Ciempa v. Jones et al

Filing 105

OPINION AND ORDER by Chief Judge Claire V Eagan that Defendants' second motion for summary judgment (Dkt. # 90) is granted in part and denied in part as follows: Defendant McClary's motion for summary judgment is granted as to Plain tiff's claim based on the book Stoic Warriors and Defendant McClary is terminated as a party; Defendants Jones and Brown are not entitled to summary judgment on Plaintiff's request for NGE group time in the chapel and their motion for summa ry judgment is denied. Within sixty (60) days of the entry of this Opinion and Order, Defendants Brown and Jones shall submit in writing either a plan accommodating Plaintiff's request for space and time in the prison chapel for the religious e xercise of his NGE beliefs using the least restrictive means to advance their compelling government interest, or a demonstration that there are no less restrictive means, other than a total ban, to ensure institutional security. Plaintiff may file a response to Defendants' submission within thirty (30) days of its filing. ; setting/resetting deadline(s)/hearing(s): ( Miscellaneous Deadline set for 11/10/2011); granting in part and denying in part 90 Motion for Summary Judgment; grant ing 100 Motion to Supplement; denying 103 Motion for Preliminary Injunction (Re: 60 Opinion and Order, Adding/Terminating Party(ies),, Setting/Resetting Deadline(s)/Hearing(s), Ruling on Motion to Dismiss, Ruling on Motion for Summary Judgment, Ruling on Motion to Reconsider, Ruling on Motion to Supplement,,,, Adding/Terminating Party(ies),, Setting/Resetting Deadline(s)/Hearing(s),,,,,,,, Adding/Terminating Party(ies),, Setting/Resetting Deadline(s)/Hearing(s),,,,,,,, Adding/Terminating P arty(ies),, Setting/Resetting Deadline(s)/Hearing(s),,,,,,,, Adding/Terminating Party(ies),, Setting/Resetting Deadline(s)/Hearing(s),,,,,,,, Adding/Terminating Party(ies),, Setting/Resetting Deadline(s)/Hearing(s),,,,,, 18 Amended Complaint ) (RGG, Chambers)

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
DAVID CIEMPA,
Plaintiff,
v.
JUSTIN JONES, WALTER DINWIDDIE,
DEBBIE L. MORTON, AL BLAIR, DICK
BARTLEY, KAMERON HARVANEK, G.
MCCLARY, CURTIS HOOD, JAMES
CAVE, RICK BOYETT, JOHN DOE sued as
“Unknown Employee,” CHRIS REDEAGLE,
LEO BROWN,

Defendants.

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Case No. 08-CV-0685-CVE-TLW

OPINION AND ORDER
Before the Court are Defendants’ Second Motion for Summary Judgment and Brief in
Support (Dkt. # 90), Plaintiff’s Motion to Supplement his Response to Defendants’ Second Motion
for Summary Judgment (Dkt. # 100), and Plaintiff’s Second Motion to Reassert his Motion for
Preliminary Injunction (Dkt. # 103). Defendants filed a response (Dkt. # 104) to Plaintiff’s Second
Motion to Reassert his Motion for Preliminary Injunction. After entry of the Court’s prior Opinion
and Order (Dkt. # 60), the only claims remaining in this action are (1) that Defendant McClary
prevented Plaintiff from receiving a book he ordered, Stoic Warriors: The Ancient Philosophy
Behind the Military Mind (hereinafter Stoic Warriors), in violation of the Religious Land Use and
Institutionalized Persons Act, 42 U.S.C. §§ 2000cc et seq. (RLUIPA); and (2) that Defendants
Brown and Jones wrongfully denied Plaintiff’s request for organized chapel time for his group, the
Five Percent Nation of Gods and Earths (hereinafter NGE), in violation of RLUIPA. The only
remaining Defendants are Justin Jones, Gary McClary and Leo Brown, in their official capacities.

