumont Low and eventually the entire BOP. BOP religious policy is grounded on the principle of equal opportunities for all inmates of all religious affiliations within the constraints necessary to effectively allocate resources and maintain the secure and orderly running of BOP institutions. Under the Plaintiff’s
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desired construction of the BOP policy, BOP would have to provide inmates with a sincere belief to drink wine in the amounts they choose. A situation which could lead to chaos in prisons. This would no doubt create a serious security problem in BOP institutions. See, e.g., VanBaalen Decl., ¶ 14; Thomas Decl., ¶¶ 4-11.
In light of these reasons, the Court should defer to BOP’s decision to deny Plaintiff’s request as there exists a compelling government interest in maintaining security in prisons.
The burden on Plaintiff’s Religion constitutes the least restrictive means of furthering the compelling governmental interest Plaintiff contends that the BOP policy does not constitute the least restrictive means to further a compelling governmental interest. “The government cannot meet its burden to prove least restrictive means unless it has actually considered and rejected the efficacy of less restrictive measures before adopting the challenged practice.” Gartrell, supra, 191 F.Supp.2d at 39-40. This, however, does not mean that prison officials must analyze every conceivable option in order to satisfy this prong of RFRA. See Hamilton v. Schriro, 74 F.3d 1545, 1556 (8th Cir. 1996), cert. denied, 519 U.S. 874 (1996): It would be a herculean burden to require prison administrators to refute every conceivable option in order to satisfy the least restrictive means prong of
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RFRA. Moreover, such an onerous requirement would be irreconcilable with the well-established principle, recognized by the Supreme Court and RFRA’s legislative history, that prison administrators must be accorded due deference in creating regulations and policies directed at the maintenance of prison safety and security. Hamilton v. Schriro, 74 F.3d at 1556. The government can meet its burden to prove the least restrictive means by showing the less restrictive alternatives were not acceptable to the plaintiff. See id. (ruling in favor of prison officials who denied Plaintiff’s request for a sweat lodge as Plaintiff’s “own all-or-nothing position supports the prison officials’ contention that an outright prohibition against a sweat lodge ceremony is the least restrictive means . . .”). Justice Blackmun warned that “[a] judge would be unimaginative indeed if he could not come up with something a little less ‘drastic’ or a little less ‘restrictive’ in almost any situation.” Hamilton, supra (quoting Illinois State Board of Elections v. Socialist Worker Party, 440 U.S. 173, 188-89 (1979)(Blackmun, concurring)). See also S. Rep. 103-111, supra, at 1909. Thus, Courts must exercise judicial restraint and defer to the prison administrators decisions with respect to the implementation of policies and procedures in prisons. It is extremely difficult for prison administrators to evaluate and accommodate individual requests for special treatment under RFRA while maintaining the integrity of their policy. “The most
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Case 1:05-cv-00596-PLF Document 17 Filed 08/08/2005 Page 35 of 52
effective and fair means of applying prison regulations is across the board to avoid resentment . . .” among inmates. Blanken v. Ohio Department of Rehabilitation and Correction, 944 F.Supp. 1359, 1368 (S.D. Ohio 1996).
In Gartrell v. Ashcroft, supra, 191 F.Supp.2d at 28, the District Court for the District of Columbia found that BOP could not establish that placing inmates with religious objections to grooming in VDOC facilities with a mandatory grooming regulation was the least restrictive alternative to achieve a compelling governmental interest. The Court analyzed some alternative means to accommodate the religious beliefs of the inmates and the resources available to the BOP in identifying institutions with no mandatory grooming practices. Id. at 27-36. There, the Court opined, BOP had the screening procedures to identify inmates with religious objections to the grooming policy and could easily house them in institutions that did not have a mandatory grooming policy. Moreover, BOP conceded then that it had not considered any less restrictive alternative. Thus, the Court concluded that housing inmates with religious objections in VDOC institutions was not the least restrictive means of achieving a compelling governmental interest.
The present BOP religious policy constitutes the least restrictive means for achieving a compelling governmental interest. The BOP 1997 religious policy, which is the policy
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challenged in Levitan, did not allow inmates to consume wine during religious rituals or at any other time for religious purposes. Indeed, the 1997 policy only allowed the celebrant of the ritual to drink wine.
By 2002, the BOP had amended its religious policy to provide that “[i]nmates may be permitted to receive small amounts of wine as part of a religious ritual.” See Program Statement 5260.08, Religious Beliefs and Practices, pages 15-16, Section 20 (August 22, 2002 Change Notice). This policy is permissive and allows prison administrators discretion to make determinations regarding the use of wine by inmates for religious purposes.
The policy as it applies to the Plaintiff is the least restrictive means of achieving a governmental interest. The use of wine at Beaumont Low was found to present a security problem at the institution, and as a result, inmates are not allowed to use it. The application of the policy to the Plaintiff has not precluded him from participating in the rituals of his religion.
The Plaintiff requests 3.5 ounces of wine for shabbos services on Friday and Saturday and four glasses of 3.5 ounces of wine for Passover Seder. This is clearly a large amount of wine for the institution setting. The least restrictive means in Plaintiff’s case is to allow him to continue participating in the rituals with grape juice. There are no other least restrictive means in this case. The Plaintiff’s insistence on getting wine
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in the amounts specified by him shows that he has concluded that no other option is acceptable. Thus, the government has met its burden to show that its inability to satisfy his request consistent with the safety and security of the institution and the current BOP policy constitute the least restrictive means in this case.
Requiring Plaintiff to celebrate his rituals without relatively large amounts of wine, but with kosher grape juice constitutes the least restrictive means of furthering the compelling governmental interest in preserving the security in our institutions. See May v. Baldwin, 109 F.3d 557, 563 (9th Cir. 1997) (requiring Rastafarian inmates to unbraid dreadlocks when being transferred was found to be the least restrictive means as the use of a metal detector or having staff conduct searches by touching the hair were not effective enough); VanBaalen Decl., ¶ 11.
The Plaintiff is not entitled to Prospective Relief The statute governing prospective and injunctive relief in the PLRA, codified at 18 U.S.C § 3626(a)(1) and (2), puts substantial limits on injunctive and other "prospective relief." “Prospective relief" is defined in the statute as "all relief other than compensatory monetary damages." 18 U.S.C. 3626(g)(7). Specifically, the Act provides, "relief in any civil action with respect to ‘prison conditions’ (defined by the Supreme Court in
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Porter v. Nussle, 534 U.S. 516, 525 (2002), as "any aspect of prison life") 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) and (2).
In this case, clearly, the Plaintiff is not entitled to injunctive relief and a declaratory judgment. The Court must make particularized findings of the Federal right violated and the needs-narrowness-intrusiveness requirements under the act. Id. This mandatory requirement must be more than mimicking the language of the statute, as discussed in Cason v. Seckinger, 231 F.3d 777 (11th Cir. 2000); see also, Johnson v. Breeden, 280 F.3d 1308 (11th Cir. 2002). And the statute further states, "[t]he court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief."
Similarly, Plaintiff is not entitled to declaratory relief. Plaintiff is seeking declaratory relief. The statute governing declaratory relief is found in 28 U.S.C. § 2201 (a) and provides:
... any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal
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relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such. In determining the appropriateness of a declaratory judgment, the Court will look at (1) whether declaratory judgment will definitely settle the controversy; (2) the availability of other remedies or other proceedings that may be pending; (3) the convenience of the parties; (4) the equity of the conduct of the declaratory judgment; (5) the prevention of 'procedural fencing'; (6) the state of the court record; (7) the degree of the conflict between the parties and (8) the public importance of the question to be decided. Rooney v. Secretary of Army, 293 F.Supp.2d 111 (D.D.C. 2003). Declaratory relief is applicable when there is an “actual controversy,” which has been defined as “a controversy of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Chaplaincy of Full Gospel Churches, et al. v. Johnson, 276 F.Supp.2d 79, 81 (D.D.C. 2003). Even in those cases, however, the District Court retains the discretion to withhold declaratory relief. Id. The actions that Plaintiff complains of were done in accordance with the BOP policy and procedures, although the Plaintiff argues that those actions violated the RFRA. He also insists that the policies must be amended to the extend that they deny the relief he is seeking. However, Plaintiff is not
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Case 1:05-cv-00596-PLF Document 17 Filed 08/08/2005 Page 40 of 52
entitled to relief because he has failed to meet his burden under RFRA and Turner, supra, and is not entitled to a judgment in his favor.
Transfer If the action is not dismissed, the Court should transfer this action to the Eastern District of Texas pursuant to 28 U.S.C. § 1404(a), for the convenience of the parties and witnesses and in the interest of justice.11 See Starnes v. McGuire, 512 F.2d 918, 927-31 (D.C. Cir. 1974) (in assessing whether transfer is appropriate in prisoner cases, the court should consider such factors as the difficulty in communicating with counsel, difficulty in transferring the prisoner, the availability of witnesses and files and speed of final resolution). In this case, the factors identified in Starnes and in Section 1404(a) strongly support transfer to the District of Plaintiff's incarceration. Even if Plaintiff had alleged facts
11 28 U.S.C. § 1404 (a) provides: For the convenience of parties and witnesses, in
the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought. This statutory provision for transfer applies as well to civil actions in which there are special venue provisions outside of U.S.C. Title 28. Smithkline Corp. v. Sterling Drug, Inc., 406 F. Supp. 52 (D.C. Del. 1975).
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Case 1:05-cv-00596-PLF Document 17 Filed 08/08/2005 Page 41 of 52
giving rise to an articulable, concrete injury arising from the wrongs he alleges, this action would most appropriately be brought in the District Court for the Eastern District of Texas. Plaintiff challenges actions witnessed by individuals located in the State of Texas, allegedly causing injury to Plaintiff in the State of Texas, and the Plaintiff and his records are located in Texas. Moreover, the decisions challenged by the Plaintiff were made by the prison administrators in Texas. See Attachment A: Response to Administrative Remedy Request at the institution level.
The fact that the Plaintiff challenges a policy assertedly formulated in BOP Central Office located in Washington, DC, does not in itself require that the case remain in this district. BOP's current Program Statement allows that: “When necessary, Wardens may identify alternative practices and implement the least restrictive alternative consistent with the security and orderly running of Bureau institutions.” Program Statement 5360.09 at 5. Thus, even the current Central Office policy would allow exceptions to meet the “least restrictive alternative” called for in the RFRA. This means that even if the Court were to reject the BOP Central Policy as not sufficiently tailored to each institution, the policy would stand given its exception “[w]hen necessary,” and the factual issue that would remain to be litigated would be focused on the particular institution where
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Case 1:05-cv-00596-PLF Document 17 Filed 08/08/2005 Page 42 of 52 the Plaintiff is housed. The remaining facts relevant to that inquiry, and inquiry into Plaintiff's inconsistent statements regarding his religious preferences, would come from witnesses in FCI Beaumont, in the Eastern District of Texas. As this Court has explained “because the implementation of policy is at issue, and because that implementation took place [in the plaintiff’s place of incarceration], venue is more appropriately laid [there].” Levitan v. United States Department of Justice, Civil Action No. 03-1916, slip op. at 4 (D.D.C. Aug. 12, 2004)(citing Huskey v. Quinlan, 785 F.Supp. 4, 7 (D.D.C. 1992)). Accordingly, to the extent that this case survives a dispositive motion, it would be most appropriately litigated in the Eastern District of Texas.
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Case 1:05-cv-00596-PLF Document 17 Filed 08/08/2005 Page 43 of 52 CONCLUSION
For these reasons, this action should be dismissed or summary judgment entered in favor of the Defendants. If the action is not dismissed, it should be transferred.
Respectfully submitted, KENNETH L. WAINSTEIN, DC Bar #451058 United States Attorney R. CRAIG LAWRENCE, DC Bar #171538 Assistant United States Attorney W. MARK NEBEKER, DC Bar #396739 Assistant United States Attorney
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Case 1:05-cv-00596-PLF Document 17 Filed 08/08/2005 Page 44 of 52

BRANDON CREIGHTON SAMPLE Plaintiff,
v. FEDERAL BUREAU OF PRISONS,
Defendant.

) ) ) ) ) Civil Action No. 05-596 PLF ) ) ) ) )

DEFENDANTS’ STATEMENT OF MATERIAL FACTS AS TO WHICH THERE IS NO GENUINE DISPUTE

The Federal Bureau of Prisons, (“BOP”) submits this

statement of material facts as to which there are no genuine

disputes in accordance with Local Rule 7(h).

1. Plaintiff, Brandon Creighton Sample, Federal Register

Number 33949-037, is currently incarcerated within the BOP. He

first arrived in BOP custody on June 12, 2000, as a presentence

admission. See Declaration of Susan VanBaalen ("VanBaalen

Decl."), ¶ 8.

2. Plaintiff was sentenced on March 1, 2001, to a term of

168 months followed by three years supervised release for

conspiracy to violate laws of the United States in violation of

18 U.S.C. § 371, conspiracy to commit money laundering in

violation of 18 U.S.C. § 1708, and aiding/abetting in possession

of stolen mail matter. The Judgment and Commitment Order

reflects that the Court made a recommendation to the BOP that

“[t]he defendant participate in the Comprehensive Residential

Drug Abuse Treatment Program.” See Judgment and Commitment Order.

3. Plaintiff was designated to serve his sentence at the

Case 1:05-cv-00596-PLF Document 17 Filed 08/08/2005 Page 45 of 52
Federal Correctional Institution, in Beaumont (Low), in Beaumont, Texas. Complaint, ¶ 5.
4. Upon admission at a BOP facility, unit staff will enter the inmate’s initial religious preference in the computerized database system known as SENTRY. The BOP does not require inmates to profess a religious preference or belief. Inmates can change their religious preferences at any time during their confinement by submitting a written request to the institution chaplain. The chaplain will approve the change in religious preference and will make the necessary entry reflecting such a change in SENTRY. See Program Statement 5360.07 (Aug. 25, 1997) at 3; Program Statement 5360.09 (Dec. 31, 2004) at 18; 28 C.F.R. § 548.10(c).
5. BOP records reflect that on June 15, 2000, the Plaintiff indicated he had no religious preference, see VanBaalen Decl., ¶ 8, but on May 18, 2001, while confined at the Federal Correctional Institution in Bastrop, Texas, Plaintiff expressed a preference for the Protestant Religion. Id.; Exhibit 1 ("Printout of Inmate History-Religion").
6. On September 17, 2001, the Plaintiff changed his religious preference to Jewish. Id. Plaintiff has made no other changes to his religious preference since then. See id. In accordance with BOP policy, inmates will not necessarily be allowed to participate in the religious activities or rituals of
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Case 1:05-cv-00596-PLF Document 17 Filed 08/08/2005 Page 46 of 52
one religion unless the inmate has professed adherence to that religion. 28 C.F.R. § 548.10.
7. In 2002, the BOP amended its policy to provide inmates may receive “small amounts of wine” as part of a religious ritual. See Program Statement 5360.08, Religious Beliefs and Practices (August 22, 2002).
8. The administrative remedy database reflects that Plaintiff filed Administrative Remedy Request 349793, in which he requested at least 3.5 ounces of wine every Friday and Saturday for the Kuddish prayer and at least 3.5 ounces of wine four times during the Passover Seder. Declaration of Harrell Watts ("Watts Decl."), ¶ 3; Exhibit 2 (Administrative Remedy Forms) at 1-2. This request was denied. Exhibit 2 at 3.
9. Plaintiff appealed this decision to the Regional Director and his appeal was denied. Id. at 4-6. On November 23, 2004, Plaintiff appeal to Central Office and this appeal was also denied. Id. at 7-9. As the administrative remedy responses explained, the restriction on wine consumption for inmates is based on the need to maintain the secure and orderly running of the institution and the institution is utilizing Kosher grape juice as it is an acceptable substitute for wine according to Jewish law as confirmed by the Rabbi. See Exhibit 2.
10. Plaintiff has not raised the December 31, 2004 Program Statement in these Administrative Remedy forms; nor did he
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Case 1:05-cv-00596-PLF Document 17 Filed 08/08/2005 Page 47 of 52
present his request to have another staff member provide him wine with his request to the institution. See Watts Decl., ¶ 3; Exhibit 2 at 1-2.
11. Defendants are restricting the use of wine based on the significant governmental interest of maintaining institution security. See VanBaalen Decl., ¶¶ 5-8, 11-14, 16-18; Declaration of Linda R. Thomas ("Thomas Decl."), ¶¶ 4-11.
12. There are legitimate penological interests for restricting inmates access to alcohol, such as security and order of the prison, rehabilitation, punishment, deterrence of criminal behavior, and a non-hostile work environment for prison staff. Thomas Decl., ¶ 4.
13. Alcohol use in prison presents a serious threat to the security of the BOP facilities, because inmates are susceptible to becoming violent when under the influence of alcohol. Prison populations contain a higher incidence of persons with histories of violence than normally found in society at large. Id., ¶ 5.
14. In fact, according to a 1998 Bureau of Justice Statistics study, titled "Alcohol And Crime, An Analysis of National Data on the Prevalence of Alcohol Involvement in Crime," by Statistician Lawrence A. Greenfeld, at page 6 (Apr. 5, 1998) (see www.ojp.usdoj.gov/bjs):
Among the 5.3 million convicted offenders under the jurisdiction of corrections agencies in 1996, nearly 2 million, or about 36%, were estimated to have been drinking at the time of the offense.
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Case 1:05-cv-00596-PLF Document 17 Filed 08/08/2005 Page 48 of 52
See Thomas Decl., ¶ 6. 15. A similar link between alcohol consumption and violence
is evidenced in another report titled: "Profile of Jail Inmates 1996," at page 9 (Apr. 1998) (NCJ 164620) (see www.ojp.usdoj.gov/bjs/pub/pdf/pji96.pdf):
Among convicted inmates 42% of the males and 30% of the females said they had been drinking alcoholic beverages when they committed their offense. An estimated 42% of violent offenders said they were using alcohol at the time of the offense. . . . See Thomas Decl., ¶ 7. 16. BOP policy provides that “[i]nmates may be permitted to receive small amounts of wine as part of a religious ritual.” Program Statement 5360.09, Program Statement 5360.08, Religious Beliefs and Practices, pages 15-16, Section 20 (August 22, 2002Change Notice). The BOP policy amended on December 31, 2004, still allows inmates to receive “small amounts of wine.” See id.; Thomas Decl., ¶ 8; VanBaalen Decl., ¶ 6. 17. The BOP has understandably concluded that alcohol consumption and possession in federal prisons must generally be prohibited in order to protect the safety and security of the prisons. See, e.g., 28 C.F.R. § 541.13 Table 3, Code 222 ("Making, possessing, or using intoxicants" is regarded as a High Category prohibited act). In spite of this prohibition, from
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Case 1:05-cv-00596-PLF Document 17 Filed 08/08/2005 Page 49 of 52
April 2004 through March 2005, there were four thousand and twenty-nine (4029) disciplinary incidents in all BOP institutions involving violations of the BOP’s prohibition on “making, possessing, or using intoxicants,” which total 18.4% of all 200 level offenses. See KI/SSS Key Indicators Strategic Support System (4/2004 through 3/2005). Inmates under the influence of alcohol have a tendency to become assaultive; and fights over alcohol possessed in prison are commonplace. See Thomas Decl., ¶ 9.
18. Safety and security concerns will not permit the accommodation of Mr. Sample's request to permit him to ingest 3.5 ounces of wine every Friday and Saturday or 14 ounces of wine at the annual Passover seder observance, even if low alcohol wine were used. Even the low alcohol wine proposed by Mr. Sample is likely to have a negative impact on the safety and security of a prison if dispensed in anything other than small amounts under proper supervision. The desire by many federal inmates to secure alcohol even at the risk of significant discipline is reflected in the BOP records of disciplinary action taken against federal inmates referenced above. See Thomas Decl., ¶ 10.
19. Another legitimate concern is the safety of the work environment of BOP employees, who are all considered correctional workers first. A staff member may be placed in a very dangerous situation when required to control an area in which inmates are
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Case 1:05-cv-00596-PLF Document 17 Filed 08/08/2005 Page 50 of 52 drinking alcohol or in which significant amounts of alcohol are available. Such circumstances would potentially lead some inmates wanting more alcohol to attempt to coerce other inmates and/or staff by threats, violence, or intimidation to obtain more alcohol than they are entitled to, resulting in disruptive and assaultive behavior among inmates and possibly involving staff. See Thomas Decl., ¶ 11.
20. BOP's current Program Statement reflects the least restrictive alternative by providing inmates with kosher grape juice for the celebration or small amounts of wine dispensed under specific supervision. See Thomas Decl., ¶ 12; Program Statement 5360.09.
21. The BOP allows Plaintiff to observe his religious holy days; he is able to recite Kiddush on the required days and is able to participate in Passover Seder and the BOP also employs a
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Case 1:05-cv-00596-PLF Document 17 Filed 08/08/2005 Page 51 of 52 Rabbi who visits the institution periodically. See Complaint, ¶¶ 8-14; Program Statement 5360.09; 28 C.F.R. Part 548.
Respectfully submitted, KENNETH L. WAINSTEIN, DC Bar #451058 United States Attorney R. CRAIG LAWRENCE, DC Bar #171538 Assistant United States Attorney W. MARK NEBEKER, DC Bar #396739 Assistant United States Attorney
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Case 1:05-cv-00596-PLF Document 17 Filed 08/08/2005 Page 52 of 52
CERTIFICATE OF SERVICE I HEREBY CERTIFY that service of the foregoing Defendants’ Motion To Dismiss Or, In The Alternative, For Summary Judgment Or To Transfer, supporting memorandum, statement of material facts, and a proposed order has been made through the Court's electronic transmission facilities on this 8th day of August, 2005.
W. MARK NEBEKER, DC Bar #396739 Assistant United States Attorney Civil Division 555 4th Street, N.W. Washington, DC 20530 (202) 514-7230

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Case 1:05-cv-00596-PLF Document 17-11 Filed 08/08/2005 Page 1 of 1

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BRANDON SAMPLE, Plaintiff,
v. HARLEY LAPPIN, et al.,
Defendants.

) ) ) ) ) Civil Action No. 05-596 PLF ) ) ) ) )

ORDER

UPON CONSIDERATION of Defendants' Motion To Dismiss Or, In

The Alternative, For Summary Judgment Or To Transfer and the

entire record herein, it is this ___ day of ________________,

2005, hereby

ORDERED, that Defendants' Motion To Dismiss Or, In The

Alternative, For Summary Judgment Or To Transfer be and is hereby

GRANTED; and it is

FURTHER ORDERED, that this case is dismissed with prejudice.

W. MARK NEBEKER Assistant U.S. Attorney Civil Division 555 Fourth Street, N.W. Washington, DC 20530
ADAM NADELHAFT, ESQ. Winston & Strawn, LLP 1700 K Street, N.W. Washington, DC 20006

UNITED STATES DISTRICT JUDGE

 
 Case 1:05-cv-00596-PLF Document 32 Filed 03/31/2006 Page 1 of 14

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________

)

BRANDON SAMPLE,

)

)

Plaintiff,

)

)

v.

)

)

HARLEY LAPPIN, et al.,

)

)

Defendants.

)

____________________________________)

Civil Action No. 05-0596 (PLF)

OPINION This matter is before the Court on defendants’ motion to dismiss and on the parties’ cross-motions for summary judgment.1 Having considered the motions, the oppositions thereto, and the entire record in this case, the Court will grant the motions in part and deny them in part.

I. BACKGROUND Having been convicted of money laundering and other fraud-related offenses, plaintiff is a federal prisoner who currently is incarcerated at the Federal Correctional Institution in Beaumont, Texas (“Beaumont Low”). Complaint (“Compl.”) ¶ 5. He describes himself as “an observant Jew” who “practiced Judaism before his incarceration and continues his practice of Judaism while confined.” Id. ¶ 8; see Memorandum of Points and Authorities in Support of Plaintiff’s Cross-Motion for Summary Judgment as to Count I (“Pl.’s Mot.”), Ex. 1 (“Sample

1

Defendants also move to transfer this action to the United States District Court for

the Eastern District of Texas pursuant to 28 U.S.C. § 1404(a). The Court will deny the transfer

motion without prejudice.

Case 1:05-cv-00596-PLF Document 32 Filed 03/31/2006 Page 2 of 14
Decl.”), ¶¶ 19-23. He “sincerely believes that he must drink at least 3.5 ounces of red wine (a reviit) while saying Kiddush, a prayer sanctifying the Sabbath, during Friday night and Saturday shabbos services.” Compl. ¶ 9; see Sample Decl. ¶¶ 2, 8. Under Beaumont Low’s current procedures, “[d]uring the Shabbat services,” plaintiff says “Kiddush over grape juice and matzah, which is contrary to [his] sincerely held belief that a Jewish adult should say Kiddush over a glass of wine, and challah bread.” Sample Decl. ¶ 22. According to plaintiff, “[s]aying Kiddush over grape juice or bread alone is only an acceptable substitute for adults who are sick, and cannot consume alcohol. The ritual of Kiddush is more complete if said over 3 to 5 ounces of wine.” Id. ¶ 8. In addition, plaintiff “sincerely believes that he must drink four cups containing a[t] least 3.5 ounces of wine during the Passover seder.” Compl. ¶ 10; see Sample Decl. ¶¶ 2, 15.
Through the inmate grievance process, plaintiff challenged the Federal Bureau of Prisons (“BOP”) regulation which allows inmates to consume wine during religious observances only at the Warden’s discretion. He asked that BOP either provide wine or permit him to purchase wine for consumption during Shabbat and Passover observances. Compl. ¶ 13; see Memorandum of Points and Authorities in Support of Defendants’ Motion to Dismiss or, in the Alternative, for Summary Judgment or to Transfer (“Defs.’ Mot.”), Attach. A (Request for Administrative Remedy dated Aug. 20, 2004). Plaintiff also asked BOP either to amend its policy regarding wine for religious rituals, or to “draft an operations memoranda on how Wardens exercise their discretion in permitting or not permitting wine during religious services.” Defs.’ Mot., Attach. A (Request for Administrative Remedy dated Aug. 20, 2004). Relying on Program Statement 5360.08 (August 22, 2002 Change Notice), Religious Beliefs and Practices, the Warden denied plaintiff’s request, explaining that:
2

Case 1:05-cv-00596-PLF Document 32 Filed 03/31/2006 Page 3 of 14
There is no provision which requires wine be provided for inmate consumption therefore it is at the discretion of the Warden. Wine has been deemed a security issue at this institution and therefore is not provided to any religious faith for inmate consumption. Additionally, the Rabbi has been consulted. He confirms kosher grape juice as an acceptable alternative to wine. Defs.’ Mot., Attach. A (Response to Request for Administrative Remedy #349793-F1 dated September 14, 2004). Plaintiff appealed this decision, unsuccessfully, to the Regional Director. See Compl. ¶ 14; Defs.’ Mot., Attach. A (Regional Director Response dated October 22, 2004). With respect to plaintiff’s request on appeal for an amendment to Program Statement 5360.08, the Regional Director responded as follows: Current Bureau of Prison’s policy provides guidance to staff on the use of wine for religious services. According to Program Statement 5360.08 . . ., inmates may be permitted to receive small amounts of wine as part of a religious ritual, only when administered under the supervision of clergy authorized by the Bureau of Prisons to perform the ritual. There is no need to write new policy on this issue. Defs.’ Mot., Attach. A (Regional Director Response dated October 22, 2004). At the last level of the appeal process, the Administrator of National Inmate Appeals concurred with the responses provided by the Warden and Regional Director, and denied the appeal. Id., Attach. A (National Inmate Appeals Response dated January 27, 2005). Plaintiff alleges that the denial of his request for wine violates the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb-1 et seq., and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1 et seq. Compl. ¶¶ 1, 15-22 (Count I). Further, he alleges that BOP’s Director “failed to train, supervise, and
3

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promulgate policies requiring his subordinates to comply with RFRA and RLUIPA.” Id. ¶ 23 (Count II). He demands declaratory and injunctive relief. Id. ¶ 24.
II. DISCUSSION A. Plaintiff Need Not Exhaust Administrative Remedies
Regarding Request for Staff Member to Administer Wine In relevant part, the Prison Litigation Reform Act provides that: No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined to any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. 42 U.S.C. § 1997e(a). The exhaustion requirement of Section 1997e(a) is mandatory and “applies to all prisoners seeking redress for prison circumstances or occurrences.” Porter v. Nussle, 534 U.S. 516, 520 (2002). Section 1997e(a) “afford[s] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case,” and, where possible, to “satisfy the inmate, thereby obviating the need for litigation.” Id. at 524-25. A prisoner must complete the administrative process “regardless of the relief offered through administrative avenues.” Booth v. Churner, 532 U.S. 731, 741 (2001). Thus, a prisoner may file a civil action concerning conditions of confinement under federal law only after he has exhausted the BOP’s administrative remedies. Jackson v. District of Columbia, 254 F.3d 262, 269 (D.C. Cir. 2001). In his inmate grievance, plaintiff challenges the Warden’s decision to prohibit inmates’ consumption of wine on the ground that the decision violates federal law, and requests permission to drink wine during Sabbath services and the Passover seder. See Defs.’ Mot.,
4

Case 1:05-cv-00596-PLF Document 32 Filed 03/31/2006 Page 5 of 14

Attach. A (Request for Administrative Remedy dated August 20, 2004). He neither suggests a procedure by which the wine could be provided to him, nor identifies a person to administer the wine. In Count I of his Complaint, plaintiff proposes that “other BOP staff, such as the institution chaplain, [] administer wine” to him instead of requiring a rabbi to perform this function. Compl. ¶ 20. Defendants contend that plaintiff failed to exhaust his administrative remedies “with respect to his request that a staff member, other than the Jewish Rabbi, provide him with the wine he seeks.” Defs.’ Mot. at 4 & Attach. B (Watts Decl.) ¶ 3.2 The Court rejects this argument.
Plaintiff’s inmate grievance and Complaint are consistent: his ultimate goal is the unburdened exercise of his sincere religious belief. The record makes clear that plaintiff has exhausted his administrative remedies with respect to his request for wine. It matters not whether he asked that a rabbi, a chaplain, or a BOP staff member administer the wine to him. Plaintiff’s obligation to exhaust his administrative remedies does not require that he posit every conceivable alternative means by which to achieve his goal.

