Sharp v. GEO Group Incorporated et al
MEMORANDUM OPINION AND ORDER: Sharp's Equal Protection Clause claim is denied; his RLUIPA claim is granted. Signed by Judge Jack Zouhary on 7/18/2014. (See Order for details)(ALS)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Gabriel Sheridan Sharp,
Case No. 2:11 CV 925 - ROS
-vsJUDGE JACK ZOUHARY
John Gay, et al.,
Plaintiff Gabriel Sheridan Sharp (“Sharp”), a Mojave Indian and an inmate at the Central
Arizona Correctional Facility (“CACF”), brings suit against Charles Ryan, Director of the Arizona
Department of Corrections (“ADOC”); CACF Warden John Gay (“Gay”); and Mike Linderman
(“Linderman”), ADOC Senior Chaplain. Sharp alleges Ryan, Linderman, and Gay deprived him of
his equal protection rights, and that Ryan and Linderman violated the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”).
In February 2014, after a January three-day bench trial, counsel for the parties stipulated to
dismiss with prejudice most of Sharp’s original claims (Doc. 130). Two claims remain. Invoking 42
U.S.C. § 1983, Sharp claims all Defendants deny him equal protection by refusing to allow Native
American inmates an additional weekly “turnout,” the prison’s term for a scheduled inmate religious
activity. Sharp also claims that ADOC policy regarding inmate access to firewood, the fuel for Native
American sweat ceremonies, violates RLUIPA. The parties filed Proposed Findings of Fact and
Conclusions of Law with respect to these two claims (Docs. 140–42). This Court then allowed the
parties time to explore resolution of the remaining claims; however, settlement talks did not succeed.
ADOC’s Turnout Policy
CACF refers to scheduled inmate religious activities as “turnouts.” Each week, facility
chaplains prepare turnout schedules, informing CACF’s roughly 1,100 inmates when they may
participate in religious observance of a particular type (Doc. 135 at 5; Doc. 141-1 at 1 (turnout
schedule for the week of November 18, 2012); Exhs. 14_001, 14_002, 14_004). See also Exh.
14_003 (weekend turnout schedule). The turnout schedules in use in March 2014 were substantially
the same as schedules used in 2011 (Doc. 135 at 9).
Consistent with ADOC policy, CACF generally approves a turnout only if the turnout is
supervised by chaplain staff or an outside volunteer (id. at 18). Prior to 2002, ADOC contracted with
outside religious officiants to assist with inmate religious practice, but that arrangement was
discontinued due to state budget constraints (Doc. 143 at 12). CACF Chaplain Sylvester Ajagbe
(“Ajagbe”), who works weekdays from 7:00 a.m. to 3:00 p.m. and volunteers on occasional weekends
(Doc. 135 at 6–7), supervises a majority of the services held during his normal work hours (id. at 6).
But even when Ajagbe or outside religious volunteers are present, security staff also observes the
inmates to maintain order (id.).
Volunteer availability varies across the faith traditions observed by inmates. For example,
roughly 80 percent of CACF inmates observe some form of Christian worship (e.g., a Protestant
denomination and Catholicism) (id. at 13). Religious volunteers are more readily available for
ceremonies attended by Christian-affiliated inmates. By contrast, CACF has difficulty securing
volunteers for religious traditions observed by only a minority of the inmate population (e.g., Islam,
Judaism, and adherents of Native American religious practices) (Doc. 143 at 52).
If, for a given week, neither the chaplain nor an outside religious volunteer is available to
supervise, for example, an Asatru turnout, inmates who follow that faith may instead attend a multifaith gathering overseen by Ajagbe (Doc. 135 at 18–19; Doc. 143 at 38). At that multi-faith gathering,
each religious group may engage in its faith’s religious activities -- Native American inmates, for
example, may hold talking circles or engage in group smudging (Doc. 143 at 38, 40–41). Inmates
have the option of holding the talking circles indoors during the multi-faith gatherings, or may select
an outdoor visitation area where they may generate smoke as part of group smudging (id. at 41).
