IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION

MAX MOUSSAZADEH,

Plaintiff,

v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE; Civil Action No. 3:07-cv-00574 BRAD LIVINGSTON, solely in his official JURY capacity as Executive Director of the Texas Department of Criminal Justice; and

DAVID SWEETEN, solely in his official capacity as warden of the Eastham Unit of the Texas Department of Criminal Justice,

Defendants.

PLAINTIFF MAX MOUSSAZADEH’S MOTION FOR SUMMARY JUDGMENT

Eric Rassbach Anne W. Robinson (Attorney-In-Charge) Texas Bar No. 24013375 James C. Knapp Luke Goodrich Matthew T. Murchison Admitted Pro Hac Vice Admitted Pro Hac Vice THE BECKET FUND FOR RELIGIOUS LATHAM & WATKINS LLP LIBERTY 555 11th Street, N.W. 3000 K Street Suite 1000 Suite 220 Washington, D.C. 20004 Washington, D.C. 20007 Telephone: 202-637-2200 Telephone: 202-955-0095 Facsimile: 202-637-2201 Fax: 202-955-0090 [email protected] [email protected] [email protected] TABLE OF CONTENTS

Page TABLE OF CONTENTS...... i

TABLE OF AUTHORITIES ...... iii

INTRODUCTION ...... 1

UNDISPUTED SUMMARY JUDGMENT EVIDENCE ...... 3

I. The Majority of Prison Systems Across the Country Provide Jewish Inmates Kosher Food...... 3

A. Prepackaged Kosher Meals...... 4

B. Kosher Kitchens...... 5

C. Federal “Common Fare” Program ...... 6

D. In Other Jurisdictions, Jewish Inmates Receive a Kosher Diet Even If Transferred Among Units...... 7

II. The Availability of Kosher Food at TDCJ...... 7

A. TDCJ Denies Kosher Food to Moussazadeh ...... 8

B. TDCJ Adopts a “Jewish Dietary Policy”...... 9

C. TDCJ Provides Numerous Therapeutic and Other Special Meals...... 12

III. TDCJ Moves to Dismiss the Case as Moot, Maintaining That It Would Continue to Provide a Kosher Diet to Moussazadeh for the Foreseeable Future...... 13

IV. TDCJ Transfers Moussazadeh from the Stringfellow Unit, Once Again Denying Him Kosher Food...... 14

STANDARD OF REVIEW ...... 14

ARGUMENT...... 15

I. TDCJ’s Failure to Provide a Kosher Diet Constitutes a Substantial Burden on Moussazadeh’s Religious Exercise...... 16

II. TDCJ’s Refusal to Provide a Kosher Diet to Moussazadeh Does Not Survive Strict Scrutiny...... 17

A. Baranowski Does Not Relieve TDCJ of the Burden of Satisfying Strict Scrutiny...... 18 B. Denying Moussazadeh a Kosher Diet Does Not Further a Compelling Interest in Controlling Costs ...... 19

1. “Controlling Costs,” by Itself, Is Not a Compelling Governmental Interest...... 19

2. The Cost of Providing a Kosher Diet to Moussazadeh Is Minimal...... 21

3. TDCJ Cannot Establish a Compelling Interest in Controlling Costs Where Most Prison Systems, Including TDCJ Itself, Provide Kosher Diets Under the Same Budgetary Restraints...... 24

C. Denying Moussazadeh a Kosher Diet Does Not Further a Compelling Interest in Prison Security...... 28

D. Denying Moussazadeh a Kosher Diet Is Not the Least Restrictive Means to Further TDCJ’s Asserted Compelling Interests...... 33

CONCLUSION...... 42

ii TABLE OF AUTHORITIES

Page(s) CASES

A.A. ex rel. Betenbaugh v. Needville Independent School District, 611 F.3d 248 (5th Cir. 2010) ...... 17, 28

Abdulhaseeb v. Calbone, 600 F.3d 1301 (10th Cir.), cert. denied, 131 S. Ct. 469 (2010)...... 38

Agrawal v. Briley, No. 02 C 6807, 2004 U.S. Dist. LEXIS 16997 (N.D. Ill. Aug. 25, 2004)...... 20

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)...... 15

Baranowski v. Hart, 486 F.3d 112 (5th Cir. 2007) ...... 16, 17, 19

Beerheide v. Suthers, 286 F.3d 1179 (10th Cir. 2002) ...... 2, 21, 31

Boudreaux v. Swift Transportation Co., 402 F.3d 536 (5th Cir. 2005) ...... 15

Caruso v. Zenon, No. 95-MK-1578 (BNB), 2005 U.S. Dist. LEXIS 45904 (D. Colo. July 25, 2005)...... 5, 30

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993)...... 27

Cottonwood Christian Center v. Cypress Redevelopment Agency, 218 F. Supp. 2d 1203 (C.D. Cal. 2002) ...... 20

Elsinore Christian Center v. City of Lake Elsinore, 291 F. Supp. 2d 1083 (C.D. Cal. 2003) ...... 20

Finley v. National Endowment for the Arts, 100 F.3d 671 (9th Cir. 1996), rev’d on other grounds, 524 U.S. 569 (1998)...... 20

Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359 (3d Cir. 1999)...... 26, 27

Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006)...... 24, 29

iii Page(s) Greene v. Solano County Jail, 513 F.3d 982 (9th Cir. 2008) ...... 30

Jova v. Smith, 582 F.3d 410 (2d Cir. 2009), cert. denied, 130 S. Ct. 2111 (2010)...... 41

Koger v. Bryan, 523 F.3d 789 (7th Cir. 2008) ...... 40

Little v. Liquid Air Corp., 37 F.3d 1069 (5th Cir. 1994) ...... 15

Love v. Reed, 216 F.3d 682 (8th Cir. 2000) ...... 24

Lovelace v. Lee, 472 F.3d 174 (4th Cir. 2006) ...... 15

Mayfield v. TDCJ, 529 F.3d 599 (5th Cir. 2008) ...... 15, 16, 37

Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974)...... 20

Merced v. Kasson, 577 F.3d 578 (5th Cir. 2009) ...... 2, 17, 28, 29, 34, 40

Moussazadeh v. Texas Department of Criminal Justice, 364 F. App’x 110 (5th Cir. 2010) ...... 14

Murphy v. Missouri Department of Correctional, 372 F.3d 979 (8th Cir. 2004) ...... 29

O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 342 F.3d 1170 (10th Cir. 2003) ...... 2

Odneal v. Pierce, 324 F. App’x 297 (5th Cir. 2009) ...... 16

Procunier v. Martinez, 416 U.S. 396 (1974), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989)...... 26

Shakur v. Schriro, 514 F.3d 878 (9th Cir. 2008) ...... 24, 33, 41

iv Page(s) Shilling v. Crawford, 536 F. Supp. 2d 1227 (D. Nev. 2008)...... 40

Smith v. Ozmint, 578 F.3d 246 (4th Cir. 2009) ...... 40

Sossamon v. Lone Star State of Texas, 560 F.3d 316, cert. granted in part, 130 S. Ct. 3319 (2010) ...... 3, 39, 42

Sossamon v. Texas, 130 S. Ct. 3319, 176 L. Ed. 2d 1218, 2010 WL 2025142 (U.S. 2010)...... 42

Spratt v. Rhode Island Department of Correctional, 482 F.3d 33 (1st Cir. 2007)...... 3, 24, 26, 27, 29, 32, 41

Toler v. Leopold, No. 2:05CV82 JCH, 2008 U.S. Dist. LEXIS 27121 (E.D. Mo. Apr. 3, 2008)...... 24

Turner v. Safley, 482 U.S. 78 (1987)...... 20, 41

Udey v. Kastner, 805 F.2d 1218 (5th Cir. 1986) ...... 20

United States v. Friday, 525 F.3d 938 (10th Cir. 2008) ...... 15

Warsoldier v. Woodford, 418 F.3d 989 (9th Cir. 2005) ...... 3, 24, 27, 32, 33, 40, 41

STATUTES AND RULES

42 U.S.C. §§ 2000cc et seq...... 1

42 U.S.C. § 2000cc-1...... 1 42 U.S.C. § 2000cc-1(a) ...... 15, 16, 17, 18

42 U.S.C. § 2000cc-3(c) ...... 19 42 U.S.C. § 2000cc-3(g) ...... 15

Cal. Code Regs. tit. 15, § 3054(c)...... 25, 33

Fed. R. Civ. P. 56(a) ...... 14 Fed. R. Civ. P. 56(c)(1)...... 14

v Page(s) OTHER AUTHORITY

Arizona Department of Corrections, Diet Reference Manual (Apr. 30, 2008), available at http://www.azcorrections.gov/hlthsvc_rfp/diet_ref_manual_may2008.pdf ...... 3

Associated Press, Md. Prisons to offer daily kosher meals beyond Passover, TheTimesNews.com, Apr. 13, 2009, available at http://www.thetimesnews.com/ common/printer/view.php?db=burlington&id=24173...... 3

James A. Beckford & Sophie Gilliat, Religion in Prison: Equal Rites In a Multi-Faith Society (1998) ...... 7

Annabelle Gurwitch, Inmates Celebrate B’not Mitzvah, JewishJournal.com, Sept. 9, 2009, http://www.jewishjournal.com/bar_and_bat_mitzvahs/ article/inmates_celebrate_bnot_mitzvah_20090909/ ...... 5

Sandra Hansen, Prison Ushers in New Era for Torrington, Star Herald, Mar. 31, 2010, available at http://www.starherald.com/articles/2010/10/21/news/pride_2010/ doc4bb2d65cdae03963298799.prt...... 5, 6

Rob Moritz, Beebe to cut budget by $100 million, Arkansas News (Oct. 20, 2009), available at http://arkansasnews.com/2009/10/20/governor-to-cut-budget-by-100- million/...... 41

My Own Meal® Order Form, available at http://www.myownmeals.com/forms/t-MOM- 22.pdf ...... 4

Joshua Runyan, Florida Partners With Aleph to Bring Kosher Food to Prisoners, Chabad.com, July 7, 2010, http://www.chabad.org/news/article_cdo/ aid/1246270/jewish/Kosher-Food-Coming-to-FL-Prisons.htm...... 4, 7, 22

Arlene Spark, Nutrition in Public Health: Principles, Policies, and Practice (2007) ...... 6

Rebecca Spence, Demand for Kosher Cuisine Swells Ranks of Jewish Prison Chaplains, Forward, June 3, 2008, available at http://www.forward.com/articles/13492/...... 5

Pat Wingert, Classrooms or Prison Cells?, Newsweek (June 28, 2010), available at http://www.newsweek.com/2010/06/28/classrooms-or-prison-cells.html#...... 41

vi INTRODUCTION

The sole question in this lawsuit is whether the Texas Department of Criminal Justice

(“TDCJ”) is required to provide a kosher diet to Plaintiff Max Moussazadeh under the Religious

Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. § 2000cc et seq.

RLUIPA provides that “[n]o government shall impose a substantial burden on the religious

exercise of [an inmate] . . . , unless the government demonstrates that imposition of the burden

on that person — (1) is in furtherance of a compelling governmental interest; and (2) is the least

restrictive means of furthering that . . . interest.” 42 U.S.C. § 2000cc-1 (emphasis added).

Prior to this lawsuit, TDCJ was one of the few prison systems in the country that refused

to provide a kosher diet to Jewish inmates. After the suit was filed, TDCJ began providing a

kosher diet to several Jewish inmates, including Plaintiff Max Moussazadeh, at its Stringfellow

Unit. Although Moussazadeh was subsequently transferred to another unit, TDCJ has continued

to provide a kosher diet at Stringfellow for three years without incident. Yet TDCJ asserts that

providing a kosher diet compromises its interests in controlling costs and maintaining security

and refuses to provide kosher meals to qualifying Jewish inmates who, for security, medical, or

other reasons, reside in units other than Stringfellow (as Moussazadeh now does).1

1 On December 7, 2010—just three days before the summary judgment motion deadline in this case—TDCJ indicated through counsel that it was considering transferring Plaintiff back to the Stringfellow unit. This is not the first time that TDCJ has made a major change to Moussazadeh’s status on the eve of a major litigation deadline in this case. For instance, on April 25, 2007, just minutes before an important status conference before Judge Judith Guthrie, TDCJ informed Plaintiff that its Director of the Correctional Institutions Division had approved his transfer to Stringfellow, after TDCJ had long maintained that Plaintiff could not be housed there because of his security level. See Transcript of Status Conf. at 7:13-25 (Apr. 25, 2007) (Dkt. No. 80) (“Status Conf. Tr.”), attached hereto as P-Ex. 1. In any event, TDCJ’s legal gamesmanship underscores its willingness and ability to transfer Moussazadeh to another unit at will, and only reinforces the need for a method to provide Moussazadeh a kosher diet which is not dependent on the location of the unit where he happens to be housed at any given time.

1 TDCJ’s failure to provide a kosher diet cannot satisfy strict scrutiny. First, as for TDCJ’s alleged interest in controlling costs, the undisputed summary judgment evidence shows that, over the last three years, providing a kosher diet at Stringfellow has increased TDCJ’s annual food costs by less than six-hundredths of one percent (0.06%). Additional undisputed evidence shows that providing a kosher diet using prepackaged kosher meals would cost even less: three- hundredths of one percent (0.03%) of TDCJ’s budget. Such de minimis costs cannot, as a matter of law, constitute a compelling governmental interest. See, e.g., Beerheide v. Suthers, 286 F.3d

1179, 1191 (10th Cir. 2002) (Colorado prison system lacked even a “valid penological interest”—let alone a compelling interest—where “providing prisoners with kosher meals free of charge” would have increased the system’s food service budget by “.158 percent”).

Second, as for TDCJ’s alleged interest in maintaining security, TDCJ’s own officials have conceded that, in over three years of providing a kosher diet at Stringfellow, not one security problem has been directly attributable to the availability of kosher food at that unit’s kitchen. Nor has TDCJ identified any security problems attributable to the provision of prepackaged kosher meals at its many commissaries. As the Fifth Circuit recently emphasized, the government cannot satisfy strict scrutiny merely by asserting “general platitudes” about health or safety; “it must show by specific evidence that [plaintiff’s] religious practices jeopardize its stated interests.” Merced v. Kasson, 577 F.3d 578, 592 (5th Cir. 2009) (internal quotation marks and citations omitted). TDCJ has not done so here.

Third, TDCJ cannot satisfy strict scrutiny where the vast majority of state prison systems and the Federal Bureau of Prisons provide kosher diets to Jewish inmates without compromising their analogous interests in controlling costs and maintaining security. As numerous courts have held, a prison system cannot meet its burden under RLUIPA if it fails “to explain why another

2 institution with the same compelling interests was able to accommodate the same religious

practices.” Warsoldier v. Woodford, 418 F.3d 989, 1000 (9th Cir. 2005); Spratt v. R.I. Dep’t of

Corr., 482 F.3d 33, 42 (1st Cir. 2007) (same)

Finally, TDCJ cannot satisfy strict scrutiny because it has failed to consider or offer compelling reasons for rejecting several readily available alternatives for providing Moussazadeh a kosher diet. As the Fifth Circuit recently held, failing to adequately consider even one available alternative defeats any attempt to prove that a policy is narrowly tailored under

RLUIA. Sossamon v. Lone Star State of Tex., 560 F.3d 316, 334-35, cert. granted in part, 130 S.

Ct. 3319 (2010). TDCJ thus fails strict scrutiny as a matter of law, and summary judgment in favor of Moussazadeh is required.

UNDISPUTED SUMMARY JUDGMENT EVIDENCE

I. The Majority of Prison Systems Across the Country Provide Jewish Inmates Kosher Food.

At least two-thirds of state prison systems, as well as the Federal Bureau of Prisons, provide observant Jewish inmates a kosher diet. See, e.g., Michigan Department of Corrections,

National Kosher Meal Survey (Sept. 14, 2005) (“Michigan Study”) at 1, attached hereto as P-Ex.

2.2 The number of prisoners served by the kosher programs in these prison systems ranges from

two to 1500. Id. at 2. These systems generally provide kosher food in one of three ways: (1)

prepackaged kosher entrées, (2) separate kosher kitchens, and/or (3) a “common fare” religious

diet program.

2 At least two states—Maryland and Arizona—have begun providing kosher food since the release of the 2005 study. See Associated Press, Md. Prisons to offer daily kosher meals beyond Passover, TheTimesNews.com, Apr. 13, 2009, available at http://www.thetimesnews.com/common/printer/view.php?db=burlington&id=24173; Arizona Department of Corrections, Diet Reference Manual 5 (Apr. 30, 2008), available at http://www.azcorrections.gov/hlthsvc_rfp/diet_ref_manual_may2008.pdf.

3 A. Prepackaged Kosher Meals

The majority of states provide a kosher diet to Jewish inmates via prepackaged kosher

entrées. Id. at 1-2. These entrées, prepared and packaged by outside vendors, are shelf-stable

and can be warmed and served to inmates as needed. A variety of vendors, such as Alle

Processing Corp., My Own Meals, Inc., Food Express, Good Source Solutions, and KFP

International, offer these prepackaged kosher entrées. One vendor, My Own Meals, offers entrées ranging in price from $2.27 to $2.95. See Rule 30(b)(6) Deposition of Beryl E. Bailey

(“Bailey Dep.”) at 209:7-210:21, attached hereto as P-Ex. 3; My Own Meal® Order Form, available at http://www.myownmeals.com/forms/t-MOM-22.pdf (last visited Dec. 8, 2010)

(“My Own Meal Order Form”). Another vendor, Alle Processing, offers entrées for as little as

$2.05. Kosher Products FY10 (June 29, 2010) (“Kosher Products FY10”), attached hereto as P-

Ex. 4; Alle Processing Corp. Religious Menu (“Alle Processing Menu”), attached hereto as P-Ex.

5.

Many states supplement these prepackaged entrées with kosher items from the state’s

regular food supplies, such as vegetables, fruit, bread, or fruit juice. See, e.g., P-Ex. 2 at

Attachment 4 (Arkansas Kosher Daily Meal Pattern); see also TDCJ Cost Estimate for Providing

Kosher Food (“TDCJ Kosher Food Cost Estimate”) at 2-4, attached hereto as P-Ex. 6 (showing a

possible implementation of such an approach in Texas). For example, in Florida, inmates are provided “at least one hot prepackaged meal, along with cold fruits, vegetables, cereal and other shelf-stable items to round out the daily diet.” Joshua Runyan, Florida Partners With Aleph to

Bring Kosher Food to Prisoners, Chabad.com, July 7, 2010, http://www.chabad.org/news/article_cdo/aid/1246270/jewish/Kosher-Food-Coming-to-FL-

Prisons.htm (“Runyan 2010 Article”). Similarly, Colorado supplements prepackaged entrées

4 with standard food items. See Caruso v. Zenon, No. 95-MK-1578 (BNB), 2005 U.S. Dist.

LEXIS 45904, at *38 (D. Colo. July 25, 2005). In fact, “[m]ore than half of the food items used

to create kosher meals [in the Colorado system] are drawn from CDOC’s regular supplies, and

presumably represent little additional cost in labor.” Id.

To remain kosher, these supplemental items need only be prepared and served in

accordance with kosher laws. For example, meat and dairy products cannot be mixed during

preparation or consumption; kosher food and non-kosher food must be kept separate; and

disposable plates, cups, bowls, and cutlery must sometimes be used. See Colorado Department

of Corrections, Kosher Meal Program Guidelines at 8-18 (Sept. 14, 2009) (“Colorado Kosher

Meal Guidelines”), attached hereto as P-Ex. 7. To ensure that supplemental items remain kosher,

Colorado, like other states, has adopted simple guidelines explaining how kosher food should be prepared, handled, and delivered. Id.

B. Kosher Kitchens

Several states—including Michigan, New York, California, and Wyoming—provide kosher diets by maintaining their own kosher kitchens. See P-Ex. 2 at 1 (Michigan Study);

Rebecca Spence, Demand for Kosher Cuisine Swells Ranks of Jewish Prison Chaplains,

Forward, June 3, 2008, available at http://www.forward.com/articles/13492/; Annabelle

Gurwitch, Inmates Celebrate B’not Mitzvah, JewishJournal.com, Sept. 9, 2009, http://www.jewishjournal.com/bar_and_bat_mitzvahs/article/inmates_celebrate_bnot_mitzvah_2

0090909/ (discussing inmates assigned to work in kosher kitchen at California Institution for

Women); Sandra Hansen, Prison Ushers in New Era for Torrington, Star Herald, Mar. 31,

2010, available at http://www.starherald.com/articles/2010/10/21/news/pride_2010/ doc4bb2d65cdae03963298799.prt (“Hansen 2010 Article”) (discussing kosher kitchen at newly

5 opened Wyoming Medium Correctional Institution). In some prison systems, one kosher kitchen

supplies kosher food to inmates throughout the state system. See, e.g., Hansen 2010 Article

(describing how in Wyoming, kosher food is “prepared in a special Kosher kitchen, vacuum

packed, and distributed to other facilities in the Wyoming corrections system”). In other prison

systems, through a few simple steps, individual prison units can dedicate a small portion of their

existing kitchen to the preparation of kosher meals. In Colorado, for example, kosher meals are

prepared in dedicated areas of existing kitchens, such as vegetable preparation areas and

bakeries. See P-Ex. 7 at 8 (Colorado Kosher Meal Guidelines). Work surfaces are made

acceptable for kosher food preparation by covering the surface with layers of butcher paper or

plastic wrap. Id.

C. Federal “Common Fare” Program

The Federal Bureau of Prisons provides religious meals through its “common fare”

program. This diet consists of foods that require little preparation, contain no pork or pork

derivatives, do not mix meat or dairy products, and are served with utensils that have not come in

contact with pork or pork derivatives. See Arlene Spark, Nutrition in Public Health: Principles,

Policies, and Practice 228-29 (2007); Federal Bureau of Prisons, Program Statement PS

4700.05, ch. 4, § 2 (June 12, 2006) (“FBP Program Statement PS 4700.05”), attached hereto as

P-Ex. 8; Federal Bureau of Prisons, Solicitation for Commercial Items RFQP05191000036 at 4-6

(Aug. 30, 2010) (listing 35 individually-packaged kosher items), attached hereto as P-Ex. 9. For example, pursuant to the 2011 Certified Food Menu for religious diets served in federal prisons, inmates approved for religious diets are served with a combination of non-meat items available to the general population (e.g., oatmeal, bran cereal, bread, fruit, etc.), and kosher meat entrées

(e.g., fish fillet, turkey cutlets, Salisbury steak, etc.). Federal Bureau of Prison, FY 2011

6 Certified Food Menu – Week 1, attached hereto as P-Ex. 10. The common fare program satisfies the religious requirements of multiple faiths (including the keeping of kosher for observant Jews) under one menu. James A. Beckford & Sophie Gilliat, Religion in Prison: Equal Rites In a

Multi-Faith Society 188 (1998).

D. In Other Jurisdictions, Jewish Inmates Receive a Kosher Diet Even If Transferred Among Units

Prison systems also typically ensure that inmates continue to receive a kosher diet even after they have been transferred to a new unit or reclassified for security reasons. For example, the California Code of Regulations specifically provides that a kosher diet “shall not be restricted from inmates based on their classification or housing placement. [Transferring inmates] shall have the ability to continue participating in their current Religious Diet Program.” Cal. Code

Regs. tit. 15, § 3054(c). Florida similarly ensures that its “kosher program [is] available to any inmate who requests it.” Runyan 2010 Article. Colorado, too, ensures that, “[u]pon an offender’s transfer to another facility, the religious diet will be continued.” Colorado

Department of Corrections, Administrative Regulation 1550-06 § IV(C)(1) (Apr. 1, 2000)

(“Colorado Reg. 1550-06”), attached hereto as P-Ex. 11. Finally, the Federal Bureau of Prisons makes clear that its certified food menus “will be served to inmates to participate in the certified component at all institutions,” and does not restrict an inmate’s participation in the Religious

Diet Program based on security classification. See P-Ex. 8 at ch. 4, §§ 2(a), 3 (FBP Program

Statement PS 4700.05) (emphasis added).

II. The Availability of Kosher Food at TDCJ

Defendant TDCJ administers the Texas state prison system, which has custody of over

160,000 inmates, see List of Offenders by Faith Code at 4 (June 15, 2010), attached hereto as P-

Ex. 12, and has an annual food budget totaling at least $113.3 million, see Affidavit of Jerry

7 McGinty (July 14, 2010) (“McGinty Affidavit”) at 1, attached hereto as P-Ex. 13. Observant

Jews constitute a very small percentage of this prison population. In 2008, 900 prisoners identified themselves as Jewish (0.6%), while only 70 to 75 were recognized as active practitioners of Judaism (0.05%). Defs.’ Third Supp. Resp. to Pl.’s First Set of Interrogs. at 6, attached hereto as P-Ex. 14. By September 2010, the number of self-identified Jewish inmates had fallen to 839 (0.5%), and the number of active practitioners of Judaism in the Jewish

Designated Units was a mere 50 (0.03%)—26 in the Stringfellow Unit, 16 in the Wynne Unit, 6 in the Jester III Unit, and 2 in the Stiles Unit. See Affidavit of Billy Pierce (Sept. 1, 2010)

(“Pierce Sept. 2010 Affidavit”), attached hereto as P-Ex. 15; Affidavit of Billy Pierce (Oct. 15,

2010), attached hereto as P-Ex. 16.

A. TDCJ Denies Kosher Food to Moussazadeh

Plaintiff Max Moussazadeh is one of TDCJ’s few observant Jewish inmates. Declaration of Max Moussazadeh ¶¶ 3-4 (Nov. 30, 2010) (“Moussazadeh Decl.”), attached hereto as P-Ex.

17. Moussazadeh, who is of Iranian Jewish heritage, was born to Jewish parents and has always considered himself to be Jewish. Id. ¶ 3. In accordance with established Jewish tradition and practice, Moussazadeh believes that keeping a kosher diet is fundamental to his Jewish faith and is necessary to conform to the divine will of God. Id. ¶ 4.

At the time he filed his Complaint, Moussazadeh was housed in TDCJ’s Eastham Unit.

Defs.’ Answer ¶ 9 (Dkt. No. 8). There, TDCJ limited his dietary choices to pork-free, meat-free, or “regular” food trays—none of which qualified as kosher. Id. ¶¶ 12-13. Thus, Moussazadeh was repeatedly forced to violate his religious beliefs. After exhausting his administrative remedies, Moussazadeh filed this lawsuit in 2005 seeking an order requiring TDCJ to provide him with kosher food. Complaint ¶ 23 (Dkt. No. 1).

8 B. TDCJ Adopts a “Jewish Dietary Policy”

In May 2007, 19 months after Moussazadeh filed suit, TDCJ adopted a new “Jewish

Dietary Policy.” See Chaplaincy Department, TDCJ, Chaplaincy Manual, Policy No. 07.03 (rev.

2), at 1 (Apr. 2007) (“Chaplaincy Manual”), attached hereto as P-Ex. 18; TDCJ, Jewish Dietary

Policy and Procedures, attached hereto as P-Ex. 19. When developing this policy, TDCJ officials toured the federal prison in Beaumont (which uses the “common fare” program) and ostensibly reviewed the kosher diet programs offered in California and Colorado. See Joint

Status Report for July, 2006 at 1 (Aug. 1, 2006) (Dkt. No. 59); Joint Status Report at 1 (June 30,

2006) (Dkt. No. 58). Nevertheless, TDCJ did not adequately consider providing prepackaged kosher meals to inmates in all units, for example, as Colorado does (see P-Ex. 3 at 268:13-69:6,

(Bailey Dep.) (partially distinguishing Colorado’s kosher diet program because Colorado is “a lot more liberal than we are”)), or implementing a method of providing kosher food to transferred inmates, as California does (see id. at 290:18-92:18 (conceding that no discussion was had with California Department of Corrections on how to resolve potential logistical issues with providing kosher meals to transferred inmates)).

Instead, TDCJ decided to create an “Enhanced Jewish Designated Unit” at the medium- security Stringfellow Unit and began providing kosher food (only to inmates at Stringfellow) through the existing kitchen. To provide kosher food at Stringfellow, TDCJ purchased a refrigerator, microwave, stove burner, and various kitchen supplies, at a total cost of $8,066. See

Initial Equipment Purchase for Creation of Kosher Kitchen, attached hereto as P-Ex. 20. TDCJ did not construct any new facilities, as it made use of existing kitchen space. See Affidavit of

Rabbi David Goldstein (Sept. 18, 2008), attached hereto as P-Ex. 21.

TDCJ also operates a kosher cannery at the Ramsey Unit. P-Ex. 3 at 231:12-23 (Bailey

Dep.). TDCJ currently uses vegetables from the cannery to supplement its kosher meals from

9 the Stringfellow kitchen, id. at 232:10-13, as well as its regular meal options provided in other

TDCJ units, Rule 30(b)(6) Deposition of Paul Morales (“Morales Dep.”) at 40:17-19, attached hereto as P-Ex. 22. These canned kosher vegetables, once opened in a unit kitchen, do not require individualized supervision by the TDCJ Jewish chaplain to remain kosher. Deposition of

Nathaniel Quarterman at 50:25-51:9, attached hereto as P-Ex. 23. Although TDCJ could use these kosher vegetables to provide kosher meals outside of Stringfellow—for example, by supplementing a prepackaged kosher entrée provided at another unit—TDCJ does not currently do so. See P-Ex. 3 at 170:17-22 (Bailey Dep.).

TDCJ has provided kosher food at the Stringfellow Unit for over three years without incident. See P-Ex. 22 at 38:15-17 (Morales Dep.); see also id. at 66:16-24, 67:8-11 (explaining that there has been no resentment from inmates who are not receiving kosher food). Indeed,

TDCJ was able to overcome every cost and security issue that it initially identified when establishing the kosher kitchen at Stringfellow. See P-Ex. 3 at 174:23-175:5 (Bailey Dep.); E- mail from Alan Behr to Douglas Dretke et al. (Feb. 16, 2006) at 1, attached hereto as P-Ex. 24

(listing cost and security issues identified in connection with preparing kosher food at a TDCJ unit). Moreover, the cost of providing kosher food has proved minimal: The total annual cost of providing kosher food at Stringfellow was only $67,217 in 2009, TDCJ 2009 Cost Per Day

Estimates (“TDCJ 2009 Cost Per Day”) at 1-2, attached hereto as P-Ex. 25, which represents less than six-hundredths of one percent (0.06%) of TDCJ’s annual food services budget.3 And despite the kosher kitchen, the cost of providing food at Stringfellow remains lower than the cost of providing food at other units, such as Stiles and Jester III. Id. at 1-2.

3 See calculation infra at note 7.

10 In addition to providing kosher food at the “Enhanced Jewish Designated Unit” at

Stringfellow, TDCJ has designated four other Units as “Basic Jewish Designated Units”: Stiles,

Wynne, Terrell (later replaced by Jester III), and Darrington (later de-designated and not

replaced).4 P-Ex. 18 at 1 (Chaplaincy Manual). At these units, TDCJ does not offer a kosher diet; it offers only regular, pork-free, and special medical diets, none of which qualifies as kosher. Defs.’ Answer ¶¶ 12-13 (Dkt. No. 8); P-Ex. 17 ¶ 8 (Moussazadeh Decl.); P-Ex. 22 at

22:8-23:14 (Morales Dep.). Some kosher entrées and other kosher products are available

“through the unit commissary for purchase at the offender’s expense.” See P-Ex. 18 at 2

(Chaplaincy Manual). But TDCJ caps the amount that inmates can spend at the commissary, so even if an inmate could afford it, he would be severely limited in the number of kosher meals he could purchase. See TDCJ, Offender Orientation Handbook at 47 (Nov. 2004), attached hereto as

P-Ex. 26; Rule 30(b)(6) Deposition of Allison Dunbar (“Dunbar Dep.”) at 152:16-24, 154:2-

55:12, attached hereto as P-Ex. 27; P-Ex. 17 ¶ 10 (Moussazadeh Decl.).

During Passover at the Basic Jewish Designated Units, TDCJ relaxes the spending restrictions for Jewish inmates and allows them to purchase a nutritionally adequate number of

prepackaged kosher meals. P-Ex. 27 at 153:21-24 (Dunbar Dep.). Jewish inmates that TDCJ

has deemed “indigent” receive Passover meals for free from a third party, the Aleph Institute.

Rule 30(b)(6) Deposition of Billy D. Pierce (“Pierce Dep.”) at 16:15-20, attached hereto as P-Ex.

28. The Passover meals are distributed to each Jewish inmate in advance in crates containing the inmate’s full order. P-Ex. 17 ¶ 11 (Moussazadeh Decl.); P-Ex. 15 at 2819:6-21 (Pierce Dep.).

4 Darrington and Stiles (and, according to TDCJ’s deponent, Wynne) are high-security facilities that house inmates with a “G5” security classification. See P-Ex. 22 at 17:2-9 (Morales Dep.); TDCJ, Stringfellow (R2), http://www.tdcj.state.tx.us/stat/unitdirectory/r2.htm (last visited Dec. 8, 2010); TDCJ, Darrington (DA), www.tdcj.state.tx.us/ stat/unitdirectory/da.htm (last visited Dec. 8, 2010). TDCJ, Stiles (ST), http://www.tdcj.state.tx.us/stat/unitdirectory/st.htm (last visited Dec. 8, 2010).

11 With one minor exception involving an unsuccessful attempt by an inmate to ferment grape juice into wine during Passover, there have been no security issues related to kosher food in the

Stringfellow Unit or any of the Basic Jewish Designated Units, either during the Passover observance or at any other point since TDCJ instituted its kosher food policy. See Defs.’ Second

Supp. Obj. and Answers to Pl.’s Fourth Set of Interrogs. at 7 (originally marked as page 3), attached hereto as P-Ex. 29; P-Ex. 22 at 54:3-5, 14-18 (Morales Dep.).

C. TDCJ Provides Numerous Therapeutic and Other Special Meals

In addition to kosher meals, TDCJ has long offered a variety of therapeutic and other special meals that, unlike kosher meals, are provided free of charge at all of its units. For example, TDCJ offers several special medical diets—such as a gluten-restricted diet, a renal diet, a dental diet, and a “diet for health”—to inmates who need them. P-Ex. 3 at 43:24-44:3 (Bailey

Dep.); Correctional Managed Health Care Therapeutic Dietary Policy and Procedures Manual at 1-5 (Sept. 2009), attached hereto as P-Ex. 30. In some cases, TDCJ will even create an individualized diet for an inmate with a particular medical condition. See P-Ex. 3 at 45:8-25;

65:21-66:1 (Bailey Dep.) (noting that “unique issues come up” for offenders and the TDCJ

“deal[s] with those on a case-by-case basis”). TDCJ prepares and serves these medical diets at the unit kitchens, even though these diets must “be prepared differently” from the regular meal options and must be cooked and served in a different part of the kitchen. Id. at 47:9-48:13. Each

TDCJ unit, regardless of its kitchen design, has found its own way to resolve these and other administrative issues associated with special medical meals. Id. at 48:14-49:1.

12 III. TDCJ Moves to Dismiss the Case as Moot, Maintaining That It Would Continue to Provide a Kosher Diet to Moussazadeh for the Foreseeable Future

After creating its new Jewish Dietary Policy, TDCJ transferred Moussazadeh to

Stringfellow and began providing him a kosher diet.5 It then filed a motion to dismiss the case as

moot or, in the alternative, a motion for summary judgment. Defs.’ Mot. to Dismiss (Dkt. No.

110). In its motion to dismiss, TDCJ argued that the case was moot because it had begun to

provide Moussazadeh with kosher food. Id. at 5. In a supplemental motion for summary judgment, TDCJ claimed that the failure to provide a kosher diet was the least restrictive means of furthering compelling governmental interests in controlling costs and maintaining prison security. Defs.’ Supp. Mot. to Dismiss, or in Alternative Mot. Summ. J. at 4-5 (Dkt. No. 122).