B. Summary Judgment on Plaintiff’s RFRA Claim Will Be Denied in Part Without Prejudice 1. Summary Judgment Standard
The Court may grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits or

2

Defendants also argue that plaintiff exhausted his administrative remedies with

respect to his request for wine only under BOP Program Statement 5360.08, Religious Beliefs

and Practices (August 22, 2002 Change Notice), which since has been superceded. See Defs.’

Mot. at 4 n.1. Plaintiff cannot be faulted for failing to challenge a policy that was not yet in

effect at the time he submitted his inmate grievance.

5

Case 1:05-cv-00596-PLF Document 32 Filed 03/31/2006 Page 6 of 14
declarations, if any, show that there is no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party bears the burden of demonstrating an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A material fact is one “that might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When evaluating a summary judgment motion, the Court does not make credibility determinations, weigh the evidence, or draw inferences from the facts found; those are jury functions, not those of a judge. Id. at 255; see Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000). Factual assertions in the moving party’s affidavits may be accepted as true unless the opposing party submits his own affidavits or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992). The party opposing a motion for summary judgment “may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 248; see also Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 150 (D.C. Cir. 1996).
2. Plaintiff’s Prima Facie Case Under RFRA Prisoners retain constitutional rights in prison, including the right to the free exercise of religion. See, e.g., Pell v. Procunier, 417 U.S. 817, 822 (1974) (“prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system”); Levitan v. Ashcroft, 281 F.3d 1313, 1317 (D.C. Cir. 2001). Generally, RFRA provides that the federal government “shall not
6

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substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” 42 U.S.C. § 2000bb-1(a).3 “Thus, a plaintiff establishes a prima facie claim under RFRA by proving the following three elements: (1) a substantial burden imposed by the federal government on a (2) sincere (3) exercise of religion.” Kikumura v. Hurley, 242 F.3d 950, 960 (10th Cir. 2001). If plaintiff successfully makes out his prima facie case, defendants then must show that the burden placed on the religious exercise is permissible. See Gartrell v. Ashcroft, 191 F.Supp.2d 23, 37 (D.D.C. 2002) (applying burden-shifting analysis under RFRA). A substantial burden on a person’s exercise of religion is permissible only if:
[the government] demonstrates that application of the burden to the person – (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling
governmental interest. 42 U.S.C. § 2000bb-1(b). For purposes of RFRA, the term “demonstrates” means “meets the burdens of going forward with the evidence and of persuasion.” 42 U.S.C. § 2000bb-2(3).

3

The Supreme Court instructs that RFRA is unconstitutional insofar as it purports

to regulate state and local governments. City of Boerne v. Flores, 521 U.S. 507 (1997). RFRA

remains valid as applied to the federal government, however. See Webman v. Federal Bureau of

Prisons, No. 05-5031, slip. op. at 4 (D.C. Cir. Mar. 28, 2006) (recognizing Congress’ “power to

enforce RFRA against the federal government”); Henderson v. Kennedy, 265 F.3d 1072, 1073

(D.C. Cir. 2001) (declaring that RLUIPA’s amendments to RFRA regarding exercise of religion

“remove the doubt . . . that the portion of RFRA remaining after [Flores]. . . survived the

Supreme Court’s decision striking down the statute as applied to the States”), cert. denied, 540

U.S. 1218 (2004). RLUIPA’s amendments to RFRA are applicable. See Kikumura v. Hurley,

242 F.3d at 960 (noting RLUIPA’s amendment of RFRA’s definition of term “exercise of

religion”). There is no separate cause of action under RLUIPA, however. Ish Yerushalayim v.

United States Dep’t of Corr., 374 F.3d 89, 92 (2d Cir. 2004) (concluding that RLUIPA “clearly

does not create a cause of action against the federal government or its correctional facilities”).

7

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a. Exercise of Religious Beliefs The term “religious exercise” includes “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).4 The exercise in question need not be mandatory. Cf. Levitan v. Ashcroft, 281 F.3d at 1319 (finding no requirement that consumption of communion wine by Catholic prisoners be mandatory to warrant First Amendment protection). In this case, there is no genuine issue of material fact that the exercise in question is religious in nature. It is “an important part of the Jewish religion to say Kiddush over a glass of wine” and to consume “four glasses of wine . . . during the Passover Seder.” Pl.’s Mot., Ex. 3 (Goldstein Stip.) ¶¶ 4, 7-9; see Defs.’ Mot., Attach. (Van Baalen Decl.) ¶ 13.5
b. Sincerity of Religious Beliefs “It is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of a particular litigant’s interpretation of those creeds.” Hernandez v. Comm’r of Internal Revenue Serv., 490 U.S. 680, 699 (1989). The Court’s inquiry

4

RFRA refers to the definition of “religious exercise” set forth in RLUIPA. See 42

U.S.C. § 2000bb-2(4).

5

There appears to be a discrepancy as to the quantity of wine plaintiff believes he

must drink. According to the Complaint, plaintiff alleges that he must consume one cup of wine

during Friday and Saturday Shabbat services, and four cups of wine during the Passover seder.

See Compl. ¶¶ 9-10. Each cup of wine must be at least 3.5 ounces. Id. In his declaration,

plaintiff states that he must consume slightly larger quantities, “between 3 to 5 ounces of wine

every Friday and Saturday during the saying of Kiddush,” and “3 to 5 ounces of wine four times”

during the Passover seder. Sample Dec. ¶ 2. It does not appear, however, that the quantity of

wine is a material fact. If BOP forbids consumption of a smaller quantity of wine, it is unlikely

that it would allow a larger quantity.

8

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is limited to “whether a claimant sincerely holds a particular belief and whether the belief is religious in nature.” Jolly v. Coughlin, 76 F.3d 468, 476 (2d Cir. 1996).
Based on this record, there is no genuine issue of material fact in dispute as to the sincerity of plaintiff’s religious beliefs. Plaintiff is Jewish and he believes that he must consume a certain quantity of wine – not grape juice – as an important part of his observances of the Jewish Sabbath and Passover. Whether plaintiff declared his Jewish faith at the time of his incarceration is of no moment.6 At all times relevant to the complaint, plaintiff declares his Jewish faith, and his religious preference, Jewish, is duly reflected in BOP’s records. See Defs.’ Mot., Attach. (Inmate History – Religion).
c. Substantial Burden on Exercise of Sincerely Held Religious Beliefs Plaintiff completes his prima facie case under RFRA, then, if he shows that
BOP’s policies substantially burden the exercise of his sincere religious beliefs. A substantial burden exists “where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs.” Jenkins v. Angelone, 948 F.Supp. 543, 546 (E.D.Va. 1996) (quoting Thomas v. Review Bd. of Indiana Employment Sec. Div., 450 U.S. 707, 717-18 (1981)); see Sherbert v.

6

Defendants question the sincerity of plaintiff’s religious beliefs because he

allegedly did not declare his religious preference as Jewish upon his initial entry into BOP in

June 2000. See Van Baalen Decl. ¶ 10. BOP records reflected “religion unknown” initially, then

“no preference” until May 18, 2001, when records reflect “Protestant.” See Defs.’ Mot., Attach.

(Inmate History – Religion). As of September 17, 2001, BOP’s records reflect plaintiff’s

religious preference as “Jewish.” See id. The accuracy or inaccuracy of BOP records does not

necessarily reflect the sincerity of plaintiff’s religious beliefs.

9

Case 1:05-cv-00596-PLF Document 32 Filed 03/31/2006 Page 10 of 14
Verner, 374 U.S. 398, 404 (1963) (award of government benefits would force applicant to
“choose between following the precepts of her religion . . . and abandoning one of the precepts of
her religion”).
Regarding the religious use of wine, BOP regulations in relevant part provide:
Inmates may be permitted to receive small amounts of wine as part of a religious ritual, only when administered under the supervision of clergy authorized by the Bureau of Prisons to perform the ritual.
Because wine is otherwise a contraband substance, it can only be administered under strict control and supervision. Inmates will not be allowed to administer wine to other inmates. For purposes of this policy, the consumption of wine under these circumstances will not be considered consumption of alcohol or ingestion of an illegal substance.
Defs.’ Mot., Attach. C (Program Statement 5360.08, Religious Beliefs and Practices, Sec. 20 (August 22, 2002 Change Notice)).7 Further, the Program Statement authorizes each institution
to develop additional policies in the form of an Institution Supplement “for operating religious programs and activities.” Id., Sec. 22.8 Beaumont Low’s Warden evidently exercised his
discretion by declaring the consumption of wine a security threat, and by refusing to provide

7

The August 22, 2002 Change Notice to Program Statement 5360.08 was in effect

at the time plaintiff pursued his inmate grievance. Neither Program Statement 5360.07 (effective

August 25, 1997) nor the portion of Program Statement 5360.08 (effective May 25, 2001)

amended by the August 22, 2002 Change Notice is relevant here.

8

The current policy, Program Statement 5360.09 (effective December 31, 2004),

directs each institution to develop an Institution Supplement for operating religious programs and

activities, which must include “[p]rocedures for religious fasts [and] ceremonial meals” and

“[p]rocedures and limitations for storage and provision of religious wine.” Id., Sec. 20.

10

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wine for any inmate’s consumption. See Defs.’ Mot., Attach. A (Response to Request for Admin. Remedy #349793-F1); Defs.’ Reply at 10-11.9
Plaintiff could receive wine for religious services only if Beaumont Low’s Warden were to allow wine at the institution, and if an authorized rabbi were to administer the wine in the course of the religious ritual. Clearly the Warden is unwilling to provide plaintiff with wine, regardless of its quantity or alcohol content, and BOP is unwilling to further amend its policies. Even if plaintiff were allowed a quantity of wine, there would be no rabbi present to administer it. The contract rabbi visits Beaumont Low only once a month. Van Baalen Decl. ¶ 5. According to plaintiff, “Jews are commanded not to work during Shabbat,” and, therefore, the rabbi “cannot drive to the prison” for weekly Shabbat services. Sample Decl. ¶ 22.10 Nor does it appear that a rabbi is present for the Passover seder, during which prisoners are supervised by the prison chaplain and prison staff. Id. ¶ 14.
Currently, the BOP regulation and its implementation at Beaumont Low do not merely inconvenience plaintiff. Rather, plaintiff effectively is prohibited from exercising his sincere religious beliefs in consuming wine during Sabbath and Passover services. Plaintiff successfully makes out a prima facie case under RFRA.

9

Beaumont Low’s Institution Supplement has not been made a part of this record

by either party.

10 During discovery, it might be appropriate to determine whether this statement is true of all rabbis or only Orthodox rabbis.

11

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2. Furthering a Compelling Governmental Interest by the Least Restrictive Means The government’s application of the burden to the person’s exercise of religion is
permissible only if it furthers a compelling governmental interest and is the least restrictive means of furthering that interest. See Jolly v. Coughlin, 76 F.3d at 475 (applying RFRA’s “compelling interest” test to religious exercise claims of inmate). The Court considers “whether there is a compelling government reason, advanced in the least restrictive means, to apply the prison regulation to the individual claimant.” Kikumura v. Hurley, 242 F.3d at 962 (emphasis added); see Gonzales v. O Centro Esperita Beneficente Uniao Do Vegetal, __ U.S. __, __, 126 S.Ct. 1211, 1220 (2006) (government must “demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’ – the particular claimant whose sincere exercise of religion is being substantially burdened”). “[O]nly those interests of the highest order . . . can overbalance legitimate claims to the free exercise of religion.” Wisconsin v. Yoder, 406 U.S. 205, 215 (1972).
Defendants argue that the government has a compelling interest in controlling alcohol consumption and intoxicants in BOP’s correctional facilities. Defs.’ Mot. at 29. Among the legitimate penological interests for restricting inmates’ access to alcohol are “security and order of the prison, rehabilitation, punishment, deterrence of criminal behavior, and a non-hostile work environment for prison staff.” Defs.’ Mot., Attach. (Thomas Decl.) ¶ 4. Defendants link the availability of intoxicants to violent or otherwise disruptive behavior at BOP facilities, noting that a significant percentage of disciplinary incidents involved violations of the regulation prohibiting inmates from making, possessing, or using intoxicants. Thomas Decl. ¶¶ 5, 9.
12

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Plaintiff concedes this point, stating that [t]here is no argument that controlling alcohol consumption is a compelling government interest.” Pl.’s Mot. at 22 .
Plaintiff contends – and the Court agrees – that defendants fail to demonstrate that an outright ban at Beaumont Low on this plaintiff’s consumption of wine as part of a religious ritual is the least restrictive means of furthering the government’s compelling interest. “[T]he government cannot meet its burden to prove least restrictive means unless it has actually considered and rejected the efficacy of less restrictive measures before adopting the challenged practice.” Gartrell v. Ashcroft, 191 F.Supp.2d at 39. Recognizing that defendants need not “refute every conceivable option in order to satisfy the least restrictive means prong of RFRA,” Hamilton v. Schriro, 74 F.3d 1545, 1556 (8th Cir.), cert. denied, 519 U.S. 874 (1996), this Court simply cannot determine on this record whether the parties meet their respective burdens on summary judgment.
BOP policy allows inmates to receive small amounts of wine as part of religious rituals under certain controlled circumstances. The Program Statement at issue does not define “small amount,” and the parties’ submissions shed no light on this matter. Beaumont Low’s Warden apparently has chosen to exercise his discretion to bar the religious use of wine for reasons that are not explained fully in this record. Defendants speculate that accommodating plaintiff’s request would create an “administrative nightmare” leading to “chaos in prisons.” Defs.’ Mot. at 30-31.11 Their assertions are speculative, unsupported by the current record, and
11 Defendants worry about the appearance of favoring one Jewish inmate over other inmates, whether Jewish or not. Defs.’ Mot. at 30. In the alternative, BOP asserts that it would be forced to treat members of other faiths equally, allowing other inmates who sincerely believe in consuming wine as part of their religious observances to consume wine in amounts of their
(continued...) 13

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neither compelling nor sufficient to meet the government’s burden of showing that an outright ban is the least restrictive alternative under RFRA.
III. CONCLUSION The Court concludes that plaintiff makes out a prima facie case under RFRA and that defendants establish a compelling government interest in controlling alcohol consumption and intoxicants in BOP facilities. At this stage of the proceedings, neither plaintiff nor defendants have met their respective burdens with respect to the “least restrictive means” element. A separate Order to this effect shall issue this same day.

DATE: March 31, 2006

/s/ PAUL L. FRIEDMAN United States District Judge

11(...continued) choice. Van Baalen Decl. ¶ 7. Weekly allowances of several ounces of wine, they say, “would definitely encourage non-Jewish inmates with issues related to chemical dependency to change their religious preference to Jewish thereby undermining the integrity of the Jewish religious program.” Id. ¶ 8.
14

 
 Case 1:05-cv-00596-PLF Document 36 Filed 04/27/2006 Page 1 of 25

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BRANDON SAMPLE, Plaintiff,
v. HARLEY LAPPIN, et al.,
Defendants.

) ) ) ) ) Civil Action No. 05-596 PLF ) ) ) ) )

DEFENDANTS’ MOTION TO DISMISS AS MOOT OR, IN THE ALTERNATIVE, TO RECONSIDER GRANT OF PARTIAL SUMMARY JUDGMENT FOR PLAINTIFF AND TO TRANSFER AND OPPOSITION
TO THE PLAINTIFF’S MOTION FOR RECONSIDERATION

Defendants respectfully move, pursuant to Fed. R. Civ. P.

12(b)(1) and 12(h); and 42 U.S.C. § 1997e(e), to dismiss the

Complaint in light of the transfer of Plaintiff from his former

institution and his failure to formally seek wine from his

current Warden in Jesup, Georgia.1 In the alternative, this

Court should reconsider the grant of partial summary judgment in

favor of plaintiff regarding the sincerity of his purported

religious belief that he requires wine in units of 3-5 ounces

and, defer ruling on the issue pending discovery, pursuant to its

inherent powers and Fed. R. Civ. P. 7, 54, and 56(f). Should the

Court deny defendants’ motion to dismiss as moot, defendants

renew their request that the Court transfer this action pursuant

to 28 U.S.C. § 1404(a), but submit that now the proper venue

1 Plaintiff was transferred to Georgia in February, after he changed the address where he anticipates he will live upon release from prison to Jesup, Georgia.

Case 1:05-cv-00596-PLF Document 36 Filed 04/27/2006 Page 2 of 25
would be the Southern District of Georgia, because the transfer would promote the interests of justice and the Court there would be a more convenient forum.
In support of this motion, Defendants rely upon the accompanying memorandum and the filings previously submitted in support of Defendants’ Motion To Dismiss Or, In The Alternative, For Summary Judgment Or To Transfer, filed August 8, 2005 and in opposition to Plaintiff’s Cross Motion For Summary Judgment As To Count I. A proposed order is also attached.
Respectfully submitted,
KENNETH L. WAINSTEIN, DC Bar #451058 United States Attorney
RUDOLPH CONTRERAS, DC Bar #434122 Assistant United States Attorney
W. MARK NEBEKER, DC Bar #396739 Assistant United States Attorney
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BRANDON SAMPLE Plaintiff,
v. HARLEY LAPPIN, ET AL.
Defendant.

) ) ) ) ) Civil Action No. 05-596 PLF ) ) ) ) )

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS AS MOOT OR, IN THE ALTERNATIVE, TO RECONSIDER GRANT OF PARTIAL SUMMARY JUDGMENT FOR PLAINTIFF AND TO TRANSFER AND IN OPPOSITION
TO THE PLAINTIFF’S MOTION FOR RECONSIDERATION

INTRODUCTION

Plaintiff has been transferred from the Federal Correctional

Institution in Beaumont, Texas, where he was earlier housed and

where security concerns, as evaluated by its Warden, precluded

him from consuming wine in the amounts requested. Defendants

believe that this transfer has rendered this case moot because

the inmate is in a new institution with other prison

administrators and the decision denying the wine that led to the

filing of this complaint was made under the Bureau of Prisons’

(“BOP”) past version of then program statement 5380.08, Religious

Beliefs and Practices, which was effective from August 25, 1997

until December 30, 2004.