Plaintiff David Ciempa is currently incarcerated with the Oklahoma Department of
Corrections (ODOC) at Dick Conner Correctional Center (DCCC).1 Defendant Justin Jones is (or
was, at the relevant times) the Director of ODOC. Dkt. # 18, at 1. Defendant Gary McClary is (or
was, at the relevant times) a Security Personnel Sergeant at DCCC. Dkt. # 18, at 1; Dkt. # 43, at 20.
Defendant Leo Brown is (or was, at the relevant times) the ODOC Agency Chaplain. Dkt. # 43-10,
at 2-3. For the reasons discussed below, the Court finds Defendants’ second motion for summary
judgment shall be granted in part and denied in part. Plaintiff’s motion to supplement his response
shall be granted. Plaintiff’s second motion to reassert his motion for preliminary injunction shall
be denied.
PROCEDURAL HISTORY OF THIS CASE
Ciempa filed his initial complaint (Dkt. # 1) on November 20, 2008. He filed an amended
complaint (Dkt. # 6) on December 8, 2008, a second amended complaint (Dkt. # 10) on December
31, 2008, and a third amended complaint (Dkt. # 18) on June 2, 2009. On July 10, 2009, Ciempa
filed a “motion for preliminary injunction and/or temporary restraining order” (Dkt. # 24). On July
14, 2009, the Court entered an Opinion and Order (Dkt. # 26) directing service of the third amended
complaint and preparation of a special report pursuant to Martinez v. Aaron, 570 F.2d 317 (10th Cir.
1978), and denying Ciempa’s motion for a preliminary injunction. The Martinez report (Dkt. # 43)
was filed on October 23, 2009. Defendants filed a motion to dismiss and/or for summary judgment
(Dkt. # 42). By Opinion and Order filed August 23, 2010 (Dkt. # 60), the Court granted summary
judgment on all claims except the two claims identified above. On February 15, 2011, the remaining

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Ciempa is serving four concurrent twenty-eight year sentences for convictions of attempted
robbery with a firearm, assault and battery with a deadly weapon, and two counts of
possession of a firearm. Dkt. # 43-2, at 2.
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Defendants, i.e., McClary, Jones, and Brown, filed the second motion for summary judgment
presently before the Court.
As a preliminary matter, the Court shall grant Plaintiff’s motion to supplement. The exhibits
attached to the motion have been considered in resolving the issues before the Court. The Court
further finds that Plaintiff’s “Second Motion to Reassert Motion for Preliminary Injunction” shall
be denied. In that motion, Plaintiff seeks reconsideration of the issues resolved in the Opinion and
Order (Dkt. # 60), filed August 23, 2010. The Court finds no clear error in the prior ruling, nor any
other basis warranting reconsideration of the issues, including the denial of Plaintiff’s prior motion
for preliminary injunction.
ANALYSIS
A. Summary judgment standard
Summary judgment pursuant to Fed. R. Civ. P. 56 is appropriate where there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp.
v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986);
Kendall v. Watkins, 998 F.2d 848, 850 (10th Cir. 1993). The plain language of Rule 56(c) mandates
the entry of summary judgment, after adequate time for discovery and upon motion, against a party
who fails to make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 317.
“Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but
rather as an integral part of the Federal Rules as a whole, which are designed ‘to secure the just,
speedy and inexpensive determination of every action.’” Id. at 327.

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“When the moving party has carried its burden under Rule 56(c), its opponent must do more
than simply show that there is some metaphysical doubt as to the material facts . . . . Where the
record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there
is no ‘genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586-87 (1986) (citations omitted). “The mere existence of a scintilla of evidence in support of the
plaintiff’s position will be insufficient; there must be evidence on which the [trier of fact] could
reasonably find for the plaintiff.” Anderson, 477 U.S. at 252. In essence, the inquiry for the Court
is “whether the evidence presents a sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a matter of law.” Id. at 250. In its review,
the Court draws “all justifiable inferences,” id. at 254, and construes the record in the light most
favorable, Garratt v. Walker, 164 F.3d 1249, 1251 (10th Cir. 1998), to the party opposing summary
judgment.
Pro se pleadings must be liberally construed. See Haines v. Kerner, 404 U.S. 519, 520
(1972). Nevertheless, the court should not assume the role of advocate, and should dismiss claims
which are supported only by vague and conclusory allegations. Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991).

Moreover, even pro se plaintiffs are required to comply with the

“fundamental requirements of the Federal Rules of Civil Procedure.” Ogden v. San Juan County,
32 F.3d 452, 455 (10th Cir. 1994).