Moussazadeh cross-moved for summary judgment, arguing that undisputed evidence precluded

TDCJ from showing that the failure to provide a kosher diet was the least restrictive means of furthering compelling governmental interests in controlling costs and maintaining security. Pl.’s

Mot. Summ. J. at 4 (Dkt. No. 128).

On March 26, 2009, this Court dismissed the case as moot, reasoning that Moussazadeh was “no longer incarcerated on a TDCJ Unit that is incapable of providing him with a kosher diet,” and that “any claim that [Moussazadeh] might be transferred to another unit, where kosher food is unavailable, is too speculative.” Op. on Dismissal (Dkt. No. 135) (“Dismissal Op.”) at

16, 18-19. Plaintiff appealed.

5 Although TDCJ initially maintained that Moussazadeh could not be housed at Stringfellow because of his security level, his transfer was approved by the Director of TDCJ Correctional Institutions Division on the eve of an important status conference before Judge Judith Guthrie. See P-Ex. 1 at 7:15-25.

13 IV. TDCJ Transfers Moussazadeh from the Stringfellow Unit, Once Again Denying Him Kosher Food.

On October 13, 2009, while Moussazadeh’s appeal was pending, TDCJ transferred him

from the Enhanced Jewish Designated Unit at Stringfellow to the Stiles Unit, P-Ex. 17 ¶ 3

(Moussazadeh Decl.), and for the vast majority of Moussazadeh’s time at this new unit, his

custody level has been G5. Id. ¶ 7. At Stiles, Moussazadeh no longer receives a kosher diet. Id.

¶ 9; P-Ex. 18 at 1-2 (Chaplaincy Manual); TDCJ 28(j) Response at 1-2, Moussazadeh v. TDCJ,

No. 09-40400 (5th Cir. filed Jan. 6, 2010) (“At the Stiles Unit, kosher meals are not provided to

the inmates” as TDCJ does not “provide kosher meals at prisons in addition to the Stringfellow

Unit”). Given this significant change in circumstances, the Fifth Circuit Court of Appeals

remanded the case for additional proceedings, saying that “the conditions and treatment about

which this prisoner complained have substantially changed, and these changes affect the issues

before us.” Moussazadeh v. Tex. Dep’t of Crim. Justice, 364 F. App’x 110, 110 (5th Cir. 2010)

(unpublished).6

STANDARD OF REVIEW

A federal district court may grant summary judgment where “there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law,” where the

movant has supplied sufficient support for its assertion by “cit[ing] to particular parts of material

in the record, including depositions, documents, electronically stored information, affidavits or

declarations, stipulations (including those made for purposes of the motion only), admissions,

interrogatory answers, or other materials.” Fed. R. Civ. P. 56(a), (c)(1); see also Boudreaux v.

6 On appeal TDCJ represented to the Fifth Circuit that a remand for factual development was necessary in light of Moussazadeh’s transfer, TDCJ 28(j) Response at 1-2, but on remand changed its position again and argued that this Court should not permit any additional discovery. See Defs.’ Resp. in Opp’n to Pl.’s Mot. to Reinstate Scheduling Order at 3 (Dkt. No. 148).

14 Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005). Although a court must draw all reasonable inferences in favor of the non-moving party, conclusory allegations and unsubstantiated assertions are not sufficient to defeat summary judgment. Little v. Liquid Air Corp., 37 F.3d

1069, 1075 (5th Cir. 1994). Summary judgment is appropriate if a reasonable jury could not return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986).

Special rules of review apply to RLUIPA cases. RLUIPA must be “construed in favor of a broad protection of religious exercise.” 42 U.S.C. § 2000cc-3(g). As the Fifth Circuit has explained, RLUIPA provides more protection for religious exercise than does the First

Amendment because “the statute requires prison regulators to put forth a stronger justification for regulations that impinge on the religious practices of prison inmates.” Mayfield v. TDCJ, 529

F.3d 599, 612 (5th Cir. 2008); see also Lovelace v. Lee, 472 F.3d 174, 186 (4th Cir. 2006)

(“Congress . . . passed RLUIPA to afford [prisoners] greater protection of religious exercise than what the Constitution itself affords.”). Moreover, the “constitutional facts” doctrine also applies to RLUIPA cases, meaning that courts of appeals have a duty to conduct an independent review of the entire factual record before the district court. See United States v. Friday, 525 F.3d 938,

949-50 (10th Cir. 2008) (“constitutional facts” review applies to analogous RFRA claims).

ARGUMENT

TDCJ’s refusal to provide a kosher diet to Moussazadeh violates RLUIPA. RLUIPA claims proceed in two phases. First, Moussazadeh must prove that TDCJ has imposed a

“substantial burden” on a particular religious exercise. 42 U.S.C. § 2000cc-1(a). The burden then shifts to TDCJ to prove, as an affirmative defense, that the imposition of the burden on

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

15 restrictive means of furthering that compelling governmental interest.” Id.; see also Odneal v.

Pierce, 324 F. App’x 297, 300 (5th Cir. 2009) (unpublished) (explaining RLUIPA’s burden- shifting framework). Here, on the first question, there is no dispute that TDCJ’s failure to provide a kosher diet to Moussazadeh constitutes a substantial burden on his religious exercise.

See Baranowski v. Hart, 486 F.3d 112, 125 (5th Cir. 2007). Thus, the only question on summary judgment is whether TDCJ has carried its burden of satisfying strict scrutiny.

Based on the undisputed summary judgment evidence, TDCJ cannot, as a matter of law,

carry that burden. Specifically, TDCJ cannot demonstrate that denying a kosher diet furthers compelling interests in controlling costs and maintaining security when it has already been

providing kosher meals for more than three years without compromising its budget or security

interests. Nor can it satisfy strict scrutiny where at least 32 state prison systems and the Federal

Bureau of Prisons provide a kosher diet without compromising the same interests in controlling costs and maintaining security. Finally, TDCJ cannot show that the failure to provide a kosher diet outside the Stringfellow Unit satisfies the least restrictive means test where it can provide

Moussazadeh kosher meals through numerous other available means, none of which it has ever

seriously considered.

I. TDCJ’s Failure to Provide a Kosher Diet Constitutes a Substantial Burden on Moussazadeh’s Religious Exercise

Under RLUIPA, Moussazadeh bears the burden of establishing that TDCJ has

“substantial[ly] burden[ed]” a “religious exercise.” 42 U.S.C. § 2000cc-1(a). To do so,

Moussazadeh must show two things: first, that “the burdened activity is ‘religious exercise,’” and second, that the burden is “‘substantial.’” Mayfield, 529 F.3d at 613 (citation omitted).

There has been no dispute in this litigation that keeping kosher qualifies as a religious exercise under RLUIPA and that TDCJ’s failure to provide a kosher diet constitutes a substantial burden

16 on that religious exercise. Nor could TDCJ genuinely argue that such a dispute exists, given that

several courts (including this one) have so held. See Baranowski, 486 F.3d at 125 (failure to

provide kosher diet “work[s] a substantial burden upon [a Jewish inmate’s] practice of his

faith”); Merced v. Kasson, 577 F.3d 578, 590 (5th Cir. 2009) (Elrod, J.) (same, citing

Baranowski); see also Dismissal Op. at 15 (holding that “[k]eeping kosher qualifies as a

religious exercise for the practice of Judaism under RLUIPA”).

II. TDCJ’s Refusal to Provide a Kosher Diet to Moussazadeh Does Not Survive Strict Scrutiny

Under RLUIPA, the burden then shifts to TDCJ to prove its affirmative defense by demonstrating that its failure to provide a kosher diet is the least restrictive means of furthering a compelling governmental interest. 42 U.S.C. § 2000cc-1(a); Baranowski, 486 F.3d at 125. The compelling interest standard is the “‘most demanding test known to constitutional law.’” A.A. ex rel. Betenbaugh v. Needville Indep. Sch. Dist., 611 F.3d 248, 267 (5th Cir. 2010) (Higginbotham,

J.) (citation omitted). Indeed, the “justification” needed to satisfy this standard “can be found only in interests of the highest order.” Id. at 266 (citation and internal quotation marks omitted).

And the government’s burden does not end there; in addition to merely identifying a compelling interest, a government must also demonstrate that the government’s action actually furthers the interest cited, and that the government’s action is the least restrictive means of furthering the compelling interest. 42 U.S.C. § 2000cc-1(a). TDCJ cannot prove any one of these necessary elements, much less all three of them.

As we show below, TDCJ cannot demonstrate that denying Moussazadeh a kosher diet furthers a compelling governmental interest. TDCJ identifies only two allegedly compelling interests: controlling costs and maintaining prison security. But TDCJ can offer no specific evidence showing that these interests are compelling on the facts of this particular case, or that

17 denying Moussazadeh a kosher diet would actually further those interests. See 42 U.S.C.

§ 2000cc-1(a)(1). Specifically, not only does TDCJ already operate a kosher kitchen at the

Stringfellow Unit without compromising these interests, but at least 32 state prison systems and

the Federal Bureau of Prisons provide a kosher diet without compromising their analogous

interests. Finally, TDCJ is unable to show that denying a kosher diet to Moussazadeh is the least

restrictive means of furthering its alleged interests. See 42 U.S.C. § 2000cc-1(a)(2). TDCJ has

neither adequately considered several readily available alternatives nor explained why those alternatives could not be used to provide Moussazadeh a kosher diet.

A. Baranowski Does Not Relieve TDCJ of the Burden of Satisfying Strict Scrutiny

As a preliminary matter, the Fifth Circuit’s decision in Baranowksi does not relieve

TDCJ of the burden of satisfying strict scrutiny. Baranowski did not purport to establish a once-

and-for-all rule that the failure to provide a kosher diet can never violate RLUIPA, as the Fifth

Circuit has recognized in distinguishing Baranowski in similar circumstances. See Mayfield, 529

F.3d at 614 (reversing district court’s dismissal of plaintiff’s claims, which challenged the same

religious volunteer policy at issue in Baranowski, “[b]ecause [RLUIPA requires] a fact-specific,

case-by-case review, we do not believe that [our prior decision] laid down a per se rule that the

TDCJ’s [policy] could never [violate RLUIPA]”). The record in this case is dramatically

different from Baranowski, which involved a claim by a pro se prisoner who adduced no

evidence on the cost or security implications of kosher food. Mindful that the plaintiff was

proceeding pro se, the Fifth Circuit emphasized that its decision was based on the

“uncontroverted summary judgment evidence” and was limited to “the record before us.” 486

F.3d at 125 (emphasis added).

18 Moreover, the factual premise for the holding in Baranowski is simply no longer true.

The Baranowski court relied on the “uncontroverted” evidence that “TDCJ’s budget is not

adequate to cover the increased expense of either providing a separate kosher kitchen or bringing

in kosher food from the outside.” Id. But for the past three-and-a-half years TDCJ has provided

kosher meals (something it claimed was impossible in Baranowski) through a separate kosher

kitchen, and has done so without jeopardizing its budget or its ability to feed other prisoners. In

short, the undisputed facts here not only distinguish this case from Baranowski but require

summary judgment in favor of Moussazadeh.

B. Denying Moussazadeh a Kosher Diet Does Not Further a Compelling Interest in Controlling Costs

TDCJ’s first allegedly compelling interest—controlling costs—fails for three reasons.

First, as numerous courts have recognized, controlling costs, standing alone, is not a compelling

governmental interest. Second, even assuming cost could be a compelling interest, the actual

costs at issue here are de minimis. Finally, TDCJ’s interest in controlling cost cannot be

compelling when numerous prison systems provide kosher food without compromising their

analogous interest in controlling cost.

1. “Controlling Costs,” by Itself, Is Not a Compelling Governmental Interest

The mere fact that providing a kosher diet to Moussazadeh will increase TDCJ’s costs

cannot, as a matter of law, satisfy TDCJ’s burden of establishing that denying him a kosher diet

furthers a compelling interest. RLUIPA provides that it “may require a government to incur

expenses in its own operations to avoid imposing a substantial burden on religious exercise.” 42

U.S.C. § 2000cc-3(c). As courts have repeatedly recognized, “[b]ecause the statute expressly

anticipates increased costs, the fact that such diets may be more costly than non-religious diets is not alone a compelling governmental interest under the statute.” Willis v. Comm’r, Ind. Dep’t of

19 Corr., No. 1:09-cv-815-JMS-DML, slip op. at 15 (S.D. Ind. Nov. 1, 2010); see also Turner v.

Safley, 482 U.S. 78, 90 (1987) (“In the necessarily closed environment of the correctional institution, few changes will have no ramifications . . . on the use of the prison’s limited resources for preserving institutional order.”); Agrawal v. Briley, No. 02 C 6807, 2004 U.S. Dist.

LEXIS 16997, at *25 (N.D. Ill. Aug. 25, 2004) (explaining, when considering an inmate’s

RLUIPA claim for a religious diet, that “the possibility that Plaintiffs [sic] preferred diet cost a small amount more per year could not be considered compelling”); Elsinore Christian Ctr. v.

City of Lake Elsinore, 291 F. Supp. 2d 1083, 1093-94 (C.D. Cal. 2003) (rejecting lost revenue as a compelling interest under RLUIPA); Cottonwood Christian Ctr. v. Cypress Redevelopment

Agency, 218 F. Supp. 2d 1203, 1228 (C.D. Cal. 2002) (same).

Moreover, when applying strict scrutiny in analogous contexts, the Supreme Court has largely rejected cost, standing alone, as a compelling governmental interest. See Mem’l Hosp. v.

Maricopa Cnty., 415 U.S. 250, 263 (1974) (“The conservation of the taxpayers’ purse is simply not a sufficient state interest to sustain a [law] which, in effect, severely penalizes exercise of the right to freely migrate and settle in another State.”); see also Udey v. Kastner, 805 F.2d 1218,

1220 (5th Cir. 1986) (“[A]lthough we recognize that costs are a valid consideration for First

Amendment purposes, we have stated in other prison suits that ‘inadequate resources can never

be an adequate justification for depriving any person of his constitutional rights.’”) (citation

omitted); O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 342 F.3d 1170, 1186

(10th Cir. 2003) (government cannot satisfy strict scrutiny by citing an “increased need for

resources”); Finley v. Nat’l Endowment for the Arts, 100 F.3d 671, 683 n.23 (9th Cir. 1996)

(protecting taxpayers from “unwanted expenditures” is not a compelling interest), rev’d on other

grounds, 524 U.S. 569 (1998).

20 2. The Cost of Providing a Kosher Diet to Moussazadeh Is Minimal

Even assuming cost control is treated as a theoretically compelling interest, the

undisputed summary judgment evidence demonstrates that the cost providing Moussazadeh a kosher diet—whether using prepackaged meals, a separate kosher kitchen, or another means—is minimal. Such de minimis costs are not compelling.

Indeed, TDCJ’s own experience with the kosher kitchen at Stringfellow proves that the cost of providing a kosher diet is minimal. The undisputed evidence shows that the availability of kosher meals at Stringfellow has led to a mere 7-cent increase in the per-day, per-offender cost of providing food services to inmates there. See P-Ex. 25 at 1 (TDCJ 2009 Cost Per Day

Estimates). In fact, even with this 7-cent increase, the daily cost of providing food services at

Stringfellow in 2009 ($3.90) was less than at other units, such as Stiles ($3.91) and Jester III

($3.95). Id. at 2. Moreover, the total annual cost of providing kosher food at Stringfellow was only $67,217 in 2009, id. at 1, which represents less than six-hundredths of one percent (0.06%) of TDCJ’s annual food services budget (which will increase next year).7 Such a minimal effect

on TDCJ’s budget cannot, as a matter of law, constitute a compelling governmental interest.

See Beerheide v. Suthers, 286 F.3d 1179, 1191 (10th Cir. 2002) (Colorado prison system lacked

even a “valid penological interest”—let alone a compelling interest—where “providing prisoners

with kosher meals free of charge” would have increased the system’s food service budget by

“$13,000 out of $8.25 million, or .158 percent”).

Undisputed evidence also demonstrates that the cost of providing a kosher diet via

prepackaged meals—the option utilized by most states—is even cheaper. TDCJ has received

quotes in the past from My Own Meals, a kosher food supplier to the military and various prison

7 $67,217 in kosher food costs at Stringfellow / $113,300,000 = approx. 0.00059. See P-Ex. 25 at 1 (TDCJ 2009 Cost Per Day Estimates).

21 systems, which offers prepackaged kosher entrées for as low as $2.27 per meal. See P-Ex. 6 at 4

(TDCJ Kosher Food Cost Estimate) (showing TDCJ’s earlier quotes from My Own Meals); see

also My Own Meal Order Form. TDCJ has also purchased kosher food just this June from Alle

Processing, which offers even less expensive prepackaged kosher meals starting at $2.05. See

P-Ex. 4 (Kosher Products FY10); P-Ex. 5 (Alle Processing Menu).

Nor would TDCJ need to purchase three prepackaged meals per day. Based on TDCJ’s own internal studies, TDCJ estimates that it needs only one prepackaged meal per day to provide a kosher diet; other meals, such as oatmeal and eggs for breakfast, can be provided from the regular prison fare menu. See P-Ex. 6 at 2-4 (TDCJ Kosher Food Cost Estimate). The same is true in other states, many of which supplement prepackaged meals with other regular food items.

See, e.g., P-Ex. 2 at Attachment 4 (Michigan Study) (showing that Arkansas supplements its packaged kosher entrées at dinner with regular vegetables and fruits); Caruso, 2005 U.S. Dist.

LEXIS 45904, at *38 (describing Colorado’s policy of supplementing prepackaged meals with standard food items); Runyan 2010 Article (reporting a similar supplementation of prepackaged

meals with standard food items in the Florida kosher program). Thus, TDCJ can purchase a

year’s worth of prepackaged kosher meals for an individual prisoner at an additional cost of just

$748.25.8

Using prepackaged meals would have a minuscule impact on TDCJ’s budget. Even if

TDCJ provided a kosher diet in this way to every Jewish inmate that is participating in TDCJ’s

Jewish program, this prepackaged meal option would increase TDCJ’s annual food budget9 by

8 One prepackaged kosher meal per day at $2.05 * 365 days = $748.25. 9 TDCJ produced an affidavit stating that it food services budget for 2010 was $113.3 million. See P-Ex. 13 at 1 (McGinty Affidavit).

22 roughly three one-hundredths of one percent (0.03%).10 Indeed, even providing every Jewish

inmate with three prepackaged meals per day—more than any other state of which we are

aware—would increase TDCJ’s annual food budget by only nine one-hundredths of one percent

(0.09%).11 Moreover, TDCJ projects that the food services portion of its budget will actually

increase in the future, to as much as $128.2 million in FY 2011. TDCJ, Fiscal Year 2009

Operating Budget and Fiscal Years 2010-11 Legislative Appropriations Request at 8 (originally

paginated as “2 of 15”), attached hereto as P-Ex. 31. As with operating the kosher kitchen at

Stringfellow, such a small effect on TDCJ’s food services budget is too insignificant as a matter

of law to be a compelling interest. Beerheide, 286 F.3d at 1191 (Colorado had no “valid

penological interest” where providing kosher meals would increase costs by 0.158%).

Nor is there any evidence that making kosher meals available for free at other units, as

TDCJ has done at Stringfellow, would lead to a flood of religious dietary requests. Notably, the

number of inmates designating themselves as Jewish and making themselves eligible for the

kosher program has decreased, not increased, since TDCJ first began providing kosher food at

Stringfellow in 2007. Compare P-Ex. 14 at 6 (Defs.’ Third Supp. Resp. to Pl.’s First Set of

Interrogs.), with P-Ex. 15 at 1 (Pierce Sept. 2010 Affidavit) (showing a decrease in Jewish

inmate population levels from 900 to 839). TDCJ is also unable to demonstrate that the number of requests for religious diets from non-Jewish prisoners is greater now than it was before 2007.

See P-Ex. 28 at 104:2-17 (Pierce Dep.) (recalling requests for Halal meals but unable to point to documentary evidence linking those requests to the existence of the Stringfellow kosher kitchen).

Thus, the claim that providing Plaintiff with a kosher diet will trigger an avalanche of similar

10 $748.25 * 50 participating Jewish inmates = $37,412.50, and $37,412.50 / $113,300,000 = approx. 0.00033. 11 This figure does not even factor in the cost savings that TDCJ would realize by removing observant Jewish inmates from the regular diet program.

23 requests is not only pure speculation; it is also flatly contradicted by TDCJ’s three-and-a-half

years of experience with Stringfellow. See Shakur v. Schriro, 514 F.3d 878, 887 (9th Cir. 2008)

(rejecting concern over increased dietary requests where “there is no indication that other . . .

prisoners would demand kosher meals if Shakur’s request were granted”).

Regardless, a risk of increased religious requests is not a compelling government interest

under RLUIPA. In Love v. Reed, 216 F.3d 682 (8th Cir. 2000), the Eighth Circuit rejected the prison system’s asserted concern that if it accommodated the plaintiff’s religious dietary request,

“other prisoners will request other accommodations of their religious preferences.” Id. at 691.

As the court explained, “the key factor here is that Love’s request is based upon his religious convictions,” not that other inmates might use this example to seek special treatment. Id. And even if the prison received a greater number of bona fide dietary requests, the court held that such an increase could not serve as a basis to reject any one inmate’s request: “If other prisoners request dietary accommodations based upon sincerely held religious beliefs, then the ADC has an obligation to consider their requests.” Id.; see also Toler v. Leopold, No. 2:05CV82 JCH,

2008 U.S. Dist. LEXIS 27121, at *11-12 (E.D. Mo. Apr. 3, 2008) (citing Love and rejecting prison system’s asserted interest in curbing “the risk of increased religious requests”); Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 436 (2006) (“The

Government’s argument echoes the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I’ll have to make one for everybody, so no exceptions.”). The prospect of copycat requests is not a compelling interest.

3. TDCJ Cannot Establish a Compelling Interest in Controlling Costs Where Most Prison Systems, Including TDCJ Itself, Provide Kosher Diets Under the Same Budgetary Restraints

Even without this overwhelming evidence that the cost of providing a kosher diet would be de minimis, the fact that at least 32 other prison systems, and TDCJ itself, are providing

24 inmates kosher diets demonstrates that TDCJ can provide Moussazadeh a kosher diet without

compromising its budget. As numerous courts have recognized, a prison system cannot meet its

burden if it fails “to explain why another institution with the same compelling interests was able

to accommodate the same religious practices.” Warsoldier v. Woodford, 418 F.3d 989, 1000 (9th

Cir. 2005); see also Spratt v. R.I. Dep’t of Corr., 482 F.3d 33, 42 (1st Cir. 2007) (noting that the

fact that other prison systems with the same interests do not impose such religious restrictions

was “problematic” for defendants).

First, TDCJ cannot carry its burden to show that cost is a compelling interest in denying a

kosher diet outside of Stringfellow when no fewer than 32 state prison systems and the Federal

Bureau of Prisons now provide kosher meals to inmates upon request. P-Ex. 2 at 1 (Michigan

Study). These prison systems, even in the face of budget constraints, do not limit their kosher programs to a single unit. Colorado, California, the Federal Bureau of Prisons, and other prison

systems all provide a kosher diet for free to Jewish inmates regardless of their transfer to other

units. See discussion at Part I.D of Facts section supra; see also, e.g., Cal. Code Regs. tit. 15,

§ 3054(c) (providing that in the California prison system, a religious diet “shall not be restricted from inmates, based on their classification or housing placement” and that “[i]nmates who are transferred shall have the ability to continue participating in their current Religious Diet

Program”); P-Ex. 11 § IV(C)(1) (Colorado Regulation 1550-06) (“Upon an offender’s transfer to

another facility, the religious diet will be continued.”).

TDCJ has not demonstrated that its interest in cost is any more compelling than these

other systems. As the court in Spratt explained, the “absence of any explanation” on this point

dooms TDCJ’s attempt to meet its burden in establishing a compelling cost interest. See Spratt,

482 F.3d at 42 (holding that Rhode Island could not meet its burden to demonstrate a compelling

25 security interest “in the absence of any explanation by RIDOC of significant differences between the ACI and a federal prison that would render the federal policy unworkable”); see also

Warsoldier, 418 F.3d at 999 (noting that “[p]risons run by the federal government, Oregon,

Colorado, and Nevada all meet the same penological goals without such a policy”); Procunier v.

Martinez, 416 U.S. 396, 414 n.14 (1974) (“[T]he policies followed at other well-run institutions would be relevant to a determination of the need for a particular type of restriction.”), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989). TDCJ cannot offer any evidence to support the conclusion that it has compelling interests that distinguish it from nearly two-thirds of all other states. Summary judgment is therefore required.

TDCJ additionally cannot point to cost as a compelling governmental interest in denying

Moussazadeh a kosher diet when it is currently providing a kosher diet to inmates without compromising its budget. TDCJ provides kosher meals to more than two dozen Jewish inmates at the Stringfellow Unit, see P-Ex. 15 at 1 (Pierce Sept. 2010 Affidavit), and has done so for almost three-and-a-half years. See Defs.’ 2008 Mot. to Dismiss at 3. And far from claiming that the Stringfellow kitchen is breaking the budget, TDCJ maintains that it intends to keep the kitchen in operation for the foreseeable future. See, e.g., Defs.’ Supp. Mot. to Dismiss at 12-13;

P-Ex. 28 at 72:22-73:15 (Pierce Dep.) (testifying that TDCJ is “going to have the kosher kitchen” at Stringfellow in the foreseeable future). Likewise, TDCJ’s provision of therapeutic meals free of charge throughout its system is also fatal to its cost claim. In Fraternal Order of

Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359 (3d Cir. 1999) (Alito, J.), the Third

Circuit held that a police department had no compelling reason to prohibit beards requested for religious reasons when it allowed beards requested for medical reasons. Id. at 366-67. Here

26 TDCJ cannot refuse to provide special meals requested for religious reasons when it allows special meals for a variety of different medical reasons. Either Judge Alito was right or TDCJ is.

Indeed, as the Supreme Court has explained, “[i]t is established in our strict scrutiny

jurisprudence that ‘a law cannot be regarded as protecting an interest “of the highest order” . . .

when it leaves appreciable damage to that supposedly vital interest unprohibited.’” Church of

the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 547 (1993) (omission in original).

In other words, if a government allows “appreciable damage” to a supposedly compelling interest, the interest cannot be constitutionally compelling. Under Lukumi, TDCJ simply cannot have a constitutionally compelling interest in “not doing” what it has already been attempting to do for the past three-and-a-half years, and what it claims it intends to do for the foreseeable future. The fact that TDCJ has been operating an allegedly kosher kitchen for the past three-and- a-half years, without compromising its budget, “at the very least casts doubt on the strength of the link between [the ban on a kosher diet] and [prison costs].” Spratt, 482 F.3d at 40 (rejecting the government’s argument that its ban on inmate preaching furthered a compelling governmental interest where the government had already allowed the conduct in question for the past seven years); see also Warsoldier, 418 F.3d at 1000 (rejecting the government’s argument that a ban on long hair furthered a compelling governmental interest because the same prison system allowed female prisoners to have long hair); Fraternal Order of Police, 170 F.3d at 366-

67 (Alito, J.) (police department had no compelling reason to prohibit beards requested for religious reasons when it allowed beards requested for medical reasons).

The Fifth Circuit recently reversed a district court on the basis of selective exception- making. In Merced v. Kasson, 577 F.3d 578 (5th Cir. 2009), the court reviewed the district court’s determination that a local ordinance banning the slaughter of four-legged animals—even

27 for religious reasons—was valid under the Texas Religious Freedom and Restoration Act

(“TRFRA”), Tex. Civ. Prac. & Rem. Code ch. 110, because it furthered the city’s interests in

public health and safety.12 577 F.3d at 585. The district court had relied on testimony by two

experts for the city of Euless describing “the health ramifications of post-slaughter disposal,”

including an increased risk of disease. Id. But the Fifth Circuit rejected the notion that the city’s

asserted interests could be “compelling” when the ordinance also contained several exceptions

that allowed hunters and others to slaughter such animals in certain circumstances. Id. at 594.

The presence of these exceptions flatly “undermine[d] Euless’s public health interest regarding

the consumption of uninspected meat and disposal of carcasses,” and as a result, the city had

“failed to assert a compelling governmental interest in support of its ordinances that burden

[plaintiff’s] religious conduct.” Id. Similarly, in A.A. ex rel. Betenbaugh v. Needville Indep. Sch.

Dist., 611 F.3d 248 (5th Cir. 2010), the Fifth Circuit applied TRFRA to invalidate a school

district’s hair length requirement for boys, finding that the district’s decision not to impose

similar requirements on girls “‘undoubtedly undermines’ any ‘interest in fostering a uniform

appearance’ through its policy.” Id. at 272 (quoting Fraternal Order of Police, 170 F.3d at 366).

For the same reasons, TDCJ cannot argue that it is too costly to provide Moussazadeh a kosher

diet when TDCJ has been providing a kosher diet to more than two dozen other inmates at a

nearby unit for several years.

C. Denying Moussazadeh a Kosher Diet Does Not Further a Compelling Interest in Prison Security

TDCJ cannot demonstrate on summary judgment that its failure to provide a kosher diet

to Moussazadeh furthers a compelling governmental interest in prison security. Even in light of

12 The Fifth Circuit has recognized that the “compelling interest” tests under RLUIPA and TRFRA are, for all intents and purposes, interchangeable. See Merced, 577 F.3d at 588 (noting that “[f]ederal case law interpreting RFRA and RLUIPA is relevant” when applying TRFRA).

28 the deference due prison authorities, the mere assertion of security or health reasons is not, by

itself, enough for the Government to satisfy the compelling governmental interest requirement.

O Centro, 546 U.S. at 437-38 (rejecting the government’s reliance on a general interest in health

and safety in the related RFRA context); Needville, 611 F.3d at 267 (noting that a court is not obliged to “take a [defendant’s] asserted interests at face value without further examination”);

Merced, 577 F.3d at 592 (explaining that “general platitudes” about health and safety are insufficient to meet the government’s burden in the related TRFRA context, and that instead “it must show by specific evidence that [plaintiff’s] religious practices jeopardize its stated interests”) (internal quotation marks and citations omitted). Rather, the particular policy must further this interest. See, e.g., Spratt, 482 F.3d at 39 (“merely stating a compelling interest does not fully satisfy [the Department’s] burden on this element of RLUIPA; [the Department] must also establish that prison security is furthered by barring [the plaintiff] from engaging in any preaching at any time”); Murphy v. Mo. Dep’t of Corr., 372 F.3d 979, 988-89 (8th Cir. 2004)

(Department “‘must do more than offer conclusory statements and post hoc rationalizations for their conduct’” because “to satisfy RLUIPA’s higher standard of review, prison authorities must provide some basis for their concern that [a security concern] will result from any accommodation of [the inmate’s] request”) (citation omitted).

That specificity requirement is especially important here, where TDCJ’s prison security interest has been something of an afterthought. Throughout this litigation, TDCJ has maintained that “[t]he main obstacle” to providing a kosher diet is not security concerns but “scarce resources.” P-Ex. 14 at 7 (Defs.’ Third Supp. Resp. to Pl.’s First Set of Interrogs.).13 Consistent

13 The same response mentions security only in passing, stating generally that TDCJ’s policies “extend to offenders of all faiths reasonable and equitable opportunities to pursue religious beliefs and participate in religious activities and programs that do not endanger the safe, secure,

29 with that position, the summary judgment evidence demonstrates that denying Moussazadeh a

kosher diet while housed outside of the Stringfellow Unit does not further a compelling security

interest. See, e.g., Caruso, 2005 U.S. Dist. LEXIS 45904, at *42-43 (rejecting defendants’

proffered compelling interest because provision of a kosher diet to Jewish inmates had no

adverse impact on prison security).

First, TDCJ will not further any compelling security interest by refusing to provide

Moussazadeh prepackaged kosher meals. It is undisputed that there have been no security or

administrative issues related to selling prepackaged meals at the Basic Unit commissaries. P-Ex.

22 at 38:11-14 (Morales Dep.) (“Q. What about contraband that is related at all to the kosher food available in the commissary? Have you had any incidents? A. Not to my knowledge.”); id.

at 74:18-21 (“What about any administrative issues with the provision of kosher food from the

commissary? Any issues that you are aware of? A. No.”). The limit on how many kosher entrées

an inmate can purchase from the commissary is not related to any security interest, and providing

kosher meals to indigent inmates at the Basic Units during the holidays has not caused any

security-related incidents. See, e.g., id. at 28:23-29:4 (stating that the purpose of the various

spending limits is “administrative,” not security-related); id. at 82:16-18 (“Q. But there is no

security reason why a G5 inmate is only allowed to spend a certain amount? A. No.”).

Moreover, TDCJ cannot argue that providing Moussazadeh a kosher diet at no cost would cause

security incidents or resentment from inmates not receiving a kosher diet. See, e.g., id. at 74:25-

75:3 (“And you are not aware of any security or administrative issues related to indigent Jewish

and orderly operation of the agency.” (Id. at 8.) This is a far cry from the specific evidence required to satisfy strict scrutiny. See Greene v. Solano Cnty. Jail, 513 F.3d 982, 989-90 (9th Cir. 2008) (“[I]n light of RLUIPA, no longer can prison officials justify restrictions on religious exercise by simply citing to the need to maintain order and security in a prison. RLUIPA requires more.”).

30 inmates receiving kosher food at no cost to them? A. No.”); id. at 66:16-20 (“Q. Have you heard of any incident where there has been resentment from inmates, either at Stringfellow or one of the basic units, because they are not receiving kosher food? A. I do not know of any.”); id. at

67:8-11 (noting similar lack of resentment regarding time-off allowed for Jewish inmates during

religious holidays); see also, e.g., Beerheide, 286 F.3d at 1179, 1192 (co-payment for kosher

food is not related to any legitimate security concern). Thus, TDCJ’s refusal to provide these

entrées to Moussazadeh at no cost does not further any prison security concern.

TDCJ likewise cannot cite any compelling security interest in refusing to provide

Moussazadeh kosher meals prepared in a separate kosher kitchen—either in the Stringfellow

Unit kitchen or in an on-site kitchen in a unit that houses inmates with his security classification.

TDCJ has conceded that there have been no security or disciplinary problems related to the

provision of kosher meals at the kitchen at the Stringfellow Unit. P-Ex. 22 at 38:15-17 (Morales

Dep.) (testifying that there had been no instances of kosher food being smuggled as contraband

at Stringfellow); P-Ex. 29 at 7 (originally marked as page 3) (Defs.’ Second Supp. Obj. and

Answers to Pl.’s Fourth Set of Interrogs.) (averring that the only security incident relating to

kosher food resulted from the Aleph Institute’s donation of “large bottles of kosher grape juice”

directly to offenders in their cells during Passover). Indeed, TDCJ claims that it intends to

continue providing kosher meals food for the foreseeable future. P-Ex. 28 at 72:22-73:15 (Pierce

Dep.) (testifying that it was “the policy of the agency” that the Stringfellow kosher kitchen

would remain open). And TDCJ cannot claim any security interest in denying G5 inmates

kosher meals prepared in a kitchen, as G5 prisoners awaiting transfer from the Stringfellow Unit

are provided kosher meals in their cells. P-Ex. 22 at 35:1-14 (Morales Dep.) (testifying that

inmates “in transit” from Stringfellow still receive wrapped kosher meals in their cells); see also

31 id. at 41:6-11 (testifying that a G5 inmate can remain at the Stringfellow Unit—and receive

kosher meals—for 30 days or even longer). Moreover, as discussed above, TDCJ provides

inmates of all security classifications a variety of non-standard, therapeutic meals.