Plaintiff was transferred from Beaumont Low because he

changed his release address to a location in Jesup, and requested

to be transferred to Jesup, Georgia. See Declaration of Dee-Ann

Case 1:05-cv-00596-PLF Document 36 Filed 04/27/2006 Page 4 of 25
Stephens (“Stephens Decl.”) (Attachment 1). Plaintiff arrived at the Federal Correctional Institution in Jesup, Georgia, on February 16, 2006. The Warden and the prison administrators at Jesup, Georgia, are different from those at Beaumont Low; the decision made at Beaumont Low is not binding on the Jesup administrators; and Plaintiff has not exhausted the BOP administrative remedy procedures under the new policy and in the new institution. See Declaration of Carolyn Lanphear (“Lanphear Decl.”) (Attachment 2). Thus, insofar as Plaintiff has sought to challenge the decision not to afford him his desired amount of wine under the practice adopted by his past warden, this action is moot; and his failure to exhaust administrative remedies at his new institution so that his request can be considered in light of the safety and security concerns at that new facility and under the new policy bars this action.
THE PLAINTIFF’S TRANSFER TO JESUP, GEORGIA AND THE MOST RECENT AMENDMENT TO THE BUREAU OF PRISONS RELIGIOUS POLICY HAVE RENDERED THE PLAINTIFF’S CASE MOOT “No principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 37 (1976) (citation omitted). Article III of the Constitution limits our jurisdiction to "actual, ongoing controversies." Honig v. Doe, 484 U.S. 305, 317 (1988).
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The power of the courts does not extend to moot cases. People for the Ethical Treatment of Animals, 396 F.3d 416 (D.C. Cir. 2005) (citing Central Soya Company v. Consolidated Rail Corporation, 614 F.2d 684, 689 (7th Cir. 1980). Therefore, a federal court cannot decide a question which will not affect the rights of the litigation and must resolve the mootness issue before assuming jurisdiction over such a case. Pharmachemie B.V. v. Barr Laboratories, 276 F.3d 627, 631 (D.C. Cir. 2002).
"If events outrun the controversy such that the court can grant no meaningful relief, the case must be dismissed as moot." McBryde v. Comm. to Review, 264 F.3d 52, 55 (D.C. Cir. 2001), cert. denied, 537 U.S. 821 (2002). Thus, there must be a live controversy throughout all stages of the case or the case will be moot. Chiles v. Thornburgh, 865 F.2d 1197 (11th Cir. 1989).
In Ross v. Reed, 719 F.2d 689 (4th Cir. 1983), mootness was discussed in the context of a prisoner's continued ability to seek relief after transfer:
To be justiciable under Article III of the Constitution, the conflict between the litigants must present a "case or controversy" both at the time the lawsuit is filed and at the time it is decided. If intervening factual or legal events effectively dispel the case or controversy during pendency of the suit, the federal courts are powerless to decide the questions presented. 719 F.2d at 693-94. Because the inmate in that litigation was no longer incarcerated under the conditions he claimed to be unconstitutional, and he himself would no longer be affected by
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any relief fashioned by the Court, it was held that there was no justiciable case or controversy and those claims were dismissed.
Likewise in Rhodes v. Stewart, 488 U.S. 1 (1988), where one prisoner had died during the litigation and the other had been released, the case was moot before judgment had been entered and therefore the parties were not entitled to relief. Once an inmate who complains about conditions of confinement is no longer subject to those conditions, the case is moot. See, Forbes v. Trigg, 976 F.2d 308 (7th Cir. 1992), Strader v. Blalock, 405 F.Supp. 1155 (W.D. Va. 1975); see also, Murphy v. Hunt, 455 U.S. 478 (1982); Flast v. Cohen, 392 U.S. 83 (1968).
Similarly, in this case, Plaintiff Brandon Sample has been transferred to Jesup, Georgia which is administered by different prison administrators. The decision of Beaumont prison administrators to deny him wine is not binding in Jesup. Thus, Plaintiff is no longer subjected to the denial of the wine under the decision reached while he was housed at Beaumont Low, and he has not formally requested the wine through the appropriate administrative remedy procedures at Jesup.
Moreover, on December 31, 2004, the BOP issued a new policy on Religious Beliefs and Practices, Program Statement 5360.09. The amendment of old regulations is among those “intervening events as can moot a challenge to the regulation in its original form.” Save Our Cumberland Mountains, Inc. v. Clark, 725 F.2d
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Case 1:05-cv-00596-PLF Document 36 Filed 04/27/2006 Page 7 of 25
1422, 1432 n.27 (D.C. Cir. 1984)(stating that “[t]here is no question that a case can be mooted by promulgation of new regulations or by amendment or revocation of old regulations.”); see also Natural Res. Def. Council v. United States Nuclear Regulatory Comm'n, 680 F.2d 810, 813-815 (D.C. Cir. 1982) (stating that “[c]orrective action by an agency is one type of subsequent development that can moot a previously justiciable issue.”)
In this case, the BOP amended its religious policy statement on December 31, 2004, which was subsequent to the filing of the Plaintiff’s old administrative requests. This new program statement incorporates elements of the Religious Freedom Restoration Act (“RFRA”) that were not explicitly identified in the policy under which the Plaintiff’s Beaumont Low requests were denied. The new policy explains to prison administrators that “[w]hen necessary, Wardens may identify alternative practices and implement the least restrictive alternative consistent with the security and orderly running of Bureau institutions.” Program Statement 5360.09, Religious Beliefs and Practices, at page 5 (December 31, 2004). Thus, the new policy substantively changed the guidance provided to prison administrators thereby rendering the Plaintiff’s case moot.
Furthermore, the Court is not able to provide the Plaintiff with the injunctive relief he is seeking. The inmate is no
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longer housed at Beaumont Low and an order by the Court addressed to the Beaumont Low officials will have no effect because the Plaintiff is no longer housed at Beaumont Low. Moreover, the BOP has amended its policy since the filing of the case. Under these circumstances, the Court cannot fashion an appropriate remedy.
For these reasons, Plaintiff’s complaint should be dismissed as the matter in controversy, insofar as it may have been ripe for review, is now moot.
PLAINTIFF HAS NOT EXHAUSTED THE BUREAU OF PRISONS ADMINISTRATIVE REMEDY PROCEDURES AT FCI JESUP
Defendants submit that Plaintiff does not currently have any judicial remedies available to him. The BOP religious policy was amended on December 31, 2004, after the Plaintiff exhausted the administrative remedy procedures. Plaintiff was transferred to Jesup, Georgia on February 16, 2006. However, to this date, the Plaintiff has not filed any administrative remedy requests for the wine at Jesup, Georgia. See Lanphear Decl. ¶¶ 3-5.
Instead, Plaintiff filed two Inmate Requests to Staff, which are informal requests filed at the institution level and do not constitute the required administrative remedy procedures. See 28 C.F.R. Part 542; 42 U.S.C. § 1997e(e). The first request for the wine was addressed to the institution chaplain. The institution chaplain denied the request. See Attachment 3. The second request was addressed to the Warden. See Attachment 4. The Warden offered Plaintiff non-alcoholic red wine. See Attachment
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Case 1:05-cv-00596-PLF Document 36 Filed 04/27/2006 Page 9 of 25
4.2 Clearly, under these circumstances, the Plaintiff needs to
exhaust the BOP administrative remedy procedures. The inmate is now housed in a different institution with different prison administrators and regional director; there is a new policy in effect; and at least some wine has been offered to Plaintiff at this new institution. The balance of equities as well as the text and spirit of the PLRA (42 U.S.C. § 1997e(e)) mandate that this inmate be required to exhaust the administrative remedy procedures so that his current institution, the regional director, and central office have the opportunity to review Plaintiff’s request in light of the amended policy and any differing security circumstances at FCI Jesup. Thus, this case should be dismissed.
2 Plaintiff has not rejected this option but requested information as to whether the non-alcoholic wine was Kosher. See Attachment 5. The Warden explained that no research had been done on Kosher wine as the inmate did not specify Kosher in his informal request. The Warden also asked whether the nonalcoholic wine would satisfy his request or he was now requesting Kosher wine as the initial request made no reference to Kosher. See Attachment 5. As of this date, the inmate has not responded to the Warden’s inquiry. Since the inmate has not exhausted the BOP administrative remedy procedures, it is unknown whether the non-alcoholic wine would satisfy the inmate’s request for the wine and whether this is a matter that can definitely be established at Jesup, Georgia as the administration is looking into alternatives to accommodate the inmate’s request.
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Case 1:05-cv-00596-PLF Document 36 Filed 04/27/2006 Page 10 of 25
THE PLAINTIFF HAS NOT MET HIS BURDEN OF SHOWING HE HAS A SINCERELY HELD BELIEF TO DRINK WINE AS PART OF HIS RELIGIOUS PRACTICE This Court found that “[p]laintiff is Jewish and he believes that he must consume a certain quantity of wine – not grape juice – as an important part of his observances of the Jewish Sabbath and Passover.” March 31, 2006 Mem. Op. at 8-9; Sample v. Lappin, 2006 WL 833130 at *5 (D.D.C. ). The Court later explained that “[a]t all times relevant to the complaint, plaintiff declares his Jewish faith, and his religious preference, Jewish, is duly reflected in BOP’s records.” Id. A careful reading of the Opinion reflects that inmate Sample has not met his burden to show that he has a sincerely held belief to drink wine as part of the religious rituals. Instead, plaintiff has merely shown that for the last four years he has identified himself as Jewish in the BOP’s records. His adherence to the Jewish faith alone, however, does not show that he has a sincerely held belief to drink wine. Within the prison setting and outside the prison setting, many individuals of the Jewish faith utilize grape juice as an adequate substitute to pray Kiddush and to participate in Passover Seder, and some even pray Kiddush with just bread, and do not feel that their religious rights are being violated. Thus, the mere fact that plaintiff claims adherence to the Jewish faith does not in itself lead to the conclusion that he has a sincerely held belief to drink wine.
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Case 1:05-cv-00596-PLF Document 36 Filed 04/27/2006 Page 11 of 25
Moreover, the Plaintiff first came into the BOP custody on June 12, 2000, and identified himself as Jewish on May 18, 2001. However, he did not request wine for the religious rituals until August 31, 2004, more than four years after he entered BOP custody. See Administrative Remedy requests attached to Defendants’ Statement of Material Facts, Exhibit 2. If the plaintiff had a sincerely held belief to drink wine, it is highly suspect that it took him more than four years to request wine. A review of the administrative remedy computerized records reflects that since his arrival in BOP custody the Plaintiff has been well acquainted with the administrative remedy program. From the time he came into custody until the time he filed his first administrative remedy request for wine, he filed a total of one hundred and twenty nine administrative requests. See Lanphear Decl., ¶¶ 3-4. None of those requests involved wine for his religious rituals. This behavior is inconsistent with an inmate with a sincerely held belief to drink wine during the Jewish religious rituals. This Court recognized part of the inconsistencies in Plaintiff’s claimed belief that he required a certain amount of wine to satisfy his religion. March 31, 2006 Mem. Op. at 8 n.5 (recognizing Plaintiff’s inconsistent statements about the amount of wine he requires -- 3.5 ounces versus 3-5 ounces, but concluding that the issue was not material, because either amount would be forbidden if the lesser
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Case 1:05-cv-00596-PLF Document 36 Filed 04/27/2006 Page 12 of 25
amount were). The Court failed to recognize that in Plaintiff’s initial years within the BOP, he never indicated that he needed wine. This offers at least some evidence that his sincerely held religious beliefs have never included a need for any wine. Plaintiff merely seized the opportunity to seek wine under the pretense of a sincerely held belief that coincidentally blossomed years after entering the prison system. At no time has the Plaintiff explained why it took him four years to request the wine that he so sincerely believes he must consume during religious rituals. This is particularly telling, since his (controverted) assertion is that he has been of the Jewish faith all of his life.
DISCOVERY REGARDING THE PLAINTIFF’S RELIGIOUS PRACTICES IS NECESSARY TO ESTABLISH WHETHER
PLAINTIFF HAS A SINCERELY HELD BELIEF IN WINE In cases where inmates have been found to hold a sincere belief, this Circuit court has looked at the inmates’ previous practices to assess whether there is a sincerely held belief. In Levitan v. Ashcroft, 281 F.3d 1313, 1322 (D.C. Cir. 2002),3 the court looked at the inmates’ practices and the “record had established that appellants have regularly attended Mass and taken wine at Communion throughout their incarceration and for years prior to their incarceration.” In Levitan, the record
3 Although Levitan involved a claim under the First Amendment, the analysis for the sincerely held belief is similar under both standards.
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Case 1:05-cv-00596-PLF Document 36 Filed 04/27/2006 Page 13 of 25
supporting the Court’s finding that the plaintiffs had a sincerely held belief to drink wine was developed. In contrast, this record regarding what Plaintiff’s sincerely held religious beliefs are and have been far from uncontroverted.
In his previous filings, the Plaintiff relied on Rabbi Goldstein’s stipulated information in support of his proposition that “Sample’s beliefs are deeply entrenched in the practice of Judaism, and there is no factual question at issue.” Plaintiff’s Reply at 6. The Plaintiff’s reliance on the stipulation is, however, misplaced. At no time did Rabbi Goldstein attest to the truthfulness of the Plaintiff’s purported beliefs. See Rabbi Goldstein Stipulation (found as Exhibit E to the Plaintiff’s Cross-Motion). Indeed, in the Stipulation, the Rabbi made no reference to the Plaintiff or his beliefs or his participation in the Jewish rituals and meetings at Beaumont Low. Id. See Stipulation of Rabbi Goldstein. Cf. Gartrell v. Ashcroft, 191 F.Supp.2d 23 (D.D.C. 2002)(where the defendants stipulated the Plaintiffs had a sincerely held belief in not shaving or cutting their hair); Western Presbyterian Church v. Board of Zoning Adjustment of District of Columbia, 862 F.Supp. 538 (D.D.C. 1994) (where the plaintiffs established that their actions were motivated by a sincerely held belief and the defendants did not challenge the plaintiff on that point).
Defendants in this case clearly did not stipulate to the
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Case 1:05-cv-00596-PLF Document 36 Filed 04/27/2006 Page 14 of 25
Plaintiff’s assertion that he has a sincerely held belief in wine. Indeed, Defendants have challenged Plaintiff’s conclusory statements about his belief in drinking wine in the amounts he seeks as there is no information or documentation on this record to support those assertions. The Plaintiff makes conclusory statements that he has been active in the practice of the Jewish faith at the different BOP institutions in which he has been housed. See Declaration of Brandon Sample, ¶ 21 (attached as Exhibit 1 to the Plaintiff’s Memorandum of Points and Authorities in Support of Plaintiff’s Cross-Motion for Summary Judgment as to Count I). However, no discovery has been conducted into the accuracy of those assertions. Indeed, this Court takes the Plaintiff’s statements at face value with no corroboration even in light of the defendants’ persistent challenges.
This Court has intertwined the Plaintiff’s religious practices in the Jewish rituals with a belief in drinking wine. Participating in the Jewish rituals generally, however, does not necessarily mean the Plaintiff has a sincerely held belief in the need to drink wine or in drinking wine in the amounts Plaintiff requests. Many Jewish individuals participate in their religious rituals with the use of grape juice. In light of these reasons, this Court should allow the defendants to seek discovery about the plaintiff’s alleged sincerely held belief in drinking red wine in the amounts he seeks.
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Case 1:05-cv-00596-PLF Document 36 Filed 04/27/2006 Page 15 of 25
When initially opposing Plaintiff’s request for summary judgment, Defendants did not believe that discovery was necessary in order to raise a genuine issue as to Plaintiff’s sincerely held religious beliefs regarding wine. Indeed, Defendants maintain that material issues are already evidenced by Plaintiff’s impeaching convictions and the evidence already available about Plaintiff’s numerous inconsistencies in his statements and actions. Nevertheless, Defendants have attached a declaration in an effort to show why discovery is needed, should the Court not find sufficient reason in the earlier record to question the sincerity of Plaintiff’s religious belief that he needs wine, needs 3.5 ounces of wine, or needs 3-5 ounces of wine. See Declaration of Alma Lopez.
The discovery that is needed would include an assessment of the truth of his claim that Plaintiff has always practiced Judaism, as he asserts, including any historical use of wine by Plaintiff in religious ceremonies. Among those who would have this information would be the members of his family. And, at least Plaintiff’s mother is now living in Jesup, Georgia, where Plaintiff is also now housed at his request. See Stephens Decl., ¶ 3. Thus, not only would transfer to Georgia make discovery from Plaintiff more accessible, it would make discovery from his family, such as depositions, more convenient to the parties and
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Case 1:05-cv-00596-PLF Document 36 Filed 04/27/2006 Page 16 of 25
witnesses.4 Thus, this case should be transferred to the Southern
District of Georgia as Plaintiff and his records, and the prison administrators, current custodian of the plaintiff, are located in Georgia.
PLAINTIFF’S MOTION FOR RECONSIDERATION HAS NO MERIT AS DEFENDANTS HAVE SHOWN THE EXISTENCE OF A COMPELLING GOVERNMENTAL INTEREST IN NOT GIVING WINE TO THE PLAINTIFF The Plaintiff challenges this Court’s finding that the BOP has shown a compelling governmental interest in support of its denial of the Plaintiff’s request for wine. The Plaintiff relies on the recent Supreme Court decision in Gonzales v. Centro Esperita Beneficente Uniao Do Vegetal, 126 S.Ct. 1211, 1220 (2006) in support of his proposition that “the compelling interest is satisfied through application of the challenged law ‘to the person’ - - the particular claimant whose sincere exercise of religion is being substantially burdened.” He contends that the BOP has not met its burden as the defendants do not explain how not giving wine to the Plaintiff rises to an interest of the highest order. The Plaintiff then asserts that BOP policy allows two ounces of alcohol for religious purposes.
4 Specifically, counsel would be assigned from the United States Attorney’s office in that district and that attorney would not have to travel long distances at significant cost to take depositions. Similarly, if a trial ever took place, expensive transportation costs and inconvenience of plaintiff and his family members would be avoided if the action were pending where they live.
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Case 1:05-cv-00596-PLF Document 36 Filed 04/27/2006 Page 17 of 25
Plaintiff’s Motion for Reconsideration at 4-5. The arguments the Plaintiff advances in his motion for reconsideration clearly have no merit.
In Centro, the Supreme Court commenced its analysis by stating that “. . . the Federal Government may not, as a statutory matter, substantially burden a person’s exercise of religion, ‘even if the burden results from a result of general applicability.’ The only exception recognized by the statute requires the Government to satisfy the compelling interest testto ‘demonstrat[e] that application of the burden to the person(1) is in furtherance of a compelling government interest; and (2) is the least restrictive means of furthering that compelling governmental interest.’” Centro, supra, at 1217. The Court explained that the Government must prove that the compelling government interest is satisfied through the application of the policy to the individual. Id. at 1220. The Court further explained that through the development of the case law the court has looked at the harm that would ensue from granting exemptions to rules of general applicability, and have still permitted exemptions. Id. The Court explained, however, that the compelling government interest test is not rigid and it allows “for a case-by-case determination of the question, sensitive to the facts of each particular claim.” Id. at 1221 (quoting Employment Div., Dept. Of Human Resources of Ore. v. Smith, 494
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Case 1:05-cv-00596-PLF Document 36 Filed 04/27/2006 Page 18 of 25
U.S. 872, 899 (1990)). The Court further explained “. . . that ‘[c]ontext matters’ in applying the compelling test, . . ., and . . . ‘strict scrutiny does take ‘relevant differences’ into account-indeed, that is its fundamental purpose.’” Id.
The instant case is distinguishable from Centro, supra. Centro did not address the uniqueness and complexity of the considerations existing in the prison setting when dealing with the use of intoxicants. Moreover, in Centro, the government completely barred the use of hoasca for religious rituals. However, the statute at issue allowed the use of peyote for the Native American religions even though the analysis under the Controlled Substance Act and the compelling government interest test would apply equally to both substances. 126 S.Ct. 1222-23. Although Congress intended only one compelling governmental interest test to apply in both contexts, prison and the free community, the outcome of the case could vary depending on the context. See Hamilton v. Schriro, 74 F.3d 1545, 1552 (1996). In our case, the BOP policy allows the use of wine in “small amounts” consistent with the security concerns at the prisons. To allow large amounts of wine as the Plaintiff requests would seriously hamper the security of the institution.
Under the line of reasoning employed in Centro, it follows that the BOP can impose limitations on the Plaintiff’s religious beliefs through rules of general applicability so long as the BOP
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Case 1:05-cv-00596-PLF Document 36 Filed 04/27/2006 Page 19 of 25
shows a compelling governmental interest implemented through the least restrictive means. Centro, supra at 1217. The BOP advances a compelling governmental interest through the application of its religious policy to inmates which are allowed to receive “small amounts of wine.”
The kind of environment and relationship among the inmates and staff is unique to the prison setting. Prison administrators are tasked with the challenging responsibility of accommodating inmates’ rights and privileges while maintaining the security of the institution. In so doing, prison administrators must
consider the character of the inmates confined in the institution, recent and longstanding relations between prisoners and guards, prisoners inter se, and the like. In the volatile atmosphere of a prison, an inmate may constitute an unacceptable threat to the safety of other prisoners and guards even if he himself has committed no misconduct; rumor, reputation, and even more imponderable factors may suffice to spark potentially disastrous incident. The judgment of prison officials . . . turns largely on 'purely subjective evaluations and on predictions of future behavior.' Hewitt v. Helms, 459 U.S. 460, 473 (1983)(quoting Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 464 (1981)). As explained in Centro, the compelling government interest is not applied in a vacuum and equally across the board. “Context matters.” The legislative history of RFRA highlights the importance of addressing the unique characteristics of the prison setting and it even designates a section to the distinct application of RFRA in prison. The legislative history explains:
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The RFRA would establish one standard for testing claims of Government infringement on religious practices. This single test, however, should be interpreted with regard to the relevant circumstances in each case.
* * * The Committee does not intend the Act to impose a standard that would exacerbate the difficult and complex challenges of operating the nations’ prisons and jails in a safe and secure manner. Accordingly, the committee expects that the courts will continue the tradition of giving 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 considerations of costs and limited resources. S. Rep. 103-111, 1993 U.S.C.C.A.N. 1892, 1899-1900 (1993). With this background, the BOP has, quite logically, determined that alcohol consumption jeopardizes the security of the prisons, and has shown that it has a compelling interest in not allowing the consumption of alcohol in its prisons. The BOP introduced the Declaration of Linda Thomas, the Assistant Administrator of the Correctional Services Branch, who has extensive experience in the areas of security, inmate discipline, case management, and religious services. Based on her experience and knowledge in the area of corrections, Ms. Thomas concludes that “[t]here are legitimate penological interests for restricting inmates access to alcohol, such as security and order of the prison, rehabilitation, punishment, deterrence of criminal behavior, and a non-hostile work environment for prison staff.” Declaration of Linda Thomas (attached to the Defendant’s Motion
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Case 1:05-cv-00596-PLF Document 36 Filed 04/27/2006 Page 21 of 25
to Dismiss as Exhibit 5). The declaration distinguishes the inmate population from the population at large and explains the violent tendencies of inmates housed in BOP facilities which could be exacerbated by alcohol use. See id.
In spite of the security concerns involved, the BOP has carved an exception to this general rule by allowing inmates to receive “small amounts of wine” as part of their religious practices. The BOP, however, limits the amount of wine to only a “small amount of wine.” This exception advances the government’s compelling interest of maintaining the security of the institution and meets the RFRA standard.
The BOP has also met the compelling interest test as it relates to the Plaintiff himself. The Plaintiff requests 3 to 5 ounces of wine on Fridays and Saturdays and 4 glasses of 3 to 5 ounces of wine on Passover Seder. In his Memorandum of Points, the Plaintiff mentions that BOP policy “allows ‘an exception’ to its alcohol regulations by allowing for the consumption of two ounces of regular wine for religious purposes.” Plaintiff’s Mem. at 4. Contrary to the Plaintiff’s assertion, the BOP still allows inmates to receive wine in “small amounts.”
The portion of the policy that the Plaintiff mislabels as an exception, is consistent with the policy allowance of “small amounts of wine,” and refers to the two ounces of wine utilized by the Clergy, for instance, during the celebration of mass and
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Case 1:05-cv-00596-PLF Document 36 Filed 04/27/2006 Page 22 of 25
that is shared by all members of the congregation, including the Clergy.5 This is consistent with the BOP policy of allowing inmates “small amounts” and the compelling governmental interest in maintaining security of the institution that allows inmates to receive "small amounts of wine."
The Plaintiff in this case seeks 3 to 5 ounces of red wine during the Sabbath on Friday evenings and Saturday mornings and four glasses each with 3 to 5 ounces of red wine during Passover Seder. The unique characteristics of the prison setting and the security concerns at stake did not allow prison administrators6 to accommodate the Plaintiff’s request. In the prison setting, 3 to 5 ounces of conventional wine is a large amount in light of the security concerns at stake. Moreover, 4 glasses of 3 to 5 ounces of such wine to be consumed at one time could clearly be regarded as a very large amount, up to twenty ounces of wine, which could seriously compromise the security of the institution. The amount of the wine has to be placed in the proper context, the prison setting, with its unique characteristics and security
5 During communion, for example, the Catholic Priest places the two ounces of wine in the chalice and takes the bread, dips it in the wine, and gives it to the inmate to eat. The Priest drinks the amount of wine remaining in the chalice. Thus, two ounces of wine are used to serve the entire congregation, including the priest, and not to each inmate.
6 This assertion applies to Beaumont Low administrators and does not include the Jesup administrators, as the Plaintiff has not yet exhausted the BOP administrative remedy procedures with regards to his request for wine while at Jesup.
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Case 1:05-cv-00596-PLF Document 36 Filed 04/27/2006 Page 23 of 25
issues. The BOP allows inmates to receive small amounts of wine and this is consistent with the practice used, for example, in the Catholic mass. To do otherwise would seriously compromise the security of the institution.
Clearly, the BOP has established a compelling governmental interest in keeping alcohol consumption out of the prisons and in limiting the use of alcohol in religious services to “small amounts of wine” based on the security of the institution.
THE COURT’S FINDING THAT BOP DID NOT MEET THE LEAST RESTRICTIVE MEANS TEST IS NO LONGER APPLICABLE This Court found that the BOP “failed to demonstrate that an outright ban at Beaumont Low on this plaintiff’s consumption of wine as part of a religious ritual is the least restrictive means of furthering the government’s compelling interest. ‘[T]he government cannot meet its burden to prove the least restrictive means unless it has actually considered and rejected the efficacy of less restrictive measures before adopting the challenged practice.” March 31, 2006 Mem. Op. at 12-13. As noted above, this portion of the Court’s opinion is moot, as the Plaintiff has been transferred to Jesup, Georgia, and Beaumont Low officials, who decided not to give Plaintiff wine, are no longer involved in his care. At this point, the inmate must exhaust the BOP administrative remedies at Jesup, since it is now unknown how the Plaintiff’s request will be addressed at the new institution, in the new region, and under the new policy.
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Case 1:05-cv-00596-PLF Document 36 Filed 04/27/2006 Page 24 of 25 CONCLUSION
For these reasons, this action should be dismissed or summary judgment entered in favor of the Defendants. If the action is not dismissed, it should be transferred.
Respectfully submitted, KENNETH L. WAINSTEIN, DC Bar #451058 United States Attorney RUDOLPH CONTRERAS, DC Bar #434122 Assistant United States Attorney W. MARK NEBEKER, DC Bar #396739 Assistant United States Attorney
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CERTIFICATE OF SERVICE I HEREBY CERTIFY that service of the foregoing Defendants' Motion To Dismiss As Moot Or, In The Alternative, To Reconsider Grant Of Partial Summary Judgment For Plaintiff And To Transfer And Opposition To The Plaintiff’s Motion For Reconsideration, its attachments, and a proposed order has been made through the Court's electronic transmission facilities on this 27th day of April, 2006.
W. MARK NEBEKER, DC Bar #396739 Assistant United States Attorney Civil Division 555 4th Street, N.W. Washington, DC 20530 (202) 514-7230

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BRANDON SAMPLE,

)

)

Plaintiff,

)

)

v.

) Civil Action No. 05-596 PLF

)

HARLEY LAPPIN, Director,

)

Federal Bureau of Prisons, et al.,)

)

Defendants.

)

)

ORDER

Upon consideration of Defendants' Motion To Dismiss As Moot

Or, In The Alternative, To Reconsider Grant Of Partial Summary

Judgment For Plaintiff And To Transfer And Opposition To The

Plaintiff’s Motion For Reconsideration, for the reasons set forth

by Defendants, and based upon the entire record herein, it is

this ______ day of ________________, 2006

ORDERED that Defendants' motion to dismiss as moot be and is

hereby granted and this action is dismissed; and it is

FURTHER ORDERED that plaintiff’s motion for reconsideration

is denied as moot.

______________________________ UNITED STATES DISTRICT JUDGE

W. MARK NEBEKER Assistant United States Attorney Judiciary Center, Civil Division 555 4th Street, N.W. Washington, DC 20530

ADAM NADELHAFT, ESQ. WINSTON & STRAWN, LLP 1700 K Street, N.W. Washington, DC 20006

 
 Case 1:05-cv-00596-PLF Document 46 Filed 03/28/2007 Page 1 of 8

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BRANDON SAMPLE, Plaintiff,
v. HARLEY LAPPIN, et al.,
Defendants.

)

)

)

)

)

)

Civil Action No. 05-0596 (PLF)

)

)

)

)

)

MEMORANDUM OPINION and ORDER This matter is before the Court on the parties’ respective motions for reconsideration and on defendants’ motion to dismiss as moot or, alternatively, to transfer the case to the United States District Court for the Southern District of Georgia. The Court will deny all the pending motions.

I. BACKGROUND Plaintiff, who describes himself as “an observant Jew,” brings this action against the Federal Bureau of Prisons (“BOP”) under the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb-1 et seq. Compl. ¶¶ 1, 8.1 Generally, plaintiff alleges that BOP substantially burdens the free exercise of his religion by refusing to allow him to drink “at least 3.5 ounces of red wine (a reviit) while saying Kiddush, a prayer sanctifying the Sabbath,” and “four cups containing at least 3.5 ounces of wine during the Passover seder.” Id. ¶¶ 9,10.

1

Because the named defendants are BOP officials who are sued in their official

capacities only, all claims are treated as if they were raised against BOP itself.

Case 1:05-cv-00596-PLF Document 46 Filed 03/28/2007 Page 2 of 8
II. DISCUSSION A. Burden-Shifting Analysis Under RFRA A plaintiff makes out a prima facie claim under RFRA “by proving the following elements: (1) a substantial burden imposed by the federal government on a (2) sincere (3) exercise of religion.” Kikumura v. Hurley, 242 F.3d 950, 960 (10th Cir. 2001). If a plaintiff successfully makes out a prima facie case, the defendant then must show that the burden placed on the religious exercise is permissible. See Gartrell v. Ashcroft, 191 F. Supp. 2d 23, 37 (D.D.C. 2002) (applying burden-shifting analysis under RFRA). A substantial burden on a person’s exercise of religion is permissible only if: [the government] demonstrates that application of the burden to the person– (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. 42 U.S.C. § 2000bb-1(b). For purposes of RFRA, the term “demonstrates” means “meets the burdens of going forward with the evidence and of persuasion.” 42 U.S.C. § 2000bb-2(3). In its March 31, 2006 Opinion and Order, the Court concluded that plaintiff had made out a prima facie case under RFRA, in that the application of BOP regulations barring his consumption of wine during the Sabbath and Passover rituals substantially burdens the exercise of his sincerely held religious beliefs. Sample v. Lappin, 424 F. Supp. 2d 187, 193-95 (D.D.C. 2006). The Court found that the government has a compelling interest in controlling alcohol consumption and intoxicants in BOP facilities, but that there remained a question of fact as to
2

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whether an outright ban on plaintiff’s consumption of wine as part of a religious ritual is the least restrictive means of furthering that interest. Id. at 195-96. The Court therefore granted the parties’ cross-motions for summary judgment in part and denied them in part. Id. at 196.

B. Defendants’ Motion to Reconsider Grant of Partial Summary Judgment for Plaintiff and to Dismiss the Case as Moot 1. Plaintiff’s Claims Are Not Moot, and His Available Administrative Remedies Have Been Exhausted
In February 2006, plaintiff was transferred from the Federal Correctional Institution in Beaumont, Texas (“FCI Beaumont”) to the Federal Correctional Institution in Jesup, Georgia (“FCI Jesup”). Memorandum of Points and Authorities in Support of Defendants’ Motion to Dismiss as Moot, or, in the Alternative, to Reconsider Grant of Partial Summary Judgment for Plaintiff and to Transfer and in Opposition to Plaintiff’s Motion for Reconsideration (“Defs.’ Mot.”), Attach. 1 (Stephens Decl.) ¶ 3. For this reason, defendants argue that the decision of FCI Beaumont’s Warden to deny plaintiff’s request to drink wine during religious observances is no longer applicable, and that plaintiff’s claims therefore are moot. See id. at 5-6. Defendants also argue that plaintiff failed to exhaust his administrative remedies with the Warden and through the administrative procedures at FCI Jesup under the revised Program Statement currently in effect, P.S. 5360.09, Religious Beliefs and Practices (12/31/2004), contrary to the requirements of the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). Id.2

2

Under the Prison Litigation Reform Act, “[n]o action shall be brought with

respect to prison conditions under section 1983 of this title, or any other Federal law, by a

prisoner confined to any jail, prison, or other correctional facility until such administrative

(continued...)