Aside from identifying the type of religious activity and the time allotted for that activity, the
weekly turnout calendars note the presence of volunteers for that activity in several ways: first, a
calendar entry may contain a notation of “volunteers,” indicating outside religious volunteers will be
available to supervise the turnout (see, e.g., Exh. 14_002 (reflecting a volunteer would be present for
the August 18, 2013 “Prayer Service Prep”)); second, a calendar entry may contain a notation of “w/o
volunteers,” indicating no volunteer will be present (see, e.g, Exh. 14_002 (noting the August 21,
2013 “LDS Vocal Team” turnout would be held “w/o Volunteer”)); and third, the majority of calendar
entries reflect no notation as to the presence of volunteers (see, e.g., Exh. 14_004 (omitting any
notation with respect to volunteer presence for the October 23, 2013 “LDS Vocal Team” event)). For
ease of reference, this Court refers to this third category of turnouts as “unlabeled turnouts.”
The parties dispute whether volunteers are present during unlabeled turnouts. Sharp claims
he spoke with other inmates who participated in unlabeled turnouts, learning that “half the time they
do have a volunteer [for unlabeled turnouts] and half the time they don’t” (Doc. 134 at 78). Sharp’s
second-hand, non-specific explanation of the unlabeled events is not persuasive, and portions of his
testimony on this point are inadmissible hearsay in any event. Ajabge, who weekly compiles the
turnout schedule, explained that the turnout schedule, as a general rule, includes only events for which
there is an approved supervisor (e.g., the chaplain or a volunteer). “W/O volunteers” appears in a
calendar entry not because some particular group is allowed preferential treatment, but rather because
of unforeseen changes in volunteer availability (see Doc. 135 at 19) (Ajagbe explaining that past
turnouts were held without volunteers because of an unexpected unavailability or death of a religious
volunteer). “It is not [Ajagbe’s] plan to [hold services without volunteers] because [he] ha[s] to follow
the policy of DOC” (id. at 18). See also Doc. 137 at 21.
Thus, each week, the following opportunities are available for Native Americans to practice
their faith in a group setting: (1) when firewood is available, six hours each Saturday to hold a sweat
lodge ceremony, during which time inmates are effectively “unsupervised”; to avoid desecrating the
lodge, no security staff enters the sweat lodge (Doc. 135 at 20; Doc. 137 at 8); (2) in addition to a
sweat ceremony, another turnout if supervised by an outside volunteer or chaplain (Doc. 139-1 at 6);
(3) if firewood and a supervisor are unavailable, fifty-five minutes during the multi-faith gathering
to engage in group religious practice (e.g., talking circles and group smudging) (id.; Doc. 143 at 39).
Native Americans also hold more religious festivals than other faiths (Doc. 135 at 20). Native
Americans are allowed a “religious box,” which holds their personal religious supplies, and may pray
or smudge on their own (Doc. 134 at 86, 124). Finally, all inmates may attend miscellaneous
religious-related events throughout the year, like Ajagbe’s “Food for Thought” discussion sessions
or periodic choir sessions (Doc. 135 at 14).
Sharp seeks injunctive relief, directing all Defendants to grant Native American inmates an
additional weekly turnout. He seeks “additional time to teach the Native Americans the music they
need to know and more time to teach the reasons for our religion” (Doc. 134 at 83). He objects to
being relegated, in the absence of firewood and an outside volunteer, to group religious observance
held during the multi-faith gathering. Sharp explains that with so many different faith traditions
engaging in group worship at the same time and place, there are “different energies” preventing
Native American inmates from purifying their worship space (id.).
ADOC’s Firewood Policy
Except for those housed in the ADOC’s maximum security units, ADOC’s Native American
inmates have access to outdoor sweat lodges (Doc. 137 at 35). A sweat lodge is a dome structure,
created with bent willow poles (Doc. 134 at 8), and covered with blankets and a tarp when in use (id.
at 11, 13). Native American inmates consider the sweat lodge and surrounding grounds to be sacred
areas (id. at 9).
When wood is available, Native American inmates may hold sweat ceremonies each Saturday,
which are calendared from 6:00 a.m. to noon (see, e.g., Exh. 14_001). On the morning of a sweat,
firestarters -- select Native American inmates (including Sharp) -- enter the sweat lodge grounds to
prepare for the sweat ceremony (Doc. 134 at 10–11). Firestarters use wood to start a fire in a firepit
adjacent to the sweat lodge (id. at 12). Firestarters place “grandfathers,” large sacred stones, in the
firepit, and heat the stones to high temperatures (id.).
Inmates file into the sweat lodge for the ceremony (id. at 14) and, using metal shovels, transfer
the heated grandfathers from the firepit to the door of the sweat lodge. At the door of the sweat lodge,
an inmate uses wooden sticks to carry the grandfathers from the shovel to an altar at the center of the
sweat lodge (id. at 18–19). The grandfathers heat the sweat lodge, and from time to time are used to
generate steam by inmates who pour water over top of the grandfathers. Sweat ceremonies are an
important component of Native American inmate’s religious practice, and are not possible without
some source of firewood.