Finally, the record establishes that there is no compelling security interest furthered by

TDCJ’s refusal to establish a kosher kitchen at a unit that accommodates G5 inmates. There are

“no security differences” between the kitchens at high- and medium-security units, P-Ex. 22 at

64:12-15, 23-25 (Morales Dep.), and TDCJ has not experienced any security “problems” with its

kosher food vendors, id. at 90:5-7. TDCJ’s testimony demonstrates that kosher meals can be

easily supplied to G5 inmates in their cells via the unit’s standard food cart. See, e.g., id. at

35:11-14 (to provide kosher food to G5 inmates at the Stringfellow Unit, “they just wrap it in

Saran Wrap, put it in the food cart, separate from everybody else’s, and . . . deliver[] to them”).

Moreover, the fact that at least 32 states and the federal government provide a kosher diet

without compromising their interests in prison security confirms that TDCJ can do the same

here. See Spratt, 482 F.3d at 42 (“[E]qually problematic is that other prison systems, including

the Federal Bureau of Prisons, do not have such policies or, if they do, they provide

exemptions.”) (quoting Warsoldier, 418 F.3d at 999) (internal alterations omitted). Penal

institutions run by entities as diverse as the federal government, South Dakota, and New York

provide kosher meals to inmates without sacrificing order and security. P-Ex. 2 at 4-5

(originally paginated as 02/12 and 03/12) (Michigan Study). As discussed above, these prison

systems ensure that qualifying inmates, even when transferred among units or reclassified for

security reasons, continue to receive a kosher diet. See discussion at Part I.D of Facts section

supra; see also, e.g., Cal. Code Regs. tit. 15, § 3054(c) (providing that in the California prison

system, a religious diet “shall not be restricted from inmates based on their classification or

32 housing placement”); P-Ex. 11 § IV(C)(1) (Colorado Regulation 1550-06) (“Upon an offender’s

transfer to another facility, the religious diet will be continued.”). TDCJ has offered no evidence distinguishing its security interests from those of the states already providing a kosher diet. In

fact, TDCJ has conceded that the security issues faced by TDCJ are “much the same” as those in

the California state prison system and other prison systems. P-Ex. 22 at 86:15-21 (Morales

Dep.). TDCJ is unable to demonstrate, as it must, that a security interest will be furthered by

denying Moussazadeh a kosher diet. Summary judgment is therefore required.

D. Denying Moussazadeh a Kosher Diet Is Not the Least Restrictive Means to Further TDCJ’s Asserted Compelling Interests

Even assuming arguendo that TDCJ’s failure to provide a kosher diet advances a

compelling governmental interest in controlling cost or maintaining security, the undisputed

evidence demonstrates that the outright denial of a kosher diet to Moussazadeh is not the least

restrictive means of furthering those interests. As this Court has recognized, TDCJ cannot meet

its burden to demonstrate that no feasible less restrictive means exist unless it demonstrates that

it “‘actually considered and rejected the efficacy of less restrictive measures before adopting the

challenged practice.’” Sept. Discovery Order at 10 (Dkt. No. 177) (quoting Warsoldier, 418

F.3d at 999); see also Shakur, 514 F.3d at 890 (same); Spratt, 482 F.3d at 42 (defendant prison

“must ‘demonstrate, and not just assert, that the rule at issue is the least restrictive means of

achieving a compelling government interest’”) (citation omitted). In meeting this heavy burden,

TDCJ must “show that the restriction placed on the religious proponent is no greater than is

necessary or essential to the protection of the particular governmental interest involved,” and

must do so by “offering evidence of the feasibility of the options that it considered, articulating

reasons for the option employed and for the rejection of alternative options, and providing some

measure of explanation why the current and favored policy is the least restrictive means.” Sept.

33 Discovery Order at 11. Thus, the mere, unsubstantiated assertion that the defendants “considered

and rejected” an alternative, without more, is insufficient. Id. at 10. Indeed, the Fifth Circuit has held that a governmental defendant must consider and rebut the specific alternatives offered by the plaintiff in order to demonstrate that is has employed the least restrictive means. See Merced,

577 F.3d at 595 (holding that government failed least restrictive means test because it did not rebut plaintiff’s offered alternatives).

Here, TDCJ cannot establish that denying Moussazadeh a kosher diet is the least restrictive means of furthering its interests because at least four readily available alternatives exist. Those alternatives include, but are not limited to, the following:

1. Supplementing the regular diet with prepackaged kosher meals;

2. Establishing another kosher kitchen at another unit;

3. Using the kosher kitchen at Stringfellow to supply kosher meals to other units; or

4. Providing prepackaged kosher meals through the commissary for free.

Prepackaged Kosher Meals. First, TDCJ can provide a kosher diet to Moussazadeh, and other Jewish inmates not in Stringfellow, by supplementing the regular prison fare with prepackaged kosher meals. As discussed above, this is how the majority of prison systems provide a kosher diet. Most meals consist of kosher items from the regular prison menu (e.g., fresh fruit, eggs, oatmeal), while one meal per day consists of a prepackaged kosher entrée.

Although Moussazadeh’s counsel provided TDCJ information on how several states utilize this option, TDCJ dismissed it out of hand. See, e.g., P-Ex. 3 at 269:4-6 (Bailey Dep.) (TDCJ did not consider implementing the Colorado model of providing prepackaged kosher meals because, among other reasons, Colorado is “more liberal” than Texas); id. at 290:18-92:18 (conceding that no discussion was had with California Department of Corrections on how to resolve potential logistical issues with providing kosher meals to transferred inmates). And while TDCJ asserts,

34 without evidence, that providing a kosher diet through the use of prepackaged kosher entrées is

cost prohibitive, see id. at 197:18-21, TDCJ never actually considered providing the prepackaged

entrées just to the handful of inmates like Moussazadeh who are unable to reside at the

Stringfellow Unit. See id. at 226:7-14 (conceding that TDCJ never considered “the option of providing pre-packaged meals [at] Stiles”).

Another Kosher Kitchen. Second, TDCJ could provide a kosher diet to Moussazadeh and other Jewish inmates not in Stringfellow by establishing another kosher kitchen like the one at

Stringfellow. To establish a kosher kitchen at Stringfellow, TDCJ purchased a refrigerator, microwave, stove burner, and various kitchen supplies, at a total cost of $8,066. See P-Ex. 20 at

2 (Initial Equipment Purchase for Creation of Kosher Kitchen). TDCJ did not construct any new facilities for the Stringfellow kitchen but instead made use of a kitchen “dish room” that was previously being used for storage and which already had connections to water, electricity, and gas. See P-Ex. 3 at 177:6-178:23 (Bailey Dep.). TDCJ has not provided any reasonable explanation for why it cannot replicate a similar kosher kitchen at another Jewish designated facility for similar cost; in fact, it concedes that it did not even consider establishing kosher kitchens at the Darrington and Wynne Jewish Units. See id. at 186:13-16 (“Q. Okay. Has TDCJ explored creation of a kosher kitchen at this level of detail at the other basic designated Jewish units like Darrington and Wynne? A. No, sir, just Stiles.”).

As for the Stiles unit, TDCJ estimates that the cost of constructing a free-standing building to be used as a kosher kitchen would be $452,310. See Kosher Kitchen Construction

Estimate, attached hereto as P-Ex. 32.14 Explaining why a separate, free-standing building

14 This document provided by the TDCJ may arguably be a post-hoc rationalization for TDCJ’s failure to consider the option of establishing a kosher kitchen at Stiles, or its unwillingness to provide a kosher diet to Moussazadeh. Since the “Estimate” is undated and its subheading is

35 would even be necessary for a kosher kitchen, the TDCJ states that using existing space for a

kosher kitchen at Stiles is not feasible as “[t]here is no place for us to put a kosher kitchen inside

of the existing kitchen.” P-Ex. 3 at 186:6-7 (Bailey Dep.). However, TDCJ provides no

explanation as to why a kosher kitchen cannot be established in a room other than the existing kitchen in Stiles, as was done at the Stringfellow Unit. By its own admission, the only requirements for a space to function as a kosher kitchen are 1) that it be securable and 2) that it have access to gas, water, and electricity. Id. at 178:11-17 (“A. It was -- it was -- at one time it was a room, a secure area that was -- I believe, originally it was a dish room, okay, because we

had running water, electricity was already there. Q. Okay. A. The things that we needed to do

that. There was gas already there.”). TDCJ provides no evidence that it ever considered places outside of the main Stiles kitchen that meet the criteria to serve as a kosher kitchen. Nor did

TDCJ consider adapting its existing kitchens to implement a program similar to the “common fare” religious diet program employed in federal prisons, which should have been apparent to

TDCJ after its visit to the Beaumont federal prison.

Central Kosher Kitchen. Third, TDCJ can also provide a kosher diet to Moussazadeh by preparing kosher meals at Stringfellow and then distributing the meals at Stiles. Other state prison systems have done just that, providing kosher food to Jewish inmates throughout their prison systems by preparing kosher meals in a central kosher kitchen, vacuum-sealing the meals, and then distributing the meals throughout the state prison system. See, e.g., Hansen 2010

Article (describing how in Wyoming, kosher food is “prepared in a special Kosher kitchen, vacuum packed, and distributed to other facilities in the Wyoming corrections system”). Indeed,

“Moussazadeh Deposition,” it is clear that this document was not kept “in the ordinary course of business” as the accompanying Business Records Affidavit claims, but is instead was expressly created for this litigation.

36 TDCJ already does something similar through its kosher cannery at the Ramsey Unit, which

prepares kosher vegetables to supplement meals at other units. See P-Ex. 3 at 231:12-23,

232:10-14 (Bailey Dep.); P-Ex. 22 at 40:17-19 (Morales Dep.). Yet TDCJ has not even

considered this option of preparing kosher meals at Stringfellow, sealing them, and sending them

to another unit.15 See P-Ex. 3 at 242:16-243:5 (Bailey Dep.) (noting that TDCJ had not considered preparing kosher meals and distributing them to other units but conceding that it was

“possible”). Such packaged kosher meals could be prepared for serving at another facility using a modified kosher preparation area, such as those that exist in Colorado, see Colorado

Department of Corrections, Kosher Meal Program Guidelines at 8, or given to inmates for consumption in their cells, as is already done for Passover meals at Stiles. See P-Ex. 17 ¶ 11

(Moussazadeh Decl.). TDCJ’s low-cost operation of the Stringfellow Unit kitchen for over three years, see Part II.B of Facts section supra, makes it an obvious candidate for supplying kosher meals to Jewish inmates at another unit.

Prepackaged Kosher Meals Through Commissaries. Finally, TDCJ already carries

prepackaged kosher meals at several of its commissaries; it could easily allow Moussazadeh to

maintain a kosher diet simply by giving him the meals that are already stocked in the

commissary.16 TDCJ could either deliver these meals to Moussazadeh’s cell on the food cart (as

15 In fact, the mere existence of the Stringfellow kosher kitchen forecloses TDCJ’s ability to argue that the outright denial of kosher food at other units is the least restrictive means of furthering compelling government interests. See, e.g., Mayfield, 529 F.3d at 615-17 (holding that a pilot program allowing prisoners to keep runestones, instituted after Mayfield filed suit, “would seemingly represent a less restrictive means for carrying out the TDCJ’s penological interests” than the previous policy of prohibiting runestones altogether). Under Mayfield, the kosher kitchen “represent[s] a less restrictive means for carrying out the TDCJ’s penological interests” than a denial of kosher food to inmates at other TDCJ units, and such denial cannot survive strict scrutiny. Id. at 617. 16 Note that the Tenth Circuit has found that requiring an inmate to pay for religious meals violated RLUIPA when the inmate’s ability to purchase items at the commissary was limited.

37 he currently receives his meals) or it could provide him with several days’ worth of meals at

once (as he receives his prepackaged kosher meals during Passover). See P-Ex. 17 ¶ 11

(Moussazadeh Decl. ). If necessary, TDCJ could supplement these meals with items from its

cannery, which is already kosher, or with kosher items from its regular diet. See Part II.B of

Facts section supra. And TDCJ could do so without any security or administrative problems, P-

Ex. 22 at 38:11-14 (Morales Dep.).

TDCJ has offered no evidence that it ever considered this measure. Indeed, TDCJ

concedes that it has not considered even the lesser step of lifting the commissary spending limits

to enable Jewish inmates to obtain enough kosher items to maintain a nutritionally-sufficient

kosher diet. P-Ex. 27 at 155:13-18 (Dunbar Dep.) (“Q: . . . Has TDCJ ever considered making

an exception for the purchase of meals, basically say that the purchase of any meals, not just on

Passover, but any kosher meal will not count against the spend period balance? A: Not that I'm aware of, no, sir.”).17

See Abdulhaseeb v. Calbone, 600 F.3d 1301, 1317-18 (10th Cir.) (holding that Oklahoma’s policy of allowing Muslim inmates to purchase halal food through an approved vendor imposed a substantial burden on plaintiff inmate’s religious exercise), cert. denied, 131 S. Ct. 469 (2010). 17 On December 8, two days before dispositive motions were due, TDCJ produced a set of errata from the Dunbar deposition, some of which appear to suggest that these spending limits do not apply to certain non-Passover kosher purchases. TDCJ also produced an affidavit to this effect on December 3. These eleventh-hour missives are the first Plaintiff has heard of this supposed rule in over five years of litigation. The rule is nowhere to be found in any of the numerous commissary and food services manuals produced by TDCJ over the course of discovery, and is directly contrary to Plaintiff’s own experience when purchasing food items at the Stiles commissary. See P-Ex. 17 ¶ 10 (Moussazadeh Decl.) (explaining that the $25/week spending limit has made it “impossible for me to keep kosher by purchasing kosher meals at the commissary”). This purported rule is also completely inconsistent with Dunbar’s original testimony on commissary policies—a topic for which Dunbar was designated to testify by TDCJ under Rule 30(b)(6)—which suggests that TDCJ itself was not even aware of this rule at the time (and opens serious questions as to how TDCJ could have applied this rule at the commissaries). The only explanation, short of contrivance, is that TDCJ has temporarily changed its rule for the purposes of prevailing on summary judgment. And if that is the case, it only underscores

38 The undisputed record evidence demonstrates that TDCJ either did not consider these

easily identifiable, less restrictive methods of providing a kosher diet or has not shown why these

alternatives would be less effective in maintaining the supposedly-compelling government

interest. See, e.g., P-Ex. 24 at 1-2 (Email from Alan Behr) (setting forth only two options—

establishing a kosher kitchen at one unit or selling prepackaged meals to inmates); P-Ex. 3 at

251:6-24 (Bailey Dep.) (TDCJ did not consider the alternatives raised in the Michigan study,

even though the study was in TDCJ’s possession); id. at 259:21-260:17 (TDCJ did not evaluate

whether it could provide kosher meals “upon demand,” as other prison systems do), id. at 289:3-

92:1 (failing to identify any material differences identified by TDCJ between California and

Texas that would affect the ability to offer kosher meals at all units); id. at 298:25-299:3

(explaining, in reference to establishing a kosher kitchen, that “there was nothing discussed

about doing it on numerous units”). Notably, TDCJ’s own food policies—the availability of

kosher food at commissaries, the Stringfellow Unit kosher kitchen, and the provision of

therapeutic meals at no cost—demonstrate that providing Moussazadeh a kosher diet is feasible

through a variety of means and TDCJ’s refusal to do so is not narrowly tailored.

Numerous circuits, including the Fifth Circuit, have held that the failure to consider even

one available alternative defeats any attempt to prove that a policy is narrowly tailored. See, e.g.,

Sossamon v. Lone Star State of Tex., 560 F.3d 316, 334-35 (5th Cir. 2009) (rejecting an assertion

by the State that the policy employed furthered compelling governmental interest by the least

restrictive means when the State failed to address the feasibility of other options and to articulate

its reasoning), cert. granted in part, 130 S. Ct. 3319 (2010); Warsoldier, 418 F.3d at 999; Smith

v. Ozmint, 578 F.3d 246, 253-54 (4th Cir. 2009); Shilling v. Crawford, 536 F. Supp. 2d 1227,

TDCJ’s willingness and ability to game the facts to avoid having to provide Plaintiff with lasting and meaningful relief.

39 1233-34 (D. Nev. 2008) (policy of providing kosher food at one unit and not serving kosher

meals at unit where inmate is housed fails least restrictive means test where defendants “have

offered no evidence they considered alternatives to a transfer, such as providing pre-packaged or

frozen kosher meals”). TDCJ’s failure to adequately consider even one of these less restrictive

alternatives to the denial of kosher meals requires summary judgment for Moussazadeh. See, e.g., Willis v. Comm’r, Ind. Dep’t of Corrections, No. 1:09-cv-815-JMS-DML, slip op. at 18

(S.D. Ind. Nov. 1, 2010) (Department’s failure to consider “several obvious less restrictive alternatives to the termination of kosher meals” requires summary judgment for Jewish inmates);

Koger v. Bryan, 523 F.3d 789, 801 (7th Cir. 2008) (“One less restrictive means . . . is sufficient for us to conclude that the prison officials failed to meet their burden that they were employing the least restrictive means of furthering compelling governmental interests.”); Merced, 577 F.3d at 595 (failure to consider alternatives offered by plaintiff constituted failure to use least restrictive means).

And to the extent that TDCJ did consider any of the methods used by other prison systems, TDCJ is unable to explain why its cost and security interests prevent it from implementing these alternatives. See, e.g., P-Ex. 3 at 290:18-92:18 (Bailey Dep.) (explaining

that TDCJ never identified a material difference between Texas and California that would justify

rejecting the California model); P-Ex. 22 at 86:15-21 (Morales Dep.) (conceding that the security

issues faced by TDCJ are “much the same” as those in the California state prison system).

TDCJ’s post-hoc rationalizations for its inability to adopt one of these alternatives ring hollow.

For example, although TDCJ has previously asserted that budgetary constraints prevent it from

providing Moussazadeh a kosher diet, TDCJ’s food budget is actually increasing to as much as

$128.2 million in FY 2011, while many of the prison systems supplying kosher food are faced

40 with similar or greater budgetary pressures than TDCJ. See, e.g., Pat Wingert, Classrooms or

Prison Cells?, Newsweek (June 28, 2010), available at http://www.newsweek.com/

2010/06/28/classrooms-or-prison-cells.html# (budget for California prisons slashed by more than

$1 billion); Rob Moritz, Beebe to cut budget by $100 million, Arkansas News (Oct. 20, 2009),

available at http://arkansasnews.com/2009/10/20/governor-to-cut-budget-by-100-million/

(budget for Arkansas prisons to be cut by more than $9 million). Because TDCJ is unable to distinguish its cost and security interests from these other institutions, it cannot establish that its refusal to provide Moussazadeh kosher food is the least restrictive means. Sept. Discovery Order at 10 (“‘[T]he 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 restriction means.’”) (quoting Jova v. Smith, 582

F.3d 410, 416 (2d Cir. 2009), cert. denied, 130 S. Ct. 2111 (2010)); see also Warsoldier, 418

F.3d at 1000 (“[W]e have found comparisons between institutions analytically useful when considering whether the government is employing the least restrictive means. Indeed, the failure of a defendant to explain why another institution with the same compelling interests was able to accommodate the same religious practices may constitute a failure to establish that the defendant was using the least restrictive means.”); Shakur, 514 F.3d at 890-91 (same); Spratt, 482 F.3d at

42 (finding it “‘problematic’” for satisfying the least restrictive means requirement “‘that other prison systems, including the Federal Bureau of Prisons, do not have such . . . policies or, if they do, [they] provide . . . exemptions’”) (citation omitted) (alterations in original); Turner, 482 U.S. at 97-98 (1987) (fact that Federal Bureau of Prisons generally allowed marriages suggested that state prison had alternatives to prohibition on inmate marriage).

41 In light of TDCJ’s failure to consider the numerous readily available means of providing

Moussazadeh a kosher diet, or adequately demonstrate why these alternatives, which are widely

used in other prison systems, are infeasible, the TDCJ’s refusal to provide a kosher diet to

Moussazadeh cannot survive strict scrutiny.

CONCLUSION

The summary judgment evidence forecloses any attempt by TDCJ to carry its burden of

demonstrating that its failure to provide a kosher diet is the least restrictive means of furthering a

compelling governmental interest. TDCJ has a number of available methods to provide kosher

food outside of the Stringfellow Unit. Its failure to consider or to explain its inability to adopt

these alternatives requires summary judgment for Moussazadeh.

The Court should therefore:

1. grant summary judgment to Moussazadeh;

2. declare that TDCJ has violated Moussazadeh’s rights under RLUIPA;

3. award Moussazadeh nominal and compensatory damages;18 and

4. issue an order requiring TDCJ provide kosher food to Moussazadeh.

18 Although the Fifth Circuit has held that a plaintiff is not entitled to compensatory damages pursuant to RLUIPA, see Sossamon v. Lone Star State of Tex., 560 F.3d 316 (5th Cir. 2009), the Supreme Court has granted certiorari to consider whether states and state officials may be subject to suits for damages for RLUIPA violations. See Sossamon v. Texas, 130 S. Ct. 3319, 176 L. Ed. 2d 1218, 2010 WL 2025142 (U.S. 2010). The case was argued to the Supreme Court in early November.

42 Dated: December 10, 2010 Respectfully submitted,

/s/ Matthew T. Murchison Anne W. Robinson (Attorney-In-Charge) James C. Knapp Matthew T. Murchison Admitted Pro Hac Vice LATHAM & WATKINS LLP 555 11th Street, N.W. Suite 1000 Washington, D.C. 20004 Telephone: 202-637-2200 Facsimile: 202-637-2201 [email protected]

/s/ Eric Rassbach Eric Rassbach Texas Bar No. 24013375 Luke Goodrich Admitted Pro Hac Vice THE BECKET FUND FOR RELIGIOUS LIBERTY 3000 K Street Suite 220 Washington, D.C. 20007 Telephone: 202-955-0095 Fax: 202-955-0090 [email protected] [email protected]

43

CERTIFICATE OF SERVICE FOR ELECTRONIC FILING

I, Matthew T. Murchison, do hereby certify that I have electronically submitted for filing

a true and correct copy of the above and forgoing document in accordance with the Electronic

Case Files System of the Southern District of Texas, on December 10, 2010.

/s/ Matthew T. Murchison Matthew T. Murchison

44

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION

MAX MOUSSAZADEH,

Plaintiff, v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE; Civil Action No. 3:07-cv-00574 BRAD LIVINGSTON, solely in his official JURY capacity as Executive Director of the Texas Department of Criminal Justice; and

DAVID SWEETEN, solely in his official capacity as warden of the Eastham Unit of the Texas Department of Criminal Justice,

Defendants.

PLAINTIFF MAX MOUSSAZADEH’S MOTION FOR SUMMARY JUDGMENT

EXHIBIT 1

Case 9:05-cv-00197-TH-JKG Document 80 (Court only) Filed 10/05/2007 Page 1 of 30 1 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS 2 LUFKIN DIVISION

3 MAX MOUSSAZADEH : DOCKET NO. 9:05CV197 : 4 VS. : TYLER, TEXAS : APRIL 25, 2007 5 GERALD YALE DAVID : 10:20 A.M.

6 STATUS CONFERENCE BEFORE THE HONORABLE JUDITH K. GUTHRIE, 7 UNITED STATES MAGISTRATE JUDGE

8 APPEARANCES:

9 FOR THE PLAINTIFF: MR. DAVID PALMER MR. WILLIAM SCOTT CROFT 10 LATHAM & WATKINS 555 ELEVENTH STREET NW 11 SUITE 1000 WASHINGTON, DC 20004 12 MR. ERIC RASSBACH 13 THE BECKET FUND FOR RELIGIOUS LIBERTY 14 1350 CONNECTICUT AVE NW SUITE 605 15 WASHINGTON, DC 20036

16 FOR THE DEFENDANT: MR. MARJOLYN CAROL GARDNER 17 MS. CAROL GARCIA ATTORNEY GENERAL'S OFFICE 18 P.O. BOX 12548 CAPITOL STATION 19 AUSTIN, TEXAS 78711

20 COURT REPORTER: MR. RON MASON 21 100 U.S. COURTHOUSE 221 W. FERGUSON 22 TYLER, TEXAS 75702

23

24 PROCEEDINGS REPORTED BY MECHANICAL STENOGRAPHY, TRANSCRIPT PRODUCED BY COMPUTER-AIDED TRANSCRIPTION. 25

USCA5 315 Case 9:05-cv-00197-TH-JKG Document 80 (Court only) Filed 10/05/2007 Page 7 of 30 7 1 reports ago it was seven, so the numbers have changed quite a

2 lot. You will have to ask the State for the exact numbers.

3 But something like 30 -- 30 were asked, 23 said yes, 18 could

4 go to Stringfellow, and five were not, including my client up

5 until five minutes ago, were allowed -- were not allowed to go

6 to Stringfellow and would need to get kosher food through some

7 other mechanism.

8 THE COURT: All right. Thank you. Ms. Gardner, do

9 you want to address the Court on the status of things?

10 MS. GARDNER: To start out, what the change was, the

11 Plaintiff in this case -- this morning I had Mr. Cordoman

12 review his disciplinary policies in case we needed to speak to

13 his classification and why he could not go to the Stringfellow

14 Unit, because he's G-5 due to his disciplinary history.

15 When Mr. Cordoman was reviewing those, and he's the only

16 person we have with us who could speak to the security issue,

17 he saw one disciplinary in there that he thought was not right

18 and he has the authority to overturn it, which is the proper

19 word, overturn, and he overturned it, which means that Max,

20 when he ends back, he'll have to go through a few units to get

21 down there, will go to the Stringfellow Unit because he's now a

22 G-4, I believe.

23 So that was the change and that is how it came about, with

24 Mr. Cordoman just reviewing the disciplinary history this

25 morning. So that is new. We did not know.

USCA5 321 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION

MAX MOUSSAZADEH,

Plaintiff, v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE; Civil Action No. 3:07-cv-00574 BRAD LIVINGSTON, solely in his official JURY capacity as Executive Director of the Texas Department of Criminal Justice; and

DAVID SWEETEN, solely in his official capacity as warden of the Eastham Unit of the Texas Department of Criminal Justice,

Defendants.

PLAINTIFF MAX MOUSSAZADEH’S MOTION FOR SUMMARY JUDGMENT

EXHIBIT 2

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION

MAX MOUSSAZADEH,

Plaintiff, v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE; Civil Action No. 3:07-cv-00574 BRAD LIVINGSTON, solely in his official JURY capacity as Executive Director of the Texas Department of Criminal Justice; and

DAVID SWEETEN, solely in his official capacity as warden of the Eastham Unit of the Texas Department of Criminal Justice,

Defendants.

PLAINTIFF MAX MOUSSAZADEH’S MOTION FOR SUMMARY JUDGMENT

EXHIBIT 3

Beryl Edwin Bailey 30(b)(6) September 28, 2010 Huntsville, TX

Page 1 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE SOUTHERN DISTRICT OF TEXAS 3 GALVESTON DIVISION 4 MAX MOUSSAZADEH, * 5 Plaintiff, * 6 VS. * C.A. NO. 7 TEXAS DEPARTMENT OF CRIMINAL * 3:07-CV-00573 8 JUSTICE; * 9 BRAD LIVINGSTON, solely in his * 10 official capacity as Executive * 11 Director of the Texas Department * 12 of Criminal Justice; and * 13 DAVID SWEETEN, solely in his * 14 official capacity as warden of * 15 the Eastham Unit of the Texas * 16 Department of Criminal Justice, * 17 Defendants. * 18 ***************************************************** 19 RULE 30(b)(6) DEPOSITION OF 20 BERYL EDWIN BAILEY 21 SEPTEMBER 28TH, 2010 22 ***************************************************** 23 24 25

Alderson Reporting Company 1-800-FOR-DEPO Beryl Edwin Bailey 30(b)(6) September 28, 2010 Huntsville, TX

Page 2 1 RULE 30(b)(6) DEPOSITION OF BERYL EDWIN 2 BAILEY, produced as a witness at the instance of the 3 Plaintiff, and duly sworn, was taken in the above- 4 styled and numbered cause on the 28th day of 5 September, 2010, from 9:00 a.m. to 5:00 p.m., 6 before Bobbie Showers, CSR, in and for the State of 7 Texas, reported by machine shorthand, at the Texas 8 Department of Criminal Justice Conference Center, 9 1206 Avenue I Street, Huntsville, Texas, pursuant to 10 the Federal Rules of Civil Procedure and the 11 provisions stated on the record or attached hereto. 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Alderson Reporting Company 1-800-FOR-DEPO Beryl Edwin Bailey 30(b)(6) September 28, 2010 Huntsville, TX

Page 3 1 A P P E A R A N C E S 2 ATTORNEYS FOR PLAINTIFF: 3 LATHAM & WATKINS, LLP 4 555 ELEVENTH STREET, NW 5 SUITE 1000 6 WASHINGTON, D.C. 20004-1304 7 Telephone: (202) 637-2200 8 Fax: (202) 637-2201 9 E-mail: [email protected] 10 By: MATTHEW T. MURCHISON, ESQ. 11 12 ATTORNEYS FOR DEFENDANTS: 13 OFFICE OF THE ATTORNEY GENERAL OF TEXAS 14 P.O. BOX 12548 15 AUSTIN, TEXAS 78711-2548 16 Telephone: (512) 463-2080 17 Fax: (512) 495-9139 18 E-mail: [email protected] 19 By: CELAMAINE CUNNIFF, ESQ. 20 21 ALSO PRESENT: 22 MS. ALLISON DUNBAR 23 24 REPORTED BY: 25 MS. BOBBIE SHOWERS, CSR

Alderson Reporting Company 1-800-FOR-DEPO Beryl Edwin Bailey 30(b)(6) September 28, 2010 Huntsville, TX

Page 43 1 Q. Okay. 2 A. This is the dialysis diet. This is the 3 breakfast for day one. This is the lunch for day one. 4 Q. I see. 5 A. This is the dinner for day one, day two, day 6 three. 7 Q. Okay. So if an inmate comes in and says 8 because the doctor has told him so, I need to be 9 gluten-free, there is something in that manual that 10 says, This is his daily diet? 11 A. Well, the inmate doesn't come in. Each Unit 12 Food Service Department is provided a diet list from 13 the unit medical department -- 14 Q. I see. 15 A. -- and it tells the Unit Food Service 16 Department these -- gives a list of the offenders and 17 what diet they are on, whether it be the DFH, the 18 gluten-restricted diet, the dialysis diet, whatever 19 diet they are on, that offender is listed, gives the 20 offender's name and number and the diet they are on 21 and when that diet expires. 22 Q. And DFH stands for diet -- 23 A. Diet for health. 24 Q. I see. How many different medical or 25 therapeutic diets are there in this manual?

Alderson Reporting Company 1-800-FOR-DEPO Beryl Edwin Bailey 30(b)(6) September 28, 2010 Huntsville, TX

Page 44 1 A. Diet for health, gluten restricted, dialysis 2 diet, renal diet, and dental diet -- forgive me if I'm 3 missing something, but that I believe is correct. 4 Q. And this will be something you can supplement 5 later if another diet comes to your head. 6 A. Yes, sir. 7 Q. What if an inmate has a condition that is not 8 covered under one of these diets, but nonetheless 9 requires some kind of dietary accommodation? 10 For instance, what if they have -- and 11 I'm making this up. What if they have a heart 12 condition and they need very specific foods to make 13 sure they don't have, you know, excess cholesterol or 14 something like that? 15 Is there something in the manual that 16 will provide for special inmate-specific diets like 17 that? 18 A. Again, that is just -- these are the diets 19 that we, as Food Service have. Okay? 20 Q. Okay. 21 A. These are the only things that we have to go 22 by. So that doctor has to determine if there is -- if 23 there were to be something different then on the unit 24 they will have to provide that information to Health 25 Services.

Alderson Reporting Company 1-800-FOR-DEPO Beryl Edwin Bailey 30(b)(6) September 28, 2010 Huntsville, TX

Page 45 1 Q. Okay. 2 A. But we cannot do anything outside the realm 3 of what the medical policy tells us to do. 4 Q. Okay. 5 A. When I say "we," as Food Service, we have to 6 follow that diet procedures. We are not going to 7 deviate from that policy. 8 Q. I see. So a medical professional employed by 9 TDCJ can come in and say, Food Services, this guy 10 needs something special, because he has been diagnosed 11 with some condition that is not covered under the 12 manual. Can you provide him jelly sandwiches every 13 day, because that's what he needs? 14 MS. CUNNIFF: Objection. You can answer. 15 THE WITNESS: Okay. Again, it would have -- 16 nothing -- we are not going to deviate from that diet 17 policy. 18 BY MR. MURCHISON: 19 Q. Okay. 20 A. Okay. If the Unit Health Doctor were to send 21 something to the Director of Correctional Managed 22 Healthcare, and we received something from the 23 Director of Correctional Managed Healthcare that said 24 that there was something specific, then we would look 25 at it.

Alderson Reporting Company 1-800-FOR-DEPO Beryl Edwin Bailey 30(b)(6) September 28, 2010 Huntsville, TX

Page 47 1 there were any security implications from providing, 2 for example, these medical and therapeutic diets? 3 MS. CUNNIFF: Objection. 4 THE WITNESS: A security issue? I'm not 5 going to address that. That would be something that 6 would have to be addressed by Mr. Morales or some of 7 those folks, outside of that realm. It's not my deal. 8 BY MR. MURCHISON: 9 Q. All right. What about any administrative 10 concerns as far as feeding? 11 Is it more difficult to feed lots of 12 different therapeutic or medical diets from the Food 13 Services perspective? 14 A. It's a different menu in a lot of instances, 15 so it has to be prepared differently. 16 Q. Okay. 17 A. Okay. So having the -- all the equipment 18 needed to provide different medical diets, because it 19 has to be prepared differently, and being different 20 menus, yes, it does create some issues for us from 21 that standpoint. 22 Q. From the preparation standpoint? 23 A. Preparation and the cooking. 24 Q. Okay. And what about handing it out at the 25 food lines? Is there administrative difficulty there?

Alderson Reporting Company 1-800-FOR-DEPO Beryl Edwin Bailey 30(b)(6) September 28, 2010 Huntsville, TX

Page 48 1 A. Yes, because, again, it's not what is on the 2 serving line that the offender is coming to the dining 3 room to get, so you have to -- you can't keep those 4 items on the serving line. 5 We obviously don't have the space to 6 keep that, so it being different menu, it has to be 7 kept in the back of the kitchen, and it is requested 8 and then the tray has to be made and brought up on the 9 serving line, so it does cause issues. 10 This inmate has to wait, instead of 11 being able to pass through the serving line like 12 everybody else. It does create some unique issues for 13 us. 14 Q. Okay. And I suppose TDCJ has been creative 15 in finding solutions to those administrative issues? 16 A. And different units operate different. So 17 what may be a bigger issue for one is the way it is 18 done, depending on the size of the unit and how the 19 dining rooms are set-up, so it is unique in different 20 units and how they handle those issues. 21 Q. I see. So each unit has their own ways of 22 dealing with it? 23 A. Yeah. Depending on design and the type of 24 offenders on that facility and the amount of staff on 25 that facility, and there is a lot of factors that come

Alderson Reporting Company 1-800-FOR-DEPO Beryl Edwin Bailey 30(b)(6) September 28, 2010 Huntsville, TX

Page 49 1 into play with that. 2 Q. Okay. All right. Let's move on to a third 3 document. 4 MR. MURCHISON: I would ask the Court 5 Reporter mark this document as Exhibit No. 3. 6 (Exhibit No. 3 marked for identification) 7 BY MR. MURCHISON: 8 Q. Mr. Bailey, do you have Exhibit No. 3 in 9 front of you? 10 A. Yes, sir. 11 Q. You will see on the front is another Business 12 Records Affidavit signed by Tony D'Cunha, saying 13 substantially the same thing as the last one. 14 A. Okay. 15 Q. And if you turn to the next page, you will 16 see another section from the Food Service Procedures 17 Manual, this time entitled, "Medical Diets." Do you 18 recognize this document? 19 A. Yes, sir. 20 Q. Is this from the same Procedures Manual as 21 the document we were just looking at? 22 A. Yes, sir. 23 Q. Do you see the date up in the right-hand 24 corner October 2009? 25 A. Yes, sir.

