AZ Bar No. 028073) Janet M

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Jordan A. Kroop (AZ Bar No. 018825) Thomas Ryerson (AZ Bar No. 028073) Janet M. Howe (AZ Bar No. 034615) PERKINS COIE LLP 2901 North Central Avenue, Suite 2000 Phoenix AZ 85012 (602) 351-8000 [email protected] [email protected] [email protected] [email protected]

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

Stacy Satzman; Daniel Brinauer; Bonnie Huffman; and all those similarly situated; Case No.

Plaintiffs, PLAINTIFFS STACY SATZMAN, vs. DANIEL BRINAUER, AND BONNIE HUFFMAN'S MOTION FOR David Shinn, Director of the Arizona PRELIMINARY INJUNCTION Department of Corrections Rehabilitation & Reentry, in his official capacity; *Oral Argument Requested Arizona Department of Corrections Rehabilitation & Reentry;

Defendants.

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I. Introduction Plaintiffs Stacy Satzman, Daniel Brinauer, and Bonnie Huffman are Jewish inmates incarcerated in various state prisons within the Arizona Department of Corrections, Rehabilitation & Reentry (ADC). Plaintiffs hold sincere religious beliefs that require them to consume a kosher diet consistent with Jewish dietary law or kashruth. Previously, ADC provided Plaintiffs well-balanced kosher meals consistent with their religious beliefs and their constitutional rights to practice their religion. On August 1, 2020, however, ADC replaced all specialized religious diets, including Plaintiffs’ religiously-mandated kosher meals, with a “common fare” vegan meal plan. The common fare meal plan is not kosher— it lacks both kosher food products and proper kosher meal preparation. Thus, with every common fare meal that ADC serves, and Plaintiffs consume, ADC violates Plaintiffs’ constitutional rights. Additionally, when compared with ADC’s former kosher meals and general inmate diet, the common fare meal plan is deficient in quantity, quality, and variety. Thus, Plaintiffs must choose between their physical and spiritual well-being solely because they require a kosher diet to adhere to their sincerely held religious beliefs. Despite substantial evidence that the common fare meal plan is not kosher, fails to provide Plaintiffs adequate nutrition, and causes Plaintiffs and similarly situated inmates significant physical and spiritual harm, ADC ignores Plaintiffs’ complaints and refuses to provide Plaintiffs an adequate diet that allows them to practice their religion. Considering the severe and irreparable harm to their physical and spiritual health that occurs every day they are denied kosher meals, Plaintiffs move this Court to preliminarily enjoin ADC from enforcing the common fare meal plan and require ADC to reinstate Plaintiffs’ kosher meals. II. Factual Background For thousands of years, Jews have faithfully kept kosher by observing the enduring laws of kashruth—a critical part of Jewish faith and identity. Kashruth laws start with the Torah (the Five Books of Moses, or as Christians typically call it, the “Old Testament”) approximately 3,300 years ago. They are also inscribed in the Talmud and derived from the

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“Oral Torah,” or the laws spoken to Moses and passed down through the ages intact through an unbroken oral tradition. [Declaration of Rabbi Eli Putney (“Rabbi Putney Decl.”), ¶ 5, attached as Exhibit 4] While an individual could commit a lifetime of study to the volumes of materials that make up kashruth, there are several key everyday principles that guide Jews who keep kosher. These principles govern: (1) the types and parts of animal meat that may be consumed; (2) the manner that an animal must be slaughtered; (3) the methods by which dairy products must be sourced and created; (4) the process by which fruits and vegetables must be inspected and purged of microscopic insects before they are cooked or consumed raw; (5) the separation of meat and dairy food products; (6) “neutral” foods that may be consumed with either meat or dairy in a particular meal; and (7) the manner by which grape and wine products may be sourced and consumed. [Ex. 8 (Rabbi Putney Decl.), ¶ 6] Plaintiffs are Jewish and committed to adhere to these principles by consuming a completely kosher diet, which is a central and fundamental part of each of their religious practices. [Declaration of Daniel Brinauer (“Brinauer Decl.”), ¶¶ 3–4, attached as Exhibit 2; Declaration of Stacy Satzman (“Satzman Decl.”), ¶¶ 3–4 attached as Ex. 1] Plaintiffs cannot consume non-kosher food without desecrating their core beliefs. A. Plaintiffs Previously Received Kosher Meals From ADC. Before August 1, 2020, Plaintiffs each received a well-rounded kosher diet, consisting of a variety of kosher meats, fish, cheese, eggs, milk, beans, fruits, and vegetables. [Ex. 2 (Brinauer Decl.), ¶ 6; Ex. 1 (Satzman Decl.), ¶ 7] These meals utilized shelf-stable or frozen, premade kosher meals that the ADC kitchen staff would heat and serve to kosher-keeping inmates. [Ex. 2 (Brinauer Decl.), ¶ 7; Ex. 1 (Satzman Decl.), ¶ 8] Because the frozen or shelf-stable meals were double-sealed, they could be heated in the non-kosher kitchen ovens without compromising their kosher status. [Ex. 2 (Brinauer Decl.), ¶ 7; Ex. 1 (Satzman Decl.), ¶ 8] ADC staff served these meals unopened, on separate kosher-only trays, and with single-use utensils. [Ex. 2 (Brinauer Decl.), ¶ 7; Ex. 1 (Satzman Decl.), ¶ 8] These kosher premade meals also bore a hechsher, which is a stamp, emblem,

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or icon that is placed on food products to indicate a kosher certifying agency’s rabbinical endorsement of the food preparation and packing facility and methods. [Ex. 2 (Brinauer Decl.), ¶¶ 9–10; Ex. 1 (Satzman Decl.), ¶¶ 10–11; Ex. 4 (Rabbi Putney Decl.), ¶¶ 12–13] B. Non-Kosher Common Fare Meals Replace Plaintiffs’ Kosher Meals. On July 2, 2020, with a mere 30-day notice, ADC announced that all specialized religious diets would be replaced with a “common fare meal plan.” [ADC Notification 20- 15 (July 2, 2020), attached as Exhibit 3] The common fare meal plan is a vegan, plant-based diet that heavily relies on beans, hummus, nut butters, and soy-based imitation meats. [Ex. 2 (Brinauer Decl.), ¶ 12; Ex. 1 (Satzman Decl.), ¶ 13] According to ADC, the common fare meals meet the dietary requirements for halal, kosher, and vegetarian diets. [See ADC Dept. Order Manual, Chp. 900, Dept. Order 904, Sect. 4.5 (amended July 13, 2020), at 13, attached as Ex. 5] Since the August 1 transition, however, Plaintiffs have not received a kosher diet, because the common fare meals are not made with kosher food products or prepared in a manner consistent with kashruth. First, nearly all the common-fare food products lack kosher certification or a hechsher to officially verify the food product’s kosher status and conformity with kashruth. [Ex. 4 (Rabbi Putney Decl.), ¶ 12] Processed foods cannot be verified as kosher without a hechsher. [Id. ¶¶ 11– 13] Unlike the pre-August 2020 kosher meals, most of the prepackaged, shelf-stable common fare meals do not bear a hechsher. [Ex. 2 (Brinauer Decl.), ¶¶ 17, 20; Ex. 1 (Satzman Decl.), ¶ 23] Therefore, they are not kosher. Unpackaged and unprocessed foods may also require hechshers or other “kosher control points” to verify kosher status. [Ex. 4 (Rabbi Putney Decl.), ¶ 12] It is often wrongfully assumed that all raw fruit and vegetables are kosher. [Id. ¶ 8] Unprocessed fruits and vegetables can, however, be non-kosher if they are handled improperly, prepared with non-kosher utensils, or if they are contaminated with small insects. [Id. ¶¶ 11–12] Insects are not kosher, and foods with any insect presence cannot be consumed in a kosher diet. [Id. ¶ 10] Many fruits and vegetables, such as most lettuce, spinach, kale, strawberries, cauliflower, broccoli, and raspberries remain contaminated by small insects after post-

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harvest washing, rendering these items non-kosher unless and until they are scrupulously inspected and washed according to kashruth. [Id. ¶ 12] Due to the scale of commercial harvesting and processing, most commercially grown produce and manufactured products are likely to experience “insect infiltration.” [Id. ¶ 13] For these reasons, fresh fruits and vegetables should be inspected and, in almost all cases, bear a hechsher or other kosher control point to be considered kosher and compliant with kashruth. [Id. ¶ 10–11] Similar to the shelf-stable meals, none of the unpackaged food products bear a hechsher in the common fare meal plan. [Ex. 2 (Brinauer Decl.), ¶¶ 20, 23; Ex. 1 (Satzman Decl.), ¶¶ 23, 26] According to Plaintiff Brinauer, only about 40 percent of the common fare food can be verified as kosher. [Ex. 2 (Brinauer Decl.), ¶ 24] Thus, for the simple fact that the common fare meal plan does not serve all kosher food, it is not a kosher diet. Second, regardless of the kosher status of the common-fare food products, ADC’s meal preparation methods render the common fare meals non-kosher. Kosher food can become non-kosher if it is (1) mixed with non-kosher food; (2) cooked or prepared with pots, pans, or utensils, that have been used in the preparation of non-kosher food; (3) cooked in an oven used for non-kosher food; or (4) brought into contact with pots, pans, containers, or utensils that were cleaned in a dishwasher also used for non-kosher kitchen items. [Ex. 4 (Rabbi Putney Decl.), ¶ 14] Kashruth also requires strict separation of meat and poultry from dairy products—they cannot be consumed in the same meal or prepared and served in common vessels or with common utensils. [Id. ¶ 15] Every kosher kitchen facility must therefore maintain one set of utensils for use with meats and one for use with dairy products. [Id.] “Considering kashruth’s complexity and stringency, it is nearly impossible for food processed, produced, prepared or handled in any public facility to be considered kosher unless that facility is under constant supervision of an Orthodox rabbi.” [Id. ¶ 20] Anything prepared, processed, or handled in the ADC facility kitchens, therefore, cannot possibly meet these standards. Plaintiffs’ common fare meal experiences are emblematic of the deficiencies in the ADC meal preparation. Plaintiffs’ common fare meals contain items, such as cooked beans

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or homemade hummus, that are prepared in the ADC kitchen, which does not maintain separate kosher and non-kosher food preparation areas. [Ex. 1 (Satzman Decl.), ¶ 28] Prepackaged meals are no longer double-sealed, and they are often served opened or with non-kosher foods, like margarine, which renders them non-kosher. [Ex. 2 (Brinauer Decl.), ¶ 21; Ex. 1 (Satzman Decl.), ¶ 29] Often, kosher and non-kosher items are saran wrapped together on a single serving tray, rendering the tray’s entire contents non-kosher. [Ex. 2 (Brinauer Decl.), ¶ 22; Ex. 1 (Satzman Decl.), ¶ 30] ADC uses the same plastic cups to scoop items like beans and peanut butter from bulk containers to serve both kosher and non- kosher meals. [Ex. 1 (Satzman Decl.), ¶ 31] ADC kitchen staff also erroneously believe that they can run meal preparation and serving utensils through the dishwasher to “sterilize” and prepare them for kosher use after non-kosher use. [Ex. 1 (Satzman Decl.), ¶ 32] Dishwashers and other common kitchen sterilization techniques cannot serve this purpose. [Ex. 4 (Rabbi Putney Decl.), ¶ 18] Instead, there is only one proper way to prepare non-kosher materials for use with kosher meals. They must go through an intense, religiously prescribed process called kashering before they can be considered kosher. Kashering is derived from millennia-old Jewish law, and it requires oversight by a person intimately familiar with kashruth, ritual immersion in water, high temperatures, open flames, and other extraordinary measures. [Id. ¶ 17] Even if a facility had the physical and spiritual support to properly kasher, many common utensils and materials cannot be kashered. [Id.¶ 19] Once these items have been used for non-kosher use, they cannot ever be used with kosher food. [Id.] The dishwasher, washing, or sterilizing the kitchen is thus not sufficient to allow for proper kosher meal preparation. Accordingly, the fact that the common fare meals are prepared in the ADC kitchen facility, with the same preparation materials as the general, non-kosher diet renders the common fare meal plan non-kosher. C. ADC’s Common Fare Meals Lack Sufficient Nutrition. Even were the common fare plan kosher, it still deprives Plaintiffs of a diet sufficient in nutritional quantity, quality, and variety. The common fare diet replaced kosher meats,