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B. RLUIPA
RLUIPA prohibits a government from “impos[ing] a substantial burden on the religious
exercise of a person residing in or confined to an institution . . . , even if the burden results from a
rule of general applicability, unless the government demonstrates that the imposition of the burden
on that person (1) is in furtherance of a compelling governmental interest; and (2) is the least
restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000cc-1(a).
“Religious exercise” is defined as “any exercise of religion, whether or not compelled by, or central
to, a system of religious belief.” 42 U.S.C. § 2000cc-5(7). The standards under RLUIPA are more
strict than those under the Free Exercise Clause. Abdulhaseeb v. Calbone, 600 F.3d 1301, 1314
(10th Cir. 2010). In order to proceed with a RLUIPA claim, a plaintiff must demonstrate “he wishes
to engage in (1) a religious exercise (2) motivated by a sincerely held belief, which exercise (3) is
subject to a substantial burden imposed by the government.”2 Id. at 1312. Once the plaintiff
produces prima facie evidence to support a claim, the government must show that the substantial
burden is necessary to further a compelling governmental interest and is the least restrictive means
of furthering that interest.3 42 U.S.C. § 2000cc-2(b).
While RLUIPA imposes a compelling interest standard, “‘context matters’ in the application
of that standard.” Cutter v. Wilkinson, 544 U.S. 709, 722 (2005) (quoting Grutter v. Bollinger, 539
U.S. 306, 327 (2003)). In passing RLUIPA, Congress was “mindful of the urgency of discipline,

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Courts must not judge the truth, significance, or centrality of the belief in question, but may
inquire into the sincerity of a prisoner’s professed religiosity. Lovelace v. Lee, 472 F.3d
174, 187 n.2 (4th Cir. 2006) (cited in Abdulhaseeb, 600 F.3d 1314 n.6).

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The plaintiff retains the burden to show that his religious exercise is substantially burdened.
42 U.S.C. § 2000cc-2(b).
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order, safety, and security in penal institutions,” and “anticipated that 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.’” Id. at 722-23 (quoting
S. REP. NO. 103-11, at 10 (1993), reprinted in 1993 U.S.C.C.A.N. 1892, 1899, 1900). The ODOC
has a compelling interest in maintaining prison security and order. See id. at 723 n.11 (“[c]ourts .
. . may be expected to recognize the government’s . . . compelling interest in not facilitating
inflammatory racist activity that could imperil prison security and order”).
C. Plaintiff’s remaining claims
1. Possession of Stoic Warriors
Ciempa alleges that his possession of the book Stoic Warriors was wrongly prohibited in
violation of his rights under RLUIPA. The Court previously granted summary judgment on this issue
to all Defendants except Defendant McClary. During the pendency of this matter, ODOC officials
reviewed the book and determined that Plaintiff could be allowed to possess the book without
violating ODOC policies. Therefore, in December 2010, a copy of the book was delivered to
Plaintiff. See Dkt. # 90, Ex. 1. Plaintiff confirmed receipt of the book on January 5, 2011. Id.
First, the Court finds that Plaintiff’s RLUIPA claim for injunctive relief has been rendered
moot since he has now been allowed to possess the book Stoic Warriors. Furthermore, the Court
finds that any delay in providing Plaintiff with a copy of Stoic Warriors did not violate Plaintiff’s
rights under RLUIPA. As noted by Defendants, “Stoic Warriors is a philosophy book about the
importance of a military mind set of soldiers who fight wars.” (Dkt. # 90 at 22, citing Ex. 6,
Description of Stoic Warriors). Defendants further state that Stoic Warriors is not an NGE book nor