Alderson Reporting Company 1-800-FOR-DEPO Beryl Edwin Bailey 30(b)(6) September 28, 2010 Huntsville, TX

Page 65 1 Reddy saying, "Mr. Reddy, what is your opinion on 2 this?" 3 A. Yes, sir. 4 Q. And Mr. Reddy responds or Dr. Reddy I should 5 say, responds: 6 "Please send two snacks a day as 7 requested by Medical for insulin-dependent to 8 be kept in the infirmary." 9 A. Yes, sir. 10 Q. Do you see that? 11 A. Yes, sir. 12 Q. Is this a typical response to a medical 13 dietary need? 14 A. Typical? I do not understand. I'm not for 15 sure what you're calling typical. 16 Q. Is something like this totally out of left 17 field or was this a pretty quick fix? 18 A. Again, we are notified by the units that we 19 have something that is not covered by the policy. 20 Q. Uh-huh. 21 A. So, again, we get our direction from 22 Medical. Does it happen on a regular basis? No, but 23 it does happen. We have a lot offenders in this 24 agency and we are going to have unique issues come up 25 with those and we are going to deal with those on a

Alderson Reporting Company 1-800-FOR-DEPO Beryl Edwin Bailey 30(b)(6) September 28, 2010 Huntsville, TX

Page 66 1 case-by-case basis. 2 Q. Okay. Did anyone -- in making the decision 3 to keep two snacks per day in the infirmary, did 4 anyone assess the cost implications of granting that 5 request? 6 A. Not through my office. 7 Q. And you are not aware of anybody in the 8 medical section, the Health Services -- 9 A. No, sir. 10 Q. -- making a similar determination? 11 A. No, sir. 12 Q. Okay. And this might be a question more for 13 Ms. Dunbar, and we can get to this tomorrow if it is, 14 but do you know if TDCJ keeps track of how much it 15 costs to provide special medical diets every year? 16 A. Not from my office, no, sir. 17 Q. Okay. All right. One more question about 18 these medical diets or one more exhibit, I should 19 say. 20 MR. MURCHISON: The Court Reporter will 21 please mark the following as Exhibit 6. 22 (Exhibit No. 6 marked for identification) 23 BY MR. MURCHISON: 24 Q. Mr. Bailey, do you have Exhibit 6 in front of 25 you?

Alderson Reporting Company 1-800-FOR-DEPO Beryl Edwin Bailey 30(b)(6) September 28, 2010 Huntsville, TX

Page 170 1 A. Yes, sir. 2 Q. Plan B below, it says: 3 "Purchasing pre-packaged kosher meals." 4 Do you see that? 5 A. Yes, sir. 6 Q. TDCJ ultimately elected to pursue Plan A on 7 this document, which was to serve kosher food prepared 8 at TDCJ? 9 A. Yes, sir. 10 Q. Why was Plan A selected? 11 A. To the best of my knowledge, when we talked 12 about menus and coming up with a menu, we wanted to 13 try to feed the offenders on the kosher plan as close 14 to a menu as we were feeding the general population 15 offenders, whether it be chicken or feeding them the 16 vegetables, having a full diet. 17 One of the things that I know that was 18 discussed, when we looked at the pre-packaged meals, 19 is that they don't always incorporate -- you don't get 20 a full meal. 21 Q. What do you mean? 22 A. You have to supplement. It doesn't have a 23 full supplement of vegetables in it. It may not be 24 the healthiest meal, because of the preservatives and 25 all the things that you have to put in those

Alderson Reporting Company 1-800-FOR-DEPO Beryl Edwin Bailey 30(b)(6) September 28, 2010 Huntsville, TX

Page 174 1 the plastic. We are not buying plastic -- 2 pre-packaged utensils now, we are actually buying a 3 single-use individual plastic utensil, disposable. 4 Q. Okay. 5 A. We still have to dispose of those. 6 Monitoring of the kosher food selection. 7 We still do that. 8 So were they resolved? I guess we 9 addressed all of those issues to make sure that we are 10 doing all those things to ensure the validity of the 11 program. 12 Q. Okay. So if I understand you correctly, TDCJ 13 determined that it could provide kosher meals at 14 Stringfellow, despite the cost of securing concerns 15 associated with the purchasing and preparing the 16 kosher foods. Is that right? 17 A. We did -- I say "we" -- the agency. When the 18 agency made the decision that we would serve kosher 19 meals at the Stringfellow kitchen -- at the 20 Stringfellow Unit, I'm sorry. 21 I'm not sure I understand what you are 22 talking about as far as the cost. 23 Q. Well, you made that decision recognizing that 24 there were cost concerns and security concerns that 25 went with that. Correct?

Alderson Reporting Company 1-800-FOR-DEPO Beryl Edwin Bailey 30(b)(6) September 28, 2010 Huntsville, TX

Page 175 1 A. Yes, sir. 2 Q. And those were addressed enough that you were 3 able to provide kosher food at Stringfellow? 4 MS. CUNNIFF: Objection. 5 THE WITNESS: Yes, sir. 6 MR. MURCHISON: I'd ask the Reporter to mark 7 this document as Exhibit No. 20. 8 (Exhibit No. 20 marked for identification) 9 BY MR. MURCHISON: 10 Q. Mr. Bailey, do you have Exhibit No. 20 in 11 front of you? 12 A. Yes, sir. 13 Q. Do you see that it has an Affidavit from Tony 14 D'Cunha on the front? 15 A. Yes, sir. 16 Q. And then if you will turn to the next page, 17 there is a Fax Cover Sheet with Captain Watson's name 18 on it. Is that Natalie Watson? 19 A. Yes. 20 Q. Okay. That says Stringfellow Food Service 21 right there. 22 And then on the next page is a document 23 with the title, "Decision Memorandum," dated January 24 23rd, 2007, from Charles Marsh, CFO, to Nathaniel 25 Quarterman, Director, CID. Do you see that?

Alderson Reporting Company 1-800-FOR-DEPO Beryl Edwin Bailey 30(b)(6) September 28, 2010 Huntsville, TX

Page 176 1 A. Yes, sir. 2 Q. Do you recognize this document? 3 A. Yes, sir. 4 Q. Where have you seen it? 5 A. It came through our office obviously. 6 Mr. D'Cunha signed-off on it. It had to do with Food 7 Service and a request for the Decision Memorandum to 8 request funds to purchase all items needed for our 9 kosher kitchen at Stringfellow Unit. 10 Q. Okay. So this is under the "Purpose"? 11 A. Yes, sir. 12 Q. So this is the document implemented as Plan 13 A, as we were talking about before. Is that right? 14 A. Yes, sir. 15 Q. Okay. 16 A. Or part of it anyway. To buy the equipment, 17 all the -- to purchase all the items needed for a 18 kosher kitchen, yes, sir. 19 Q. Okay. And what were those items? 20 A. All the equipment? 21 Q. Uh-huh. 22 A. We already had a structure there -- 23 Q. Okay. 24 A. -- to do that, so we bought the -- everything 25 from the pots and pans and utensils to refrigerator, a

Alderson Reporting Company 1-800-FOR-DEPO Beryl Edwin Bailey 30(b)(6) September 28, 2010 Huntsville, TX

Page 177 1 stove, microwave, those items that we needed to start 2 preparing food in the kosher kitchen. 3 Q. Okay. Okay. 4 A. And I don't have a detailed list of 5 everything that went in there but -- 6 Q. How would you describe the kosher kitchen at 7 Stringfellow? Was it a distinct kitchen? 8 A. Currently? 9 Q. Yes. 10 A. Yes, sir. 11 Q. Okay. 12 A. It's a -- it's a separate room, walled off, 13 secure from the rest of the kitchen. 14 Q. Okay. 15 A. That only kosher food is brought into. 16 Q. Okay. 17 A. It has been blessed and approved by the 18 rabbi, by Rabbi Goldstein, to do that. 19 And then Food Service, Captain Watson 20 and her staff oversee the kosher kitchen, the daily 21 operations of the kosher kitchen. 22 The rabbi is there on a weekly basis to 23 ensure the validity of the program. 24 The offenders who work in that kosher 25 kitchen are part of the kosher program.

Alderson Reporting Company 1-800-FOR-DEPO Beryl Edwin Bailey 30(b)(6) September 28, 2010 Huntsville, TX

Page 178 1 Q. All right. 2 A. That's the only ones that are allowed to work 3 in there preparing food. We don't have any other 4 offenders working in the kosher kitchen. So it is a 5 totally separate operating kitchen from the rest of 6 the food -- the other kitchen where the general 7 population meals are prepared. 8 Q. Okay. And at the beginning of your response 9 you said, How was it currently operating? Did it 10 operate any differently before? 11 A. It was -- it was -- at one time it was a 12 room, a secure area that was -- I believe, originally 13 it was a dish room, okay, because we had running 14 water, electricity was already there. 15 Q. Okay. 16 A. The things that we needed to do that. There 17 was gas already there. 18 Q. Uh-huh. 19 A. So that all the utensils -- not the 20 utensils. Excuse me. The -- 21 Q. Utilities? 22 A. Utilities. Thank you. I lost the word. The 23 utilities were already there. 24 Q. Okay. 25 A. A few modifications had to be made, nothing

Alderson Reporting Company 1-800-FOR-DEPO Beryl Edwin Bailey 30(b)(6) September 28, 2010 Huntsville, TX

Page 186 1 the Stiles Unit. 2 Q. Uh-huh. 3 A. And because of incorporating that, and no 4 design was made to the Food Service Department. It is 5 essentially maxed out. 6 There is no place for us to put a kosher 7 kitchen inside of the existing kitchen. It is just 8 the design does not allow for it. 9 Q. Okay. 10 A. There is just no way to do that in the 11 current design of that current Food Service 12 Department. 13 Q. Okay. Has TDCJ explored creation of a kosher 14 kitchen at this level of detail at the other basic 15 designated Jewish units like Darrington and Wynne? 16 A. No, sir, just Stiles. 17 Q. Okay. 18 A. That I'm aware of. 19 Q. Okay. 20 A. There may have been some other discussion, 21 but my understanding it was just Stiles. 22 Q. And at those other units, do you know whether 23 they share the same space restraints that you were 24 talking about as far as Stiles Unit? 25 A. And you are talking about the basic?

Alderson Reporting Company 1-800-FOR-DEPO Beryl Edwin Bailey 30(b)(6) September 28, 2010 Huntsville, TX

Page 197 1 the entire requirements. Okay. When we did this, 2 this is the cost of the pre-packaged meal. We still 3 were not -- we didn't feed the pre-packaged meal, 4 because we didn't -- looking at this, this was just 5 the cost of the just pre-packaged meal and the 6 beverage. Okay? 7 Q. So it appears for the dinner that there is no 8 green beans as we talked about or any supplements like 9 that? 10 A. Correct, yes, sir. 11 Q. So is this a complete Kosher Menu Planning 12 Guide? 13 A. No, sir. 14 Q. This is a first draft. Is that correct? 15 A. Yes, sir. 16 Q. And in future planning guides, were there 17 supplements added to the pre-packaged meals? 18 A. The decision was made we weren't going to do 19 the pre-packaged meal, because we couldn't. One, the 20 cost per meal; two, the cost of adding things to it, 21 three, the -- it wasn't an entire meal. 22 Q. Okay. 23 A. Okay. 24 Q. Okay. And so this -- because of the 25 pre-packaged meal appears to be the lion's share of

Alderson Reporting Company 1-800-FOR-DEPO Beryl Edwin Bailey 30(b)(6) September 28, 2010 Huntsville, TX

Page 209 1 you think they only provide kosher meals? 2 A. It may be. I don't know, but it does say 3 kosher on the bottom of the document. 4 Q. So I'll ask again, This is an order form for 5 pre-packaged kosher meals? 6 A. Yes, sir. 7 Q. Do you see the prices they list in the center 8 there? 9 A. Yes, sir. 10 Q. Those are prices per case? 11 A. Okay. 12 Q. Correct? 13 A. Yes, sir. 14 Q. And I'm looking down at the left-hand corner 15 now where it is discussing cases, packs 12 per case, 16 so it seems to be case prices. 17 A. Okay. 18 Q. So do you see that there are 12 meals per 19 case? Is that correct? 20 A. Yes, sir. 21 Q. So the cost -- so, sorry. The price per meal 22 is the price for a case divided by 12. Right? 23 A. Yes, sir. 24 Q. But if we do the math. And if we pick, for 25 instance, the most expensive thing on here, I see that

Alderson Reporting Company 1-800-FOR-DEPO Beryl Edwin Bailey 30(b)(6) September 28, 2010 Huntsville, TX

Page 210 1 is the beef stew, $35.28. Do you see that? 2 A. Yes, sir. 3 Q. If you divide $35.28 by 12, you get 2.95. 4 Would you like to do the math or would 5 you ask -- 6 A. It would be pretty close to $3 a meal. 7 MR. MURCHISON: Can we stipulate that $35.28 8 divided by 12 is 2.95? 9 MS. CUNNIFF: Sure. 10 MR. MURCHISON: Unless someone wants to do 11 the math. 12 MS. CUNNIFF: I'll also stipulate. 13 THE WITNESS: Close enough. 14 BY MR. MURCHISON: 15 Q. And the least expensive thing, $27.24 is the 16 vegetarian stew. Do you see that? 17 A. Yes, sir. 18 Q. And if you divide that by 12, you get 227. 19 A. Okay. 20 Q. Okay. Does that sound right to you? 21 A. Yes, sir. 22 Q. So prices have stayed relatively the same 23 since 2006? 24 A. Yes. 25 Q. Very similar to the ones we just saw.

Alderson Reporting Company 1-800-FOR-DEPO Beryl Edwin Bailey 30(b)(6) September 28, 2010 Huntsville, TX

Page 226 1 building. 2 Q. Uh-huh. 3 A. So any time we have a separate building that 4 is preparing and cooking food, it would take more 5 staff, because you have to have more staff to 6 supervise that kitchen. 7 Q. Okay. But just to be clear, TDCJ didn't 8 really consider the option of providing pre-packaged 9 meals to Stiles, instead of providing a totally 10 separate kosher kitchen? 11 A. At my level? 12 Q. Yes. 13 A. No. What was considered at the 14 administrative level, I can't answer for that. 15 MR. MURCHISON: All right. Would you mind if 16 we went through another break and then tried to push 17 through till 5:00? 18 MS. CUNNIFF: Sure. 19 (Following a brief recess, the proceedings 20 continued as follows:) 21 MR. MURCHISON: Okay. I'd ask the Court 22 Reporter to mark this document as Exhibit No. 28. 23 (Exhibit No. 28 marked for identification) 24 BY MR. MURCHISON: 25 Q. Mr. Bailey, do you have Exhibit No. 28 in

Alderson Reporting Company 1-800-FOR-DEPO Beryl Edwin Bailey 30(b)(6) September 28, 2010 Huntsville, TX

Page 231 1 Q. Okay. Did Food Services ever consider 2 ordering food in this case for -- strike that, I'm 3 sorry. 4 Did Food Services ever consider working 5 with the budget group to order food in this way for 6 the commissaries? 7 A. Can you say that again? 8 Q. Yes. Did Food Services ever consider working 9 with the budget group to order these kinds of foods 10 for availability in the commissaries? 11 A. No. 12 Q. Okay. All right. Are you familiar with the 13 kosher cannery at the Ramsey Unit? 14 A. Yes, sir. 15 Q. Are there other kosher canneries in TDCJ? 16 A. No, sir. We have one cannery. 17 Q. One cannery for the entire TDCJ? 18 A. Yes, sir. 19 Q. So the cannery at the Ramsey Unit is the only 20 cannery for TDCJ? 21 A. Yes, sir. 22 Q. And it has been kosherized? 23 A. Yes, sir. 24 Q. What comes out of the cannery or what is 25 stored in the cannery?

Alderson Reporting Company 1-800-FOR-DEPO Beryl Edwin Bailey 30(b)(6) September 28, 2010 Huntsville, TX

Page 232 1 A. All we do is vegetables, canned vegetables. 2 Forgive me if I miss something. Green beans, carrots, 3 squash, greens, mixed greens, spinach, sweet potatoes, 4 and sauerkraut. 5 Q. Okay. And when was the Ramsey Unit cannery 6 kosherized? 7 A. I can't give you -- I cannot remember. I 8 remember going down there, but I do not remember when 9 it was. I'm sorry. 10 Q. What was the purpose of kosherizing that 11 cannery? 12 A. To be able to utilize the canned vegetables 13 that TDCJ produced in our kosher kitchen. 14 Q. So was it kosherized at the same time as 15 Stringfellow started up? 16 A. No, sir, it was done afterwards. 17 Q. So before the kosher -- before the cannery 18 was kosher, how did you provide canned vegetables to 19 supplement the kosher diet at Stringfellow? 20 A. A lot of the canned vegetables and a lot of 21 the -- all of the overall food items we get -- I say a 22 lot -- quite a bit is already kosher. 23 We don't specify when we bid it out that 24 it be kosher, but we get a lot of canned vegetables, 25 canned fruit and they are already kosher, because the

Alderson Reporting Company 1-800-FOR-DEPO Beryl Edwin Bailey 30(b)(6) September 28, 2010 Huntsville, TX

Page 242 1 kosher. 2 A. Yes, sir. 3 Q. Is that your understanding from the email? 4 A. Yes, sir. 5 Q. Okay. Where did these sack meals come from? 6 A. They came out of our kosher kitchen. 7 Q. Okay. And are these sack meals provided only 8 to inmates at Stringfellow? 9 A. Yes, sir. 10 Q. Okay. 11 A. That's the only place we are going to provide 12 them. We, at this time, still do provide sack meal -- 13 kosher. 14 Q. Kosher sack meal? 15 A. Yes, sir. 16 Q. Could you fix the sack meals at the 17 Stringfellow Unit and distribute them to other units 18 nearby? 19 A. It's possible, yes, for a short period of 20 time. Again, an issue is being able to transport food 21 in a manner that is -- food safety is concerned, 22 because any time you start transporting food and 23 moving it from Point A to Point B, you get food safety 24 issues concerned. 25 Q. Uh-huh. Has TDCJ ever looked into the

Alderson Reporting Company 1-800-FOR-DEPO Beryl Edwin Bailey 30(b)(6) September 28, 2010 Huntsville, TX

Page 243 1 possibility of preparing these at Stringfellow and 2 then distributing them as we just discussed? 3 A. Kosher sack meals? 4 Q. Yes. 5 A. Not to my knowledge. 6 Q. Okay. As you add up the costs listed, the 7 total cost per day for kosher sack meals is $3.27 per 8 inmate. Do you see that? 9 A. Yes, sir. 10 Q. Is that the cost of feeding offenders kosher 11 meals at Stringfellow? 12 A. No, sir. I believe that we were buying food 13 items specifically for kosher sack meals, should a 14 need necessitate that. We were buying kosher bologna, 15 kosher salami, kosher bread, those things -- 16 Q. Okay. 17 A. -- that it took to make a kosher sack meal 18 and feed the requirements that Food Services 19 procedures require. 20 Q. Okay. 21 A. And should it necessitate that we provide a 22 kosher sack meal, this is what the cost of those items 23 were. 24 Q. Okay. So the food that goes into a kosher 25 sack meal might be different from the food that they

Alderson Reporting Company 1-800-FOR-DEPO Beryl Edwin Bailey 30(b)(6) September 28, 2010 Huntsville, TX

Page 251 1 different states. 2 Q. Okay. 3 A. So it may not have been this document. It 4 could have been from a different state, but we do get 5 requests. 6 Q. Okay. And I believe this document is not 7 necessarily directed to TDCJ. It appears to be a 8 study authored by the Michigan Department of 9 Corrections, and correct me if I'm wrong. I'm just 10 reading the document. Under "Subject" it says: 11 "National Kosher Meals Survey." Do you see that? 12 A. Yes, sir. 13 Q. And this appears to be a document conducted 14 with a survey conducted by Michigan Department of 15 Corrections of the kosher meals available at various 16 state prisons across the country. 17 Did TDCJ consult this study when it was 18 coming up with its kosher food policies? 19 A. Not to my knowledge. 20 Q. Okay. 21 A. No. 22 Q. But the study was in TDCJ's possession, 23 though, correct, based on the cover letter? 24 A. Yes, sir. 25 Q. Do you have any ideas as to why they would

Alderson Reporting Company 1-800-FOR-DEPO Beryl Edwin Bailey 30(b)(6) September 28, 2010 Huntsville, TX

Page 259 1 Q. That last paragraph, it says: 2 "The number of kosher prisoners served 3 Varied greatly from state to state, 4 irrespective of the state's perceived Jewish 5 population. The number ranged from an 6 average of two to an average of 1,500." 7 Does TDCJ -- sorry, strike that. 8 Does the number of Jewish inmates 9 seeking kosher food at TDCJ fall within that range? 10 A. I do not see who requests kosher food. That 11 goes through Chaplaincy and who requests to be on that 12 program, so I can't answer as to -- 13 Q. Okay. 14 A. -- how many offenders have requested versus 15 how many are in the program. That all goes through 16 Chaplaincy. That does not come through our 17 department. 18 Q. Okay. I believe we have an answer through 19 Chaplaincy on that, so thank you. 20 A. All right. 21 Q. The paragraph continues: 22 "Several states had none on the kosher 23 program, but would serve a kosher meal upon 24 demand." 25 Has TDCJ ever considered serving a

Alderson Reporting Company 1-800-FOR-DEPO Beryl Edwin Bailey 30(b)(6) September 28, 2010 Huntsville, TX

Page 260 1 kosher meal upon demand in this way, without a 2 separate kosher program? 3 A. Not to my knowledge, no. Because -- and I 4 asked this question strictly from a food service 5 standpoint, as it would be difficult to do, based on 6 how we would know from one day to the next how much 7 food to prepare, how much we would need. 8 Q. Uh-huh. 9 A. How much food, whether it be pre-packaged or 10 bulk food or whatever, knowing from one day to the 11 next how much food to prepare to get into a lot of 12 food waste. 13 Q. Okay. 14 A. And that has an effect on our budget. 15 Q. But that's -- has TDCJ actually taken an 16 official study? 17 A. Not to my knowledge, no, sir. 18 Q. Okay. Does TDCJ -- strike that. 19 TDCJ has stated in several Interrogatory 20 Responses that one thing standing between it and 21 providing kosher food is that there are too few Jewish 22 prisoners to provide kosher food. 23 There are too few people asking for 24 kosher food at TDCJ to make it worthwhile. Is that 25 still TDCJ's position?

Alderson Reporting Company 1-800-FOR-DEPO Beryl Edwin Bailey 30(b)(6) September 28, 2010 Huntsville, TX

Page 268 1 possible. Is that fair? 2 A. Yes, sir. 3 Q. Okay. From your discussions with Colorado 4 officials, was their kosher meal program successful? 5 A. Yes, sir, I believe so. 6 Q. Okay. Did you get any sense from them about 7 how much it would cost them to provide kosher meals in 8 the way they were doing so? 9 A. If I did -- I'm sure I probably did, I don't 10 remember what those costs were. 11 Q. That's fine. 12 A. It's been awhile back. 13 Q. That's fine. And did you or anyone from TDCJ 14 that you know of compare Colorado and Texas, the 15 special requirements that Colorado faces and the 16 special challenges Texas is facing? 17 A. I know one of the issues is, the best I 18 remember, Colorado has 16 prison units, where we have 19 over a hundred. 20 Q. Uh-huh. 21 A. Their total offender population was somewhere 22 between 20- and 30,000. 23 Q. Okay. 24 A. Where we are running 150,000. 25 Q. Yeah.

Alderson Reporting Company 1-800-FOR-DEPO Beryl Edwin Bailey 30(b)(6) September 28, 2010 Huntsville, TX

Page 269 1 A. I know they don't have the number of in-cell 2 fed offenders that we have. 3 Q. Okay. 4 A. Their close custody offenders were in general 5 population. A lot of different issues. They are a 6 lot more liberal than we are. 7 Q. Okay. And this affected their ability to 8 provide kosher food in a certain way? 9 A. It allowed them a lot more latitude in the 10 way they did things. 11 Q. Let's look at a prison system that I believe 12 TDCJ looked at that is closer to Texas. I'm going to 13 show you a document. 14 MR. MURCHISON: Will you please mark this as 15 Exhibit No. 35? 16 (Exhibit No. 35 marked for identification) 17 BY MR. MURCHISON: 18 Q. Mr. Bailey, do you have the document marked 19 as Exhibit No. 35 in front of you? 20 A. Yes, sir. 21 Q. What is this document from what you can tell? 22 A. It looks like Joint Status Report on, from 23 Federal Court, Eastern District of Texas, Lufkin 24 Division. 25 Q. For July 2006?

Alderson Reporting Company 1-800-FOR-DEPO Beryl Edwin Bailey 30(b)(6) September 28, 2010 Huntsville, TX

Page 289 1 Do you see that? 2 A. Yes, sir. 3 Q. And then Section C, right above, discusses 4 whether an inmate can be denied kosher food based on a 5 security classification, and it says: 6 "Religious meals shall not be restricted 7 from inmates based on their classification or 8 housing placement." 9 And it goes on: 10 "Transferring inmates shall continue 11 participating in their religious diet 12 program." 13 So according to this document, the 14 security classification doesn't keep an inmate from 15 getting kosher food in California. Is that right? 16 A. Yes, sir. 17 Q. And do you recall whether that was the policy 18 back in 2006 when you were looking at the California 19 program? 20 A. I can't. No, sir, I don't. 21 Q. Okay. This is another state that does things 22 differently from Texas. In Texas, you can be 23 transferred from Stringfellow to Stiles and not be 24 provided kosher food. Is that correct? 25 MS. CUNNIFF: Objection.

Alderson Reporting Company 1-800-FOR-DEPO Beryl Edwin Bailey 30(b)(6) September 28, 2010 Huntsville, TX

Page 290 1 THE WITNESS: Can you say that again? 2 BY MR. MURCHISON: 3 Q. Sorry. In Texas, if you are transferred from 4 Stringfellow to Stiles, you are no longer provided 5 kosher food. Is that correct? 6 A. You are provided -- you can have access to 7 kosher food through commissaries, but not through the 8 Food Service Department. 9 Q. So TDCJ doesn't provide it to the inmates. 10 The inmates have to purchase it. Is that correct? 11 A. This is correct, yes, sir. 12 Q. So Texas is different from California in that 13 regard, based on what you're seeing in the California 14 regulations here. Correct? 15 A. Yes, sir. 16 Q. In California, you can be transferred and 17 still get kosher food. In Texas, that can't happen. 18 So, again, I'll ask: Why did Texas 19 reject this way of providing kosher food? Even though 20 an inmate is transferred, he is still able to get 21 kosher food in California? 22 A. We based our policy somewhat. We didn't copy 23 them verbatim. 24 Q. Okay. 25 A. We didn't say, California does it this way,

Alderson Reporting Company 1-800-FOR-DEPO Beryl Edwin Bailey 30(b)(6) September 28, 2010 Huntsville, TX

Page 291 1 so this is the way Texas is going to do it. 2 Q. Okay. 3 A. The decision was made to put the kosher 4 kitchen at the Stringfellow Unit, based on the needs 5 at the time, and that's where we needed to put it and 6 that was the one. 7 Being that we only have one contract 8 rabbi and he is in the Houston area. And we wanted to 9 put it close to him, so he could be there frequently 10 to look at the program, observe the program, make sure 11 we were complying. 12 Q. Okay. 13 A. So putting it at other facilities around the 14 state, we didn't have the need for it, and didn't have 15 the contract services of the rabbi in other parts of 16 the state to do that. 17 Q. Did you -- did you ever discuss with anybody 18 in California what they did to solve that problem? 19 A. I did not. 20 Q. Okay. 21 A. It may have gone through Chaplaincy. I did 22 not. 23 Q. Okay. So Food Services never had any 24 discussions with California about how to solve the 25 problem of too few rabbis?

Alderson Reporting Company 1-800-FOR-DEPO Beryl Edwin Bailey 30(b)(6) September 28, 2010 Huntsville, TX

Page 292 1 A. No, sir. 2 Q. Okay. Did TDCJ conduct any surveys comparing 3 itself to California and noting the different ways 4 that Texas is forced to do things differently on the 5 kosher side? 6 I'm sorry. I can rephrase. 7 A. All right. 8 Q. Did TDCJ ever identify a way that Texas was 9 different from California that kept Texas from doing 10 it this way? 11 A. Not directly, other than just we didn't 12 have -- as far as I know, we didn't have the 13 offenders -- the number of offenders requesting to be 14 part of the kosher program. 15 I don't know what California's numbers 16 were, but at the time we just didn't have the numbers 17 to necessitate us doing that. It was just the few 18 offenders that we had. 19 Q. Okay. All right. I'm going to ask you about 20 one more system and then I think we can call it a 21 day. Okay? 22 MS. CUNNIFF: By the way, Counsel, Exhibit 23 No. 37, is this a code or a statute of the State of 24 California? 25 MR. MURCHISON: Yes. Yes, it's an

Alderson Reporting Company 1-800-FOR-DEPO Beryl Edwin Bailey 30(b)(6) September 28, 2010 Huntsville, TX

Page 298 1 They do not feed meat, other than what 2 is in the pre-packaged meal. They are feeding the 3 soy-based product and they are actually getting it 4 from the vendor that we received it from back then, 5 Global Foods. 6 Q. Global Foods is their vendor? 7 A. Yes, sir. 8 Q. Okay. 9 A. So they are not that much different than what 10 we are doing now, as far as just having it in one 11 unit. 12 Q. Okay. 13 A. Having a small amount of offenders. Other 14 than, I believe our menu that we are feeding is a 15 better menu -- 16 Q. Okay. 17 A. -- than what they are feeding. 18 Q. And did he describe it as a pilot program? 19 A. Yes, sir. 20 Q. So does that mean it is being considered for 21 roll-out elsewhere? 22 A. He didn't elaborate. He just said, We are 23 just doing it as a pilot to look at it and see how the 24 process goes. 25 Q. Was Stringfellow established as a pilot in

Alderson Reporting Company 1-800-FOR-DEPO Beryl Edwin Bailey 30(b)(6) September 28, 2010 Huntsville, TX

Page 299 1 that same spirit? 2 A. It was done -- there was nothing discussed 3 about doing it on numerous units. We were going to do 4 it at one unit. 5 Q. Okay. Has he shared with you the -- has your 6 Florida contact shared the Florida meal plan with you, 7 the suggested meal plan that they are going to 8 implement? 9 A. Their menu? 10 Q. Yes. 11 A. That they are running? 12 Q. Yes. 13 A. Yes, sir. 14 Q. And you said Texas' meal plan or menu 15 compares favorably to that one? 16 A. No, because they are feeding soy. 17 Q. Okay. 18 A. They are feeding the soy-based product; we 19 are feeding meat. 20 Q. Okay. 21 A. I don't know what their regular menu looks 22 like, because I didn't see their regular menu. Our 23 regular menu that we feed at the kosher kitchen is 24 somewhat similar to what we are feeding general 25 population offenders, as I described before.

Alderson Reporting Company 1-800-FOR-DEPO IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION

MAX MOUSSAZADEH,

Plaintiff, v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE; Civil Action No. 3:07-cv-00574 BRAD LIVINGSTON, solely in his official JURY capacity as Executive Director of the Texas Department of Criminal Justice; and

DAVID SWEETEN, solely in his official capacity as warden of the Eastham Unit of the Texas Department of Criminal Justice,

Defendants.

PLAINTIFF MAX MOUSSAZADEH’S MOTION FOR SUMMARY JUDGMENT

EXHIBIT 4

KosherProducts FY10 6-29-10

Date Vendor Product Oty Cost

12-1-09 FoodExpress Instantchili 55 cs 1848.00

2-24-10 AlleProcessing Bone in chicken 6 cs 222.00 2-24-10 AlleProcessing BeefGoulash 5 cs 185.00 2-24-10 AlleProcessing StuffedCabbage 3 cs 112.50 2-24-10 AlIeProcessing Bone in Salmon 3 cs 119.70 2-24-10 AlleProcessing Freight 117.00

2-24-10 AlephInstitute DarkChocolate 100 ea 175.00

3-3-10 FoodExpress Instantchili 50 cs 1680.00

5-25-10 KFPInternational Matzocrackers 6 cs 315.74 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION

MAX MOUSSAZADEH,

Plaintiff, v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE; Civil Action No. 3:07-cv-00574 BRAD LIVINGSTON, solely in his official JURY capacity as Executive Director of the Texas Department of Criminal Justice; and

DAVID SWEETEN, solely in his official capacity as warden of the Eastham Unit of the Texas Department of Criminal Justice,

Defendants.

PLAINTIFF MAX MOUSSAZADEH’S MOTION FOR SUMMARY JUDGMENT

EXHIBIT 5

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION

MAX MOUSSAZADEH,

Plaintiff, v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE; Civil Action No. 3:07-cv-00574 BRAD LIVINGSTON, solely in his official JURY capacity as Executive Director of the Texas Department of Criminal Justice; and

DAVID SWEETEN, solely in his official capacity as warden of the Eastham Unit of the Texas Department of Criminal Justice,

Defendants.

PLAINTIFF MAX MOUSSAZADEH’S MOTION FOR SUMMARY JUDGMENT

EXHIBIT 6

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION

MAX MOUSSAZADEH,

Plaintiff, v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE; Civil Action No. 3:07-cv-00574 BRAD LIVINGSTON, solely in his official JURY capacity as Executive Director of the Texas Department of Criminal Justice; and

DAVID SWEETEN, solely in his official capacity as warden of the Eastham Unit of the Texas Department of Criminal Justice,

Defendants.

PLAINTIFF MAX MOUSSAZADEH’S MOTION FOR SUMMARY JUDGMENT

EXHIBIT 7

COLORADO DEPARTMENT OF CORRECTIONS

KOSHER MEAL PROGRAM GUIDELINES

Version 9-14-09 Updated by:

Charleen Crockett DOC Food Service Operations (719) 226-4257

and

Rabbi Yisroel Rosskamm, Rabbinic Coordinator The Scroll K, Vaad Hakashrus of Denver

Page 1

MMZ000356

TABLE OF CONTENTS

I. Definitions

3 II. Meat and Dairy

3 III. Menu

3 IV. Medical Diets

4 V. Acceptable Kosher Certification Symbols 4 VI. Preparation Area

7 VII. Equipment

7 VIII. Food Storage

8 IX. Food Products

9 X. Preparation

13 XI. Service

15 XII. Satellite Meal Service 16 XIII. Sanitation

17 XIV. Program Reviews

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MMZ000357 17 XV. Sabbath, Work Proscription, Holy Days 19

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MMZ000358

I. DEFINITIONS

A. Kashrus: The dietary laws of Judaism.

B. Kosher: A Hebrew term that is applied to food, which it is in compliance with Jewish dietary laws: Food that is acceptable or proper to eat.

1. Animals that chew their cud and have cloven hooves (e.g., cows and sheep) are kosher; rules governing their slaughter and preparation also apply to fowl. 2. Proper preparation of kosher meats includes complete drainage of blood. 3. Kosher fish are those with scales and fins. 4. Milk products may not be cooked or eaten together with meat or poultry at the same time, or immediately after.

C. Meat: Containing the flesh of any of the permitted animals or fowl or their derivatives.

D. Dairy: Containing milk or milk derivatives.

E. Parve: Contains neither meat nor milk products nor its derivatives. It is compatible with either meat or milk. Examples are: eggs, fish (with fins and scales), coffee, tea, fruits, grains, vegetables.