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cheeses, milk, fish, fruit juices, and eggs with soy-based imitation meats, humus, and additional servings of bread and nut butters. [Ex. 2 (Brinauer Decl.), ¶¶ 6, 12–15; Ex. 1 (Satzman Decl.), ¶¶ 7, 13, 15–17, 22] In many instances, the common fare meal plan serves significantly less food than the kosher or standard diet. [Ex. 2 (Brinauer Decl.), ¶ 14; Ex. 1 (Satzman Decl.), ¶ 16] For example, a kosher-meal lunch consisted of cottage cheese, beans, fresh vegetables, four slices of bread, fruit and fruit juice. [Ex. 2 (Brinauer Decl.), ¶ 15; Ex. 1 (Satzman Decl.), ¶ 17] The common fare replaced that meal with two cups of beans, two slices of bread, salad, cookie, and a drink. [Ex. 2 (Brinauer Decl.), ¶ 15; Ex. 1 (Satzman Decl.), ¶ 17] The ADC kitchen staff exacerbate this problem by often failing to serve the designated common fare meal quantities. [Ex. 2 (Brinauer Decl.), ¶ 16 (stating that the kitchen staff will often serve two half-cups of beans instead of two full cups of beans and consistently provide too little peanut butter and vegetables); Ex. 1 (Satzman Decl.), ¶ 18 (stating that the staff consistently serves insufficient jelly or cereal packets)] Shortages occur daily, and ADC refuses to address them. [Ex. 2 (Brinauer Decl.), ¶ 16; Ex. 1 (Satzman Decl.), ¶ 33] Critically, even when Plaintiffs receive the same quantity of food as the standard inmate diet, the quality of the food served in the two diets is unacceptably different. Plaintiffs receive meals with rotting or frozen vegetables. [Ex.2 (Brinauer Decl.), ¶ 17; Ex. 1 (Satzman Decl.), ¶ 19] The “tossed salad” is two wilted pieces of undressed lettuce or one piece of lettuce wrapped in saran wrap. [ Ex. 2 (Brinauer Decl.), ¶ 17] Aside from the wilted lettuce, the only other vegetable served is a two-inch piece of zucchini, which is often served moldy. [Ex. 1 (Satzman Decl.), ¶ 19] The inferior quality and deficient quantity and variety of the common fare food is causing inmate health problems. Many inmates complain about the effects of the diet’s excess fiber and inadequate levels of vitamin-D, omega threes, and iron. [Ex. 2 (Brinauer Decl.), ¶ 18; Ex. 1 (Satzman Decl.), ¶ 20] Some inmates purchase supplements from the commissary for six dollars a bottle, but this is not possible for inmates that lack regular financial assistance. [Ex. 2 (Brinauer Decl.), ¶¶ 18, 39] Plaintiff Satzman has personally

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experienced severe intestinal distress because of the common fare diet, including unpredictable and uncontrollable bowel movements. [Ex. 1 (Satzman Decl.), ¶ 21] Mr. Satzman has tried to endure on the diet, because at least it provides some kosher food, and in the past he has been refused a kosher diet for consuming non-kosher food. [Ex. 1 (Satzman Decl.), ¶ 6] But, as a result of medical advice, Plaintiff Satzman has felt forced to remove himself from the common fare diet out of fear for his health, even though it means giving up any opportunity—however inadequate—to practice his sincerely held beliefs by keeping kosher. [Id.] He simply cannot maintain both his health and his faith. [Id.] D. ADC Ignores Plaintiffs’ Complaints. Rather than address inmate concerns and common fare diet shortfalls, ADC has responded with indifference. Plaintiffs have filed numerous complaints with ADC officers and kitchen staff. [Ex. 2 (Brinauer Decl.), ¶¶ 27, 33–37; Ex. 1 (Satzman Decl.), ¶¶ 33, 37– 39] ADC correctional staff refuse to complete incident reports and, instead, encourage inmates to take up all complaints with the privately contracted kitchen staff. [Ex. 2 (Brinauer Decl.), ¶¶36–37] Kitchen workers repeatedly refuse to address complaints about the diet’s kosher status. Instead, they confirm what Plaintiffs already know: (1) there is no kosher meal plan; and (2) because of the common fare meal plan, the kitchen is no longer required to serve a kosher diet. [Ex. 2 (Brinauer Decl.), ¶¶ 28–30, 33–34, 37] Tellingly, the staff removed inmates’ kosher diet cards. [Id. ¶ 30] Similarly, Plaintiffs’ formal ADC grievances and complaints have gone unanswered. [Ex. 2 (Brinauer Decl.), ¶ 35; Ex. 1 (Satzman Decl.), ¶¶ 37–39] ADC only recommends that Plaintiffs and similarly situated individuals either remove themselves from the common fare diet (and consume the non-kosher diet) or buy supplemental food from the inmate store. [Ex. 2 (Brinauer Decl.), ¶ 38; Ex. 1 (Satzman Decl.), ¶ 40] These are not feasible solutions as Plaintiffs’ faith requires that they strictly adhere to kashruth and the general diet is not kosher. Further, food in the inmate store is prohibitively expensive; and it is mostly snack foods, meaning it lacks sufficient nutritional qualities to compensate for the common fare deficits. [Ex. 2 (Brinauer Decl.), ¶¶ 38–39;

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Ex. 1 (Satzman Decl.), ¶ 40] The only real solution is to restore Plaintiffs’ access to a nutritious, kosher diet. III. Argument A preliminary injunction is warranted where Plaintiffs can establish (1) a likelihood of success on the merits; (2) irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in their favor; and (4) an injunction is in the public interest. All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011); United Food & Comm. Workers Local 99 v. Brewers, 817 F. Supp.2d 1118, 1123 (D. Ariz. 2011). These elements are balanced on a “sliding scale”—a stronger showing of one element may offset a weaker showing of another. Wild Rockies, 632 F.3d at 1127. Plaintiffs satisfy each of these elements. A. Success on the Merits. 1. ADC’s Common Fare Meal Plan Violates RLUIPA. The Religious Land Use and Institutionalized Persons Act (RLUIPA) provides that, “No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution … unless the government demonstrates that imposition of the burden … is in furtherance of a compelling government interest; and [] is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000cc-1(a). There is no question that “keeping kosher” constitutes a religious exercise under RLUIPA. Baranowski v. Hart, 486 F.3d 112, 124 (5th Cir. 2007). Further ADC’s policy burdens Plaintiffs’ religious exercise because it prevents them from properly observing kashruth, and it makes them choose between practicing their religion and consuming a healthful, nutritionally adequate diet. ADC has failed to demonstrate a compelling interest justifying these burdens. Thus, ADC’s policy violates RLUIPA. i. ADC’s common fare meal plan imposes a substantial burden. A substantial burden is one that imposes a “significantly great restriction or onus” on religious exercise. Warsoldier v. Woodford, 418 F.3d 989, 995 (9th Cir. 2005). A government substantially burdens a religious practice when it makes the practice more

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difficult, penalizes the practitioner for engaging in the practice, or withholds a benefit because of the practitioner’s religious practice. Id.; Planned Parenthood v. Arizona, 718 F.2d 938, 942 (9th Cir. 1983). A substantial burden can also result from the government placing considerable pressure on a practitioner “to violate a sincerely held religious belief— for example, by presenting an illusory or Hobson’s choice where the only realistically possible course of action available to [the practitioner] trenches on sincere religious exercise.” Yellowbear v. Lampert, 741 F.3d 48, 55 (10th Cir. 2014); see also Shakur v. Schriro, 514 F.3d 878, 889 (9th Cir. 2008). An outright ban on a religious exercise is a substantial burden. Greene v. Solano Cty. Jail, 513 F.3d 982, 988 (9th Cir. 2008); Meyer v. Teslik, 411 F. Supp. 2d 989, 989 (W.D. Wis. 2006) (“It is difficult to imagine a burden more substantial than banning an individual from engaging in a specific religious practice”). Further, a policy that puts substantial pressure on an inmate to abandon his religious beliefs also imposes a substantial burden. Warsoldier, 418 F.3d at 996. Specifically, prison diets substantially burden religious exercise when they force an inmate to eat food prohibited by their religion, that lack adequate nutrition, or that cause adverse health effects. Shakur, 514 F.3d at 889 (finding an issue of fact whether imposition of a vegetarian diet on a Muslim inmate imposed a substantial burden because it caused gastrointestinal issues and pressured him to abandon his faith); Walls v. Schriro, No.CV- 05-2259-PHX-NWV, 2008 WL 2463671, at *7 (D. Ariz. June 16, 2008) (“Requiring Plaintiff to eat food that is prohibited by his religion’s dietary regimen may constitute a substantial burden on his religious practice.”); see also Ward v. Walsh, 1 F.3d 873, 878 (9th Cir. 1993) (“It is another thing to require a believer to defile himself, according to the believer’s conscience, by doing something that is completely forbidden by the believer’s religion”). Courts frequently find a substantial burden when inmates are denied a requested religious diet. See Abdulhaseeb v. Calbone, 600 F.3d 1301, 1317 (10th Cir. 2010) (collecting cases related to the denial of a halal diet); Goodman v. Ryan, No.CV-16-01513- PHX-NVW(BSB), 2018 WL 10195811, at *9 (D. Ariz. Jan. 10, 2018) (“If Plaintiff

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establishes that his need for his requested vegan diet is a sincerely held religious belief, denial of the diet is a substantial burden of his religious practice”). Even if a diet satisfies religious prescriptions, it still substantially burdens an inmate’s religion if it causes nutritional deficits or other health consequences. AlAmiin v. Patton, No. Civ.-13-1001-F, 2016 WL 11475169, at * 18, 29 (W.D. Okla. Aug. 30, 2016) (finding allegations that the halal diet was not nutritious sufficient to show a genuine dispute of fact regarding whether defendant violated his rights by denying him a proper halal diet and forcing him to choose between untenable choices). Here, ADC’s common fare meal plan substantially burdens Plaintiffs’ sincerely held beliefs in two ways: (1) because it is not a kosher meal plan, it prevents Plaintiffs from properly observing kashruth; and (2) because it lacks nutritional quality and quantity, it forces Plaintiffs to choose between observing their religious beliefs and their health. First, the common fare meal plan is not kosher because it contains non-kosher food products and its meal preparation methods are not compliant with kashruth. [Ex. 4 (Rabbi Putney Decl.), ¶¶ 8, 20; Ex. 2 (Brinauer Decl.), ¶¶ 20–26; Ex. 1 (Satzman Decl.), ¶¶ 23– 31 ]; see also Beerheide v. Suthers, 286 F.3d 1179, 1187 (10th Cir. 2002) (finding common fare vegetarian meal plan not kosher); Ashelman v. Wawrzaszek, 111 F.3d 674, 675 (9th Cir. 1997) (recognizing that prepackaged vegetarian meals were not kosher); Willis v. Commr., Ind. Dep’t of Corr., 753 F. Supp. 2d 768, 777 (S.D. Ind. 2010); Chichakli v. Samuels, No. CIV-15-687-D, 2018 WL 3354883, at *4–6 (W.D. Okla. July 9, 2018). At most, 40 percent of the common fare food products are kosher, but to keep kosher, consistent with kashruth, that is not enough. Plaintiffs must eat an entirely kosher diet. Thus, when Plaintiffs receive the common fare diet, they are effectively banned from exercising their religion and forced to defile themselves at every meal. Jones v. Williams, 791 F.3d 1023, 1033 (9th Cir. 2015) (citing Ashelman, 111 F.3d at 677). And, by only offering a choice of two diets—common fare and general inmate, neither of which is kosher—ADC has effectively banned Plaintiffs from keeping kosher. Accordingly, the enforcement of the common fare diet substantially burdens Plaintiffs’ religion. Greene, 513 F.3d at 987.