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is it a religious text. Id. at 22-23. As a result, Defendants contend that Stoic Warriors is not subject
to protection under RLUIPA. Id. at 23. In response to Defendants’ argument, Plaintiff does not
controvert Defendants’ evidence that Stoic Warriors is not a religious text. See Dkt. # 95. He
provides copies of ten (10) pages from the book (Dkt. # 95, last five pages of exhibits). Those pages
support, rather than controvert, Defendants’ assertion that the book is a philosophical treatise,
exploring Stoicism in the context of the military. The Court concludes that Defendant McClary’s
failure to allow Plaintiff to possess Stoic Warriors did not substantially burden Plaintiff’s free
exercise of his religion. Therefore, Plaintiff is not entitled to a declaratory judgment or nominal
damages on his claim based on the book Stoic Warriors. In the absence of a genuine issue of
material fact concerning Defendant McClary’s failure to provide promptly a copy of Stoic Warriors
to Plaintiff, Defendant McClary is entitled to judgment as a matter of law.
2. Request for group chapel time
Ciempa alleges that ODOC has denied his request for space and time in the prison chapel
to conduct NGE classes or meetings, in violation of his RLUIPA rights. Ciempa states that the
requested classes would be “a forum for the expression and practice of his cultural (religious) beliefs
and rites with members and non-members alike.” Dkt. # 18, at 8. He states that “denying me a
forum to teach is tantamount to denying me my cultural identity . . . .” Dkt. # 52, Ex. A, at 4. His
request was denied because ODOC has a state-wide policy of denying religious meeting space and
time to members of NGE “due to the racial and hate filled nature of the materials and doctrine of the
Nation of Gods and Earth[s].” Dkt. # 43-10, at 2-3. In the prior Opinion and Order, see Dkt. # 60,
the Court granted summary judgment on this issue to all Defendants except Defendants Jones and
Brown and ruled as follows:

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Ciempa has made a prima facie case that denying his request for chapel time
substantially burdens his religious exercise. He asserts that holding meetings and
teaching are important to his NGE practice and identity. Therefore, defendants bear
the burden of showing that banning the NGE from the chapel is the least restrictive
means of achieving a compelling interest. Although the Court has determined that
ODOC could rationally conclude that the NGE constitutes a security threat, see Part
III.A.4.a, supra, the only evidence that ODOC actually reached such a conclusion is
the Agency Chaplain’s e-mail to Remer. This e-mail does not contain specific
information as to the basis for ODOC’s conclusion. See Abdulhaseeb, 600 F.3d at
1318 (“inadequately formulated prison regulations and policies grounded on mere
speculation, exaggerated fears, or post-hoc rationalizations will not suffice to meet
[RLUIPA’s] requirements”) (quoting 146 Cong. Rec. 16698-99 (July 27, 2000)). By
way of example, there is no evidence that NGE members have caused disruptions in
ODOC prisons. Further, defendants have submitted no evidence that ODOC
considered alternatives to a complete denial of chapel time to the NGE. Therefore,
even assuming the NGE is a security threat, there is insufficient evidence that the
ODOC’s policy is the least restrictive means of maintaining prison order and
security. See Abdulhaseeb, 600 F.3d at 1319 (noting that there was no discussion
of whether the prison’s refusal to accommodate prisoner’s religious request was the
least restrictive means the state could employ to satisfy its interests). Defendants
have failed to meet their burden at this time. Therefore, defendants are not entitled
to summary judgment on Ciempa’s RLUIPA claim regarding the denial of chapel
time.
Dkt. # 60. The Court further ordered that Defendants Jones and Brown could file an additional
motion for summary judgment after a reasonable time for discovery.
In their second motion for summary judgment, Defendants first argue that Plaintiff’s claim
based on an alleged violation of RLUIPA fails because NGE is not a “religion.” See Dkt. # 90. For
the purposes of this case, however, the Court previously ruled that NGE would be treated as a
religion within the meaning of RLUIPA. See Dkt. # 60 at 21 n.16. Defendants further argue that
their denial of group time in the chapel has not “substantially burdened” Plaintiff’s religious
exercise. See Dkt. # 90. Again, the Court has previously ruled, see Dkt. # 60, that Plaintiff has made
a prima facie case under RLUIPA. Therefore, the Court will consider whether Defendants have