CACF inmates previously obtained sweat ceremony wood from pallets accumulated at CACF
in the normal course of its operations. Sometime in 2010, CACF barred further use of pallet firewood
(id. at 64). Prison officials note pallets are held together with nails, which prison officials worry could
be retrieved from firepit ashes and used to fashion weapons. Some pallets are constructed of lumber
treated with chemicals which may produce harmful fumes when burned. Finally, unlike in the past,
there is now a resale market for CACF pallets (Doc. 143 at 50–51). CACF inmates may now only
obtain wood for sweat ceremonies by in-kind donations from family or friends outside the prison (id.
ADOC will not purchase firewood for inmates -- indeed, ADOC does not use facility funds
to purchase materials dedicated to inmate religious use (id. at 69). Nor does ADOC permit inmates
to purchase firewood, either individually or as a group. ADOC bars individual inmate firewood
purchases out of a concern that inmates who purchase firewood would use their largesse as a way to
coerce, or obtain leverage over, other inmates who participate in (but do not pay for) sweat
ceremonies (Doc. 137 at 32). ADOC bars group inmate firewood purchases, in part because of
leverage-based security concerns, but also because such purchases would require ADOC to create and
administer group accounts for religious purchases (id.). Sharp participates in sweats with Native
Americans who live in his medium-security housing unit. ADOC claims if it permitted group
accounts, inmates in each housing unit would ask that their purchases of firewood be reserved for that
unit’s sweat lodge (id. at 38, 39). As a result, each housing unit at each Arizona public or private
prison would require a group account for purchasing firewood. Further, if ADOC policy is to be
neutral with respect to treatment of different religious groups, ADOC would have to create group
accounts for use by inmates who follow other faith traditions -- again, for each housing unit at each
public and private prison facility (id. at 36–37, 39; Doc. 142 at 7).
ADOC also explained which staff would be tasked with administering group religious
accounts. ADOC prohibits staff chaplains from handling prison funds. As a result, group accounts
would have to be administered (like an inmate’s individual account) by non-chaplain prison staff
(Doc. 143 at 46). ADOC claims existing staff levels could not effectively manage group religious
accounts (Doc. 137 at 37). Relatedly, ADOC claims it would incur additional expenses -- in the form
of training and supervision activities -- so that ADOC employees tasked with directly administering
such accounts do not violate state law. ADOC once permitted group recreational accounts, but
discontinued that policy after prison staff were caught embezzling funds (id. at 34, 38). Permitting
group inmate firewood purchases could potentially require more than 2,200 group religious accounts
-- one such account for each of Arizona’s 57 prison housing units for each of the 40 or so ADOCrecognized faiths (Doc. 142 at 7).
In 2013, and under ADOC’s in-kind firewood donation policy, Sharp and the inmates who
sweat with him were able to hold only five sweats (Doc. 134 at 55). When pallet wood was available,
Sharp’s housing unit was able to hold weekly sweats (id. at 59). Sharp explained that outreach to
Native American tribes or to inmate family and friends, soliciting in-kind firewood donations, were
largely unsuccessful (id. at 56–57). Inmates obtained only two firewood donations in 2013 (id. at
Sharp asks this Court to order ADOC to establish group religious accounts, fed by inmate and
outside donations, which could be used to purchase firewood for sweat ceremonies (Doc. 134 at 61).
Equal Protection Claim
“The Supreme Court has repeatedly held that prisoners retain the protections of the First
Amendment. A prisoner’s right to freely exercise his religion, however, is limited by institutional
objectives and by the loss of freedom concomitant with incarceration.” Hartmann v. Cal. Dep’t of
Corr. & Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013) (internal citations omitted). Specifically, the
Equal Protection Clause and the Free Exercise Clause do not guarantee inmates of different faith
traditions “identical facilities or personnel” for use in their religious observances; what the Clauses
guarantee an inmate is “a reasonable opportunity of pursuing [the inmate’s] faith comparable to the
opportunity afforded fellow prisoners.” Cruz v. Beto, 405 U.S. 319, 322 & n.2 (1972). Because there
is no evidence that ADOC turnout policy was designed or implemented with discriminatory or other
invidious intent, the turnout policy does not violate the Equal Protection Clause if, though the “prison
regulation impinges on inmates’ constitutional rights,” it is “reasonably related to legitimate
penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987). The four Turner factors govern that
Whether there is a valid, rational connection between the prison regulation and
the legitimate governmental interest put forward to justify it;
Whether there are alternative means of exercising the right that remain open
to prison inmates;
Whether accommodation of the asserted constitutional right will impact guards
and other inmates, and on the allocation of prison resources generally; and
Whether there is an absence of ready alternatives versus the existence of
obvious, easy alternatives.