II. MEAT & DAIRY

A. Dairy products are never to be served with meat or poultry. The converse is true as well.

B. Duration Between Meals: Generally, a 3-6 hour waiting period is necessary after consumption of meat or poultry before dairy products may be eaten. However, after dairy products are eaten, one hour should elapse before meat or poultry may be consumed.

C. Illness: If a person is ill, a 1 hour time period is sufficient. Life threaten illness; no wait period is required.

III. MENU

A. The DOC standardized kosher diet menu is to be used. No permanent changes to the kosher diet are to be made. Substitutions must be kept to a minimum.

B. Changes to the kosher menu may be necessary due to product availability, Page 4

MMZ000359 equipment malfunctions or other situations. Changes must be approved by the Facility Food Service Supervisor with notification made to the Central Food Service Office as soon as possible but no later than the 15th of the following month.

C. Main Entrée Substitutions: If a meal must be substituted, the substitution must ensure that the menu remains similar (e.g. dinner for dinner or lunch for lunch), especially with regard to meat and dairy items. Dairy meals may be substituted for dairy meals and meat or poultry meals may be substituted for meat or poultry meals. A meat or dairy meal should never be substituted for a vegetarian or parve meal.

IV MEDICAL DIETS:

A. Offenders who have a medical condition requiring a special menu continue to have a right to their religious diet. They will not be forced to make a choice between their medical needs and a religious diet.

B. If a modification to the kosher diet is needed for medical purposes, the Health Care Provider must write a consult. The Registered Dietitian will determine if the kosher diet is acceptable or if a special menu needs to be created.

C. All medical diet menus will need to be reviewed by the rabbinic consultant.

D. Should it be determined that a new menu must be written, the medical diet menu will be followed until the religious version is ready. The medical/religious diet hybrid menu should be completed within five working days.

V ACCEPTABLE KOSHER CERTIFICATION SYMBOLS

A. Kosher Certification: In general, food items must be in their natural state (e.g. eggs, coffee, fresh fruit, fresh vegetables) or they must be certified by an approved rabbinical authority. Special food items selected for the kosher menu will be from an approved source. Condiments and items such as peanut butter, tuna and crackers must be certified with a reliable symbol of certification. Examples of acceptable symbols are a circle K or circle U. Other acceptable certification symbols are listed below. A single letter K does not necessarily mean kosher and accordingly is acceptable as kosher B. Questions regarding kosher certification must be directed to the Central Food Service Administration Office at (719) 226-4255. Items received with

Page 5

MMZ000360 questionable kosher labeling can be referred to the Central Food Service Office for investigation.

The Scroll K / Vaad Hakashrus of Denver

1350 Vrain Street, Denver, CO 80204

Office: (303) 595-9349 Fax: (303) 629-5159

January 2, 2005

To Whom It May Concern:

The following is a list of some of the recommended kosher certifications commonly found in the Denver area:

Symbol Organization Comments The Union of Orthodox Jewish Congregations 333 Seventh Avenue New York, New York 10001 (212) 563-4000 Fax - (212) 564-9058 Rabbi Menachem Genack, Rabbinic Administrator The Organized Kashrus Laboratories 391 Troy Avenue Brooklyn, NY 11213 (718)756-7500 Fax - (718) 756-7503 Rabbi Don Yoel Levy, Kashrus Administrator Star-K Kosher Certification 11 Warren Road Baltimore, MD 21208-5234 (410) 484-4110 Fax - (410) 653-9294 Rabbi Moshe Heinemann, Rabbinic Administrator Star-D All items are dairy and cannot be used 11 Warren Road Baltimore, MD 21208-5234 with a meat menu. (410) 484-4110 Fax - (410) 653-9294 Rabbi Moshe Heinemann, Rabbinic Admin, Rabbi Boruch Beyer KOF-K Kosher Supervision 201 The Plaza, Teaneck, NJ 07666 (201) 837-0500 Fax - (201) 837-0126 Rabbi Ahron Felder, Director of Kosher Standards THE HEART "K" Kehila Kosher Rabbi Avrohom Teichman (323) 935-8383 Kosher Supervision of America Please call office for information P.O. Box 35721, Los Angeles, CA 90035 regarding meat products, and (310) 282-0444 Fax - (310) 282-0505 restaurants Rabbi Binyomin Lisbon, Kashrus Administrator

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MMZ000361 Vaad Hoeir of Saint Louis 4 Millstone Campus St. Louis, MO 63146 (314) 569-2770 Fax - (314) 569- 2774 Rabbi Sholom Rivkin, Chief Rabbi The Vaad Hakashrus of Denver 1350 Vrain Street, Denver, CO 80204 (303) 595-9349 Fax - (303) 629-5159 Rabbi Y Rosskamm, Rabbinic Administrator Rabbi Hillel Erlanger, Kashrus Coordinator Rabbi Moshe Heisler, Kashrus Administrator Chicago Rabbinical Council 3525 W. Peterson Avenue, Suite #315 Chicago, IL 60659 Phone: (773) 588-1600 Fax - (773) 588-2141 Rabbi Shalom Yehhuda Fishbane, Kashruth Administrator The Texas K & International Kosher Supervision 351 East Price Street Suite #200 Keller TX 76248 (817) 337-4700 Phone - (817) 337-4901 Fax Rabbi Shalom Yehuda Fishbane, Rabbinic Administrator K’hal Adath Jeshurun (Breuer’s) 85-93 Bennet Avenue New York, NY 10033 (212) 923-3582 Fax - (212) 781-4275 Rav Zachariah Gelley, Rav

Kashruth Council of Toronto 4600 Bathurst Street Suite #240 North York, Ontario M2R3V2 (416) 635-9550 Fax - (416) 635-8760 Rabbi Mordechai Levin, Executive Director THE CALIFORNIA "K" Kehilla Kosher (Igud Hakashrus of Los Angeles); Rabbi Avrohom Teichman (323) 935-8383 Rabbinic Administrator of Upper Midwest Please consult the office regarding Kashrut Rabbi Asher Zeilingold Meats ( may not be Glatt) (612) 690-2137 BAIS DIN OF CROWN HEIGHTS Rabbi Dov Ber Levertov (718) 774-7504 Kashruth of The Central Rabbinical Congress Rabbi Yidel Gruber (718) 384-6765 Bais Din Tzedek of the Eida Hachareidis of Jerusalem 011-972-2-251-651 BELZ The Bais Din Tzdek of K’hal Machzikei Hadas 02-2-385-832 or 02-795-414

Rabbi Moshe Y. L. Landa (/Rav of Bnei-Brak)

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Rabbi Nuchem Efraim (Noam) & Teitelbaum (Volver Rav)

Rabbi Shlomo Stern (Debraciner Rav)

Rabbi M. Weissmandl (Rav of Nitra-Monsey)

Montreal Vaad Hair 6333 Decarie Boulevard Suite #100 Montreal, H3W3E1 Canada (514) 270-2659 Fax - (514) 739-7024 Rabbi Peretz Jaffe Rabbinic Admin, Rabbi Saul Emanuel Exec Dir

VI PREPARATION AREA:

A. Area: Since a dedicated room is generally not available for the exclusive use of kosher food preparations, a vegetable prep area or bakery area can be used. For Passover preparation, the bakery area may not be used. This will minimize the risk of compromising the kosher status of foods prepared. A diet kitchen is not an ideal place unless a dedicated corner or table can be made available away from other cooking equipment and non-kosher food preparation.

B. Work Surface: Any surface can be made acceptable for kosher meal preparation by covering the surface with two layers of butcher paper or plastic wrap. The butcher paper must remain dry. An alternative is the use of plastic wrap.

VII EQUIPMENT:

A. The DOC kosher diet menu is designed to minimize food preparation requirements, especially cooking of non-parve foods.

B. Any small wares, cutting boards etc. used should be purchased new and dedicated to kosher diet preparation. All equipment dedicated to the kosher program must be labeled, “FOR KOSHER USE ONLY”. This includes wash tubs.

C. Equipment Needed: 1. Can opener 2. Thermometer. Separate thermometers are needed for checking the temperature of dairy, meat and parve (non-dairy and non-meat) items, which may be served with either meat or dairy meals. 3. Small tabletop steamer. A suitable, economical steamer manufactured by Black and Decker is available at Wal-Mart.

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4. Knife or chopper: If a knife or chopper is used for kosher diet preparation, it should be purchased new specifically for that purpose, identified for kosher use only and dedicated to kosher preparation. The knife or chopper may be wrapped in foil or plastic and stored with other knives. If the knife or chopper is inadvertently set down onto a non-kosher table it can simply be rinsed in cold water and then wiped with a clean, cool rag. This is only acceptable if the knife or chopper and the non-kosher surface were both cool when contact was made. 5. Cold and dry food storage cabinets used exclusively for kosher foods/ items. 6. Cutting boards 7. Microwave oven 8. Microwaveable containers 9. Serving utensils 10. Wash tubs 11. Dish tub for soaking equipment.

D. Equipment used for the kosher program must be washed, rinsed and sanitized in special containers that are only used for handling non-dairy, non-meat foods. Washing containers are to be placed inside clean sinks. Separate tubs are needed for dairy and parve items and should be marked as such. Items being washed must not come into contact with the sink.

VIII FOOD STORAGE:

A. As far as possible. Raw food items should be stored away from non-kosher items, especially meats/poultry, in a secure area to prevent contamination. A lockable cage or cabinet serves this purpose well.

B. Lunchmeats: Due to the small numbers of kosher diets we serve and the limited availability of kosher lunchmeats in most areas were we have prison facilities, it is often necessary to purchase kosher lunchmeats in advance and freeze the product until it is used. Here are some guidelines for handling the kosher lunchmeats: 1. Kosher lunchmeats should be specified to be delivered prior to the product expiration date. 2. Kosher lunchmeats should be frozen immediately upon receipt and maintained in a frozen state until needed. 3. Cases of product should be labeled as to the date received and then immediately stored in a freezer. 4. The lower the temperature of the freezer, the better. 5. It is acceptable to serve kosher lunchmeats past the expiration date as long as the product was frozen prior to the expiration date & remains frozen until thawed for use. 6. Once the product is thawed it must be used and should not be refrozen.

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7. Kosher lunchmeats should not be purchased so far in advance that the product remains in the freezer for more than 3 months. While the product would still be acceptable to eat from a food safety standpoint, lunchmeats held in frozen storage for more than 3 months begin to lose nutrients, flavor, texture and color.

IX Food Products

Food Item Certification Preparation Required Method NOTE: Food items should be prepared and portioned as close to serving time as possible. Food items may need to be cooked and portioned in advance due to holy day observances with work proscription, but should be cooked and portioned as close to the start of the work proscription time as possible. In all cases, HACCP food safety guidelines must be followed. Beans, canned Yes Microwave in a microwavable container dedicated for kosher (Numerous varieties) use. It should be portioned using either a utensil that is dedicated for kosher or a disposable utensil. The portion cups must be double wrapped before they are placed in the hot box. Beans, dry No Microwave:

Microwave Soak - Combine 3 cups hot water and 1 cup of dry beans in a 4 qt. microwaveable casserole dish. Cover and microwave at HIGH (100%) power for 15 minutes or until boiling. Let stand 1 hour. Drain.

Microwave Cooking - In a 4 qt. microwaveable casserole dish combine 3 cups water and 1 cup soaked beans. Cover and microwave at HIGH (100%) power 10-15 minutes or until boiling. Stir and microwave at MEDIUM (50%) power for 25-35 minutes, stirring every 15 minutes or until fork tender.

It should be portioned using either a utensil that is dedicated for kosher or a disposable utensil. The portion cups must be double wrapped before they are placed in the hot box. Coca-Cola Beverages Depends Barq’s, Coca-Cola, Crush, Fanta, Mr. Pibb, Sprite, Squirt are acceptable. (Fruit beverages would require a letter from the company)

Bread Yes Fresh, wrapped in individual portions

Cereals, cold Yes Kosher bulk cereal may be used Malto-O-Meal, Kelloggs, Post or Page 10

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General Mills acceptable with OU,K, Kd or COR on label.

Cereals, hot Hot cereals may be cooked in the kosher microwave in a - Ralston Yes container dedicated for kosher. If instant cereal is used, hot - Oats No water may be taken from a water urn using a pitcher that is dedicated for kosher use. It should be portioned using either a utensil that is dedicated for kosher or a disposable utensil. The portion cups must be double wrapped before they are placed in the hot box. Coffee Unflavored-No Unflavored coffee from coffee urns is acceptable provided that flavored coffees or other beverages have never been served from the urn. The urn must be wiped and cleaned each day with a clean cloth that has not been used to wipe other surfaces. If cups of hot water or coffee are placed in a hot box they must be double wrapped.

Condiments Yes - Salad dressings - Pickle relish - Mayonnaise - Ketchup

Condiments No - Salt - Pepper - 100% lemon juice

Cottage cheese Yes

Crackers Yes MUST BE PARVE Eggs Eggs in the shell are Eggs should be cooked in a tabletop steamer dedicated for kosher. kosher use only. In an emergency requiring that eggs be hard cooked on a stove top, a new pan must be used and the Liquid pasteurized eggs stovetop must be prepared according to guidelines outlined require certification. above.

Entrees, shelf stable Yes Microwave according to procedures outlined in X. E. below. Heat in original packaging.

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Shelf stable entrees are pre-cooked and may be served at room temperature.

Frozen dinners Yes Microwave according to procedures outlined in X. E. below. Heat in original packaging.

NO SUBSTITUTIONS SHALL BE MADE FOR SERVING FROZEN DINNERS.

Fruit, fresh No Wash vegetables and fruits under running water and serve Apples, bananas, whole or cut using a dedicated knife on a clean surface grapefruit, melons, oranges, peaches, pears, plums

Fruit, canned Not required on Care must be taken to use a fresh can and use a disposable - Applesauce, pure canned fruits which or dedicated spoon to remove the product from the can and or unflavored only contain: place the portion into a disposable container. It is essential - Apples Ascorbic acid, citric that all of the cans in storage in the facility of the particular - Peaches acid, corn syrup, type being used are of the same variety and do not contain - Pears high fructose corn any questionable ingredients. The repackaging should be - Pineapples syrup, salt, sugar, done in an area where no non-kosher food production is - Plums water. being done. (Note: This is subject to ongoing monitoring - Prunes and may change at any time).

Lunch meats Yes Must be served unopened in the original, factory- sealed packaging. Instant soup Yes

Margarine, parve Yes – MUST BE PARVE

Milk No Milk may be served from the bulk milk dispensers provided that the dispensers are wiped down and cleaned each day with a clean cloth that has not been used to clean other surfaces.

Milk may also be served in cartons.

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The milk may be purchased from Juniper Valley Dairy or other commercial dairy. Milk must be from a cow or goat (no swine or camel). Milk in the United States, by regulation, must be from a cow. Milk from the Juniper Valley Dairy meets this standard. The Juniper Valley Dairy is inspected by the Colorado Department of Public Health and Environment in accordance with Colorado Revised Statutes and the Pasteurized Milk Ordinance effective in all 50 states. The Juniper Valley Dairy has also been visited by our rabbinical consultant. Muffins Yes

Peanut Butter Yes Peanut butter does not have to be served in an individual package. Bulk kosher peanut butter may be used but care MUST be taken to ensure the bulk peanut butter is kosher. Potato, baked No Potatoes should be cooked in a microwave oven by loosely double wrapping in plastic wrap. If the microwave is used for kosher use only and all entrees and dinners are double wrapped when heated, then the potatoes do not need to be double wrapped in the microwave. IN AN EMERGENCY SITUATION, potatoes may be baked by double wrapping in two separate pieces of aluminum foil. Should be served hot unless served on the Sabbath or a work proscription day. Potato, baked sweet Potatoes should be cooked in a microwave oven by loosely double wrapping in plastic wrap. If the microwave is used for kosher use only and all entrees and dinners are double wrapped when heated, then the potatoes do not need to be double wrapped in the microwave. IN AN EMERGENCY SITUATION, potatoes may be baked by double wrapping in two separate pieces of aluminum foil. Should be served hot unless served on the Sabbath or a work proscription day. Potato chips Yes Rice Plain – No Plain rice available through the warehouse does not require Parboiled – No kosher certification and may be prepared in the tabletop Seasoned - Yes steamer or in a microwave oven. An alternative method is to procure parboiled rice which may be reconstituted in the kosher preparation area using hot water from a coffee urn. The container used for reconstitution must be disposable or new and dedicated to this purpose. It should be portioned using either a utensil that is dedicated for kosher or a disposable utensil. The portion cups must be double wrapped before they are placed in the hot box. Tuna, bulk cans Yes Bulk canned tuna may be used provided it has reliable kosher certification. Care must be taken to use a fresh can and use a Page 13

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disposable or dedicated spoon to remove the product from the can and place the portion into a disposable container. Canned tuna shall be served cold. The large cans of tuna may be opened in the kitchen and be repackaged in disposable containers, provided that all cans available in the facility have acceptable certification. The repackaging should be done in an area where no non-kosher food production is being done. (Note: This is subject to ongoing monitoring and may change at any time).

Vegetables, fresh No, but require Celery (remove the leaf and cut apart the area where it - Celery special handling branches off toward the top of the stalks. Thoroughly wash each stalk by rubbing both sides while rinsing with water.

Vegetables, fresh No Wash vegetables and fruits under running water and serve whole or cut using a dedicated knife on a clean surface. The Carrots, kosher diet menu does not include vegetables that require cucumbers, leaf by leaf inspection or individual floret inspection. peppers, squash, potatoes, tomatoes, Serve whole or cut using a dedicated knife on a clean zucchini surface.

Vegetables, canned Beets - No Care must be taken to use a fresh can and use a disposable May be served cold: Carrots - No or dedicated spoon to remove the product from the can and - Beets Corn - No place the portion into a disposable container. Canned - Carrots Green beans - No vegetables (exception: sweet potatoes and yams) should be - Corn Peas - No served cold or they may be heated in a microwave oven if - Green beans Peas & Carrots - No microwavable disposable cups are used. The canned - Peas Spinach – Yes vegetables may be opened in the kitchen and be repackaged - Peas & Carrots Waxed beans - No in disposable containers, provided that all cans available in - Spinach Sweet potatoes – the facility of the variety to be repackaged do not contain - Waxed beans Yes any questionable ingredients The repackaging should be Must be served hot: Yams - Yes done in an area where no non-kosher food production is - Sweet potatoes being done. (Note: This is subject to ongoing monitoring - Yams and may change at any time).

Veggie patties, vegan Yes Microwave Veggie patties should be loosely wrapped in a single sheet of plastic wrap or placed into a baggie with small hole punched to allow steam to escape then and heated according to package instructions using a microwave oven. If the microwave is used for kosher use only and all entrees and dinners are double wrapped when heated, then the patties do not need to be double wrapped in the

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microwave.

X PREPARATION:

A. Staff Supervision: Food Service staff must adequately supervise all aspects of the kosher diet program to include:

1. Product acquisition and storage 2. Food preparation, cooking and serving practices 3. Menu compliance and the accuracy of all trays served 4. The integrity of the storage and preparation areas

B. Offender Workers: Employing a Jewish offender to do the kosher diet preparation is ideal and encouraged. If a Jewish offender is not available for diet preparation, staff must ensure the individual assigned to prepare kosher meals is well trained and supervised. In either case, it is imperative that the offender’s work area, storage area and procedures be properly supervised. DOC staff must be knowledgeable enough about kosher diet procedures to adequately supervise activities.

C. Hand Washing and Food Handling: Wash and dry with paper towels. All foods are to be handled carefully to avoid contamination.

D. Foods Not Eaten Raw (e.g. eggs, potatoes): For foods not normally eaten raw, a Jewish person is supposed to be involved in the cooking. If possible, a Jewish person should at least turn on the oven or light the pilot light. Given the prison setting, this may not always be possible. This requirement does not exist, however, when the cooking is done by steam or microwave. Therefore, the purchase and use of a small, tabletop steamer is required. The steamer unit must do cooking by steam and not by immersion in water.

E. Microwave Preparation:

1. If a product is double wrapped, any microwave may be used.

2. Shelf Stable Entrees can be micro waved by lifting the corner of the film slightly to create a tiny vent hole in the film cover and covering and loosely double wrapping the product before micro waving.

3. If a product is not double wrapped, the microwave may be made acceptable using the following procedure: The microwave should not have been used for the past 24 hours. Clean and sanitize the oven thoroughly. Fill a completely clean container that was not used for 24 hours, with water. Turn the microwave oven on and let it steam heavily. Turn it off

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and wipe out the inside.

4. To use the microwave during Passover, use a flat thick object as a separation between the bottom of the oven and the cooking dish. When cooking, the food should be covered on all sides and must not touch the side of the microwave.

F. Steamer preparation: Should there be a question about the kosher status of the steamer, it may be kashered using the following procedures: 1. The steamer should be cleaned inside and outside. 2. Fill with water to its normal use level. 3. Let it steam for 15 minutes.

G. Oven Preparation:

NOTE: An oven MAY NOT be used accept during emergency situations. An attempt should be made to gain approval from the DOC Central Food Service Office prior to oven use and a written report is required by the close of the next business day. Here are steps that MUST be taken prior to a one-time use of an oven in an emergency situation:

1. NO NON-KOSHER COOKING is to be done at the same time in any adjacent equipment.

2. When using the stovetop, the oven below should not be in use for the cooking of non-kosher food items.

3. Equipment used must be new and must not have been used in the preparation of any non-kosher food items.

4. The oven should be cleaned from remaining food and grease. Particles that are completely burned up are not of concern.

5. To clean the stove top, wipe off excess food. Put a sheet pan over the burners, leaving air space. Turn on heat and let debris burn off. About 8-10 minutes.

6. To clean: turn the oven on to its highest temperature for 1 hour. This should be repeated each time the oven is switched from non- kosher to kosher use. Unless impossible, it is preferred that a Jewish person light the pilot light on the stove and turn the stove on each time it is used.

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7. Pans that are hot must be cooled without touching the bottom or sides of any non-kosher surface. They should be placed on a clean dry surface that is covered with at least two layers of clean paper or cardboard.

XI SERVICE

A. Disposable Service Ware: All meals will be served using disposable plates, bowls, cups, trays and eating utensils.

B. Dining Area: It is not required to have a dedicated area or table for the offenders eating kosher food. Inmates receiving a kosher diet may eat their meal in the general inmate dining room or common area.

C. Serving Window: Kosher diets may be served through the regular serving line window

D. Dining Table Cover: If the meal is hot, two layers of separation should be used between the food and the table. Many materials may serve this purpose to include the tray the food is heated in, a Styrofoam or plastic container, and plastic wrap used to cover the meal.

E. Signing for Meals: Religious diets will be served in the same manner as the therapeutic diets. Inmates shall sign for their kosher diet when received, except on the Sabbath or other work restricted Jewish holy days, when an observant Jewish person is prohibited from signing his/her name.

F. Tray Inspection: Food Service or dining room security staff may open the Styrofoam trays at any time should there be concerns about the contents of the tray. Food should not be tampered with and respect must be given.

XII SATELLITE MEAL SERVICE

A. Dry Foods Requiring Hot Water to reconstitute them may be reconstituted in the kitchen using water from the hot water urn, if the warm water in the cell is not adequate. However, this may not be done on the Sabbath and should only be done in circumstances where no alternative is available.

B. Cold Trays do not need to be double wrapped. They should be placed on the top tray slides in the transport cart. As long as the food container is closed, a small amount of food particles on the outside of the container do not present a problem and may be wiped off.

C. Hot Trays: Hot food items need to be double wrapped. Several materials suffice such as the entrée or dinner container itself, plastic wrap or the Styrofoam tray. Two options are appropriate. In either case, the hot trays should be placed on the top tray slides in the food cart.

1. Use one half of a Styrofoam tray. Wrap entire tray in plastic wrap. 2. Use a full Styrofoam tray. Individual items inside the tray should Page 17 MMZ000372

have a single layer of wrap. The entire Styrofoam tray does not need to be wrapped.

D. Service: Kosher trays do not need to be served first. Officers handling trays are not required to wear gloves. If an officer’s hands become soiled with sufficient food residue that food residue is left on trays, then the officer should wash his/her hands using a sink or cleaning wipe. Gloves may be worn and must be replaced should they become excessively soiled.

E. Inspection of Segregation Trays: The living unit officer may open Styrofoam trays to inspect for contraband prior to giving the tray to the offender.

F. Return of Service Items: Offenders are required to return all non-edible items to include: 1. Plastic wrap 2. Styrofoam tray 3. Flatware 4. Soup cups 5. Condiment packages

On fast days offenders may keep items in their cell longer.

XIII SANITATION

A. Detergent: Detergents do not require kosher certification.

B. Coffee Urns & Bulk Milk Dispensers: Coffee urns and bulk milk dispensers in dining rooms should not be wiped with a towel that has residue of milk or other food on it. Using a clean or new towel, the urn should be the first item to be wiped. After that, the towel may be used to wipe the other areas.

C. Any equipment, small wares, cutting boards etc. used should be purchased new and dedicated to kosher diet preparation. They must be washed, rinsed and sanitized in special containers that are only used for handling parve items. Separate wash tubs are needed for parve and dairy items. Washing containers are to be placed inside clean sinks. Items being washed must not come into contact with the sink.

D. Knives: If a knife is used for kosher diet preparation, it should be purchased new specifically for that purpose, identified for kosher use only and dedicated to kosher preparation. The knife may be wrapped in foil or plastic and stored with other knives. If the knife is inadvertently set down onto a non-kosher table it can simply be rinsed in cold water and then wiped with a clean, cool rag. This is only acceptable if the knife and the non-kosher surface were both cool when contact was made.

XIV PROGRAM REVIEWS AND RESPONSES TO PROBLEMS Page 18 MMZ000373

A. Program Reviews: The kosher diet program is subject to periodic review by the DOC rabbinic consultant as well as periodic audits and other visits. Facilities shall submit a plan of action in response to any issues raised during these review within 10 business days. The plan of action shall be submitted to the DOC Central Food Service Office, Attn: Food Service Manager.

Page 19 MMZ000374

The Scroll K / Vaad Hakashrus of Denver DOC Facility Review Report

Date ______Facility ______Number of inmates on the kosher diet ______Name of Officer who accompanied the Rabbi during this visit ______Name of Rabbi who reviewed the Kosher program: Are the food preparations done in a designated area that is safe from compromising the kosher status? Yes ___ No ____ Who is doing the kosher food preparations? ______Is the person doing the kosher food preparations on the kosher diet? Yes ___ No ____ Have inmates on the kosher diet expressed concerns regarding the kosher status of the meals? Yes ___ No ____ If yes note the concerns on the back of this report. Is the table being covered with two layers of covering prior to beginning food preparations? Yes ___ No ____ Are the Eggs being cooked in a portable steamer used exclusively for kosher foods? Yes ___ No ____ Are the baked potatoes and yams being cooked exclusively in the kosher microwave? Yes ___ No ____ Are all dairy and meat items double wrapped when they are heated in the microwave? Yes ___ No ____ Where is the equipment washed? ______who washes the equipment? ______Is the staff at this facility aware that they may contact the Scroll K for any question they may have related to the kosher diet? Yes ___ No ____

Do the following items bear acceptable kosher certification? Yes ___ No ____Are the items that are required to be Parve, available exclusively as Parve. Yes ___ No ____

Bread Parve Yes ___ No ____ Margarine Parve Yes ___ No ____ Canned Beans Yes ___ No ____ MOM Entrees Yes ___ No ____ Cereal Yes ___ No ____ Muffins Yes ___ No ____ Cheese Yes ___ No ____ Peanut Butter Yes ___ No ____ Crackers Parve Yes ___ No ____ Potato Chips Yes ___ No ____ Frozen Dinners Yes ___ No ____ Salad Dressing Parve Yes ___ No ____ Instant soups Yes ___ No ____ Tuna fish Yes ___ No ____ Jelly Yes ___ No ____ Vegetarian cutlets Yes ___ No ____ Lunch Meats Yes ___ No ____

Is there an adequate supply of the products listed above for the number of inmates in this facility? Yes ___ No ____ Are all varieties of fresh and canned fruits and vegetables used for the kosher diet, listed on the approved list, on the bottom of the menu? Yes ___ No ____ Check some of the prepared meals to assure that all items are in compliance with the kosher guidelines. Try to check a meat meal to verify that it does not contain any dairy items. Were the meals in compliance with the kosher guidelines? Yes ___ No ____ Are the Scroll K guidelines for kosher food preparations being followed at this facility? Yes ___ No ____ Ask one or two inmates on the kosher diet if they have any concerns regarding the kosher status of the kosher meals. Note: names, DOC # and concern if any. Is the kosher program satisfactory? Yes ___ No ____

Rabbi’s signature ______Facility representative’s signature ______

Comments______

Page 20 MMZ000375

XV SABBATH, HOLY DAYS & FAST DAYS

A. Sabbath Meals: On the Sabbath, cooking (Alighting a fire@) is prohibited. The Sabbath begins approximately 18 minutes prior to sundown on Friday evening and continues until approximately 42 minutes after sundown on Saturday. Only cold foods may be served. Foods Such as baked potatoes and hard cooked eggs may be cooked the day before but can’t be reheated on the Sabbath. They are to be served cold. Hot food can be served for the Friday night dinner, as long as it is heated from before the Sabbath and kept hot until it is served.

B. Sabbath Candles: The preferred place for someone to light the candles Friday night is in the room in which he will eat his Friday night meal. If the only place that the offender can light his candles is in the room that he is going to say his prayers, then perhaps he can eat his Friday night meal in that room. If this is not an option, then perhaps he can at least eat a roll or matzoh in the room in which he lit the candles.

C. Work Proscription Holy Days: On the Sabbath and during work restricted holy days, the microwave and the steamers should not be used. The menus shall be altered to provide cold meals for work proscription days. Eggs and potatoes that appear on the menu may be served cold and must be prepared before the beginning of the work proscription period.

D. Information about holy days and fast days will be distributed to the facilities approximately one month prior to the event. This information is also posted on the shared drive of the Department of Corrections information system under foodsvc_docs/Jewish and Messianic Jewish Program.

E. Offenders who are Jewish and are beginning to be more observant of their religion should not be disqualified from the kosher program if they are not ready to fast on all the fast days.

Page 21

MMZ000376 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION

MAX MOUSSAZADEH,

Plaintiff, v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE; Civil Action No. 3:07-cv-00574 BRAD LIVINGSTON, solely in his official JURY capacity as Executive Director of the Texas Department of Criminal Justice; and

DAVID SWEETEN, solely in his official capacity as warden of the Eastham Unit of the Texas Department of Criminal Justice,

Defendants.

PLAINTIFF MAX MOUSSAZADEH’S MOTION FOR SUMMARY JUDGMENT

EXHIBIT 8

U.S. Department of Justice Federal Bureau of Prisons

OPI: HSD/FDS NUMBER: 4700.05 Program DATE: 6/12/2006 Statement SUBJECT: Food Service Manual

1. PURPOSE AND SCOPE. To standardize management of all Food Service operations within the Bureau.

2. SUMMARY OF CHANGES

# Chapter 1, Administration, has been changed to remove references cited in Human Resource Management Manual concerning employee uniforms, employee position descriptions, and employee training; references to the Inventory Control (computer) System have been moved to comprehensive chapters on Computerized Food Service Management which detail the policy requirements of the current Computerized Food Service Management System; references to file retention have been removed and referenced in the appropriate section of the Records and Information Disposition Schedules.

# Chapter 2, Custody and Security, has been removed as it restates policy contained in the Correctional Services Procedures Manual.

# Chapter 3, Staff Personnel (Cook Supervisor), has been removed as it restates references cited in various Bureau policies concerning employee job qualifications, use of tobacco, inmate job descriptions, inmate training and orientation, performance pay, and food safety references elsewhere in the Food Service Manual.

# Chapter 4, Menu Planning, is now Chapter 2 and has been changed to include references to the requirements of the new Computerized Food Service Management System; menu planning theory and recommendations were moved to the Food Service Technical Reference Manual.

# Chapter 6, Institutional Gardens, is now Chapter 3 and has been changed to reflect current institutional garden requirements. # Chapter 5, Food Preparation, Chapter 10, Food Service Dining Room Operations, Chapter 11, Food Storage, Receiving and

MMZ000287 PS 4700.05 6/12/2006 Page 2 Inventory, Chapter 12, Safety and Sanitation, and Chapter 13, Equipment, have been organized into separate comprehensive chapters on food safety based on the U.S. Public Health Service, Food and Drug Administration, Food Code (2005).

# Chapter 7, Religious Diets, is now Chapter 4 and is renamed Religious Diet Program to reflect changes in the Religious Beliefs and Practices policy and has been changed to reflect current program requirements.

# Chapter 8, Guidelines for Medical Diets/Self Selection on Mainline, is now Chapter 5 and has been changed to remove restated policy contained in the Patient Care PS.

# Chapter 9, Specialized Food Service Programs has been changed to move theory and recommendations into the Food Service Technical Reference Manual and references to food safety into the appropriate food safety related chapters of the Food Service Manual.

# Chapter 14, The Standard Ration, Chapter 15, Computerized Budget and Ration Requirements, Chapter 16, Computerized Storehouse Requisition, Chapter 17, Computerized Monthly Nutrition Report, Chapter 18, Computerized Stock Reference Cards, have been organized into separate comprehensive chapters on Computerized Food Service Management which detail the policy requirements of Food System 4, the authorized computer based Food Service management system.

3. PROGRAM OBJECTIVES. The expected results of this program are: a. Inmates will be provided with nutritionally adequate meals that are prepared and served in a manner that meets established governmental health and safety codes. b. Essential resources will be planned, developed, and managed to meet the operational needs of the Food Service program. c. Inmates assigned to the Food Service Department will be provided opportunities to acquire skills and abilities that may assist in obtaining employment after release. d. Inmates will be provided with nutritional information that enables them to determine and establish healthy eating habits that may enhance their quality of life.

4. DIRECTIVES AFFECTED

MMZ000288 PS 4700.05 6/12/2006 Page 3 a. Directive Rescinded PS 4700.04 Food Service Manual (10/7/96) b. Directives Referenced PS 5500.12 Correctional Services Procedural Manual (10/10/03) PS 1600.08 Occupational Safety and Environmental Health Manual (8/6/99) PS 4400.05 Property Management Manual (5/26/04) PS 5360.09 Religious Beliefs and Practices (12/31/04) PS 6031.01 Patient Care (1/15/05) TRM 4701.02 Food Service Technical Reference Manual (8/21/98) U.S. Public Health Service, FDA, Food Code 2005 Flexible and Compressed Work Schedules Act 1982 Master Agreement

5. STANDARDS REFERENCED American Correctional Association 4th Edition Standards for Adult Correctional Institutions: 4-4313, 4-4314, 4-4315, 4-4316(M), 4-4317, 4-4318, 4-4319, 4-4320, 4-4321(M), 4-4322(M), 4-4323, 4-4324(M), 4-4325, 4-4326, 4-4327, and 4-4328

6. DEFINITIONS a. “Water Activity or aw ” means water activity which is a measure of the free moisture in a food, is the quotient of the water vapor pressure of the substance divided by the vapor pressure of pure water at the same temperature, and is indicated by the symbol aw . The Water Activity of an item may be determined by the use of a Water Activity Meter. b. “Beverage” means a liquid for drinking, including water. c. “Food Contact Surface” means a surface of equipment or a utensil with which food normally comes into contact, or a surface of equipment or a utensil from which food may drain, drip or splash, into a food or onto a surface normally in contact with food. d. “Hermetically Sealed Container” means a container that is designed and intended to be secure against the entry of microorganisms and in the case of low acid canned food, to maintain the commercial sterility of its contents after processing. e. “Injected” means manipulating a meat so that infectious or

MMZ000289 PS 4700.05 6/12/2006 Page 4 toxigenic microorganisms may be introduced from its surface to its interior through tenderizing with deep penetration or injecting the meat such as by processes which may be referred to as injecting, pinning, or stitch pumping. f. “No-Flesh” means the item will be free of the flesh of all animals, fish, or birds. g. “mg/L” means milligrams per liter, which is the metric equivalent of parts per million (ppm). h. “pH” means the symbol for the negative logarithm of the hydrogen ion concentration, which is a measure of the degree of acidity or alkalinity of a solution. i. “Potentially Hazardous Food” means a food that is natural or synthetic and requires temperature control because it is in a form capable of supporting the rapid and progressive growth of infectious or toxigenic microorganisms, the growth and production of Clostridium botulinum, or in raw shell eggs, the growth of Salmonella Enteritidis.