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shown that banning NGE as a group from the chapel is the least restrictive means of achieving a
compelling governmental interest.
In arguing that they are entitled to summary judgment on this claim, Defendants state that:
[T]he ODOC policy of denying organized chapel time to the N.G.E. was done after
considerable research into the N.G.E., its background and its known and documented
history. (Ex. 2, Aff. of Leo Brown); and (Ex. 3, Corrections Research re: N.G.E.).
The ODOC Chaplin reviewed the N.G.E. literature as well as unclassified FBI files
and reports on this group complied [sic] by other state penal institutions. (Ex. 2, Aff.
of Leo Brown). It was determined, that the N.G.E. was akin to a prison gang and the
N.G.E. was a substantial security threat within ODOC due to its racist content. (Ex.
2, Aff. of Leo Brown). ODOC maintains a no tolerance policy against racist groups
or gangs. See [Doc. 42, SR, Part A, Att. 14]. The history of the N.G.E. is widely
known in other state prison systems, which is why several prisons across the country
list the N.G.E. as a security threat group, a racist gang and linked to prison violence.
See Harrison v. Watts, 609 F. Supp. 561, 574, fn. 10 (E.D. Va. 2009) (listing a
history of prison and law enforcement intelligence findings regarding the N.G.E.).
(Ex. 3, Corrections research re: N.G.E.).
....
Furthermore, a total ban on N.G.E. chapel time for a group that professes not
to be a religion is the least restrictive means that could be employed [to] prevent
racial problems and enforce ODOC’s no tolerance policy against racist activities.
Besides, the N.G.E. members are allowed to worship with other Islamic groups
during their chapel times, practice their N.G.E. “religion” on their own in their cells,
and possess certain N.G.E. materials that pass security standards. (Ex. 2, Aff. of Leo
Brown); and (Ex. 4, ODOC e-mails). Clearly, ODOC is implementing the least
restrictive means regarding Plaintiff’s N.G.E. beliefs. ODOC did consider allowing
the group to meet but the security risk inherent in this case is that allowing the
N.G.E. to organize at all would pose a significant security risk and escalate racial
tensions. (Ex. 2, Aff. of Leo Brown); and (Ex. 4, ODOC e-mails).
Dkt. # 90 at 17-19. Defendant Brown, the Agency Chaplain and Volunteer Coordinator for ODOC,
states in his affidavit, see Dkt. # 90, Ex. 2, that in April of 2007, Correctional Religious
Administrators were surveyed to determine whether accommodations were being made for NGE
adherents. According to Defendant Brown, “[n]one of the responses . . . indicated that any agency
was allowing offenders affiliated with the Nation of Gods and Earths to hold group meetings.” Id.
In addition, in October 2010, Defendant Brown surveyed peers through a group listing of National
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Correctional Chaplaincy Administrators asking whether they allow offenders affiliated with N.G.E.
to meet in groups. Dkt. # 90, Ex. 2 at ¶ 6. He received responses from 18 agencies: nine stated they
had not received requests for group meetings; nine stated they denied requests for group meetings
“due to the nature of the group.” Id. Defendant Brown further states that because “the teachings of
[N.G.E.] promote racial conflict . . . the least restrictive means we can use to accommodate the
Nation of Gods and Earths is to allow them to practice their beliefs privately in their cell, receive
literature from this organization which is screened according to our policy and allow supervised
visits with approved outside representatives from this group.” Id. at ¶ 7.
In response to Defendants’ second motion for summary judgment, Plaintiff complains that
Defendants have broadly applied ODOC policy provisions to ban group chapel time instead of
narrowly tailoring the provisions. See Dkt. # 95. He also alleges that Defendants have failed to
demonstrate the existence of a compelling governmental interest in banning group chapel time and
that they have impermissibly presented post hoc rationalizations for their policy. Id. In support of
his argument, Plaintiff asserts that “Defendants have not proffered any specific information as to the
basis for ODOC’s conclusion that NGE constitutes a security threat.” See Dkt. # 95.
Upon review of the record, the Court finds Defendants have failed to demonstrate that
allowing NGE group time in the chapel would compromise ODOC’s compelling interest in
institutional security. Defendants acknowledge that there is no evidence that Plaintiff or any member
of NGE in the Oklahoma prison system has posed a security threat because of membership in NGE.
Furthermore, although ODOC policy provides for the recognition of Security Threat Groups by the
Internal Affairs Intelligence Unit, see OP-040119(I)(E)(3), ODOC has not determined that NGE is
a “Security Threat Group.” See Dkt. # 90, Ex. 9, attached Answers to Plaintiff’s First Set of