Shakur v. Schriro, 514 F.3d 878, 884 (9th Cir. 2008) (ellipsis and internal quotation marks omitted).
This Court must apply the Turner factors with “due regard for the inordinately difficult undertaking
that is modern prison administration, recognizing that certain proposed interactions, though seemingly
innocuous to laymen, have potentially significant implications for the order and security of the
prison.” Hrdlicka v. Reniff, 631 F.3d 1044, 1050 (9th Cir. 2011) (internal quotation marks omitted).
First, budgetary constraints and institutional security concerns are legitimate government
interests. ADOC’s turnout policy is reasonably related to these legitimate interests. ADOC
discontinued contract religious supervision services because of budgetary constraints. It has declined
to allow Native American inmates an additional turnout, because each turnout must be monitored by
security staff. Limiting each faith tradition to a weekly turnout -- either on a standalone basis, or as
part of the multi-faith gathering when an outside volunteer or chaplain cannot monitor a standalone
turnout -- advances the goal of conserving security personnel resources.
To the extent Sharp argues CACF’s Christian inmates receive preferential treatment in the
number of turnouts each may attend, he fails to demonstrate disparate accommodations or other
invidious intent. CACF houses inmates who adhere to many different Christian denominations and
who practice their Christian faith in different languages (e.g., English or Spanish) (Exh. 14_004).
CACF also houses far more Christian inmates than inmates who adhere to other faith traditions. And,
for reasons unrelated to CACF policy, religious volunteers are more readily available for Christian
turnouts. Thus, it is an oversimplification to count each Christian turnout, compare that sum to the
turnouts allowed Native American inmates, and conclude CACF treats Native Americans disparately,
and for reasons unconnected to legitimate penal interests.
Second, Sharp has access to other ways of practicing his faith, beyond the additional turnout
that he seeks. “The relevant inquiry under this factor is not whether the inmate has an alternative
means of engaging in the particular religious practice that he or she claims is being affected; rather,
[this Court must] determine whether the inmates have been denied all means of religious expression.”
Ward v. Walsh, 1 F.3d 873, 877 (9th Cir. 1993). Here, Sharp can: participate in sweat ceremonies
when donated wood is available; participate in group talking circles and smudging, either under the
supervision of a Native American religious volunteer when available, or during the weekly multi-faith
gathering when no religious volunteer is available; attend Native American religious festivals; join
in general chaplaincy programs; and engage in individual religious worship, like personal smudging
Third, Sharp’s requested relief -- to allow Native American inmates an additional turnout -“will impact guards and other inmates, and on the allocation of prison resources generally.” An
additional turnout would affect allocation of security and chaplain staff resources. Moreover, nonNative American inmates who also face difficulty in securing outside volunteers likely would ask for
an additional turnout.
Finally, Sharp points to no obvious and easy alternative for extending Native American
inmates an additional turnout on a neutral basis. The final Turner factor is not a least-restrictivemeans inquiry. Turner, 482 U.S. at 90–91. See also Bahrampour v. Lampert, 356 F.3d 969, 976 (9th
Cir. 2004) (“If there are no obvious alternatives, and if the inmate only presents solutions that will
negatively impact valid penological interests, then courts will view the absence of ready alternatives
as evidence of a reasonable regulation.”). Sharp simply asks that he and Native American inmates
be granted an additional turnout, which will require additional security or chaplain staff time to
monitor. That additional security staff commitment “negatively impact[s a] valid penological
Based on a review of the evidence, this Court concludes each Turner factor weighs in favor
of a finding that CACF’s existing turnout policy is constitutionally permissible. Sharp has not shown
“the regulation[ is] irrational or unreasonable, or that there are alternative solutions that are easy,
obvious, and of de minimis cost to valid penological interests.” Id. at 976 (internal quotation marks
omitted). This Court finds in favor of all Defendants with respect to Sharp’s Equal Protection Clause
RLUIPA provides that “[n]o government shall impose a substantial burden on the religious
exercise of a person residing in or confined to an institution,” including a qualifying prison, “unless
the government demonstrates that imposition of the burden on that person (1) is in furtherance of a
compelling governmental interest; and (2) is the least restrictive means of furthering that compelling
governmental interest.” 42 U.S.C. § 2000cc-1. The Act should be “construed in favor of a broad
protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the
Constitution.” 42 U.S.C. § 2000cc-3(g).