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Second, even if the common fare plan is kosher, it substantially burdens Plaintiffs’ religion because it is nutritionally deficient and deprives Plaintiffs of food sufficient to sustain them in good health. See Jones v. Carter, 915 F.3d 1147, 1151 (7th Cir. 2019) (“When the state forces a prisoner to choose between adequate nutrition and religious practice, it is imposing a substantial burden on his religious practice[.]”); Ashelman, 111 F.3d at 677 (“[I]nmates … have the right to be provided with food sufficient to sustain them in good health that satisfies the dietary laws of their religion.” (citing McElyea v. Babbitt, 833 F.2d 196 (9th Cir. 1987))). If Plaintiffs want any amount of kosher food or opportunity to practice kashruth, they must receive the common fare meal plan. But that meal plan fails to provide an adequate quantity, quality, and variety of food. As a result, Plaintiffs suffer significant health problems—Mr. Brinauer is experiencing problems with Omega-three and iron [Ex. 2 (Brinauer Decl.) ¶ 18], Mr. Satzman is experiencing severe gastrointestinal distress [Ex. 1 (Satzman Decl.) ¶ 21]. ADC’s choice—common fare or general diet— is nothing more than a Hobson’s choice—either Plaintiffs violate their religious beliefs or they do not eat an adequate, healthful diet. Abdulhaseeb, 600 F.3d at 1316–17 (“[F]ailure to provide a halal diet either prevents [plaintiff’s] religious exercise, or, at the least, places substantial pressure on [plaintiff] not to engage in his religious exercise by presenting him with a Hobson’s choice—either he eats a non-halal diet in violation of his sincerely held beliefs, or he does not eat”). ii. ADC lacks a compelling interest. If a regulation imposes a substantial burden, the government bears the burden of establishing that it serves a compelling government interest and is the least restrictive means of achieving that interest. Shakur, 514 F.3d at 889. Although a religious observation cannot deprive a prison of its significant interest in maintaining order and safety, the interest must be measured against the requested accommodation. Cutter v. Wilkinson, 544 U.S. 709, 723 (2005) (citing Grutter v. Bollinger, 539 U.S. 306, 327 (2003)). Here, ADC bears the burden of demonstrating a compelling interest, Shakur, 514 F.3d at 889, and ADC has yet to articulate any interest, let alone a compelling one, for its abrupt and drastic policy change.

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Further, the fact that ADC previously provided Plaintiffs kosher meals and discontinued this diet without explanation of a substantial change in circumstances, negates any compelling interest ADC may proffer. Buchanan v. Burbury, No. 3:05 CV 7120, 2006 WL 2010773, at *6 (N.D. Ohio July 17, 2006) (finding evidence that the prison provided kosher meals to others indicated that the prison could provide plaintiff kosher meals without undue burden on penological interests). There is no reason ADC could not continue providing Plaintiffs nutritionally adequate, kosher meals. iii. ADC has not employed the least restrictive means. Even if ADC demonstrates a compelling interest, it must also show that the common fare diet is the least restrictive means of accomplishing that interest. To demonstrate least restrictive means, prison officials must consider and reject “the efficacy of less restrictive measures before adopting the challenged practice.” Greene, 513 F.3d at 989 (quoting Warsoldier, 418 F.3d at 999). Courts may compare regulations at similar institutions when considering whether the government is using the least restrictive means. Shakur, 514 F.3d at 891. “Indeed, the failure of a defendant to explain why another institution with the same compelling interests was able to accommodate the same religious practices may constitute a failure to establish that the defendant was using the least restrictive means.” Id. (quoting Warsoldier, 418 F.3d at 1000). ADC has the burden to show least restrictive means. 42 U.S.C. § 2000cc-1(a). ADC has not met its burden—it has provided no rationale for its switch to a vegan diet, and no explanation of alternatives it considered. Critically, ADC has also offered zero options for those, like Plaintiffs, who object to the diet for religious or health reasons. Shakur, 514 F.3d at 890 (“ADOC did not appear to have actually considered creating an exemption for Shakur based on the adverse physical reaction caused by his vegetarian diet, which according to Shakur substantially burdened his religious activities”). Further, as the majority of federal and state correctional institutions successfully implement kosher dietary plans, ADC has the burden of demonstrating why it cannot do so; it has not met that burden. Id. at 891; see also Holt v. Hobbs, 574 U.S. 352, 368 (2015) (“[W]hen so many prisons offer

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an accommodation, a prison must at a minimum, offer persuasive reasons why it believes that it must take a different course[.]”). Moreover, ADC has not addressed the fact that it successfully provided kosher meals in the past. In sum, ADC’s policy substantially burdens Plaintiffs’ religious exercise, and ADC has not demonstrated a compelling interest using the least restrictive means to justify this burden, therefore Plaintiffs have shown a likelihood of success on the merits of their RLUIPA claim. 2. ADC’s Common Fare Diet Violates the Equal Protection Clause. Under the Equal Protection Clause, states are required to treat all similarly situated people equally. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). Prisoners are entitled to comparable opportunities to pursue their faith regardless of the specific religious conventions they adhere to. Cruz v. Beto, 405 U.S. 319, 320 (1972) (“[I]f [plaintiff] was denied a reasonable opportunity of pursuing his faith comparable to the opportunity afforded fellow prisoners who adhere to conventional religious precepts, then there was palpable discrimination by the State”). A state violates the Equal Protection Clause when it acts with discriminatory intent or purpose due, at least in part, to a plaintiff’s membership in a protective class. Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003). A plaintiff may tender evidence of disparate treatment sufficient to raise an inference of discriminatory purpose. Freeman v. Arpaio, 125 F.3d 732, 737–39 (9th Cir. 1997), abrogated on other grounds by Shakur, 514 F.3d at 891. A prison policy violates the Equal Protection Clause if it is not “reasonably related to legitimate penological objective.” Turner v. Safley, 482 U.S. 78, 87 (1987). Courts must consider several factors when evaluating the reasonableness of a regulation: (1) is there a “valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it[,]” (2) are there alternative means of exercising the right that remains open to prison inmates; (3) what impact would the requested accommodation have on guards and other inmates, and on the general allocation of prison resources; and

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(4) are there alternatives readily available—existence of ready alternatives is clear evidence that a regulation is not reasonable. Id. at 89–91. Here, ADC discriminates against Plaintiffs because it forces Plaintiffs to eat an inferior diet—deficient in quantity, quality, and variety—because of Plaintiffs’ religious beliefs. Even assuming the common fare meals are kosher and compliant with RLUIPA— the meal plan still offers substantially less food than the standard inmate diet and a significantly and unacceptably different variety of food. In addition, the food that Plaintiffs receive is often inedible, rotten, or frozen. [Ex.2 (Brinauer Decl.), ¶ 17; Ex. 1 (Satzman Decl.), ¶ 19] Plaintiffs are not vegetarian or vegan; they are only forced to consume this diet because of their religious beliefs. Indeed, ADC created the common fare diet to specifically address religious diet requests, like those of Plaintiffs for halal and kosher diets. [See Ex. 5, ADC Dept. Order Manual, Chp. 900, Dept. Order 904, Sect. 4.5 (amended July 13, 2020), at 13]. Thus, ADC created this policy intending, in part, to replace a proper, kashruth- compliant diet with a nutrient-deficient vegan diet despite the sacrifice to Plaintiffs’ health and religious practice. ADC’s apathetic responses to Plaintiffs’ complaints and concerns about the adequacy and kosher status of the common fare meal plan further evidences its intent. ADC has refused to address Plaintiffs’ complaints and instead encourages and attempts to force Plaintiffs and others to stop requesting religious-based diets. [Ex. 1 (Satzman Decl. ¶ 40; Ex. 2 (Brinauer Decl.) ¶ 38] Meanwhile, inmates of other faiths are not placed in similar situations where they must choose between their basic right to sufficient nutrition and the dictates of their faith. Only Plaintiffs and similarly situated inmates are limited in their opportunity to practice their faiths because they require a specific diet. Cruz, 405 U.S. at 320. ADC’s disparate treatment of Plaintiffs and similarly situated inmates is not reasonably related to a legitimate penological interest under the Turner factors. First, ADC has yet to put forth in interest justifying the change to the common fare meal plan. Second, ADC cannot offer reasonable alternatives to observing kashruth other than a nutritious,

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kosher diet. See Ashelman, 111 F.3d at 677 (“[W]e recogniz[e] that requiring a believer to defile himself by doing something that is completely forbidden by his religion is different (and more serious than) curtailing various ways of expressing beliefs for which alternatives are available”). Third, ADC has not demonstrated any impact that providing kosher meals has on guards or other inmates. Finally, there exists ready, reasonable alternatives, because ADC has previously provided kosher meals while maintaining its penological interests and has offered no evidence why that policy could not continue. Id. at 678 (“[E]vidence of ‘obvious, easy alternatives’ shows that [a] policy is unreasonable[.]”). Thus, Plaintiffs have shown a likelihood of success on their Equal Protection claims. B. Plaintiffs Will Suffer Irreparable Harm in the Absence of an Injunction. 1. Irreparable Harm is Presumed for Violations of Constitutional Rights. “It is well established that the deprivation of constitutional rights ‘unquestionably constitutes irreparable injury.’” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012). Constitutional violations cannot be remedied through damages; therefore, if a party shows a likelihood of success on a constitutional claim, then the only appropriate remedy is to enjoin the actions causing the violation. Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1059 (9th Cir. 2009). Plaintiffs have shown a likelihood of success on both their Equal Protection and RLUIPA claims; therefore, irreparable harm should be presumed. See Opulent Life Church v. City of Holly Springs, Miss., 697 F.3d 279, 295 (5th Cir. 2012) (“Opulent Life has demonstrated that it will suffer irreparable harm because it has alleged violations of its First amendment and RLUIPA rights.”); Pasaye v. Dzurenda, 375 F. Supp. 3d 1159, 1170–71 (D. Nev. 2019); Reaching Hearts Int’l, Inc. v. Prince George’s Cty., 584 F. Supp. 2d 766, 795 (D. Md. 2008) (“the infringement of one’s rights under RLUIPA constitutes irreparable injury”). 2. ADC’s Denial of a Kosher Diet Causes Plaintiffs Irreparable Harm. In addition to Plaintiffs’ constitutional injuries, Plaintiffs will suffer irreparable harm if ADC is not enjoined and required to provide Plaintiffs proper kosher meals. Currently, Plaintiffs have two choices: (1) defile themselves three times a day if they consume the

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common fare meal plan or the general inmate diet, both of which fail to provide kosher meals and violate kashruth; or (2) dramatically reduce their food consumption, eating a nutritionally-lacking diet, in some cases eating less than half the daily recommended amount, to comply with their sincerely held beliefs. Either choice will result in Plaintiffs experiencing irreparable harm. Warsoldier, 418 F.3d at 1001–02 (“For the same reasons the [prison’s] policy constitutes a substantial burden on [plaintiff’s] religious practice, we conclude that [plaintiff] faces the possibility of irreparable injury absent an injunction barring enforcement [.]”). Further, Plaintiffs are experiencing serious, adverse health consequences from the common fare diet. Mr. Brinauer requires supplements he cannot afford. Mr. Satzman is experiencing such intestinal distress that he has had to discontinue the common fare diet and consume non-kosher food from the general inmate diet, violating his faith to preserve his health. [Ex. 1 (Satzman Decl.) ¶ 21; Ex. 2 (Brinauer Decl.) ¶ 18] These health consequences are undeniably irreparable harm. Al-Joudi v. Bush, 406 F. Supp. 2d 13, 20 (D.D.C. 2005) (“[C]ourts often find a showing of irreparable harm where a movant’s health is in imminent danger[.]”). C. The Balance of the Equities and Public Interest Tip in Plaintiffs’ Favor. When considering a request for preliminary injunction, the “court must balance the competing claims of injury and must consider the effect on each party of granting or withholding the requested relief.” Arc of Cal. v. Douglas, 757 F.3d 975, 991 (9th Cir. 2014) (quoting Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 542 (1987)). Again, in cases involving constitutional violations, like this one, there is no relief other than enjoining and reversing the violation. The threatened injury therefore outweighs any harm to ADC. Especially since ADC already has a history of providing kosher meals without any substantial limitation to its penological interests. Lawson v. Dep’t of Corrs., No. 4:04-cv-00105-MP-GRJ, 2015 WL 9906259, at *11 (N.D. Fla. Sept. 30, 2015) (granting preliminary injunction considering “the checkered history of the [defendant’s] provision of Kosher meals to prisoners. This history of abrupt creation and cancellation of

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Kosher programs evidences the need for judicial intervention to remedy the continued RLUIPA deprivations”). Further, an injunction is in the public interest. RLUIPA must be “construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.” 42 U.S.C. § 2000cc-3(g). Further, “injunctions protecting First Amendment Freedoms are always in the public interest.” Christian Legal Soc’y v. Walker, 453 F.3d 853, 859 (7th Cir. 2006). This principle “applies equally to injunctions protecting RLUIPA rights[.]” Opulent Life Church, 697 F.3d at 298. Thus, enjoining defendants from enforcing a prison regulation that violates RLUIPA and deprives Plaintiffs of their right to unhindered religious exercise, advances the public interest. IV. The Court Should Not Require Plaintiff to Post Bond In its discretion, the Court may decide to excuse a moving party from posting bond before granting a preliminary injunction. Diaz v. Brewer, 656 F.3d 1008, 1015 (9th Cir. 2011) (citing Johnson v. Couturier, 572 F.3d 1067, 1089 (9th Cir. 2009). As Plaintiffs are prison inmates working with pro bono counsel, they request the Court to exercise that discretion here. V. Conclusion Plaintiffs did not shed their constitutional protections, enhanced under RLUIPA, when they entered ADC walls. ADC’s common fare policy violates Plaintiffs’ rights to practice their religion and treats them unequally in violation of RLUIPA and the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. As a result, Plaintiffs are experiencing continuous and irreparable harm. Plaintiffs respectfully ask that the Court grant this motion, provisionally certify the class set forth in the Complaint (at ¶ 51), enjoin ADC’s enforcement of its common fare meal policy, and provide Plaintiffs and similarly situated individuals with proper kosher meals.