Potentially Hazardous Food includes an animal food that is raw or heat treated, a food of plant origin that is heat treated or consists of raw seed sprouts, cut melons, and garlic in oil mixtures.

Potentially Hazardous Food does not include:

# An air cooled hard boiled egg with shell intact, or shell egg that is not hard boiled, but has been treated to destroy all viable Salmonellae

# A food with an aw value of 0.85 or less # A food with a pH level of 4.6 or below when measured at 75 degrees Fahrenheit

# A food in an unopened hermetically sealed container that is commercially processed to achieve and maintain commercial sterility under conditions of non- refrigerated storage and distribution j. “Ready to Eat Food” means food that is edible without additional preparation to achieve food safety. A ready to eat food may receive additional preparation for palatability or aesthetic, epicurean, gastronomic, or culinary purposes.

MMZ000290 PS 4700.05 6/12/2006 Page 5 k. “Reduced Oxygen Packaging” means the reduction of the amount of oxygen in a package by removing oxygen, displacing oxygen, or otherwise controlling the oxygen content to a level below that normally found in the surrounding atmosphere. l. Hazard Analysis Critical Control Point plan (HACCP) - a written document that delineates the formal procedures for following the Hazard Analysis Critical Control Point principles developed by The National Advisory Committee on Microbiological Criteria for Foods. m. Definitions not specifically listed can be found in the U.S. Public Health Service, FDA, Food Code 2005, Chapter One, Purpose and Definitions.

/s/ Harley G. Lappin Director

MMZ000291 PS 4700.05 6/12/2006 Table of Contents, Page i

1. Administration 1. General Policy ...... 1-1 2. Institutional Organization and Staff Responsibilities ...... 1-1 3. Custody and Security ...... 1-2 4. Storage and Requisition of Supplies ...... 1-2 5. Ordering and Receipt of Controlled Stores . . . . . 1-3 6. Stock Rotation...... 1-3 7. Inventory of Accountable Food Service Stores . . . 1-3 8. File Management...... 1-4 9. Post Orders...... 1-4 10. Staff Meetings...... 1-5 11. Staff Work Schedule ...... 1-5 12. Annual Leave...... 1-5 13. Staff Training...... 1-5 14. Inmate Training...... 1-6 15. Cleaning Schedules ...... 1-6 16. Meal Tickets and Staff Dining ...... 1-6 17. Equipment Maintenance Records ...... 1-7 18. Equipment Replacement ...... 1-7 19. Manual Temperature/Sanitizer Documentation . . . . 1-7 20. Automatic Temperature Monitoring ...... 1-7

2. Menu Planning 1. General Policy...... 2-1 2. Menu Planning Considerations ...... 2-1 3. Meal Planning...... 2-1 4. Menu Contents...... 2-1 5. Menu Cycles...... 2-1 6. Master Menu Cycle Update ...... 2-1 7. Menu Item Alternatives ...... 2-2 8. Menu Requirements and Availability ...... 2-2 9. Nutritional Analysis ...... 2-2

3. Institutional Garden Operations 1. General Policy...... 3-1 2. Responsibility...... 3-1

4. Religious Diet Program 1. No-Flesh Option...... 4-1 2. Certified Food Component ...... 4-1 3. Participation...... 4-3 4. Annual Ceremonial Meals ...... 4-3 5. Fasts...... 4-3 6. Ramadan...... 4-4

MMZ000292 PS 4700.05 6/12/2006 Table of Contents, Page ii 7. Passover...... 4-4 8. Religious Meal Accommodation ...... 4-4 9. Religious Diet Cost ...... 4-4

5. Medical Diets/Self Selection on Mainline 1. General Policy...... 5-1 2. Responsibilities ...... 5-1 3. Mainline Self Selection of Medical Diets . . . . . 5-1 4. Reference...... 5-3 5. Supplemental Feedings ...... 5-3

6. Specialized Food Service Programs 1. General Policy...... 6-1 2. Satellite Meal Service ...... 6-1 3. Satellite Meal Periods ...... 6-1 4. Satellite Menu Selections ...... 6-1 5. Alternate Menu...... 6-1 6. Alternate Menu Contents ...... 6-1 7. Transportation Meals ...... 6-2

7. Food Safety Management, Personnel, and Receiving Requirements 1. Responsibility...... 7-1 2. Supervision...... 7-1 3. Verification of Cooking and Cooling Temperatures...... 7-1 4. Formal Safety and Sanitation Inspections . . . . . 7-1 5. Health and Hygiene ...... 7-2 6. Food Receiving Requirements ...... 7-5

8. Food Safety - Protection After Receiving 1. Preventing Contamination from Hands ...... 8-1 2. Preventing Contamination when Tasting ...... 8-1 3. Packaged and unpackaged Food - Separation, Packaging and Segregation ...... 8-1 4. Food Storage Containers Identified with Common Name of Food ...... 8-2 5. Washing Fruits and Vegetables ...... 8-2 6. Storage or Display of Food in contact with water or ice...... 8-2 7. Food Contact with Equipment and Utensils . . . . . 8-2 8. In Use Utensil Storage ...... 8-2 9. Linens, Napkins, Wiping Cloths, Use Limitation . . 8-3 10. Gloves, Use Limitation ...... 8-3

MMZ000293 PS 4700.05 6/12/2006 Table of Contents, Page iii 11. Using Clean Tableware for Second Portions and Refills...... 8-3 12.Food Storage...... 8-3 13. Food Storage, Shelf Stable ...... 8-4 14. Storage, Prohibited Areas ...... 8-4 15. Food Display...... 8-4 16. Condiments, Protection ...... 8-4 17. Self Service Operations ...... 8-5

9. Food Safety - Destruction of Organisms of Public Health Concern 1. Raw Animal Foods...... 9-1 2. Reheating for Hot Holding ...... 9-2

10. Food Safety - Limitation of Growth of Organisms of Public Health Concern 1. Temperature Control ...... 10-1 2. Time as a Public Health Control ...... 10-1 3. Cooling...... 10-2 4. Cooling Methods...... 10-2 5. Potentially Hazardous Food, Hot and Cold Holding...... 10-2 6. Ready to Eat, Potentially Hazardous Food, Date Marking...... 10-3 7. Food Preservation Limitations ...... 10-3 8. Reduced Oxygen Packaging (Cook Chill) Criteria . 10-4 9. Special Food Safety Requirements ...... 10-5

11. Food Safety - Equipment 1. Food Equipment, Certification ...... 11-1 2. Use Limitation...... 11-1 3. Back-Flow Prevention ...... 11-1 4. Walk-In Refrigerator and Freezer Requirements . . 11-1 5. Lubricants...... 11-1 6. Ware Washing and Sanitizing Requirements . . . . 11-2 7. Cleaning of Equipment and Utensils ...... 11-4 8. Protection of Clean Items ...... 11-7 9. Utensils, Consumer Self Service ...... 11-8 10. Can Openers...... 11-8 11. Cutting Surfaces ...... 11-8 12. Bulk Milk Dispensers ...... 11-8 13. Temperature Measuring Devices ...... 11-9 14. Oven Maintenance and Security ...... 11-9 15.Deep Fat Frying...... 11-10 16.Waste Handling...... 11-10 17. Physical Facilities ...... 11-11

MMZ000294 PS 4700.05 6/12/2006 Table of Contents, Page iv

12. Computerized Food Service Management 1. General Policy...... 12-1 2. Responsibility...... 12-1 3. Operational Procedures ...... 12-1 4. Budget Management ...... 12-2 5. Monthly Usage Report ...... 12-3 6. Software Updates ...... 12-3

MMZ000295 PS 4700.05 6/12/2006 Chapter 4, Page 1

RELIGIOUS DIET PROGRAM CHAPTER 4

1. NO-FLESH OPTION a. A no-flesh protein option will be provided at both the noon and evening meals whenever an entree containing flesh is offered and will be denoted on the as-planned menus and the nutritional information cards. b. Vegetables and starches seasoned with flesh will have an alternate no-flesh option. c. No-flesh option planning will consider that an enhanced no- flesh option will create an attractive self selection component which may meet the needs of inmates who might otherwise request participation in the certified food component.

2. CERTIFIED FOOD COMPONENT a. The nationally approved certified food menus will be served to inmates approved to participate in the certified food component at all institutions. The nationally approved certified food menus are located in the Food Service Technical Reference Manual. b. The nutritional analysis for the nationally approved certified food menus are available from Food Service Branch, Central Office. c. Changes to the nationally approved certified food menus may not be made at the institutional level, except when seasonal unavailability of specific fresh produce items dictates that temporary substitutions be made. All substitutions will be approved by the appropriate Associate Warden. Cook Supervisors will notify supervisory staff when unscheduled changes to the menu are necessary. d. All prepared foods purchased for use on the certified food component will be ready to use and certified by a nationally recognized Orthodox Standard, such as OU, OK, KOF-K, Star-K, CRC (New York). In addition to Orthodox certification, bread and margarine must be Parve for use on the certified food component. e. Equipment or utensils that come into direct contact with any food (except uncut fruit or vegetables) being served on the certified food menu must be easily identified for certified food component use only (visual marking, different style, or color) and stored separately from items used elsewhere in the department. A separate knife cabinet is not always possible, therefore, a separate tool box within the knife cabinet is an acceptable option if easily identified for certified food use only.

MMZ000307 PS 4700.05 6/12/2006 Chapter 4, Page 2 f. Equipment used to clean equipment or utensils used for the certified food component will conform to the wash, rinse, and sanitize requirements of this manual. This equipment will only be used to clean equipment and utensils used on the certified food component. g. Beverages from dedicated, dispensing equipment that meet the orthodox certification or inherently acceptable religious requirements of this diet are acceptable. In cases where this is not practical, individual certified beverages will be provided. h. An urn dedicated to provision of hot water must be provided for reconstituting instant beverages and foods. i. Ordinarily, certified food component meals will be served with disposable trays, plates, cups, and eating utensils. Re- usable trays, plates, cups, and eating utensils may be used, however, they must conform to section (e) and be washed only in equipment as described in section (f) of this chapter. j. The following procedures will be followed to prepare and serve the approved certified food menus: (1) Fresh fruits will be varied and represent fruit varieties and portion sizes available on mainline. (2) To ensure product consistency and suitable microwave heating, the following minimum specifications will be used when procuring certified food entrees: (a) All meals requiring heating will be double-wrapped and sealed. Frozen or shelf stable meals are acceptable. (b) All hot flesh entrees will include three ounces of meat/fish (not including bone, soy, fat, breading weight) and two ounces of sauce or gravy. (c) A Cheese Omelet Meal will consist of a 3.5 ounce omelet with one ounce of cheese and one cup of potatoes. (d) Cold Cuts will be four ounce individually wrapped and sealed delicatessen style meats. (3) Matzo may only be used in place of bread for a short period of time when a bread order has been delayed. Except that during Passover, Jewish inmates will receive kosher for Passover matzo in place of bread.

MMZ000308 PS 4700.05 6/12/2006 Chapter 4, Page 3 (4) If Parve holiday desserts purchased for mainline have the appropriate religious certification, they will be provided to the participants on the certified food component in addition to the holiday menu. k. Certified food menus will be posted in the dining room or printed copies provided directly to all certified food participants.

3. PARTICIPATION a. An inmate's program participation is not affected by temporary placement on a medically prescribed diet or placement in a Special Housing Unit (SHU). b. The FSA will ensure procedures are in place to provide an updated, daily SENTRY religious diet participant list to Food Service staff if SENTRY is not available. c. If the FSA can demonstrate that an inmate has missed six consecutive certified food meals, the lack of participation will be reported to the Chaplain for consideration of removal from the program. d. Inmates participating in the certified food component selecting any food items except those specifically prepared for the certified food component, do so with the understanding that it may not meet the individual’s religious dietary laws.

4. ANNUAL CEREMONIAL MEALS a. The Chaplain will consult with the FSA concerning the menu for each ceremonial meal six to eight weeks prior to the scheduled date of the meal. b. The ceremonial meal menu will be derived from items regularly available on the master menus and will constitute the mainline meal available to all inmates. c. Food Service funds will not be used to purchase traditional/ritual foods to supplement the mainline foods served for any ceremonial meal. In order to ensure food safety, traditional/ritual foods funded by Chaplaincy Services will be purchased, received, handled, stored, and prepared by Food Service.

5. FASTS. Food Service will accommodate meal service and Chaplaincy bag meal requests for inmates participating in public fast days as required in the Religious Beliefs and Practices policy.

MMZ000309 PS 4700.05 6/12/2006 Chapter 4, Page 4

6. RAMADAN a. During Ramadan, inmates participating in the certified food component during the fast will receive the approved certified food lunch and dinner menu after sun down and consume it in the Food Service Department or Special Housing Unit. b. Inmates who are not participating in the certified food component, but elect to observe Ramadan may do so by receiving a combination of the lunch and dinner menu after sun down and consuming it in the Food Service Department or Special Housing Unit. The mainline meal will contain a non-pork entree. c. Each institution may provide a bag breakfast or allow inmates to go to Food Service for the breakfast meal prior to dawn. Bag breakfasts should contain non-perishable items, such as ultra-high pasteurized milk, fresh fruit, peanut butter, dry cereal, etc.

7. PASSOVER a. During the eight days of Passover, Jewish inmates identified by Religious Services will be provided a menu that meets Kosher for Passover standards. b. Ordinarily, each inmate will require 26 Kosher for Passover meals for the Passover period. c. The list of participants must be received eight weeks prior to Passover from Religious Services to allow time to procure the required items. Food Service must be prepared to provide Passover meals to new commitments. d. Jewish inmates participating in the certified food component will receive the Kosher for Passover menu in place of the certified food menu for that period.

8. RELIGIOUS MEAL ACCOMMODATION. If religious meal accommodation is requested by the Chaplain, a roster of the participants will be provided by the Chaplain to Food Service staff for meal preparation purposes.

9. RELIGIOUS DIET COST. The FSA will compute a per inmate daily cost of the certified food component each month and report the amount on the staff meeting minutes. Menu cost analysis will be derived from the computerized Food Service management system data.

MMZ000310 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION

MAX MOUSSAZADEH,

Plaintiff, v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE; Civil Action No. 3:07-cv-00574 BRAD LIVINGSTON, solely in his official JURY capacity as Executive Director of the Texas Department of Criminal Justice; and

DAVID SWEETEN, solely in his official capacity as warden of the Eastham Unit of the Texas Department of Criminal Justice,

Defendants.

PLAINTIFF MAX MOUSSAZADEH’S MOTION FOR SUMMARY JUDGMENT

EXHIBIT 9

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION

MAX MOUSSAZADEH,

Plaintiff, v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE; Civil Action No. 3:07-cv-00574 BRAD LIVINGSTON, solely in his official JURY capacity as Executive Director of the Texas Department of Criminal Justice; and

DAVID SWEETEN, solely in his official capacity as warden of the Eastham Unit of the Texas Department of Criminal Justice,

Defendants.

PLAINTIFF MAX MOUSSAZADEH’S MOTION FOR SUMMARY JUDGMENT

EXHIBIT 10

Federal Bureau of Prisons FY 2011 Certified Food Menu - Week 1

Sunday Monday Tuesday Wednesday Thursday Friday Saturday

Fresh Apple Fresh Orange Fresh Apple Fresh Orange Fresh Banana Fresh Orange Fresh Orange Pkg Bran Cereal Pkg Oatmeal Pkg Grits Pkg Bran Cereal Pkg Oatmeal Pkg Grits Pkg Bran Cereal 3 Slices Bread 3 Slices Bread 3 Slices Bread 3 Slices Bread 3 Slices Bread 3 Slices Bread 3 Slices Bread 2 Cups Skim Milk 2 Cups Skim Milk 2 Cups Skim Milk 2 Cups Skim Milk 2 Cups Skim Milk 2 Cups Skim Milk 2 Cups Skim Milk 1 Cup Coffee 2 Pkg Jelly 2 Pkg Jelly 2 Pkg Jelly 2 Pkg Jelly 2 Pkg Jelly 1 Cup Coffee 2 Pkg Jelly 2 Margarine 2 Margarine 2 Margarine 2 Margarine 2 Margarine 2 Pkg Jelly 2 Margarine 2 Margarine

Fresh Apple -Beans and Franks 1 Pkg Sardines -Beef Meatloaf 1 Pkg Bologna -Chicken Wings 1 Pkg Tuna -Spanish Omelet -Potatoes Pkg Potato Chips -Brown Gravy Pkg Potato Chips -Sauce Pkg Potato Chips -Potatoes 2 Mustard 1 Vegetable Juice -Mashed Potatoes 1 Vegetable Juice -Mashed Potatoes 1 Vegetable Juice Pkg Cream Wheat 3 Slices Bread 3 Slices Bread -Mixed Vegetables 3 Slices Bread -Sweet Peas 3 Slices Bread 3 Slices Bread 2 Margarine 2 Salad Dressing 3 Slices Bread 2 Salad Dressing 3 Slices Bread 2 Salad Dressing 2 Cups Skim Milk Fresh Apple 2 Mustard 2 Margarine 2 Mustard 2 Margarine 2 Mustard 2 Pkg Jelly Kosher Beverage Fresh Orange Fresh Banana Fresh Orange Fresh Apple Fresh Apple 2 Margarine Kosher Beverage Kosher Beverage Kosher Beverage Kosher Beverage Kosher Beverage Kosher Beverage

-Spaghetti -Fish Fillet -Turkey Cutlet -Ckn Cacciatore -Veg. Chili -Salisbury Steak 4oz Peanut Butter -Meatballs -Tomato Sauce -Gravy -Tomato Sauce -White Rice -Brown Gravy 4 Pkg Jelly -Tomato Sauce -White Rice -Mashed Potatoes -Mushrooms -Mixed Vegetable -Mashed Potatoes Pkg Potato Chips -Sweet Peas -Lima Beans -Mixed Vegetables -Macaroni Pasta 3 Slices Bread -Lima Beans 1 Vegetable Juice 3 Slices Bread 2 Tartar Sauce 3 Slices Bread -Carrots 2 Margarine 3 Slices Bread 3 Slices Bread 2 Margarine 3 Slices Bread 2 Margarine 3 Slices Bread Fresh Orange 2 Margarine 2 Margarine Fresh Apple 2 Margarine Fresh Orange 2 Margarine Kosher Beverage Fresh Apple Fresh Apple Kosher Beverage Fresh Apple Kosher Beverage Fresh Apple Kosher Beverage Kosher Beverage Kosher Beverage Kosher Beverage

-Tray contents -Institutions serving satellite meals or other areas with restricted access to hot water may substitute hot cereals with Pkg Bran Cereal. IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION

MAX MOUSSAZADEH,

Plaintiff, v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE; Civil Action No. 3:07-cv-00574 BRAD LIVINGSTON, solely in his official JURY capacity as Executive Director of the Texas Department of Criminal Justice; and

DAVID SWEETEN, solely in his official capacity as warden of the Eastham Unit of the Texas Department of Criminal Justice,

Defendants.

PLAINTIFF MAX MOUSSAZADEH’S MOTION FOR SUMMARY JUDGMENT

EXHIBIT 11

MMZ000231 MMZ000232 MMZ000233 MMZ000234 MMZ000235 MMZ000236 MMZ000237 MMZ000238 MMZ000239 MMZ000240 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION

MAX MOUSSAZADEH,

Plaintiff, v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE; Civil Action No. 3:07-cv-00574 BRAD LIVINGSTON, solely in his official JURY capacity as Executive Director of the Texas Department of Criminal Justice; and

DAVID SWEETEN, solely in his official capacity as warden of the Eastham Unit of the Texas Department of Criminal Justice,

Defendants.

PLAINTIFF MAX MOUSSAZADEH’S MOTION FOR SUMMARY JUDGMENT

EXHIBIT 12

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION

MAX MOUSSAZADEH,

Plaintiff, v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE; Civil Action No. 3:07-cv-00574 BRAD LIVINGSTON, solely in his official JURY capacity as Executive Director of the Texas Department of Criminal Justice; and

DAVID SWEETEN, solely in his official capacity as warden of the Eastham Unit of the Texas Department of Criminal Justice,

Defendants.

PLAINTIFF MAX MOUSSAZADEH’S MOTION FOR SUMMARY JUDGMENT

EXHIBIT 13

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION

MAX MOUSSAZADEH,

Plaintiff, v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE; Civil Action No. 3:07-cv-00574 BRAD LIVINGSTON, solely in his official JURY capacity as Executive Director of the Texas Department of Criminal Justice; and

DAVID SWEETEN, solely in his official capacity as warden of the Eastham Unit of the Texas Department of Criminal Justice,

Defendants.

PLAINTIFF MAX MOUSSAZADEH’S MOTION FOR SUMMARY JUDGMENT

EXHIBIT 14

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS GAL VESTON DIVISION

MAX MOUSSAZADEH, § Plaintiff, § § ~ § Civil Action No. 3:07-CV-00574 § TEXAS DEPARTMENT OF CRIMINAL § JUSTICE, ET AL., § Defendants. §

DEFENDANTS' THIRD SUPPLEMENTAL RESPONSES TO PLAINTIFF'S FIRST SET OF INTERROGATORIES TO ALL DEFENDANTS

INTERROGATORY NO.1:

Identify all persons (including the person's official title and job description) with whom

Defendants had communications, or otherwise consulted, relating to Max Moussazadeh's requests

for a kosher diet during his time in the custody of the TDCJ (including, without limitation, persons

in TDCJ or other third parties involved in the grievance process).

RESPONSE:

Obiection: To the extent that this Interrogatory requests identification by home address and

telephone number of Defendant TDCJ's employees, Defendants object on the grounds that such

information is made confidential under common law privacy principles, as reflected and

supplemented by statute, see Texas Industrial Accident Board v. Industrial Foundation ofthe South,

430 U.S. 931 (1977); see also FRCP Rule 26(c); TEX. GOV'T CODE §§552.l17, .1175. Defendants

object to this Interrogatory on the grounds that its terms, to wit, "[i]dentify all persons (including the

person's official title and job description) with whom Defendants had communications, or otherwise

consulted, relating to Max Moussazadeh's requests for a kosher diet during his time in the custody ) l)bject to this Interrogatory on the grounds that Its t('rms, to wit. "<111 persons ." who had

communications with TDCJ, made, contributed to. or were consulted concerning the TDCrs

pol icy:' is vague and non-speci tic, see FRCP Rule 26(b)( I), (2). There is simply no way Defendants

can identify every person who may have had some involvement in TDCrs general food service

policies. Defendants object to this Interrogatory on grounds that the burden of complying with such

request far outweighs its benefit considering its lack of value in resolving the issues in this action,

see FRCP Rule 26(b)(2)(iii). Defendants object to this Interrogatory on the grounds that this

Interrogatory makes a false assumption. While it is true that TDC] does not provide kosher meals

to inmates on a regular basis, there is no "policy" directing TDC] to not provide these meals.

Accordingly, this question cannot be answered as it is currently framed. Subject to these objections

and without waiving same, Defendants direct Plaintiff's attention to pages 1415-1531 (Religious

Plaintiff s attention to pages 2668 - 2680 (Religious Practices Committee rulings for the time period

of 12/22/05 to present) of Defendants' Third Supplemental Disclosure. Finally, Defendants

incorporate the answer to Interrogatory number 3.

INTERROGATORY NO.3:

Identify all interests the Defendants have in not providing a kosher diet to inmates who are

in their custody (including Max Moussazadeh) who request a kosher diet for religious reasons, and

the reasons why Defendants "deny that a kosher diet can 'easily be made to Jewish believers' in

TDC J." See Defendants Texas Department of Criminal Justice, Livingston, and Sweeten's Original

Answer and Jury Demand ~ 9 (filed Nov. 8,2005).

Page 5 I~ESPONSE:

TOC] ;Jllows all offenders to worship according to their faith preference in their cell using

<.lliowed ikms such as sacred texts, devotional items, and materials. It is the policy of TDC] to extend to all offenders as much freedom and opportunity as possible for pursuing individual beliefs and pract ices. cons istent with agency security. safety , order. rehabil itation concerns, and budgetary limitations. All services, religious and otherwise, are provided based on demand, need, and resources. Chaplaincy services are nondiscriminatory in the treatment of offenders' religious beliefs, but TOCJ policy attempts to take space, time, budgetary, and staffing restraints into consideration.

Additionally, certain Iimitations are necessary because the practitioners are convicted felons confined in a penal institution.

The Chaplaincy Department receives numerous requests from inmates for special

accommodate inmates' religious needs, it must take into account the orderly administration of the

prison and its resources while notgi ving any single inmate or group of inmates preferential

treatment. IfTOCJ were to grant one inmate's request for a special diet or religious item, numerous

inmates would request similar special privileges.

There are approximately 150,000 offenders currently confined in TOCJ, and only about 900

classify themselves as Jewish. Not all of self-identified Jewish offenders actively practice their faith.

There are approximately 70 to 75 offenders in TOC] who are recognized as Jewish and approximately 90 more who are in the conversion process. Limited resources and the low Jewish population preclude Jev,:ish activities, classes. and programs at every unit. Instead, TDeJ has

limited Jewish programs and classes to units designated as Jewish host units. They are the MichaeL

Page 6 Cpnn:.llly. E:.lsth:.lI11. Central. Huntsville. and Darrington units. rOCJ provides J(;!wish services at those units. Additionally. at four of these units (Eastham, Huntsville, Central. and Darrington), rOCJ provides advanced Jewish programs and classes, according to demand. Jewish offenders may request transfers to one of these units and they will be transterred if possible. subject to medical, classification, and other non-religious factors. However. non-Jewish offenders do not have the right to request transfer to one of those units in order to participate in Jewish activities.

The main obstacle to giving lewish inmates all the Jewish activities and privileges that they desire are our scarce resources. limited availability of rabbis, and the very low demand. Limited resources are normally used to provide items such as tables and chairs that may be used by all religious groups.

Many inmates have requested special diets for religious reasons. TOe] has reviewed

of complying with such a request, by either providing a separate kosher kitchen or by bringing in kosher food from the outside. TOC] determined that it would be far too costly and would far exceed

the allotted budget to provide kosher food. No TOCl unit is currently set up to accommodate a

kosher diet, which requires food preparation under certain ritual requirements and without contact

with non-kosher food. Given the small number of offenders identifying themselves as Jewish (and

the small number recognized as practicing Jews by TDCJ Jewish authorities), and their various classification and programmatic needs, at least several units would have to remodel their kitchens and substantially alter food preparation procedures. Kosher meals also are very costly. The state of

Florida has reported that it costs them between 12 and 15 dollars per day per offender to provide

Page 7 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION

MAX MOUSSAZADEH,

Plaintiff, v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE; Civil Action No. 3:07-cv-00574 BRAD LIVINGSTON, solely in his official JURY capacity as Executive Director of the Texas Department of Criminal Justice; and

DAVID SWEETEN, solely in his official capacity as warden of the Eastham Unit of the Texas Department of Criminal Justice,

Defendants.

PLAINTIFF MAX MOUSSAZADEH’S MOTION FOR SUMMARY JUDGMENT

EXHIBIT 15

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION

MAX MOUSSAZADEH,

Plaintiff, v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE; Civil Action No. 3:07-cv-00574 BRAD LIVINGSTON, solely in his official JURY capacity as Executive Director of the Texas Department of Criminal Justice; and

DAVID SWEETEN, solely in his official capacity as warden of the Eastham Unit of the Texas Department of Criminal Justice,

Defendants.

PLAINTIFF MAX MOUSSAZADEH’S MOTION FOR SUMMARY JUDGMENT

EXHIBIT 16

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION

MAX MOUSSAZADEH,

Plaintiff, v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE; Civil Action No. 3:07-cv-00574 BRAD LIVINGSTON, solely in his official JURY capacity as Executive Director of the Texas Department of Criminal Justice; and

DAVID SWEETEN, solely in his official capacity as warden of the Eastham Unit of the Texas Department of Criminal Justice,

Defendants.

PLAINTIFF MAX MOUSSAZADEH’S MOTION FOR SUMMARY JUDGMENT

EXHIBIT 17

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION

MAX MOUSSAZADEH,

Plaintiff, v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE; Civil Action No. 3:07-cv-00574 BRAD LIVINGSTON, solely in his official JURY capacity as Executive Director of the Texas Department of Criminal Justice; and

DAVID SWEETEN, solely in his official capacity as warden of the Eastham Unit of the Texas Department of Criminal Justice,

Defendants.

PLAINTIFF MAX MOUSSAZADEH’S MOTION FOR SUMMARY JUDGMENT

EXHIBIT 18

~TEXASDEPARTMENT OF CRIMINALJUSTICE PolicyNumber: 07.03(rev. 2) ChaplaincyDepartment Page: 1 of 4 CHAPLAINCYMANUAL Date: April2007

SUBJECT: Judaism: ReassignmentProcedures to a Jewish- DesignatedUnit

REFERENCE: AD 07.30 - (rev 6)

PURPOSE: To inform unit/facilityChaplains and unit/facilityAdministrators of the procedures thatshall be followed for offenders who request to be reassigned to a Jewishdesignatedunit.

POLICY: The TexasDepartment of CriminalJustice(TDCJ)recognizes the importance of the religiousbeliefs of offenders. It is the policy of TDCJ to extend to all offenders as much opportunity as possible for pursuingindividualreligious beliefs and practices,consistent with security,safety and orderlyconditions in the unit/facility.

PROCEDURES:

GeneralItems for the UnitChaplains

A. The unit/facilitychaplain is the first contact for a Jewishoffender who is interested in attendingJewishservices or an offenderwhowants to convert to Judaism.

B. Currently,congregateJewishservices and studysessions are conducted at leastonce per month by a contractRabbi or Jewishvolunteersunder the Rabbi’ssupervision at Jewish designatedunits/facilitieschosen by TDCJ to provideconsistentreligiousservices and to accommodateJewishreligiouspractices.

C. TDCJ has two types of designatedJewish units to provideoffenders the opportunity to worshipaccording to the Jewishfaith.

I. A BasicDesignatedJewishUnitthatoffersoffenderslimitedJewishservices. 2. An EnhancedDesignatedJewishUnitwithJewishprogrammingprovided by the contractJewishchaplain and the Jewishcommunity at large.

II. DesignatedJewishUnits

A. The EnhancedDesignatedJewish Unit is the Stringfellow Unit, and it provides the followingJewishreligiousservices:

1. WeeklyJewishclasses and services; 2. Koshermeals for Jewishoffenders; and 3. Meetings on prescribedHolyDays for groupreadings ofJewishtext.

B. The BasicDesignatedJewishUnits are Darrington,Terrell,Stiles and Wynne, and they provide the followingJewishreligiousservices:

1. A serviceonce a month;

6038 TEXASDEPARTMENT OF CRIMINALJUSTICE PolicyNumber: 07.03(rev. 2) ChaplaincyDepartment Page: 2 of 4 CHAPLAINCYMANUAL Date: April2007

2. Kosher entrées and other kosher productsthrough the unit commissary for purchase at the offender’sexpense; and 3. Meetings on prescribedHolyDays for groupreadings ofJewishtext.

III. EligibilityRequirements

A. EligibilityRequirements for the EnhancedJewishDesignatedUnit

1. An offendershallqualif~’ in one ofthreeareas:

a. Born of a Jewishmother; b. A Jewishbackgroundwithcontinuousstudy in the Jewishfaith; or c. Converted to Judaismaccording to Jewish law.

2. An offender who has qualified for the EnhancedJewishDesignated Unit, but because of custody level, requiredtreatment or educationalprogram,housing restriction,medicalcondition,nature of the offense,length of sentence or other reason cannot be assigned to the EnhancedJewishDesignated Unit, may be transferred to a Basic JewishDesignated Unit until the conditionpreventing transferchanges.

B. EligibilityRequirements for the BasicJewishDesignatedUnits

1. If the offender is not qualified for transfer to the EnhancedJewishDesignated Unit because the offender does not meet one of the three (3) eligibility requirements, the offender can quaiif~’ for transfer to a BasicJewishDesignated Unitthrough the following:

a. Satisfactorycompletion of a majority(60% / or 30 lessons) ofthe Jewish InterestCorrespondenceCourse; and b. Knowledge ofthe Jewishfaith and sincerity ofthe offender as determined by the leadcontractJewishchaplain.

2. An offenderwho has qualified for the BasicJewishDesignatedUnit, but because of custodylevel,requiredtreatment or educationalprogram,housingrestriction, medicalcondition, nature of the offense, length of sentence or other reason cannot be assigned to the BasicJewishDesignated Unit, may be transferred as soon as the conditionpreventingtransferchanges.

IV. OffenderTransferRequests

A. The followingbasicconditionsshall be met before a request for reassignment to a Jewish designated unit can be considered:

1. The offender’sfaithpreferenceshall be recorded as Jewish on his/hertravel card

and the mainframeIMF/SSNOscreen. 2. The Request for Reassignment for JewishServices form (see Attachment A) shall be filedwithChaplaincyHeadquarters by the offender.

6039 TEXASDEPARTMENT OF CRIMINALJUSTICE PolicyNumber: 07.03(rev. 2) 4 ChaplaincyDepartment ~ Page: 3 of CHAPLAINCYMANUAL Date: April2007

3. The AlephInstituteMembership Form shall be completed by the offender and returned to ChaplaincyHeadquarters. 4. The contractJewishchaplain, after consulting with the Aleph Institute, shall

confirm the offender as Jewish. 5. The ChaplaincyHeadquarters’designeeshallrequest the offender’stransfer.

B. Offenders in all custodyclassifications are eligible for transfer to a Jewishdesignated unit. Exceptions may be warranted based upon the offender’scustody level, required treatment or educationalprogram,housingrestriction,medicalcondition,nature of the offense,length of sentence or otherreason.

V. TransferProcedures

A. The offender who wants to be reassigned to a Jewishdesignated unit shall submit a request to the unitchaplain on an InmateRequest to OfficialForm(1-60).

B. The chaplainshallcheck the offender’stravel card and the mainframeIMF/SSNOscreen to verify that the offender’sJewish faith preference is documented. The chaplain shall verifycustodylevel.

C. The leadJewishcontractChaplainshallinterview the offender.

D. The offendershallcomplete the Request for Reassignment for JewishServices form (see Attachment A). This form shall be used by all Jewishoffenders who either want reassignment to a unit/facilitywhereJewishservices are held or for thoseoffenders who declinereassignment.Offenders who declinereassignment may be reconsidered later by submitting a writtenrequest to the chaplain after a consultation with the lead contract Rabbi.

E. The Request for Reassignment for JewishServices form shall be completedwhether the offender is currentlyhoused on a Jewishdesignated unit or not. By submitting the completedform, the offenderagrees to the conditionslisted on the form.

F. The Request for Reassignment for JewishServices form shall be sent to Chaplaincy Headquarterswhere the offender’s faithpreference,unit/facilityverification and custody level are verified on the,mainframeIMF/SSNOscreen.

G. If the offender’s faithpreference is incorrect and a faith changerequest is not attached to the Request for Reassignment for JewishServicesform,ChaplaincyHeadquarters shall send the offender a requestasking that a faith changerequest be submitted. The offender’srequest for reassignmentshall not be processed until the faithchangerequest is received.

H. When the offender’sinformation has been verified, ChaplaincyHeadquarters shall forward the offender a letter from the lead Rabbi and the AlephInstituteMembership Application Form that shall be completed and returned to ChaplaincyHeadquarters by the offender.