Sharp must first establish a prima facie case that ADOC’s firewood policy substantially
burdens his religious exercise. The burden of persuasion then shifts to Defendants to show any
substantial burden on Sharp’s religious exercise is “both in furtherance of a compelling governmental
interest and the least restrictive means of furthering that compelling governmental interest.”
Warsoldier v. Woodford, 418 F.3d 989, 995 (9th Cir. 2005) (emphases in original) (internal quotation
marks omitted). See also May v. Baldwin, 109 F.3d 557, 564–65 (9th Cir. 1997) (noting in the context
of a Religious Freedom Restoration Act case “[w]here a prisoner challenges [prison officials’]
justifications, prison officials must set forth detailed evidence, tailored to the situation before the
court, that identifies the failings in the alternatives advanced by the prisoner.”). RLUIPA’s leastrestrictive-means standard is “the most demanding test known to constitutional law.” City of Boerne
v. Flores, 521 U.S. 507, 534 (1997). Still, Congress envisioned “Courts would apply [RLUIPA’s]
standard with due deference to the experience and expertise of prison and jail administrators in
establishing necessary regulations and procedures to maintain good order, security[,] and discipline,
consistent with consideration of costs and limited resources.” Cutter v. Wilkinson, 544 U.S. 709, 723
(2005) (internal quotation marks omitted). RLUIPA’s standard is more demanding than the Turner
standard. Alvarez v. Hill, 518 F.3d 1152, 1156–57 (9th Cir. 2008).
RLUIPA’s expansive definition of “religious exercise” “bars inquiry into whether a particular
belief or practice is ‘central’ to a prisoner’s religion.” Greene v. Solano County Jail, 513 F.3d 982,
987 (9th Cir. 2008) (quoting Cutter, 544 U.S. at 725 n.13). Sharp testified in great detail on the
religious significance of the sweat ceremony to observant Native Americans, a point Ryan and
Linderman do not challenge in their Proposed Findings of Fact and Conclusions of Law. The sweat
ceremony is therefore a “religious exercise” within the meaning of the Act.
Further, Sharp has shown ADOC policy limiting sources of firewood constitutes a “substantial
burden” on that religious exercise. In this Circuit, prison policy substantially burdens an inmate’s
religious exercise if it “impose[s] a significantly great restriction or onus on such exercise.”
Hartmann 707 F.3d at 1125. Other circuits employ similar rules for identifying regulations that
substantially burden religious exercise. See, e.g., Patel v. U. S. Bureau of Prisons, 515 F.3d 807, 813
(8th Cir. 2008) (explaining a prison regulation “must significantly inhibit or constrain conduct or
expression that manifests some central tenet of a person’s individual religious beliefs [or]
meaningfully curtail a person’s ability to express adherence to his or her faith or  deny a person
reasonable opportunities to engage in those activities that are fundamental to a person’s religion”);
Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1227 (11th Cir. 2004) (noting that a
substantial burden surely exists if “a regulation completely prevents the individual from engaging in
religiously mandated activity, or if the regulation requires participation in an activity prohibited by
religion”); Civil Liberties for Union Believers v. City of Chicago, 342 F.3d 752, 761 (7th Cir. 2003)
(“[A] substantial burden on religious exercise is one that necessarily bears direct, primary, and
fundamental responsibility for rendering religious exercise . . . effectively impracticable.”). The
evidence establishes that ADOC’s firewood policy significantly restricts inmates’ ability to engage
in sweat ceremonies. Indeed, the policy effectively prevents inmates from holding sweat ceremonies.
And again, Ryan and Linderman do not meaningfully argue in their Proposed Findings of Fact and
Conclusions of Law that the firewood policy does not impose a significant restraint on Sharp’s
Because Sharp has made a prima facie showing that ADOC’s firewood policy violates
RLUIPA, Ryan and Linderman must show the firewood policy was adopted as the least-restrictive
means of advancing a compelling government interest. They have failed to carry that burden.