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December 10, 2020 PERKINS COIE LLP

By: /s/ Jordan A. Kroop Jordan A. Kroop (#018825) Thomas Ryerson (#028073) Janet M. Howe (#034615) 2901 North Central Avenue, Suite 2000 Phoenix AZ 85012 [email protected] [email protected] [email protected]

Attorneys for Plaintiffs

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Exhibit 1 Case 2:20-cv-02402-SPL-JFM Document 3 Filed 12/10/20 Page 21 of 59

Declaration of Stacy L. Satzman

I, Jordan A. Kroop, swear to the following statements and information, which I believe to be true to the best of my knowledge. I certify under penalty of perjury, in accordance with 28 USC § 1746, that this declaration is true.

1. My name is Jordan A. Kroop. I am an attorney at Perkins Coie LLP.

2. On December 2, 2020, I had a phone conversation with Stacy L. Satzman, who is my client. I read to him the below, which constitutes a distillation of previous communications I have had with Mr. Satzman over the last several months, formed into a declaration. Mr. Satzman confirmed that the information contained in this document is true to the best of his knowledge.

Introduction

1. My name is Stacy L. Satzman.

2. I have been incarcerated in the Winchester Unit at ASPC Tucson since May 2017.

3. I am Jewish. I adhere to traditional Jewish religious precepts, practices, observances, and obligations. As a central and fundamental part of my Jewish faith and practice, I am obligated eat a kosher diet. I cannot consume any non-kosher food without violating my Jewish faith and religious obligations.

4. As a Jew, I strongly believe that G-d has commanded the Jewish people to keep kosher and has instructed us in how to do so through his Torah. I cannot exercise my Jewish faith and practice without satisfying my absolute obligation to eat only kosher food. My kosher diet is indispensable to and indistinguishable from my Jewishness.

ADC’s Kosher Diet

5. In 2018, ADC approved me to receive their kosher diet plan.

6. If I consumed any non-kosher food, I would no longer be allowed to receive the kosher diet.

7. ADC’s kosher diet included milk, eggs, tuna, relish, fruit, cottage cheese, apple and orange juices, and various kosher meats and cheeses.

8. It also included shelf stable or frozen kosher meals made with kosher meats that the kitchen staff heated in the kitchen’s microwave or oven. Because these meals remained double-sealed at all times, the prison staff could heat them in ovens and microwaves that were also used for non-kosher food without compromising the kosher status of the meals.

9. ADC served these meals unopened, and I ate them with single-use utensils.

10. These premade meals bore a hechsher to certify their kosher status.

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11. I use hechshers, or labels certifying food as kosher, to know what food has been inspected and certified by a highly-trained Orthodox Jewish kosher authority as kosher and, therefore, what food I can and cannot eat.

ADC’s Common Fare Meal

12. On July 2, 2020, with no forewarning, I received an ADC notice that my kosher diet would be replaced with a new “common fare meal plan.”

13. The common fare meal plan is a vegan, plant-based diet. It replaced the kosher meat and dairy products, with beans, hummus, nut butters, and soy-based imitation meats.

14. I am not a vegan or vegetarian, and my faith does not command me to eat a vegan or vegetarian diet.

The Common Fare Diet is Deficient in Quantity, Quality and Variety

15. Under the common fare meal plan, I receive less quantity, lower quality, and narrower variety of foods compared with the kosher meal plan or the standard inmate diet.

16. Under the common fare meal plan, I receive less food than I did under the kosher meal plan. This is due both to the difference in meal plans and to the fact that the kitchen staff does not always supply the correct quantity of food.

17. For example, the kosher meal plan used to have a lunch that consisted of cottage cheese, beans, fresh vegetables, four slices of bread, fruit, and fruit juice. The common fare plan replaced that meal with two cups of beans, two slices of bread, salad, cookie, and a drink.

18. Further, kitchen staff consistently serve incorrect amounts of food under the common fare meal plan. The common fare breakfast menu will require two jelly packets, but the kitchen staff will consistently serve only one or sometimes zero jelly packets. They often do not provide the correct amount of cereal as well.

19. The quality of food between the two diet plans is similarly unequal. The vegetables often come to us either still frozen or rotten. Recently, the staff served a rotten zucchini. I told the kitchen staff and they attempted to replace the moldy vegetable, but the second zucchini was also inedible. The on-duty Sargent took a picture of it and sent it to someone in food production. Now the only vegetable we receive on the common fare diet is either a two-inch piece of zucchini or one wilted leaf of romaine lettuce.

20. Many inmates on the common fare meal plan are experiencing problems with excess fiber and inadequate levels of vitamin D, omega-three, and iron, among other necessary nutrients.

21. I have experienced severe gastrointestinal issues since starting the common fare meal plan, including chronic and uncontrollable diarrhea. After consulting with medical staff on several occasions, I felt forced by medical advice to remove myself from the diet out of fear for

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my health. I am now forced to consume a non-kosher diet in violation of my faith and religious obligations.

22. The kosher meal plan also served a much greater variety of proteins like fish, eggs, nut butters, milk, beans, and kosher meats and cheeses. The common fare meal plan has reduced this variety of proteins to just beans, nut butters, hummus, and imitation meat. The standard inmate diet features a far wider array of protein sources, both animal- and vegetable- based.

Food Products in the Common Fare Meal Plan are Not Kosher

23. There is almost no indication of kosher-status on the meals or the food products served in the common fare diet. Only a small percentage of the packaged food bears a hechsher and, even among those items, some have most recently been replaced with similar items that do not bear a hechsher and are, therefore, reasonably presumed to be non-kosher. Literally none of the unpackaged items bears any indicia of kosher status.

24. Margarine, for example, is served at essentially every meal. At no time has the margarine ever borne a hechsher or other indication that it is kosher. Margarine, unlike certain fresh fruits and vegetables, must be certified kosher by a supervising kosher agency in order to be considered kosher. When non-kosher margarine is served with the kosher food, it renders the entire meal non-kosher.

25. Often, the premade, shelf stable meals are unwrapped to place the non-kosher margarine inside. Both the unwrapping and the inclusion of non-kosher margarine renders the entire meal non-kosher.

26. None of the fresh fruits and vegetables included in the common fare meal plan bear any indication that they are kosher.

The ADC Kitchen Does Not Prepare the Common Fare Meal Consistent with Jewish Dietary Laws

27. Even if the food products and shelf stable entrees were made of kosher food products, ADC’s method of preparation and service of these materials negates that kosher status.

28. The common fare meals are prepared in the same kitchen, using the same appliances, surfaces, and utensils utilized for non-kosher foods.

29. The prepackaged meals are served with only a single layer of wrapping, and that layer is often opened before it is served.

30. The other food products are served in loose saran wrap or plastic cups that are sometimes not sealed.

31. The peanut butter and beans are scooped into a plastic cup from a gallon container.

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32. The kitchen staff erroneously believes that running the preparation and serving utensils and containers through the dishwasher to “sterilize” them between kosher and non- kosher use suffices for purposes of kashruth. Any kosher food processed or made to come into contact with non-kosher food, utensils, containers, surfaces, sinks, or dishwashers is not kosher.

33. I have filed complaints about rotten and missing food with ADC and kitchen staff, but they have gone unanswered.

The Common Fare Meal Plan Burdens my Religious Beliefs

34. I cannot eat these meals without violating my sincerely held religious beliefs. I cannot both meet my religious obligations as a Jew and eat these common fare meals.

35. I also cannot eat these meals without experiencing decline in my physical health. My gastrointestinal health has been severely and negatively affected by the common fare diet, so much so that I recently requested to be removed from the diet on the advice of medical professionals.

36. Replacement of the kosher diet with the common fare diet has forced me to choose between practicing the fundamental tenets of Judaism and my physical well-being.

37. I have filed an informal complaint, but the only ADC response was that the common fare meal complied with kosher guidelines.

38. I filed a formal complaint on August 3, 2020. ADC responded that the common fare diet did not interfere with my right to practice Judaism but did not address any specific concerns about the diet.

39. I appealed this response on August 10, 2020, explaining that the diet is not kosher and the meals served were deficient in quantity, quality, and variety. I have received no response regarding this appeal.

40. ADC’s sole recommendation to me is to remove myself from the common fare diet (and consume the non-kosher standard diet) or buy non-kosher food from the Commissary. I cannot afford the food in the inmate store, and even if I could they do not offer enough kosher food to make up for the deficiencies in the common fare diet.

41. Not eating a kosher diet means I am turning my back on my most sincere beliefs.

42. Only restoration of a truly kosher meal plan will allow me to exercise my basic Jewish religious dietary needs.

I declare under penalty of perjury that the foregoing is true and correct. Executed on December 10, 2020. /s/ Jordan A. Kroop - 4 -

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Exhibit 2 Case 2:20-cv-02402-SPL-JFM Document 3 Filed 12/10/20 Page 26 of 59

Declaration of Daniel Brinauer

1. My name is Jordan A. Kroop. I am an attorney at Perkins Coie LLP.

2. On December 2, 2020, I had a phone conversation with Daniel Brinauer, who is my client. I read to him the text below, which constitutes a distillation of previous communications I have had with Mr. Brinauer over the last several months formed into a declaration. Mr. Brinauer confirmed that the information contained in this document is true to the best of his knowledge.

Introduction

1. My name is Daniel Brinauer.

2. I have been incarcerated at ASPC Tucson Santa Rita Unit since May 2019, originally entering the Arizona State Prison system in August 2017.

3. I am Jewish. I adhere to traditional Jewish religious precepts, practices, observances, and obligations. As a central and fundamental part of my Jewish faith and practice, I am obligated to eat a kosher diet. I cannot consume any non-kosher food without violating my Jewish faith and religious obligations.

ADC’s Kosher Diet

5. In 2017, ADC approved me to receive their kosher diet plan, and I had been receiving the kosher diet plan during a previous prison term.

6. ADC’s kosher diet included milk, eggs, tuna, cottage cheese, fruits, vegetables, and various kosher meats and cheeses.

7. It also included shelf stable or frozen kosher meals that the kitchen staff heated in the kitchen’s microwave or oven. Because these meals remained double-sealed at all times, the prison staff could heat them in ovens and microwaves that were also used for non-kosher food without compromising the kosher status of the meals.

8. ADC served these meals unopened, on separate kosher-only trays, and I ate them with single-use utensils.

149727849.3 Case 2:20-cv-02402-SPL-JFM Document 3 Filed 12/10/20 Page 27 of 59

9. These premade meals bore a hechsher to certify their kosher status.

10. I use hechshers, or labels certifying food as kosher, to know what food has been inspected and certified by a highly-trained Orthodox Jewish kosher authority as kosher and, therefore, what food I can and cannot eat.

ADC’s Common Fare Meal

11. On July 2, 2020, with no forewarning, I received an ADC notice that my kosher diet would be replaced with a new “common fare meal plan.”

12. The common fare meal plan is a vegan, plant-based diet. It replaced the kosher meat and dairy products with beans, hummus, nut butters, and soy-based imitation meats.