3

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Plaintiff demonstrates, however, not only that FCI Jesup’s Warden has denied his request for wine in the quantities plaintiff specifies during the Sabbath and Passover observances, but also that he has exhausted his administrative remedies at FCI Jesup under the revised Program Statement. See Plaintiff’s Opposition to Defendants’ Motion to Dismiss as Moot or, in the Alternative, to Reconsider Grant of Partial Summary Judgment for Plaintiff and to Transfer (“Pl.’s Opp’n”), Ex. A-D (April 20, May 1, and May 9, 2006 Inmate Requests to Staff); Plaintiff’s Notice of Filing (Sept. 27, 2006), Ex. 2 (Aug. 22, 2006 Response to Regional Remedy Appeal No. 414949-R1); Plaintiff’s Notice of Filing (Nov. 27, 2006), Ex. 2 (Nov. 8, 2006 Response to Administrative Remedy Number 414949-A1).
Defendants’ motion to dismiss on the ground of mootness and for failure to exhaust administrative remedies therefore will be denied.
2. Plaintiff Shows that His Religious Beliefs are Sincere In defendants’ view, plaintiff has failed to show that he holds a sincere belief in drinking wine as part of his religious rituals. Defs.’ Mot. at 8. At most, defendants argue, plaintiff shows “that for the past four years he has identified himself as Jewish in the BOP’s records. His adherence to the Jewish faith alone, however, does not show that he has a sincerely held belief to drink wine.” Id. Furthermore, defendants find fault with the Court’s acceptance of plaintiff’s “conclusory statements about his belief in drinking wine in the amounts he seeks [and] that he has been active in the practice of the Jewish faith at the different BOP institutions in which he has been housed.” Id. at 12.
2(...continued) remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).
4

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As this Court previously has held, the Court’s “scrutiny extends only to whether a claimant sincerely holds a particular belief and whether the belief is religious in nature.” Sample v. Lappin, 424 F. Supp. 2d at 193 (quoting Jolly v. Coughlin, 76 F.3d 468, 476 (2d Cir. 1996) (citing Patrick v. LeFavre, 745 F.2d 153, 157 (2d Cir. 1984)). While it is not proper to “ask whether a particular belief is appropriate or true,” the Court is presumed capable of evaluating the sincerity with which a person holds a religious belief. Jolly v. Coughlin, 76 F.3d at 476; cf. Gartrell v. Ashcroft, 191 F. Supp. 2d 23, 39 (D.D.C. 2002) (concluding that BOP officials “not only are permitted to assess bona fides but are required to do so where defendants’ actions impose a substantial burden on plaintiffs’ sincere religious beliefs”).
Plaintiff’s verified complaint and declaration in support of his cross-motion for summary judgment reflect not only his Jewish faith, but also a sincere belief that he must consume 3 to 5 ounces of wine every Friday and Saturday during the saying of Kiddush and four 3 to 5 ounce portions of wine during the Passover Seder. See Compl. ¶¶ 8, 9-10; Sample Decl. ¶¶ 1-2, 8, 15. The Court was not persuaded earlier and is not persuaded now that the delay in declaring his religious preference or in pursuing inmate grievances to request wine for religious rituals is probative of the sincerity with which plaintiff holds his beliefs. See Sample v. Lappin, 424 F. Supp. 2d at 193.3 Defendants’ motion for reconsideration on this ground will be denied.

3

Furthermore, at this late date defendants are not entitled to discovery. Had they

believed discovery was necessary in order to respond to plaintiff’s motion for summary

judgment, they could have sought appropriate discovery under Rule 56(f) of the Federal Rules of

Civil Procedure rather than responding to the merits of plaintiff’s motion without discovery. The

Rule 56(f) procedure is not available on a motion to reconsider. Since genuine issues of material

fact remain in this case, both plaintiff and defendants will be able to proceed under the normal

discovery rules as the case progresses.

5

Case 1:05-cv-00596-PLF Document 46 Filed 03/28/2007 Page 6 of 8
3. The Court will Deny Defendants’ Motion to Transfer The Court will deny defendants’ motion to transfer this case to the United States District Court for the Southern District of Georgia. Plaintiff is challenging a national policy and, as he suggests, discovery involving officials or staff at BOP’s Washington, D.C. headquarters may be required. See Memorandum of Points and Authorities in Support of Plaintiff’s Motion for Reconsideration (“Pl.’s Mot.”) at 16-17. As the case develops, however, if either party or if the parties jointly conclude that transfer of this action for trial is appropriate, the Court, of course, will entertain a renewed motion.
C. Plaintiff’s Motion for Reconsideration Plaintiff takes exception to the Court’s finding of a compelling government interest. See Pl.’s Mot. at 1. Notwithstanding BOP’s compelling interest in controlling alcohol consumption within BOP facilities generally, according to plaintiff, BOP fails to “demonstrate that there was a compelling governmental interest through application of [its] policies to Plaintiff himself.” Id. “[T]he compelling interest test is satisfied through application of the challenged law ‘to the person’ – the particular claimant whose sincere exercise of religion is being substantially burdened.” Gonzales v. O Centro Espirita Beneficente Unaio Do Vegetal, 126 S.Ct. 1211, 1220 (2006) (quoting 42 U.S.C. § 2000bb-1(b)). BOP 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. The Supreme Court has observed, however, that “there may be instances in which a need for
6

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uniformity precludes the recognition of exceptions to generally applicable laws under RFRA.” Id. at 1224.
Defendants not only show that there are “legitimate penological interests for restricting inmates access to alcohol,” Defendants’ Motion to Dismiss or, in the Alternative, for Summary Judgment, Thomas Decl. ¶ 4, but also provide an explanation of how recognized “[s]afety and security concerns will not permit the accommodation of [plaintiff’s] request . . . to ingest 3.5 ounces of wine every Friday and Saturday, or 14 ounces of wine at the annual Passover Seder observance, even if low alcohol wine were used.” Id. ¶ 10. Plaintiff’s request for wine “would amount annually to almost 6 gallons of wine,” they say, and wine in the quantities he proposes “is likely to have a negative impact on the safety and security of a Prison.” Id., VanBaalen Decl. ¶¶ 11, 12.
Plaintiff concedes that controlling alcohol consumption in prisons is a compelling government interest. See Sample v. Lappin, 424 F. Supp. 2d at 195. The question is what is the least restrictive means of furthering the government’s compelling interest, and that is a question on which the government will have the burden at trial. Id. at 195-96.
Accordingly, it is hereby ORDERED that plaintiff’s motion for reconsideration [Dkt. #33] is DENIED; it is FURTHER ORDERED that defendants’ motions to reconsider [Dkt. #36] and to dismiss as moot [Dkt. #36] are DENIED, and their motion to transfer [Dkt. #36] is DENIED WITHOUT PREJUDICE; and it is
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FURTHER ORDERED that a status conference is scheduled for April 27, 2007 at 9:15 a.m. in Courtroom 29A of the William B. Bryant Annex to the United States Courthouse. Counsel shall jointly file a report and proposed scheduling and discovery order pursuant to Local Civil Rule 16.3(d) ten days in advance of the status conference.
SO ORDERED.

DATE: March 28, 2007

/s/ PAUL L. FRIEDMAN United States District Judge

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 Case 1:05-cv-00596-PLF Document 60 Filed 06/09/2008 Page 1 of 53

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BRANDON SAMPLE, Plaintiff,
v. HARLEY LAPPIN, et al.,
Defendants.

) ) ) ) ) Civil Action No. 05-596 PLF ) ) ) ) )

MOTION FOR SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS ON THE ISSUE OF THE LEAST RESTRICTIVE MEANS AND, IN THE ALTERNATIVE, RENEWED MOTION FOR RECONSIDERATION OF THE GRANT OF PARTIAL SUMMARY JUDGMENT FOR PLAINTIFF

Defendants respectfully move for summary judgment in their favor pursuant to Fed. R.

Civ. P. 56. There are no genuine issues as to any material fact and defendants are entitled to

judgment as a matter of law, given that the undisputed facts establish that the Bureau of Prisons

(“BOP”) has employed the least restrictive means for protecting the government’s compelling

interest in maintaining security within the prison setting. In the alternative, pursuant to Fed. R.

Civ. P. 7, 54, and 56(f), this Court should reconsider the grant of partial summary judgment in

favor of Plaintiff regarding the sincerity of his purported religious belief that he requires wine in

units of 3 to 5 ounces for several religious rituals and the substantial burden on his religious

practice in light of the revelations in discovery that were not available when the Court earlier

ruled.

Case 1:05-cv-00596-PLF Document 60 Filed 06/09/2008 Page 2 of 53 In support of this motion, the BOP relies upon the accompanying memorandum and the
statement of material facts not in dispute filed with this court. A proposed order is also attached. Respectfully submitted, JEFFREY A. TAYLOR, DC Bar #498610 United States Attorney RUDOLPH CONTRERAS, DC Bar #434122 Assistant United States Attorney /s/ W. MARK NEBEKER, DC Bar #396739 Assistant United States Attorney
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Case 1:05-cv-00596-PLF Document 60 Filed 06/09/2008 Page 3 of 53

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BRANDON SAMPLE, Plaintiff,
v. HARLEY LAPPIN, et al.,
Defendants.

) ) ) ) ) Civil Action No. 05-596 PLF ) ) ) ) )

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS ON THE ISSUE OF THE LEAST RESTRICTIVE MEANS AND, IN THE ALTERNATIVE, RENEWED MOTION
FOR RECONSIDERATION OF THE GRANT OF PARTIAL SUMMARY JUDGMENT FOR PLAINTIFF

INTRODUCTION

Defendants submit that summary judgment in their favor is warranted as set forth below.

Plaintiff has filed this action under the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C.

§ 2000bb-1, et seq., seeking accommodation of his purported belief in consuming several ounces

of wine during Jewish religious rituals of Kiddush and Passover Seder. Complaint, ¶¶ 9-10.

Plaintiff has failed to show he has a sincerely held belief in drinking wine as part of his religious

rituals and that the BOP policy substantially burdened his religious practice. In any event, the

policy plaintiff seeks to challenge is justified by the government’s compelling interest in

maintaining security in the prison system. The BOP has also met the least restrictive means test

in RFRA by offering Plaintiff several alternatives to satisfy his alleged belief in the use of wine,

but the plaintiff has refused those alternatives.

Case 1:05-cv-00596-PLF Document 60 Filed 06/09/2008 Page 4 of 53
ARGUMENT
[The RFRA] was enacted to overturn Employment Div., Dep't of Human Resources of Ore. v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), a decision which held that the First Amendment permits governments to apply neutral generally applicable laws to religious practice without a showing of a compelling state interest. Cutter [v. Wilkinson, 544 U.S. 709, 125 S.Ct. 2113, 2118 (2005)]; Caldwell v. Caesar, 150 Supp.2d 50, 55 (D.D.C. 2001). RFRA provides that a government “shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability” unless the government demonstrates that it “is in furtherance of a compelling government interest” and “is the least restrictive means of furthering that compelling government interest.” 42 U.S.C. § 2000bb.
Jefferson v. Gonzales, Civil Action No. 05-442 GK, 2006 WL 1305224, *2 (D.D.C. May 10,
2006).
The RFRA requires the Plaintiff to demonstrate that a government action substantially
burdens his sincerely held religious beliefs. See 42 U.S.C. § 2000bb-1(a) and § 2000b-2(3). But,
where the plaintiff has established that his religious practices have been substantially burdened
by the BOP, “the burden is on the Defendants to prove that the policy is the least restrictive
means of achieving a compelling interest.” Jefferson v. Gonzales, Civil Action No. 05-442 GK,
2006 WL 1305224 at *2 (citing 42 U.S.C. § 2000bb-1(b)(2)).
In applying the compelling interest test, “context matters.” Gonzalez v. O Centro Espirita Beneficente Uniao Do Vegetal, --- U.S. ----, ----, 126 S.Ct. 1211, 1221, 163 L.Ed.2d 1017 (2006), quoting Grutter v. Bollinger, 539 U.S. 306, 327, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003). The BOP has the statutory duty of providing for the safety of inmates. See 18 U.S.C. § 4042(a). Prison officials have broad administrative and discretionary authority over the institutions they manage. See Hewitt v. Helms, 459 U.S. 460, 467, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983). Courts are to afford deference and flexibility to officials trying to manage the safety of the prison environment. Sandin v. Conner, 515 U.S. 472, 482, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). “[P]rison security is a compelling state interest” and “deference is due to institutional officials' expertise in this area.” Cutter, 125 S.Ct. at 2124 n.13.
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Jefferson v. Gonzales, Civil Action No. 05-442 GK, 2006 WL 1305224 at *3. In Jefferson, the Court concluded that the BOP had met this burden in its restrictions on the wearing of turbans by inmates. Jefferson v. Gonzales, Civil Action No. 05-442 GK, 2006 WL 1305224 at *2-*4. A similar result is merited here.1 I. GENUINE ISSUES EXIST AS TO THE SINCERITY OF PLAINTIFF’S PURPORTED
BELIEF IN THE USE OF WINE DURING RELIGIOUS RITUALS One of the most delicate issues a court may be confronted with is the examination of the religious beliefs of a litigant who is incarcerated. Congress, in passing RFRA, attempted to protect one of the “most treasured birthrights of every American”, “the right to observe one’s faith, free from Government interference.” S. Rep. No.111, 103rd Cong., 1st Sess. 1993, 1993 U.S.C.C.A.N. 1892, 1893-94 (Leg. Hist.). In so doing, Congress intended “a workable balancing of the legitimate interests of prison administrators with the Nation’s tradition of protecting the free exercise of religion.” Id. at 1899. Congress did not define the precise contours of the elements of the RFRA test and as a result, summoned courts to look for guidance at cases decided prior to the Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), which overruled the compelling governmental interest test. See 1993 U.S.C.C.A.N. at 1898-99. In one of those cases, the Supreme Court asserted that “the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct [namely, religious beliefs or practice] in which
1 Defendants recognize that a favorable ruling on the least restrictive means issue would moot out the question of whether Plaintiff can establish that the BOP has substantially burdened his sincerely held religious beliefs. Defendants nevertheless feel compelled to address first the misconceptions regarding Plaintiff’s past claims, because such inconsistencies as have been identified in Plaintiff’s claims of sincerity are recognized even by Plaintiff’s expert as significant in his assessment of whether offering wine to a particular prisoner is appropriate.
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Case 1:05-cv-00596-PLF Document 60 Filed 06/09/2008 Page 6 of 53
society as a whole has important interests.” Wisconsin v. Yoder, 406 U.S. 205, 215-16 (1972). This statement holds especially true in the prison setting. Although courts will not examine the truth of a belief, courts are “presumed capable of evaluating the sincerity with which a person holds a religious belief.” Sample v. Lappin, 470 F.Supp.2d 120, 123 (D.D.C. 2007). “. . .[W]hile the “truth” of a belief is not open to question, there remains the significant question of whether it is ‘truly held.’” Thacker v. Dixon, 784 F.Supp. 286 (E.D.N.C. 1991) (quoting United States v. Seeger, 380 U.S. 163, 185 (1965)).
Courts must be cautious to separate real from fictitious religious beliefs. See id. (quoting Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 713-16 (1981)). In so doing, a court may also consider “whether the litigants are merely relying on a self-serving view of religious practice.” Levitan v. Ashcroft, 281 F.3d 1313, 1321 (D.C. Cir. 2002). Mr. Sample relies on his own self-serving view of Judaism and the religious practice. This does not meet the RFRA standard.
A. Prior to incarceration, Brandon Sample was not practicing Judaism with any regularity and only participated in rituals two or three times in his life.
Brandon Sample, Register No. 33949-037, mastermind of a conspiracy to commit money laundering, abetting the possession of counterfeit security and aiding and abetting the possession of stolen mail matter is serving his sentence of one hundred and sixty eight months in BOP custody. Mr. Sample filed a complaint in which he asserts that he has a sincerely held belief in drinking wine during Jewish religious rituals, which at that time only included the ceremonies to commemorate the Sabbath2 and the Passover Seder.3 (See Complaint, ¶¶ 9-12).
2 Shabbos and Shabbat both are the Hebrew word for Sabbath. The Holy Sabbath is considered as
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Case 1:05-cv-00596-PLF Document 60 Filed 06/09/2008 Page 7 of 53
In his complaint, Plaintiff stated that he “believes that he must drink at least 3.5 ounces of
red wine while saying Kiddush . . . during Friday night and Saturday shabbos services.”
Complaint, ¶ 9. He also stated that “he must drink four cups containing at least 3.5 ounces of
wine during the Passover seder.” Id., ¶ 10. He proclaimed this belief was dictated by “Jewish
sages, the Code of Jewish Law, and by practice.” Id., ¶ 9. Plaintiff claimed to be “an observant
Jew [who] practiced Judaism before his incarceration . . .” Id., ¶ 8. “For example, before his
incarceration, plaintiff said Kiddush over wine during his Friday night and Saturday morning
. . . the most important of all Jewish Holy days. The Sabbath is considered as a sign to bear witness that, ‘In six days God made the heavens and the earth and that is in them, and He rested on the seventh day. This belief, that God is the creator of the universe, is the foundation of the Jewish faith.
The Sabbath begins 18 minutes before sunset on Friday night and ends approximately one hour after sunset on Saturday night.
Exhibit 1: Institutional Handbook of Jewish Practice and Procedure, at 4-1 (9/98)(“Handbook”). 3 Passover Seder is described as follows:
The two Passover Seders are not simply ‘meals’ - they are religious rituals that require certain foods as part of their proper observance. Observant Jews are obligated to partake in two Seders on Passover, on the first two eves of the holiday.
During the Seder, the ‘Haggadah’ is recited. The Haggadah is a collection of prayers, songs and text recounting the Exodus from Egypt.
Matzo, bitter herbs and wine (or grape juice), ‘Charoses’ (see below), a chicken neck or other piece of roasted meat, horseradish and romaine lettuce, potatoes, onions, salt water and a hard-boiled whole egg are religious items that are required to complete the Seder rituals, as are the other foods comprising a religious meal.
Among other rituals, Jews are mandated to drink four cups of wine at each of the two Seders. . . . If, however, for health or other reasons, wine is unavailable, kosher grape juice may be used instead.
Handbook, at 6-20. - 5 -

Case 1:05-cv-00596-PLF Document 60 Filed 06/09/2008 Page 8 of 53
shabbos services.” Id., ¶ 9. Plaintiff later explains his early involvement with Judaism as follows: Around my 14th birthday, I began to seriously examine the Jewish religion, including studying the Torah, the Talmud, and the Code of Jewish Law. At the age of 17, I left my parents home, and lived by myself. During this time, I was able to explore, and practice Judaism, although my level of observance at the time was sporadic. I observed Shabbat in my home, and occasionally attended Congregation Beth Yeshurun in Houston. During Shabbat, I would always say Kiddush over wine and challah bread. During Pesach, I would always drink four glasses of wine ...
(September 20, 2005 Declaration of Brandon Sample, ¶¶ 17-18, found as Exhibit 1 to the Plaintiff’s Cross Motion for Summary Judgment as to Count I, and Response to Defendants’ Motion to Dismiss or, in the Alternative, for Summary Judgment or to Transfer, filed September 29, 2005)(hereinafter Pl.’s Cross-Mot.).
Plaintiff then explained that his “occasional” attendance at the Congregation of Beth Yeshurun consisted of attending worship 2 or 3 times for Sabbath between 1998 and 2000. See Exhibit 2 (Plaintiff’s Discovery Responses, Admis. Nos. 14-15). His “sporadic” observance of the Sabbath consisted of participating in Kiddush no more than two or three times. See Exhibit 3 (Deposition Transcript of Brandon Sample (“Sample Depo.”) at 46), that on those occasions he used red wine (id. at 47), and that during the ritual he was the only person present. (Id. at 101). Plaintiff celebrated the ritual of Passover Seder at his home one or two times between 19982000, and he celebrated it according to his “own knowledge and understanding of how things work.” (Id. at 99). See also Exhibit 2 (Plaintiff’s Discovery Responses, Admis. No. 18).
Additionally, prior to his incarceration, Plaintiff’s “serious” study of Judaism did not include seeking spiritual guidance from any Rabbis, studying with others or following the
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Case 1:05-cv-00596-PLF Document 60 Filed 06/09/2008 Page 9 of 53
religious practices of his parents, who do not practice the Jewish faith. (Plaintiff’s Discovery Responses, Inter. Nos. 5, 9). Plaintiff’s beliefs are based on the Code of Jewish Law and the Jewish Book of Why (see Plaintiff’s Discovery Responses, Inter. No. 11; Complaint, ¶ 9; Sample Depo. at 101), but Plaintiff does not accept what a Rabbi says, and he disagrees with the Code of Jewish Law insofar as it “deem[s] it permissible for a healthy adult to make Kiddush over grape juice, boiled wine, or diluted wine.” See Sample Depo. at 104, see also id. at 34-35 (Plaintiff disagrees with Rabbis); Plaintiff’s Discovery Responses, Admis. No. 18. In spite of only celebrating Kiddush by himself on two or three occasions prior to incarceration, Plaintiff claims he “knows” that “no one” uses matzoh during Kiddush. (Sample Depo. at 100). At the same time Plaintiff asserts he was “practicing” Judaism between 1998 and 2000, he was only nineteen years old and the mastermind of a conspiracy to violate the laws of the United States. See Plaintiff’s Discovery Responses, Admis. Nos. 1-5. This is the Plaintiff.
Throughout this litigation, Plaintiff has made contradictory statements. In his Complaint, he suggests that he was practicing Judaism long before incarceration (see Complaint, ¶ 8) and, he maintains, he would “always” drink wine during Sabbath and Passover rituals. September 20, 2005 Declaration of Brandon Sample, ¶¶ 17-18. Later, he has stated that his level of observance was sporadic and that he only participated in each ritual two or three times before incarceration. Plaintiff’s Discovery Responses, Inter. Nos. 4-7 and Admis. No. 14. Plaintiff also states that he began to “seriously” study Judaism at age 14, yet before his incarceration he never sought guidance from a Rabbi and only attended a place of worship two times. See September 20, 2005 Declaration of Brandon Sample, ¶¶ 17-18; Plaintiff’s Discovery Responses, Inter. Nos. 5-7. It would be without foundation to conclude, as Plaintiff has suggested in his Complaint, that
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Case 1:05-cv-00596-PLF Document 60 Filed 06/09/2008 Page 10 of 53
Plaintiff practiced Judaism with any consistency prior to his incarceration or that he “seriously” studied Judaism. His participation in a ritual two or three times in his life, does not support the implication in his Complaint that he was practicing the Jewish faith with any regularity. At a minimum, this and the remaining bases to doubt his assertions raise a genuine issue that should be addressed by the Court if the matter were ever to reach a hearing requiring the taking of testimony.
The Court of Appeals has looked at inmates’ former practices “for years prior to their incarceration” to show that the drinking of wine was not “an unimportant part of [his] religious practice.” See Levitan v. Ashcroft, 281 F.3d 1313, 1322 (D.C. Cir. 2002).4 In this case, Mr. Sample partook of the wine for the Sabbath and Passover on two or three occasions. Plaintiff’s Discovery Responses, Inter. Nos. 5-7. In contrast with Levitan, Plaintiff’s observance of the rituals prior to incarceration shows that partaking of the wine during the religious rituals was not an important part of his religious practice before his incarceration. His level of observance reflects that he could not have had the level of spirituality and religiousness to state that he “practiced Judaism,” not in accordance with the framework recognized in Levitan.
B. Mr. Sample’s Level of Observance increased During his Incarceration Immediately Prior to this Litigation.
In his Complaint, Plaintiff contended that “he continue[d] his practice of Judaism while confined. Plaintiff frequently attends Jewish services, events, etc . . .” (Complaint, ¶ 8). However, he later explains that in 2000, he did not partake in any observances and in 2001, he
4 Although Levitan involved a claim under the First Amendment, the analysis for the sincerely held belief is similar under both standards.
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Case 1:05-cv-00596-PLF Document 60 Filed 06/09/2008 Page 11 of 53
participated in an occasional Sabbath during the Summer months. (Plaintiff’s Discovery Responses, Inter. No. 17) (Exhibit 2). He alleges that it was not until 2002 that he observed the Sabbath weekly, Yom Kippur5 and Rosh Hashanah6, and from 2003-2007, he observed the Sabbath weekly and the rituals of Passover, Rosh Hashanah, Yom Kippur, and observed the other religious holy days of Succos, Purin, Shavuos, Tisha B’av, Fast of Ester, Fast of Tevet, Fast of Gedliah, and the Fast of Tamzuz. (Plaintiff’s Discovery Responses, Inter. No. 17). Plaintiff asserts he developed a higher level of spirituality and decided to commit to learning, exploring and practicing Judaism as part of his daily life. (Plaintiff’s Discovery Responses, Admis. No. 16). This is the same person who said he “seriously” studied Judaism at the same time he engaged in a criminal enterprise.
Plaintiff’s sincerity in a religious belief to drink wine is highly suspect. He admits to being a social drinker. (Sample Depo. at 110-111; Plaintiff’s Discovery Responses, Admis. No. 11 (“Plaintiff admits that he enjoys drinking liquor and wine socially like many other adults. . .”)). His BOP records raise questions about his adherence to Judaism. (See Inmate History Religion found in Exhibits 6 and 1, to the August 8, 2005 Defendants’ Motion to Dismiss or, in the Alternative, for Summary Judgment or to Transfer (hereinafter “Def.’s Mot. to Dismiss”)).
Although Plaintiff’s BOP records may not be determinative of his faith now, the
5 Yom Kippur is considered the day of atonement. “The holiest and most solemn day of the Jewish year, it is the only Biblically-mandated holiday that is also a fast day. Its central theme is repentance, atonement and reconciliation, and the day customarily is fully occupied with prayer. Handbook, at 6-5.
6 Rosh Hashanah is the “Jewish spiritual New Year, [and it] is characterized by prayer, repentance and the blowing of a complicated series of blasts on the shofar at and throughout the morning/afternoon prayer service.” Handbook, 6-2.
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inconsistency in his religious affiliation and the exaggerations in his Complaint, as well as his criminal convictions, give strong reason to question his credibility. Moreover, his delay in identifying himself to BOP as Jewish raises a question about the legitimacy of his belated claim to have a sincerely held belief in the need for wine. BOP records reflect that he did not identify himself as Jewish until September 17, 2001, after more than fifteen months of being in custody. See, e.g., Plaintiff’s Discovery Responses, Admis. No. 19; Inmate History-Religion. Consistent with that, his first administrative remedy request regarding a religious accommodation is dated September 14, 2001. See Exhibit 4 (Declaration of Bruce Plumley), ¶ 5. For an inmate so familiar with the administrative remedy system, who filed 12 requests within the first seventeen months of being in custody, it is clear that the practice of Judaism was not as important to him. See id.
In addition, Plaintiff did not enroll in the religious diet (Plaintiff’s Discovery Responses, Admis. No. 19) and did not participate in the Sabbath weekly until 2002, two years after coming into BOP custody. (Plaintiff’s Discovery Responses, Inter. No. 17). His enrollment in the religious diet was sporadic as he was removed from it several times possibly because of noncompliance and he also withdrew from the religious diet at one point. (Sample Depo. at 7071). These actions are not consistent with his previous statements that he practiced Judaism during his incarceration.
Moreover, Plaintiff waited four years after his incarceration to file his first administrative remedy request for wine. See Plaintiff’s Discovery Responses, Admis. No. 20. It is noteworthy that Plaintiff’s tendency to file administrative remedy requests continues for the rest of his incarceration. BOP records reflect that from June 12, 2000, (the date he arrived in BOP custody)
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until the time he filed the first administrative remedy request for wine on August 31, 2004, plaintiff had filed a total of one hundred and twenty nine administrative remedy requests. See Plumley Decl., ¶ 8. It is a telling statement that, although Plaintiff was so familiar with the administrative remedy system, he waited almost four years formally to request wine.
Plaintiff asserts that upon arriving in prison, he was confused and “overwhelmed with emotion.” (Plaintiff’s Decl., ¶ 19). He also asserts that BOP records were inaccurate and that he corrected the mistake when he realized his religious affiliation was identified as Protestant. (Id., ¶ 27). However, the fact remains that it took him 15 months to file an administrative remedy request regarding his alleged religion, two years to enroll in the religious diet and practice the Sabbath weekly, and four years following his arrival in BOP custody to request wine for the Jewish religious rituals in which he asserts to have a sincerely held belief that precedes incarceration.
Moreover, he asserts he has a sincerely held belief in the use of wine during these rituals in which he participated one or two times in his lifetime, by himself, prior to entering prison. See Plaintiff’s Discovery Responses, Inter. Nos. 6-7. If his statements were true, it is highly suspect that he only participated in the rituals once or twice prior to incarceration and that it took him so long to identify himself as a Jewish person, to enroll in the religious diet, to make a request regarding his religion, and that it took him approximately four years to request the wine through the administrative remedy procedures. Plaintiff’s Discovery Responses, Inter. Nos. 1617 and Admis. Nos. 14-15, 17, 19-20. This is not the behavior of an inmate with a sincerely held belief in drinking wine for religious reasons. Indeed, his alleged sincerely held belief in drinking wine during the Kiddush and Passover is highly questionable and he has failed to meet that
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Case 1:05-cv-00596-PLF Document 60 Filed 06/09/2008 Page 14 of 53
burden. Instead, Plaintiff has merely shown that for the last four years he has identified himself as
Jewish in the BOP’s records. His adherence to the Jewish faith alone, however, does not show that he has a sincerely held belief to drink wine. The inconsistencies in his statements and actions shed light into his mindset. Plaintiff merely seized the opportunity to obtain wine under the pretense of a belief that coincidentally blossomed while in prison. There is no reason why an individual who sincerely believes in the consumption of wine during the rituals since before his incarceration would take four years to request the wine, or take two years to enroll in the religious diet and participate in the Sabbath weekly, or participate and partake of the wine in the rituals two or three times before his incarceration. Instead, it is more likely that he simply wishes to “enjoy[] drinking . . . wine socially like many other adults. . .” See Plaintiff’s Discovery Responses, Admis. No. 11. Plaintiff has failed to meet the RFRA standard.
C. Plaintiff’s Practices and Beliefs Significantly Changed during the Pendency of this Action
During the pendency of this action, Plaintiff’s allegedly sincere beliefs have been in constant flux. In his complaint, he first stated that he believes in drinking 3.5 ounces of wine for the Sabbath observance and four glasses of 3.5 ounces of wine for the Passover Seder. Subsequently, the Plaintiff changed the initial amount of wine (3.5 ounces) he seeks to 3 to 5 ounces of wine for each ritual. (See Pl.’s Cross-mot. at 3-4 and Plaintiff’s Decl., ¶ 2 (“It is my sincerely held religious belief that I must consume between 3 to 5 ounces of wine every Friday and Saturday during the saying of Kiddush . . . . and 3 to 5 ounces of wine four times during the Pesach . . . Seder.”). Cf Complaint, ¶¶ 9-10 (stating “Plaintiff sincerely believes that he must
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drink at least 3.5 ounces of red wine while saying Kiddush ... [and] 3.5 ounces of wine during Passover seder.”).
Plaintiff changed his belief to state that he needs 3 to 5 ounces of wine during the Passover Seders and mentions two rituals. See Exhibit 5 (Inmate Request to Staff Member, April 13, 2006). Most recently, although Plaintiff has never participated in the ritual of havdalah,7 he has stated that “it is my sincerely and important belief that I must consume 3 to 5 ounces of Kosher red wine during the hadvolah [sic] in addition to the other Sabbath rituals every week.” (Sample Depo. at 88-89). (See also Exhibit 6: Administrative Remedy Request 475362, dated December 3, 2007). He has not met any other Jewish inmates who observe the havdalah ritual in prison. (Sample Depo. at 88-89). But Plaintiff still wants the wine to observe this newly added ritual. Id. Plaintiff has received the following offer: “[c]onsistent with your asserted religious needs and the facility’s duty to maintain security and good order, it has been determined to allow you to receive kosher grape juice; three ounces of kosher grape juice with a drop of low-alcohol kosher wine; or a three-ounce mixture of a low-alcohol kosher wine and water, approximately one part wine and five parts water. If you desire the three-ounce water and wine mixture, the above grape juice options would be available for the other three glasses requested for the Passover Seders.” Id.; see also Plaintiff’s Discovery Responses, Admis. No. 18. Plaintiff appealed, but after further review within the Bureau of Prisons, the agency concurred with the institution’s offer.
7 The Havdalah service is a “solemnization of the Sabbath’s parting by a blessing over wine or grape juice, the sniffling of cloves or other aromatic incense and the lighting of a twined multi-wicked candle or two flames from any source brought together to form a single ‘torch’ for the duration of the ceremony.” Institutional Handbook, 4-10.
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The evolution of the Plaintiff’s belief system reflects no differently than what the BOP prison security expert, David Rardin, describes as a “child in the candy store” effect. He explains that,
From the prison administrator’s point of view, allowing an inmate to obtain wine in the amounts of his preference is analogous to a child in a candy store. There is no difference. A small child is overwhelmed by opportunity and wants all the candy. In prison, wine is something different than the norm and it is an intoxicant. All inmates are going to want it. Prison administrators would carry a unique and heavy burden when the door is open to offer inmates considerable amounts of wine. This is a very dangerous slippery slope that is predictable and will evolve into a cycle that would never stop. The more the inmate gets the more the inmate wants. A prime example of this slippery slope is present in this case. BOP policy allows the use of small amounts of wine for religious rituals. Inmate Sample seeks substantial amounts of wine which would further increase the use of wine in prison. See Exhibit 7 (David Rardin’s Revised Expert Report, March 14, 2008) (emphasis added). Mr. Sample’s claimed sincerely held beliefs keep evolving in ways that demand a more frequent consumption of wine, and thus larger amounts of wine each week. His beliefs have changed from seeking wine for his religious rituals twice per week in the beginning of this litigation to three times a week, and from one Passover Seder to two Passover Seders each year. Additionally, while at Jesup, Plaintiff states he participated in all the Jewish religious rituals. Indeed, he was an inmate representative for the other Jewish inmates. See Exhibit 8 (January 3, 2008 Deposition Transcript of Chaplain Raymond Ortiz) at 97:15-22). Also, he had been the Jewish faith group representative while housed at Beaumont Low. (Plaintiff’s Decl., ¶ 23). These two institutions had a significant number of inmates who observed the Jewish rituals and plaintiff assumed somewhat of a leadership role in the Jewish community. (Id., ¶ 21, and Ortiz Depo. at 97). Plaintiff arrived in Texarkana on October 17, 2007. Plaintiff states his religious practice
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changed when he arrived in Texarkana Camp. In December of 2007, Plaintiff asserted that he had continued to participate in the Jewish rituals in spite of the denial of the wine. (Plaintiff’s Discovery Responses, Admis. No. 26). Just two months later, however, Plaintiff changed his story and stated he was no longer saying kiddush while at Texarkana because he does not have wine and does not want to say it with grape juice or bread. (Sample Depo. at 78). For the first time, he now says that it is better not to participate in the rituals than to perform them wrongly, i.e., without wine. (Id. at 107-108). He explains that he participated in the rituals before absent wine, not because of his “sincerely held belief”, but out of respect to other Jewish inmates and their beliefs. (Sample Depo. at 79). He now states that although he had previously participated in the religious rituals between 100-500 times while incarcerated, he feels he never satisfied his obligation. (Id. 79-80; see also Plaintiff’s Discovery Responses, Admis. No. 26). At Texarkana Camp, there is only one other Jewish inmate and plaintiff no longer enjoys a “leadership role” in the community. It is not a coincidence that he now abandons practicing in his religious rituals while he is housed at Texarkana.
In a desperate attempt to justify the many inconsistencies in his beliefs and practices, he has recently revealed that God spoke to him about stopping his participation in the rituals (Sample Depo. at 78), and that this is the reason why he has not participated in any rituals since his arrival at Texarkana. (Id. at 78-80). Also recently, Plaintiff has asserted that the source of his beliefs in the use of wine are his twenty or so conversations with God. (Id. at 31-33). These conversations, he now asserts, started at around the time he filed his first administrative remedy request while at Beaumont, but he failed to mention them ever before in this litigation or in the many administrative remedy requests he has filed regarding religious issues. (Id. at 49-50).
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Indeed, in his Complaint, Plaintiff explained that the sources of his beliefs are “the Code of Jewish law, the Jewish Sages, and by practice.” (Complaint, ¶ 10). He did not mention any conversations with God. Nor, until faced in his deposition with the provisions in the Code of Jewish Law that describe how to perform Jewish rituals in the absence of wine, did he ever state that his contrary position was based on his personal conversations with God. Indeed, Plaintiff acknowledged that no Rabbi has told him that it was unacceptable to use grape juice as a substitute for wine in the Jewish ritual. Sample Depo. at 34-35.
Regarding an inmate’s assertion that his purported need for wine is based on conversations with God, James Aiken, the Plaintiff’s own expert on prison security, has indicated that he would question any inmate whose purported religious need for wine was based on claimed discussions with God: “[a]nd certainly in this case, if that was said to me, to which it wasn’t, you know, that would cause negative -- more of a negative than a positive.” (Exhibit 9: Deposition Transcript of James Aiken at 107-08). Mr. Aiken further explains that if an inmate told him, “. . . ‘God talked to me last night,’ and I won’t doubt that, ‘And he says that I can have a bottle of wine in my cell to drink whenever I feel like it,’ I’m not going to grant that.” (Id. at 21-24). Indeed, Mr. Aiken asserts he would be suspicious of something as unverifiable as the assertion of having conversations with God to justify a request for wine in prison. (Id. at 10709).
Additionally, Plaintiff claims to follow the teachings of Jewish sages8 and the Code of Jewish Law, but he follows his own interpretation of Judaism regardless of what the Rabbis say or the Code of Jewish Law states, as he does not necessarily accept what they state. See Sample
8 Plaintiff defines sages as rabbis. (Sample Depo. at 81). - 16 -