“[M]aintaining good order, security and discipline, consistent with consideration of costs and
limited resources, is a compelling government interest.” Shakur, 514 F.3d at 889 (internal quotation
marks omitted). But the in-kind firewood policy must further that compelling interest in some way.
There is no specific evidence, aside from conclusory assertions by prison officials, that the in-kind
firewood policy serves a security or cost-saving interest that would not similarly be served by group
To recap, ADOC justifies the in-kind firewood policy by reference to security concerns
centering on the potential that individual inmates who can better afford to contribute to a housing
unit’s firewood purchases would exercise leverage over other inmates. However, Native American
inmates already use individual funds to purchase materials used for group religious practice, including
smudging materials and the sacred gourd (Doc. 137 at 58), and herbs used to bless the sweat lodge
grounds (Doc. 134 at 14). There is no evidence that this existing potential for inmate-to-inmate
coercion generates security threats. Moreover, because the in-kind firewood policy allows an
inmate’s family to donate firewood for use in the inmate’s housing unit’s sweat ceremonies, the inkind firewood policy already permits inmates to gain leverage over other inmates. Under current
policy, an inmate who has (relatively) wealthy family members could secure family firewood
donations, while an inmate from a (relatively) poor family would be unable to secure family firewood
donations. Again, the record lacks any indication that inmates have manipulated the in-kind firewood
policy in this way.
ADOC’s cost-based concerns are similarly unsupported by record evidence. ADOC estimated
the approximate maximum number of group religious accounts that may have to be established if
Sharp secures the relief he seeks. But ADOC provides no estimate whatsoever of the actual
manpower or monetary costs associated with establishing and maintaining group religious accounts;
Ryan and Linderman’s $1 million dollar cost-estimate, included in the Joint Proposed Pretrial Order
(Doc. 75 at 12), is unsupported by any documentary or testimony evidence. See Shakur, 514 F.3d at
887 (remanding for further factual development on Turner and RLUIPA challenges to prison dietary
restrictions because, as to the sole government interest served by the restrictions, “[t]here [wa]s no
evidence [beyond conclusory total cost estimates] in the record suggesting that ADOC actually looked
into providing kosher meat to all Muslim prisoners, which could potentially result in economies of
scale that would reduce the overall cost of the meals”). Moreover, ADOC counts in its (unquantified)
tally of group-religious-account costs, funding for training and supervision of staff specifically
directed at ensuring ADOC staff do not again embezzle inmate funds from group inmate accounts.
Call these costs “compliance costs.” To the extent ADOC casts these compliance costs as an amount
in addition to that which would be required for normal accounting staff labor costs, this aspect of
ADOC’s cost concerns deserves little weight. RLUIPA cannot be read to justify substantial burdens
on inmate religious exercise simply because adoption of reasonable religious accommodations may
require that prison administrators ensure their subordinates do not victimize inmates or outside
donors. RLUIPA itself recognizes the Act “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).
Even if Ryan and Linderman had shown the in-kind firewood policy advanced a compelling
government interest (which they have not), they have failed to show the in-kind firewood policy is
the least-restrictive means for furthering a compelling government interests. ADOC “cannot meet its
burden to prove least restrictive means unless it demonstrates that it has actually considered and
rejected the efficacy of less restrictive measures before adopting the challenged practice.”
Warsoldier, 418 F.3d at 999.
Only two witnesses offered comment of any kind on ADOC’s consideration of alternatives
to the in-kind firewood policy. Carson McWilliams, ADOC’s Northern Regions Operations Director
(Doc. 137 at 4), testified he had no knowledge of any other prison system’s policies with respect to
the provision of sweat lodge firewood (id. at 60–62), and otherwise did not discuss alternatives to the
in-kind firewood policy.
Linderman provided more specific testimony as to alternative means for securing firewood.
At the outset, this Court notes problems in the basis for Linderman’s testimony. Specifically,
Linderman testified he does not develop policy with respect to group inmate accounts (Doc. 143 at
45, 48) or play any significant role in setting prison security policy (id. at 12–13). Nor is he aware
of any other state’s firewood policies, except for a Colorado policy “about banking accounts [which]
doesn’t specifically address fire wood” (id. at 69). In short, Linderman testified that if an ADOC
official decided to explore possible alternatives to the in-kind firewood policy, it would not be him.
His claim that ADOC considered alternatives to the in-kind firewood policy “[q]uite
extensively over the years, trying lots of different angles to see if there was something that might be
able to work for everyone involved” is unsupported by specific documentary or testimonial evidence
(id. at 45). Much of Linderman’s testimony explains why firewood is hard to come by in Arizona.