The Common Fare Diet is Deficient in Quantity, Quality and Variety

13. Under the common fare meal plan, I receive less quantity, lower quality, and narrower variety of foods compared with the kosher meal plan or the standard inmate diet.

14. Under the common fare meal plan, I receive less food than I did under the kosher meal plan. This is due both to the difference in meal plans and to the fact that the kitchen staff does not always supply the correct quantity of food.

15. For example, the kosher meal plan used to have a lunch that consisted of cottage cheese, beans, fresh vegetables, four slices of bread, fruit, and fruit juice. The common fare plan replaced that meal with two cups of beans, two slices of bread, salad, cookie, and a drink.

16. Further, kitchen staff consistently serve incorrect amounts of food under the common fare meal plan. The menu will call for two cups of beans, yet the kitchen will serve two half-cups of beans. They also consistently provide too little peanut butter or too small a quantity of vegetables. Although there are often promises to rectify these shortages, the missing items never appear. These menu deviations and shortages happen daily.

17. The quality of food between the two diet plans is similarly unequal. The vegetables often come to us either still frozen or rotten. The “tossed salad” is almost always two solitary wilted pieces of undressed lettuce or a leaf of lettuce wrapped in saran wrap. The vegan mock meat hot entrees are inedible, and they serve us the same entree several days in a row. Prepackaged hummus had been replaced with kitchen-made hummus prepared in a non-kosher kitchen, using non-kosher utensils and non-kosher containers. Recently we have begun receiving prepackaged hummus again, but that hummus does not bear a hechsher and, therefore, there is no way to ensure that it is kosher. I cannot eat it without violating the basic tenets of my Jewish faith.

18. Many inmates on the common fare meal plan are experiencing problems with excess fiber and inadequate levels of vitamin D, omega-three, and iron, among other necessary nutrients. Many have requested supplements from the medical provider, but they are not issuing

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Omega 3 or iron supplements. The Omega 3 and iron supplements are available from the inmate store for six dollars a bottle. Purchasing these supplements is not an option for most of us.

19. The kosher meal plan also served a much greater variety of proteins like fish, eggs, nut butters, milk, beans, and kosher meats and cheeses. The common fare meal plan has reduced this variety of proteins to just beans, nut butters, hummus, and imitation meat. Even that variety has narrowed recently, with nearly all protein coming from peanut butter. The standard inmate diet features a far wider array of protein sources, both animal- and vegetable-based.

Food Products in the Common Fare Meal Plan are Not Kosher

20. There is almost no indication of kosher-status on the meals or the food products served in the common fare diet. Only a small percentage of the packaged food bears a hechsher and, even among those items, some have most recently been replaced with similar items that do not bear a hechsher and are, therefore, reasonably presumed to be non-kosher. Literally none of the unpackaged items bears any indicia of kosher status.

21. Margarine, for example, is served at essentially every meal. At no time has the margarine ever borne a hechsher or other indication that it is kosher. Margarine, unlike certain fresh fruits and vegetables, must be certified kosher by a supervising kosher agency in order to be considered kosher. Even if the meals were kosher, serving them with non-kosher margarine renders them non-kosher.

22. Several items are served on a single Styrofoam tray, wrapped together with saran wrap. Including non-kosher items with kosher items in such a fashion renders the entire contents of the tray non-kosher.

23. None of the vegetables included in the common fare meal plan bear any indication that they are kosher. Unless specifically inspected and scrupulously washed to kashrut’s exacting standards, even the undressed, wilted leaves of lettuce constituting the “tossed salad” cannot be considered kosher because they may contain tiny insects that cannot be consumed. We receive no fresh fruit of any kind, but even an apple that has been sliced using a knife used for non-kosher food is not kosher.

24. The daily caloric value of the common fare kosher food products is approximately 1100 calories per day.

The ADC Kitchen Does Not Prepare the Common Fare Meal Consistent with Jewish Dietary Laws

25. Even were the food products and shelf stable entrees made of kosher food products, the ADC’s method of preparation and service of these materials negates that kosher status.

26. The common fare meals are prepared in the same centralized food facility, using the same appliances, surfaces, and utensils utilized for non-kosher foods.

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27. When confronted with questions regarding the kosher status of common fare meals, ADC employees and contractors have repeatedly confirmed that “the food isn’t kosher anymore. It’s common fare meals, not kosher.”

28. Kitchen staff have said continuously that under the common fare diet they are no longer required to serve a kosher diet.

29. The staff has since removed all inmate diet cards with a “kosher” label.

30. My kosher diet card expired on October 5, 2020. I e-mailed the Chaplain to renew it, and I was told there is no longer a kosher diet.

The Common Fare Meal Plan Burdens my Religious Beliefs

31. I cannot eat these meals without violating my sincerely held religious beliefs. I cannot both meet my religious obligations as a Jew and eat these common fare meals.

32. I must now choose between starving and practicing the fundamental tenets of Judaism.

33. When confronted with the inadequacies of what falsely purports to be a kosher meal plan, kitchen employees and the ADC have reacted with apathy and ignorance.

34. Food service staff refuse to consider complaints or notices of deficiencies and inadequacies of the diet. They have ceased writing or tracking incident reports on problems with the diet.

35. I filed an informal ADC complaint that went unanswered. I have completed all steps required to seek an Administrative Remedy, which includes the filing of a formal grievance as well as an appeal, to which I have received no response.

36. Correctional staff are now refusing to complete incident reports when inmates indicate multiple menu deviations. They say they have done it once and will not do it again.

37. They encourage inmates to take up all complaints with Trinity Food Services, who reiterate that they are no longer required to provide a kosher diet.

38. ADC only recommends that I either remove myself from the common fare diet (and consume the non-kosher standard diet) or buy some of the few technically kosher food items (mostly snack items) from the Commissary. Neither is an option for me.

39. I do not regularly receive financial assistance from family outside of prison. At most, inmate wages are approximately $12 a month. After deductions for soap, shampoo, and other hygiene products, it does not leave much to spend on goods from the inmate store.

40. Only restoration of a truly kosher meal plan will allow me to exercise my basic Jewish religious dietary needs.

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41. The last few months surviving on this diet and maintaining my faith have been a burden and a hardship, but it has brought together the few core practicing Jews at ASPC Tucson Santa Rita Unit. We have shared our limited resources to ensure that none of us has truly starved. We have found innovative ways to enjoy what little we have.

I declare under penalty of perjury that the foregoing is true and correct.

Executed on December 10, 2020.

/s/ Jordan A. Kroop

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Exhibit 3 Case 2:20-cv-02402-SPL-JFM Document 3 Filed 12/10/20 Page 32 of 59

CORRECTIONS Ari~una Department of Corrections ;t~: n ~ Rehabilitation and Reentry

AQC I~nmatie Notification

SUBJECT ISSUED NOTIFICATION NUMBER

Common Fare Meal July 2, 2020 20-15

This information is to be posted for a minimum of 30 days in areas accessible to inmates and shall be made available to inmates who do not have access to posted copies.

NOTICE

Effective August 1, 2020, religious and kosher diets are Ueing replaced with a plant. based vegan common fare meal which meets religious requu~ements foc ]coshes, I~alal and all other religions. The ~conimon fare meal will also be offered to general population inmates upon request. Inmates requesting the common fare meal s(~all notify the chaplain (religi~>us reasons) or their CO Ill (personal raisons) at least 30 days prior to the start of tl~e diet. If rcquestiiig to cancel the common fare meal tl~e inmate shall give a 30 day notice to the chaplain (religious reasons) or CO III (personal reasons) prior to the c~incelation of the diet.

— ------David Shinn Director Case 2:20-cv-02402-SPL-JFM Document 3 Filed 12/10/20 Page 33 of 59

Exhibit 4 Case 2:20-cv-02402-SPL-JFM Document 3 Filed 12/10/20 Page 34 of 59

Declaration of Rabbi Eli Putney

1. My name is Jordan A. Kroop. I am an attorney at Perkins Coie LLP.

2. On December 10, 2020, I had a phone conversation with Rabbi Eli Putney. I read to him the text below, which constitutes a distillation of previous communications I have had with Rabbi Putney over the last several months formed into a declaration. Rabbi Putney confirmed that the information contained in this document is true to the best of his knowledge.

Introduction

1. My name is Eli Putney.

2. I have been an Orthodox rabbi for 13 years. I currently make my home in Scottsdale, Arizona.

3. I have been ordained by the Chief Justice of the High Rabbinic Court in Jerusalem, trained in the industrial, commercial, and domestic practical applications of kashruth under recognized leaders, and have been active in the mass production of kosher food since 2010.

4. As an Orthodox rabbi, I adhere to the standards of Jewish dietary law (“kashruth”) as interpreted by classic Rabbinic law.1

Kashruth

5. Keeping kosher requires a strict adherence to kashruth, a vast system of legal prescriptions and strictures spelled out millennia ago in Jewish law. The principal laws of kashruth, governing the types of animal meats that can and cannot be eaten and the strict separation of meat and dairy, are found in the Torah (the Five Books of Moses or, as Christians typically call it, the “Old Testament”), mostly, but not entirely, in the book of Leviticus. Jewish tradition holds that G-d gave the entire Torah to the Jewish people, through Moses, on Mt. Sinai some 3,300 years ago. In the first several hundred years after that, the laws of kashruth were

1 This declaration is factually accurate in all respects, but it does omit certain deep-level nuances and highly- technical explanations of the general, universally-adhered-to concepts of the laws of kashruth described below. Fully delving into a more nuanced dissertation of the religious laws described in this declaration is, respectfully, in my opinion, considerably beyond the scope of relevancy for the present purposes and would require scores more pages to even begin. The religious legal concepts I attest to in this declaration remain subject to an enormous amount of nuance to which I am willing to testify if the Court requires it.

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codified and elucidated by Torah sages whose legal pronouncements were recorded in an encyclopedic work the Jews call the Talmud (Hebrew for “teaching”). Deuteronomy 12:21 makes clear that the Torah includes not only the laws written in the Five Books of Moses but also the laws orally transmitted to Moses and passed down through the ages, intact, through an unbroken oral tradition of Torah scholars. Much of kashruth derives from the Oral Torah.

6. The entirety of kashruth could—and does—require volumes of books to fully explore and understand. Kosher certification professionals study for literally decades to obtain the necessary mastery of the laws of kashruth. For purposes of this lawsuit, it suffices for this Court to appreciate that kashruth contains specific laws regarding, among many, many other things: (a) the types of animals kosher meat can come from; (b) the parts of the body kosher meat can come from; (c) the precise method and circumstances of slaughtering kosher animals; (d) the sources of kosher dairy products; (e) the precise method and circumstances of obtaining and creating kosher dairy products; (f) the inspection for, and proper removal of insects from fresh fruits and vegetables before they are cooked or even consumed raw; (g) the myriad methods, strictures, and circumstances associated with the strict separation of meat and poultry from dairy; (h) the types of “neutral” foods that may be consumed with either meat or dairy in a particular meal; and (i) limitations on the source and use of certain wine and grape products. Kashruth also contains extensive laws regarding the physical construction, maintenance, and proper cleaning of all vessels, utensils, and instruments used in the preparation of kosher food.

7. In summary, to properly conform to kashruth, kosher food must meet specific, religiously prescribed standards for both acceptable sources of food and methods of food preparation.

Food Source

8. It would be incorrect to assume that a vegan meal plan is free from kashruth implications simply because it contains neither meat nor dairy foods. Kashruth contains hundreds of rules associated with foods included in even a vegan diet.

9. Many unprocessed fruits and vegetables are generally kosher when harvested. But they can lose their kosher status if they are handled improperly, cut or peeled with knives previously used for non-kosher food, prepared using equipment previously used for non-kosher food, or improperly washed.

10. Insects are not kosher. Food products with insects on them are therefore not kosher. Many fruits and vegetables such as most lettuce, spinach, kale, strawberries, cauliflower, broccoli, and raspberries remain contaminated by small insects after post-harvest washing, rendering those items non-kosher unless and until they are scrupulously inspected and washed according to kosher strictures to ensure that all traces of insects are removed. While, for example, the FDA maintains a tolerance for an average of 60 or more aphids, thrips, or mites per 100 grams of frozen broccoli, broccoli cannot be considered kosher unless it is confirmed to be free of insects.

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11. Because most commercially grown produce and manufactured products are likely to experience some insect infiltration, they should not be considered kosher absent a kosher control point, which ensures that proper insect mitigation has already occurred.