6040 TEXASDEPARTMENT OF CRIMINALJUSTICE PolicyNumber: 07.03(rev. 2) ChaplaincyDepartment Page: 4 of 4 . CHAPLAINCYMANUAL Date: April2007

Upon receipt of the offender’s Aleph Institute MembershipApplication Form, ChaplaincyHeadquarters shall then forward the application to the lead contractJewish chaplain. The application is designed to provideinformation that will assist the lead Rabbi, in conjunctionwith The AlephInstitute, in establishingwhether the offendershall be consideredeligible for transfer to the EnhancedDesignatedJewish Unit or a Basic DesignatedJewishUnit.

J. The lead contractRabbi shall notifyChaplaincyHeadquarters of any offender who has beenverified by The AlephInstitute as meeting the criteria in SectionIII.A.1.Chaplaincy Headquarters shall notify the appropriate State ClassificationCommitteemember and request a reassignment of the offender. The offender’s original Request for Reassignment for JewishServicesformshall be retained in a permanent file at the office ofthe Director ofChaplaincyOperations.

K. The State ClassificationCommittee will approve or disapprove an eligibleoffender’s request for reassignment to the appropriate Jewish designated unit and will notify ChaplaincyHeadquarters of such action. Selection of the unit is made by the State ClassificationCommittee.

L. If the ChaplaincyHeadquarters is notified that an offender is approved for transfer to a Jewishdesignated unit, an e-mail shall be sent to the unitlfacilitychaplain who shall inform the offender and also to the receivingunit/facilitychaplain.

M. If the offender is not approved for transfer, the lead contractRabbi may offer a Jewish Interestcorrespondencecourse by which the offender may merit furtherconsideration. The offender may be recommended for transfer to a Basic DesignatedJewish Unit according to his/herprogress in the course and availability of appropriateritual or study activities on a Jewishdesignatedunit.

BillPierce Director of ChaplaincyOperations

6041 TEXASDEPARTMENT OF CRIMINALJUSTiCE PolicyNumber: 07.03(rev. 2)-Att. A ChaplaincyDepartment Page: 1 of 1 CHAPLAINCYMANUAL Date: Revised02/2007

TDCJOffice-OffenderCommunications

To: JewishOffenders Date: February2007

From: Director of ChaplaincyOperations Subject: Request for Reassignment for Jewish Services

The Texas Department of CriminalJusticeprovideskosher meals and religiousservicesconducted by a contractrabbi for Jewishoffendersassigned to a limitednumber of Jewish-designatedunits/facilities.Offenders desiring to participate in such services and meals must meet the followingrequirements,complete the form, and return it to the unit/facilitychaplain for furtherprocessing.

Normally,offendersmayaccesstheseservices if:

1. Theyhave a Jewishfaith preference on TDCJrecord; and 2. They are verified by Jewishauthorities as Jewish.

Pleaseread the followingsentences.Checkonly the onethatapplies to you

Li I desire to be reassigned to a unit whereJewish~services and the Kosher Diet Program are offered. I realize that this reassignment mayaffect my ability to participate in some or all of the specialprograms that are available to me on my currentunit/facility. I furtherunderstand that once I havesubmitted this form, my request is for assignment to a Jewish-designatedunit/facility. I understand that specific unit assignmentamong the units with Jewishservices is subject to normalclassificationprocedures. I furtherunderstand that I may be subject to transfer to another unit or back to the unit fromwhich I was originallytransferred if I change my religiouspreference or fall to attend the Jewishservices. I further understand that purchase,possession and/orconsumption of non-kosher food items may result in disciplinaryproceedings and my subsequentremovalfrom the Kosher Diet Program. I also understand that I may not trade, sell or give any or all of my koshermeal to any otheroffender(s). In the eventthat I am disciplined for any of the precedingviolations set out above or if I voluntarilyrequestwithdrawal from the Kosher Diet Program, I must do so in writing (160) and must wait as least six (6) months to apply for reinstatement.

Li I am Jewish but I am not interested in reassignmentfrom my currentunit/facility. I understand that I will retain the right to practice my religionprivately as consistentwith TDCJpolicies and procedures even though I choose not to requestreassignment. I also recognize that I can change my mind and be reconsidered by a writtenrequest to the UnitChaplain.

Pleasesign andthenclearlyprintyourname:

______PrintedName: Signed: ______

TDCJ#:______Unit: Date: - -~ ______

UnitChaplain:

6042 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION

MAX MOUSSAZADEH,

Plaintiff, v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE; Civil Action No. 3:07-cv-00574 BRAD LIVINGSTON, solely in his official JURY capacity as Executive Director of the Texas Department of Criminal Justice; and

DAVID SWEETEN, solely in his official capacity as warden of the Eastham Unit of the Texas Department of Criminal Justice,

Defendants.

PLAINTIFF MAX MOUSSAZADEH’S MOTION FOR SUMMARY JUDGMENT

EXHIBIT 19

TEXASDEPARTMENT OF CRIMINALJUSTICE CORRECTIONALINSTITUTIONSDIVISION LAUNDRY,FOODANDSUPPLY

JEWISHDIETARYPOLICYANDPROCEDURES

The TexasDepartment of CriminalJustice shall provide a koshermeal for those offendersapproved by the TDCJ ChaplaincyDepartment who wish to observe Kosherdietaryguidelines for religiouspurposes.

Koshermeals shall only be provided on the EnhancedJewishDesignated Unit. See ChaplaincyManualPolicyNumber07.03 for requirements for an offender to be assigned to a Enhanced or BasicJewishDesignated Unit. Kosherproducts, including a pre-packagedapprovedkoshermeal, shall be available for sale in unitcommissaries on the BasicJewishDesignatedUnits.

I. DEFINITIONS: A. Kashrut: Thedietarylaws of Judaism.

B. Kosher: In compliancewith Kashrut,acceptable.

C. Meat: Containing the flesh of any of the permittedanimals or fowl, or theirderivatives.

D. Dairy: Containing milk or milkderivatives.

E. Pareve: Containingneithermeat nor milk; compatible with either meat or milk. Examples are eggs, fish (only those with fins and scales are acceptable),coffee, tea, fruits,grains, and vegetables.

II. MENU

The religiousmenu shall be established from the TDCJ Food Service Headquarters in conjunction with the ChaplaincyDepartment and the CorrectionalManaged Health Care Dietitian. A 31 day menu cycle shall be preparedannually. This menu shall be the only acceptable menu used in the Enhanced Jewish Designated Unit kitchen and deviations from the menu shall not be made withoutapproval from TDCJFoodServiceHeadquarters.

Changes may be necessary due to productavailability;howeverthese changes shalt not be madewithout prior approval from Food Service Headquarters.Exceptions to the prior approvalrequirement may be made the Food by ServiceManager IV on weekends,holidays, or other timeswhen headquarterspersonnel are unavailable. However,

268~ thesechanges shall be reported, in writing, on the next business day that headquarterspersonnel are available.

III. FOODSUSED

Foods used in the kosherkitchen shall be used in the natural state (fresh vegetables, eggs), or they will be certified as. kosher from an approvedrabbinicalauthority. Foodscertified as kosher will bear an acceptablesymbollisted as an attachment to this policy. (Circle K or Circle U are acceptablesymbols; a singleletter K is not an acceptable symbol.)

Milk purchased in individualservingcartons may be used; however milk may not be served with any approvedmeats. Milk may not be served for at leastthreehoursaftermeat has beenserved.

The only approved meats are those purchased meats, (not TDCJ producedmeats) that bear the approvedkoshercertificationsymbol. Pork is not to be used in any koshermeals.

IV. PREPARATION

A separatekitchen area shall be established to be usedexclusively for the preparation of koshermeals. During the Jewishobservance of Passover, the bakery area may not be used for kosher meal preparation.

The kosherpreparation area shall contain a microwaveoven, a stove, utensils,cookware,cuttingboards and otheritemsneeded to prepare the meal. Theseitems shall not be utilized for the preparation of any non-koshermeals, nor shall they come in contact with those items used in the preparation of non-koshermeals. Staffshallensurethat no offender or employee uses these equipment items for any purpose otherthan the preparation of koshermeals.

Equipment and utensils used for kosher meals shall be washed separately from other equipment. The same sink may be used provided that a separate dish pan is inserted into the sink and the equipment/utensils do not come into contact with the sink, water, or anyotheritem that has beenused in non-koshermeals.

All equipmentshall be purchased new and shall be keptseparatefrom non-kosherequipment. Newequipment, to be used for koshermeals, shall be clearly marked with a “K” upon delivery to the kitchen to distinguishkosherfromnon-kosher.Additionally, if the equipment is to

269’ be used for meat, it shall be marked to distinguish it as meat. If it is to be used for dairy, it shall be marked to distinguish it as dairy. If any equipmentbecomesnon-kosher (i.e. comes in contact with a non kosher item, or is used for both dairy and meat), it shall not be used again as kosher until it has been made kosher. For instructions on making equipmentlutensils kosher after it has been rendered non kosher, the FoodServiceManager IV shouldcontact the FoodService Headquartersoffice.

Sabbath meals shall be served cold so as to meet the Jewish requirement that cooking is prohibited on the Sabbath. Sabbath begins 18 minutes prior to sundown on Friday and ends 42 minutes after sundown on Saturday. The Fridayevening meal may be a hot meal if it is heated and served prior to the beginning of the Sabbath.

Offendersworking in the kosherkitchen are not required to be Jewish. (If possible, it is preferred thatthey be Jewish, but this is not required.) However, all kosherkitchenworkers shall be properlytrained in the requirements of kosherpreparation.

V. SERVINGLINES:

Trays shall be prepared in the dedicated food preparation area. The offenderrequiring a koshermealshall notify the officer in charge of the serving line of his request at the time he arrives at the serving line. The tray, along with servingutensils,beverage and glass, shall be delivered to the serving line and given to the offenderthrough the serving line window.

Offendersshall be servedSabbathmealsin-cell.

Koshermeals shall be served on papertrays, with disposableutensils (sporks) and dlsposablecups.

VI. FOODSTORAGE:

Foods used in koshermeals may be stored with non-koshermeals until the package has beenopened. Therefore, the package shall not be until the opened food is in the kosherkitchenpreparation area. After it is opened, it may not be removedfrom the kosherkitchen area and back into placed storage with otherfood items. For this reason, it be may necessary to have a small refrigerator in the kosher area for storage of condiment items (mayonnaise, salad dressings, pickles, Kosherfoodsshould be etc.) opened onlywhen they are needed, as they are needed.

269 Violations of the kosher meal requirements shall be reported to the ChaplaincyDepartment.

269 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION

MAX MOUSSAZADEH,

Plaintiff, v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE; Civil Action No. 3:07-cv-00574 BRAD LIVINGSTON, solely in his official JURY capacity as Executive Director of the Texas Department of Criminal Justice; and

DAVID SWEETEN, solely in his official capacity as warden of the Eastham Unit of the Texas Department of Criminal Justice,

Defendants.

PLAINTIFF MAX MOUSSAZADEH’S MOTION FOR SUMMARY JUDGMENT

EXHIBIT 20

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION

MAX MOUSSAZADEH,

Plaintiff, v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE; Civil Action No. 3:07-cv-00574 BRAD LIVINGSTON, solely in his official JURY capacity as Executive Director of the Texas Department of Criminal Justice; and

DAVID SWEETEN, solely in his official capacity as warden of the Eastham Unit of the Texas Department of Criminal Justice,

Defendants.

PLAINTIFF MAX MOUSSAZADEH’S MOTION FOR SUMMARY JUDGMENT

EXHIBIT 21

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION

MAX MOUSSAZADEH,

Plaintiff, v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE; Civil Action No. 3:07-cv-00574 BRAD LIVINGSTON, solely in his official JURY capacity as Executive Director of the Texas Department of Criminal Justice; and

DAVID SWEETEN, solely in his official capacity as warden of the Eastham Unit of the Texas Department of Criminal Justice,

Defendants.

PLAINTIFF MAX MOUSSAZADEH’S MOTION FOR SUMMARY JUDGMENT

EXHIBIT 22

Paul Morales 30(b)(6) September 23, 2010 Huntsville, TX

Page 1 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE SOUTHERN DISTRICT OF TEXAS 3 GALVESTON DIVISION 4 MAX MOUSSAZADEH, * 5 Plaintiff, * 6 VS. * C.A. NO. 7 TEXAS DEPARTMENT OF CRIMINAL * 3:07-CV-00573 8 JUSTICE; * 9 BRAD LIVINGSTON, solely in his * 10 official capacity as Executive * 11 Director of the Texas Department * 12 of Criminal Justice; and * 13 DAVID SWEETEN, solely in his * 14 official capacity as warden of * 15 the Eastham Unit of the Texas * 16 Department of Criminal Justice, * 17 Defendants. * 18 ***************************************************** 19 RULE 30(b)(6) DEPOSITION OF 20 PAUL MORALES 21 SEPTEMBER 23RD, 2010 22 ***************************************************** 23 24 25

Alderson Reporting Company 1-800-FOR-DEPO Paul Morales 30(b)(6) September 23, 2010 Huntsville, TX

Page 2 1 RULE 30(b)(6) DEPOSITION OF PAUL MORALES, 2 produced as a witness at the instance of the 3 Plaintiff, and duly sworn, was taken in the above- 4 styled and numbered cause on the 23rd day of 5 September, 2010, from 9:00 a.m. to 11:43 a.m., 6 before Bobbie Showers, CSR, in and for the State of 7 Texas, reported by machine shorthand, at the Texas 8 Department of Criminal Justice Conference Center, 9 1206 Avenue I Street, Huntsville, Texas, pursuant to 10 the Federal Rules of Civil Procedure and the 11 provisions stated on the record or attached hereto. 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Alderson Reporting Company 1-800-FOR-DEPO Paul Morales 30(b)(6) September 23, 2010 Huntsville, TX

Page 3 1 A P P E A R A N C E S 2 3 ATTORNEYS FOR PLAINTIFF: 4 LATHAM & WATKINS, LLP 5 555 ELEVENTH STREET, NW 6 SUITE 1000 7 WASHINGTON, D.C. 20004-1304 8 Telephone: (202) 637-2200 9 Fax: (202) 637-2201 10 E-mail: [email protected] 11 By: ANNE W. ROBINSON, ESQ. 12 13 ATTORNEYS FOR DEFENDANTS: 14 OFFICE OF THE ATTORNEY GENERAL OF TEXAS 15 P.O. BOX 12548 16 AUSTIN, TEXAS 78711-2548 17 Telephone: (512) 463-2080 18 Fax: (512) 495-9139 19 E-mail: [email protected] 20 By: CELAMAINE CUNNIFF, ESQ. 21 BRUCE R. GARCIA, ESQ. 22 23 REPORTED BY: 24 MS. BOBBIE SHOWERS, CSR 25

Alderson Reporting Company 1-800-FOR-DEPO Paul Morales 30(b)(6) September 23, 2010 Huntsville, TX

Page 17 1 I'll rephrase. 2 From looking at this document, all of 3 the units listed on this page house G1 through G5 4 inmates. Correct? 5 A. That is correct, but that's -- 6 Q. Is that accurate today? 7 A. No. 8 Q. Which of these units house G1 through G5? 9 A. Darrington, Stiles, and Wynne. 10 Q. Okay. Thank you. What about Jester III? 11 A. No. 12 Q. What security levels are at Jester III? 13 A. G1, G2, G3, G4, and outside trusty. 14 Q. What is outside trusty? 15 A. That's our G1 offenders are our trustys that 16 are allowed to go out into the community and work. 17 Q. Oh, okay. And what does administrative 18 segregation levels 1 through 3 mean? 19 A. Those are offenders that are assigned to 20 administrative segregation. They are the ones who are 21 escape risks. They are the ones that are staff 22 assaultive. Weapons possession. They are confined to 23 their cells 23 out of 24 hours a day. 24 Q. Are G5 inmates confined to their cells for a 25 large portion of the day?

Alderson Reporting Company 1-800-FOR-DEPO Paul Morales 30(b)(6) September 23, 2010 Huntsville, TX

Page 22 1 cells -- G5 offenders? 2 A. Yes. 3 Q. They are always fed in a segregated room, 4 apart from the other offenders in the unit? 5 A. Yes. 6 Q. And if they are fed in their cells, is the 7 food in a sack lunch? 8 A. No. It's in a tray. 9 Q. It's in a tray. And what security measures 10 are in place for feeding the inmates in their cells? 11 A. Okay. All the food is prepared in the main 12 kitchen. Okay. Then in the building we call 8 13 building. That is where G5 custody is. They have 14 what they call a satellite kitchen, where they have a 15 steam kitchen. 16 That main course is then transported to 17 the satellite kitchen, kept in the hot box on a 18 serving tray. Then the trays are actually prepared on 19 the building. Okay. And then they are transported 20 from the satellite kitchen to the cells in the hot 21 box. 22 Q. So the satellites -- 23 A. There is then a serving line in the satellite 24 kitchen. 25 Q. But the inmates don't go to the serving line?

Alderson Reporting Company 1-800-FOR-DEPO Paul Morales 30(b)(6) September 23, 2010 Huntsville, TX

Page 23 1 A. No. They are just prepared there. 2 Q. Okay. So the satellite kitchen is separate 3 from the normal kitchen -- 4 A. Yes. 5 Q. -- for the other inmates? 6 A. Yes. 7 Q. And why -- I'm sorry, so the food is prepared 8 in the normal kitchen? 9 A. Right. 10 Q. And then just held over in a satellite 11 kitchen to keep it warm until the food is delivered? 12 A. Yes. 13 Q. And is it delivered in secured carts? 14 A. Yes. 15 Q. And how many security officials does it 16 typically require to deliver that food? 17 A. Generally speaking -- because you are sending 18 a good portion, a large amount of food at a time, and 19 depending on how many you have assigned to that 20 particular custody. Some units have up to 443 G5 21 offenders in 8 building. Some have 144, which is one 22 pod. Some may have two pods. Some may have the whole 23 entire building G5. It just depends on how many is 24 assigned. 25 Okay. But you would have at least a

Alderson Reporting Company 1-800-FOR-DEPO Paul Morales 30(b)(6) September 23, 2010 Huntsville, TX

Page 28 1 and it is much easier just to fill the orders 2 themselves and bring it to them. 3 Some units allow the offenders to come 4 out and go to the store. Some units do not. 5 Q. Okay. 6 A. I'm not sure exactly how they do it at 7 Stiles. 8 Q. So if Stiles does bring it to them -- 9 A. Uh-huh. 10 Q. -- that would -- can you describe that 11 procedure a little more for me? 12 A. Yes. They are allowed to fill out their 13 commissary list, what they want to purchase. Somebody 14 from commissary will come pick up the order, fill the 15 order, bag it up for them, and then bring it to them. 16 Q. How often are they allowed to do that? 17 A. G5 offenders can go to the store once every 18 two weeks and they are only allowed to spend -- I want 19 to say $35. They are not allowed to spend a whole -- 20 spend like G2 or G3. 21 Q. There is no limit for G2 and G3? 22 A. Yes, there is. $70 every two weeks. 23 Q. And why are those limits in place? 24 A. That is just because there is -- you know, 25 every commissary is only allowed to purchase so much.

Alderson Reporting Company 1-800-FOR-DEPO Paul Morales 30(b)(6) September 23, 2010 Huntsville, TX

Page 29 1 They want to spread the wealth so to speak so 2 everybody has an opportunity to go to the store. 3 Q. I see. So it's administrative? 4 A. Exactly. 5 Q. Okay. 6 A. Because we are talking a hundred-plus units. 7 They have to order. Trucks only come every two 8 weeks. So if they run out of inventory, then we would 9 have issues and have men not being able to go to the 10 store. 11 Q. Are exceptions ever made for a spending 12 limit? 13 A. Yes, during the holidays. 14 Q. Okay. Can you describe those exceptions a 15 bit more? 16 A. They are allowed to spend up to $100 every 17 two weeks during the holidays, Thanksgiving and 18 Christmas. 19 Q. And for Jewish offenders during the Jewish 20 holidays? 21 A. The same -- I'm not sure. Not for the 22 commissary. I'm not sure about that. I don't know. 23 Q. And why is that exception made? 24 A. Just to allow them to be able to -- you know, 25 during the holiday times, they just like to have their

Alderson Reporting Company 1-800-FOR-DEPO Paul Morales 30(b)(6) September 23, 2010 Huntsville, TX

Page 35 1 Q. Okay. Do you know if an inmate who is 2 receiving kosher food from the Stringfellow kosher 3 kitchen is put in transit, does he receive kosher food 4 in his cell? 5 A. Yes, he does. I asked that question. 6 Q. Okay. 7 A. He does. 8 Q. And how is that food provided to him in his 9 cell? 10 A. The way it was answered to me was that they 11 prepare it in the kitchen where it is now, and they 12 just wrap it in Saran Wrap, put it in the food cart, 13 separate from everybody else's, and then it was served 14 to them, delivered to them. 15 Q. "Everybody else's" meaning? 16 A. Whoever else's was in transit or PHD, because 17 it's in a separate area there that -- that's 18 prehearing detention -- solitary or transit status. 19 Q. Okay. 20 A. So they put it in a Saran Wrap in the tray 21 and it was delivered separately. 22 Q. And are there check points for security? 23 A. At Stringfellow, there is just one. 24 Q. Okay. 25 A. That is prior to going into the actual -- the

Alderson Reporting Company 1-800-FOR-DEPO Paul Morales 30(b)(6) September 23, 2010 Huntsville, TX

Page 38 1 Just yesterday, unfortunately, we had a 2 major large bust, but, you now, Stiles is one of those 3 units that just -- we have a very large issue with 4 contraband at Stiles for all various different 5 reasons. Location. Offender population. I hate to 6 say corruption, but it factors into it. Families 7 being right there close by. It all factors into it. 8 But as compared to Stringfellow, there 9 is no comparison, or any other minimum medium security 10 facility. Stiles is unique unto itself. 11 Q. What about contraband that is related at all 12 to the kosher food available in the commissary? Have 13 you had any incidents? 14 A. Not to my knowledge. 15 Q. Okay. And at Stringfellow, have you had any 16 incidences of contraband being smuggled in or -- 17 A. Not to my knowledge, no. 18 Q. In the high security units where the -- I'm 19 sorry -- in the high security units, are there 20 different security measures in place in the actual 21 kitchen? 22 Are there different tools used, for 23 example? 24 A. Surely, there is a higher measure of 25 security. We have what I would -- we just have a

Alderson Reporting Company 1-800-FOR-DEPO Paul Morales 30(b)(6) September 23, 2010 Huntsville, TX

Page 40 1 A. Okay. Well, like I'm just going to give you 2 the layout of how Stiles is laid out. Okay? 3 Q. Okay. 4 A. They have one area, what we call a bakery. 5 Okay. And then they have a vegetable prep. Then they 6 have an area for pots and pans. 7 And then right in the center, they have 8 where all the kettles, ovens, and some maybe -- I 9 don't know -- steam-type equipment are, and then they 10 have a hallway where our food cold storage is at. 11 Okay. That's pretty much the layout. 12 And then in front of that is where our 13 dish rooms and our offender dining halls are at. 14 Q. And the cool storage areas are separate from 15 the main kitchen? 16 A. Yes. 17 Q. And does the cannery from the Ramsey Unit 18 supply vegetables to all the units? 19 A. Yes. 20 Q. Are different security classifications served 21 in different shifts? 22 A. In different shifts? No. 23 Q. Okay. What about for the G5 inmates? Are 24 there different utensils used or any other differences 25 in what they receive to eat?

Alderson Reporting Company 1-800-FOR-DEPO Paul Morales 30(b)(6) September 23, 2010 Huntsville, TX

Page 41 1 A. No. 2 Q. You mentioned that when an inmate is going to 3 be transferred, they are put in a transit cell. Is 4 that right? 5 A. Yes. 6 Q. How long does it usually take before an 7 inmate is transferred off a unit, once they are 8 designated for transfer? 9 A. It just depends on the availability of 10 another house somewhere. Our policy says that he 11 should be transferred within 30 days. Sometimes it 12 goes over. But it is dependent on the housing 13 availability at another facility. 14 Q. Has Stringfellow ever had any problems with 15 serving the kosher meals to an inmate in his cell who 16 was awaiting transfer? 17 A. That was not brought to my attention, so I'm 18 not aware of any. 19 (Exhibit No. 3 marked for identification) 20 BY MS. ROBINSON: 21 Q. Mr. Morales, you should have in front of you 22 what has been marked Plaintiff's Exhibit No. 3. If 23 you could turn, please, to page 3115? 24 A. Okay. 25 Q. Could you please describe for the record what

Alderson Reporting Company 1-800-FOR-DEPO Paul Morales 30(b)(6) September 23, 2010 Huntsville, TX

Page 54 1 in too much, according to what the chaplain informed 2 me of, and then they went back to the sales meeting, 3 meaning the offenders, and then they found out that 4 they made too much or they were actually making wine 5 out of the juice. 6 So they asked that they -- that the next 7 time bring in a smaller, and then they wouldn't do it, 8 because they said it was too much of -- too 9 cost-effective for them to bring in a reduced amount. 10 So that is the only incident that I can 11 recall involving the Aleph Institute. 12 Q. Thank you. 13 A. Sorry I misspoke on that earlier. 14 Q. Okay. When the offenders were turning the 15 juice into wine, were they selling it or were they 16 just drinking it themselves or did they not get that 17 far? 18 A. I don't think they got that far. 19 Q. All right. Are there any records related to 20 that incident? 21 A. That, I do not know. 22 Q. And as you said, that's the only incident you 23 are aware of at Stiles Unit -- 24 A. Yes. 25 Q. -- or at any other Jewish Designated Unit?

Alderson Reporting Company 1-800-FOR-DEPO Paul Morales 30(b)(6) September 23, 2010 Huntsville, TX

Page 64 1 Q. Okay. 2 A. -- and the department, the kosher kitchen. 3 The security officers assigned to the 4 kitchen are supervised by security supervisors. 5 Q. Okay. And are there any differences between 6 the kosher kitchen and the regular kitchen as far as 7 the tools that are used in food preparation? 8 A. Yes. 9 Q. From a kosher versus non-kosher standpoint or 10 from a security standpoint? 11 A. Just from kosher versus not kosher. 12 Q. Okay. But not from a security standpoint? 13 A. Other than the trays, they are just served on 14 the paper tray. That's -- but there is no security 15 differences, no. 16 Q. All right. And not in silverware that is 17 used? 18 A. No. 19 Q. Or the number of inmates that are served at a 20 time? 21 A. I mean, there is a difference as far as the 22 number of inmates, yes. 23 Q. But for security measures, as far as security 24 measures are concerned? 25 A. No.

Alderson Reporting Company 1-800-FOR-DEPO Paul Morales 30(b)(6) September 23, 2010 Huntsville, TX

Page 66 1 Q. So a Johnny sack is a sack meal? 2 A. Yes. 3 Q. And are those kosher meals delivered in a 4 different cart? 5 A. Good question. Don't know. 6 Q. Okay. Do you know of any other security 7 measures that are in place to deliver those Johnny 8 sack meals that are special for the kosher food? 9 A. No. 10 Q. No. Okay. Do you know if there has been any 11 increase in prisoners requesting kosher food since the 12 opening of the kosher kitchen? 13 A. I'm not the one to answer that question. 14 That would probably be the chaplain's department, so I 15 wouldn't know that. 16 Q. Have you heard of any incident where there 17 has been resentment from inmates, either at 18 Stringfellow or one of the basic units, because they 19 are not receiving kosher food? 20 A. I do not know of any. 21 Q. Okay. So you don't know of any outbursts or 22 violent incidents from non Jewish inmates wanting 23 kosher food? 24 A. No. 25 Q. Does TDCJ allow Jewish offenders time-off for

Alderson Reporting Company 1-800-FOR-DEPO Paul Morales 30(b)(6) September 23, 2010 Huntsville, TX

Page 67 1 religious holidays? 2 A. Yes. 3 Q. And how long has that policy been in place? 4 A. I'm not sure. 5 Q. And has this policy caused any security 6 issues that you are aware of? 7 A. No. 8 Q. Any resentment among -- from other inmates 9 that these Jewish prisoners are allowed time-off for 10 these religious holidays? 11 A. No. 12 Q. Turning to Stiles or the other Basic Jewish 13 Designated Units, are any meals not distributed from 14 the kitchen? 15 You mentioned already as to how the G5 16 inmates are served, but apart from that, are all the 17 other meals served from the central kitchen to 18 inmates? 19 A. Not in the administrative segregation. There 20 is a similar set-up. 12 building, we call 21 administrative segregation, is 504 offenders. It's a 22 similar type set-up as we have over in 8 building. 23 Q. Okay. What about -- 24 A. But the main meal, it is prepared in the main 25 kitchen.

Alderson Reporting Company 1-800-FOR-DEPO Paul Morales 30(b)(6) September 23, 2010 Huntsville, TX

Page 74 1 are assigned to -- 2 Q. Uh-huh. 3 A. -- illegal activity is going to occur from 4 offenders in 12 building, 8 building, wherever they 5 are assigned. That doesn't even factor into it. 6 Q. But kosher food is available at the 7 commissaries right now -- 8 A. That's right. 9 Q. -- in Stiles? 10 A. Yes. 11 Q. And, to your knowledge, you haven't -- except 12 for the grape juice incident -- 13 A. Right. 14 Q. -- you haven't had or you have not heard of a 15 number of security incidents associated with that 16 kosher food? 17 A. Right. 18 Q. Okay. What about any administrative issues 19 with the provision of kosher food from the 20 commissary? Any issues that you are aware of? 21 A. No. 22 Q. Okay. Are inmates provided -- inmates who 23 are indigent provided kosher meals at no cost to them? 24 A. I don't know. 25 Q. Okay. And you are not aware of any security

Alderson Reporting Company 1-800-FOR-DEPO Paul Morales 30(b)(6) September 23, 2010 Huntsville, TX

Page 75 1 or administrative issues related to indigent Jewish 2 inmates receiving kosher food at no cost to them? 3 A. No. 4 Q. Okay. 5 A. No, I'm not. 6 Q. And do you know if an indigent inmate 7 security classification effects whether he can receive 8 a meal for free? 9 A. No. 10 Q. Turning to the Stiles Unit in particular, are 11 you aware of any issues, security issues or 12 administrative issues related to the provision of 13 kosher food during the holidays, during the religious 14 holidays? 15 A. No, I'm not. 16 Q. Or at any other units? Are you aware of any 17 other incident at any other units related to the 18 provision of kosher food at the holidays? 19 A. No. 20 Q. We talked earlier about the food from the 21 Aleph Institute. Does TDCJ also provide pork-free 22 sack lunches for Jewish holidays? 23 A. Yes. 24 Q. And are these sack lunches kosher? 25 A. Yes.

Alderson Reporting Company 1-800-FOR-DEPO Paul Morales 30(b)(6) September 23, 2010 Huntsville, TX

Page 82 1 points the meals go through? 2 A. It would be the same amount. 3 Q. Okay. Thank you. Circling back to the 4 commissary question, you mentioned that there is a 5 limit on how much an inmate can spend in the 6 commissary. Correct? 7 A. Depending on their custody. 8 Q. Okay. Why is there a different limit, 9 spending limit depending on custody level? 10 A. Like I said, based on their custody. Of 11 course, I didn't come up with that policy, so I 12 couldn't answer exactly why that is, other than they 13 wanted to spread the wealth, to make sure that 14 everybody has an equal opportunity to go to the 15 commissary. 16 Q. But there is no security reason why a G5 17 inmate is only allowed to spend a certain amount? 18 A. No. 19 Q. And the same type of question for frequency 20 of visits to the commissary. They are only -- you 21 said that inmates are allowed to visit the 22 commissary -- was it once a week? 23 A. Once every two weeks. 24 Q. Once every two weeks. And does that vary at 25 all for inmates with different security

Alderson Reporting Company 1-800-FOR-DEPO Paul Morales 30(b)(6) September 23, 2010 Huntsville, TX

Page 86 1 A. Well, not having ever worked the federal 2 systems, I'm not exactly sure of what those may be. 3 I can only answer for what we do here in 4 Texas and the challenges that we have at Stiles and 5 Stringfellow. 6 Q. Do you know if any of those challenges are 7 unique to Texas? 8 MS. CUNNIFF: Objection. 9 THE WITNESS: Not having worked anywhere else 10 but Texas -- 11 BY MS. ROBINSON 12 Q. Uh-huh. 13 A. -- I would say they were unique to Texas. 14 (Laughter) 15 Q. Okay. What about California as another 16 example? Can you identify any differences related to 17 security issues faced by California state prisons and 18 Texas state prisons? 19 MS. CUNNIFF: Objection. 20 THE WITNESS: No. I'm sure they are much the 21 same. 22 BY MS. ROBINSON: 23 Q. And Florida? 24 MS. CUNNIFF: Objection. 25 THE WITNESS: No.

Alderson Reporting Company 1-800-FOR-DEPO Paul Morales 30(b)(6) September 23, 2010 Huntsville, TX

Page 90 1 had issues with outside vendors and contraband coming 2 into the facility and what could be shipped inside 3 those packages, so, yes, we would have to look at all 4 of that. 5 Q. What vendors have you had those problems 6 with? Any kosher vendors? 7 A. No. 8 Q. Okay. Do you know what alternatives TDCJ 9 considered when implementing the current kosher food 10 policy? 11 A. To my understanding, they -- because of the 12 contract they had with the rabbi, his request was that 13 it actually be at the Central Unit. 14 And when they went to look at the 15 Central Unit, it was not conducive, based on factors 16 that I'm not able to answer. That is for somebody 17 else to decide and probably budget things. 18 However, Central was not the unit for 19 the kosher kitchen and so they went out and surveyed 20 the other Region Three facilities that were close to 21 Houston, at the rabbi's request, and Stringfellow just 22 happened to have the ideal location. 23 They had already had the -- where it is 24 located now, they had electricity, they had drainage, 25 they had all the proper equipment, and it was going

Alderson Reporting Company 1-800-FOR-DEPO IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION

MAX MOUSSAZADEH,

Plaintiff, v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE; Civil Action No. 3:07-cv-00574 BRAD LIVINGSTON, solely in his official JURY capacity as Executive Director of the Texas Department of Criminal Justice; and

DAVID SWEETEN, solely in his official capacity as warden of the Eastham Unit of the Texas Department of Criminal Justice,

Defendants.

PLAINTIFF MAX MOUSSAZADEH’S MOTION FOR SUMMARY JUDGMENT

EXHIBIT 23

Statewide Scheduling * Legal Video * Internet Repository 1

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

MAX MOUSSAZADEH, ) Plaintiff. ) ) vs. ) CASE NO. 3:07-CV-00574 ) TEXAS DEPARTMENT OF ) CRIMINAL JUSTICE, ET AL, ) Defendant. )

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

ORAL DEPOSITION

NATHANIEL QUARTERMAN

OCTOBER 11, 2010

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

ORAL DEPOSITION OF NATHANIEL QUARTERMAN, produced as a witness at the instance of the Plaintiff and duly sworn, was taken in the above-styled and numbered cause on the 11th day of October, 2011, from 10:05 a.m. to

1:44 p.m., before LAUREN M. MORRISON, Certified

Shorthand Reporter in and for the State of Texas, reported by computerized stenotype machine at the offices of AcuScribe Court Reporters, 1601 Rio Grande,

Suite 443, Austin, Texas 78701, pursuant to the Federal

Rules of Civil Procedure and the provisions stated on the record or attached hereto.