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Depo. at 18-19; 34-35. Indeed, Plaintiff has stated he would not accept what a Rabbi tells him. (Id.). It is noteworthy that Mr. Sample wants a glass with 3 to 5 ounces of wine while in prison. However, Sample admits that in the community, while one person would drink the wine, he would just drink a sip of wine. (Id. at 41-42). He admits this is an acceptable practice in the community. (Id.) Yet he rejected the BOP’s offers for the nonalcoholic wine, or the one drop of wine in grape juice, or the diluted wine which would be consistent with the amount of wine he would obtain in the community. See Inmate Request to Staff Member dated May 9, 2006 filed as Exhibit C to Plaintiff’s Opposition to Defendants’ Motion to Dismiss as Moot, or, in the Alternative, to Reconsider Grant of Partial Summary Judgment for Plaintiff and to Transfer; Exhibit 13 (Central Office Administrative Remedy Appeal 414949); Exhibit 6 (Regional Administrative Remedy Appeal 475362).
Plaintiff asserts that if he had some interaction with the Rabbi or staff presiding over the ritual and knew they were Jewish and sincere, it would be acceptable to him that the Rabbi or staff consume the wine on his behalf. (Sample Depo. at 44-45). In the restrictive prison environment, Plaintiff wants to know the sincerity of the person praying the kiddush while in the community he did not even know the Rabbi in the synagogue he attended and who presided over the rituals. (Id. at 44). He also admits the Code of Jewish Law does not require that the participant know the person presiding over the ritual. (Id. at 43).
Plaintiff readily admits that in the past, he has misrepresented facts to obtain benefits. (Sample Depo. at 51). He previously represented himself as a Baptist University student to obtain a credit card. (Id. at 50-51). He was also convicted of a misdemeanor for attempting to obtain by fraud a prescription for codeine which he wanted for resale. (Id. at 39). Lastly, Mr.
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Sample was the mastermind of a conspiracy to defraud the government, which is the reason he is in federal prison. At such a young age, his criminal history is already plagued with fraudulent acts.
This behavioral pattern has not changed during his incarceration. In prison he continues to seek privileges under false pretense. For example, he readily admits that it is his intention to participate in the BOP drug treatment program (id. at 38) even though he states he does not have a substance abuse program and does not need treatment. (Id. at 60). The BOP drug abuse treatment program was designed for non-violent offenders who are “determined to have a substance abuse problem,” Exhibit 10 (June 26, 1995 Program Statement 5330.10, Drug Abuse Programs Manual), Chapter 6, at 1, and inmates who successfully complete the program become eligible for a sentence reduction of up to one year. 18 U.S.C. § 3621(e). Even knowing the intent of the program and that he does not need treatment, Plaintiff still intends to reap a benefit he is not entitled to. He states all inmates want to participate in the program because of the time off so it is justifiable for him to also want it, even if under false pretense. See Sample Depo. at 60.
Following this same line of reasoning, about 40% of the individuals incarcerated have been under the influence of alcohol or some intoxicants during the commission of the crime for which they are convicted. See February 25, 2008 Deposition Transcript of David Rardin (Exhibit 11) (“Rardin Depo.”) at 59. Plaintiff may also want wine as it is a very valuable commodity or currency in prison. Wine is desirable to other inmates just as desirable as the participation in the drug abuse program. He has already unequivocally stated that he enjoys alcohol and wine socially. (Plaintiff’s Discovery Responses, Admis. No. 11; Sample Depo. at 47). So, Plaintiff
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intends to do both: obtain wine and participate in the drug abuse program. Additionally, Mr. Sample seeks other benefits through claimed adherence to Judaism: a
diet with more vegetables and fruits, which is perceived by inmates as a healthier diet. (Ortiz Depo. at 62-63). Mr. Sample himself recognizes that about 50% of inmates participate in the religious diet for non- religious reasons. (Sample Depo. at 69). Judaism is also the religion with the most days of work proscription,9 a total of 13 days in a year, a significantly higher number of days than all the other religions. See Exhibit 12 (Days of Work Proscription). Thus, inmates who identify their preferred religion as Judaism get the most days off from work than any other religious group.
Plaintiff asserts he follows teachings of the Code of Jewish Law. (Complaint, ¶ 9). However, Plaintiff qualifies this statement, as he chooses not to believe in the provisions that deem it permissible for a healthy adult to make Kiddush over grape juice, boiled wine, or diluted wine. (Plaintiff’s Discovery Responses, Admis. No. 18). Even though Plaintiff admits that, to his knowledge, Judaism does not require a particular percentage of alcohol for the celebration of the rituals. (Sample Depo. at 66 and Sample Depo. Exh. 5 (Code of Jewish Law) ).
Courts have articulated that a religious belief must be more than just a philosophy or a way of life. United States v. Meyers, 95 F.3d 1475 (10th Cir. 1996); Thiry v. Carlson, 78 F.3d 1491 (10th Cir. 1996). The plaintiff has changed his beliefs so often that now it is more of a personal preference. He has changed the amounts of wine he seeks. He has also changed the
9 Judaism has 13 holy days per year of work proscription. See Exhibit 12: Chaplaincy Services Guidance for the Recognition of Holy Days Calling for Work Proscription and Public Fast Days (hereinafter Days of Work Proscription). The second religion with the most holy days Catholicism with five days of work proscription. See id.
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number of rituals and has even added new rituals to his request. He has also changed the frequency in which he wants the wine. The only thing constant in his request is that he wants wine with alcohol in it. He has indicated that he likes wine and has consumed wine in the past. (Plaintiff’s Discovery Responses, Admis. No. 11; Sample Depo. at 47). He also used codeine as part of his “experimenting” with drugs (Sample Depo. at 39), and used marijuana and cocaine since a young age. (See Presentence Report, ¶¶ 82-83 submitted as Exhibit 15 of Pl.’s Crossmot.). Thus, Plaintiff enjoys consuming intoxicants, notwithstanding that one state judge has required his participation in Alcoholics Anonymous. See Plaintiff’s Depo. at 58-59; Plaintiff’s Discovery Responses, Admis. No. 9.
A personal preference to consume intoxicants does not rise to the level of a sincerely held belief under RFRA. See Ochs v. Thalacker, 90 F.3d 293 (8th Cir. 1996)(stating that “[p]urely secular views or personal preferences will not support a Free Exercise Clause claim.”)(quoting Frazee v. Illinois Employment Sec. Dept., 489 U.S. 829, 833 (1989)).
Under RFRA, the government cannot always substantially burden a person’s exercise of religion. “Inadequately formulated prison regulations and policies grounded on mere speculation, exaggerated fears, or post-hac rationalizations will not suffice to meet the act’s requirements.” 1993 U.S.C.C.A.N. at 1900. At the same time, courts must be mindful that “[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.” Price v. Johnston, 334 U.S. 266, 285 (1948). Under RFRA, the plaintiff bears the burden of demonstrating that a sincerely held religious belief has been substantially burdened by the government policies. Henderson v. Kennedy, 253 F.3d 12 (D.C. Cir. 2001); Jackson v. District
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of Columbia, 89 F. Supp.2d 48 (D.D.C. 2000). As set forth herein and for the reasons previously set forth in support of Defendant’s earlier motion seeking partial reconsideration (Docket No. 36), Plaintiff’s self-serving claims that he maintains a sincerely held religious belief are subject to substantial doubt. Therefore, if the Court is not inclined to grant summary judgment in favor of Defendants for the reasons reflected herein, the Court should reverse the partial summary judgment rendered in favor of Plaintiff and consider the sincerity of his claims to remain at issue in the litigation. II. SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS ON THE
ISSUE OF THE LEAST RESTRICTIVE MEANS IS WARRANTED A. Plaintiff’s Security Expert Has Recognized the Need to Control Wine in Prison. Plaintiff’s security expert, James Aiken, recognizes that there are security concerns in allowing alcohol in prison. Specifically, Mr. Aiken admits that allowing substantial amounts of wine in prison creates a security concern (Aiken Depo. at 24), that BOP must control the amount of wine inmates receive, (id. at 112), and that it is not always safe to give an inmate the amount of wine he wants. (Id. at 68-69, 81, 113). Mr. Aiken opines that generally allowing alcohol to prison inmates is not consistent with the security and good order of the institution. See Aiken Depo. at 68-69. Indeed, Mr. Aiken believes that giving an inmate possession of 3 to 5 ounces of wine raises a security concern. (id. at 25). Mr. Aiken explains that alcohol has to be controlled (id. at 80) because “[w]ine as with other substances, if not properly managed and controlled can be detrimental to the operation of the facility.” (Id. at 81). He asserts that inmates are more disruptive and potentially violent inmates when using alcohol (Id. at 9, 68, 81) and that allowing inmates alcohol threatens the security of the institution. (Id. 68, 81). Mr. Aiken never agreed
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with Plaintiff that the use of low alcohol wine in prison is consistent with security (id. at 68-70) and in fact recognizes that inmates generally should not possess wine in prison. (Id. at 77).
Mr. Aiken agrees with the general concept that prison administrators must anticipate problems and be proactive instead of reactive. (Id. at 47). He has even resorted to the BOP model and methods in attempting to fix correctional systems plagued with administrative deficiencies back in the 1990s when he was still working in prison. (Id. at 82-83). As the record demonstrates, Mr. Sample does not meet the elements necessary for the accommodation of a religious ritual involving the use of wine even under his expert’s theories.
Mr. Aiken developed a model to assess an inmate’s request for an intoxicant for religious purposes. He states that he would examine the following factors: (1) if the religion has a longstanding tradition (Id. at 89); (2) if the inmate has professed his religious faith (Id. at 90-91); (3) if the inmate adheres or complies with the mandates of his religion (Id.); (4) if the inmate exhibits good behavior while in prison (Id.); and finally, (5) the inmate’s reaction to the denial of his request. (Id.).
Mr. Aiken asserts that an inmate’s compliance with the mandates of his religion is one of the elements in favor of granting his request. (Id. at 90-91). In this case, Mr. Aiken’s assumptions that BOP should accommodate Plaintiff’s request are based on his understanding that inmate Sample has continued his participation in the Jewish religious rituals even after being denied his request for wine. (Id. at 90, 94-95). He describes Mr. Sample as an inmate trying to practice his religion. (Id. at 97). Unbeknownst to Mr. Aiken, however, inmate Sample has not continued to participate in the Jewish religious rituals. Inmate Sample now states that it is better not to observe the ritual at all rather than to practice the observance in what he calls the “wrong”
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way. (Sample Depo. at 107-108). Mr. Aiken concedes that in order to adopt a program in prison that would permit the
distribution of significant amounts of wine to prisoners, BOP would have to attempt to determine if the inmate is sincere in his beliefs. See Aiken Depo. at 89, 112, 133. In assessing an inmate’s sincerity, Mr. Aiken would consider the inmate’s criminal history, including the inmate’s Judgment and Commitment Order, Presentence Investigation Report, and prior convictions. (Id. at 103). Mr. Aiken would also look at the Court’s recommendations. (Id. at 61). When assessing the inmate’s sincerity, Mr. Aiken stated that he would also examine the absence of the kind of activity that led to the plaintiff’s incarceration, (id. at 104), in this case, fraud.
A review of Sample’s Judgment and Commitment Order reflects that the court issued a recommendation for the inmate’s participation in the BOP drug abuse program, which was designed for inmates with a drug addiction. The fact that the sentencing judge recommended drug abuse treatment in addition to Sample’s documented history of alcohol and drug use since an early age (see Presentence Investigative Report, at ¶¶ 82-84, filed as Exhibit 15 to the Pl.’s Cross-mot) is significant. Based on this information, Mr. Sample’s efforts to secure alcohol -ostensibly for his religious rituals -- is highly suspect.
Significantly, Mr. Aiken asserts that criteria to determine whether to accommodate religious rituals must be based on Jewish law, rather than some mere self-proclaimed desire for wine. (Aiken Depo. at 196-98). In determining how to accommodate an inmate’s religious practice, Mr. Aiken asserts that reliance on Jewish leaders in the community is part of the process. (Id. at 197). He confirms that having a staff member administer the wine is an acceptable way of ensuring a level of control over the wine. (Id. at 134). He also accepts that it
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is important to have someone knowledgeable of the religion present during the ritual. (Id. at 183, 193). Yet, Mr. Aiken acknowledges that there are limits to what inmates can have in prison. (Id. at 184). Mr. Aiken also asserts that in order to make accommodations he would also look at the general accepted practice in the United States. (Id. at 72).
In assessing accommodations for an inmate’s religious practices, the BOP acts in compliance with Mr. Aiken’s suggestions. See Aiken Depo. at 81-83. That is, the BOP policy tracks Mr. Aiken’s model on this point. BOP relies on Jewish leaders for information and guidance regarding religious accommodations in its prisons. Jewish texts are also consulted. The BOP policy requires that a clergy person authorized by the BOP be present during the rituals where wine is dispensed to inmates. The clergy person is knowledgeable about the rituals and requirements of the religion. See Program Statement 5360.09, Religious Beliefs and Practices 7B (December 31, 2004) (filed as Exhibit 9 of Pl.’s Cross-mot). BOP policy limits the amounts of wine an inmate can obtain to “small amounts of wine.” Id. The BOP has looked at the general accepted practice of Judaism in the United States. Many Jewish individuals consume grape juice or what plaintiff calls a “sip of wine.” (Sample Depo. at 41-42). The BOP offered Mr. Sample grape juice, a mixture of wine and grape juice (one drop of wine to 3 to 5 ounces of grape juice, and diluted wine (1 part of wine to 5 parts of water), which was consistent with the small amount of wine he might receive in the community. In the community, he would have gotten a sip of wine and that would be acceptable to him. (Id. at 42). In prison, however, Mr. Sample wants 3 to 5 ounces of wine, more than he would normally receive in the community thereby clearly reflecting the “child in a candy store effect” described by the defendants’ security expert.
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Even Plaintiff’s security expert agrees that a prisoner’s claims of conversations with God are not a reliable source of religious beliefs and practices. Mr. Aiken asserts that an inmate cannot do whatever he wants just because he says he had conversations with God. See Aiken Depo. at 80, 107-109, 113-17, 119-20, 133, 135. He also asserts that an inmate statement that his beliefs are based on his conversations with God “does not serve as a foundation for [inmate] being sincere.” (Id. at 116). Plaintiff’s expert would, in fact, be suspicious of something as unverifiable as an inmate’s assertion that the source of his beliefs are conversations with God. (Id. at 25 and 109). Mr. Aiken recognizes that in prison inmates lie to get benefits, (id. at 120), and specifically that inmates lie about the religious nature of their desire in order to get better food or food they like better. (Id. at 141). Indeed, Plaintiff himself has observed this to apply to approximately half of the prisoners on the religious food diet. Sample Depo. at 69.
Mr. Aiken supports the establishment of criteria to determine the accommodations an inmate would receive for his religious rituals. He states that criteria must not be based on an inmate’s assertion that he had conversations with God (Aiken Depo. at 196), but instead it should be based on Jewish law. The following exchange reflects his opinion:
Q. And the criteria is going to be based upon Jewish law, right? A. Based on Jewish law as well as how it is in relationship to operational practice. Q. But it’s not going to be dictated by the inmate saying “God told me I must have
something”? A. Of course. Q. It really will not? A. If an inmate comes to me and says “God told me to get 12 ounces,” you’re not
going to get it.
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Q. Okay. And you would think that would be appropriate under Bureau of Prisons’ policy?
A. Yes, sir. Aiken Depo. at 196.
Plaintiff, himself, has admitted that the basis for his claim to require wine, rather than any of the substitutes permitted by the Code of Jewish Law and by Rabbis he has consulted, is founded only on his, obviously uncorroborated, conversations with God. Sample Depo. at 31-35; see also id. at 107-08. Thus, the uncontested facts would not support the provision of wine to Mr. Sample, even if he could establish a sincerely held religious belief in the need for wine to practice his religion. Rather, the self-proclaimed religious need for wine by an inmate who has previously been required to undergo Alcoholics Anonymous, who has been recommended for drug abuse treatment, who admittedly enjoys alcohol and who has fraudulently sought to secure a prescription drug (codeine) in the past (Sample Depo. at 31-39, 58-59), cannot reasonably support the provision of significant amounts of wine in the prison setting in the face of the serious security concerns that it would pose. (See Aiken Depo. at 68-69, 81, 107-09, 112-17, 119-22, 132-35, 138-39).
B. Defendant’s Security Expert Also Establishes that Wine in Other than Small Amounts Presents a Serious Threat to the Secure and Orderly Running of Prisons.
David Rardin who worked in federal prisons for 28 years states that BOP policy is grounded on safety and security. (Rardin Depo. at 31). The accommodation of plaintiff’s request for wine presents a security problem even if its use were limited to Texarkana Camp. (Id. at 36). Courts consider whether there is a compelling governmental interest to apply the regulation to the individual plaintiff. Kikimura v. Harley, 242 F.3d 950, 962 (10th Cir. 2001).
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There are security concerns related to Sample’s own ability to conform and to control his impulses when he is under the influence of alcohol. (Id. at 38). He is requesting substantial amounts of wine. (Id. at 39). Just as RFRA recognizes the standard “should be interpreted with regard to the relevant circumstances in each case,” Mr. Rardin makes an important distinction in the allowance of wine in prison when he explains that “[t]he appropriateness of allowing considerable amounts of wine (3 to 5 ounces) is relative to location. While in the community 3 to 5 ounces is not much, in the prison setting 3 to 5 ounces on Friday nights and Saturday mornings is a substantial amount.” (Rardin Report, ¶ 8.3).
While there are serious concerns related to the plaintiff himself as outlined above, in a correctional environment, it is impossible to make security-based decisions in isolation, rather BOP must deal with the entire organization (Id. at 66) because, among other factors, what is approved for Mr. Sample, will ultimately be approved for thousands of inmates in BOP custody. (Id. at 36).10 See Turner v. Safley, 482 U.S. 78, 90 (1987)(“In 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. When 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 decision of corrections officials.”)
1. The Accommodation of Plaintiff’s Request would Require a Great Deal of Resources.
Mr. Rardin explains that accommodating Plaintiff’s request would have a major impact
10 Indeed, Mr. Sample recognizes that other inmates would try to get alcohol even if they do not have a religious reason for doing so. Sample Depo. at 61-62.
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on prison operations. He explains,
To give inmates substantial amounts of wine touches on every important aspect of prison life. Currently, the BOP has more than 3000 Jewish inmates incarcerated in one hundred and fourteen institutions throughout the federal system. To allow considerable amounts of wine would mean to have large amounts of wine in institutions with large concentrations of Jewish inmates. This would present a serious security threat. Large amounts of resources would have to be expended to safely store and distribute the large amounts of wine needed for the rituals and protect the religious practice from abuse. Moreover, the BOP would need to make major adjustments, including but not limited to the following: (1) develop and implement further correctional procedures to cover the acquisition, distribution, and secure storage of large amounts of wine; (2) major reallocation of staff resources since the wine would be offered on Fridays and Saturdays when the institutions already have fewer staff available; (3) provide greater supervision to guard the wine; and (4) provide intensive11 training for all staff.
(Rardin Report, ¶ 8.4). With approximately 3,000 inmates who identify themselves as Jewish
dispersed among the different institutions, the amount of wine that would have to be purchased,
stored, and dispensed every week in institutions with high concentrations of Jewish inmates
presents a challenge. Once you multiply the three to five ounces of wine for the two or possibly
three weekly rituals for hundreds, if not thousands, of inmates, the cost of the wine to the BOP is
exorbitant. In addition, the expenses related to the supervision and accommodation of the rituals
is significant. (Rardin Depo. at 47-48).
2. It Is Not Feasible for the BOP to Test an Inmate’s Sincerity in his Religious Beliefs
The BOP has no way to test the sincerity of an inmate’s beliefs. (Rardin Depo. at 53).
Forty percent of inmates who come into custody were under the influence of alcohol when
committing the crimes for which they are convicted. (Id. at 59). Thus, at least forty percent of
11All BOP staff is required to participate in Annual Refresher Training every year and receives training on religious matters. Chaplaincy Services staff receive intensive training and are the subject matter experts in religious matters within the BOP.
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the inmate population has an alcohol problem. It is highly predictable that inmates will change their religious preference in order to obtain wine. See Sample Depo. at 61-62. This is a major challenge to prison administrators.
Testing the inmates’ religious sincerity is not workable in the prison setting because, ... there are serious obstacles to the BOP design of a test to measure the ‘sincere beliefs’ of inmates. The different gradations of faith or spirituality in the test administrators may affect their judgment about the religious beliefs of inmates. The BOP should not get involved in determining ‘how committed are inmates to their faith.’ The BOP, however, is committed to providing inmates of all religious affiliations with reasonable and equitable opportunities to practice their beliefs, within the confines of the security of the institution and availability of resources. Rardin Report, ¶¶ 7-8; see also Sample Depo. at 69 (estimating that half of the prisoners participating in the religious diet program do so for reasons other than religion). BOP policy does not encourage or discourage inmates from changing their religious affiliations because it is not in the government’s interest to be involved in the inmates’ declaration of faith. (Rardin Depo. at 63). But, testing the sincerity of the inmate is not something that the BOP can effectively accomplish. Id.
3. Empowerment of an Inmate is not Appropriate in the Prison Setting
Wine is valuable and is deemed a currency in prison. See Rardin Depo. at 48; accord Sample Depo. at 61-62 (opining that other inmates would likely try to buy wine from Plaintiff). Mr. Sample would thus empower himself with the use of wine in the amounts he seeks for the religious rituals. He would be able to manipulate “currency” by showing other inmates how to get substantial amounts of wine. (Rardin Depo. at 52). And, if Mr. Sample does not succumb to pressure by other inmates, he may suffer retaliation. (Id. at 49). It is predictable that he will be
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victimized. (Id. at 50-51). Acts of retaliation and abuses by inmates upon inmates as well as on
staff, have long existed and will continue to exist. (Id. at 116).
As the BOP’s has explained:
From the prospective of prison management, when an inmate is able to empower himself in a special way and succeeds, he is perceived as a powerful inmate, one with an identity, by other inmates and staff. Not just to protect the government and prevent the use of wine in prison, but also from a prison administrator’s point of view, inmates should not empower themselves in leadership roles nor should they assume an identity of their own. Prison management is grounded on the principle that all inmates are treated and managed equally. In other words, while in prison, inmates do not have any authority or power over others. When an inmate is perceived by others to have power, not only does the inmate become a threat to the secure operation of the facility, but also becomes a potential target for extortion or coercion from other inmates. If he is unwilling to succumb to the pressure due to his status, there is a potential confrontational situation regardless of security level. Therefore, putting an inmate in a position of power by acquiescing to his demands is a threat to the management of the institution, the staff, the inmate population, and the inmate himself.
(Rardin Report, ¶ A1).
C. Defendants Have Established that The Limitations On Wine in Federal Prisons Meet the Least Restrictive Means Test Of The RFRA
BOP has met its burden under the least restrictive means test of RFRA. To accomplish
this task does not mean that prison officials must analyze every conceivable option in order to
satisfy this prong of RFRA. See Hamilton v. Schriro, 74 F.3d 1545, 1556 (8th Cir. 1996), cert.
denied 519 U.S. 874 (1996)(“It would be a herculean burden to require prison administrators to
refute every conceivable option in order to satisfy the least restrictive means prong of RFRA.
Moreover, such an onerous requirement would be irreconcilable with the well-established
principle, recognized by the Supreme Court and RFRA’s legislative history, that prison
administrators must be accorded due deference in creating regulations and policies directed at the
maintenance of prison safety and security.”). “Prisons are not required to allow inmates to
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Case 1:05-cv-00596-PLF Document 60 Filed 06/09/2008 Page 33 of 53
participate in any and all activities which the inmate may claim is based upon religious exercise.” Crocker v. Durkin, 159 F.Supp.2d 1258, 1278 (D.Kan. 2001) (citing Kikimura v. Harley, 242 F.3d 950,956 (10th Cir. 2001)).
Prison administrators examined different alternatives and offered what constituted the least restrictive means in their respective institutions.
(I) FCI Beaumont Low At the beginning of this litigation, plaintiff was housed at FCI Beaumont Low,8 where he was able to participate in all the rituals of his religion and even enjoyed a “leadership” position in the Jewish community. He filed his first administrative remedy request regarding the use of wine while at Beaumont Low. Plaintiff requested 3.5 ounces of Kosher red wine for Kiddush prayers on Friday nights and Saturday mornings and 4 glasses of 3.5 ounces of Kosher red wine for Passover Seder. (See Plaintiff’s Administrative Remedy Request and Appeals No. 349743 filed as Attachment A to Defendant’s Motion to Dismiss (hereinafter “First Remedy Request”)). The Warden explained that “[w]ine has been deemed a security issue at the institution and therefore is not provided to any religious faith for inmate consumption.” Id. Therefore, the Warden offered plaintiff the use of grape juice as a substitute for the wine. In so doing, the Warden consulted with the religious staff who confirmed that the use of grape juice was an accepted practice within the Jewish community. Jewish Law itself, upon which the BOP relies and which Plaintiff contends he follows (Pl.’s Compl. ¶ 9), provides grape juice as an alternative to celebrate the Kuddish and Passover Seder when wine is not available. See Handbook, at 4-7 and 6-20, respectively. (See also Stipulation of Rabbi Goldstein ¶ 4 filed as Exhibit 3 to Pl.’s
8 Plaintiff was housed at FCI Beaumont from April 8, 2003 through January 10, 2006. - 31 -