12. A hechsher is a stamp, emblem, or icon that is placed on food products to indicate a kosher certifying agency’s rabbinical endorsement of the food preparation and packing facility and methods. A hechsher officially verifies a food product’s kosher status and conformity with kashruth.

13. With limited exceptions for certain fruits, vegetables, and beverages, food cannot be verified as kosher without a hechsher.

Food Preparation

14. Kosher food becomes non-kosher if it is: (a) mixed with non-kosher food; (2) cooked in or prepared using pots, pans, or utensils that have been used in the preparation of non-kosher food; (3) cooked in an oven used for non-kosher food; or (4) cooked or stored in pots, pans, containers, or utensils that were cleaned in a dishwasher also used for non-kosher kitchen items.

15. Kashruth also requires strict separation of meat and poultry from dairy products. They must not be consumed in the same meal or prepared and served in common vessels or with common utensils. Every kosher kitchen facility maintains at least two sets of all utensils and vessels—one set for use with meats, and one set for use with dairy products.

16. Food preparation and service materials can only be transitioned from non-kosher to kosher use if they are “kashered.”

17. Kashering is an exacting and detailed process derived from biblically prescribed (Numbers 31:23) methods taken from Jewish law that requires, among many other things, oversight by a person intimately familiar with kashruth, boiling in water, high temperatures, open flames, and other extraordinary measures.

18. Proper kashering cannot be achieved by simply washing, running materials through a dishwasher, or other common kitchen sterilization techniques.

19. Several types of common kitchen tools and containers, once used for non-kosher food, cannot be kashered. Once these items have been used for non-kosher use, they cannot ever be used with kosher food.

ADC Needs Rabbinical Oversight to Properly Offer Kosher Foods

20. Considering kashruth’s complexity and stringency, it is nearly impossible for food processed, produced, prepared, or handled in any public facility to be considered kosher unless that facility is under the supervision of an Orthodox rabbi.

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21. Only Orthodox supervision provides reasonable assurance to all kosher meal participants that their food is indeed kosher.

I declare under penalty of perjury that the foregoing is true and correct.

Executed on December 10, 2020.

/s/ Jordan A. Kroop

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Exhibit 5 Case 2:20-cv-02402-SPL-JFM Document 3 Filed 12/10/20 Page 39 of 59

CHAPTER: 900

Inmate Programs and Services

DEPARTMENT ORDER: Arizona 904 – Inmate Religious Activities/Marriage Requests Department OFFICE OF PRIMARY RESPONSIBILITY: of DIR OPS Corrections IP&R Rehabilitation Effective Date: June 11, 2016 and Reentry Amendment: July 13, 2020 Supersedes: DO 904 (2/12/11) DI 318 (11/22/13)

Scheduled Review Date: January 1, 2021

Department Order Manual ACCESS ☐ Contains Restricted Section(s)

David Shinn, Director

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CHAPTER: 900 904 – INMATE RELIGIOUS ACTIVITIES/MARRIAGE REQUESTS JUNE 11, 2016

TABLE OF CONTENTS

PURPOSE ...... 1 PROCEDURES ...... 1 1.0 PASTORAL SERVICES ...... 1

2.0 RELIGIOUS PREFERENCES ...... 2

3.0 RELIGIOUS ACTIVITIES ...... 3

4.0 RELIGIOUS ACCOMMODATIONS ...... 5

5.0 RELIGIOUS VISITATION ...... 13

6.0 MARRIAGE ...... 14

DEFINITIONS/GLOSSARY ...... 16 ATTACHMENTS ...... 16 FORMS LIST ...... 16 AUTHORITY ...... 16

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PURPOSE

The purpose of this Department Order is to ensure inmates are allowed to participate in religious activities, have access to religious materials, religious diets and other legitimate aspects of their faith and, if approved, may marry in accordance with state law. PROCEDURES

1.0 PASTORAL SERVICES

1.1 The Religious and Volunteer Services Administrator shall:

1.1.1 Directly supervise senior chaplains at all institutions.

1.1.2 Make recommendations to the Director regarding Department-wide religious issues.

1.1.3 Provide verbal and/or written directives for the resolution of issues related to religious publications, diets, articles, apparel, practices and observances.

1.2 Wardens and Deputy Wardens shall ensure:

1.2.1 Chaplains and inmates have access to each other.

1.2.2 Staff consults with the chaplain's office regarding any questionable religious item(s).

1.2.2.1 Chaplains, in consultation with the Warden and the Religious and Volunteer Services Administrator shall make final decisions on whether or not the item(s) are permitted. Inmates may appeal this decision by filing a grievance in accordance with Department Order #802, Inmate Grievance Procedure.

1.3 At Department-operated institutions, senior chaplains shall:

1.3.1 Report directly to the Religious and Volunteer Services Administrator.

1.3.2 Supervise other chaplains within an institution.

1.3.3 Attend Wardens’ management meetings as members of the executive staff representing the religious program.

1.3.4 Ensure at least one chaplain is available to attend Deputy Warden unit meetings, upon request.

1.3.5 Ensure appropriate chaplaincy coverage is maintained at each institution, including on Saturdays and Sundays.

1.3.6 Create and manage all religious programs at the institution.

1.3.7 Serve as the contact for all outside religious activities, persons or groups requesting institution admittance for religious purposes.

1.3.8 Ensure unit chaplains interact with inmates during their daily activities (e.g., dining, recreation, work, etc.) for moral and religious instruction.

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1.3.9 Ensure inmates in detention or disciplinary detention have access to and are visited by chaplains as often as possible.

1.3.10 Ensure all chaplains conduct a minimum of two services per month at the assigned institution or unit.

1.3.11 Coordinate with Wardens, Deputy Wardens or designees to notify inmates of serious illnesses or deaths in their immediate families, as outlined in Department Order #1005, Escorted Inmate Leave for Family Serious Illness or Funeral, using the Chaplain’s Emergency Call Record, Form 904-4.

1.3.11.1 Other chaplains may assist in the notification process if on duty, but no chaplain shall be called back to work to make notifications.

1.4 Private prison facilities shall conduct 1.3.1 through 1.3.11.1 of this section in accordance with contractual agreements.

2.0 RELIGIOUS PREFERENCES

2.1 Inmates shall be given the opportunity to designate religious preferences during their initial intake process. This designation shall be entered on Inmate Orientation, Form 901-5.

2.1.1 Inmates shall be provided additional opportunities to designate religious preferences after their unit orientation if they did not do so during their initial intake process.

2.1.2 Inmates may designate "none" during either of the processes outlined above.

2.1.2.1 Inmates not designating religious preferences shall not be permitted to request religious privileges, except as outlined below in 2.2 through 2.2.2 of this section.

2.2 Inmates may request changes to their religious preference at any time by:

2.2.1 Submitting Inmate Letters, Form 916-1, to senior chaplains/chaplains for processing and distribution.

2.2.2 Providing additional requested information or documentation if within one year of a previous religious preference designation.

2.3 Native American Ethnicity – Due to the sacred nature of Sweat Lodges, participation in Sweat Lodge ceremonies requires Native American ethnicity verification.

2.3.1 Prior to the authorization of privileges, inmates not ethnically identified as Native American shall provide verification to their senior chaplain/chaplain. Verification shall include evidence inmates are:

2.3.1.1 Descended from a United States (U.S.) Tribe, and may have a valid Bureau of Indian Affairs or Tribal number.

2.3.1.2 Presently a member of a U.S. Indian Community.

2.3.1.3 Duly recognized by a U.S. Indian Community.

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2.3.2 Senior chaplains/chaplains shall forward inmates’ verification information to the Religious and Volunteer Services Administrator for review.

2.3.2.1 Upon confirmation by recognized Native American Leaders, the Religious and Volunteer Services Administrator shall:

2.3.2.1.1 Approve or disapprove inmates’ eligibility.

2.3.2.1.2 Notify senior chaplains/chaplains the disposition.

2.3.2.1.3 Enter approved inmates’ eligibility information on the Arizona Correctional Information System (ACIS).

3.0 RELIGIOUS ACTIVITIES

3.1 Wardens, Deputy Wardens and other Administrators shall ensure staff:

3.1.1 Demonstrate respect of inmates' religious beliefs.

3.1.2 Do not coerce or harass inmates into changing their religious affiliations.

3.1.3 Treat faith system representatives with equal respect, regardless of their represented faith.

3.2 Wardens, in conjunction with the Religious and Volunteer Services Administrator shall:

3.2.1 Appoint staff members to coordinate religious activities when no chaplains are assigned.

3.2.2 Designate in each unit at least one appropriate area for religious activities.

3.2.2.1 Designated areas do not need to be solely used for religious activities.

3.2.3 Ensure faith groups’ religious symbols are displayed only during religious activities and are removed and stored at all other times.

3.3 Contract Beds Monitors shall ensure private prison facilities provide space for religious activities.

3.4 Religious Publications – Wardens and Deputy Wardens shall ensure institution Inmate Resource Center/libraries include religion sections for religious publications.

3.4.1 Religious publications are inventoried and managed by librarians in consultation with senior chaplains.

3.4.2 Publications threatening the safety and security of the institution (e.g., materials that advocate violence, rebellion or blatant prejudice/bigotry against any race or creed) shall not be included.

3.4.3 Inmate Resource Center/library donations shall become the property of the Department in accordance with Department Order #301, Fiscal Management.

3.4.4 No separate, designated religious libraries shall be maintained.

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3.4.5 Some religious material may be maintained in a unit where a chaplain has an office or in areas designated for religious activity.

3.5 Number/Length of Religious Activities or Services

3.5.1 The senior chaplain/chaplain, in conjunction with Wardens, shall determine the number of formal religious activities per unit per week following an assessment of the religious needs of the institution/unit. Private prison facilities shall conduct activities in accordance with contractual requirements.

3.5.2 Regular worship/study opportunities shall be provided for faith groups based on:

3.5.2.1 Inmate requests.

3.5.2.2 Space availability.

3.5.2.3 Time considerations of the monthly religious services calendar.

3.5.2.4 Institutions’ safety and security requirements.

3.5.2.5 Availability of a qualified religious leadership.

3.5.3 Services assisted with or conducted by volunteers shall be scheduled for a minimum of 90 minutes, unless a shorter duration is requested by volunteers.

3.5.4 All group religious services shall end no later than 2000 hours.

3.6 Coordination of and Security for Religious Activities

3.6.1 Senior chaplains/chaplains shall coordinate all religious activities, groups, and individual/group religious volunteers.

3.6.2 Wardens and Deputy Wardens shall:

3.6.2.1 Provide the necessary security staffing for religious activities.

3.6.2.2 Ensure assigned security staff does not participate in the activities.

3.7 Requests to Conduct Religious Activities

3.7.1 Outside religious groups wanting to conduct religious activities in the institutions shall submit written requests to senior chaplains/chaplains. The request shall include the:

3.7.1.1 Name and contact information of the group.

3.7.1.2 Type of activity.

3.7.1.3 Proposed date and time of the activity.

3.7.1.4 Materials/equipment to be used.

3.7.2 Wardens or Deputy Wardens, in consultation with senior chaplains/chaplains, shall approve or disapprove requests within five workdays of receipt.

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3.7.3 Senior chaplains/chaplains shall advise outside religious groups of the decision in writing, including the reasoning if the request has been disapproved.

4.0 RELIGIOUS ACCOMMODATIONS

4.1 Religious Claims

4.1.1 Wardens or Deputy Wardens shall:

4.1.1.1 Consult with senior chaplains, chaplains or the Religious and Volunteer Services Administrator on the validity of inmates’ religious claims.

4.1.1.2 Ensure inmates following faith systems requiring having/wearing of religious apparel are accommodated within the compelling interests.

4.1.1.3 Ensure inmates are not denied access to approved religious items or opportunities as part of the sanctions of disciplinary isolation, unless specifically restricted by custody level and security of their housing unit.

4.1.2 Senior chaplains/chaplains may contact the Religious and Volunteer Services Administrator for clarification on appropriate religious publications and materials, special religious diets or other special requirements inmates’ faith systems.

4.1.3 Religious items used in the practice of inmates’ chosen religions may be authorized provided the items:

4.1.3.1 Do not pose a threat to the safe, secure and orderly operation of the institution.

4.1.3.2 Are on the list of approved items maintained by Religious and Volunteer Services Administrator that is updated and distributed to all institutions. Authorized personal religious items may be kept in the possession of inmates in accordance with 4.1.3.3 of this section.