AcuScribe Court Reporters, Inc. (800) 497-0277 Statewide Scheduling * Legal Video * Internet Repository 2

1 APPEARANCES 2 3 FOR THE PLAINTIFF: 4 Mr. Matthew T. Murchison LATHAM & WATKINS, LLP 5 555 Eleventh Street, NW Suite 1000 6 Washington, DC 20004 Telephone: (202) 637-2136 7 FOR DEFENDANT: 8 Ms. Celamaine Cunniff 9 OFFICE OF THE ATTORNEY GENERAL, LAW ENFORCEMENT DEFENSE DIVISION 10 P.O. Box 12548 Austin, Texas 78711 11 Telephone: (512) 463-2080 12 FOR NATHANIEL QUARTERMAN: 13 Mr. Demetri Anastasiadis OFFICE OF THE ATTORNEY GENERAL, STATE OF TEXAS 14 P.O. Box 12548 Austin, Texas 78711 15 Telephone: (512) 463-2080 16 ALSO PRESENT: 17 Melinda Bozarth, General Counsel for Texas Department of Criminal Justice 18 19 20 21 22 23 24 25

AcuScribe Court Reporters, Inc. (800) 497-0277 Statewide Scheduling * Legal Video * Internet Repository 3

1 2 INDEX 3 PAGE 4 NATHANIEL QUARTERMAN 5 Examination by MR. MURCHISON ...... 5 Changes & Corrections ...... 142 6 Signature Page ...... 143 Court Reporter's Certificate ...... 144 7 8 EXHIBITS 9 10 EXHIBIT DESCRIPTION PAGE 11 No. 1 Subpoena 9 12 No. 2 Business Records Affidavit 32 13 No. 3 Texas Department of Criminal 51 Justice Correctional 14 Institutions Division, Landry, Food, and Supply - Jewish 15 Dietary Policy and Procedures 16 No. 4 Business Records Affidavit and 57 Rehabilitation Programs 17 Division Chaplaincy Department Manual 18 No. 5 Affidavit Litigation Records 68 19 Request and E-mail 20 No. 6 Joint Status Report 78 21 No. 7 Plaintiff Max Moussazadeh's 86 Motion for Summary Judgment and 22 Affidavit of Chaplain Gary Friedman 23 No. 8 California Code of Regulations, 91 24 Title 15 25

AcuScribe Court Reporters, Inc. (800) 497-0277 Statewide Scheduling * Legal Video * Internet Repository 50

1 A -- that was the philosophy of it.

2 Q Okay. And while you were Director, was that

3 blessing of the cannery enough to make it kosher

4 wherever it went?

5 MS. CUNNIFF: Objection.

6 A I am not --

7 Q. (BY MR. MURCHISON) That's all right.

8 A -- I am not --

9 Q I strike that -- I strike that question, yes.

10 A Yeah.

11 Q Thank you.

12 What I meant to ask was after the food

13 left that kosher cannery, did it require separate

14 blessing at every unit that you provided it at?

15 MS. CUNNIFF: Objection.

16 A No. Well, I really cannot comment on that

17 because I am not a rabbi and I cannot tell you all about

18 the Jewish faith and all the other faiths.

19 Q. (BY MR. MURCHISON) I understand.

20 A I can tell you about Baptist, but I can't tell

21 you about that.

22 Q I understand. So let me -- let me ask the

23 question slightly differently so you don't have to

24 comment on the Jewish faith.

25 Did you hire rabbis to bless the food at

AcuScribe Court Reporters, Inc. (800) 497-0277 Statewide Scheduling * Legal Video * Internet Repository 51

1 each unit that the kosher -- that the kosher green beans

2 or any other food from the kosher canneries were served?

3 A Yes, a rabbi was hired to bless one kitchen,

4 and I believe to serve as blessing the cannery -- our

5 major cannery at Ramsey.

6 Q Okay. But that -- that rabbi didn't have to

7 travel to every unit that the kosher food was

8 distributed to?

9 A No, sir.

10 Q Okay.

11 MR. MURCHISON: I'd ask the court reporter

12 to mark the next document as Exhibit 3 and hand it to

13 the witness.

14 (Exhibit No. 3 marked)

15 Q. (BY MR. MURCHISON) The document marked as

16 Exhibit 3 is entitled Texas Department of Criminal

17 Justice Correctional Institutions Division, Laundry,

18 Food and Supply, Jewish Dietary Policy and Procedures.

19 Mr. Quarterman, do you have this document

20 now in front of you?

21 A Yes, sir.

22 Q Do you recognize this document?

23 A No, sir.

24 Q It is -- it says Laundry, Food and Supply. Is

25 that a division within TDCJ?

AcuScribe Court Reporters, Inc. (800) 497-0277 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION

MAX MOUSSAZADEH,

Plaintiff, v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE; Civil Action No. 3:07-cv-00574 BRAD LIVINGSTON, solely in his official JURY capacity as Executive Director of the Texas Department of Criminal Justice; and

DAVID SWEETEN, solely in his official capacity as warden of the Eastham Unit of the Texas Department of Criminal Justice,

Defendants.

PLAINTIFF MAX MOUSSAZADEH’S MOTION FOR SUMMARY JUDGMENT

EXHIBIT 24

Alan To DouglasDretke/lnstitutional/TDCJ@TDCJ,Melinda i Behr/Ofc_General_Counsel/T Bozarth/Ofc_General_Counsel/TDCJ@TDCJ, CF. DCJ Haztewood/OperationsllDCJ@TDCJ, Beryl CC 02116/200610:08AM bcc

Subject SubjectOutline for Meeting on the 17th

Melindarequested that a copy of the followingoutline be provided to all participants.

DEFENSE No. 1:

PLAN A - Preparing the Kosher diet on TDCJpremises

Costs: Agribusiness: growingcrops harvesting and handling processing and storage transportation and unitstorage

FoodService: purchasingproduce and meats/fish storage and handling transportation preparationmethods preputensils and surfaces Rabbioversight separation of foodgroups chow hail foodservice prevention of double-dipping separation of Kosherfromothermenuitems

Security: overseeingconsumption to preventdouble-dipping at chowtables disposal of plasticwrapfrompre-packagesutensils disposal of the plasticutensils

monitoring of Kosherfoodsselection - Jewishoffendersonly

PLAN B: Purchasingpie-packagedKoshermeals

Costs:FoodService:

actualpurchaseprice - bulk contractmonitoring delivery to centralcommissary shelf life of meals transportationfromCentral to individual hostunits storage foodservicespace for the meals at chow

monitoring of Koshermealpackageselection - Jewishoffendersonly

Chaplaincy:

designation of offender as Jewish - Jewishcourse - identity in chow line

Security: Preventingdouble-dipping

458E monitoringacquisition of food products at chowtables(trading)

disposal of plasticwrappingfromindividualmealpackages and utensils - use of wrap as weapon - suffocation

disposal of plasticutensils - use of utensils as weapon - sharpened - spear,knife

inspection of individualmeals for contraband - withoutunwrapping

Commissary: monitoringJewishoffenderspurchases of non-Kosherfoodproducts stockingcommissarywith Kosherfood products

Mailroom: monitoringin-boundpackages for Jewishoffenders non-Kosherfoodproducts

DisciplinaryActions: double-dipping in chow line acquisition of non-Kosherfood products at chowtables commissarypurchases of non-Kosherfoodproducts secretingplasticwrapping and utensilsfromchow hall

DEFENSE NO. 2:

Dominoeffect on otherreligions in TDCJ as to foodrestrictions/dietplans Muslims NativeAmericans 7th DayAdventists

AlanBehr AssistantGeneralCounsel TexasDepartment of CriminalJustice Austin,Texas 512-463-9420

458~ IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION

MAX MOUSSAZADEH,

Plaintiff, v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE; Civil Action No. 3:07-cv-00574 BRAD LIVINGSTON, solely in his official JURY capacity as Executive Director of the Texas Department of Criminal Justice; and

DAVID SWEETEN, solely in his official capacity as warden of the Eastham Unit of the Texas Department of Criminal Justice,

Defendants.

PLAINTIFF MAX MOUSSAZADEH’S MOTION FOR SUMMARY JUDGMENT

EXHIBIT 25

Sep 01 2010 5:20PM TDCJ-BUDGETDEPARTMENT 9364376996 P.3

Te~aeDepartment of Cr~minaIJustice Moussazadeh vs TC3C~J

2009OverallCoatPerDay~FoodSsrvlca ‘‘~“~“~_•I n~ ~cpo~• Salariea&~Benefits S 41,018,479 $ 0.82 Consumat$~es & MinorEquipn1er~ 3 5.148,483 S 0.10 Food 5 134,567,868 S 2.69

Sub - To~l $ 180.734,829 3 3.81 Dlre~ Mi tration 3 879,942 5 0.02 Indlre~ A ministration 3 1.904,770 S 0.04 TQT4L: S 183,519,541 .3 3.17 Pa— 136,995

200$OverallCostPerDay ~ StrlngfsiiowUnit

cs’o &(B.neflta $ 381,314 $ 0.90 Consuma~es & MinorEqu~pn%ent $ 31,776 $ 0.08 $ 1,209,913 $ 2.87 Sub-Tot~iJ $ 1,823,064 $ 3.84 Adn~istratkn $ 7,325 $ 0.02 Administration $ 15,892 $ 0.04 •TOvA~r ~ Popu~tion “157

2009OverallCostPerDay StiingfllowUnitforKoiharKitchan rO~edptS.J~~,. Sata,iea & Benefits $ 8,898 $ 0.90 Consumables & MinorEqulpn~ent $ 4.481 $ 0.45 Food $ 53,318 $ 5.41

Sub - Total $ 66,613 $ 8.77 DiroctMministration $ 171 $ 0.02 IndirectAdministration $ 371 $ 0.04

..TOTALY~’~ .~ ~-.:.:ei~~~-$.62. Popti~atk~n 27 IncMadlngthscontrs~r~bi.thetotalcostpsrd~wouldkicnsia to $795.

(bas.don ~‘~is 4 a~~aamont’~(41p~y.w) at $3~lack.)

2009OverallCostPerDay StrtngfellowUnitfor Non..KostierKitchen

.1.... Oip~~~ .. cPo~.. . Salaries&•Benoflts $ 372,418 $ 0.90 Consumables & Minor~qulpment $ 27,315 $ 0.07 Food $ 1,156,658 $ 2.80

Sub - Total $ I 558,388 $ 3.77 DirectAdministration $ 7,154 $ 0.02 IndirectAdministration $ 15.521 $ 0.04

•,. • •:~ •~. •~. 3.83 . 1,511,063 $ Pop4ictIon ~, 130

C nc Sep 01 2010 5:20PM TDCJ-BUDGETDEPARTMENT 9364376996 p.4

TexasDepartment of CriminalJustice Moussezadeii vs TDCJ

2009OveraLlCostPerDay 8tH..Unit

I Description Exp.ndttwas CPO Salaries&tfleneflts $ 754,837 $ 072 Consum~ies&MlnorEquIpment $ 201,048 $ 0.19 Food $ 3,084289 $ 2.94 8ub.Tot~l $ 4,020,154 $ 3.85 DlrectMn$inlstrstion $ 15,106 $ 0.02 imk~lstratlon $ 39.284 $ 0.04 TOTAL $ 4,017,544 $ 3.91 PC— 2.860

2009OverallCostP.tDay ~ Darrlngton Unit

Dsscslpt$on Expenditures CPO Salaries & Benefits $ 596,679 $ 0.90 Con.umat~las & MinorEquipment $ 47284 $ 0.01 Food $ 1.725,287 $ 2.81

Sub - Total $ Z35L250 $ 3.59 Dke~Adntlnlstra0on $ 11459 $ 0.02 indirectAdmV’Jstraltcn $ 24,861 5 0.04 TOTAL $ 2,405,070 $ 3.54 1.8W

2009OverallCostPerDay ~ Jester HI Unit

Description Expenditures CPD Salaries & Benefits $ 403,230 S 1.02 Consumables & MinorEquipment $ 46,970 $ 0.12 Food S 1,095,704 $ 2.78 Sub-Total $ 1,545,905 $ 3.90 DirectAdministration $ 6,882 $ 0.02 IndirectAdministration $ 14,930 $ 0.04

TOTAL $ 1.567,717 S 3.95 1,087

2009OverallCostPerDay - Wynn.Unit

Description Expenditures CPD Salaries & Benefits $ 771,000 $ 082 Consumables & MinorEquipment $ 100,708 $ 0.11 Food $ 2.752,970 $ 2.91

Sub - Total $ 3,830,877 5 3.83 DirectAdministration $ 18,435 $ 0.02 indirectAdminisuation $ 35,657 $ 0.04

TOTAL. I $ 3,682,799 5 3.89 P~,p4atJon 2,59e

o~ 3 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION

MAX MOUSSAZADEH,

Plaintiff, v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE; Civil Action No. 3:07-cv-00574 BRAD LIVINGSTON, solely in his official JURY capacity as Executive Director of the Texas Department of Criminal Justice; and

DAVID SWEETEN, solely in his official capacity as warden of the Eastham Unit of the Texas Department of Criminal Justice,

Defendants.

PLAINTIFF MAX MOUSSAZADEH’S MOTION FOR SUMMARY JUDGMENT

EXHIBIT 26

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION

MAX MOUSSAZADEH,

Plaintiff, v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE; Civil Action No. 3:07-cv-00574 BRAD LIVINGSTON, solely in his official JURY capacity as Executive Director of the Texas Department of Criminal Justice; and

DAVID SWEETEN, solely in his official capacity as warden of the Eastham Unit of the Texas Department of Criminal Justice,

Defendants.

PLAINTIFF MAX MOUSSAZADEH’S MOTION FOR SUMMARY JUDGMENT

EXHIBIT 27

Allison Dunbar 30(b)(6) September 29, 2010 Huntsville, TX

Page 1 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE SOUTHERN DISTRICT OF TEXAS 3 GALVESTON DIVISION 4 MAX MOUSSAZADEH, * 5 Plaintiff, * 6 VS. * C.A. NO. 7 TEXAS DEPARTMENT OF CRIMINAL * 3:07-CV-00573 8 JUSTICE; * 9 BRAD LIVINGSTON, solely in his * 10 official capacity as Executive * 11 Director of the Texas Department * 12 of Criminal Justice; and * 13 DAVID SWEETEN, solely in his * 14 official capacity as warden of * 15 the Eastham Unit of the Texas * 16 Department of Criminal Justice, * 17 Defendants. * 18 ***************************************************** 19 RULE 30(b)(6) DEPOSITION OF 20 ALLISON DUNBAR 21 SEPTEMBER 29TH, 2010 22 ***************************************************** 23 24 25

Alderson Reporting Company 1-800-FOR-DEPO Allison Dunbar 30(b)(6) September 29, 2010 Huntsville, TX

Page 2 1 RULE 30(b)(6) DEPOSITION OF ALLISON DUNBAR, 2 produced as a witness at the instance of the 3 Plaintiff, and duly sworn, was taken in the above- 4 styled and numbered cause on the 29th day of 5 September, 2010, from 9:00 a.m. to 2:00 p.m., 6 before Bobbie Showers, CSR, in and for the State of 7 Texas, reported by machine shorthand, at the Texas 8 Department of Criminal Justice Conference Center, 9 1206 Avenue I Street, Huntsville, Texas, pursuant to 10 the Federal Rules of Civil Procedure and the 11 provisions stated on the record or attached hereto. 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Alderson Reporting Company 1-800-FOR-DEPO Allison Dunbar 30(b)(6) September 29, 2010 Huntsville, TX

Page 3 1 A P P E A R A N C E S 2 3 ATTORNEYS FOR PLAINTIFF: 4 LATHAM & WATKINS, LLP 5 555 ELEVENTH STREET, NW 6 SUITE 1000 7 WASHINGTON, D.C. 20004-1304 8 Telephone: (202) 637-2200 9 Fax: (202) 637-2201 10 E-mail: [email protected] 11 By: MATTHEW T. MURCHISON, ESQ. 12 13 ATTORNEYS FOR DEFENDANTS: 14 OFFICE OF THE ATTORNEY GENERAL OF TEXAS 15 P.O. BOX 12548 16 AUSTIN, TEXAS 78711-2548 17 Telephone: (512) 463-2080 18 Fax: (512) 495-9139 19 E-mail: [email protected] 20 By: CELAMAINE CUNNIFF, ESQ. 21 22 REPORTED BY: 23 MS. BOBBIE SHOWERS, CSR 24 25

Alderson Reporting Company 1-800-FOR-DEPO Allison Dunbar 30(b)(6) September 29, 2010 Huntsville, TX

Page 152 1 Q. Sorry. 2032. I apologize. Page 47 of the 2 handbook. 3 A. Okay. 4 Q. Okay. Do you see a section entitled, 5 "Commissary" there at the bottom? 6 A. Yes, I do. 7 Q. Okay. This section appears to discuss that 8 spend period balance we were just talking about. It 9 says under "Regular Purchases" that they are limited 10 to $75 every two weeks with the following exceptions: 11 "G4/J4 custody offenders may spend $30 12 every two weeks and G5/J5 custody offenders 13 are allowed to spend $20 every two weeks." 14 Do you see that? 15 A. Yes. 16 Q. Do you know whether $20 is still the spend 17 period limit for G5 inmates? 18 A. I do not. 19 Q. Okay. 20 A. The last contact that I knew referenced a 25- 21 to $85 limit -- 22 Q. Okay. 23 A. -- and so it appears that they have been 24 adjusted. 25 Q. Okay. So there might be a more recent

Alderson Reporting Company 1-800-FOR-DEPO Allison Dunbar 30(b)(6) September 29, 2010 Huntsville, TX

Page 153 1 version of this handbook? 2 A. I don't know that the handbook has been 3 updated or not. 4 Q. Okay. So for a G5 offender, let's say they 5 can only spend $25 a week -- 6 A. Okay. 7 Q. -- or every two weeks, I apologize. 8 A. Yes, sir. 9 Q. You saw documents before and testified before 10 that these kosher meals cost $4.50 for an inmate at 11 the commissary. Is that right? 12 A. Yes, sir. 13 Q. So doing some quick math, if it's $25 that's 14 the limit, and $4.50 is the cost of a meal or the 15 price of a meal, I apologize, then an offender can 16 buy -- an offender under G5 can buy five-and-a-half 17 meals. Does that sound like the right calculation to 18 you? 19 A. It does not count against this limit. 20 Q. Okay. 21 A. The cost of the meal does not count against 22 their spending limit. 23 Q. Is that just for Passover or any day? 24 A. That's only for Passover. 25 Q. Okay.

Alderson Reporting Company 1-800-FOR-DEPO Allison Dunbar 30(b)(6) September 29, 2010 Huntsville, TX

Page 154 1 A. As far as I'm aware. 2 Q. So if an offender wanted to come into the 3 commissary on a non Passover day or on any other day 4 of the year and purchase a kosher meal, that $4.50 5 that he would pay would count against this number. Is 6 that right? 7 A. Non Passover but kosher meals is what you're 8 asking for? 9 Q. Yes. 10 A. Okay. I believe it would, yes, sir. 11 Q. Okay. So if an offender has a $25 limit for 12 every two weeks, like a G5 offender, and spent $4.50 13 on a meal, and it is not Passover, then he could 14 afford roughly five-and-a-half-meals over that 15 two-week period. Is that correct? 16 A. Yes, unless I misunderstood but -- 17 Q. $4.50 goes into 25 roughly five-and-a-half 18 times or three times? 19 A. Uh-huh. 20 Q. And once he purchased that, let's say the 21 fifth meal or sixth meal or wherever we are, he would 22 not be allowed to purchase any further meals until 23 that two-week period is up. Is that correct? 24 MS. CUNNIFF: Objection. 25 THE WITNESS: Can you please say it again?

Alderson Reporting Company 1-800-FOR-DEPO Allison Dunbar 30(b)(6) September 29, 2010 Huntsville, TX

Page 155 1 BY MR. MURCHISON: 2 Q. Sure. This is a two-week limit. Right? 3 A. Yes. 4 Q. So once the offender has used up that $25 5 limit for the two weeks, he has to stop spending at 6 the commissary, and he can't start-up again until the 7 next two-week period begins. Is that correct? 8 A. For non Passover -- 9 Q. Yes. 10 A. -- kosher meals? 11 Q. Yes, ma'am. 12 A. I believe that is correct. 13 Q. Okay. Has TDCJ ever considered making an 14 exception for the purchase of meals, basically say 15 that the purchase of any meals, not just on Passover, 16 but any kosher meal will not count against the spend 17 period balance? 18 A. Not that I'm aware of, no, sir. 19 Q. Okay. 20 A. For those -- 21 Q. For those G5 offenders? 22 A. -- non Passover kosher meals? 23 Q. Yes; yes. 24 A. Not that I'm aware of. 25 Q. So TDCJ has never considered extending that

Alderson Reporting Company 1-800-FOR-DEPO Allison Dunbar 30(b)(6) September 29, 2010 Huntsville, TX

Page 165 1 A. Whether it would need a new kitchen 2 constructed. 3 Q. Okay. But they never approached you about 4 the budgetary implications of building a kosher 5 kitchen at Darrington? 6 A. No, sir. 7 Q. Or at Wynne or at Jester III? 8 A. Not to me, no. 9 Q. Okay. 10 A. No. 11 Q. Does the Budget Department keep track of the 12 number of Jewish offenders requesting kosher food when 13 it is coming up with a budget? 14 A. No, sir. 15 Q. Has the Budget Office ever been asked to look 16 into the cost of providing special meals, like medical 17 meals or therapeutic meals, and their impact on the 18 budget? 19 A. No, sir. 20 Q. I assume all those meals are included within 21 the Food Services Budget? 22 A. Yes, sir. 23 Q. Okay. 24 A. They utilize the same food products that we 25 purchase.

Alderson Reporting Company 1-800-FOR-DEPO IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION

MAX MOUSSAZADEH,

Plaintiff, v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE; Civil Action No. 3:07-cv-00574 BRAD LIVINGSTON, solely in his official JURY capacity as Executive Director of the Texas Department of Criminal Justice; and

DAVID SWEETEN, solely in his official capacity as warden of the Eastham Unit of the Texas Department of Criminal Justice,

Defendants.

PLAINTIFF MAX MOUSSAZADEH’S MOTION FOR SUMMARY JUDGMENT

EXHIBIT 28

Billy D. Pierce 30(b)(6) September 22, 2010 Huntsville, TX

Page 1 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE SOUTHERN DISTRICT OF TEXAS 3 GALVESTON DIVISION 4 MAX MOUSSAZADEH, * 5 Plaintiff, * 6 VS. * C.A. NO. 7 TEXAS DEPARTMENT OF CRIMINAL * 3:07-CV-00573 8 JUSTICE; * 9 BRAD LIVINGSTON, solely in his * 10 official capacity as Executive * 11 Director of the Texas Department * 12 of Criminal Justice; and * 13 DAVID SWEETEN, solely in his * 14 official capacity as warden of * 15 the Eastham Unit of the Texas * 16 Department of Criminal Justice, * 17 Defendants. * 18 ***************************************************** 19 RULE 30(b)(6) DEPOSITION OF 20 BILLY D. PIERCE 21 SEPTEMBER 22ND, 2010 22 ***************************************************** 23 24 25

Alderson Reporting Company 1-800-FOR-DEPO Billy D. Pierce 30(b)(6) September 22, 2010 Huntsville, TX

Page 2 1 RULE 30(b)(6) DEPOSITION OF BILLY D. PIERCE, 2 produced as a witness at the instance of the 3 Plaintiff, and duly sworn, was taken in the above- 4 styled and numbered cause on the 22nd day of 5 September, 2010, from 9:00 a.m. to 1:17 p.m., 6 before Bobbie Showers, CSR, in and for the State of 7 Texas, reported by machine shorthand, at the Texas 8 Department of Criminal Justice Conference Center, 9 1206 Avenue I Street, Huntsville, Texas, pursuant to 10 the Federal Rules of Civil Procedure and the 11 provisions stated on the record or attached hereto. 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Alderson Reporting Company 1-800-FOR-DEPO Billy D. Pierce 30(b)(6) September 22, 2010 Huntsville, TX

Page 3 1 A P P E A R A N C E S 2 3 ATTORNEYS FOR PLAINTIFF: 4 LATHAM & WATKINS, LLP 5 555 ELEVENTH STREET, NW 6 SUITE 1000 7 WASHINGTON, D.C. 20004-1304 8 Telephone: (202) 637-2200 9 Fax: (202) 637-2201 10 E-mail: [email protected] 11 By: ANNE W. ROBINSON, ESQ. 12 13 ATTORNEYS FOR DEFENDANTS: 14 OFFICE OF THE ATTORNEY GENERAL OF TEXAS 15 P. O. BOX 12548 16 AUSTIN, TEXAS 78711-2548 17 Telephone: (512) 463-2080 18 Fax: (512) 495-9139 19 E-mail: [email protected] 20 By: CELAMAINE CUNNIFF, ESQ. 21 22 REPORTED BY: 23 MS. BOBBIE SHOWERS, CSR 24 25

Alderson Reporting Company 1-800-FOR-DEPO Billy D. Pierce 30(b)(6) September 22, 2010 Huntsville, TX

Page 16 1 MS. ROBINSON: Can we go off the record? 2 (Following a discussion off the record, the 3 proceedings continued as follows:) 4 BY MS. ROBINSON: 5 Q. Does TDCJ provide individual religious meals 6 to Jewish holidays like passover? 7 MS. CUNNIFF: Objection. Vague. Be more 8 specific about what you're talking about. 9 BY MS. ROBINSON: 10 Q. Did you understand my question? 11 A. I'd like a little more clarification. 12 Q. On passover does TDCJ provide kosher meals? 13 A. They do at Stringfellow. 14 Q. Anywhere else? 15 A. TDC itself does not provide it. The 16 offenders either receive -- if they are indigent, 17 receive it through the Aleph Institute in Florida, or 18 if they have money on their books, they purchase it 19 through the commissary, which purchases it through or 20 from the Aleph Institute. 21 Q. Okay. 22 A. So it is available. 23 Q. How is it determined that an inmate is 24 indigent? 25 A. I believe that it's when an offender hasn't

Alderson Reporting Company 1-800-FOR-DEPO Billy D. Pierce 30(b)(6) September 22, 2010 Huntsville, TX

Page 19 1 water? 2 A. No, it's in their housing area. 3 Q. It is. Okay. I'm trying to picture where in 4 the housing area. Is there a general room? 5 A. There is a dayroom. 6 Q. Okay. And so then backing up one step, as 7 far as who hands them the meals, it is either Rabbi 8 Goldstein or someone else in the chaplaincy department 9 if Rabbi Goldstein is in a different unit that day? 10 A. Well, when the packages come in, the inmates 11 are given the packages at that time. 12 Q. Who gives them those packages? 13 A. Either the chaplain or the rabbi. 14 Q. All right. 15 A. And it is not parsed out individually. 16 Q. What do you mean by that? 17 A. They are not given one meal at a time. 18 Q. How many meals are they given? 19 A. Everything that comes in that they have 20 ordered through the Aleph Institute is given to them 21 at that time my understanding is. 22 Q. Is there a maximum that they are allowed to 23 order? 24 A. I don't know. 25 Q. Okay. To your knowledge, there is not a

Alderson Reporting Company 1-800-FOR-DEPO Billy D. Pierce 30(b)(6) September 22, 2010 Huntsville, TX

Page 34 1 BY MS. ROBINSON: 2 Q. Does the policy provide for any other way to 3 receive kosher food? 4 MS. CUNNIFF: Objection. 5 THE WITNESS: The only -- my understanding is 6 that the only other way would be if the unit is on 7 lock-down and they would receive the kosher food 8 through Johnnys or sack lunches to the offenders in 9 their cells in lock-down. 10 BY MS. ROBINSON: 11 Q. What are Johnnys? 12 A. They are sack lunches. 13 Q. Where would TDCJ obtain these sack lunches? 14 Are they prepared from the food in the 15 kitchen? 16 A. They would be prepared through the food that 17 is available in the kosher kitchen. 18 Q. And placed into sacks, I presume? 19 A. Uh-huh. 20 Q. And then distributed to the inmates in their 21 cells? 22 A. That's what I assume would take place, yes, 23 ma'am. 24 Q. On page 6039, Roman Numeral III explains the 25 eligibility requirements. I have a few questions

Alderson Reporting Company 1-800-FOR-DEPO Billy D. Pierce 30(b)(6) September 22, 2010 Huntsville, TX

Page 72 1 THE WITNESS: Yes. 2 BY MS. ROBINSON: 3 Q. And you don't have any opinion one way or the 4 other whether this is a good or bad addition to TDCJ? 5 A. Are you asking for my personal opinion? 6 Q. Sure. 7 A. I don't know that I have enough information 8 about -- I don't see it on a daily basis. 9 Q. Uh-huh. 10 A. I'm not there to observe the way Captain 11 Watson is. I don't know -- you know, I don't have 12 enough information to make an opinion. 13 The only thing that I'd really say is -- 14 and this is something that came from one of my Muslim 15 chaplains about his Muslim offenders, and that is that 16 it is one thing to have head knowledge about the 17 religion that you practice, it's another thing to live 18 the religion. 19 Q. Uh-huh. 20 A. And if you are living the religion, there is 21 going to be a change. 22 As I said before, I don't -- I know the 23 kosher kitchen is there. The agency said, We are 24 going to have the kosher kitchen, and so I'm going to 25 support the kosher kitchen there at Stringfellow.

Alderson Reporting Company 1-800-FOR-DEPO Billy D. Pierce 30(b)(6) September 22, 2010 Huntsville, TX

Page 73 1 But as far as -- I haven't seen any 2 information that would lead me one direction or the 3 other. 4 Q. Uh-huh. Okay. Do you think that they should 5 close down the kosher kitchen? 6 MS. CUNNIFF: Objection. 7 THE WITNESS: As I said before, it's policy, 8 and so I'm going to follow what policy says. 9 BY MS. ROBINSON: 10 Q. But what is your position or opinion on 11 whether you think the kosher kitchen should continue? 12 MS. CUNNIFF: Objection. 13 THE WITNESS: As I said, I'm going to -- if 14 that's the policy of the agency, I'm going to support 15 the policy of the agency to the best of my ability. 16 BY MS. ROBINSON: 17 Q. Do you think that the kosher kitchen should 18 be expanded to other units? 19 MS. CUNNIFF: Objection. 20 THE WITNESS: At this time, it's the policy 21 of the agency that the kosher kitchen is only at the 22 Stringfellow Unit. 23 BY MS. ROBINSON: 24 Q. Uh-huh. 25 A. And I follow that policy and will support the

Alderson Reporting Company 1-800-FOR-DEPO Billy D. Pierce 30(b)(6) September 22, 2010 Huntsville, TX

Page 104 1 that are related to Stringfellow? 2 A. We have had an increase in requests from the 3 Muslim offenders for Halal. 4 Q. And how do you know that those are related to 5 Stringfellow? 6 A. If my memory serves me correctly, they have 7 mentioned that, If you can do it there, why can't you 8 do it for me? 9 Q. Mentioned in a document? 10 A. Like I said, that's just from my memory. 11 I'll have to go back through and look and see. 12 Q. Look in the administrative grievances? Is 13 that -- 14 A. Look at the grievances, look at the lawsuits. 15 Q. Okay. Any other instances of requests for 16 religious meals? 17 A. I can't remember any. 18 MS. ROBINSON: Sorry, was my question about 19 Halal in requests for kosher meals or religious meals 20 in general? Do you remember? I don't remember. 21 (Proceedings read by the Court Reporter as 22 follows: 23 "QUESTION: Any other instances of 24 requests for religious meals?") 25 BY MS. ROBINSON:

Alderson Reporting Company 1-800-FOR-DEPO IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION

MAX MOUSSAZADEH,

Plaintiff, v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE; Civil Action No. 3:07-cv-00574 BRAD LIVINGSTON, solely in his official JURY capacity as Executive Director of the Texas Department of Criminal Justice; and

DAVID SWEETEN, solely in his official capacity as warden of the Eastham Unit of the Texas Department of Criminal Justice,

Defendants.

PLAINTIFF MAX MOUSSAZADEH’S MOTION FOR SUMMARY JUDGMENT

EXHIBIT 29

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION

MAX MOUSSAZADEH,

Plaintiff, v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE; Civil Action No. 3:07-cv-00574 BRAD LIVINGSTON, solely in his official JURY capacity as Executive Director of the Texas Department of Criminal Justice; and

DAVID SWEETEN, solely in his official capacity as warden of the Eastham Unit of the Texas Department of Criminal Justice,

Defendants.

PLAINTIFF MAX MOUSSAZADEH’S MOTION FOR SUMMARY JUDGMENT

EXHIBIT 30

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION

MAX MOUSSAZADEH,

Plaintiff, v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE; Civil Action No. 3:07-cv-00574 BRAD LIVINGSTON, solely in his official JURY capacity as Executive Director of the Texas Department of Criminal Justice; and

DAVID SWEETEN, solely in his official capacity as warden of the Eastham Unit of the Texas Department of Criminal Justice,

Defendants.

PLAINTIFF MAX MOUSSAZADEH’S MOTION FOR SUMMARY JUDGMENT

EXHIBIT 31

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION

MAX MOUSSAZADEH,

Plaintiff, v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE; Civil Action No. 3:07-cv-00574 BRAD LIVINGSTON, solely in his official JURY capacity as Executive Director of the Texas Department of Criminal Justice; and

DAVID SWEETEN, solely in his official capacity as warden of the Eastham Unit of the Texas Department of Criminal Justice,

Defendants.

PLAINTIFF MAX MOUSSAZADEH’S MOTION FOR SUMMARY JUDGMENT

EXHIBIT 32

lac t~ff-KOSHERKITCHENCONSTRUCTIONES11MATEDOG

______

TexasDepartment of Crimina’Justice MoussazadehDeposition

Estimate for the construction of a free standingbuilding to be used as a KosherKitchenFacility

l8ftx 15ftKitchen 18ftx21 ft Diningarea

Basicconstruction:Pre-erigineeredmetalbuilding,concreteblock or tilt up concrete.

Building 648 SF x $220 $142,560

Furniture

- 15 tables x 500 $7500 -60chairs x 150 9,000 TotalFurniture $16,500

Equipment

- Rangewith oven & 36” griddle $4,700

- Refrigerator 2 doors 4,000

- 3 CompartmentSink and Counter 2,300

- Storagerack 500

- Workisland 700

- Smallsteamtable (5 spaces) 1,000

- Microwaveoven 650 (commercial) .

- Walk —in Freezer 7,700

- Walk —in Cooler 7,700

- Miscellaneouscookingutensils,mixer,coffeemaker, 4,500 pots,pans,dishes,standmixer, etc.

- Hoodwith Fire SuppressionSystem 3,000

- 2 fixturelavatory 5,000 TotalEquipment $41,750

Utilities(electricity, gas, water,sewergreasetrap) $125,000

Architectural / EngineeringFees $32,000

Contingency $35,000

Bonds & Insurance $19,000

ProjectOverhead / Burden $41,000

. TOTAL $452,310

U l~P’-t

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION

MAX MOUSSAZADEH,

Plaintiff, v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE; Civil Action No. 3:07-cv-00574 BRAD LIVINGSTON, solely in his official capacity as Executive Director of the Texas Department of Criminal Justice; and

DAVID SWEETEN, solely in his official capacity as warden of the Eastham Unit of the Texas Department of Criminal Justice,

Defendants.

[PROPOSED] ORDER

Upon consideration of the Plaintiff’s Motion for Summary Judgment, the Court hereby

GRANTS the Motion.

The Court further DECLARES that Defendant Texas Department of Criminal Justice violated Plaintiff Max Moussazadeh’s rights under 42 U.S.C. §§ 2000cc et seq. by failing to provide him a nutritionally sufficient kosher diet.

The Court further ORDERS Plaintiff to prepare and submit to the Court a form of final judgment and permanent injunction requiring Defendant Texas Department of Criminal Justice to provide a nutritionally sufficient kosher diet for the duration of his incarceration by the State of Texas.

Dated: ______, 2011 ______The Hon. Melinda Harmon United States District Judge

2