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Interrogatories by Defendant Justin Jones. The Court recognizes that Defendant Brown, the ODOC
Chaplain, has provided his affidavit describing the information he relied on in concluding that NGE
teachings promote racial conflict resulting in a serious security threat in the correctional setting. See
Dkt. # 90, Ex. 2. However, the information cited by Defendant Brown is dated and is not specific
to ODOC. Furthermore, while Defendants point to racially divisive NGE literature describing the
black man as God and the white man as the devil, see Dkt. # 90, Ex. 3, Plaintiff emphatically argues
that NGE does not promote violence. See Dkt. # 95, Ex. A.
In addition, even if Defendants have shown that NGE group meetings would constitute a
security threat, Defendants have not carried their burden of showing that banning NGE as a group
from the chapel is the least restrictive means of achieving their compelling governmental interest.
“In other strict scrutiny contexts, the Supreme Court has suggested that the Government must
consider and reject other means before it can conclude that the policy chosen is the least restrictive
means.” Washington v. Klem 497 F.3d 272, 284 (3d Cir. 2007) (citing Warsoldier v. Woodford, 418
F.3d 989, 999 (9th Cir. 2005) (in turn citing United States v. Playboy Entm’t Group, Inc., 529 U.S.
803, 824 (2000))). To carry their summary judgment burden, prison officials generally must
demonstrate they considered and rejected the efficacy of less restrictive measures before adopting
the challenged policy or practice. Id.
In this case, the Court must examine the record to determine whether banning NGE from
group time in the chapel is the least restrictive means of advancing ODOC’s compelling interest in
insuring facility security. See United States v. Wilgus, 638 F.3d 1274, 1289 (10th Cir. 2011).
Defendants merely state that “ODOC did consider allowing the group to meet but the security risk
inherent in this case is that allowing the N.G.E. to organize at all would pose a significant security

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risk and escalate racial tensions.” See Dkt. # 90 at 19. Defendants completely fail to describe any
less restrictive measure they considered and rejected before adopting the policy of a complete ban
on NGE group time in the chapel. As a result, Defendants Jones and Brown have failed to satisfy
RLUIPA’s stringent test requiring a compelling governmental interest and the least restrictive
means. They are not entitled to summary judgment on this claim.
Today’s ruling does not prohibit ODOC from imposing restrictions or limitations on NGE
group meetings in the chapel after undertaking serious consideration of any other alternatives.
Within sixty (60) days of the entry of this Opinion and Order, Defendants Brown and Jones shall
submit a written plan accommodating Plaintiff’s request for space and time in the prison chapel for
the religious exercise of his NGE beliefs using the least restrictive means to advance their
compelling government interest, or demonstrate that there are no less restrictive means, other than
a total ban, to ensure institutional security.
IT IS THEREFORE ORDERED that Plaintiff’s motion to supplement his response to
Defendants’ second motion for summary judgment (Dkt. # 100) is granted.
IT IS FURTHER ORDERED that Plaintiff’s Second Motion to Reassert His Motion for
Preliminary Injunction (Dkt. # 103) is denied.
IT IS FURTHER ORDERED that Defendants’ second motion for summary judgment (Dkt.
# 90) is granted in part and denied in part as follows: Defendant McClary’s motion for summary
judgment is granted as to Plaintiff’s claim based on the book Stoic Warriors and Defendant
McClary is terminated as a party; Defendants Jones and Brown are not entitled to summary
judgment on Plaintiff’s request for NGE group time in the chapel and their motion for summary
judgment is denied.

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IT IS FURTHER ORDERED that within sixty (60) days of the entry of this Opinion and
Order, Defendants Brown and Jones shall submit in writing either a plan accommodating Plaintiff’s
request for space and time in the prison chapel for the religious exercise of his NGE beliefs using
the least restrictive means to advance their compelling government interest, or a demonstration that
there are no less restrictive means, other than a total ban, to ensure institutional security. Plaintiff
may file a response to Defendants’ submission within thirty (30) days of its filing.

DATED this 9th day of September, 2011.

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