4.1.3.3 When not in use, are stored collectively within inmates’ storage box as outlined in Department Order #704, Inmate Regulations.

4.1.4 Approved property items not available in the Inmate Store shall be ordered from approved sources and paid for from inmate accounts. To order religious items, inmates shall submit their requests to senior chaplains using Inmate Letters and shall include the following information:

4.1.4.1 A description of each item, including each item’s size.

4.1.4.2 Where each item is available, including each source’s name and contact information.

4.1.4.3 A complete itemized list of all previously approved religious items currently in their possession.

4.1.5 Included with Inmate Letters, inmates shall also provide senior chaplains:

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4.1.5.1 Completed and signed Inmate Request for Withdrawal, Form 905-1, for the total amount of their orders, including any applicable shipping and handling charges unless the ordered item(s) are provided free of charge by the approved source.

4.1.5.2 Completed order forms from approved sources.

4.1.5.2.1 Order forms may be handmade if the company accepts them.

4.1.5.3 Completed and stamped envelopes addressed to the approved sources.

4.1.6 Senior chaplains shall:

4.1.6.1 Verify inmates’ religious preferences.

4.1.6.2 Determine if requested items are on the approved items list for inmates’ religious preference.

4.1.6.3 Approve or deny requests.

4.1.6.4 Forward the information on requested items not currently approved to the Religious and Volunteer Services Administrator.

4.1.7 Staff assigned to Inmate Banking shall only accept and process orders for religious items approved by senior chaplains.

4.1.7.1 When approved items are unavailable for purchase through approved sources (e.g., eagle feathers) senior chaplains, in consultation with the Religious and Volunteer Services Administrator, shall determine the method for obtaining the items.

4.1.8 Other ceremonial use of religious items is permitted as follows:

4.1.8.1 Smudging material

4.1.8.1.1 Smudging (smoldering herbs) by followers of religious traditions that smudge is permitted, unless specifically restricted by the custody level and security of the unit.

4.1.8.1.2 Locations and times of this activity shall be determined by senior chaplains and Deputy Wardens.

4.1.8.2 Sacramental wine

4.1.8.2.1 If permitted by the religious tenets, no more than two ounces shall be allowed for use only by priests, chaplains or religious leaders.

4.1.8.2.2 Inmates shall not partake of sacramental wine.

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4.1.8.3 Communion supplies

4.1.8.3.1 Volunteers, pastoral visitors and staff chaplains may bring in communion supplies for religious ceremonies with prior approval from the chaplain, in consultation with Wardens/Deputy Wardens.

4.1.8.3.2 Only a sufficient supply for participants in scheduled services shall be authorized and any remaining supply shall be taken out of institutions by volunteers/visitors at departure.

4.1.8.3.3 Other requested supplies/items may be authorized for group ceremony by the senior chaplains after consultation/ approval from the Religious and Volunteer Services Administrator and Wardens/Deputy Wardens.

4.2 Requests for Work Abstinence

4.2.1 Inmates may request to be excused from work on specified holy days, documented as "no-work" days for the religion in question.

4.2.2 Inmates requesting to abstain from work shall remain in their cells or dormitory on the requested days and refrain from recreation activities, phone calls, shopping at the Inmate Store, etc.

4.2.2.1 Inmates may leave their cell or dormitory to accomplish routine institutional practices such as showers and meals when directed by staff.

4.2.3 Requests to observe "no-work" days recurring each week, such as Sundays and Sabbaths:

4.2.3.1 These requests shall be submitted in writing to senior chaplains.

4.2.3.2 Senior chaplains shall consult with Wardens/Deputy Wardens or their designees regarding appropriate work assignments prior to approval.

4.2.4 Requests to observe "no-work" days not recurring each week:

4.2.4.1 These requests shall be submitted in writing to senior chaplains 30 calendar days prior to the day in question.

4.2.4.2 Senior chaplains shall consult with work supervisors and/or Deputy Wardens or their designees regarding appropriate work assignments prior to approval.

4.2.5 Questions regarding days documented as "no-work" days for a particular religion shall be referred to the Religious and Volunteer Services Administrator for disposition.

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4.3 Requests for Food Abstinence

4.3.1 Inmates requesting and granted approval to refrain from food on designated days or for designated periods, such as Ramadan, shall not be required to turn out for meals and shall not be penalized for failure to take their designated diet.

4.3.2 Food abstinence may be requested in accordance with provisions for fasting outlined in the Food Service Technical Manual, 912-T-OPS.

4.3.3 Questions regarding religious fast requests for a particular religion shall be referred to the Religious and Volunteer Services Administrator for a decision.

4.4 Special Religious Ceremonies/Property

4.4.1 Sweat Lodges

4.4.1.1 Sweat Lodge ceremonies are:

4.4.1.1.1 Held for the purification of participants.

4.4.1.1.2 Typically three to four hours in length.

4.4.1.1.3 Operated according to a schedule published by chaplains.

4.4.1.2 Chaplains shall:

4.4.1.2.1 Publish a list of approved participants.

4.4.1.2.2 Monitor compliance with the Sweat guidelines established in Attachment C.

4.4.1.3 Sweat Lodge ceremonies may be held on a weekly basis and may be assisted by Native American spiritual advisors provided wood is available and no security or other operational concerns prohibit this frequency.

4.4.1.3.1 At locations where security requires the presence of advisors to perform the Sweat, ceremonies shall be scheduled when advisors are available.

4.4.1.3.2 If firewood is not available through donations, inmates may purchase firewood exclusively for use in a Sweat ceremony by submitting a request to a senior chaplain in accordance with 4.1.4 and 4.1.5 of this section. The public may donate toward these purchases in accordance with Department Order #301, Fiscal Management.

4.4.1.3.2.1 Firewood purchases may be requested for group ceremony involving all eligible participants or for personal ceremony involving no other inmates.

4.4.1.4 Male participants shall wear shorts covering their genital and buttocks areas.

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4.4.1.5 Female participants shall wear shorts, shirts or T-shirts and brassieres.

4.4.1.6 Staff shall facilitate the lighting of the fire for Sweat Lodge ceremonies.

4.4.1.7 Sweat Lodges shall be located on the grounds of all institutions where a sufficient number of eligible Native American inmates are able to participate in Sweat Lodge ceremonies and inmate requests have been made for a Sweat Lodge.

4.4.1.8 Sweat Lodges shall be constructed in an area approximately 30 by 40 feet under the guidance of an approved Native American advisor. Refer to Attachment B for construction specifics.

4.4.1.9 Sweat Lodge sites and all associated storage areas are subject to search. As Sweat Lodges and fire pits are sacred areas, searches shall be conducted with prior approval from Shift Commanders and appropriate notification of Wardens or Deputy Wardens and chaplains.

4.4.1.10 Sweat Lodge areas shall be kept clean at all times and shall include a secure place to store religious items and materials. Participants shall be responsible for maintaining the site and any authorized ceremonial supplies.

4.4.1.11 Sweat Lodge areas may be screened with wooden fences or other material for privacy and respect provided it does not jeopardize security.

4.4.1.12 Sweat Lodge areas shall only be used for Sweat ceremonies.

4.4.2 Multi-faith Gatherings

4.4.2.1 Religious ceremonies may be held on a weekly basis.

4.4.2.2 The details, times and location shall be arranged through chaplains, in consultation with Wardens, Deputy Wardens or Chiefs of Security, and shall include religions:

4.4.2.2.1 Not having identified volunteer leadership.

4.4.2.2.2 Not already scheduled for weekly ceremonies.

4.4.2.2.3 Having a sufficient number of inmates making the request for group ceremonies.

4.4.3 Smoke Generating Ceremonies

4.4.3.1 Smoke Generating Ceremonies are religious ceremonies involving activities generating smoke, including group and personal smudging and pipe ceremonies.

4.4.3.2 The frequency and details of group ceremonies shall be arranged through chaplains, in consultation with Wardens, Deputy Wardens or Chiefs of Security.

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4.4.3.3 Smoke-generating ceremonies shall only be conducted outdoors.

4.4.3.3.1 Inmates in detention or a Special Management Unit (SMU) shall be allowed to conduct the ceremonies only during their regularly scheduled exercise time in an approved exercise area.

4.4.3.3.2 Personal ceremonies for inmates not on lockdown shall be conducted during an inmates’ free time on the open yard at locations authorized by Deputy Wardens or designees.

4.4.4 Special Annual Religious Events

4.4.4.1 Special Annual Religious Events are closed religious events limited to inmates with religious preference designations for the religion in question, volunteers and guest performers not on participating inmates’ visitation list.

4.4.4.2 These events shall be planned by chaplains in consultation and with the assistance of outside sponsors and inmate representatives.

4.4.4.3 Wardens or Deputy Wardens shall approve the final selection list of inmate attendees from Close and Maximum Custody units.

4.4.4.4 Attachment A of this Department Order provides established guidelines to be followed regarding the authorization and scheduling of events assisted by outside sponsors.

4.4.5 Restroom or port-a-john facilities shall be available for participants of Sweat Lodge ceremonies and special annual religious events. Use of these facilities shall not terminate participation in ceremonies.

4.4.6 Religious/Ceremonial Property

4.4.6.1 All religious property approved by chaplains or by the Religious and Volunteer Services Administrator shall be inspected by the appropriate security staff prior to introduction into institutions/units.

4.4.6.2 All religious property, to include headwear, is subject to periodic security inspection and shall be handled with appropriate respect in accordance with Department Order #708, Searches.

4.4.6.3 Inmates shall not keep the following approved religious items in their possession:

4.4.6.3.1 Ceremonial items or supplies, such as ceremonial pipes, drums, musical equipment, and communion supplies, shall be stored in a secure area supervised and inventoried by chaplains.

4.4.6.3.2 Firewood shall be stored in an acceptable area as determined by the Warden or designee.

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4.4.6.3.2.1 Firewood purchased by inmates shall only be used for Sweat ceremonies and shall not be traded, loaned, bartered or sold. Individually purchased firewood shall be disposed of in accordance with Department Order #909, Inmate Property.

4.4.6.4 Inmates in detention or a SMU shall not possess items specified in this section, such as smudging supplies, in their cells. Wardens/Deputy Wardens shall designate the items permitted. Items not approved for personal possession in these instances shall be kept in secure areas designated by Wardens or Deputy Wardens. If a supply of these items is available, inmates may be allowed access for the purpose of engaging in personal religious ceremonies.

4.4.6.4.1 Health and welfare indigent inmates may use supplies donated for group ceremonies. Chaplains shall manage the distribution of donated supplies.

4.4.6.5 Religious symbols or clothing items, excluding headwear, may be worn openly only during religious ceremonies and at no other time or place. These ceremonies include:

4.4.6.5.1 Approved group religious ceremonies.

4.4.6.5.2 Personal ceremonies in inmates’ own living spaces or recreation pens for lockdown inmates.

4.4.6.6 Religious headwear may be worn throughout the unit in accordance with the inmates’ identified religious belief. Unless otherwise stated, all headwear is limited to one item only. [Revision – July 13, 2020]

4.4.6.6.1 Inmates who have declared a religious preference listed below are authorized to wear the following religious headwear:

4.4.6.6.1.1 Jewish yarmulke - black or white

4.4.6.6.1.2 Morrish Science Temple of America (MST of A) kufi - black or white crochet cap

4.4.6.6.1.3 Muslim kufi (men) - black or white crochet cap; Hijab (women) – black or white tube scarf for covering the head and neck

4.4.6.6.1.4 Native American headband/bandana – The headband or bandana may be worn only in a circle covering the forehead, but not the crown of the head. [Revision – July 13, 2020: Section 4.4.6.6.1.4 thru 4.4.6.6.1.4.2]

4.4.6.6.1.4.1 Headband - multi-colored, a maximum of three headbands

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4.4.6.6.1.4.2 Bandana – maximum of six paisley print style, permitted colors: black, blue, green, red, white, yellow

4.4.6.6.1.5 Rastafarian crown (may not have a bill) -multi- colored (red, yellow, green threads running through a black cap)

4.4.6.6.1.6 Sikh turban - white

4.4.6.6.1.7 Aztec (bandana) – maximum of six paisley print style, permitted colors: black, blue, green, red, white, yellow [Revision – July 13, 2020]

4.4.6.6.1.8 Druid (bandana) – If a solid color it shall not be blue, brown, black or tan [Revision – July 13, 2020]

4.4.6.6.1.9 Orthodox Christian (head covering) - maximum size 24“ by 24“. If a solid color it shall not be blue, brown, black or tan [Revision – July 13, 2020]

4.4.6.6.1.10 Santeria – Tam (head covering) – If a solid color it shall not be blue, brown, black or tan [Revision – July 13, 2020]

4.4.6.6.2 Headwear may not contain graphics or writing.

4.4.6.7 Candles - Wax candles shall be allowed in group religious ceremonies where their requirement has been documented by designated religious leaders and approved by the Religious and Volunteer Services Administrator.