For example, he explained why ADOC discontinued use of pallet firewood (id. at 50–51). He also
testified that wood availability is limited in the arid regions near CACF (id. at 47). Finally, he
explained likely shortfalls in relying on prison fire crews to gather wood. Brush abatement no longer
occurs at some ADOC facilities because there no longer is brush to abate at or near those facilities.
At other facilities where fire crews are still active -- primarily in northern Arizona -- gathered
firewood is used in the facilities near where the firewood is gathered (id.). Thus, Linderman
explained the challenges ADOC faces in finding firewood -- facts that are certainly relevant in a leastrestrictive-means analysis -- but (with only two exceptions) does not further discuss solutions that
have been explored to meet these challenges, aside from the in-kind firewood policy.
Those two exceptions came in response to defense counsel’s questioning, positing alternative
firewood policies. Linderman explained ADOC would refuse a matching-funds arrangement to help
inmates purchase firewood because (1) ADOC policy prohibits the use of its funds to purchase
religious material (id. at 69), and (2) a matching funds arrangement would have to be extended to
inmates of all religious traditions (id. at 48). He also commented that, in the past, ADOC permitted
inmates to go “outside the wire” to collect firewood, but that heightened security concerns have
largely ended that practice, which requires ADOC chaperones and coordination with local law
enforcement authorities in the areas outside of an ADOC facility in which an inmate would gather
wood (id. at 48–50).
This limited testimony, offered by a witness who has no role in formulating policy with respect
to group accounts, ignores the many alterative firewood policies in place at other state and federal
prison facilities. The Ninth Circuit has 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.” Warsoldier, 418 F.3d at 1000. See also Shakur, 514 F.3d at
890 (comparing a challenged dietary restriction to dietary exemptions allowed in another state).
Sharp offered evidence that at least four western states1 and the federal Bureau of Prisons
(“BOP”) have adopted firewood policies that (in varying ways) permit inmates to purchase firewood.
Colorado employs “Religious Trust Fund Accounts.” The Colorado accounts are fed by
“[m]onies donated by offenders or outside sources” and are “held in trust for each [Colorado
Department of Corrections (“CDOC”)] facility” (Exh. 10_001). CDOC staff manage the accounts
(Exh. 10_002 – _003), but CDOC does not itself match inmate or outside contributions.
South Dakota uses “sweat lodge account[s] to receive and distribute funds to be utilized for
the maintenance and operation of any approved sweat lodge,” including the purchase of firewood
(Exh. 11_001). Inmates and outside donors may contribute to South Dakota’s sweat lodge accounts
New Mexico state law requires “a state corrections facility [to] permit [Native American
inmates] access on a regular basis, for at least six consecutive hours, to . . . items and materials used
in religious ceremonies provided by the inmate or a spiritual advisor” and to a sweat lodge. N.M.
Sharp submitted a document related to a fifth western state, Nebraska, titled “Manual of Native
American Religious Practices in Secure Confinement” (Exh. 09_001 – _044). The Manual notes
among the tools and equipment required for weekly sweat ceremonies “approximately one cord of
firewood provided per month (natural wood is preferable, however, unpainted/untreated lumber and
pallets are acceptable)” (Exh. 09_019). However, it is not apparent from the Manual, or from any
other evidence in the record, that Nebraska policy requires that amount of firewood be made
available. The Manual appears to only set forth recommendations for accommodating Native
American religious practices (see Exh. 09_009 (setting forth Manual’s purpose); Exh. 09_014
(explaining the Manual describes various Native American religious traditions “with recommended
correctional policy and procedures” for accommodating such practices in a prison setting)).
STAT. §§ 33-10-4(B)–(C). Firewood is an “allowable religious item,” and the amount offered to
inmates is “contingent to (sic) facility space, security” (Exh. 12_008). “The Native American
Spiritual Advisor or institution’s chaplain, the institution’s Deputy Warden for Programs (where
appropriate) and the Inmate Spiritual Leaders . . . coordinate efforts to assure that an adequate supply
of lava rocks, kindling[,] and chopped wood is at all times on hand” for use in sweat ceremonies.