Case 1:05-cv-00596-PLF Document 60 Filed 06/09/2008 Page 34 of 53
Cross-mot). (ii) FCI Jesup Camp
Subsequently, Plaintiff was moved to FCI Jesup-Camp.9 While at Jesup Camp, he sent an Inmate Request to Staff Member dated April 13, 2006, addressed to the Warden. See Exhibit 5. At Jesup, he requested 3 to 5 ounces of red wine for Kiddush on Friday evenings and Saturday morning and four glasses of 3 to 5 ounces for the Passover Seders. See id. After examining the inmate’s request in light of the security of the institution, the Warden offered plaintiff nonalcoholic wine for both the Sabbath Services and the Passover Seders. See id. Plaintiff refused the non-alcoholic wine because it appeared he wanted it to be Kosher and the warden sought clarification about what plaintiff was seeking. See Inmate Request to Staff Member dated April 17, 2006, filed as Attachment 5 to the Defendant’s Motion To Dismiss As Moot, Or In The Alternative, To Reconsider Grant Of Partial Summary Judgment For Plaintiff And To Transfer And Opposition To The Plaintiff’s Motion For Reconsideration (“Def.’s Br.”). Plaintiff clarified he wanted Kosher red wine. See Inmate Requests to Staff Member dated April 20, 2006, May 1, 2006 and May 9, 2006 filed as Exhibits A, B and C to the Pl.’s Opp’n. The Warden neither denied nor granted his requests for the kosher alcoholic red wine, but gave the inmate the choice to await his response or to file an administrative remedy request since the Plaintiff’s request was still under evaluation in light of the security concerns at Jesup. See Inmate Request to Staff and Warden’s response, Exhibit C to Pl.’s Opp’n.
Plaintiff filed an administrative remedy request, No. 414949-F1, dated May 22, 2006, in
9 Plaintiff was housed at the FCI Jesup Camp from February 10, 2006, through October 15, 2007.
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Case 1:05-cv-00596-PLF Document 60 Filed 06/09/2008 Page 35 of 53
which he repeated his request to the warden. See Admin. Rem. Req. and Appeals No. 414949. The Warden explained that his request was still being assessed in light of the security of the institution and neither denied nor granted his request. Plaintiff filed a Regional Administrative Remedy Appeal and the Regional Director responded that “[t]he Warden at Jesup has decided to partially grant your request by offering you a blend of a small amount of kosher red wine (one drop) and three to five ounces of kosher grape juice for your religious rituals. I concur with the Warden’s determination.” Id.; see also Vazquez Depo. at 147 (“Going by what the program statement says, we found the least restrictive means to accommodate the inmate which is one drop [of wine] in three ounces of grape juice.”). Plaintiff also rejected this option and appealed to the Central Office. Central Office concurred with the Warden and the Regional Director and offered plaintiff the same blend of kosher grape juice with one drop of kosher red wine. See id.
(iii.) FCI Texarkana Camp Plaintiff was transferred to FCI Texarkana Camp on October 15, 2007, where he filed an administrative remedy request, dated December 3, 2007. Plaintiff requested 3 to 5 ounces of Kosher red wine for the Sabbath rituals on Friday evenings and Saturday mornings, and then added, the same amount of wine for Saturday evenings also. He also requests four cups of 3 to 5 ounces of kosher red wine during the two Passover Seders. See Admin. Rem. Req. and Appeals No. 475362. The Warden at Texarkana made the following offer to the plaintiff, [c]onsistent with your asserted religious needs and the facility’s duty to maintain security and good order, it has been determined to allow you to receive kosher grape juice, three ounces of kosher grape juice with a drop of low alcohol kosher wine; or a three-ounce mixture of a low-alcohol kosher wine and water, approximately one part wine and five parts water. If you desire the three-ounce water and wine mixture, the above grape juice options would be available for the other three glasses requested for the Passover Seders.
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Case 1:05-cv-00596-PLF Document 60 Filed 06/09/2008 Page 36 of 53
See id. This decision was upheld at both the regional and the central office levels. Plaintiff would not accept other alternatives based on the Code of Jewish Law. The Code
of Jewish Law provides alternatives to wine to observe the rituals such as grape juice, raisin wine, boiled wine, and bread alone. (Sample Depo. at 32-34). Plaintiff has asserted that these other alternatives are not acceptable to him.
The use of grape juice is acceptable under the Code of Jewish Law for the saying of Kiddush and Passover Seder. See Goldstein’s Stip., ¶¶ 4 and 8. Plaintiff asserts that he talked to two Rabbis, who indicated that grape juice was an acceptable alternative. (Sample Depo. at 3435). He also asserts that no Rabbi has ever told him that grape juice is unacceptable. (Id. at 35). However, Plaintiff disagrees with the Rabbis and rejects grape juice as an alternative. (Id. at 3132).
He asserts that raisin wine is not acceptable either. (Id. at 32-33). Plaintiff rejects boiled wine (id. at 33); and he has never discussed the raisin wine with a Rabbi. (Id. at 34). Plaintiff recognizes that wine is used during Jewish religious rituals if wine is available. (See Plaintiff’s Reply in Support of Cross-Motion for Summary Judgment at 5-6 (December 21, 2005)). Wine, however, is not available in prison. Thus, the Jewish religion envisions situations in which the wine is not available. In those situations, the ritual can still be observed and the prayers can be said over bread instead. (Goldstein Stip., ¶ 5). However, Plaintiff also rejects praying over bread alone.
Plaintiff’s “all or nothing” posture and escalating requests for wine undermine the sincerity of his position and actually bolsters the restriction on the amount of wine espoused by BOP policy. Security in a prison is not automatic simply because there are correctional staff.
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Case 1:05-cv-00596-PLF Document 60 Filed 06/09/2008 Page 37 of 53
There also have to be controls in place, policies that govern inmate behavior and set limitations on the kinds of activities in which inmates can engage. Statements of prison administrators, including plaintiff’s own security expert, bolster the justifications for the BOP to control the amounts of and the use of wine in prison. The alternatives offered to plaintiff further the government interest in preserving security in the nation’s prisons.
Plaintiff does not live in isolation; he lives in a prison system with thousands of inmates. Whatever accommodations are done for him, in time, will have to be extended to all Jewish inmates. This will no doubt have consequences for the rest of the institutions and inmate population. (See Rardin’s Report, ¶¶ 8.4-8.6).
If Plaintiff’s request were accommodated, the BOP’s limited resources which have been subject to even more reductions as a result of the war effort “would be stretched beyond their ability to effectively manage the facility.” (Rardin Depo. at 62-63). Accommodating Plaintiff’s practice would have a definite impact on the BOP’s ability to accommodate the religious practices of the rest of the inmate population as resources allocated for that purpose would be depleted. It is undeniable that an alternative means cannot be deemed as the least restrictive if “if it places additional burdens on other believers.” Hamilton, supra, at 1556. To find otherwise would be a very dangerous proposition.
One court explained that in order “[t]o meet the least restrictive means prison administrators generally ought to explore at least some alternatives, and their rejection should generally be accompanied by some measure of explanation.” Spratt v. Rhode Island Dept. Of
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Case 1:05-cv-00596-PLF Document 60 Filed 06/09/2008 Page 38 of 53
Corrections, 482 F.3d 33, 21 fn.11 (1st Cir. 2007).10 It is extremely difficult for prison administrators to evaluate and accommodate individual requests for special treatment under RFRA while maintaining the integrity of their policy. “The most effective and fair means of applying prison regulations is across the board to avoid resentment . . .” among inmates. Blanken v. Ohio Department of Rehabilitation and Correction, 944 F.Supp. 1359, 1368 (S.D. Ohio 1996). The BOP has justified the alternative means offered to Plaintiff based on the security of the institution as explained in the discussion on the government’s compelling interest in controlling wine consumption even if for religious purposes. First, BOP has carefully examined Plaintiff’s request in light of the prison’s security concerns. Second, Plaintiff refused any of the alternatives offered to him as he continued insisting on getting the substantial amounts of wine he seeks for the rituals and in fact, at least administratively, he has increased the amounts of wine he seeks on several occasions. Third, the BOP does not have the resources to make the kind of accommodation for wine that Plaintiff seeks.
10 Although Spratt was a case decided under RLUIPA, RFRA and RLUIPA apply essentially the same standards. See RLUIPA 42 U.S.C. § 2000cc et seq. Cf RFRA 42 U.S.C. §2000bb et seq.
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Case 1:05-cv-00596-PLF Document 60 Filed 06/09/2008 Page 39 of 53 CONCLUSION
For these reasons, summary judgment should be entered in favor of the Defendants. Respectfully submitted, JEFFREY A. TAYLOR, DC Bar #498610 United States Attorney RUDOLPH CONTRERAS, DC Bar #434122 Assistant United States Attorney /s/ W. MARK NEBEKER, DC Bar #396739 Assistant United States Attorney
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Case 1:05-cv-00596-PLF Document 60 Filed 06/09/2008 Page 40 of 53

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BRANDON SAMPLE, Plaintiff,
v. HARLEY LAPPIN, et al.,
Defendants.

) ) ) ) ) Civil Action No. 05-596 PLF ) ) ) ) )

DEFENDANTS’ STATEMENT OF MATERIAL FACTS AS TO WHICH THERE IS NO GENUINE DISPUTE

Defendants submit this statement of material facts as to which there are no genuine

disputes in accordance with Local Rule 7(h).

1. Plaintiff was convicted of a misdemeanor for attempting to obtain by fraud a

prescription for codeine which he wanted for resale. See Deposition Transcript of Brandon

Sample (“Sample Depo.”) (Exhibit 3) at 39.

2. Plaintiff was the mastermind of a conspiracy to commit money laundering, abetting

the possession of counterfeit security and aiding and abetting the possession of stolen mail matter

(Sample Depo. at 52; Plaintiff’s Discovery Responses, Admis. Nos. 1-3); and he is currently

serving a sentence of one hundred and sixty eight months in the custody of the Federal Bureau of

Prisons ("BOP"). Plaintiff’s Discovery Responses, Admis. No. 5.

3. The Judgment and Commitment Order reflects that the Court made a recommendation

to the BOP that Plaintiff participate in the Comprehensive Residential Drug Abuse Treatment

Program. Plaintiff’s Discovery Responses, Admis. Nos. 3 and 6; see also Judgment and

Commitment Order attached to Defendants’ Statement of Material Fact as to Which There is No

Case 1:05-cv-00596-PLF Document 60 Filed 06/09/2008 Page 41 of 53
Genuine Dispute attached to Defendants’ Motion to Dismiss or, in the Alternative for Summary Judgment or To Transfer (“Defendants’ Motion to Dismiss”).
4. In 2002, the BOP amended its policy to provide inmates may receive “small amounts of wine” as part of a religious ritual. See Program Statement 5360.08, Religious Beliefs and Practices (August 22, 2002) attached as Attachment C to Defendants’ Motion to Dismiss.
5. The Bureau of Prisons’ administrative remedy database reflects that while at Beaumont Low Plaintiff filed an Administrative Remedy Request # 349793, in which he requested at least 3.5 ounces of wine every Friday and Saturday for the Kuddish prayer and at least 3.5 ounces of wine four times during the Passover Seder, a request that was denied and which Plaintiff appealed to the Regional Director and then to the Central Office, where his appeal was also denied. The administrative remedy responses explained that the restriction on wine consumption for inmates is based on the need to maintain the secure and orderly running of the institution and the institution is utilizing Kosher grape juice as it is an acceptable substitute for wine according to Jewish law as confirmed by the Rabbi. See Administrative Remedy Request and Appeals 349793 as Attachment A to the Defendants’ Motion to Dismiss.
6. In his complaint, plaintiff stated that he “believes that he must drink at least 3.5 oz of red wine while saying Kiddush . . . during Friday night and Saturday shabbos services.” (Complaint, ¶ 9).
7. Plaintiff also stated that “he must drink four cups containing at least 3.5 ounces of wine during the Passover seder.” (Id., ¶ 10).
8. Plaintiff proclaimed this belief was dictated by “Jewish sages, the Code of Jewish Law,
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Case 1:05-cv-00596-PLF Document 60 Filed 06/09/2008 Page 42 of 53
and by practice.” Id. 9. Plaintiff has claimed to be “an observant Jew [who] practiced Judaism before his
incarceration . . .” (Id., ¶ 8). “For example, before his incarceration, plaintiff said Kiddush over wine during his Friday night and Saturday morning shabbos services.” Id.
10. Plaintiff contends that “he continue[d] his practice of Judaism while confined” frequently attending Jewish services and events. Id.
11. Plaintiff was the Jewish faith group representative while housed Beaumont Low. See Plaintiff’s Decl., ¶ 23 attached to Plaintiff’s Cross Motion for Summary Judgment and Response to Motion to Dismiss (“Plaintiff’s Cross-Mot”).
12. Prior to incarceration on or about June 12, 2000, Plaintiff attended the Congregation of Beth Yeshurun 2 or 3 times between 1998 and 2000. See Plaintiff’s Discovery Responses, Admis. Nos.14-15; Declaration of Bruce Plumley (“Plumley Decl.”)(Exhibit 4), ¶ 3.
13. Prior to incarceration, plaintiff participated in Kiddush no more than two or three times (Sample Depo. at 46), on those occasions he used red wine (id. at 47), and during the ritual he was the only person present. Id. at 101.
14. Plaintiff celebrated the ritual of Passover Seder at his home one or two times between 1998-2000, and he celebrated it according to his “own knowledge and understanding of how things work.” Id. at 99; see also Plaintiff’s Discovery Responses, Admis. No.7.
15. In 2000, Plaintiff did not partake in any observances and in 2001, he participated in an occasional Sabbath during the Summer months. (Plaintiff’s Discovery Responses, Inter. No. 17).
16. Plaintiff admits to being a social drinker. (Sample Depo. at 110-111). 17. Plaintiff filed his first administrative remedy request regarding a religious
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Case 1:05-cv-00596-PLF Document 60 Filed 06/09/2008 Page 43 of 53
accommodation on September 14, 2001. See Plumley Decl., ¶ 5. 18. Plaintiff enrolled in the religious diet in 2002. (Plaintiff’s Discovery Responses,
Admis. No. 19). 19. Plaintiff filed his first administrative remedy request for wine on August 31, 2004,
more than four years after being in custody; and BOP records reflect that prior to August 31, 2004, he had filed a total of one hundred and twenty eight administrative remedy requests. (Plumley Decl., ¶ 8).
20. Plaintiff changed the initial amount of wine (3.5 ounces, according to the Complaint) and now seeks to 3 to 5 ounces of wine for each ritual. See Pl.’s Cross-mot. at 3-4 and Plaintiff’s Decl., ¶ 2 (“It is my sincerely held religious belief that I must consume between 3 to 5 ounces of wine every Friday and Saturday during the saying of Kiddush . . . . and 3 to 5 ounces of wine four times during the Pesach . . . Seder.”).
21. Plaintiff changed his belief to 3 to 5 ounces of wine during the Passover Seders, increasing the rituals to two Seders. (See Inmate Request to Staff Member, April 13, 2006 attached as Exhibit 5; see also Plaintiff’s Discovery Responses, Inter. No. 11).
22. Upon Plaintiff’s arrival at FCI Jesup, he stated he participated in all the Jewish religious rituals. Plaintiff was an inmate representative for the other Jewish inmates. (Deposition Transcript of Chaplain Raymond Ortiz, 97:15-22, January 3, 2008, attached as Exhibit 8).
23. Plaintiff filed an Inmate Request to Staff Member requesting wine, and the warden offered him nonalcoholic wine, which Plaintiff refused. Plaintiff then filed an Administrative
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Case 1:05-cv-00596-PLF Document 60 Filed 06/09/2008 Page 44 of 53
Request and Appeal for wine, whereupon the Warden offered him one drop of wine in 3 to 5 ounces of grape juice, an offer concurred with by the Regional Director and Central Office. (See Administrative Remedy Request and Appeals 414949, attached as Exhibit 13).
24. Plaintiff arrived in Texarkana in 2007, and filed a new Administrative Remedy Request and Appeals for wine, following which the Warden offered Plaintiff the following alternatives: kosher grape juice; three ounces of kosher grape juice with a drop of low-alcohol kosher wine; or a three-ounce mixture of a low-alcohol kosher wine and water, approximately one part wine and five parts water. If plaintiff desired the three-ounce water and wine mixture, the above grape juice options would be available for the other three glasses requested for the Passover Seders. Plaintiff rejected these offers also. See Administrative Remedy Request and Appeals #475362 attached as Exhibit 6.
25. In December of 2007, plaintiff asserted that he had continued to participate in the Jewish rituals in spite of the denial of the wine. (Plaintiff’s Discovery Responses, Admis. No. 26) (Exhibit 2).
26. In February of 2008, plaintiff stated he was no longer saying kiddush while at Texarkana because he does not have wine and does not want to say it with grape juice or bread. (Sample Depo. at 78).
27. Plaintiff said that it is better not to participate in the rituals than to do it wrong. (Id. at 107-08).
28. Plaintiff explained that he participated in the rituals, not because of his “sincerely held belief”, but out of respect to other Jewish inmates and their beliefs. (Pl.’s Dep. 0079:4-12).
29. Plaintiff stated that, although other alternatives to wine were available to him
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Case 1:05-cv-00596-PLF Document 60 Filed 06/09/2008 Page 45 of 53
according to the Code of Jewish Law and according to Rabbis, God spoke to him about stopping his participation in the rituals (Sample Depo. at 78), and this is the reason why he has not participated in any rituals since his arrival at Texarkana. (Id. at 80).
30. According to Plaintiff, the source of his beliefs in the need for wine are his twenty or so conversations with God. (Id. at 31-33).
31. Regarding an inmate’s assertion that his purported need for wine is based on conversations with God, James Aiken, the Plaintiff’s own expert on prison security, has indicated that he would question any inmate whose purported religious need for wine was based on claimed discussions with God: “[a]nd certainly in this case, if that was said to me, to which it wasn’t, you know, that would cause negative -- more of a negative than a positive.” See Deposition Transcript of James Aiken (“Aiken Depo.“) (Exhibit 9) at 107-08.
32. Mr. Aiken further explains that if an inmate told him, “. . . ‘God talked to me last night,’ and I won’t doubt that, ‘And he says that I can have a bottle of wine in my cell to drink whenever I feel like it,’ I’m not going to grant that.” (Aiken Depo. at 21-24).
33. Indeed, Mr. Aiken asserts he would be suspicious of something as unverifiable as the assertion of having conversations with God to justify a request for wine in prison. (Aiken Depo. at 107-09).
34. Plaintiff claims to follow the teachings of Jewish sages (also referred to as Rabbis) and the Code of Jewish Law, but he follows his own interpretation of Judaism regardless of what the Rabbis say or the Code of Jewish Law states regarding any substitutions for wine in the Jewish religious rituals. See Sample Depo. at 18-19; 34-35.
35. Indeed, Plaintiff has stated he would not accept what a Rabbi tells him. (Id.).
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Case 1:05-cv-00596-PLF Document 60 Filed 06/09/2008 Page 46 of 53
36. James Aiken is not an expert in Jewish matters, but recognizes the need to assess prisoner’s requests only in light of the dictates of the Jewish religious leaders, rather than any selfserving statements of what the prisoner says God told him. See Aiken Depo. at 68-69, 89, 137-38.
36. It is an acceptable practice in the community, that while the person presiding over the rituals drinks the wine, others would just drink a sip of wine. (Sample Depo. at 41-42).
37. Plaintiff asserts that if he had some interaction with the Rabbi or staff presiding over the ritual and knew they were Jewish and sincere, it would be acceptable to him that the Rabbi or staff consume the wine on his behalf. (Id. at 44-45).
38. The Code of Jewish Law does not require that the participant know the person presiding the ritual. (Id. 43).
39. Plaintiff did not know the Rabbi in the synagogue he attended while in the community and who presided over the rituals. (Id. at 44).
40. Plaintiff states that although he has never participated in the ritual of havdalah, he now “believes” in getting 3-5 ounces of wine at the institutional level for this ritual in addition to the other weekly Sabbath Observances. (Sample Depo. at 88-89; see also Administrative Remedy Request 475362-F1).
41. Plaintiff readily admits that in the past, he has misrepresented facts to obtain benefits. (Sample Depo. at 51).
42. Plaintiff previously represented himself as a Baptist University student to obtain a credit card. (Id. at 50-51).
43. Plaintiff provided a “materially false statement to a law enforcement officer that significantly obstructed or impeded the official investigation [of the crime he was charged with].”
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Case 1:05-cv-00596-PLF Document 60 Filed 06/09/2008 Page 47 of 53
(Presentence Investigative Report, ¶48 attached as Exhibit 15 to the Plaintiff’s Cross-Mot.). 44. Plaintiff seeks to participate in the BOP drug treatment program (Sample Depo. at 38),
even though he states he does not have a substance abuse program and does not need treatment. (Id. at 60).
45. The BOP drug abuse treatment program was designed for non-violent offenders who are “determined to have a substance abuse problem,” (Program Statement 5330.10, Drug Abuse Programs Manual, Chapter 6, at 1 (June 26, 1995) , attached as Exhibit 10).
46. Jewish inmates can enroll in the religious diet, a religious diet which consists of more vegetables and fruits, which is perceived by inmates as a healthier diet. (Ortiz Depo. at 62-63).
47. Judaism is also the religion with the most days of work proscription, a total of 13 days in a year. (See Chaplaincy Services Guidance for the Recognition of Holy Days Calling for Work Proscription and Public Fast Days, attached as Exhibit 12).
48. Judaism does not require a particular percentage of alcohol for the celebration of the rituals. (Sample Depo. at 66 and Sample Depo. Exh. 5).
49. Plaintiff has consumed intoxicants and has used codeine (id. at 39:11-21), marijuana and cocaine since a young age. (See Presentence Report, ¶ 82-83).
50. Plaintiff also consumed wine and beer since age 15. (Id. , ¶ 82). 51. Plaintiff asserts that he participated in the rituals of his religion for most of his incarceration in spite of not having wine. (See Plaintiff’s Decl., ¶ 21; see also Plaintiff’s Discovery Responses, Admis. No. 26). 52. Plaintiff’s attitudes toward Judaism have not been affected by the denial of the wine. (Plaintiff’s Discovery Responses, Admis. No. 24).
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Case 1:05-cv-00596-PLF Document 60 Filed 06/09/2008 Page 48 of 53
53. The practice of Judaism allows for the use of wine if wine is available. (Plaintiff’s Reply in Support of Cross-Motion for Summary Judgment, at 5-6 (December 21, 2005)).
54. The BOP has accommodated many of the plaintiff’s request for religious accommodations. (Sample Depo. at 28-29).
55. BOP has not denied plaintiff any benefits because of his desire to seek wine for his religious rituals. (Plaintiff’s Discovery Responses, Admis. No. 28).
56. Plaintiff had an altercation with his cell mate over plaintiff’s refusal to assist his cell mate with a legal issue. (Sample Depo. at 63).
57. Allowing substantial amounts of wine in prison creates a security concern (Aiken Depo. at 24-25); and not all circumstances are safe to give an inmate the amount of wine he wants. (Id. at 113).
58. BOP must control the amount of wine inmates receive. (Id. at 112). 59. Alcohol consumption has to be controlled in prison. (Id. at 80). 60. Inmates are more disruptive and potentially violent inmates when using alcohol. (Id. at 9). 61. Even in a well operated facility, there are no guarantees that inmates will not commit violent actions. (Id. at 161). 62. Criteria to determine whether to accommodate religious rituals must be based on the law of the religion. (Id. at 196). 63. Reliance on religious leaders in the community is part of the process of assessing whether to accommodate a religious practice in prison. (Id. at 197). 64. It is important to have someone knowledgeable of the religion present during the
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Case 1:05-cv-00596-PLF Document 60 Filed 06/09/2008 Page 49 of 53
ritual. (Id. at 183, 193). 65. In order to accommodate a religious practice, prison administrators should look at the
general accepted practice in the United States. (Id. at 72). 66. An inmate’s statement that his beliefs are based on his conversations with God “does
not serve as a foundation for [the inmate] being sincere.” (Id. at 116). 67. In prison, inmates lie to get benefits. (Id. at 120). 68. Inmates lie about the religious nature of their desire in order to get better food or food
they like better. (Id. at 141; see also Sample Depo. at 69). 69. BOP policy is grounded on safety and security. (Deposition Transcript of David
Rardin at 31). 70. The provision of wine to plaintiff in the amounts he seeks would present a security
problem even if its use were limited to Texarkana Camp. (Rardin Depo. at 36). 71. There are security concerns related to Plaintiff’s own ability to conform and to control
his impulses when he is under the influence of alcohol. (Rardin Depo. at 38). 72. In the prison setting 3 to 5 ounces of wine on Friday nights and Saturday mornings is a
substantial amount. (Revised Expert Report of David Rardin, ¶ 8.3). 73. In a correctional environment, it is impossible to make assessments relating to security
based on an isolated inmate; rather, prison administrators have to deal with the entire organization (Rardin Depo. at 66) because, among other factors, what is approved for one inmate, will ultimately be approved for thousands of inmates in the BOP custody. (Id. at 36).
74. To give inmates substantial amounts of wine touches on every important aspect of prison life. (Rardin Report, ¶ 8.4).
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Case 1:05-cv-00596-PLF Document 60 Filed 06/09/2008 Page 50 of 53
75. With approximately 3,000 inmates who identify themselves as Jewish dispersed among the different institutions, the amount of wine that would have to be purchased, stored, and dispensed every week in institutions with high concentrations of Jewish inmates presents a challenge. (Id.)
76. Once the three to five ounces of wine for the two or possibly three weekly rituals is multiplied by the hundreds, if not thousands, of inmates, the cost of the wine to the BOP is exorbitant. (Id.)
77. The BOP has no effective method to test the sincerity of an inmate’s religious beliefs. (Rardin Depo. at 53; see also Plaintiff’s Depo. at 69).
78. Forty percent of inmates who come into custody were under the influence of alcohol when committing the crimes for which they are convicted. (Rardin Depo. at 59).
79. There is a significant difference between the use of tobacco and wine in religious rituals; tobacco is not an intoxicant. (Id. at 78).
80. There is nothing intoxicating about a job or the different jobs that may be desirable in prison (id. at 80); all inmates are required to work or they would be subject to punishment. (Id. at 80).
81. There is nothing intoxicating about intramural games or acting as a referee; such games and sports activities are supervised by the recreation specialist. (Id. at 106-07).
81. Dispensation of medication is very staff intensive and certain steps must be followed: the doctor’s medical evaluation of a health condition which requires medication (id. at 64-66); a license pharmacist filling the prescription; and either the pharmacist or a nurse dispensing the medication to the inmate and observing the inmate swallow the medication. (Id.) Inmates are
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Case 1:05-cv-00596-PLF Document 60 Filed 06/09/2008 Page 51 of 53
asked to stand in a line and medical staff will dispense medication and observe medication intake one inmate at a time. Correctional staff will monitor inmates after taking their medications. (Id. at 66).
82. Medications are used to control conditions that have been diagnosed with the use of objective criteria; for instance, psychotropic medications are used to calm inmates down and not to make them lose their inhibitions such as alcohol does. (Id. at 81).
83. In order to control abuse, a certain number of controlled substances are administered by injections. Rardin Depo. at 117; Deposition Transcript of Pharmacist Mark Rayburn at 27-28 (Exhibit 14).
84. BOP allows inmates the use of certain tools to perform their jobs, but classifies the tools and the inmates who use the tools, conducting threat assessments on the tool and the inmate based on his past behavior. See Rardin Depo. at 125 (Exhibit 11).
85. The BOP “ha[s] no ability to classify” [wine for religious consumption]. Id. 86. The BOP has the same concerns about drunken disruptive inmates at a camp that it has at a high security institution. (Id. at 35). 87. Regardless of the security level of the institution, the security problem lies with the person being incarcerated and what has to occur with the management of that wine; whether the institution is a high security facility or a minimum security it matters not. (Id. at 109). 88. In the restrictive prison environment, Plaintiff wants to know the sincerity of the person praying the kiddush; however, in the community, he did not even know the Rabbi in the
- 12 -