4.4.6.7.1 Wax candle usage shall be restricted to Minimum and Medium Custody level units.

4.4.6.7.1.1 In units other than Minimum or Medium Custody or where a chaplain or volunteer is not available, candle usage shall be restricted to electric candles only.

4.4.6.7.2 Ceremonies where wax candles are utilized shall be led by chaplains, authorized religious leaders or badged ADC volunteers.

4.4.6.7.3 Inmates shall not possess wax candles at any time.

4.4.6.7.4 Possession of Shabbat Candles which are watch battery operated are permitted for the religions requiring the use of Shabbat Candles. Possession is for all custody levels.

4.4.6.7.4.1 Request to purchase Shabbat Candles shall follow the approved property process outlined in this section. Case 2:20-cv-02402-SPL-JFM Document 3 Filed 12/10/20 Page 53 of 59

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4.5 Religious Diets - Religious diets are accommodated with a Common Fare Meal (CFM) which meets the dietary requirement for Halal, Kosher and Vegetarian standards. [Revision – July 13, 2020: Section 4.5 thru 4.5.4.1]

4.5.1 Inmates wanting to observe religious dietary laws shall provide an Inmate Letter requesting to participate in the CFM to institutional chaplains.

4.5.1.1 Requests shall be submitted 30 calendar days prior to the desired start date of the CFM. Cancellation of the CFM shall be submitted 30 calendar days prior to the end of the CFM so there will be no suspension of the diet.

4.5.2 Requests for a CFM shall be accommodated to the extent practicable within the constraints of budgetary limitations, security and the orderly operation of the institution.

4.5.3 Requests to observe CFM for religious purposes shall be in accordance with Department Order #912, Food Service and the Food Service Technical Manual.

4.5.4 The CFM provided for religious reasons shall be suspended if five meals are missed in a seven day period without justifiable reasons. The complex senior chaplain shall verify the justification and either suspend or reinstate the CFM.

4.5.4.1 The first suspension shall be for six months and the second shall be for one year.

5.0 RELIGIOUS VISITATION – Wardens and Deputy Wardens shall encourage religious visitation between religious leaders and inmates.

5.1 Visits by Religious Leaders

5.1.1 Senior chaplains/chaplains shall arrange all religious and pastoral visits by initiating the Request for Pastoral Visit, Form 904-5. Authorization for religious visits may be at the discretion of the Warden or Deputy Warden.

5.1.2 Wardens or Deputy Wardens may deny religious visits which may threaten the safety and/or security of the institution.

5.1.3 Inmates shall request or consent to visits by accredited ministers or religious leaders prior to visit authorization.

5.1.4 Senior chaplains/chaplains shall verify the credentials and/or accreditation of the visiting religious leader(s).

5.1.4.1 Wardens, Deputy Wardens or senior chaplains/chaplains shall consult with the Religious and Volunteer Services Administrator when there is a question regarding the validity of visiting religious leaders’ credentials.

5.1.5 After their credentials have been verified, senior chaplains/chaplains shall facilitate pastoral visits including distributing appropriate gate passes.

5.1.6 Pastoral visitors shall not be placed on inmates’ visitation list.

5.2 Emergency Visits - At the discretion of Wardens or Deputy Wardens, emergency religious visits may be permitted based on the severity of the emergency and the safety and/or security of the institution. Case 2:20-cv-02402-SPL-JFM Document 3 Filed 12/10/20 Page 54 of 59

CHAPTER: 900 PAGE 14 904 – INMATE RELIGIOUS ACTIVITIES/MARRIAGE REQUESTS JUNE 11, 2016

6.0 MARRIAGE

6.1 Inmates shall obtain a Marriage Application, Form 904-2, from institutional chaplains and complete Sections I and II of the Marriage Application and return it to the chaplain they received the form from.

6.1.1 Chaplains receiving Marriage Applications shall:

6.1.1.1 Review applications to determine their completeness.

6.1.1.2 Return incomplete applications with instructions for proper completion.

6.1.1.3 Accept and review completed applications to determine if applying inmates and their prospective spouses meet the eligibility requirements in 7.2.3.1 through 7.2.3.3 of this section.

6.1.1.4 Document in the appropriate comments section if the applying inmates or their prospective spouses fail to meet any of the eligibility requirements and forwarding the Marriage Application packet to their Warden or Deputy Warden.

6.1.1.4.1 Inmates at Department institutions may appeal disapprovals of Marriage Applications by writing to the appropriate Regional Operations Director within ten work days after being notified of the disapproval. Inmates’ requests to marry other inmates are not appealable.

6.1.1.4.2 Inmates assigned to private prison facilities shall appeal to the Contract Beds Operations Director.

6.1.1.4.3 Decisions made by the Contract Beds Operations Director or the Regional Operations Director shall be final.

6.1.1.4.4 If circumstances have changed, inmates may reapply 60 calendar days from the date the first application was disapproved.

6.2 Approved inmate marriages shall remain valid for one year unless withdrawn by Wardens or Deputy Wardens if inmates become ineligible provided:

6.2.1 Marriages are:

6.2.1.1 To be performed legally.

6.2.1.2 Not a risk to the safe, secure and orderly operation of the Department or jeopardize public safety.

6.2.1.3 Not to another inmate.

6.2.2 Both inmates and their prospective spouse are not:

6.2.2.1 Currently married.

6.2.2.2 Mentally incapacitated.

6.2.2.3 Of a blood relation of first cousins or closer. Case 2:20-cv-02402-SPL-JFM Document 3 Filed 12/10/20 Page 55 of 59

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6.2.3 Inmates:

6.2.3.1 Do not have any pending disciplinary charges.

6.2.3.2 Are not confined in detention units, disciplinary isolation or investigative "lock up" detention.

6.2.3.3 Are eligible for visitors at the time of the application through to their marriage ceremony.

6.3 Permission to marry does not supersede or change any instructions governing visitation, release procedures, mail and property or phone calls.

6.3.1 Refer to the appropriate Department Order for complete rules and regulations.

6.4 If not in the best interests of the community, marriages do not guarantee or mandate inmates will be approved to reside with their new spouse upon transfer from an institution to any release under community supervision.

6.5 Whether indigent or not, all inmates applying for marriage applications shall accept full financial responsibility for all marriage process expenses including license fees and ceremony expenses.

6.6 In accordance with Arizona Revised Statute (A.R.S.) §25-125, valid marriage ceremonies are conducted in the presence of persons authorized to solemnize marriages.

6.6.1 Telephonic marriages are not authorized.

6.7 Chaplains shall coordinate with all parties involved including the Clerk of the Superior Court, security staff, inmates and their prospective spouses to obtain marriage licenses. Copies of marriage licenses shall be attached to Marriage Application packets.

6.8 Once Marriage Applications are approved, chaplains shall coordinate ceremony arrangements including:

6.8.1 Ensuring ceremonies are performed by approved clergy or Justices of the Peace to fulfill legal requirements.

6.8.2 Inmates, their prospective spouses and two lawfully aged witnesses are present for the ceremony.

6.8.3 Inmates are not in special clothing for a marriage ceremony.

6.8.4 Photographs are not taken and no other publicity arrangements are made.

6.8.5 Rings are not exchanged during the ceremony.

6.8.5.1 Refer to Department Order #909, Inmate Property for additional information on wedding rings.

6.9 Inmates marrying in violation of this Department Order may be charged with disobeying a direct order and disciplined for such activity in accordance with Department Order #803, Inmate Disciplinary Procedure.

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CHAPTER: 900 PAGE 16 904 – INMATE RELIGIOUS ACTIVITIES/MARRIAGE REQUESTS JUNE 11, 2016

DEFINITIONS/GLOSSARY

Refer to the Glossary of Terms ATTACHMENTS

Attachment A - Special Annual Religious Events (Sample Request) Attachment B – Native American Sweat Lodge (Construction) Attachment C – Sweat Guidelines

FORMS LIST

904-2, Marriage Application 904-4, Chaplain’s Emergency Call Record 904-5, Request for Pastoral Visit

AUTHORITY

A.R.S. §25-125, Marriage Ceremony; Official; Witnesses; Marriage License; Covenant Marriages A.R.S. §31-201.01, Duties of the Director; Tort Actions; Medical Treatment Costs; State Immunity; Definitions A.R.S. §31-206, Chaplains; Duties; Traditional Native American Religious Practitioners A.R.S. §41-1493.01, Free Exercise of Religion Protected Religious Land Use and Institutionalized Persons Act of 2000

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CHAPTER: 900 904 – INMATE RELIGIOUS ACTIVITIES/MARRIAGE REQUESTS JUNE 11, 2016

ATTACHMENT A

SPECIAL ANNUAL RELIGIOUS EVENTS

Purpose: Annual Intra-faith, community and religious/cultural celebration

Time/Date: Single day event assisted by outside sponsors, which may have morning and afternoon sessions interrupted by count and lunch, where guests depart the facility and inmates return to housing for count.

Location: Outdoor section of visitation area, weather permitting or other approved location.

Attendance:  Authorized inmates with appropriate religious preference designation assigned to the unit where the event is held who are eligible to attend group religious activities.

 Spiritual leaders and Advisors not on the visiting list of any participating inmate.

Agenda: To be announced at the institution with approval from the Warden, Deputy Warden or Administrator.

Supplies: Supplies/equipment provided by the institution:

 Chairs

 Tarp/canopy (for shade for senior citizens)

 Public address system (optional)

 Ceremonial items/supplies available but not personally possessed by inmates (e.g., ceremonial drum and pipe, communion-type supplies, etc.)

Supplies/equipment provided by the inmate:

 Ceremonial supplies approved for personal possession

Supplies/equipment provided by the special guests:

 Musical instruments (e.g., contemporary and traditional such as drums, rattles, flutes, keyboards, etc.)

 Religious Paraphernalia (supplies and religious ceremonial items, all pre- approved, none to be left with the inmates)

Case 2:20-cv-02402-SPL-JFM Document 3 Filed 12/10/20 Page 58 of 59

CHAPTER: 900 904 – INMATE RELIGIOUS ACTIVITIES/MARRIAGE REQUESTS JUNE 11, 2016

ATTACHMENT B

NORTH AMERICAN SWEAT LODGE

Case 2:20-cv-02402-SPL-JFM Document 3 Filed 12/10/20 Page 59 of 59

ATTACHMENT C

SWEAT GUIDELINES

1. The sweat lodge area is opened and the chaplain allows authorized inmates to enter the area.

2. The fire is started in the fire pit and allowed to burn to produce hot coals.

3. Participants cover the lodge with blankets and tarps and prepare for the ceremony.

4. Participants enter the lodge and position themselves around the perimeter.

5. The only items taken inside the lodge:

a. A small amount of herbs (1 ounce or less) b. Water to pour over the hot rocks c. A small plastic container to pour water over the rocks

6. Heated rocks from the fire pit are brushed and placed in the small pit in the center of the lodge. At no time are any coals, embers or burning wood pieces to be placed inside the lodge structure!!

7. The lodge structure door (flap of blankets/tarps) is closed.

8. Participants remain inside approximately 20 minutes (no more than 30 minutes) unless:

a. A safety or security reason demands exit sooner b. An inmate leaves for health or heat related reasons

9. The door flap is opened so that participants can cool off and drink water. The flap is then closed after the break for subsequent rounds (total of 4).

10. After the final round participants exit the lodge and begin “striking” the lodge:

a. Tarps, blankets are removed from the structure b. Wood lodge frame remains intact c. Tarps and blankets are folded and stored d. Rocks are returned to their designated location (unless too hot)

11. All participants leave the sweat lodge area.

12. The sweat lodge fence is secured (total time: 4 hours).