Native American Counseling Act Policy CD-101100, NEW MEXICO CORRECTIONS DEP’T, at 7,
available at, http://www.corrections.state.nm.us/policies/docs/CD-101100.pdf (last accessed July 18,
In Idaho, inmates are guaranteed (with security exceptions) “a total of 12 cords of firewood
per year at each facility with a sweat lodge” (Exh. 13_011). The firewood is either gathered on Idaho
prison facility grounds, donated from “individuals, organizations, or businesses,” or purchased (Exhs.
13_011 & _012). For firewood purchases, Idaho initially provides $300 per year for each facility
with a sweat lodge, and then “will match (dollar for dollar) money donated to a fund dedicated for the
purchase of firewood at each facility with a sweat lodge,” but only in an amount sufficient to purchase
six cords of firewood for each facility with a sweat lodge (Exh. 13_012). Inmates who “have not used
coercion or committed other [specific] IDOC rule violations” and who are “active particip[ants]” in
sweat lodge ceremonies may donate to the firewood fund (Exh. 13_012 – _013). “[P]rivate
No party offered Policy CD-101100 into evidence. However, the policy is referred to in one exhibit
(see Exh. 12_004). Further, this Court may take judicial notice of Policy CD-101100, either as a
legislative fact, or as an adjudicative fact that is “not subject to reasonable dispute because [the
Policy’s content] . . . can be accurately and readily determined from sources whose accuracy cannot
reasonably be questioned,” namely, the New Mexico Correction Department’s website. Federal
Evidence Rule 201(b). See also Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010)
(taking “into consideration the list of approved . . . vendors [of annuity contracts and other
investments] displayed publicly on the respective web sites of the South Kitsap and El Dorado School
Districts” under Federal Evidence Rule 201(b)).
individuals, organizations, or agencies” also may contribute to the firewood fund (Exh. 13_012).
Finally, the federal BOP likewise provides “approximately one cord of firewood . . . per
month” for each sweat lodge so that “[a]t least one [sweat ceremony may be held] per week, . . . . in
addition to or substitution of” a talking circle (Exh. 9_019). See also Exh. 8_027.
“Surely these other state and federal prison systems have the same compelling interest in
maintaining prison security [and] ensuring public safety” by limiting the potential for inmates to use
contributions to group religious accounts to gain leverage over other inmates (assuming the in-kind
firewood policy even serves that interest). See Warsoldier, 418 F.3d at 1000. On its own accord,
ADOC is not bound to adopt the firewood policies of the BOP, Colorado, New Mexico, South Dakota,
or Idaho. But it must at least show it considered alternatives to the in-kind firewood policy, which
substantially burdens Native American inmate religious exercise.
Aside from Linderman’s
explanation of why an Idaho-style matching-fund account would be unacceptable to ADOC -testimony which, again, contains foundation problems -- the record is bare of any evidence that
ADOC considered feasible, less burdensome alternatives to the in-kind firewood policy.
Sharp complained about the firewood policy numerous times over the course of two years (see
Exhs. 16_100 – _135) (collecting Sharp’s administrative complaints and replies thereto), including
offering a specific proposal for a group firewood account (Exh. 16_121). Each complaint was met
with an ADOC or CACF statement that essentially reiterated the in-kind firewood policy, but did not
discuss ADOC or CACF’s rationale for rejecting alternative firewood policies, much less reference
alternative policies (see Exh. 16_104 (“[T]his response [from ADOC Central Office] will only address
the issue of obtaining firewood . . . . The response provided at the unit level is affirmed. The
Department is not required by policy to provide supplies for worship ceremonies. Supplies are only
available through donations from an outside source.”)). See also Doc. 71 at 24–25 (May 2013 Order
denying summary judgment as to the RLUIPA claim because relevant Defendants “offered no
evidence” to support expenses associated with administering group accounts, concluding
“[s]pecualtion by defense counsel is also inadequate” to show actual costs) (emphasis in original)).
“[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.” Greene, 513 F.3d at 989–90.
Because Ryan and Linderman have failed to carry their RLUIPA burden, this Court finds in Sharp’s
favor as to his RLUIPA claim.
Sharp’s Equal Protection Clause claim is denied; his RLUIPA claim is granted. ADOC is
directed to establish a group religious account. ADOC may consider adopting one of the five
alternatives identified above, or it may adopt its own version of a group religious account. In short,
it has flexibility in determining how best to structure and administer the account to allow for inmate
and outside monetary contributions for the purchase and delivery of firewood to be used for sweat
IT IS SO ORDERED.
s/ Jack Zouhary
U. S. DISTRICT JUDGE
July 18, 2014
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?