Case 1:05-cv-00596-PLF Document 60 Filed 06/09/2008 Page 52 of 53 synagogue he attended. (Sample Depo. at 44).
89. The Code of Jewish Law does not require that the participant know the person presiding the ritual. (Id. at 43).
Respectfully submitted, JEFFREY A. TAYLOR, DC Bar #498610 United States Attorney RUDOLPH CONTRERAS, DC Bar #434122 Assistant United States Attorney
/s/ W. MARK NEBEKER, DC Bar #396739 Assistant United States Attorney
- 13 -

Case 1:05-cv-00596-PLF Document 60 Filed 06/09/2008 Page 53 of 53
CERTIFICATE OF SERVICE I HEREBY CERTIFY that service of the foregoing Defendants’ Motion For Summary Judgment In Favor Of Defendants On The Issue Of The Least Restrictive Means And, In The Alternative, Renewed Motion For Reconsideration Of The Grant Of Partial Summary Judgment For Plaintiff and a proposed order has been made through the Court's electronic transmission facilities on this 9th day of June, 2008.
/s/ W. MARK NEBEKER, DC Bar #396739 Assistant United States Attorney Civil Division 555 4th Street, N.W. Washington, DC 20530 (202) 514-7230

Case 1:05-cv-00596-PLF Document 60-2 Filed 06/09/2008 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BRANDON SAMPLE, Plaintiff,
v. HARLEY LAPPIN, et al.,
Defendants.

) ) ) ) ) Civil Action No. 05-596 PLF ) ) ) ) )

ORDER

Upon consideration of Defendants’ Motion For Summary Judgment In Favor Of

Defendants On The Issue Of The Least Restrictive Means And, In The Alternative, Renewed

Motion For Reconsideration Of The Grant Of Partial Summary Judgment For Plaintiff, for the

reasons set forth by Defendants, and based upon the entire record herein, it is this ______ day of

________________, 2008

ORDERED that Defendants’ Motion For Summary Judgment In Favor Of Defendants On

The Issue Of The Least Restrictive Means And, In The Alternative, Renewed Motion For

Reconsideration Of The Grant Of Partial Summary Judgment For Plaintiff be and is hereby

granted; and it is

FURTHER ORDERED that judgment be and is hereby entered in favor of Defendants.

________________________________ UNITED STATES DISTRICT JUDGE

Case 1:05-cv-00596-PLF Document 60-2 Filed 06/09/2008 Page 2 of 2 copies to: W. MARK NEBEKER Assistant United States Attorney Civil Division 555 4th Street, N.W. Washington, DC 20530 ADAM NADELHAFT, ESQ. WINSTON & STRAWN, LLP 1700 K Street, N.W. Washington, DC 20006
- 2 -

 
 Case 1:05-cv-00596-PLF Document 67 Filed 09/24/2008 Page 1 of 7

FILED

BRANDON SAMPLE, Plaintiff,

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SEP 2 Ii 2008
NANCY M/IYER WHITTINGTON, CLERK
u.s. DISTRICT COURT

v.

Civil Action No. 05-596 PLF

HARLEY LAPPIN, Director, Federal Bureau of Prisons, et al.,

Defendants.

STIPULATION OF SETTLEMENT AND DISMISSAL All Parties to this action hereby enter into the following Stipulation of Settlement and Dismissal. In order to resolve the matters in dispute in the above-styled action without further litigation, expense, or delay, Plaintiff and Defendants (collectively, the «Parties n) unconditionally agree to the following terms: 1. Plaintiff and Defendants enter into this Stipulation of Settlement and Dismissal in order to make full and final settlement of any and all matters that Plaintiff raised in the above action with the Bureau of Prisons (nBOP"). Plaintiff agrees to accept the terms set forth herein in full satisfaction of any and all claims, demands, rights and causes of action of whatever kind and nature based upon the allegations in the Complaint up to the date of filing this Stipulation Of Settlement And Dismissal, including but not limited to the claims asserted, and those that could have been asserted, in the above-styled civil action.

Case 1:05-cv-00596-PLF Document 67 Filed 09/24/2008 Page 2 of 7
In particular, and without limitation, this settlement includes all possible claims for damages and equitable relief by Plaintiff against Defendants prior to and including the date that this Stipulation Of Settlement And Dismissal is filed. Further, and without limitation, this settlement includes all possible claims for attorney's fees and costs that Plaintiff incurred or may incur in connection with this litigation and any other proceeding involving the claims Plaintiff raised or could have raised in this action.
Plaintiff withdraws, with prejudice, the above-styled complaint and all other pending, existing or putative causes of action, charges, complaints and appeals against Defendants in any forum, whether administrative or judicial, relating to the claims for alcoholic wine, alcohol, matzah or challah bread while in prison. This Stipulation of Settlement and Dismissal constitutes the full, final and complete relief that Plaintiff may have for the conduct alleged in this action.
Except for ensuring compliance with the terms of this agreement as set forth in paragraph k below, Plaintiff agrees not to institute any other actions, charges, complaints, appeals or other proceedings against Defendants or any of the BOP's past or present employees, officers, agents or representatives concerning any claim for alcoholic wine, alcohol, matzah or challah bread while in prison.
- 2-

Case 1:05-cv-00596-PLF Document 67 Filed 09/24/2008 Page 3 of 7
Plaintiff releases Defendants and BOP's past and present employees, officers, agents and representatives concerning all matters related to his claim for alcoholic wine, alcohol, matzah or challah bread while in prison.
2. In consideration for the promises made herein, the Parties agree to take the following actions:
a) FCI Texarkana will spend up to $500 in religious materials on Judaism. Inmate Sample will provide the institution chaplaincy staff with a list of religious materials on Judaism he would like to be considered for purchase. Chaplaincy staff will purchase religious materials consistent with the established criteria for inclusion in the religious library. The purchased Jewish materials will be made accessible to Inmate Sample with the same limitations applicable to other inmates.
b) FCI Texarkana will provide Inmate Sample with challah bread (preferably round mini loaves) for his Friday night and Saturday morning Sabbath observances and Rosh Hashanah (two days once a year) .
c) FCI Texarkana is already providing Inmate Sample with Kosher Matzah bread fo~ Passover (2 times per year) and shall continue this practice barring unforeseen circumstances.
d) FCI Texarkana will p~ovide Inmate Sample with a cup of at least 3 liquid ounces of nonalcoholic wine for Friday evenings and Saturday mornings and evenings. During the two Passover
- 3-

Case 1:05-cv-00596-PLF Document 67 Filed 09/24/2008 Page 4 of 7
"
Seders, Fcr Texarkana will provide 4 cups of at least 3 liquid
ounces of nonalcoholic wine for Inmate Sample's consumption and a cup of at least 3 liquid ounces of nonalcoholic wine for the cup of Elijah during the two Passover Seders. Staff will dispose of the nonalcoholic wine in the cup of Elijah appropriately. The nonalcoholic wine provided to Inmate Sample pursuant to this agreement does not have to be kosher, but it should be a red nonalcoholic wine, such as the Ariel nonalcoholic wine or an equivalent that is not labeled simply "grape juice."
e) The nonalcoholic wine will be provided under this agreement only to Inmate Sample as he asserts it satisfies his own belief on the religious rituals and his overtures to settle this case.
f) A cup of at least 3 liquid ounces of the nonalcoholic wine will be provided to Inmate Sample on the first two days and the last two days of Sukkot, and the two days of Rosh Hashanah.
g) Upon arrival at a newly designated institution, Inmate Sample will provide a copy of the settlement agreement to the institution's Chaplaincy Services staff and afford them a reasonable amount of time to accommodate his practice, not to exceed sixty days, consistent with the terms of this settlement agreement. If Inmate Sample does not have a copy of the settlement agreement, he will submit a Request for Administrative Remedy advising Chaplaincy Services staff of the settlement
- 4-

Case 1:05-cv-00596-PLF Document 67 Filed 09/24/2008 Page 5 of 7
agreement. h) The BOP's performance of this settlement agreement may be
suspended while institution staff are responding to an emergency situation.
i) While Inmate Sample is in a Special Housing Unit, chaplaincy staff will make best efforts to accommodate his practices regarding the use of nonalcoholic wine and challah bread that are described in this settlement agreement, depending on the availability of resources, space, and staff.
j) The terms of this settlement agreement will not be in effect while Inmate Sample is in transit or otherwise in holdover status.
k) If Inmate Sample disagrees with the institution's accommodations of his religious practices regarding the nonalcoholic wine, challah or matzah bread, or purchase of materials related to Judaism by FC! Texarkana as described in this settlement agreement, he will first avail himself of the BOP's full administrative remedy procedures in order to have the matter reviewed. If, upon completion of the process, Inmate Sample is not satisfied and the practice is one required by the language of this agreement, Inmate Sample may seek enforcement of the term(s) with this Court, which shall retain jurisdiction of the matter solely to enforce the terms, consistent with the security of the institution where Plaintiff is housed and the
- 5-

Case 1:05-cv-00596-PLF Document 67 Filed 09/24/2008 Page 6 of 7
'.
requirements of the Religious Freedom Restoration Act ("RFRA"). 1) The terms of this settlement agreement are limited to the
current term of Plaintiff's incarceration. 3. This stipulation for compromise settlement shall not
constitute an admission of liability or fault on the part of Defendant or the Agency's past or present agents, employees, representatives or officers. The Parties enter into this stipulation solely for the purpose of compromising disputed claims and avoiding the expenses and risks of litigation.
4. Plaintiff acknowledges that he has read this entire agreement and that he understands all of its terms and conditions. Plaintiff acknowledges that his attorney has reviewed and explained the provisions of this agreement to him and that be has had sufficient time for this purpose.
5. Plaintiff acknowledges that he has entered into this Stipulation Of Settlement And Dismissal voluntarily and with the advice of counsel. Further, Plaintiff acknowledges that no one has imposed any undue hardship, duress or coercion in connection with the execution of this document.
6. The Parties agree that the terms expressly recited herein represent the entire compromise settlement and that the respective parties will each bear their own costs, fees, expenses and attorneys' fees. There are no terms or conditions to this agreement except those expressly stated herein. This agreement
- 6-

Case 1:05-cv-00596-PLF Document 67 Filed 09/24/2008 Page 7 of 7

may not be altered"modified, withdrawn, waived, rescinded or supplemented except by a written instrument executed by duly authorized representatives of both Parties.
WHEREFORE, these actions are hereby dismissed, subject only to the Court retaining jurisdiction as necessary to enforce the terms of this Stipulation of Settlement and Dismissal.
Respectfully submitted,

A~JfitJritSQ .
Winston & Strawn, LLP 1700 K Street, N.W. Washington, DC 20006 for Plaintiff
BRANDON sAMPLE

RERAS, DC Bar #434122

Assistant nited States ttorney

~

~~Y

W. MARK NEBEKER,
Assistant United States Attorney

SO ORDERED, this J-4)' day of ~~ ~ 2008.
c?~~ UNITED STATES~ ~E

- 7-

 
 Case 1:05-cv-00596-PLF Document 31 Filed 03/31/06 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________

)

BRANDON SAMPLE,

)

)

Plaintiff,

)

)

v.

)

)

HARLEY LAPPIN, et al.,

)

)

Defendants.

)

____________________________________)

Civil Action No. 05-0596 (PLF)

ORDER For the reasons stated in the accompanying Opinion, it is hereby ORDERED that defendants’ motion to dismiss [Dkt. #17] is GRANTED IN PART and DENIED IN PART. Plaintiff has no separate cause of action under the Religious Land Use and Institutionalized Persons Act. In all other respects the motion to dismiss is DENIED; it is FURTHER ORDERED that defendants’ motion for summary judgment [Dkt. #17] is GRANTED IN PART and DENIED IN PART. Defendants establish a compelling governmental interest in controlling alcohol consumption and intoxicants in BOP facilities. In all other respects, the summary judgment motion is DENIED WITHOUT PREJUDICE; it is FURTHER ORDERED that defendants’ motion to transfer [Dkt. #17] is DENIED WITHOUT PREJUDICE; it is FURTHER ORDERED that plaintiff’s cross-motion for summary judgment as to Count I [Dkt. #21] is GRANTED IN PART and DENIED IN PART. Plaintiff makes out a prima

Case 1:05-cv-00596-PLF Document 31 Filed 03/31/06 Page 2 of 2

facie case under the Religious Freedom Restoration Act, in that the application of BOP regulations barring his consumption of wine every Friday and Saturday during the saying of the Kiddush and during the Passover Seder substantially burdens the exercise of sincerely held religious beliefs. In all other respects the motion is DENIED WITHOUT PREJUDICE; it is
FURTHER ORDERED that plaintiff’s motion for further discovery pursuant to Rule 56(f) of the Federal Rules of Civil Procedure [Dkt. #19] is DENIED WITHOUT PREJUDICE; and it is
FURTHER ORDERED that the parties shall appear for a scheduling conference on April 19, 2006 at 9:00 a.m. in Courtroom 29A of the William B. Bryant Annex. The parties shall prepare a joint discovery plan meeting the requirements of Rule 16.3 of the Local Civil Rules of this Court and file it with the Court on or before April 12, 2006.
SO ORDERED.

DATE: March 31, 2006

/s/ PAUL L. FRIEDMAN United States District Judge

2

 
 Case: 1:05-cv-596 As of: 01/31/2009 01:53 PM EST 1 of 9
CLOSED, PROSE−PR, TYPE−F
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:05−cv−00596−PLF

SAMPLE v. LAPPIN et al Assigned to: Judge Paul L. Friedman Cause: 42:1983 Prisoner Civil Rights
Plaintiff BRANDON C. SAMPLE

Date Filed: 03/22/2005 Date Terminated: 09/24/2008 Jury Demand: None Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: U.S. Government Defendant
represented by Adam S. Nadelhaft WINSTON &STRAWN, LLP 1700 K Street, NW Washington , DC 20006 (202) 282−5883 Email: anadelhaft@winston.com ATTORNEY TO BE NOTICED

V. Defendant HARLEY LAPPIN In their official capacities
Defendant HARRELL WATTS In their official capacities

represented by William Mark Nebeker U.S. ATTORNEY'S OFFICE 555 4th Street, NW Washington , DC 20530 (202) 514−7230 Fax: (202) 514−8780 Email: mark.nebeker@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William Mark Nebeker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 03/22/2005 03/22/2005 03/22/2005 03/22/2005
03/22/2005 04/01/2005

# Docket Text
1 COMPLAINT against HARLEY LAPPIN, HARRELL WATTS (Filing fee $ 0.00) filed by BRANDON SAMPLE.(jf, ) (Entered: 03/31/2005)
2 MOTION for Leave to Proceed in forma pauperis by BRANDON SAMPLE. (jf, ) (Entered: 03/31/2005)
3 PRISONER TRUST FUND ACCOUNT STATEMENT by BRANDON SAMPLE (jf, ) (Entered: 03/31/2005)
4 ORDER Directing Monthly Payments in the amount of $16.32 be made from Prison Account of Brandon Sample; granting motion to proceed in forma pauperis 2 . Signed by Chief Judge Thomas F. Hogan on 03/14/05. (jf, ) (Entered: 03/31/2005)
SUMMONS Not Issued as to HARLEY LAPPIN, HARRELL WATTS (jf, ) (Entered: 04/11/2005)
5 ORDER that the Clerk of the Court, pursuant to Local Civil Rule 83.11, shall appoint counsel to represent plaintiff in this matter. Signed by Judge Paul L. Friedman on April 1, 2005. (MA) (Entered: 04/01/2005)

Case: 1:05-cv-596 As of: 01/31/2009 01:53 PM EST 2 of 9

04/05/2005 04/14/2005 04/14/2005 05/06/2005 05/06/2005 05/20/2005 05/20/2005
06/02/2005
06/03/2005
06/09/2005 06/09/2005 06/16/2005 06/20/2005 07/06/2005 07/19/2005 08/08/2005
08/10/2005

SUMMONS (4) Issued as to HARLEY LAPPIN, HARRELL WATTS, U.S. Attorney and U.S. Attorney General (jf, ) (Entered: 04/06/2005)
6 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the US Attorney served on 4/13/2005, answer due 6/13/2005. (td, ) (Entered: 04/18/2005)
7 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on Attorney General. Date of Service Upon Attorney General 4/13/05. (td, ) (Entered: 04/18/2005)
8 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to HARLEY LAPPIN served on 5/5/2005, answer due 7/5/2005. (td, ) (Entered: 05/09/2005)
9 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to HARRELL WATTS served on 5/5/2005, answer due 7/5/2005. (td, ) (Entered: 05/09/2005)
10 NOTICE of Appearance by William Mark Nebeker on behalf of HARLEY LAPPIN, HARRELL WATTS (Nebeker, William) (Entered: 05/20/2005)
11 MOTION to Amend/Correct 4 Order Directing Prisoner Payment, 5 Order by HARLEY LAPPIN, HARRELL WATTS. (Attachments: # 1 Text of Proposed Order # 2 Exhibit CA _02_265 documents# 3 Exhibit CA 02−428 documents# 4 Exhibit CA 03−805 documents)(Nebeker, William) (Entered: 05/20/2005)
12 ORDER denying 11 defendants' motion to amend the court's orders granting plaintiff's motion for leave to proceed in forma pauperis and granting relief under Local Rule 83.11. Signed by Judge Paul L. Friedman on June 2, 2005. (MA) (Entered: 06/02/2005)
13 RESPONSE to 11 defendant's motion to amend the court's orders granting plaintiff's motion for leave to proceed IFP and granting relief under Local Rule 83.11 filed by BRANDON SAMPLE. (Attachments: # 1 Text of Proposed Order)(td, ) (Entered: 06/03/2005)
14 NOTICE of Appearance by Adam S. Nadelhaft on behalf of BRANDON SAMPLE (Nadelhaft, Adam) (Entered: 06/09/2005)
15 MOTION for Extension of Time to File Answer by HARLEY LAPPIN, HARRELL WATTS. (Attachments: # 1 Text of Proposed Order)(Nebeker, William) (Entered: 06/09/2005)
MINUTE ORDER granting 15 Motion for Extension of Time to Answer. Signed by Judge Paul L. Friedman on June 16, 2005. (MA) (Entered: 06/16/2005)
ORDER granting defendants' motion for enlargement of time up to and including July 8, 2005 to respond to the complaint. Signed by Judge Paul L. Friedman on June 20, 2005. (MA) (Entered: 06/20/2005)
16 Unopposed MOTION for Extension of Time to File Answer re 1 Complaint by HARLEY LAPPIN, HARRELL WATTS. (Attachments: # 1 Text of Proposed Order)(Nebeker, William) (Entered: 07/06/2005)
MINUTE ORDER granting 16 defendants' unopposed motion for enlargement of time up to and including August 8, 2005 to respond to the complaint. Signed by Judge Paul L. Friedman on July 19, 2005. (MA) (Entered: 07/19/2005)
17 MOTION to Dismiss Or, In The Alternative, MOTION for Summary Judgment or, MOTION to Transfer Case by HARLEY LAPPIN, HARRELL WATTS. (Attachments: # 1 Exhibit 1 (Inmate History Religion)# 2 Exhibit 2 (Administrative Remedy Forms)# 3 Exhibit 3 (J4 Affidavit Watts# 5 Affidavit Thomas# 6 Affidavit VanBaalen# 7 Exhibit PS5360.07# 8 Exhibit PS5360.08# 9 Exhibit ps5360.09# 10 Text of Proposed Order)(Nebeker, William) (Entered: 08/08/2005)
18 MOTION for Extension of Time to File Response/Reply as to 17 MOTION to Dismiss Or, In The Alternative MOTION for Summary Judgment or MOTION for Summary Judgment or MOTION to Transfer Case MOTION to Transfer Case by BRANDON SAMPLE. (Attachments: # 1 Text of Proposed Order)(Nadelhaft, Adam) (Entered:

Case: 1:05-cv-596 As of: 01/31/2009 01:53 PM EST 3 of 9

08/12/2005 09/29/2005 09/29/2005
09/29/2005 10/03/2005 10/07/2005 10/11/2005
10/26/2005 10/27/2005
11/18/2005 11/21/2005 11/21/2005
11/23/2005

08/10/2005)
MINUTE ORDER granting 18 Motion for Extension of Time to File Response/Reply re 18 . Signed by Judge Paul L. Friedman on August 12, 2005. (MA) (Entered: 08/12/2005)
19 First MOTION for Discovery Motion for Additional Discovery by BRANDON SAMPLE. (Attachments: # 1 Exhibit Exhibit 1# 2 Text of Proposed Order)(Nadelhaft, Adam) (Entered: 09/29/2005)
20 Memorandum in opposition to motion re 17 filed by BRANDON SAMPLE. (Attachments: # 1 Text of Proposed Order # 2 Memorandum in Support of Cross Motion# 3 Exhibit 1# 4 Exhibit 2# 5 Exhibit 3# 6 Exhibit 4# 7 Exhibit 5# 8 Exhibit 6# 9 Exhibit 7# 10 Exhibit 8# 11 Exhibit 9# 12 Exhibit 10# 13 Exhibit 11# 14 Exhibit 12# 15 Exhibit 13# 16 Exhibit 14# 17 Exhibit 15# 18 Plaintiff's Statement of Facts as to Which No Genuine Issues Exists# 19 Plaintiff's Statement of Facts as to Which Genuine Issues Exist)(Nadelhaft, Adam) (Entered: 09/29/2005)
21 MOTION for Summary Judgment as to count 1 by BRANDON SAMPLE. (SEE DOCUMENT NO. 20 FOR IMAGE) (td, ) (Entered: 09/30/2005)
22 NOTICE of Filing of Signed Declaration of Brandon Sample by BRANDON SAMPLE re 21 MOTION for Summary Judgment (Attachments: # 1 Exhibit 1)(Nadelhaft, Adam) (Entered: 10/03/2005)
23 Unopposed MOTION for Extension of Time to File Response/Reply as to 19 First MOTION for Discovery Motion for Additional Discovery, 21 MOTION for Summary Judgment, 20 Memorandum in Opposition,, by HARLEY LAPPIN, HARRELL WATTS. (Attachments: # 1 Text of Proposed Order)(Nebeker, William) (Entered: 10/07/2005)
MINUTE ORDER granting 23 defendants' unopposed motion for enlargement of time up to and including October 27, 2005 to within which to respond to plaintiff's cross−motion for partial summary judgment and to plaintiff's motion for discovery, and reply to plaintiff's response to defendants' motion to dismiss or, alternatively, for summary judgment. Signed by Judge Paul L. Friedman on October 11, 2005. (MA) (Entered: 10/11/2005)
24 Unopposed MOTION for Extension of Time to File Response/Reply as to 19 First MOTION for Discovery Motion for Additional Discovery, 21 MOTION for Summary Judgment, 20 Memorandum in Opposition,, by HARLEY LAPPIN, HARRELL WATTS. (Attachments: # 1 Text of Proposed Order)(Nebeker, William) (Entered: 10/26/2005)
MINUTE ORDER granting 24 defendants' unopposed motion for enlargement of time up to and including November 18, 2005 within which defendants may reply to plaintiff's response to defendants' motion to dismiss or, in the alternative, for summary judgment, oppose plaintiff's cross−motion for partial summary judgment, and oppose plaintiff's motion for discovery. Signed by Judge Paul L. Friedman on October 27, 2005. (MA) (Entered: 10/27/2005)
25 MOTION for Extension of Time to reply and oppose by HARLEY LAPPIN, HARRELL WATTS. (Attachments: # 1 Text of Proposed Order)(Nebeker, William) (Entered: 11/18/2005)
26 RESPONSE to Defendants' Motion for Enlargement of Time filed by BRANDON SAMPLE. (Attachments: # 1 Text of Proposed Order)(Nadelhaft, Adam) (Entered: 11/21/2005)
MINUTE ORDER granting 25 defendants' motion for enlargement of time up to and including November 23, 2005 to respond to plaintiff's cross−motion for partial summary judgment and to plaintiff's motion for discovery, and to reply to plaintiff's response to defendants' motion to dismiss or in the alternative for summary judgment. Signed by Judge Paul L. Friedman on November 21, 2005. (MA) (Entered: 11/21/2005)
27 REPLY to opposition to motion re 21 Opposition To Cross−Motion and Response to Statement of Material Facts. filed by HARLEY LAPPIN, HARRELL WATTS.

Case: 1:05-cv-596 As of: 01/31/2009 01:53 PM EST 4 of 9

11/23/2005 12/21/2005 12/21/2005 03/31/2006
03/31/2006 04/07/2006 04/12/2006 04/14/2006 04/14/2006 04/27/2006
04/27/2006 05/01/2006
05/10/2006 05/11/2006
05/22/2006

(Nebeker, William) (Entered: 11/23/2005)
28 Memorandum in opposition to motion re 19 for Discovery filed by HARLEY LAPPIN, HARRELL WATTS. (Nebeker, William) (Entered: 11/23/2005)
29 REPLY to opposition to motion re 19 Additional Discovery filed by BRANDON SAMPLE. (Nadelhaft, Adam) (Entered: 12/21/2005)
30 REPLY to opposition to motion re 21 Summary Judgment filed by BRANDON SAMPLE. (Attachments: # 1 Exhibit A)(Nadelhaft, Adam) (Entered: 12/21/2005)
31 ORDER granting in part and denying in part 17 Motion to Dismiss, granting in part and denying in part 17 Motion for Summary Judgment, denying Motion to Transfer Case 17 , denying 19 Motion for Discovery, granting in part and denying in part 21 Motion for Summary Judgment. Signed by Judge Paul L. Friedman on March 31, 2006. (MA) (Entered: 03/31/2006)
32 OPINION re defendant's motion to dismiss and on the parties' cross−motion for summary judgment. A separate order to this effect shall issue this same day. Signed by Judge Paul L. Friedman on March 31, 2006. (MA) (Entered: 03/31/2006)
33 MOTION for Reconsideration re 32 Memorandum &Opinion by BRANDON SAMPLE. (Attachments: # 1 Memorandum of Points and Authorities in Support of Motion for Reconsideration# 2 Text of Proposed Order)(Nadelhaft, Adam) (Entered: 04/07/2006)
34 MEET AND CONFER STATEMENT. (Nebeker, William) (Entered: 04/12/2006)
MINUTE ORDER: It is hereby ORDERED that the Scheduling Conference set for April 19, 2006 at 9:00 a.m. is CANCELLED . Signed by Judge Paul L. Friedman on 4/14/06. (ms, ) (Entered: 04/14/2006)
35 ORDER setting briefing schedule for motions. Signed by Judge Paul L. Friedman on 4/14/06. (ms, ) (Entered: 04/14/2006)
36 MOTION to Dismiss As Moot Or, In The Alternative, MOTION for Summary Judgment To Reconsider Grant Of Partial Summary Judgment For Plaintiff And, MOTION to Transfer Case And Opposition To The Plaintiff's Motion For Reconsideration by HARLEY LAPPIN, HARRELL WATTS. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Errata 3# 4 Exhibit 4# 5 Exhibit 5# 6 Text of Proposed Order)(Nebeker, William) (Entered: 04/27/2006)
37 Memorandum in opposition to re 33 MOTION for Reconsideration re 32 Memorandum &Opinion filed by HARLEY LAPPIN, HARRELL WATTS. (Nebeker, William) (Entered: 04/27/2006)
38 NOTICE Of Filing (Declaration of Alma Lopez) by HARLEY LAPPIN, HARRELL WATTS re 37 Memorandum in Opposition, 36 MOTION to Dismiss As Moot Or, In The Alternative MOTION for Summary Judgment To Reconsider Grant Of Partial Summary Judgment For Plaintiff And MOTION for Summary Judgment To Reconsider Grant Of Partial Summary Judgment For Plaintiff And MOTION to Transfer Case And Opposition To The Plaintiff's Motion For Reconsideration MOTION to Transfer Case And Opposition To The Plaintiff's Motion For Reconsideration (Attachments: # 1 Exhibit Declaration of Alma Lopez)(Nebeker, William) (Entered: 05/01/2006)
39 Unopposed MOTION for Extension of Time to File Response to Defendants' Motion to Dismiss as Moot by BRANDON C. SAMPLE. (Attachments: # 1 Text of Proposed Order)(Nadelhaft, Adam) (Entered: 05/10/2006)
MINUTE ORDER granting 39 Motion for Extension of Time to File Response to 36 Defendants' Motion to Dismiss as Moot or, in the Alternative, to Reconsider Grant of Partial Summary Judgment for Plaintiff. Plaintiff shall file a response by 5/22/2006. Signed by Judge John D. Bates for Judge Paul L. Friedman on 5/11/2006. (lcplf1) (Entered: 05/11/2006)
40 RESPONSE re 36 Defendants' Motion to Dismiss as Moot or, in the Alternative, to Reconsider Grant of Partial Summary Judgment for Plaintiff and to Transfer filed by BRANDON C. SAMPLE. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4

Case: 1:05-cv-596 As of: 01/31/2009 01:53 PM EST 5 of 9

05/22/2006 06/07/2006
06/12/2006 07/14/2006
07/21/2006
09/27/2006 11/27/2006 03/28/2007 03/28/2007 03/29/2007 04/02/2007 04/02/2007 04/16/2007 04/18/2007

Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H)(Nadelhaft, Adam) Modified on 5/23/2006 (td, ). (Entered: 05/22/2006)
41 RESPONSE re 33 in Support of Motion for Reconsideration filed by BRANDON C. SAMPLE. (Nadelhaft, Adam) Modified on 5/23/2006 (td, ). (Entered: 05/22/2006)
42 Unopposed MOTION for Extension of Time to File Response/Reply as to 36 MOTION to Dismiss As Moot Or, In The Alternative MOTION for Summary Judgment To Reconsider Grant Of Partial Summary Judgment For Plaintiff And MOTION for Summary Judgment To Reconsider Grant Of Partial Summary Judgment For Plaintiff And MOTION to Transfer Case And Opposition To The Plaintiff's Motion For Reconsideration MOTION to Transfer Case And Opposition To The Plaintiff's Motion For Reconsideration by HARLEY LAPPIN, HARRELL WATTS. (Attachments: # 1 Text of Proposed Order)(Nebeker, William) (Entered: 06/07/2006)
MINUTE ORDER granting 42 defendants' unopposed motion for extension of time up to and including July 14, 2006 to file a reply to plaintiff's opposition to defendants' motion to dismiss. Signed by Judge Paul L. Friedman on June 12, 2006. (MA) (Entered: 06/12/2006)
43 REPLY to opposition to motion re 36 MOTION to Dismiss As Moot Or, In The Alternative MOTION for Summary Judgment To Reconsider Grant Of Partial Summary Judgment For Plaintiff And MOTION for Summary Judgment To Reconsider Grant Of Partial Summary Judgment For Plaintiff And MOTION to Transfer Case And Opposition To The Plaintiff's Motion For Reconsideration MOTION to Transfer Case And Opposition To The Plaintiff's Motion For Reconsideration filed by HARLEY LAPPIN, HARRELL WATTS. (Attachments: # 1 Exhibit 1 (5/22/06 Request For Administrative Remedy)# 2 Exhibit 2 (Schluter Declaration))(Nebeker, William) (Entered: 07/14/2006)
According to the Court's records, plaintiff has now paid the filing fee in full, as ordered by the Court at the initiation of this action. The office having custody and direction of plaintiff's prison account is directed to deduct nothing further from plaintiff's prison account for payment of the filing fee for this case. Receipt No. 6346 ($209.87 paid 6/23/06) (adc) (Entered: 07/21/2006)
44 NOTICE of Filing by BRANDON C. SAMPLE (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4)(Nadelhaft, Adam) (Entered: 09/27/2006)
45 NOTICE of Filing by BRANDON C. SAMPLE (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(Nadelhaft, Adam) (Entered: 11/27/2006)
46 MEMORANDUM OPINION AND ORDER denying 33 Motion for Reconsideration; denying 36 Motion to Dismiss; denying 36 Motion for Summary Judgment; denying Motion to Transfer Case 36 . Signed by Judge Paul L. Friedman on March 28, 2007. (MA) (Entered: 03/28/2007)
Set/Reset Hearings: Status Conference set for 4/27/2007 @ 09:15 AM in Courtroom 29A before Judge Paul L. Friedman. (mm) (Entered: 03/29/2007)
47 Unopposed MOTION to Continue /Reset Date of Status Conference by BRANDON C. SAMPLE (Attachments: # 1 Text of Proposed Order)(Nadelhaft, Adam) (Entered: 03/29/2007)
MINUTE ORDER granting 47 plaintiff's unopposed motion to reset the date of the status conference currently scheduled for April 27, 2007. The status conference is continued to April 25, 2007 at 915 a.m. Signed by Judge Paul L. Friedman on April 2, 2007. (MA) (Entered: 04/02/2007)
Set/Reset Hearings: Status Conference set for 4/25/2007 @ 09:15 AM in Courtroom 28A before Judge Paul L. Friedman. (mm) (Entered: 04/03/2007)
48 ANSWER to Complaint by HARLEY LAPPIN, HARRELL WATTS. Related document: 1 Complaint.(Nebeker, William) (Entered: 04/16/2007)
49 MEET AND CONFER STATEMENT. (Attachments: # 1 Text of Proposed Order)(Nebeker, William) (Entered: 04/18/2007)

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04/25/2007 04/25/2007 04/25/2007 04/25/2007
05/02/2007 05/02/2007
05/02/2007 07/25/2007
10/12/2007 10/15/2007
10/15/2007 11/19/2007 11/21/2007 11/21/2007 01/18/2008 01/23/2008 01/23/2008

Minute Entry for proceedings held before Judge Paul L. Friedman: Status Conference held on 4/25/2007. Scheduling Order to enter. Next status conference set for 7/30/2007 @ 9:30 a.m. (Court Reporter Linda Russo.) (mm) (Entered: 04/25/2007)
Set/Reset Hearings: Status Conference set for 7/30/2007 @ 09:30 AM in Courtroom 29A before Judge Paul L. Friedman. (mm) (Entered: 04/25/2007)
50 ORDER re schedule. Signed by Judge Paul L. Friedman on April 25, 2007. (MA) (Entered: 04/25/2007)
Set/Reset Scheduling Order Deadlines: Plaintiff's Rule 26(a)(2) expert reports due by 7/31/2007; Defendant's Rule 26(a)(2) expert reports due by 10/1/2007; Plaintiff shall serve rebuttal expert reports by 10/31/2007; Discovery due by 11/30/2007; Dispositive Motions due by 7/31/2008; Response to Dispositive Motions due by 3/17/2008; Replies to Dispositive Motions due by 4/7/2008; Cross Motions due by 3/17/2008; Response to Cross Motions due by 4/7/2008; Replies to Cross Motions due by 4/28/2 (mm) (Entered: 04/26/2007)
51 Unopposed MOTION to Reset Date of Status Conference by BRANDON C. SAMPLE (Attachments: # 1 Text of Proposed Order)(Nadelhaft, Adam) (Entered: 05/02/2007)
MINUTE ORDER granting 51 plaintiff's unopposed motion to reset the date of the status conference of July 30, 2007. The status conference is now rescheduled from July 30, 2007 to July 25, 2007 at 9:15 a.m. Signed by Judge Paul L. Friedman on May 2, 2007. (MA) (Entered: 05/02/2007)
Set/Reset Hearings: Status Conference set for 7/25/2007 @ 09:15 AM in Courtroom 29A before Judge Paul L. Friedman. (mm) (Entered: 05/03/2007)
Minute Entry for proceedings held before Judge Paul L. Friedman: Status Conference held on 7/25/2007. Plaintiff's expert reports due by 8/7/2007; Defendant's expert reports due by 10/8/2007; Rebuttal expert reports due 11/9/2007. Court Reporter Linda Russo) (mm) (Entered: 07/25/2007)
52 MOTION for Extension of Time to Complete Discovery And Submit Expert Reports by HARLEY LAPPIN, HARRELL WATTS (Attachments: # 1 Text of Proposed Order)(Nebeker, William) (Entered: 10/12/2007)
MINUTE ORDER granting 52 defendants' motion for extension of time up to and including November 21, 2007 within which defendants may submit expert reports; plaintiff's rebuttal expert reports shall be submitted within 30 days thereafter, and depositions of experts may be conducted up to and including January 15, 2008. Signed by Judge Paul L. Friedman on October 15, 2007. (MA) (Entered: 10/15/2007)
Set/Reset Deadlines: Defendant's expert reports due by 11/21/2007. Plaintiff's rebuttal expert reports shall be submitted within 30 days thereafter, and depositions of experts may be conducted up to and including 1/15/2008. (mm) (Entered: 10/18/2007)
53 Unopposed MOTION for Extension of Time to Complete Discovery by HARLEY LAPPIN, HARRELL WATTS (Attachments: # 1 Text of Proposed Order)(Nebeker, William) (Entered: 11/19/2007)
MINUTE ORDER granting 53 defendants' unopposed motion for extension of time up to and including January 18, 2008 to complete discovery. Signed by Judge Paul L. Friedman on November 21, 2007. (MA) (Entered: 11/21/2007)
Set/Reset Deadlines: Discovery due by 1/18/2008. (mm) (Entered: 11/21/2007)
54 Joint MOTION for Extension of Time to Complete Discovery by BRANDON C. SAMPLE, HARLEY LAPPIN, HARRELL WATTS (Attachments: # 1 Text of Proposed Order)(Nadelhaft, Adam) (Entered: 01/18/2008)
MINUTE ORDER granting 54 joint motion for extension of time up to and including March 7, 2008 to complete discovery. Signed by Judge Paul L. Friedman on January 23, 2008. (MA) (Entered: 01/23/2008)
Set/Reset Deadlines: Discovery due by 3/7/2008. (mm) (Entered: 01/24/2008)

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04/01/2008 04/03/2008 04/03/2008 05/12/2008 05/13/2008 05/13/2008 05/27/2008 05/29/2008 05/29/2008 06/04/2008 06/09/2008
06/10/2008 06/16/2008
06/18/2008
06/18/2008 06/19/2008

55 Joint MOTION for Extension of Time to File Dispositive Motions by BRANDON C. SAMPLE, HARLEY LAPPIN, HARRELL WATTS (Attachments: # 1 Text of Proposed Order)(Nadelhaft, Adam) (Entered: 04/01/2008)
56 ORDER granting 55 the parties' joint motion to reset dates for dispositive motions. Signed by Judge Paul L. Friedman on April 3, 2008. (MA) (Entered: 04/03/2008)
Set/Reset Deadlines: Dispositive Motions due by 5/14/2008. Responses and Cross Motions due by 6/25/2008. Replies and Responses to Cross Motions due by 7/23/2008. Replies to Cross Motions due by 8/20/2008. (mm) (Entered: 04/03/2008)
57 Unopposed MOTION for Extension of Time to File Dispositive Motion by HARLEY LAPPIN, HARRELL WATTS (Attachments: # 1 Text of Proposed Order)(Nebeker, William) (Entered: 05/12/2008)
MINUTE ORDER granting 57 defendants' unopposed motion for extension of time up to and including May 28, 2008 within which a dispositive motion may be filed. Signed by Judge Paul L. Friedman on May 13, 2008. (MA) (Entered: 05/13/2008)
Set/Reset Deadlines: Dispositive Motions due by 5/28/2008. (mm) (Entered: 05/14/2008)
58 Unopposed MOTION for Extension of Time to by HARLEY LAPPIN, HARRELL WATTS (Attachments: # 1 Text of Proposed Order)(Nebeker, William) (Entered: 05/27/2008)
MINUTE ORDER granting 58 defendants' unopposed motion for extension of time up to and including June 4, 2008 within which a dispositive motion may be filed. Signed by Judge Paul L. Friedman on May 29, 2008. (MA) (Entered: 05/29/2008)
Set/Reset Deadlines: Dispositive Motions due by 6/4/2008. (mm) (Entered: 05/29/2008)
59 Unopposed MOTION for Extension of Time to File Dispositive Motion by HARLEY LAPPIN, HARRELL WATTS (Attachments: # 1 Text of Proposed Order)(Nebeker, William) (Entered: 06/04/2008)
60 MOTION for Summary Judgment Or, In The Alternative, MOTION for Reconsideration re 46 Order on Motion for Reconsideration, Order on Motion to Dismiss, Order on Motion for Summary Judgment, Order on Motion to Transfer Case by HARLEY LAPPIN, HARRELL WATTS (Attachments: # 1 Text of Proposed Order)(Nebeker, William) (Entered: 06/09/2008)
MINUTE ORDER granting 59 defendants' unopposed motion for extension of time up to and including June 9, 2008 within which to file a dispositive motion. Signed by Judge Paul L. Friedman on June 10, 2008. (MA) (Entered: 06/10/2008)
61 Joint MOTION for Order Modifying Briefing Schedule by BRANDON C. SAMPLE, HARLEY LAPPIN, HARRELL WATTS (Attachments: # 1 Text of Proposed Order)(Nebeker, William) Modified on 6/17/2008 (jeb, ). Modified on 6/17/2008 (jeb, ). (Entered: 06/16/2008)
MINUTE ORDER granting 61 joint motion for modification of briefing schedule. Plaintiff's response to defendants' dispositive motion and cross−motion is due on or before July 25, 2008; defendants' reply and response to cross−motion is due on or before August 25, 2008; plaintiff's reply to response to cross−motion is due on or before September 22, 2008. Signed by Judge Paul L. Friedman on june 18, 2008. (MA) (Entered: 06/18/2008)
Set/Reset Deadlines: Plaintiff's response to dispositive motion and cross motion due by 7/25/2008. Defendants' reply and response to cross motion due 8/25/2008. Plaintiff's reply to cross motion due by 9/22/2008. (mm) (Entered: 06/19/2008)
62 NOTICE of Filing Exhibits by HARLEY LAPPIN, HARRELL WATTS re 60 MOTION for Summary Judgment Or, In The Alternative MOTION for Reconsideration re 46 Order on Motion for Reconsideration, Order on Motion to Dismiss, Order on Motion for Summary Judgment, Order on Motion to Transfer Case MOTION for Reconsideration re 46 Order on Motion for Reconsideration, Order on Motion to Dismiss, Order on Motion for Summary Judgment, Order on Motion to

Case: 1:05-cv-596 As of: 01/31/2009 01:53 PM EST 8 of 9

07/17/2008
07/22/2008 07/22/2008 08/05/2008
08/06/2008 08/06/2008 09/03/2008
09/05/2008 09/05/2008

Transfer Case (Attachments: # 1 Exhibit 1 (Institutional Handbook), # 2 Exhibit 2 (Plaintiff's Discovery Responses), # 3 Exhibit 3 (Plaintiff Depo. Transcript), # 4 Exhibit 4 (Plumley Declaration), # 5 Exhibit 5 (Inmate Req. to Staff 4−13−06), # 6 Exhibit 6 (Admin. Rem Req. &Appeals 475362), # 7 Exhibit 7−Rardin Rev Report, # 8 Exhibit 8 (Ortiz Depo. Transcript), # 9 Exhibit 9 (Aiken Depo. Transcript), # 10 Exhibit 10 (Program Statement 5330.10), # 11 Exhibit 11 (Rardin Depo. Transcript), # 12 Exhibit 12 (Work Proscription), # 13 Exhibit 13 (Adm. Remedy Rem.414949), # 14 Exhibit 14 (Rayburn Depo.), # 15 Exhibit 15 (Vasquez Depo.))(Nebeker, William) (Entered: 06/19/2008)
63 Unopposed MOTION for Extension of Time to File Response/Reply as to 60 MOTION for Summary Judgment Or, In The Alternative MOTION for Reconsideration re 46 Order on Motion for Reconsideration, Order on Motion to Dismiss, Order on Motion for Summary Judgment, Order on Motion to Transfer Case MOTION for Reconsideration re 46 Order on Motion for Reconsideration, Order on Motion to Dismiss, Order on Motion for Summary Judgment, Order on Motion to Transfer Case by BRANDON C. SAMPLE (Attachments: # 1 Text of Proposed Order)(Nadelhaft, Adam) (Entered: 07/17/2008)
MINUTE ORDER: Plaintiff's unopposed 63 Motion for Extension of Time is granted. Plaintiff shall file his opposition to defendants' motion for summary judgment and renewed motion for reconsideration of the grant of partial summary judgment for plaintiff by August 8, 2008. Defendants shall file their reply by September 9, 2008. Signed by Judge Paul L. Friedman on 7/22/08. (ms, ) (Entered: 07/22/2008)
Set/Reset Deadlines: Plaintiff to file response to defendants' motion for summary judgment and renewed motion for reconsideration of the grant of partial summary judgment for plaintiff by 8/8/2008. Defendants to file reply by 9/9/08. (mm) (Entered: 07/23/2008)
64 Unopposed MOTION for Extension of Time to File Response/Reply as to 60 MOTION for Summary Judgment Or, In The Alternative MOTION for Reconsideration re 46 Order on Motion for Reconsideration, Order on Motion to Dismiss, Order on Motion for Summary Judgment, Order on Motion to Transfer Case MOTION for Reconsideration re 46 Order on Motion for Reconsideration, Order on Motion to Dismiss, Order on Motion for Summary Judgment, Order on Motion to Transfer Case by BRANDON C. SAMPLE (Attachments: # 1 Text of Proposed Order)(Nadelhaft, Adam) (Entered: 08/05/2008)
MINUTE ORDER granting 64 plaintiff's unopposed motion for extension of time up to and including September 4, 2008 to respond to defendants' motion for summary judgment in favor of defendants on the issue of the least restrictive means and, in the alternative, renewed motion for reconsideration of the grant of partial summary judgmenet for plaintiff. Defendants' reply is due on or before September 25, 2008. Signed by Judge Paul L. Friedman on August 6, 2008.(MA) (Entered: 08/06/2008)
Set/Reset Deadlines: Response to defendants' motion for summary judgment due by 9/4/2008. Reply due by 9/25/2008. (mm) (Entered: 08/07/2008)
65 Unopposed MOTION for Extension of Time to File Response/Reply as to 60 MOTION for Summary Judgment Or, In The Alternative MOTION for Reconsideration re 46 Order on Motion for Reconsideration, Order on Motion to Dismiss, Order on Motion for Summary Judgment, Order on Motion to Transfer Case MOTION for Reconsideration re 46 Order on Motion for Reconsideration, Order on Motion to Dismiss, Order on Motion for Summary Judgment, Order on Motion to Transfer Case by BRANDON C. SAMPLE (Attachments: # 1 Text of Proposed Order)(Nadelhaft, Adam) (Entered: 09/03/2008)
MINUTE ORDER granting 65 plaintiff's unopposed motion for extension of time up to and including November 4, 2008 to respond to defendants' motion for summary judgment in favor of defendants on the issue of the grant of partial summary judgment for plaintiff. Signed by Judge Paul L. Friedman on September 5, 2008. (MA) (Entered: 09/05/2008)
Set/Reset Deadlines: Plaintiff's response to motion for summary judgment due by 11/4/2008. (mm) (Entered: 09/08/2008)

Case: 1:05-cv-596 As of: 01/31/2009 01:53 PM EST 9 of 9

09/18/2008 09/24/2008

66 NOTICE of Settlement (Stipulation Of Settlement And Dismissal) by all parties (Nebeker, William) (Entered: 09/18/2008)
67 STIPULATION OF SETTLEMENT AND DISMISSAL ORDER Signed by Judge Paul L. Friedman on 9/24/2008. (mm) (Entered: 09/25/2008)